Manhattan Jury Angry at Police Awarded Our Client More Money Than Allowed By Law

In fact, the Jury Was So Outraged, they Awarded Our Client Eleven Times More Money than Allowed By Law – Why Was the Jury So Mad?  Because the Cop Lied to Them
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This is Part 1 in a Series
Proving Our Claim that Great Lawyers Work Here


At trial, sometimes the witnesses against you will not tell the truth.  They will lie.  How do we know?  Because in a December 2015 jury trial in Manhattan, the main witness against us lied.  He was a New York City police detective.  But we were ready.  When it happened, we were prepared and we promptly exposed his lies to the jury.  The result?  After we exposed the lies, the jury was so disgusted that the jury awarded us an amount of money that was ELEVEN TIMES above the legal limit!  And that’s not all.  Afterward, the judge also awarded us over $100,000 in attorney’s fees!

We think that is an excellent result!  In a series of articles posted to our website, we will show you the proof, and you can decide for yourself.  We believe in transparency: the more you know about us, the more you will like us.


We represented a man who had been falsely arrested.  After the criminal charges were dismissed, we made claims for false arrest, false imprisonment, malicious prosecution and for civil rights violations.

At the time of the false arrest, our client was sitting behind the wheel of his own car, which was parked on the street.  He had a passenger in the front passenger seat and another passenger in the back seat.  Prior to trial, the detective testified that the passenger in the back seat of the automobile was not doing anything in the car.  At trial, however, the detective completely changed his testimony.  At trial, the detective told the jury that the passenger in the back seat of the vehicle was making “furtive gestures.” The detective then testified that, based on his experience and training, the passenger’s “furtive gestures” meant that criminal activity was going on.  On cross-examination, we immediately pointed out to the jury that the detective had changed his story in an attempt to smear and discredit our innocent client.

The jury rejected the detective’s testimony in its entirety and ordered him to pay a six figure punitive damages award to our innocent client.  The jury’s verdict was so large that the detective’s lawyers sought to throw it out completely or reduce it substantially.  However, the trial judge refused to throw out the punitive damages award against the detective.

Just like the jury had rejected the detective’s “new” version of events, so did the trial judge.  The judge noted that the detective’s trial “testimony… differed in key respects from his deposition testimony.”  The judge refused to permit the detective to “obtain a different legal outcome” by changing his testimony.  In excellent legal language, the judge said that she was invoking the concept of judicial estoppel “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”

In other words, the judge refused to allow the detective to change his testimony in order to avoid paying money to our client for false arrest.

The trial judge did feel compelled, under governing case law, to reduce the punitive damages award by 90%.  She ruled that the punitive damages amount was unconstitutionally excessive.  But the judge then awarded our law firm over $100,000 for our excellent legal work at the trial.


The scenario described above is is a true summary of one of our cases.

It Is An Example of Why You Need Experienced Trial Attorneys

And Why Martin + Colin, P.C. is Your Best Choice

The lawyers at Martin + Colin, P.C. are experienced civil rights lawyers.  Please contact us immediately by using the chat button on your screen, or email us by using the ‘Contact Us’ form on this webpage.

Call us now at (914) 771 7711 and let us apply our expertise to your case.


Eve-of-Trial Motion to Preclude Evidence – Sample – January 2017

Here is a sample motion in limine (i.e., immediately prior to trial) seeking rulings favorable to the plaintiff (i.e., the person who filed the lawsuit) before the jury starts hearing the evidence. Hope it helps you!




   Plaintiff respectfully submits this Memorandum of Law in support of his motions in limine.  Specifically, plaintiff Fernando Colon respectfully submits this motion pursuant to the Federal Rules of Evidence (“FRE”) to preclude any reference to: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.


in limine motion   This case arises from an incident which took place on June 24, 2011.  On that date, at approximately 6:45 p.m., plaintiff Fernando Colon was parked and sitting inside his vehicle in the vicinity of 945 St. Nicholas Avenue, New York, New York.

After an individual named Bobby Lee entered plaintiff’s vehicle, police officers arrived and ordered the individuals in the car to exit.  Detective Tisdale approached the vehicle, in civilian clothes, with his firearm drawn.  After Det. Tisdale approached with gun drawn, he pulled the individuals out of the vehicle, handcuffed them, and made them wait outside the vehicle, near the curb.  The area is a heavily populated, urban, mixed residential and commercial area.  Mr. Colon did business in the area.

Det. Tisdale returned to the vehicle and looked inside.  He claims he then smelled marijuana.  He searched the front passenger compartment and discovered nothing; he searched the rear passenger compartment and, when he opened the closed compartment that held the folding rear seat Detective Tisdale discovered a sealed glass jar; inside the jar he observed a sealed and wrapped ziplock bag; inside the bag he observed marijuana.  He then continued to search, and opened the other rear seat compartment and discovered approximately $20,000 in cash.

in limine motion   The plaintiff was arrested.  The next day, Det. Tisdale sought and obtained a search warrant for plaintiff’s vehicle.  A search of the vehicle, pursuant to the warrant, uncovered nothing.  The criminal case against plaintiff was dismissed on November 10, 2011, on speedy trial grounds.  Plaintiff’s money and van were not returned to him until January 2012.


   The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence.  See Luce v. United States, 469 U.S. 38, 40 (1984)(explaining that the motion in limine is used to “exclude anticipated prejudicial evidence before the evidence is actually offered”).  See also Palmieri v Defaria, 88 F.3d 136, 141 (2d Cir. 1996)(‘The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.”).

in limine motion   As an initial matter, evidence must be “relevant” to be admissible.  Fed. R. Evid. 402.  The Federal Rules of Evidence define “relevant” evidence as that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.”  Fed. R. Evid., 401.  Further, Federal Rule of Evidence 403 grants a district court discretion to exclude even relevant evidence on the grounds of prejudice, confusion, or waste of time:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed R. Evid. 403.

Thus, to be admissible, evidence must be both (1) relevant and (2) not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Fed. R. Evid. 402 and 403.  Further, Rule 404(b) states, in relevant part, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.  This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  Fed. R. Evid. 404(b).


in limine motion   Defendant should be precluded from any reference to plaintiff’s prior arrest.  Plaintiff’s prior arrest when he was seventeen (17) years old (approx. 1999) is of minimal probative value and is unduly prejudicial given, inter alia, the length of time between the arrest and the events underlying this claim.  It should be inadmissible for any purpose.  See Fed. R. Evid. 404, 609(b).


   Defendants should be precluded from asking questions or presenting any evidence of Bobby Lee’s criminal history pursuant to Rules 401, 402 and 403 as totally irrelevant, will confuse the jury, is a waste of time and is unduly prejudicial.

At his deposition, Bobby Lee stated that he had three prior arrests that resulted in convictions, and that the first arrest occurred in either 2006 or 2007.  These arrests are wholly irrelevant not only to this cause of action but to his recollection and credibility as a witness to the June 24, 2011 incident involving Detective Jerome Tisdale and the New York City Police Department.

in limine motionBobby Lee’s criminal history should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury…”  Fed. R. Evid. 403.  “In making a Rule 403 determination, courts should ask whether the evidence’s proper value “is more than matched by [the possibility]… that it will divert the jury from the facts which should control their verdict.”  (internal citations omitted).  Potenza v. City of New York, 2009 U.S. Dist. LEXIS 60877 (E.D.N.Y. July 15, 2009).  Here, the prejudicial impact of Bobby Lee’s criminal history is far outweighed by any probative value that such evidence might have.  Accordingly, the Court should preclude the defendants from introducing such evidence under Rule 403.


   Rule 611(c) provides that leading questions ordinarily should not be used on direct examination, except “when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.”  Fed. R. Evid. 611(c)(2).  Plaintiff submits that Detective Tisdale’s testimony, as well as any other NYPD officer-witness will be adverse to Plaintiff, and therefore requests permission to treat him as hostile.


in limine motion     For the reasons stated above, plaintiff respectfully requests that the Court exclude: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.

Dated:  White Plains, New York
January 24, 2017

Respectfully submitted,

Attorneys for Plaintiff

Office + Post Office Address:
44 Church Street
White Plains, New York 10601
(914) 771 7711

Fourth Amendment – Improper Stop, Unlawful Detention

Civil Rights Law – 42 U.S.C. 1983 – Fourth Amendment – Search and Seizure – May 2016

Part 3 of 3

Here is the decision and order of the federal court.  The facts were set forth in our first post in the series (read here…).  The legal arguments were set forth in our second post in the series (read here…)  This is our final post in this sample of federal civil rights litigation arising out of a false arrest by police officers.  Here is that portion of the decision and order of the federal court judge which declared that the police action constituted false arrest and unlawful detention of our client.




     -against-                                          DECISION AND ORDER




A court reviews motions for judgment on the pleadings pursuant to Rule12(c) of the Federal Rules of Civil Procedure under the same standard as motions to dismiss pursuant to Rule 12(b)(6). Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).  “To survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”  Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).  The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the nonmoving party. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).  A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).  Rule 8 of the Federal Rules of Civil Procedure “requires factual allegations that are sufficient to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied, 133 S. Ct. 846 (2013) (quoting Twombly, 550 U.S. at 555).

The standard for summary judgment is well established. Summary judgment is appropriate where the record before the court establishes that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).  The Court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).  A motion for summary judgment should be denied “if the evidence is such that a reasonable jury could return a verdict” in favor of the nonmoving party.  NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178-79 (2d Cir. 2008).  Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


I.                False Arrest, Detention & Confinement (Counts I, II & V)

All parties move for summary judgment on Plaintiff’s false arrest, detention and confinement claims.  Summary judgment is granted for Plaintiff with respect to his detention prior to Defendant Tisdale’s discovery of marijuana, and for Defendants with respect to Plaintiff’s detention thereafter.

A.             Plaintiff’s Detention Before the Discovery of Marijuana

Defendant Tisdale’s conduct in handcuffing and detaining Plaintiff before discovering marijuana violated the Fourth and Fourteenth Amendments and is not entitled to qualified immunity.

In the absence of probable cause to arrest, “Terry v. Ohio [, 392 U.S. 1 (1968),] and Michigan v. Summers [, 452 U.S. 692 (1981),] provide distinct standards for reasonable stops . . . .” United States v. Bailey, 743 F.3d 322, 334 (2d Cir. 2014) (“Bailey V”).  A Terry stop “require[s] reasonable suspicion of criminal conduct beyond proximity to a location of suspected crime,” and a Summers detention “require[s] spatial proximity to the premises to be searched without regard to reasonable suspicion.” Id.

1.     Terry Analysis

A Terry stop is justified if an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).  Reasonable suspicion requires more than a “hunch.”  Terry, 392 U.S. at 27.  It demands “specific and articulable facts which, taken together with rational inferences from those facts,” id. at 21, provide detaining officers with a “particularized and objective basis for suspecting wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).

Even viewing the record in the light most favorable to Defendants, there could not have been the reasonable suspicion necessary to stop Plaintiff pursuant to Terry in the first instance.  First, when Plaintiff was initially detained, the only fact connecting him to any possible criminal activity was that Evans, the person associated with the apartment being searched, had just entered the minivan in which Plaintiff was sitting.  However, Defendant Tisdale admitted that he knew, upon approaching the vehicle, that the individual seated in the back was the person connected to the apartment being searched, and therefore that Plaintiff was not that person.

Defendant Tisdale also admitted that he did not believe that Evans was involved in illegal activity at the time.  In light of these admissions, any nexus between Plaintiff and Evans was insufficient to permit Defendant Tisdale to order Plaintiff out of a parked vehicle at gunpoint and immediately handcuff him.  Although “[t]he [reasonable suspicion] standard is not high,” Bailey V, 743 F.3d at 332 (internal quotation marks omitted), it is not satisfied on these facts, and Plaintiff’s detention cannot be justified by Terry.

2.     Summers Analysis

Under Summers, a detention incident to search is constitutional only if “limit[ed] . . . to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant.” Bailey v. United States, 133 S. Ct. 1031, 1042 (2013) (“Bailey IV”).  In determining whether an occupant was lawfully detained within such “immediate vicinity” of the premises to be searched, courts may consider “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id.  Here, nothing in the record suggests – and Defendants do not claim – that Plaintiff was an occupant of the searched apartment at any relevant time, had any intention of entering it or otherwise had any connection to it.  Moreover, Plaintiff was inside a vehicle that was “[a]round the block” from the apartment according to Defendant Tisdale, not within the line of sight, and access to the apartment presumably would have required passage through at least one if not two doors.  These facts are far from satisfying the Summers standard, and could not have justified Plaintiff’s initial detention as effected incident to the search of the apartment.

3.               Qualified Immunity

Qualified immunity is an affirmative defense for which defendants have the burden of proof.  See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).  An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2080 (2011).  A defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite for any reasonable official in the defendant’s shoes to understand that he was violating it. Id. at 2083-84.  “In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal quotation marks omitted).  “[T]he salient question . . . is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (alterations in original) (internal quotation marks omitted).  The “dispositive inquiry . . . is whether it would [have been] clear to a reasonable officer in the agents’ position that [their] conduct was unlawful in the situation [they] confronted.” Wood v. Moss, 134 S. Ct. 2056, 2059 (2014) (alterations in original) (internal quotation marks omitted).  “[I]f . . . officers of reasonable competence could disagree . . . , immunity should be recognized.” Hope v. Pelzer, 536 U.S. 730, 752 (2002) (internal quotation marks omitted).  Whether a clearly established right existed must be considered “in light of the specific context of the case, not as a broad general proposition.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation marks omitted).

Qualified immunity does not save Defendant Tisdale from liability for Plaintiff’s unlawful initial detention. First, as discussed above, the record contains no evidence tending to show that Defendant Tisdale had any individualized suspicion about Plaintiff, whether reasonable or unreasonable. Thus, there is no factual basis upon which to base a finding of qualified immunity for Defendant Tisdale under Terry.

Second, with respect to Summers, the relevant Supreme Court jurisprudence is grounded in the premise that those who may be subject to detentions incident to search are occupants of the searched premises.  452 U.S. at 701-05.  This occupancy nexus is relevant to each of the three law enforcement interests underpinning the Summers detention: (1) “minimizing the risk of harm to the officers” conducting the search, id. at 702; (2) “the orderly completion of the search,” which “may be facilitated if the occupants of the premises are present,” id. at 703; and (3) “preventing flight in the event that incriminating evidence is found,” id. at 702; see also Bailey IV, 133 S. Ct. at 1038-1041 (elaborating on the three law enforcement interests underpinning a Summers detention).  The Supreme Court has never departed from the occupancy requirement, including in its two cases revisiting Summers that had been decided at the time of Plaintiff’s 2011 detention. See Los Angeles Cnty. v. Rettele, 550 U.S. 609 (2007) (finding that the detention of individuals found on the premises at the time of the search was constitutional pursuant to Summers); Muehler v. Mena, 544 U.S. 93 (2005) (same).  Although some courts have found constitutional the detention of individuals who were leaving the premises to be searched, each case involved someone who had just occupied the premises when the officers arrived to execute a search.  See Summers, 452 U.S. at 693 & n.1 (upholding the detention of an individual as he exited the front door of the premises and descended the porch steps); see also United States v. Fullwood, 86 F.3d 27, 29-30 (2d Cir. 1996) (upholding the detention of an individual found outside the premises and about to enter his vehicle); United States v. Bailey, 468 F. Supp. 2d 373, 376 (E.D.N.Y. 2006) (“Bailey I”) (upholding the detention of two individuals after they exited the relevant premises and drove for one mile), aff’d, No. 06 Cr. 232, 2010 WL 277069 (E.D.N.Y. Jan. 19, 2010) (“Bailey II”), aff’d, 652 F.3d 197 (2d Cir. 2011), rev’d, 133 S. Ct. 1031, aff’d, 743 F.3d 322 (2d Cir. 2014). Even in Bailey, the case most heavily relied upon by Defendants on the qualified immunity issue,4 the district court stated that officers needed at minimum a “reasonable basis to believe that the person [to be detained] has just left or is about to enter the location to be searched.” Bailey II, 2010 WL 277069, at *14. Thus, in 2011, at the time of Plaintiff’s detention, the occupancy nexus was a clearly established prerequisite to the invocation of Summers.

Here, as discussed above, no evidence suggests that Defendant Tisdale believed or had grounds to believe that Plaintiff had any connection to the apartment that was being searched, let alone that Plaintiff had occupied or intended to occupy the apartment. In light of the clearly established requirement that detentions made pursuant to Summers be limited to the occupants of the premises to be searched, no reasonable officer could have believed that the detention of Plaintiff as he sat in a parked vehicle on another block was justified by Summers. Consequently, Defendant Tisdale is not entitled to qualified immunity under the Summers theory.

To the extent that Defendants could argue that Plaintiff’s initial detention was a reasonably necessary step to detaining Evans pursuant to Summers or Terry, that argument would fail. Even assuming that Defendant Tisdale is entitled to qualified immunity for the detention of Evans, that does not by itself justify the detention of Plaintiff. In United States v. Di Re, police arrested all three occupants of a car when a police informant in the backseat told the officers that the driver had sold him counterfeit coupons but said nothing about the passenger seated next to the driver. 332 U.S. 581, 583 (1948).  The Supreme Court ruled that the passenger’s arrest violated the Fourth Amendment because “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” Id. at 594; see also Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). Cf. Maryland v. Pringle, 540 U.S. 366, 374 (2003) (finding that police had probable cause to arrest Pringle and two other occupants of a car because “[n]o such singling out occurred in this case”). Likewise here, the confidential informant had singled out Evans alone, and Defendant Tisdale had no information about Plaintiff except that he was with Evans in the car. Because it would have been clear to a reasonable officer in Defendant Tisdale’s position that “merely . . . sitting in the suspect’s vehicle when officers approached,” United States v. Delossantos, 536 F.3d 155, 160 (2d Cir. 2008), “do[es] not, without more, amount to probable cause,” id. at n.4, Defendant Tisdale is not entitled to qualified immunity for Plaintiff’s initial detention, even assuming he would be entitled to qualified immunity for Evans’s detention.

In light of the foregoing, summary judgment is granted in favor of Plaintiff for his unlawful detention before Defendant Tisdale’s discovery of marijuana.

B.        Plaintiff’s Detention After the Discovery of Marijuana

Plaintiff’s claims for false arrest and unlawful detention and confinement (Counts I, II, V) must be analyzed separately for the period after the officers discovered marijuana in Plaintiff’s vehicle. Because probable cause existed for the arrest, summary judgment is granted to Defendants on Counts I, II and V for the period after the discovery.

“‘In analyzing § 1983 claims for unconstitutional false arrest, [courts generally look] to the law of the state in which the arrest occurred.’” Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). In order to state a claim for false arrest or imprisonment under New York law, a plaintiff must show that: (1) the defendant intentionally confined the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise justified. See Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991).  Under New York law, “the existence of probable cause is an absolute defense to a false arrest claim.” Jaegly, 439 F.3d at 152.

“‘Probable cause to arrest exists when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’”  Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). “The inquiry is limited to ‘whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.’”  Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting Jaegly, 439 F.3d at 153).

There is no dispute that Defendant Tisdale ordered Plaintiff and two other individuals out of Plaintiff’s vehicle, in which Defendant Tisdale then discovered marijuana.  That fact alone provides probable cause for Plaintiff’s arrest. See Abreu v. Romero, 466 F. App’x 24, 26 (2d Cir. 2012) (finding, in a New York case, that probable cause to arrest existed after officers found two ounces of marijuana in the plaintiff’s bedroom).

Plaintiff argues that the charge for which he was arrested – unlawful possession of marijuana in violation of New York Penal Law 221.05 – does not authorize law enforcement officers to effect custodial arrests.  With respect to the § 1983 false arrest claim, the Supreme Court in Virginia v. Moore, 553 U.S. 164 (2008), rejected the same argument.  In that case, the appellant argued that he was unlawfully arrested for the misdemeanor of driving on a suspended license because state law did not authorize the arrest. Id. at 167.  The Supreme Court found that the arrest was made with probable cause and did not violate the Fourth Amendment, even if the arrest was impermissible under state law. Id. at 178.  The Court held that “state restrictions do not alter the Fourth Amendment’s protections,” and that to hold otherwise would cause the Fourth Amendment to “vary from place to place and from time to time . . . .” Id. at 176 (internal quotation marks omitted).  Moreover, contrary to Plaintiff’s position, New York law authorizes arrest for the unlawful possession of marijuana in violation of New York Penal Law 221.05.  Under New York Criminal Procedure Law § 140.10, “a police officer may arrest a person for: (a) [a]ny offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence.”  An “offense” under § 140.10 is defined by New York Penal Law § 10.00(1) as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state . . . .” New York Penal Law § 221.05, under which Plaintiff was charged, expressly provides for punishment by a fine.  Plaintiff’s invocation of New York Criminal Procedure Law § 150.75 – requiring that “an appearance ticket shall promptly be issued and served upon” arrestees in connection with § 221.05 – does not change the fact that the unlawful possession of marijuana in violation of § 221.05 is an arrestable offense.  Consequently, Plaintiff’s argument fails with respect to his false arrest claims under both federal and state laws.

Plaintiff asks that the Court decline to follow Townes v. City of New York, in which the Second Circuit held that “[v]ictims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy . . . ; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution” – i.e., that the “fruit of the poisonous tree” doctrine does not apply in § 1983 actions. 176 F.3d 138, 148 (2d Cir. 1999).  Townes remains binding law in this circuit.  Thus, even assuming that the search of the vehicle that led to the discovery of marijuana was illegal, Plaintiff cannot recover for his arrest on that ground because the arrest was made with probable cause.

Call Us Now – (914) 771 7711

The experienced lawyers at Martin + Colin, P.C., headquartered in White Plains, handle unlawful search and seizure claims, false arrest cases and lawsuits alleging violations of civil rights.  If you have had your civil rights violated, Martin + Colin, P.C. may be able to help. Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage.


Fourth Amendment – No Probable Cause

Civil Rights Law – 42 U.S.C. 1983 – Fourth Amendment – Search and Seizure – May 2016

Part 2 of 3

Based on the facts set forth in the last post (read here…) Det. Tisdale asked that the case be thrown out on the grounds that there was probable cause for his actions.  Likewise, our client also asked the Court that the plaintiff be declared the automatic winner, without a jury having to decide, on the ground that there was absolutely no probable cause for Detective Tisdale’s actions.

Why the Detective Should Lose

On a motion for summary judgment, the facts must be read in the light most favorable to the non-movant.  In this case, our client absolutely challenges the veracity of Tisdale’s totally uncorroborated testimony that he received any phone call whatsoever from any alleged informant.  First, there is absolutely no evidence whatsoever to corroborate the police officer’s entirely self-serving testimony: no eyewitness accounts and no phone records.  Second, during his deposition, when asked if the search warrant for the apartment identified any suspect by name, Det. Tisdale answered “No.”  When asked if the search warrant for the apartment identified any suspect by description, Det. Tisdale answered: “I don’t know. Because that was not my warrant. It was another case. A detective that was on my team.”  So, plaintiff contends that the confidential informant would not have had Det. Tisdale’s direct cell phone number because in this apartment search warrant investigation, Tisdale was merely a bit player, only tangentially involved in the apartment search warrant.  By his own words, “that was not my warrant” and by his actions, he was stationed outside as the warrant was being executed.  Thus, plaintiff submits that the no cell phone conversation with a confidential informant ever took place.

Viewing the evidence in the light most favorable to the non-movant, Det. Tisdale did not receive any telephone call and there is no possible way that Det. Tisdale had probable cause for the plaintiff’s arrest, or even “arguable probable cause.”  Nobody has ever claimed that plaintiff had anything to do with the apartment being searched around the corner, and Tisdale admits that absolutely nothing suspicious was happening in the van when Tisdale pulled his gun, ordered the occupants out of the vehicle, placed them in handcuffs and searched the van.Martin Colin PC Great Lawyers

Probable cause to arrest requires reasonably trustworthy information that an offense has been committed. Ackerson v. City of White Plains, 702 F.3d 15 (2d Cir. 2012).  Tisdale concedes that absolutely nothing was going on when he seized the plaintiff.  Therefore, Tisdale’s motion for summary judgment on the grounds that Tisdale had probable cause to arrest plaintiff must be denied.  And, as will be discussed immediately below, even if Tisdale’s testimony regarding the phone call from the confidential informant is true, as we must assume when deciding the plaintiff’s cross-motion, Tisdale still arrested the plaintiff without probable cause or “arguable probable cause” and deprived plaintiff of his Fourth Amendment rights as a matter of law.

Why the Plaintiff Should Win

Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or the laws of the United States. See 42 U.S.C. § 1983; Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Sykes, 13 F.3d at 519. To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived him of a federal right. See 42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640 (1980); Sykes, 13 F.3d at 519. Thomas v. Roach, 165 F.3d 137 (2d Cir. 1999).

The plaintiff alleges that defendant Tyrone Tisdale was acting in the scope of his employment with the Police Department of the City of New York (i.e., acting under color of state law) when Tisdale deprived the plaintiff, our client, of his Fourth Amendment rights when Tisdale arrested plaintiff without probable cause.  The Fourth Amendment prohibits unreasonable searches and seizures. Gilles v. Repicky, 511 F.3d 239 (2d Cir. 2007).  Detectives Tisdale approached our client’s vehicle with gun drawn and pointed at the plaintiff and the other occupants.  Tisdale immediately pulled all three occupants out of the vehicle; handcuffed them and placed them at the curbside.  Tisdale then searched the entire contents of the passenger compartment of our client’s vehicle.  As a matter of law, this conduct amounts to much more than an investigatory detention; rather, this conduct constitutes an arrest, or seizure, without probable cause.  Oliveira v. Mayer, 23 F.3d 642 (2nd Cir. 1994).2014 GreatLawyers Books

Probable cause to arrest requires reasonably trustworthy information that an offense has been committed. Ackerson v. City of White Plains, 702 F.3d 15 (2d Cir. 2012).  Det. Tisdale himself testified that he observed absolutely nothing suspicious going on in the plaintiff’s van.  According to Det. Tisdale, the only facts that he himself personally observed were: three individuals sitting in a van.  Tisdale also claims that he received a telephone call from another person that the target of an apartment search warrant had just entered our client’s vehicle.  Even if Tisdale’s testimony about this phone call is credited (as it must be herein), there are still three glaring problems.

First, the phone call makes no mention of any criminal activity.  And since Tisdale himself observed no criminal activity, there is absolutely no basis to stop the plaintiff, let alone arrest him.

Second, even if the caller did mention criminal activity, it is well settled that a police officer cannot act on a telephone tip alone, but instead must corroborate suspicious activity before he can approach the suspects: Initially, it is clear that an anonymous telephone tip may not constitute reasonable suspicion warranting a stop of the subject of the tip (see, People v. Stewart, 41 NY2d 65, 69). In order for such information to give rise to a reasonable suspicion, independent investigative police work must corroborate criminal facts disclosed by the informant (see, People v. Elwell, 50 NY2d 231, 237). People v. Glover, 2001 WL 940232, Sup. Ct., Ontario Cty., 2001.

Third, and most critical, none of this had anything to do with our client.  Even if Tisdale received a phone call (which we are required to assume), and even if the phone call suggested criminal activity (which it did not), and even if Tisdale corroborated the criminal facts with independent police work (which he did not), then just maybe there might be some reasonable suspicion to approach the person who had just entered our client’s car and ask that person to step out of the vehicle, but that’s not what Tisdale did here.  Tisdale pointed his gun at our client, Tisdale pulled our client out of the vehicle, Tisdale put handcuffs on our client, and Tisdale sat our client on the curb.  So, because Tisdale himself observed nothing suspicious, because the cell phone call did not suggest any criminal activity, because Tisdale did not corroborate the phone call, and most importantly, because all of this concerned only the passenger in our client’s parked car and not in any way concerned our client, there is, as a matter of law, not even reasonable suspicion to stop our client here, let alone place him under arrest.  For these reasons, summary judgment on the plaintiff’s § 1983 false arrest claim must be granted.

Moreover, Tisdale also is not entitled to qualified immunity, or to have the immunity question put to a jury, because even when considering the facts in the light most favorable to Det. Tisdale, it was not objectively reasonable for him to point his service revolver at all occupants of the vehicle, order them all out of the vehicle, open car doors and pull all the occupants out, then handcuff them all and place them all at the curb.

As Tisdale’s own Memorandum of Law concedes, at page 5:  “The existence of probable cause is measured at the moment of arrest, not on later developments. Beck v. Ohio, 279 U.S. 89, 93 (1964).”  Like the plaintiffs in Oliveira, supra, our client’s initial encounter with police was too oppressive to be a mere investigative stop and the detention by Tisdale was not privileged because Tisdale clearly lacked probable cause.  The fact that Tisdale later found a decriminalized amount of alleged marijuana in the van is irrelevant.  Accordingly, our client, the arrested person, is entitled to summary judgment.

At his deposition, Tisdale made it very clear that he did not discover the marijuana until after he smelled marijuana in the passenger compartment, and he did not smell marijuana in the passenger compartment until after all the individuals were already removed from the van, handcuffed, and placed on the curb: *******

QUESTION: Okay. So let’s go back.  After the occupants were handcuffed by yourself and the other detective, what’s the next thing that you did?

ANSWER: I looked in the vehicle, I smelled marijuana, and I looked and – into the vicinity of all the occupants where they were seated at.

QUESTION: All the occupants?

ANSWER: Yes, you know, where the areas of – the occupants’ areas of the vehicle, the lungeable areas of where the occupants were sitting in the vehicle.

QUESTION: Okay, And this is after they were removed in handcuffs?

ANSWER: Yes.  *******  Tisdale Depo., p. 26.

Thus, by Tisdale’s own words, our client was arrested without probable cause and, as he had absolutely no reason whatsoever to believe that any criminality was afoot, Tisdale’s request for qualified immunity should be denied as a matter of law.  It does not matter that Det. Tisdale later found a decriminalized quantity of marijuana in our client’s van, as that was a “later development.”  In his Memorandum of Law, at p. 5, Tisdale cited many cases in support of his contention that detention for any offense, however minor, provides Tisdale with probable cause to arrest our client.  However, those cases are very different from the present case because in those cases, the minor offense was the predicate for the intrusion.  In this action, the very minor marijuana violation ultimately charged was entirely serendipitous and completely after-the-fact.

Accordingly, for all the reasons set forth above, this Honorable Court should declare our client the automatic winner, without a jury having to decide, on the ground that there was absolutely no probable cause for the police officer’s actions.LogoColor

That’s it.  That was our argument to the Court to have our client ruled the automatic winner (in lawyer terminology: that was our argument in support of our client’s motion for summary judgment in his favor.)  What do you think?  Was the police conduct lawful?  Or did the search and seizure conducted by police in the narrative above violate our client’s Fourth Amendment rights?  Stay tuned for subsequent articles in this series for the results.

The experienced lawyers at Martin + Colin, P.C., headquartered in White Plains, handle unlawful search and seizure claims, false arrest cases and lawsuits alleging violations of civil rights.  If you have had your civil rights violated, Martin + Colin, P.C. may be able to help.  Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage.


Fourth Amendment – Search and Seizure

Civil Rights Law – 42 U.S.C. 1983 – Fourth Amendment – Search and Seizure – Apr 2016

Part 1 of 3

Here is the true statement of facts taken from a recent search and seizure case handled successfully by our false arrest attorneys.  The undisputed facts:

New York Police Department Detective Jerome Tisdale testified that on June 24, 2011 at approximately 4:45pm, he was part of a team executing a search warrant at 499 West 159th Street, Apt. 20, New York, New York.  Det. Tisdale walked downstairs and was standing outside the building when his cellphone rang.  A confidential informant told Det. Tisdale that the person who was a subject of the search warrant had just entered a vehicle parked around the corner.

Upon receiving the call, Det. Tisdale, accompanied by Officer Grace O’Malley, both assigned to NYPD Narcotics Bureau Manhattan North, walked in the direction of the vehicle identified by the confidential informant (i.e., our client’s van).  Det. Tisdale and P.O. O’Malley walked around the corner to St. Nicholas Avenue and approached our client’s parked vehicle with guns drawn.

Det. Tisdale testified that he saw absolutely no criminal activity whatsoever.  He testified that he saw absolutely nothing suspicious going on in the car.  Nonetheless, Det. Tisdale and P.O. O’Malley pointed their loaded guns directly at our client and the other two occupants of the vehicle and pulled them all out of our client’s van.  The two police officers immediately handcuffed all three men and placed them on the curbside.  P.O. O’Malley stood watch over the three handcuffed men while Det. Tisdale returned to the van.  Tisdale testified that when he returned to check the “lungeable” areas of the van, i.e., the areas of the van where the three men had been sitting, he then smelled marijuana inside the van and on that basis conducted a warrantless search of the vehicle.  NYPD Det. Tisdale searched the front passenger compartment then moved into the rear passenger compartment.  He testified that he found approximately $8,800 in U.S. currency and an amount of marijuana on the floor of the back seats.

The three occupants of the van were taken to the 33rd Precinct.  There, one at a time, Det. Tisdale strip searched all three occupants of the vehicle.  The individuals, including our client, were then placed in the holding cell where they remained until sometime after midnight.  Thus, all three occupants were detained for more than 7 hours.  Sometime on June 25, 2011, they were each issued a desk appearance ticket to appear in court for arraignment on July 24, 2011.

That’s it.  Those are all the facts for this exercise.  What do you think?  Was the police conduct lawful?  Or did the search and seizure conducted by police in the narrative above violate our client’s Fourth Amendment rights?  Stay tuned for subsequent articles in this series for the results.  Part 2 of 3 here…

The experienced lawyers at Martin + Colin, P.C., headquartered in White Plains, handle unlawful search and seizure claims, false arrest cases and lawsuits alleging violations of civil rights.  If you have had your civil rights violated, Martin + Colin, P.C. may be able to help.  Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage.


Decision Denying Dismissal of False Arrest Case – Sample

August 2015:  This post is a demonstration of our transparency in the way we operate our business.Accident Lawyers Images

A sample decision from from a judge.  In this case, the judge refused the defendants’ request to dismiss the lawsuit.  This case alleges a claim for excessive force, in violation of the Fourth Amendment protection against unreasonable search and seizure, as well as a claim for retaliation, in violation of the First Amendment right to free speech.



Docket No.: 10 CIV. 3739 (LH)

479 F.Supp.2d 578 (2011)






TIMOTHY SANDERS, Individually,

BRIAN MOORE, Individually, and

GARY CARTER, Individually,



United States District Court, S.D. New York.

July 21, 2011.

William Gerard Martin, Martin & Colin, P.C., White Plains, NY, for Plaintiff.

Defense Counsel, for Defendants.

[479 F.Supp.2d 480]


HANDED, District Judge.

The Allegations of Fact

The following allegations of fact are recited most favorably toward plaintiff.

Justin Tonawanda began working as a manual laborer with the Village of St. Augustine Highway Department in the summer of 2000. He was hired by Gary Carter, who is the Superintendent of that Department and who was, at all times, plaintiff’s immediate supervisor.

On May 14, 2009, Tonawanda — who moonlighted by delivering pizzas for a local pizzeria — was driving on a public street in the Village of St. Augustine, returning from a delivery. He saw a police car with lights flashing, pulled over, turned off his vehicle and exited. Officer Pinkus, who is not a defendant in this action, ordered Tonawanda to get back into his car. Tonawanda mouthed off to the officer, but complied with a second order to return to his car. A second police car, containing defendant Officer Timothy Sanders and a third policeman, pulled up behind plaintiff’s vehicle.

Plaintiff claims to have been driving well under the speed limit and to have had no idea that the police were pulling him over or why they would have done so. He was upset, and repeatedly told Pinkus that if he (plaintiff) lost his job with the pizzeria, it would be the officer’s fault. However, he did give Pinkus his license and registration, as requested.

Defendant Sanders approached Tonawanda’s car and asked plaintiff who he was threatening. Tonawanda responded, “No one,” which is hardly surprising, since the phrase, “If I lose my job, it will be your fault,” expresses no threat toward anyone. Sanders, however, ordered plaintiff to get out of his car. As plaintiff was complying with this directive, Sanders grabbed Tonawanda’s left hand, yanked him out of his car, spun him around, put his elbow onto the back of plaintiff’s neck and pressed him against the frame of the car. He next kicked plaintiff in the leg to spread them and twisted plaintiff’s wrist. When plaintiff screamed, Sanders asked, “Are you high on crack?” Instead of answering the question or keeping quiet, Tonawanda’s mouthed off again, expressing the point of view that it was Sanders who did crack. Sanders kept plaintiff’s wrist twisted behind his back for about two minutes, until Tonawanda yelled, “Police brutality!” At that point, Sanders stopped twisting plaintiff’s wrist, though he did not let go of plaintiff’s arm until he placed Tonawanda into Pinkus’s patrol car. Plaintiff did not use force against any of the officers.

Sanders then searched Tonawanda’ vehicle, including the passenger compartment and the locked trunk, for approximately five minutes. He then ordered plaintiff to return to his car. Pinkus issued three traffic tickets to Tonawanda, all for not stopping at a stop sign. The incident ended.

Later that night, Tonawanda went to the St. Augustine Police Station and filed a report against Sanders. Approximately two months later, on July 16, 2009, Tonawanda served a notice of claim on the Village, alleging police brutality.

From this incident, there allegedly flowed a series of consequences.

First, plaintiff suffered physical injury at Sanders’s hands. On the night of the incident, he drove himself to the hospital. The wrist was x-rayed and placed in a soft cast. A Dr. Dodge told Tonawanda he would need an operation. Surgery was performed on October 31, 2009.

[479 F.Supp.2d 581]

Second, he lost his job with the Village of St. Augustine. Because of the injury, plaintiff was unable to work. The day after the incident, plaintiff reported his injury to Carter, who told him to bring a doctor’s note when he came back to work. Plaintiff was not medically cleared to return to work until April 13, 2010. When he told Carter he was ready to come back, Carter told him that he was not permitted to come back, and cited as the reason his pending lawsuit against the Village. On prior occasions, plaintiff had missed work due to injury, but was always allowed back with a doctor’s note. Moreover, at or about the time plaintiff was told he would not be allowed back, the Village’s DPW was hiring laborers. When plaintiff put in an application for one of those jobs, Carter told him that St. Augustine’s Mayor, defendant Brian Moore, would not permit Carter to rehire Tonawanda because of the pending lawsuit. Tonawanda tried to make an appointment with Moore, but the Mayor refused to see him.

Third, plaintiff was targeted by Sanders on two other occasions. Two days after he filed his Notice of Claim, on July 18, 2009, plaintiff and three other individuals, who were drinking on the street in violation of St. Augustine’s Open Container Law, were arrested after Sanders — one of the four officers who approached the men about their drinking — spied a paper bag on the ground in the vicinity of the group that Sanders believed contained cocaine. Plaintiff denied any knowledge of the cocaine, as did the other three men. All four men were arrested. One of the four arrestees was released almost immediately, but plaintiff and the two others were detained for several days on charges of Criminal Possession of a Controlled Substance. In a search incident to the arrest, cocaine was found on one of the four men, Billy Lupien, but not on plaintiff’s person. Plaintiff remained in jail for several days, until his family could arrange to post bail. All charges against plaintiff arising out of this arrest were dismissed when Lupien pled guilty to possession. A few weeks later, Sanders allegedly ticketed plaintiff’s car.

Unlike plaintiff, Lupien — the man who pled guilty to possessing cocaine — was returned to his position as a laborer with the DPW only two weeks after he was released from the County Correctional Facility after serving sentences for felony assault and narcotics possession.

The officers have put in affidavits that tell their side of this story. For purposes of this motion — which is limited to the issue of qualified immunity — those affidavits are irrelevant. In deciding a motion to dismiss on the issue of qualified immunity, plaintiff’s allegations of fact are presumed to be true. McKenna v. Wright, 386 F.3d 432, 434 (2d Cir.2010). The issues to be decided are whether — assuming plaintiff’s story to be true in all respects — any constitutional violation occurred, and if one did, whether any defendant who was personally involved with that violation is entitled to invoke qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

The Instant Complaint

On May 13, 2010, plaintiff filed the instant complaint for injunctive relief (specifically, a mandatory injunction forcing the Village to rehire him in his old job) and money damages. He pursues this relief on the following constitutional theories:

  1. Use of excessive force against Sanders for the events of May 14, 2009 (Fourth Amendment).
  2. Illegal search of his vehicle without probable cause on May 14, 2009 (Fourth Amendment).
  3. Violation of plaintiff’s First Amendment rights, by preventing plaintiff from

[479 F.Supp.2d 482]

resuming his employment with the Village of St. Augustine, and refusing to hire plaintiff into a vacant position similar to his former position, in retaliation for his having filed a complaint and a Notice of Claim against the Village and Sanders.

In addition to his federal claims, plaintiff asserts parallel claims under the New York State Constitution, and claims against Sanders for common law battery and malicious prosecution (under New York State law). He also throws in the usual claim for intentional infliction of emotional distress (a highly disfavored claim under New York law).

On July 26, 2010, all defendants moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings “on the ground of qualified immunity.” Of course, qualified immunity does not extend to the Village of St. Augustine, Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir.2009), or to claims brought under the Constitution and laws of the State of New York. See Robison v. Via, 821 F.2d 913, 920-21 (2d Cir.1987) (analyzing qualified immunity in terms of whether an interested protected by federal law could have been violated); see also, e.g., Napolitano v. Flynn, 949 F.2d 617, 620-21 (2d Cir.1991) (noting that the substantive law of Vermont would govern questions of immunity from suit with respect to claims under Vermont law, and applying only the state law immunity analysis to the state law claims); Hirschfeld v. Spanakos, 909 F.Supp. 174, 177-80 (S.D.N.Y.1995) (noting that qualified immunity is available to shield officials from liability for actions that do not violate clearly established federal rights, whereas the separate doctrine of “official immunity” affords public officials in New York protection against state law claims based on the performance of a discretionary function).1 As discussed more fully below, qualified immunity is a defense afforded to individuals acting under color of state law who are sued for federal Constitutional violations pursuant to 42 U.S.C. § 1983. See, e.g., Chester W. v. Maul, 214 F.3d 350, 357 (2d Cir.2000). Thus, without further discussion, defendant St. Augustine’s motion to dismiss the complaint as against it on the basis of “qualified immunity” must be denied, as must any motion directed toward the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Causes of Action.2

Sanders, Carter and Moore all assert that they are entitled to qualified immunity. Because they are individuals who are alleged to have committed constitutional torts while acting under color of state law, the doctrine applies to them. Unfortunately, their counsel makes the all too common error of conflating that doctrine with arguments that plaintiff is not entitled to relief on the merits, either because the facts are not as recited by plaintiff or because no constitutional violation was committed. I will sort this out below.

The Doctrine of Qualified Immunity

Government officials performing discretionary functions are entitled to qualified immunity “from federal constitutional claims … as long as their actions could reasonably have been thought consistent

[479 F.Supp.2d 483]

with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court indicated that the availability of qualified immunity ought to be decided by a court at the earliest possible opportunity — preferably at the outset of the case, at which point plaintiff’s well pleaded allegations are assumed to be true, and defendant’s version of the facts is immaterial. Thus, as the Second Circuit explained in Stephenson v. John Doe, Detective, 332 F.3d 68 (2d Cir.2009), when determining a motion to dismiss on qualified immunity grounds in advance of full merits discovery, and the question to be answered is whether a reasonable Government officer, confronted with the facts as alleged by plaintiff, could reasonably have believed that his actions did not violate some settled constitutional right. The inquiry is a two-step one. First, the court must determine whether, taking the facts in the light most favorable to the party asserting the injury, a constitutional infraction was committed. Saucier, supra, 533 U.S. at 201, 121 S.Ct. 2151. If the answer to that question is yes, the court must decide whether a reasonable official in defendant’s position (as that position is described by plaintiff) ought to have known that he was violating plaintiff’s constitutional rights by doing what plaintiff alleges he did.3 Ordinarily, the relevant inquiry will be whether the law is in fact well-settled — because if it is, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Claims that a public officer made a reasonable mistake of fact, “go to the question of whether the plaintiff’s constitutional rights were violated, not the question of whether the officer was entitled to qualified immunity.” Stephenson, supra, 332 F.3d at 78 (citing Saucier, supra, 533 U.S. at 205, 206, 121 S.Ct. 2151).

It is no defense to a claim of qualified immunity that the defendant did not do what plaintiff said he did.  At this early stage of a lawsuit, before discovery takes place, we are presuming that the plaintiff’s version of events is true, so a court cannot take into account assertions by the accused officer that contradict the plaintiff’s allegations. Nothing in Saucier can be read to deprive the plaintiff of his Seventh Amendment right to have a jury resolve all disputed issues of material fact. If plaintiff’s version of the facts is wrong and defendant’s is correct, then the defendant will prevail, not on the ground of qualified immunity, but because he did nothing wrong.

To explain with example: in this case, as in so many others, plaintiff alleges that the defendant used excessive force against him. The right to be free from the use of more force than is reasonably necessary to effect a lawful arrest is certainly well-settled, and no reasonable police officer could possibly believe otherwise. Therefore, unless the facts as asserted by plaintiff in the complaint (and, under my rules, in his deposition)4 could never be found by

[479 F.Supp.2d 484]

a reasonable trier of fact to constitute excessive force (for example, if plaintiff alleged only that the defendant took him by the hand), an officer accused of using excessive force will ordinarily not be able to get out of a lawsuit prior to discovery on the ground of qualified immunity. If the officer’s defense is that the force he used was not excessive — that is, the force used was reasonably necessary to effect the arrest — then the officer is asserting that he did not violate the plaintiff’s constitutional rights, and while he may ultimately prevail on the merits, he is not entitled to dismissal of the lawsuit at an early stage.

Here, plaintiff alleges that he did everything the officers asked him to do and used absolutely no force against them, but was nonetheless seriously injured by an arresting officer, to a degree that required surgery and kept him out of work for almost a year. It has long been the law in this Circuit that a suspect has a right to be free from “excessively forceful handcuffing.” Robison, supra, 821 F.2d at 923-24 (plaintiff’s statement that an officer threw her up against a fender and twisted her arm behind her back, causing her to suffer bruises lasting a couple of weeks, was sufficient to preclude summary judgment on an excessive force claim). Therefore, a court would have to conclude, as a matter of law, that a constitutional violation was committed if plaintiff’s allegations of fact are true.

With these principles in mind, I turn to each of the three individual defendants.

  1. Sanders

(a) Fourth Amendment Violations

Officer Sanders is alleged to have violated Tonawanda’ Fourth Amendment rights in two separate ways. First, he is alleged to have used excessive force against plaintiff while effecting his arrest. Second, he is alleged to have conducted an illegal search of plaintiff’s car, without probable cause to believe that a crime had been committed. He is not entitled to Saucier qualified immunity against either of these charges.

The excessive force charge is analyzed above, in my example of how qualified immunity does — and does not — work. Plaintiff charges that Sanders broke his wrist even though plaintiff was not resisting arrest, refusing to follow any order of the police officers, or using any force against them. The right to be free from excessive force is well-settled. If the facts are as plaintiff alleges, no reasonable police officer could possibly have thought it was necessary to use the degree of force that Sanders allegedly used in this case. If in fact it was necessary for Sanders to break plaintiff’s wrist in order to subdue him — if, for example, plaintiff was flailing around or trying to escape — then, assuming Sanders’s demand that he get out of the car was lawful, the officer will be exonerated at trial.5 But he cannot get out of the lawsuit at this early stage on that basis.

[479 F.Supp.2d 485]

Plaintiff also alleges that Sanders illegally searched his car. The right to be free from unreasonable searches — that is, searches conducted without probable cause — is well-settled, and defendant would be hard pressed to assert otherwise. On the facts alleged by plaintiff, no reasonable police officer could possibly have believed he had probable cause to search either Sanders or his car for cocaine. The record contains only the allegations that, while plaintiff was yelling, Sanders asked, “Are you high on cocaine?” — a question to which plaintiff regrettably gave a smart-assed answer. Nothing in the record at this time suggests that Sanders saw a suspicious bulge in plaintiff’s pocket, or glimpsed what looked like a glassine envelope on the floor of Tonawanda’s car through the open door, or anything else that would have given rise to probable cause to believe that plaintiff had any drugs in his possession. The fact that a man yells when his arm is twisted so hard that it breaks his wrist, or that he gives a sassy answer to a question about drug use, does not give rise to probable cause to search a vehicle for drugs. So qualified immunity does not get Sanders out from under this charge, either. If there was probable cause to search, there was no constitutional violation, but determination of that issue must abide Sanders’s testimony.

(b) First Amendment Retaliation

Sanders is also alleged to have retaliated against plaintiff for exercising his First Amendment right to file a complaint and a notice of claim (the necessary precursor to a lawsuit) against Sanders. Plaintiff alleges that Sanders’s decision to arrest him on July 18, 2009, for possession of cocaine, came in retaliation for his filing the local complaint and the notice of claim (the latter having been filed only two days earlier). Here, Sanders’s claim of qualified immunity is trickier to analyze.

Plaintiff has a well-settled right to complain about police misconduct — and to bring a lawsuit to seek redress for that alleged misconduct — without being subjected to retaliation. Kerman v. City of New York, 261 F.3d 229, 241-42 (2d Cir.2001) (discussing the First Amendment

[479 F.Supp.2d 486]

right to verbally criticize the police without reprisal); see also Wise v. New York City Police Dep’t, 928 F.Supp. 355, 372 (S.D.N.Y.1996) (complaints of systemic police misconduct are protected speech, even when the complainant is a police employee, since the issue is a matter of public concern). Two days prior to this arrest, plaintiff had filed such a complaint. Nonetheless, Sanders had probable cause to arrest him, and his companions, for a violation of St. Augustine’s Open Container Law. The facts alleged and testified to by plaintiff include an admission that he, along with three friends, was drinking on the street in violation of St. Augustine’s Open Container Law. Under New York law, the admitted violation of the Open Container Law — even without Sanders’s subsequent examination of the paper bag containing cocaine — would have been enough to support plaintiff’s arrest. See People v. Bothwell, 261 A.D.2d 232, 690 N.Y.S.2d 231 (1st Dep’t), leave to appeal denied, 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946 (1999) (noting that a police officer is authorized to arrest a person he has “reasonable cause” to believe violated the Open Container Law); see also McDermott v. City of New York, No. 00 Civ. 8311(LAK)(GWG), 2002 WL 265127 at *6 (S.D.N.Y. Feb. 25, 2002) (noting that “New York courts have recognized that where probable cause exists to arrest someone in violation of an Open Container statute, an officer may do so”) (citingPeople v. Pantusco, 107 A.D.2d 854, 484 N.Y.S.2d 321 (3d Dep’t 1985)).

Thus, even under plaintiff’s version of events, there was no violation of his constitutional rights when Sanders arrested him. There is no need to reach the issue of qualified immunity; Tonawanda’s claim of retaliation simply must be dismissed. Saucier, supra, 533 U.S. at 201, 121 S.Ct. 2151 (noting that, if no constitutional right was violated, assuming plaintiff’s version of the facts to be true, there is no need to consider whether a reasonable officer in the defendant’s position would have done what defendant did).

  1. Carter and Moore

The claim against Carter and Moore is a First Amendment retaliation claim — namely, that they refused to return him to his position as a laborer with the St. Augustine DPW, either by giving him his old job back after he ceased to be disabled, or by hiring him anew after he put in an application, in retaliation for his having filed a Notice of Claim against the Village and Sanders arising out of his arrest. As evidence, plaintiff cites the fact that one Billy Lupien — who was also arrested for drug possession, and who was convicted (as plaintiff was not) for that crime — was hired for a DPW position as soon as he was released from jail. Plaintiff, on the other hand, was allegedly told he could not have his job back because the Mayor would not permit it due to “the lawsuit.”

A citizen has a settled right not to suffer retaliation for the exercise of his First Amendment rights. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (discussing plaintiff’s potential entitlement to reinstatement if he could prove that the decision not to rehire him was made by reason of his exercise of his First Amendment rights) (citing Perry v. Sindermann, 408 U.S. 593 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). See also Estate of Morris v. Dapolito, 297 F.Supp.2d 680, 694 (S.D.N.Y.2010) (noting that the Second Circuit articulated the elements of First Amendment retaliation in Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir.1987), and finding actionable retaliation where student who complained about teacher who

[479 F.Supp.2d 487]

assaulted him was subjected to “severe punishment”). No reasonable official charged with hiring public employees could possibly have thought that it was constitutional to refuse to rehire an employee after his disability ended solely and simply because he was planning to sue the Village and Sanders for wrongfully breaking his arm.

That being so, it is obvious that Carter and Moore cannot obtain dismissal of the claim in suit on the ground of qualified immunity. Carter protests that he is not the decision-maker with regard to plaintiff’s job, but that does not entitle him to qualified immunity. It might entitle him to summary judgment someday, but not to dismissal on the pleadings today.

Moore contends that the only thing he is alleged to have done was refuse to meet with plaintiff, but he is being deliberately obtuse. Carter is alleged to have told plaintiff that he (Carter) could not rehire plaintiff because the Mayor of St. Augustine would not permit it. Moore is, in short, alleged to have made the ultimate decision not to permit plaintiff to return to work for the Village — and he is alleged to have done so solely because plaintiff had filed a Notice of Claim arising out of the excessive force incident. These allegations may or may not pan out, but Moore is certainly not entitled to qualified immunity. For if the facts are as plaintiff alleges, no reasonable decision-maker in Moore’s position could possibly have believed he was entitled to act as he allegedly did.

The Village’s Motion for Dismissal on the Pleadings is Denied

The Village seeks dismissal of the complaint on the ground that the individual defendants should have the complaint dismissed as against them. Because none of the defendants is entitled to dismissal of the entire complaint as against him on the ground of qualified immunity, the Village’s motion lacks merit. If, at the close of discovery, there is no basis for holding the Village liable — either because plaintiff has not adduced evidence of a violation by any defendant or under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) — the Court will entertain a motion for summary judgment.


The First Amendment retaliation claim against defendant Sanders is dismissed. Otherwise, defendants’ Rule 12(c) motion is denied. A Scheduling Order is attached.

This constitutes the decision and order of the Court.


  1. Defendants have made no argument that New York’s “official immunity” doctrine should apply here.
  2. The “Twelfth Cause of Action” is captioned “Injunctive Relief.” There is no such cause of action. Plaintiff seeks a mandatory injunction as one remedy for the violations of law alleged in the first eleven causes of action. The Twelfth Cause of Action is dismissed for failure to state a claim, without prejudice to plaintiff’s ability to assert his right to the remedy of an injunction should he prevail on the claims relating to the loss of his employment.
  3. If the answer to this question is “No” — as it is in this case on one of the claims against Sanders — then the claim will be dismissed, but for failure to state a claim, not on qualified immunity grounds.
  4. Under this Court’s rules, the plaintiff is deposed before a rule 12(c) motion on qualified immunity grounds is made, so that the plaintiff’s complete story — not just the minimal allegations required of a pleader under Fed.R.Civ.P.8 — is before the Court. No other discovery (including depositions of the defendants) is permitted prior to the determination of the qualified immunity motion, however, because none would be relevant at the commencement of the lawsuit, when the Supreme Court and the Second Circuit require this issue to be decided.
  5. Plaintiff does not, in responding to the motion, raise the issue of the lawfulness of Sanders’s demand that he get out of the car. Plaintiff was eventually cited (by another officer, not Sanders) for running a stop sign. That is a violation, not a crime, and ordinarily would not permit the police to subject the plaintiff to a DeBour level two or three stop. As stated by the New York Court of Appeals in People v. Hollman, a “level two inquiry” is “activated by a founded suspicion that criminal activity is afoot,” and permits a police officer to ask somewhat intrusive questions. 79 N.Y.2d 181, 184-85, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992) (discussing People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976)). A “level three inquiry” requires reasonable suspicion that a particular person was involved in a felony, and permits an officer to forcibly stop and detain that person. Id. Thus, without a “founded” or “reasonable” suspicion that a crime had been committed, Sanders would not have been permitted to detain the plaintiff. Interestingly, Sanders does not dispute plaintiff’s description of this incident; rather, over and over again, his lawyer refers to Tonawanda’ repeated shouts of, “If I lose my job, it’s your fault,” as a “threat.” The words themselves fail to convey any threat, so it will take some information that is not yet in the record — for example, information about what plaintiff was doing at the time he shouted these words — to transform them into something that would give rise to reasonable suspicion of criminal activity — even criminal activity under Penal Law Section 240.20, let alone Penal Law Section 240.26.

Sanders asserts in his moving brief that he was permitted to order plaintiff out of the car “as part of his further investigation.” (Moving Br. at 9.) Sanders does not say what he had reason to “further investigate.” I can state categorically that, on the facts testified to by plaintiff, he did not have any basis to order plaintiff out of his car on a reasonable suspicion that plaintiff either possessed or was using cocaine. Certainly, if Sanders is suggesting that his actions are shielded by the fact that Pinkus (not Sanders) had probable cause to stop the car in the first place, he is just plain wrong. Assuming arguendo that Pinkus told Sanders he had seen plaintiff run a stop sign (which would be necessary to impute Pinkus’s knowledge to Sanders under the fellow officer rule), observing a traffic violation, without more, does not give rise to probable cause to believe a drug crime is being committed.

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