A police officer violated our client’s constitutional rights. Then the police officer lied on the stand. An outraged jury assessed punitive damages against the officer. But then the trial judge took almost all the punitive damages away.
Question: What saved the officer?
Answer: The Constitution of the United States
That’s right – the very same constitution that the police officer violated – was the very same constitution that protected the officer.
Here’s the Story –
As we discussed in a recent post, we represented a man who had been falsely arrested in Manhattan. After the criminal charges were dismissed, we sued the police officers and the City of New York for false arrest, false imprisonment, malicious prosecution and for civil rights violations.
On the stand, the detective who had falsely arrested our client did not want to lose the case. He wanted to win so badly that he lied to the jury. 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 trial judge was also outraged by the detective’s falsehoods, and refused to let him “obtain a different legal outcome” by changing his testimony. In other words, the judge refused to let the detective obtain a dismissal of the case and avoid paying money damages to our client for false arrest based on lies.
But, although the trial judge did not let the detective win the case, she did reduce the punitive damages award against the detective by 90%. In doing so, the judge took away the punishment of the detective that the jury had meted out. Why?
The United States Supreme Court has ruled that punitive damage awards must be reasonable. That is, they must correspond to “the degree of reprehensibility of the defendant’s conduct.” The appeals courts have stated that conduct marked by violence is the most reprehensible. Similarly, conduct that could cause serious physical or emotional injury is more reprehensible than conduct that risks only minor injuries or economic damages. Along the same lines, conduct involving deceit or malice is more reprehensible than conduct involving mere negligence.
In our case, the trial judge determined that the detective’s conduct involved the threat of violence and the potential for serious injury, and therefore amounted to reprehensible conduct. However, she determined, because our client’s ultimate injuries were minor and the gun, while threatening, was never used, “the degree of reprehensibility was not all that high.” Based upon this analysis, the trial judge reduced the punishment inflicted by the jury on the detective from $110,000 down to $10,000.
Here is the most interesting, and most informative, analysis from the trial judge:
The final consideration is a comparison of the present award against other rulings on punitive damages in comparable cases. In Payne, the Second Circuit exhaustively surveyed its decisions regarding punitive damages awards against police officers. It concluded that the punitive damages awards ranging from $125,000 to $175,000 have been deemed “substantial,” and in cases where such substantial awards of over $100,000 were upheld, the police conduct at issue was far more egregious than here. Id. at 105.
For example, in O’Neill v. Krzeminski, two police officers attacked a handcuffed plaintiff (one with a blackjack) and then dragged him across the floor of the police Station by his throat. 839 F.2d 9, 10 (2d Cir. 1988). The Second Circuit affirmed punitive damages of $125,000 and $60,000. Id. at 13-14. In Disorbo v. Hoy, a police officer arrested one plaintiff for spurning his advances at the bar, and then, at the police station, he slammed the plaintiff into the door; another police officer pushed another plaintiff against a wall, choked her, threw her to the ground and struck her repeatedly. 343 F.3d 172, 176-77 (2d Cir. 2003). The Second Circuit limited punitive damages to $75,000, which it found “comparable to the upper limits of the punitive damages awarded in similar police brutality cases.” 343 F.3d at 189. In Payne, a police officer called to assist with a combative patient at a hospital exacerbated the situation by verbally provoking the patient into a fight, and then continuing the fight, thereby worsening the patient’s already bad back and PTSD. Payne, 711 F.3d at 88. The Second Circuit concluded that “highest level of punitive damages that can properly be sustained is $100,000.” Id. at 106.
Based on a comparison to previous awards, the punitive damages award here is excessive. The conduct here was far less reprehensible than each of the above cases and other cases surveyed in Payne, and therefore the amount of punitive damages must be reduced. A recent case in the Eastern District of New York, Milfort v. Prevete, is instructive on how much the remittitur should be. Based on an analysis of the factors articulated in Payne, Milfort reduced the punitive damages award of $40,000 to $5,000 because the jury awarded only nominal damages after finding the defendant liable for a single claim of false arrest, and “Plaintiff, though unjustly targeted and falsely arrested, was not subject to excessive force . . ., was not damaged in a way that necessitated compensatory damages, and was held in custody for the relatively short time of one and a half hours.” 3 F. Supp. 3d 14, 26 (E.D.N.Y. 2014). Similar considerations support a remittitur in this case. However, because here the jury awarded compensatory damages (however small) and Defendant Tisdale was found liable for two separate constitutional violations (as opposed to one in Milfort), a larger award than $5,000 is in order.
Having considered this “complex totality of factors,” Payne, 711 F.3d at 106, the Court concludes that the highest level of punitive damages that may be sustained here is $10,000. If plaintiff does not consent to accept a punitive damage award of $10,000, a new trial on this issue will be ordered.
Thus, even though the detective violated our client’s civil rights by falsely arresting him and improperly searching his car, the jury’s punishment was taken away by the trial judge. Even though the very same detective acted outrageously a second time when he took the witness stand and told complete falsehoods, and the outraged jury awarded a punishing punitive award, the trial court protected the detective. She did that because the Fourteenth Amendment to the United States Constitution protects individuals from substantive due process violations. The trial judge determined that the jury’s punitive verdict, unless reduced by 90%, violated the detective’s substantive due process rights. Amazingly, the document that the police officer violated (i.e., the Constitution of the United States) was also the document that saved him!
As demonstrated above, the lawyers at Martin + Colin, P.C. are experienced civil rights attorneys. LET US APPLY OUR EXPERTISE TO YOUR CASE.
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
We Want to Be Your Lawyers We Will Fight to Get You the Best Results Possible And Here Is How We Do It –
This is Part 1 in a Series Proving Our Claim that Great Lawyers Work Here
Introduction
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.
Discussion
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.
Conclusion
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.
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!
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ————————————————-x FERNANDO COLON, Plaintiff, -against- CITY OF NEW YORK; et al., Defendants. ————————————————-x
PLAINTIFF’S MOTION IN LIMINE
PRELIMINARY STATEMENT
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.
STATEMENT OF FACTS
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.
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.
ARGUMENT
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.”).
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).
PLAINTIFF’S PRIOR ARREST SHOULD BE EXCLUDED BECAUSE IT IS IRRELEVANT AND UNDULY PREJUDICIAL
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 DELVING INTO NON-PARTY WITNESS BOBBY LEE’S CRIMINAL HISTORY
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.
Bobby 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.
PERMIT PLAINTIFF TO TREAT ALL NYPD OFFICERS AS HOSTILE
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.
CONCLUSION
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,
MARTIN + COLIN, P.C. Attorneys for Plaintiff
___S/_________________________ WILLIAM MARTIN Office + Post Office Address: 44 Church Street White Plains, New York 10601 (914) 771 7711
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.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ——————————————————————-X
FERNANDO COLON,
Plaintiff,
-against- DECISION AND ORDER
CITY OF NEW YORK, et al.,
Defendants. ——————————————————————-X
STANDARD
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).
DISCUSSION
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.
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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.
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.
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).
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.
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.
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.
Thus, even though the detective violated our client’s civil rights by falsely arresting him and improperly searching his car, the jury’s punishment was taken away by the trial judge. Even though the very same detective acted outrageously a second time when he took the witness stand and told complete falsehoods, and the outraged jury awarded a punishing punitive award, the trial court protected the detective. She did that because the Fourteenth Amendment to the United States Constitution protects individuals from substantive due process violations. The trial judge determined that the jury’s punitive verdict, unless reduced by 90%, violated the detective’s substantive due process rights. Amazingly, the document that the police officer violated (i.e., the Constitution of the United States) was also the document that saved him!
As demonstrated above, the lawyers at Martin + Colin, P.C. are experienced civil rights attorneys. LET US APPLY OUR EXPERTISE TO YOUR CASE.
