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TOBING v. CITY OF NEW YORK

June 3, 1996

RICHARD TOBING et al., Plaintiffs, against THE CITY OF NEW YORK et al., Defendants.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 In the instant civil-rights action brought under 42 U.S.C. ยง 1983, several plaintiffs bring suit against the City of New York, and several individual defendants associated with the Sheriff's Office of the City of New York. The branch of this case for which a motion is pending before the Court concerns the claims of plaintiffs Richard and Sylvia Tobing arising from an incident that transpired on March 23, 1992. In this incident, defendants Marlon White and Daniel Rodriguez, sheriff's deputies employed by the New York City Sheriff's Office, allegedly arrested the plaintiffs without probable cause to believe that the plaintiffs had committed a crime, and used excessive force in connection with this arrest, thereby violating plaintiffs' Fourth Amendment rights. The basis for this seizure was a civil judgment -- later found to be erroneous against the Tobings' vehicle for unpaid parking tickets.

 Pending before the Court is defendants' motion for summary judgment dismissing this case in its entirety, or alternatively seeking partial summary judgment with respect to plaintiffs' excessive force claims. Defendants principally contend that the incident in question constituted a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which requires only reasonable suspicion that criminal activity was afoot, as opposed to probable cause which is needed to effect an arrest. Defendants moreover argue that any force that they employed was reasonable under the circumstances. Defendants further contend that even if they violated plaintiffs' constitutional rights, they are protected from suit for damages by a qualified immunity defense because no reasonable jury could find that it was objectively unreasonable for them to believe that they were not violating plaintiffs' federal constitutional rights.

 The chief flaw in the defendants' arguments is that they fail to consider the sharply disputed material facts as evidenced by the plaintiffs' deposition testimony, which, if believed by the trier of fact, would warrant the conclusion that an arrest indeed had been effected, thereby requiring probable cause. The sharply disputed factual assertions moreover preclude the availability of a qualified immunity defense. For these reasons, which are further discussed below, the defendants' motion is denied in its entirety.

 FACTUAL BACKGROUND

 Viewed in the light most favorable to the plaintiffs (except as where otherwise noted), the record shows that at approximately 8:35 A.M., on the morning of March 23, 1992, plaintiffs Richard Tobing, an off-duty Housing Police Detective, and his wife Sylvia Tobing, were proceeding slowly on South Street in lower Manhattan looking for a parking spot where they could stop to feed their nine-month-old baby. A tow truck approached them from the front with its lifting fork lowered. Puzzled, they moved to avoid the tow truck and proceeded through City streets normally with traffic. The tow truck followed them.

 Defendants contend that, not a tow truck, but the Sheriff's Department's white Ford Taurus, bearing a rack of red and white lights on the roof and an official Sheriff's Department emblem on the side, followed directly behind the Tobing vehicle. They further contend that their Taurus was "in [plaintiffs'] rear view mirror" from the moment the Tobings proceeded on South Street.

 Traffic was heavy and plaintiffs' vehicle did not exceed the speed limit or run any red lights. Suddenly, the Taurus pulled alongside the Tobing vehicle. The occupants of the Taurus -- White and Rodriguez -- pointed their guns at the Tobings and ordered them to stop. Almost instantaneously, the Taurus swerved and blocked the Tobings' path.

 White testified that he could not recall whether he had probable cause to believe that Detective Tobing had committed a crime when he followed the Tobings' vehicle. White gave the following testimony about his cause to stop the Tobings:

 
Q. When you were following people who were breaking speed limits [later clarified to refer expressly to the Tobings], did you have any reason to believe that they were engaged in any other criminal activity, other than being a judgment debtor?
 
A. That's really hard to determine from your car . . . . If people know who you are and they are running, it would strike something in you to think that maybe this guy did ...

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