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WU v. CITY OF NEW YORK

July 22, 1996

STEVEN WU, Plaintiff, against CITY OF NEW YORK, MILLARD CARSON, Individually and in his official capacity, CAPTAIN ROBERT D. HUMES, Individually and in his official capacity, SERGEANT NICHOLAS SANTORO, Individually and in his official capacity, STEVEN ZIEGLER, Individually and in his official capacity, JOSEPH MONAHAN, Individually and in his official capacity, Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge :

 Plaintiff in the above-captioned matter has sued the City of New York and several New York City Police and Transit Officers for violations of his federal civil rights pursuant to 42 U.S.C. §§ 1981 and 1983 and for state law violations including false arrest. malicious prosecution, and intentional infliction of emotional distress. The case is before the Court on cross-motions for summary judgment.

 FACTS

 On the evening of March 3, 1992, Steven Wu drove to La Guardia Airport to pick up a friend, Junie Lim, who had flown to New York for a job interview. Wu was a 23-year-old Chinese-American and an associate programmer analyst at the investment banking firm of Goldman Sachs & Co.

 At approximately 8:15 p.m., Wu parked his car at a metered spot on 52nd Street and Seventh Avenue, near the Sheraton Hotel. Wu accompanied Lim as she checked into the hotel; the two then returned to the car at approximately 8:30 p.m., planning to proceed to dinner.

 At the car, Wu and Lim encountered Department of Transportation Agent Millard Carson, who was dressed in uniform and issuing a parking ticket. According to Wu and Lim, and undisputed by the moving defendants, Wu attempted to discuss the ticket with Carson, who responded "Fuck you, Chink. Don't tell me what to do. You think you Chinks have money so you can do whatever you want." Wu Dep. at 17; Lim Aff. at P 7; Lim Dep. at 18-19.

 Wu and Lim allege that Carson then began to bump Wu's chest with his chest, challenging Wu to start a fight so that Carson could have him arrested. Lim Aff. at P 8; Wu Dep. at 21; Lim Dep. at 21. According to Wu and Lim, Carson repeatedly bumped Wu and then shoved Wu with his hands, knocking him backwards to the ground. Lim Aff. at P 9; Wu Dep. at 22; Lim Dep. at 20-21. Again, the moving defendants do not dispute this version of the events.

 Wu, who was carrying a cellular telephone, immediately placed a 911 telephone call. He reported to the 911 operator that "I have a problem here. A traffic officer just shoved me. And I need police assistance right now." Plaintiff's Exh. C, Transcript of 911 Call ("911 Tr.") Wu then reported that "this traffic officer just pushed me in the chest and he pushed me pretty hard," and that "now he's trying to say that I pushed him, which is totally incorrect." Id. Wu requested an ambulance. At approximately the same time, Carson radioed a Department of Transportation supervisor, explaining that he was being assaulted but that he was not injured. Plaintiff's Exh. C.

 Shortly thereafter, Police Officers Steven Ziegler and Joseph Monahan arrived at the scene of the incident. There is some dispute as to who spoke with whom at this point. Officer Ziegler says he spoke to Carson and Wu, both of whom claimed to have been struck in the chest by the other. Ziegler Dep. at 13, 18. Wu states that although he repeatedly attempted to describe the events to the police officers, the officers told him to "back off" and refused to listen to him or to take notes of anything he said. Wu Dep. at 34-39. According to Lim, when Wu attempted to tell the officers what had happened they told Wu to "back off" and brushed him aside in order to hear Carson's version of the events. Lim Dep. at 27-28, 30. The moving defendants do not specifically contradict this account.

 At this point, Officer Ziegler radioed for Sergeant Santoro, who arrived shortly thereafter. Officer Monahan remembers telling Sergeant Santoro Carson's version of the events; neither he nor Officer Ziegler can remember whether they relayed Wu's version of the incident. Monahan Dep. at 19; Ziegler Dep. at 27.

 Wu and Carson were examined by personnel from the ambulance that had arrived on the scene. After Wu emerged from the ambulance, he was placed under arrest. Lim states that she asked the police officers "Doesn't what I saw count? Why are you arresting him?" and was told "that's what happens when you go against a government employee." Lim Dep. at 32; Lim Aff. at P 15.

 Wu was taken to the Midtown North Precinct and then to Central Booking. He remained incarcerated for over 24 hours, and was arraigned at approximately midnight on March 4, 1992. Wu was then released from custody without bond. All charges against him were dismissed on March 31, 1992.

 When Wu returned to work, the Goldman Sachs personnel and security departments interviewed him and informed him that he would have to file forms with the SEC to notify the agency of his arrest. Wu Dep. at 126. Wu alleges that the arrest thereby generated uncertainty about his future at Goldman Sachs. Wu Dep. at 126.

 Wu alleges that he was arrested pursuant to New York Police Department Patrol Guide 116-43, which governs "Incidents Involving Enforcement Personnel of Other Agencies" ("Patrol Guide 116-43" or "the patrol guide"). Patrol Guide 116-43 instructs that

 
If an agent of one of the above listed agencies wants to make an arrest claiming he was assaulted, harassed or the subject of any other crime, the uniformed member of the service will assist in the arrest and take the prisoner into custody. The agent will be the complainant.

 Patrol Guide 116-43 at 2. The patrol guide explicitly applies to parking enforcement and traffic control agents.

 Wu argues that this guide is unconstitutional and that his arrest violated his civil rights pursuant to 42 U.S.C. § 1983. The moving defendants respond that the patrol guide is constitutional and that Wu has no standing to challenge the guide because the police officers had probable to cause to arrest him. Wu and defendants Santoro, Ziegler, Monahan, and the City of New York cross-move for summary judgment.

 DISCUSSION

 I. Motion to Amend

 Wu moves to amend his complaint to incorporate the challenged patrol guide into the complaint. Defendants oppose this motion, arguing that the amendment is futile because the patrol guide does not constitute a written policy which can provide a basis for municipal liability. Defendants' Reply Mem. at 9.

 Under federal rules, a party may amend its pleading by leave of the Court, which leave "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The purpose of Rule 15(a) is to encourage disposition of litigation on the merits. Sanders v. Thrall Car Mfg. Co., 582 F. Supp. 945, 952 (S.D.N.Y. 1983), aff'd 730 F.2d 910 (2d Cir. 1984).

 In Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the Supreme Court provided district courts with guidance in exercising their discretion pursuant to Rule 15(a). The Foman Court advised that:

 
In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given."

 Id.

 II. Standing and Probable Cause

 Before this Court can consider the constitutionality of the challenged police patrol guide, Wu must demonstrate that he has standing to challenge that guide. Standing exists if a plaintiff can demonstrate (1) concrete injury-in-fact, (2) a causal connection between the injury and the challenged conduct, and (3) that a favorable decision will likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992).

 Wu must therefore demonstrate, first, that he was injured by his arrest and, second, that there is a causal link between his injury and Patrol Guide 116-43. This in turn requires convincing the Court that Officers Santoro, Ziegler, and Monahan did not have probable cause to ...


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