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ESTATE OF YANKEL ROSENBAUM v. CITY OF NEW YORK

August 21, 1997

ESTATE OF YANKEL ROSENBAUM, by SAMUEL PLOTKIN, Public Administrator of the County of Kings, THE CROWN HEIGHTS JEWISH COMMUNITY COUNCIL, CAROL ADELSTEIN, STEVEN ADELSTEIN, YOSSI ALON, YOSEF ALTEIN, ISAAC BITTON, YECHIEL BITTON, JOSEPH CHENZIN, BRUCE EMMER, SUDARSHAN JAGGA, SARAH KELLER, NOSON KOPEL, HOWARD KUPCHIN, HARVEY LANG, IDA LEFKOWITZ, ROSE MARIE LIBASSI, CHANA LIPKIND, NECHAMA LIPKIND, DAVID MICHEL, MENACHEM PIEKARSKI, JACOB PINSON, ARIE PRAGER, ALLEN SCHWARTZ, MENACHEM SHAGALOW, MORDECHAI SHUSTERMAN, MICHAEL SIMON, WILLIAM WELIS, ZEHAVA WELIS, YESHIVA CHANOCH LENAAR, CONGREGATION B'NAI SOLOMON ZALMAN OF CROWN HEIGHTS, INC., on behalf of themselves and others similarly situated, Plaintiffs, against THE CITY OF NEW YORK, DAVID N. DINKINS, Individually and as Mayor of the City of New York, and LEE BROWN, Defendants.

FREDERIC BLOCK, District Judge.


The opinion of the court was delivered by: BLOCK

BLOCK, District Judge:

 This action, seeking relief pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 and a variety of State causes of action, arises out of the unrest that gripped the Crown Heights neighborhood of Brooklyn between Monday, August 19 and Thursday, August 22, 1991, after an automobile escorting the late Lubavitcher Rebbe Menachem Schneerson ("Rebbe Schneerson") accidentally struck and killed seven-year-old Gavin Cato ("Cato"). Within hours of Cato's death, Australian rabbinical student Yankel Rosenbaum ("Rosenbaum") was attacked by a group of young African-American men and stabbed to death. The plaintiffs, in the main, are members of the Crown Heights Hasidic Jewish community. *fn1" They contend that they sustained personal injury and property damage because defendant City of New York ("City") failed to provide adequate police protection to quell the disturbances that followed in the wake of Cato's death. *fn2" Plaintiffs also contend that the City deliberately withheld police protection from the Hasidic community for discriminatory reasons.

 In addition to suing the City, plaintiffs also seek to hold former City Mayor David N. Dinkins ("Dinkins") and former City Police Commissioner Lee Brown ("Brown") individually accountable. *fn3" Dinkins and Brown now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in respect to the federal claims on the ground of qualified immunity. While the Court recognizes that plaintiffs' complaint implicates both substantive due process and equal protection rights, the application of well-established principles of qualified immunity require the grant of the motion.

 I. BACKGROUND

 A. The Underlying Incident

 The Court draws the following facts from the parties statements of uncontested facts pursuant to Local Rule 56.1, *fn4" as well as the extensive record in this case. Unless otherwise indicated these facts are undisputed.

 At approximately 8:20 PM on Monday, August 19, 1991, a station wagon driven by Joseph Lifsch ("Lifsch") collided with another vehicle at the intersection of President Street and Utica Avenue in Crown Heights, veered out of control, and struck Cato and his nine-year-old cousin Angela Cato. Cato was killed and Angela Cato was seriously injured. The station wagon was part of a police-led motorcade accompanying Rebbe Schneerson since deceased.

 Less than five minutes after the accident, an ambulance from a private Jewish organization known as Hatzoloh arrived at the scene. A New York City Emergency Medical Services ("EMS") ambulance arrived shortly thereafter. A group of African-Americans gathered at the site of the accident, and several men physically assaulted Lifsch and two passengers in the station wagon. A police officer at the scene directed the Hatzoloh ambulance driver to take Lifsch and these passengers to the hospital. The EMS ambulance took the Cato children to Kings County Hospital where Cato was pronounced dead.

 B. The Community Reaction and the Police Response

 Participants in the unrest pelted police cars with rocks and other projectiles. A group of African-American men allegedly burned a van owned by plaintiff Yeshiva Chanoch Lenaar ("Yeshiva") and occupied the Yeshiva's courtyard at 876 Eastern Parkway. In one of several affidavits submitted in opposition to Dinkins and Brown's motion, non-party Robert Bush states that from his window he saw police officers escorting a crowd of African-Americans and observed that the officers refused to make arrests, despite the fact that members of the crowd were hurling bricks and other items at Hasidic-owned homes. At approximately 3:00 AM, a police car parked on Eastern Parkway was set on fire. At 4:45 AM, the police dispersed a large group of Hasidic Jews and African-Americans and the disturbances quieted for a time.

 More than three hundred police personnel were dispatched to Crown Heights that night in response to the outbreaks of violence. At his deposition, Chief Thomas Gallagher ("Gallagher"), Commander of Patrol Borough Brooklyn South of the New York City Police Department ("Police Department"), testified that he pursued a policy of saturating the neighborhood with police and attempting to keep apart groups of African-Americans and Hasidic Jews. He discouraged officers from making arrests for what he termed "minor" crimes, such as unlawful assembly, because in his view such arrests would have exacerbated the situation. He also testified that there was a decision from the outset not to make mass arrests and not to engage in aggressive crowd control tactics, and that this decision was communicated to officers under his command. He stated that this decision was based upon a fear that an overly aggressive approach would cause the unrest to spread outside of Crown Heights to other areas of the City.

 On Tuesday, August 20, more than one thousand police officers were sent to Crown Heights. Deputy Mayor William Lynch ("Lynch") presided over a heated community outreach meeting at P.S. 167, which was largely attended by African-Americans. At this meeting, certain members of the African-American community charged that the Hasidic community was receiving preferential treatment from the City and, moreover, indicated their belief that violence against the police and the Hasidic community would continue. Later that day, African-American demonstrators gathered in Crown Heights at the intersection of President Street and Utica Avenue. At approximately 4:00 PM, a group of African-American activists met with Gallagher and demanded that Lifsch be arrested for homicide and that police officers who had allegedly physically assaulted Cato's father be immediately suspended. After Gallagher refused to accede to either of these requests, the activists participated in a demonstration in front of the 71st Precinct station house, which demonstration later moved to the President Street and Utica Avenue intersection. At its peak, approximately 350 people were involved in the demonstration, which grew increasingly out of control. Certain of the demonstrators threw rocks and bottles at the police and blocked traffic, and it is beyond dispute that many were yelling anti-Semitic epithets.

 Violence against private targets in the Hasidic community continued as well on that day. Plaintiffs Nechama Lipkind ("Lipkind") and Isaac Bitton ("Bitton") were seriously injured. Lipkind was surrounded by a group of African-Americans shouting anti-Semitic epithets as she walked home. After she arrived, they threw bricks and rocks through her windows and caused her to sustain a concussion. Lipkind states that police officers stood less than five feet away during her initial confrontation but turned away in order to avoid becoming involved. In an affidavit, Bitton *fn5" states that he and his son were dropped off at a corner of Carroll Street and Schenectady Avenue. According to Bitton, he asked police officers stationed there whether it was safe to proceed down Schenectady Avenue and he was told that because police were in the area, it would be safe to walk. He states that as he reached the middle of Schenectady Avenue, he and his son were surrounded by a group of African-American youths chanting "Jew, Jew, Jew," and that nearby police officers did not intervene as the crowd surrounded Bitton and his son and beat them with fists, bricks and bottles.

 Plaintiffs also include an affidavit from non-party Sol Drimmer ("Drimmer"), a Crown Heights resident, who states that on that day he was caught in the middle of a disturbance involving approximately 250 African-Americans chanting anti-Semitic slogans. He recounts that despite the presence of a police barricade, demonstrators threw rocks and bottles over the heads of the police officers toward a group of Hasidic Jews. He claims that the police pushed the Hasidic Jews back and took no action to stop the rock and bottle throwing, which then intensified. According to Drimmer, the police ultimately fled the scene, leaving the Hasidic Jews unprotected. Plaintiffs also submit an affidavit from non-party Jacqueline Kupfer ("Kupfer"), wherein she states that ten to fifteen African-Americans entered the courtyard of her apartment building and threw objects at the building while chanting anti-Semitic epithets. They then entered the building and pounded on the doors of the apartments in an attempt to break in. Kupfer states that she called the police, but was told that they could not be everywhere. She also states that because of the fear she experienced during this incident, she suffered a miscarriage.

 Much of the community violence was directed at the police. The police log shows that at approximately 5:00 PM on Tuesday there was a clash between some 200 African-Americans and Hasidic Jews and that Hasidic Jews threw bottles at the police, resulting in the arrest of one Hasidic Jew. During a particularly intense throwing of rocks and bottles at a corner of President Street and Utica Avenue, Gallagher directed police officers to fall back to avoid injury. Ten officers were injured as the result of that incident, including one officer who suffered a fractured leg. Thirty-five police officers were injured in the line of duty that day, and eight Police Department vehicles were damaged, including two that were set on fire.

 Demonstrators also engaged in looting. At 9:45 PM that evening, the Utica Gold Exchange, a jewelry store, was firebombed and three firefighters were injured fighting the blaze. At 10:00 PM, a group of African-American males forced open the gates in front of the Sneaker City store on Utica Avenue and stole sneakers and clothing. Also at that time, Jamaica Gold, a jewelry store located on Utica Avenue was burglarized. All told seventeen arrests were made on Tuesday, August 20, including six for assault, one for riot and seven for burglaries arising out of the Sneaker City incident. The street violence quieted after heavy rains fell that evening.

 The violence continued on Wednesday, August 21. There were further demonstrations led by African-American activists which eventually resulted in a clash between the demonstrators and Hasidic Jews. Throughout the day, rock and bottle throwing, often directed at the police, continued as did sporadic clashes between groups of African-Americans and Hasidic Jews. More than 1400 police officers were sent into Crown Heights, and thirty-four arrests were effected, including nine for assault, one for inciting to riot, and six for riot. Forty-nine police officers were injured, including eight officers who were struck by shotgun pellets being fired from the roof of a building at a corner of Schenectady Avenue and Empire Boulevard.

 In an affidavit submitted in support of the motion, Dinkins states that on Wednesday, concerned with reports that the violence against the Hasidic community had not ended by the third day and that eight police officers had been shot in the Crown Heights neighborhood that day, he met with Brown and other senior officials and told them that the existing police strategy of simply saturating the neighborhood with increasing numbers of police officers was not working. Brown states in an affidavit that it also became clear to him that day that the police strategy was proving ineffective and that changes had to be made. As part of this process, he directed that the command center be moved from the precinct to the zone headquarters, that a 24-hour command post be opened at 1 Police Plaza in order to monitor the entire City, and that First Deputy Commissioner Raymond Kelly ("Kelly") finalize a strategy to deal with the continuing violence in Crown Heights. Brown ultimately approved a plan designed by top commanders that was intended to make the police response more mobile in order to address the problem of violent groups that were breaking off from the larger demonstrations and engaging in random acts of violence against the Hasidic community.

 On Thursday, August 22, the Police Department implemented the more mobile police strategy. The Crown Heights neighborhood was divided into zones and mounted police and officers on motorcycles were introduced into the area. The number of fixed posts within the community was increased, and demonstrations were restricted to confined areas so that it would be easier to arrest individuals who broke off from the demonstrations. A helicopter was also sent to monitor the area. Approximately 2000 police officers were sent into the neighborhood and sixty-two arrests were made. For the first time during the disturbances, police officers arrested individuals for unlawful assembly, which Kelly testified "has always been a part of the disorder control literature that you see." Deposition of Raymond Kelly ("Kelly Dep.") at 59. Fifty such arrests were made. Additionally, twenty-four summonses were served for disorderly conduct and four for City Administrative Code violations. The new response was highly effective in quelling the violence which, as a practical matter, ended that day.

 D. Dinkins and Brown's Involvement During the Disturbances

 Dinkins and Brown deny personal responsibility for formulating the specific law enforcement strategy that was implemented in the wake of Cato's death on Monday, August 19. In his affidavit, Dinkins states:

 
Although as Mayor I accepted the ultimate responsibility of running the City, I did not formulate police strategy in this matter and I did not approve specific tactics or deployment. I was not consulted about police strategy. As Mayor I relied by necessity upon the professional expertise of police commanders in quelling violent situations and in keeping the peace: I neither expected to receive, nor did I receive, details as to how officers were being deployed, what maneuvers or formations they were engaged in or what they were told about how to police the streets. I did not view it as my role to interfere with police strategic matters.

 Affidavit of David N. Dinkins ("Dinkins Aff.") at P 8. Dinkins relates that he relied upon his colleagues, including Deputy Mayor Milton Mollen ("Mollen"), to make sure that the City had the resources available to permit the police to quell the disturbances. He denies having given any order for the police to withhold protection from the Hasidic community, and further denies having been aware that any such order existed.

 During the disturbances, Dinkins devoted a substantial portion of his time to meeting with members of both the Hasidic and African-American communities. Shortly after Cato's death, Dinkins was notified of the outbreak of violence in Crown Heights and went to Kings County Hospital to meet with the Cato family. He learned of the attack on Rosenbaum and visited him before his death. Dinkins, together with Brown. Mollen and Lynch, discussed the escalating Crown Heights racial tensions, and Dinkins met briefly with police officials before heading to the 71st Precinct to meet with community leaders and local officials.

 On Tuesday morning, Dinkins, Brown, Mollen and Acting Chief Joseph Borelli ("Borelli") of the Police Department appeared at a press conference. Dinkins stated that he was working with community leaders and City officials to restore calm to the community. The bulk of the questions fielded at the press conference related to the circumstances of the accident and the allegations that the Hasidic community received preferential treatment.

 On Wednesday afternoon, Dinkins held another press conference at which he condemned the "specter of lawlessness and vigilante justice that . . . no civilized society can tolerate." Dinkins Aff. at Exh. B, pg. 5. Later that afternoon, he, Mollen and Brown met with Jewish leaders regarding their charges of inadequate police protection. Following the meeting, Dinkins went to P.S. 167 to meet with African-American youth and received a hostile reception; later, as he attempted to address a crowd outside the school through a bullhorn, he was again greeted with antagonism. Dinkins went to the Cato residence later that afternoon and confronted yet another belligerent crowd that this time threw projectiles at him. After his visit to the Cato residence, Dinkins met with Hasidic leaders to discuss the violence and to address their concerns regarding the City's response to that violence. He also appeared on evening news programs and urged calm. Finally, as noted above. Dinkins met with Brown to discuss his concerns about the continuing violence and to talk about the need for devising a new police strategy.

 For his part, Brown also disclaims personal responsibility for formulating the strategy employed at the beginning of the disturbances. In his affidavit, he states that, although as Police Commissioner he was the most senior police official and was responsible for overseeing police services throughout the City, he "necessarily relied on the Department's experienced personnel ... to make on-the-spot strategic decisions in the field, to conduct investigations and to enforce the law." Affidavit of Lee P. Brown at P 6. After the violence began on Monday night, he met with Gallagher to discuss the volatile situation. Brown denies having told Gallagher, Police Chief Mario Selvaggi ("Selvaggi"), Borelli or anyone else that the police should not protect Hasidic residents or property or should refrain from enforcing the law. Rather, Brown claims that he was consistently informed by police on the scene that adequate resources existed to quell the disturbances.

 On Tuesday, Brown directed Gallagher to attend the community outreach meeting at P.S. 167 and Brown attended Dinkins press conference. There, he addressed the issue of preferential treatment and the Police Department's investigation into the cause of the accident. He states that he was aware that random and sporadic violence was occurring throughout the Crown Heights neighborhood that day but believed that the additional personnel that had been brought into the neighborhood would stop the violence.

 On Wednesday, Brown joined Dinkins at the press conference that afternoon and then attended a meeting with Jewish members of the Crown Heights Emergency Committee along with Mollen, Borelli, Selvaggi, Gallagher, and other City officials. *fn6" At that meeting, he responded to concerns that the police were not adequately protecting the Crown Heights Hasidic community. Following the meeting, he went to the 71st Precinct to meet with religious and community leaders and elected officials. Later that afternoon, he joined Dinkins at the P.S. 167 meeting. He states that while outside the school, he noticed people who had been marching in demonstrations breaking off from the larger groups and engaging in acts of violence against the police and others in the neighborhood. Brown also states that after observing these incidents, he went to the 71st Precinct and discussed with police commanders and Kelly the need to change strategy to deal with the problem of violent groups splintering from the larger demonstrations. He later met with Dinkins to discuss the problem of the continuing violence and, as noted above, approved implementation of the strategy that effectively brought the violence to a close.

 E. The Complaint

 As amended, plaintiffs' complaint contains their 42 U.S.C. §§ 1983, 1985, and 1986 claims, *fn7" and eight supplemental State causes of action. *fn8" Plaintiffs specifically allege in respect to their federal claims that during the Crown Heights disturbances, defendants "adopted and pursued a policy, practice, custom and usage of discriminatorily and selectively denying police protective and investigative services to Jews and other non-Black persons." Amended Complaint at P 144. On February 1, 1993, defendants moved for dismissal of the complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Federal Rule 56. Defendants also then raised the issue of qualified immunity in respect to Dinkins and Brown. *fn9" The Court (Raggi, J.) denied the motion, determining implicitly that plaintiffs had pleaded cognizable claims, and commenting that the case was not ripe for summary judgment at that early stage because of the need for discovery. ...


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