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LAURO v. CITY OF NEW YORK
February 25, 1999
JOHN LAURO, JR., PLAINTIFF,
THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, AND MICHAEL CHARLES, DEFENDANTS.
The opinion of the court was delivered by: Schwartz, District Judge.
Plaintiff John Lauro, Jr. ("Plaintiff") claims that, on
September 18, 1995, defendants deprived him of rights guaranteed
by the United States Constitution and New York state law when he
was allegedly arrested unlawfully by defendant Detective Michael
Charles ("Det.Charles") and subjected to a "perp walk" in view of
television cameras of Fox 5 News. Defendant moves for summary
judgment, and plaintiff cross-moves for partial summary judgment
on the issue of liability. For the reasons stated herein,
plaintiff's motion is granted in part and denied in part, and
defendants' motion is granted in part and denied in part.
Although we find that plaintiff was lawfully arrested, we
conclude that the "perp walk" conducted by Det. Charles violated
plaintiff's rights as secured to him by the Fourth Amendment to
the United States Constitution.
Matthew Eberhart ("Eberhart") was a tenant, and plaintiff was
the doorman at the Building in early September, 1995.
(Defendants' Statement of Undisputed Facts Pursuant to Local Rule
56.1 ("Defs.' 56.1") ¶ 1.) Eberhart resided with his girlfriend
and their child. (Pl.'s 56.1 ¶ 60.) In September, 1995, Eberhart
and plaintiff agreed that plaintiff would deliver Eberhart's
family's mail and water their plants while they were away on
vacation.*fn1 (Defs.' 56 .1 ¶¶ 4, 5.) Eberhart spoke with the
superintendant of the Building, Paul Molnar ("Molnar"), and told
him that plaintiff would be taking care of the apartment while
Eberhart was away. (Pl.'s 56.1 ¶ 64.) Plaintiff asked Eberhart to
sign a written authorization giving him permission to enter
Eberhart's apartment. (Defs.' 56.1 ¶ 4.) Eberhart did so, and
gave plaintiff the keys to the apartment approximately two days
before he and his family left for vacation. (Defs.' 56.1 ¶ 5.)
During a visit to Eberhart's apartment, plaintiff commented
regarding his admiration of various aspects of Eberhart's
apartment. (Pl.'s 56.1 ¶ 65.)
Molnar came to Eberhart's apartment approximately ten minutes
before Eberhart was planning to leave for his vacation and
cautioned Eberhart that plaintiff had been suspected of
committing numerous thefts in the building. (Defs.' 56.1 ¶ 6;
Pl.'s 56.1 ¶ 66.) Molnar did not volunteer to watch the Eberhart
apartment, because he was too busy. (Pl.'s 56.1 ¶ 69.)
After speaking with Molnar, Eberhart decided to place a
wireless baby camera on top of the entertainment unit of his
bedroom. (Defs.' 56.1 ¶ 7.) The camera is white, with a lens
approximately the size of a nickel, and approximately 4-5 inches
wide by 7 inches high and three inches deep. (Defs.' 56.1 ¶¶ 8,
9.) The camera transmits to a television monitor with a viewing
screen that can be connected to a video cassette recorder
("VCR"). (Defs.' 56.1 ¶ 10.) Eberhart and Molnar agreed that the
monitor would be placed in Molnar's apartment, which is located
on the same floor as Eberhart's apartment, and can be seen from
Eberhart's window. (Defs.' 56.1 ¶ 11.) Molnar agreed to observe
the monitor while the Eberharts were away, and Eberhart connected
the camera to Molnar's VCR to enable Molnar to record the
camera's images. (Defs.' 56.1 ¶¶ 12, 13.) Eberhart removed his
valuables from the apartment, except for a computer. (Defs.' 56.1
Molnar made a recording of the camera's images on his VCR (the
"Videotape") on the day after the Eberharts left for vacation.
(Defs.' 56.1 ¶ 17.) Eberhart and Molnar viewed the Videotape
when Eberhart returned from his vacation on September 17, 1995.
(Defs.' 56.1 ¶¶ 15, 16.)
The Videotape shows the bedroom, including a bed, nightstand,
bassinet, chest of drawers, and two closets. (Defs.' 56.1 ¶ 18;
Plaintiff's Exhibit R ("Pl.Exh. R.")) The hallway from the
bedroom can be seen leading to the bathroom on the right and to
the living room on the left. (Defs.' 56.1 ¶ 19; Pl. Exh. R.)
Items in the bedroom that were outside the camera's view include
the entertainment unit, with two cabinet doors, upon which the
camera rested; a wall with a window and air conditioning unit;
two bicycles that leaned against another wall; a nightstand to
the left of the bed; and a plant that hung in front of the
bedroom window slightly above the height
of the camera. (Defs.' 56.1 ¶¶ 20-23; Pl. Exh. R.)
The Videotape runs for approximately twenty minutes. (Defs.'
56.1 ¶ 25; Pl. Exh. R.) Plaintiff is seen entering the Eberharts'
bedroom five times, carrying a water pitcher the third time only.
(Defs.' 56.1 ¶¶ 25, 26; Pl. Exh. R.) Plaintiff is also seen
opening and closing the doors to the closet and at least two
dresser drawers. (Defs.' 56.1 ¶¶ 25, 27; Pl. Exh. R.) At one
point, plaintiff is seen touching a small cabinet on top of the
dresser, opening a drawer, and handling the contents of that
drawer. (Defs.' 56.1 ¶ 29; Pl. Exh. R.) Plaintiff is also heard
opening and closing the blinds of the window, the doors of the
entertainment unit, and the doors on the nightstand. (Defs.' 56.1
¶ 31; Pl. Exh. R.) There is no evidence that anything was taken
from the room, and the Videotape at no time shows plaintiff
removing any object or attempting to conceal any item. (Pl.'s
56.1 ¶ 20.) Upon returning to his apartment, Eberhart did not
determine that anything in particular was missing. (Defs.' 56.1
¶ 38.) Eberhart also found that his mail had been brought in.
(Pl.'s 56.1. ¶ 72.)
Eberhart contacted five television stations regarding the
Videotape of plaintiff, all of which were interested in viewing
the Videotape; eventually he gave Fox 5 News an exclusive license
to broadcast the Videotape in return for two hundred dollars.
(Defs.' 56.1 ¶ 35.) Shortly afterwards, Eberhart contacted the
police in order to file a complaint against plaintiff. (Defs.'
56.1 ¶ 36.)
Detective Thomas Ryan ("Det.Ryan") interviewed Eberhart at
approximately 5:30pm on September 18, 1995, and prepared a
written report shortly thereafter. (Defs.' 56.1 ¶¶ 37, 39; Pl.'s
56.1 ¶¶ 76, 77.) Detective Ryan and his partner, Det. Charles (the
"Detectives"), allegedly aware that plaintiff had permission to
enter Eberhart's apartment for the purpose of watering the
plants, were given a copy of the Videotape and viewed it on their
own subsequent to their interview of Eberhart. (Defs.' 56.1 ¶¶
40, 41; Pl.'s 56.1 ¶ 80.) The Detectives concluded that probable
cause existed to arrest plaintiff. (Defs.' 56.1 ¶ 42; Pl.'s 56.1
Plaintiff is and was at all relevant times a resident of New
Jersey. (Defs.' 56.1 ¶ 43.) The Detectives obtained plaintiff's
address from Eberhart, with Molnar's assistance. (Pl.'s 56.1 ¶
85.) Because officers of the New York City police department do
not have the authority to effect an arrest outside of New York,
the Detectives drove to plaintiff's apartment in New Jersey for
the purposes of bringing him back to New York where he could be
arrested. (Defs.' 56.1 ¶ 44.) The Detectives arrived at
plaintiff's home in New Jersey during the evening of September
18, 1995. (Defs.' 56.1 ¶ 45.)
At plaintiff's home, Det. Charles told plaintiff that Eberhart
had complained to the police that plaintiff had stolen from
Eberhart's apartment, and that the police wanted to question
plaintiff about it. (Defs.' 56.1 ¶¶ 46-47.) The parties dispute
whether Eberhart informed the police that, despite the Videotape,
he had not yet identified any particular items as missing from
his apartment. (Pl.'s 56.1 ¶ 78; Defendant's December 23, 1998
Statement of Disputed Facts Pursuant to Rule 56.1 ("Defs.' Opp.
56.1") ¶ 37.)
The parties dispute the circumstances under which plaintiff
agreed to accompany the Detectives back to New York. Plaintiff
asserts that the Detectives were deceitful in luring him into New
York, lying about whether they were planning to arrest him upon
his arrival in New York. (Pl.'s 56.1 ¶¶ 48, 96.) Defendants admit
that Det. Charles gave a deceptive response when asked by
plaintiff whether he would be arrested in New York, but deny that
the Detectives specifically lied to plaintiff with regard to
whether plaintiff would be arrested or driven back to New Jersey.
(Pl.'s 56.1 ¶ 97; Defs.' Opp. 56.1 ¶¶ 3, 10, 48.)
After arriving at the 19th precinct in New York City,
plaintiff was taken to the Detective Squad room, where he
remained for several hours. (Defs.' 56.1 ¶ 49.) Det. Charles
thereafter questioned plaintiff with regard to several thefts at
the Building, and showed him the Videotape recorded by Molnar.
(Defs.' 56.1 ¶ 50.) Defendants assert, but plaintiff disputes,
that plaintiff was read his Miranda rights at this point. (Defs.'
56.1 ¶ 50; Plaintiff's Statement of Facts Pursuant to Rule 56.1
("Pl.'s Opp. 56.1") ¶ 4.) Plaintiff acknowledged that he was the
individual depicted in the Videotape. (Defs.' 56.1 ¶ 51.)
Plaintiff was arrested and charged with the crime of burglary
in the second degree, N.Y. Penal Law § 140.25; petit larceny,
N Y Penal Law § 155.25; and criminal possession of stolen
property in the third degree, N.Y. Penal Law § 165.50. (Defs.'
56.1 ¶ 52.) In response to plaintiff's questions as to why he was
being arrested, Det. Charles responded that he was being arrested
because plaintiff "stole something out of that apartment. . . ."
(Defs.' 56.1 ¶ 53.)
Approximately two hours after plaintiff was brought to the
precinct's squad room, Det. Charles received a call from the
Police Department's Office of the Deputy Commissioner of Public
Information ("DCPI") informing him that the media was interested
in plaintiff's case, and that plaintiff should be taken on a
"perp walk." (Defs.' 56.1 ¶¶ 54, 55, 56; Pl.'s 56.1 ¶ 52.) A
"perp walk." or "walk" is a Police Department term that refers to
walking an arrestee outside the precinct pursuant to a request
from the media. (Defs.' 56.1 ¶ 56.) The parties dispute whether
Det. Charles had the discretion to refuse the "perp walk"
request. (Pl.'s 56.1 ¶ 52; Defs.' Opp. 56.1 ¶ 22.)*fn2
Plaintiff was handcuffed, walked by Det. Charles down the
stairs, out the front door, and outside of the precinct; then
placed into an unmarked car, driven around the block, and walked
back into the precinct. (Pl.'s 56.1 ¶¶ 21, 53; Defs.' 56.1 ¶
57.)*fn3 Plaintiff was filmed by a television crew from Fox 5 News
outside the precinct building during this procedure. (Defs.' 56.1
¶ 58; Pl.'s 56.1 ¶ 21.) The footage from this "perp walk," along
with excerpts from the baby camera Videotape, were shown on the
Fox 5 News at 10:00pm on September 18, 1995 and the mid-day and
10:00pm evening news the next day, September 19, 1995.*fn4 (Pl.'s
56.1 ¶ 21; Pl.'s Exhibit 6.)
A court may grant summary judgment if it is satisfied that
"there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The initial burden rests on the
moving party to demonstrate the absence of a genuine issue of
material fact, and all inferences and ambiguities are resolved in
favor of the party against whom summary judgment is sought. Gallo
v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219,
1223 (2d Cir. 1994) (citations omitted). The moving party "may
obtain summary judgment by showing that little or no evidence may
be found in support of the nonmoving party's case." Id. at
1223-24. Because there are no material issues of fact remaining
in this case with regard to liability, summary judgment is
I. FEDERAL CLAIMS PURSUANT TO 42 U.S.C. § 1983 (AND RELATED
Title 42, Section 1983 of the United States Code ("Section
1983" or "§ 1983") provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. Section 1983 imposes liability "for conduct
which subjects, or causes to be subjected the complainant to a
deprivation of a right secured by the Constitution and laws."
Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 46 L.Ed.2d
561 (1976). Plaintiff's § 1983 claims rest on the grounds that
defendants' actions deprived him of rights secured to him by the
Fourth, Sixth, Eighth, and Fourteenth Amendments.
A. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE CLAIMS
RELATING TO PLAINTIFF'S INITIAL ARREST AND DETENTION.
1. Plaintiff's Fourth Amendment Rights Were Not Violated During
The Encounter at His Home in New Jersey.
Plaintiff asserts that he is entitled to relief under § 1983
because the officers, during the encounter at plaintiff's New
Jersey home, violated rights secured to him by the Fourth
Amendment and New York state law.*fn5 The Fourth Amendment prohibits
warrantless arrests at the suspect's home absent exigent
circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371,
63 L.Ed.2d 639 (1980). Additionally, under state law, New York
police officers do not have authority to arrest individuals
outside of the state of New York without a warrant for a
non-petty offense unless the officer pursued the person from
within the state. N.Y.Crim.
Proc. Law § 140.10. However, because plaintiff voluntarily
consented to travel to New York ...