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February 25, 1999


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.


Plaintiff at the time of his arrest was a doorman and elevator operator at Beekman Town House, located at 166 East 63rd Street in Manhattan (the "Building"). (Plaintiff's Rule 56.1 Counter-Statement of Undisputed Facts ("Pl.'s 56.1") ¶ 1.) Plaintiff commenced such employment in February, 1991, and remained employed at the Building until September, 1995. (Id.) Plaintiff's responsibilities included the opening and closing of doors for tenants and guests, hailing taxis, and operating the elevator. (Id. at ¶ 2.) During his tenure at the Building, plaintiff developed a friendly relationship with a number of the Building's tenants, but came into disfavor with certain members of the Building's management staff and board members. (Id. at ¶ 3.)

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 ¶ 14.)

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 ¶ 95.)

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 appropriate.


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.


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 ยง 140.10. However, because plaintiff voluntarily consented to travel to New York ...

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