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United States District Court, S.D. New York

August 6, 2004.

THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE COMMISSIONER, NEW YORK CITY POLICE OFFICER GILKES, NEW YORK CITY POLICE OFFICER TORRES, AND NEW YORK CITY POLICE OFFICER "JOHN DOES" 1-10, the name being fictitious, the person intended being a police officer involved in an incident on December 4, 2001, Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Berton Gaskins brings this action against New York City Police Officers Foster Gilkes and Eric Torres, the New York City Police Department, and the City of New York (collectively "the City"), alleging false arrest, malicious prosecution, excessive force and failure to intervene, in violation of his constitutional rights under 42 U.S.C. ยง 1983 and New York state law. Gaskins seeks damages for the physical injuries he sustained when arrested on narcotics charges by Officers Gilkes and Torres on December 4, 2001. The City now moves for summary judgment, arguing that (1) there was probable cause for Gaskins' arrest and prosecution; (2) Officer Gilkes cannot be held liable for failing to intervene because Officer Gilkes did not see Officer Torres use force; and (3) the officers are entitled to qualified immunity. For the following reasons, summary judgment is granted in part and denied in part.


  On the afternoon of December 4, 2001, Gaskins walked out of a grocery store on the corner of West 141st Street and Broadway.*fn1 As he exited the store, Gaskins was approached by a man who said "Papi, come here, I got it for you right here," and threw his arm around Gaskins' neck.*fn2 Gaskins believed that the man was trying to sell him drugs.*fn3

  Officer Gilkes, who was driving a police car also occupied by Officer Torres, observed this interaction, and believed that a drug transaction was taking place.*fn4 Officer Gilkes pulled up behind Gaskins in the police car as Gaskins was crossing 141st Street.*fn5 When the stranger who had approached Gaskins saw the police car, he appeared nervous and told Gaskins to "go ahead, keep walking, walk, just keep going."*fn6 As Gaskins continued to cross the street, the officers stopped the car.*fn7 Officer Gilkes thought he saw Gaskins drop a clear plastic bag that contained a white substance.*fn8

  Officer Gilkes walked over to the area where he had seen the clear plastic bag.*fn9 When Officer Torres directed Gaskins to come towards him, Gaskins said "that's not mine, I'm not going over there."*fn10 Gaskins admits that he thought that the bag contained drugs.*fn11 It was later confirmed that the bag in fact contained 29.7 grams of heroin.*fn12

  Gaskins testified that Officer Torres grabbed him in order to bring him over to Officer Gilkes. According to Gaskins, Officer Torres struck his right leg with his baton, which caused Gaskins to stumble, and then struck his left leg, which brought Gaskins to the ground. Officer Torres applied pressure to the backs of Gaskins' knees, flipped Gaskins over, and jumped on the front of his knees.*fn13

  Officer Gilkes testified that he never saw Officer Torres use any force on Gaskins.*fn14 However, Gaskins testified that he could see Officer Gilkes while he was on the ground, and he believed that Officer Gilkes could also see him.*fn15 Gaskins further testified that he was "screaming, crying, asking what's going on" while being assaulted by Officer Torres, and that the assault lasted long enough for a crowd to gather.*fn16

  Gaskins was charged with criminal possession of a controlled substance and resisting arrest.*fn17 Gaskins testified that Judge Claire Weinberg noticed his physical condition at his arraignment in Criminal Court in New York on December 5, 2001, and ordered an ambulance to take him to the hospital.*fn18 On October 7, 2002, the court granted the District Attorney's motion to dismiss the charges brought against Gaskins.*fn19


  A. Summary Judgment Standard

  Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue for trial as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn20 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn21 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn22 The court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."*fn23

  The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn24 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn25 and it must "come forward with `specific facts showing that there is a genuine issue for trial.'"*fn26 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn27 Summary judgment is inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party."*fn28

  B. False Arrest, Malicious Prosecution and Probable Cause

  1. Legal Standard*fn29

  Under New York law, false arrest is synonymous with false imprisonment,*fn30 and state law tort elements may be applied to a section 1983 malicious prosecution claim.*fn31 To establish a cause of action for false arrest, a plaintiff must show that: "(1) the defendant[s] intended to confine plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged."*fn32 In order to state a claim for malicious prosecution, a plaintiff must establish the following elements: (1) the defendant either commenced or continued a criminal proceeding against him; (2) the proceeding terminated in plaintiff's favor; (3) there was no probable cause for the criminal proceeding; and (4) the criminal proceeding was instituted with actual malice.*fn33

  A finding of probable cause is a complete defense to both an action for false arrest and an action for malicious prosecution.*fn34 "In general, probable cause exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime."*fn35 "Whether or not an officer had probable cause to make an arrest is a question of what the officer knew at the time of the arrest and whether she or he was reasonable in relying on that knowledge."*fn36

  "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."*fn37 "The function of law enforcement officers `is to apprehend those suspected of wrongdoing'. . . . Accordingly, they have no duty to investigate an exculpatory statement of the accused, and their refusal to do so does not defeat probable cause."*fn38

  2. Probable Cause for Gaskin's Arrest

  The undisputed facts demonstrate that Officers Gilkes and Torres had probable cause to arrest Gaskins. Officer Gilkes observed Gaskins engaging in what he thought was a drug transaction. The stranger who approached Gaskins was, in fact, attempting to sell him drugs. When he saw the police car approach, the stranger nervously instructed Gaskins to keep walking. Finally, Officer Gilkes found a plastic bag that contained a suspicious substance on the ground, close to where Gaskins had been walking.*fn39 Each of these facts would lead a reasonable officer to conclude that Gaskins had purchased narcotics from the stranger, and that the plastic bag on the ground belonged to him.

  Though Gaskins told Officer Torres that the bag of narcotics did not belong to him, the officers were not obligated to believe him, or to determine whether Gaskins was in fact innocent before arresting him. Probable cause is not proof beyond a reasonable doubt. Although he may have been wrong, Officer Gilkes reasonably believed that it was likely that Gaskins had purchased narcotics. Because Officers Gilkes and Torres had probable cause to arrest Gaskins, the false arrest and malicious prosecution claims are dismissed.

  D. Excessive Force and Failure to Intervene

  1. Legal Standard

  To prevail on a claim of excessive force, a plaintiff must show that the force used by the arresting officer was intentional and objectively unreasonable.*fn40 "Whether an officer's actions were reasonable depends on a fact-intensive inquiry considering the circumstances of the particular case, including the severity of the crime being investigated, whether the suspect posed an immediate threat to the safety of the officer or others and whether the suspect was actively resisting arrest or attempting to flee."*fn41 An officer is liable for preventable harm caused by another officer when the officer observes, and has reason to know, that excessive force is being used, and when he has "a realistic opportunity to intervene and prevent the harm from occurring."*fn42 Summary judgment is inappropriate on claims of failure to intervene or excessive force when it is "simply not possible to say that the defendant's use of force was reasonable under the circumstances."*fn43

  2. Officer Gilkes May Have Failed to Intervene

  The City moves for summary judgment on Gaskins' failure to intervene claim because Officer Gilkes asserts that he did not see what was happening while Officer Torres was making the arrest.*fn44 However, Gaskins says that he screamed very loudly while being beaten by Officer Torres, that the incident lasted for several minutes, and that it was so noisy and visible that a crowd gathered to watch.*fn45 Though Officer Gilkes has not disputed Gaskins' characterization of the incident, he insists that he did not see Officer Torres use excessive force on Gaskins.

  Gaskins testified that he believed that Officer Gilkes could see Officer Torres beating him. If Gaskins' screams were so loud as to draw a crowd, and Officer Gilkes was only down the block from where Officer Torres was standing with Gaskins,*fn46 it is certainly possible that Officer Gilkes witnessed the beating. A reasonable juror might conclude that Officer Gilkes observed Officer Torres using excessive force and failed to intervene. Thus, the City's motion for summary judgment on Gaskins' failure to intervene claim is denied.

  E. Qualified Immunity

  1. Legal Standard

  "When government officials abuse their offices, actions for damages may offer the only realistic avenue for vindication of constitutional guarantees. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties."*fn47

  The courts have accommodated these concerns by providing qualified immunity to damages liability for officials performing discretionary functions, as long as "their actions could reasonably have been thought consistent with the rights they are alleged to have violated."*fn48 Because this qualified immunity is "an immunity from suit rather than a mere defense to liability, [the Supreme Court] repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest possible stage in litigation."*fn49

  A court's determination of whether a defendant is entitled to qualified immunity is a two-step inquiry. The court must first ask whether, "[t]aken in the light most favorable to the party asserting the injury, [] the facts alleged show the officer's conduct violated a constitutional right."*fn50 If the allegations indicate that a constitutional violation may have occurred, the court then asks "whether the right was clearly established."*fn51 "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."*fn52

  2. Application of Qualified Immunity to Gaskins' Claims

  Officer Gilkes argues that the doctrine of qualified immunity should shield him from liability for arresting Gaskins, and for failing to prevent Officer Torres from assaulting Gaskins.*fn53 While qualified immunity might have protected him from a false arrest claim,*fn54 qualified immunity will not protect him from liability for failing to intervene. It is clearly established that individuals have a constitutional right to be free from excessive force,*fn55 and it would be unreasonable for Officer Gilkes to claim that he was unaware of that right. Qualified immunity will not protect a police officer who watches another officer use excessive force and does nothing to prevent it.

  Officer Gilkes does not claim that the right to be free from excessive force is not clearly established. He only argues that he did not witness Officer Torres use excessive force on Gaskins and that he had no time to intervene.*fn56 It is true that Officer Gilkes must have had an opportunity to intervene if he is to be held liable for failing to intervene. However, as noted above, whether Officer Gilkes had such an opportunity is a question of fact that precludes summary judgment. IV. CONCLUSION

  Because the undisputed facts show that there was probable cause to arrest Gaskins, the false imprisonment and malicious prosecution claims are dismissed. Because questions of material fact exist as to whether Officer Gilkes failed to prevent Officer Torres from using excessive force while arresting Gaskins, the City's motion for summary judgment with respect to the failure to intervene clam is denied. The Clerk of the Court is directed to close this motion [docket # 22]. A conference is scheduled for Thursday, August 12, 2004 at 3:00 P.M.


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