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Estate of Francis Lucien Heilbut v. City of New York

October 2, 2006

THE ESTATE OF FRANCIS LUCIEN HEILBUT, BY EXECUTRIX GENA RANGEL, PLAINTIFF,
v.
THE CITY OF NEW YORK; THE NEW YORK CITY POLICE DEPARTMENT; JOHN CARROLL, POLICE SGT.; JOHN DOE; RICHARD ROE; AND JANE DOE, SAID NAMES BEING FICTITIOUS, THEIR TRUE NAMES AND IDENTITIES UNKNOWN, INTENDED TO DESCRIBE AND IDENTIFY THREE ARRESTING POLICE OFFICERS EMPLOYED BY AND ACTING ON BEHALF OF THE NEW YORK CITY POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION and ORDER

Plaintiff Francis Heilbut ("Heilbut") brings this action under 42 U.S.C. § 1983 ("Section 1983") and New York law to recover damages for the alleged violations of his rights by New York City police officers in connection with a February 5, 2004 incident where he was handcuffed and taken to a hospital for psychiatric evaluation. Heilbut contends that he was detained without probable cause and that the police officers used excessive force. The City of New York (the "City") and the named officer defendants have moved for summary judgment. Their motion is granted.

Background

The following facts are taken in the light most favorable to plaintiff unless otherwise noted. In 1990, Monica Heilbut initiated divorce proceedings against her husband Francis Heilbut, the plaintiff in this suit. Those proceedings were contested. A judgment of divorce was granted in 2000, and ultimately in April 2003, the Court of Appeals dismissed in part and denied in part Heilbut's appeal. At that time, Heilbut owned an apartment at 685 West End Avenue in Manhattan. His mother had lived there until her death in 1984, after which time Heilbut began to use the apartment as an office. Pursuant to the divorce proceedings, the apartment was ordered to be sold, with proceeds from the sale divided equally between Heilbut and his former wife. Heilbut contested the sale and distribution, and Monica Heilbut retained an attorney, Stephanie Cooper ("Cooper"), in connection with the enforcement of the distribution order.

On January 16, 2004, Justice Laura Visitacion-Lewis of the New York Supreme Court issued an order authorizing Cooper to change the locks and remove the contents of the apartment if Heilbut failed to provide keys to Cooper and remove the contents himself. The order also enjoined Heilbut from "engaging in any further appeal or instituting any further motion in this or any matter pending before this or any court without the express permission of this court." At a court appearance on February 4, 2004, Justice Visitacion-Lewis verbally stated that Cooper was to oversee the removal of the contents of the apartment the following day. The order was reduced to writing and a copy was provided to Heilbut. Both Heilbut and his personal assistant, Gena Rangel ("Rangel"), were made aware that the contents of his apartment would be removed on February 5, pursuant to the court order.

On the morning of February 5, at approximately 8:45 a.m., Cooper went to the apartment with a locksmith, a security guard, and movers. Cooper had retained a security guard because she believed, based on Heilbut's unruly behavior during the previous day's court appearance, that Heilbut might become unruly or dangerous during the move.*fn1 Rangel was present at the apartment, and refused to allow Cooper in, even after Cooper explained the court order.*fn2 Cooper then called 911 because the locksmith told her that he would not do any work unless the police were present. Subsequently, Sergeant Carroll ("Carroll") and another officer arrived at the scene in uniform and in a marked police vehicle. Cooper showed Carroll the court order, and he determined that it was valid.*fn3 Carroll spoke to Rangel, and Rangel reluctantly agreed to let the movers into the apartment. Carroll and the other officer then left the scene, and the locksmith changed the locks and the movers started removing pieces of furniture from the apartment.*fn4 Cooper remained outside of the apartment while the movers were removing the contents.

At approximately 12:20 p.m., Cooper was seated in the driver's side of the back seat of the security vehicle, near the window closest to the street. The car was parked on West End Avenue at the curb. From the car, Cooper saw Heilbut across the street. Heilbut had come to the apartment because Rangel had called him on the telephone and told him about the locksmith.

Heilbut saw Cooper sitting in the car and also observed people walking in and out of the apartment carrying property and boxes. He admits he was upset at what he saw. Heilbut approached the car and hit the window of the car with his fist to alert Cooper to his presence.*fn5 Immediately afterwards he went inside the apartment. Cooper was terrified and called 911 from her cellular telephone. She told the 911 operator that she was calling for the second time, and that Heilbut had tried to kick in the window next to her face and had menaced her. She also told the operator that she was frightened and that Hailbut was behaving violently and aggressively. She stated that she needed the police as quickly as possible.

Carroll and three other police officers soon arrived at the apartment. Cooper told Carroll that Heilbut had tried to kick in the car window next to her head and kicked the car door. She also told him that Heilbut had hollered and screamed at her and that he had "scared the living day lights" out of her. She was shaking and frightened when she spoke to the police. The security guard, who was inside the car with Cooper, also told Carroll that Heilbut had kicked the window and door of the car. Carroll looked at the security car and saw that there were scuff marks on the window.*fn6

Heilbut was on the telephone inside the apartment when two police officers entered the apartment and ordered him to go outside the apartment. The police officers pulled him out of the apartment and onto the sidewalk.*fn7 Heilbut protested "emphatic[ally]" and loudly to the police officers and to the crowd that had formed on the street to watch, about the inadequate accountability and security surrounding the removal of his property, and made references to Nazi Germany.*fn8 He also tried to grab a woman passing by on the sidewalk.*fn9 A struggle ensued, Heilbut was handcuffed on the sidewalk, and he ended up on the ground. In testimony that is much disputed by the defendants, Heilbut states in his deposition that after handcuffing him, Carroll then pulled me up from the street, took me by the front of my shirt, and swearing and cursing, using foulest language, forced me back into my apartment and ultimately pinned me against the wall of the living room and began to crush me with his full weight and arm at right angles, forearm that is, at right angles, or right angle to my chest, and, as I say, he was putting his full weight against my body at the level of the heart and lungs.

Heilbut, however, did not suffer any physical injuries as a result of this encounter.

Carroll determined, based on the report from Cooper and his observations of Heilbut, that Heilbut was an emotionally disturbed person (EDP) and needed to be removed to the hospital for evaluation. He believed that Heilbut could injure himself and be a danger to other individuals. An ambulance was called, and Heilbut was taken to St. Luke's Hospital for a psychiatric evaluation. Heilbut had no visible injuries, and he did not make any complaints to the police or the EMS technicians about the handcuffs placed on him.

No criminal charges were brought against Heilbut. He has never been diagnosed with any psychiatric condition as a result of the interaction with police that day, nor has Heilbut voluntarily sought any ...


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