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Thompson v. City of New York

March 19, 2009


The opinion of the court was delivered by: Richard J. Holwell, District Judge


In this action, pro se plaintiff David Thompson seeks damages of $2 million pursuant to 42 U.S.C. § 1983 for his arrest and two-week incarceration on charges of first degree robbery. Although a complaining witness identified Thompson as the person who robbed her in photographic and in-person lineups, Thompson contends, pointing to two other witnesses' inability to identify him, that the New York City Police Department's investigation of the underlying robberies was so unprofessional that it violated his constitutional rights. Defendants have moved for summary judgment. For the reasons that follow, defendants' motion is granted.


Viewed in the light most favorable to Mr. Thompson, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record shows the following.

A. The April 2006 Robberies

In April 2006, a person pretending to have a gun committed three robberies in Manhattan. On April 6, a complaining witness identified as "B.B." was crossing the street near Eighth Avenue and 135th Street. (Defs.' R. 56.1 Stmt. ¶ 18.) A man approached, put his arm around her, and said "What's going on!" (Id.) The couple then walked to 268 West 135th Street, where the man said, "Give me your fucking money!" (Id.) When B.B. gave him a few dollars, the man replied, "I have a gun in my pocket and I will blow a hole in your stomach." (Id.) The perpetrator reached into B.B.'s pocket, grabbed some $40 that B.B. had just withdrawn from Citibank, and fled. (Id.)

On April 8, 2006, a complaining witness identified as "W.G." was paying for food at the Seattle Café and Grill inside 1 Penn Plaza, a midtown high-rise. (See Fabian Decl. Ex. F.) A man approached, said, "I got to talk to you about something serious," and escorted W.G. outside. (Defs.' R. 56.1 Stmt. ¶ 40.) Pretending to hold a gun in his right jacket pocket, the man then said, "Do not think about hollering cause I got a gun and I will blow your goddamn brains out." (Id.) W.G. handed over $227, and the perpetrator fled eastbound on West 33rd Street. (Id.)

On April 9, 2006, a complaining witness identified as "D.S." was walking toward the subway station on West 147th Street and St. Nicholas Avenue when he was approached by a man who put his arm around him and said, "Hey man, let me talk to you." (Defs.' R. 56.1 Stmt. ¶ 53.) The man put his right hand in his right pocket and, pretending to point a gun, said, "This is a pistol here, give me all your cash." (Id.) After D.S. gave him $20, the perpetrator said, "Give me all your cash, don't play with me." (Id.) D.S. said he didn't have any more money and the perpetrator walked away. (Id.)

B. Detective Hansen's Investigation

Detective Erik Hansen, who at the time was assigned to the New York City Police Department's Manhattan Robbery Squad, investigated all three crimes. On May 7, 2006, Hansen visited the area around 750 St. Nicholas Avenue to look for surveillance cameras that might have captured D.S.'s robbery. (Id. ¶ 55.) After searching the area, Hansen determined that the only camera that could have captured the robbery was located in a pharmacy opposite 750 St. Nicholas Ave. (Fabian Decl. Ex. J, at 2.) The pharmacy's owner, however, informed Hansen that "the camera was positioned facing the entrance and [did] not capture the area where the robbery took place." (Id.) The next day, Hansen visited West 134th Street between Adam Clayton Powell Boulevard and Fredrick Douglas Boulevard to look for surveillance cameras that might have captured B.B.'s robbery. (Defs.' R. 56.1 Stmt. ¶ 21.) Once again, Hansen could not locate any cameras that captured the crime. (Id.)

On May 8, 2006, Hansen interviewed B.B. and showed her approximately twenty pictures of possible suspects, not including Mr. Thompson. (Id. ¶ 19.) B.B. could not identify anyone in the photographs. (Id.) Two days later, Hansen created a photo array, a copy of which is appended to this opinion, that contained a mug shot of Mr. Thompson in position six. (Id. ¶ 23; see App. A.) Hansen testified that he created the array using a database maintained by the New York City Police Department, and selected subjects for it based on facial bone structure, hairlines, facial hair, eye color, and weight. (Defs.' R. 56.1 Stmt. ¶ 24.) Hansen visited B.B.'s work at about 5:35 p.m. and showed her the array. (Id. ¶ 25.) B.B. identified photo six-Thompson-as the man who robbed her. (Id.)

Thompson contends that by including him in the photo array, Hansen revealed he was out to get him. Thompson notes, for example, that although B.B. reviewed approximately 2,500 photos in a computer database on the day of her robbery, "Hansen was able to put together six (6) photos and miraculously there in the photo array is the person that allegedly committed [the] crimes." (See Pl.'s Stmt. Concerning April 7, 2006 Robbery ¶ 9(g).) Thompson further contends that Hansen should have done more to verify his guilt after B.B. identified him. For instance, he asks: "why didn't the detective search the plaintiff[']s home to help justify his arrest, or collaborate it with the statements that were [given] to him." (Id. ¶ 24(q).)

On May 15, 2006, Hansen interviewed W.G., who lives out-of-state, by phone. (Defs.' R. 56.1 Stmt. ¶¶ 36, 38.) Later that day, Hansen contacted a local police department in the state where W.G. lives to make arrangements for W.G. to view the photo array. (Id. ¶¶ 42-43.) After W.G. viewed the array, he told an officer that "number six"-Thompson-"looks close." (Ex. D. to Fabian Decl. ¶ 38 ("Hansen Aff.").) The officer who showed W.G. the photo array had not been informed that Thompson was a suspect. (Id. ¶ 37.) Hansen later spoke with W.G., and W.G. told him that "the photo in position number six looked like the man that had robbed him, but his face looked a little fuller than the day [I] was robbed." (Id. ¶ 39.)

On May 24, 2006, Thompson was taken into custody during a scheduled visit to his parole officer. (Hansen Aff. ΒΆ 23.) After Thompson was transported to the Manhattan Robbery Squad, which is located on East 12th Street, Hansen organized a lineup, photographs of which are appended to this opinion. (See App. B.) Thompson chose to sit in the third position. (Fabian Decl. Ex. H, at 7.) At about 3:15 p.m., D.S. viewed the lineup. (Id.) She did not recognize anyone. (Id.) ...

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