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Nastazja Friis Rasmussen, Ivan v. the City of New York

February 2, 2011


The opinion of the court was delivered by: Cogan, District Judge.


This is an action under 42 U.S.C. §1983 for false arrest, excessive force, post-arrest due process violations, and related state law claims. I have granted defendants' motion for partial summary judgment in part and denied it in part. This decision sets forth the basis for that Order.


The case arises out of a drug bust. Viewing the facts in the light most favorable to plaintiffs, two of the defendant police officers, Detective Nixon and Sergeant Vanorden, stopped plaintiff Ivan Kimbrough on a street corner in Brooklyn. The reasons for the stop are disputed, but it is undisputed that Ivan was carrying two or three bags or baggies of marijuana. Ivan took off because, according to his testimony, he did not want to spend the night in Central Booking. With the officers in pursuit, he ran home to his apartment building, where he threw the marijuana off of the roof; he then went into his apartment and hid in the closet.

By the time Nixon and Vanorden got to the door of the apartment, they had been joined by other officers, including defendant Sergeant Perez. Ivan's mother, who is former plaintiff (she has settled) Carmen Kimbrough, and Ivan's former girlfriend, plaintiff Nastazja Friis Rasmussen, were in the apartment, had seen Ivan run in, and knew he was hiding from the pursuing police. Carmen let Vanorden and Nixon enter and Nixon went into the back bedroom, with Vanorden behind him, where they could hear Ivan breathing heavily in the closet. Either before or after entering the back bedroom, Vanorden drew his firearm. Nixon opened the closet door; Ivan raised his hands and said "I'm sorry."

Nixon grabbed Ivan and asked him sarcastically if he wanted to run anymore; he then threw Ivan on the bed, hit him with his firearm and fist, and attempted to handcuff him. At some point, Vanorden and at least one other officer, probably Perez, entered the room. At about the exact instant when Nixon managed to handcuff Ivan, Vanorden, who was by the doorway, discharged his firearm. (Plaintiffs contend he fired intentionally; defendants assert that the circumstantial evidence shows that it was an accidental discharge). Ivan's head was grazed by the bullet, but he remained conscious and the beating continued.

After the gun discharged, and with Ivan handcuffed and still being beaten, Rasmussen attempted to interpose herself between the officers and Ivan to deflect the blows that were being delivered to him. (Plaintiffs contend that Rasmussen put her arm in front of herself to protect herself from the punches; defendants claim that Rasmussen purposely hit the officers with her hands). Regardless, it is undisputed that Rasmussen's arms and hands contacted the officers' arms, shoulders, or chests in the process; she may have jumped on one of the officers (Ivan testified that she did but then attempted to retract or modify that statement). Perez or another officer threw her down and out of the way; her head hit a window sill. That officer then picked her up by the hair and threw her into the hallway. While in the hallway, Rasmussen made multiple attempts to get back into the room, but Perez prevented her from doing so.

The officers stopped beating Ivan when he threw up. At that point, Nixon came out of the bedroom and handcuffed Rasmussen on the floor, putting his knee in her back and pushing her head into the floor in the process, as she was screaming and resisting being handcuffed. Rasmussen panicked because she has claustrophobia and has some history of paralysis, of which the restraint triggered unpleasant memories. Once she was handcuffed, she was escorted first to the precinct house and then to Central Booking. She told the officers as they were taking her out of the apartment, including an officer identified only as the "officer in a baseball cap," that she or they needed to bring her diabetes medication. One of the officers responded that they could not do that because the apartment was a crime scene and nothing in it could be touched.

Rasmussen signed two medical release forms, one at the precinct house and one at Central Booking, indicating that she was diabetic but denying the need for any medical treatment. She did this because the officer in a baseball hat, who accompanied her from the scene to the precinct and then to Central Booking, had told her that if she requested medical attention, it would substantially delay her release while she was attended to, but if she did not request medical attention, she would be released that day. She did ask for medical treatment at Central Booking when it became apparent that she was not going to be released as quickly as she expected, but in light of her signed medical releases, her custodian at Central Booking did not believe her when she said she needed medical treatment.

The officer in the baseball hat did return to the apartment and retrieved some of her medication, but it was not her primary medication for her diabetes; it helped her some, but not much. She was released 46 hours after her arrest, the first 12 of which were without any medication. It took her several months of close attention to re-balance her insulin levels, during which time she suffered exhaustion and depression.

Ivan pled guilty to marijuana possession; Rasmussen was charged with assault, resisting arrest, and marijuana possession, and she accepted an adjournment in contemplation of dismissal.



Defendants first attack Rasmussen's claim for false arrest, contending that even taking her version of the melee as true, she interfered with the officers' attempt to arrest Ivan. This, defendants contend, gave the officers probable cause to arrest her for either obstruction of governmental administration (N.Y. Penal Law §195.05) ("OGA"), or harassment in the second degree (N.Y. Penal Law §240.26). Since the existence of probable cause for any crime defeats a claim for false arrest, see Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006), defendants contend that Rasmussen's false arrest claim must be dismissed. At the very least, defendants argue, Rasmussen's claim should be dismissed on qualified immunity grounds, since New York law is unclear as to whether intervening to protect a third party from excessive police force is a defense to OGA.

Plaintiffs respond that on Rasmussen's view of the facts, she did not interfere with the attempt to arrest Ivan; indeed, she did not attempt to insert herself between the officers and Ivan until after he was handcuffed on the bed. On this view, Rasmussen interfered with an unjustified beating, not an arrest, and there was no probable cause to believe that she had violated any law in doing so, not OGA, nor harassment, and not anything else.

Both parties attempt to support their positions by arguing whether state law would allow a justification defense to the various state law charges that might be brought upon a citizen's intervention into a police encounter when the intervention is to prevent police use of allegedly excessive force against a third party. But that is not the issue. The existence of a defense under state law to potential state law claims does not mean that a cause of action can be maintained under §1983, because §1983 liability turns not on the ultimate determination of guilt for the alleged crime, but the existence of probable cause for the arrest. Cf. Torraco v. Port Auth., 615 F.3d 129, 139-40 (2d Cir. 2010) (existence of potential defense to state charge does not mean that arrest was subject to §1983 liability). Stated otherwise, Rasmussen might have a perfectly valid defense to her criminal prosecution for OGA, had that occurred, but that does not equate to a false arrest claim, because the false arrest claim is defeated merely by the existence of probable cause.

Defendants properly rely on Husbands ex rel. Forde v. City of New York, No. 05 Civ. 9252 , 2007 U.S. Dist. LEXIS 61042 (S.D.N.Y. April 16, 2007), to support their position. There, the sister of the suspect urged her brother to stop resisting the officers' attempt to arrest him while he was down on the ground. She moved closer to her brother as her entreaties to him became more urgent. One of the officers told her to get back and pushed her back when she did not comply. He told her twice to lie on the ground, the first of which instruction she disregarded. She was arrested and charged with OGA and disorderly conduct for first approaching her brother and then not obeying the officers' instructions, even though it was undisputed that she had only been attempting to get him to comply with police instructions. In dismissing her false arrest claim under §1983, the district court noted that under New York law, merely approaching the police, or speaking during the course of a police action, or disregarding police instructions, will support a conviction for OGA. Id. at *43-44 (citing Decker v. Campus, 981 F. Supp. 851, 858 (S.D.N.Y.1997); and People v. Tarver, 188 A.D.2d 938, 591 N.Y.S.2d 907 (3d Dept. 1992)).

In the instant case, Rasmussen's decision to physically interfere with the conduct of the police falls within the conduct recognized by these authorities as constituting OGA. Although it is true that neither Husbands nor those cases upon which it relied involved a justification defense, all of them, like this case, involved situations where the plaintiff was not acting with an improper motive (again, assuming Rasmussen's version of the facts), but rather, in each of their views, to assist or alleviate a situation which they believed required their intervention.

That is the point. An action for damages under §1983 cannot turn on the subjective evaluation of a plaintiff as to whether her intervention is morally or legally justified. It would allow an award of damages based on a jury's determination of the validity of her assessment. It would thereby encourage citizens to act on the basis of their own, often uninformed or incomplete knowledge of why the police are doing what they are doing, and undermine the purposes for which statutes prohibiting interference with the police exist. There is no dispute, even under Rasmussen's version of the facts, that she deliberately and physically interfered with a police operation because she considered the amount of force used to be excessive. That was not her decision to make, or, at the very least, she cannot recover money damages for false arrest based on that decision.

In this regard, it is significant that even under Rasmussen's view of the facts, her interference spanned two divisible time periods. At first, she was in the bedroom observing Ivan being beaten and attempted to physically prevent that. She was then removed, forcibly, from the bedroom. But even after her removal, she continued trying to re-enter the bedroom even though Perez was physically keeping her from doing so. Even if her physical intervention while in the bedroom would not constitute probable cause for an OGA arrest, her attempt to get passed Perez and back into the bedroom certainly would.

Finally, I note that it is not as if there are not already remedies under §1983 to deter the use of excessive force by the police. The fact that Ivan's claim for excessive force will be tried to a jury in this very case demonstrates that, and the purpose of imposing liability under §1983 is not only to compensate victims of excessive police force, but to deter the police from using such force. See Wyatt v. Cole, 504 U.S. 158, 161, 112 S. Ct. 1827 (1992). If we are to trust the law to protect citizens from excessive police force, we cannot inconsistently rely on citizens to take matters into their own hands and unilaterally determine when their intervention against the police is appropriate. On the facts presented here, it is clear that Rasmussen's interference constituted probable cause for her arrest.


Defendants next contend that a portion of Ivan's claim for excessive force should be dismissed. Specifically, they contend that (a) Vanorden's discharge of his firearm was clearly accidental, and an accidental discharge under these circumstances is insufficient to demonstrate excessive force; or (b) the force used to handcuff Ivan was not excessive as a matter of law. Defendants acknowledge that even if I were to grant this aspect of their motion, there would still be disputed questions of material fact as to excessive force that the jury must determine, to wit: whether the initial beating and pistol whipping ...

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