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Douglas Alford v. the City of New York

August 29, 2012

DOUGLAS ALFORD, PLAINTIFF,
v.
THE CITY OF NEW YORK, POLICE OFFICER DANIEL GONG, POLICE OFFICER CALEEF MCCLEAN, AND POLICE OFFICERS JOHN DOE 1-8, DEFENDANTS.



The opinion of the court was delivered by: Korman, J.:

MEMORANDUM & ORDER

Plaintiff Douglas Alford filed his complaint against the City of New York and two New York City Police Department officers following two arrests, asserting claims under 42 U.S.C. § 1983 and state law.

FACTUAL BACKGROUND

The relevant facts, as set forth in the amended complaint, are straightforward. On August 5, 2010, Officer Daniel Gong observed Douglas Alford selling music compact discs on the sidewalk in front of 210 Livingston Street in Brooklyn. (Am. Compl. ¶¶ 13-14.) When Officer Gong asked him for his vendor's license, Alford gave him two documents: A New York State identification card and a July 14, 2010 "Decision and Order" by a New York City administrative law judge, which stated that Alford was not required to have a general vendor's license. (Am. Compl. ¶ 14.)

Officer Gong made several phone calls over a twenty-minute period and discovered that there was an outstanding bench warrant for Alford's arrest, which was issued in 1977 after Alford had failed to appear in a criminal action against him. (Am. Compl. ¶¶ 14.) Officer Gong arrested and handcuffed Alford. (Am. Compl. ¶ 16). Alford immediately complained to Officer Gong that his handcuffs were too tight but was ignored until he arrived at the police station, where another officer loosened them. (Am. Compl. ¶¶ 18, 20.) Alford suffered "pain . . . and numbness" as a result of the overly-restrictive cuffing, (Am. Compl. ¶ 17), and, though not mentioned in the amended complaint, the handcuffs left one of his wrists with a red line for about a week. (Pl.'s Decl. Ex. 3 at 20.) Once at the police station, Alford was searched, arraigned, and released on his own recognizance. (Am. Compl. ¶¶ 22-26.)

The second arrest at issue occurred on August 13, 2010, only eight days after the first. (Am. Compl. ¶ 35.) Officer Caleef McClean*fn1 observed Alford selling music compact discs on the sidewalk in front of 789 Broadway in Brooklyn. (Am. Compl. ¶¶ 35-36.) Officer McClean asked to see Alford's vendor's license, and, as before, Alford gave Officer McClean his New York State Identification Card and the 2010 Decision and Order by the administrative law judge. (Am. Compl. ¶ 36.) While speaking to Alford, Officer McClean, trained in the NYPD's Peddler Unit, identified the compact discs as counterfeit. Officer McClean based his determination on the poor quality of the descriptive slips at the front of the discs' cases. (DE 28 at 5.) Officer McClean arrested Alford and charged him with "Failure to Disclose the Origin of Recording" and as an "Unlicensed General Vendor." (Am. Compl. ¶¶ 37, 47.) Alford was prosecuted for these two charges in a bench trial on November 16, 2011. (Am. Compl. ¶ 48.) During that trial, the charges were reduced to a single count of Failure to Disclose the Origin of Recording under New York Penal Law § 275.35. While Officer McClean testified at trial, the prosecution was unable to introduce the CDs that were seized from Alford because they had been accidentally destroyed. (See Crim. Trial Tr. 2, Pl.'s Decl. Ex. 4.) After the prosecution rested, the trial judge granted Alford's motion for a trial order of dismissal.

PROCEDURAL HISTORY

Alford's amended complaint sets forth seven causes of action against the City of New York and Officers Gong and McClean. First, a false arrest claim under 42 U.S.C. § 1983 against defendants Gong and McClean, brought on the grounds that there was no probable cause for either the August 5th or the August 13th arrests. (Am. Compl. ¶¶ 51-55.) Second, and relatedly, a state law false arrest claim pursuant to Article 1, Section 12 of the New York State Constitution against all defendants, brought on the grounds that there was no probable cause for either arrest. (Am. Compl. ¶¶ 79-83.) Third, an unlawful search claim under 42 U.S.C. § 1983 against defendants Gong and McClean, in which Alford asserts that the officers searched him without any individualized reasonable suspicion that he was concealing weapons or contraband. (Am. Compl. ¶¶ 56-60.) Fourth, a "denial of a constitutional right to a fair trial" claim under 42 U.S.C. § 1983 against defendants Gong and McClean, alleging that the officers forwarded falsified evidence to prosecutors and gave false testimony at Alford's trial. (Am. Compl. ¶¶ 61-66.)

The fifth cause of action is an excessive force claim under 42 U.S.C. § 1983 against defendant Gong only, on the grounds that he secured Alford's handcuffs too tightly in the August 5th arrest. (Am. Compl. ¶¶ 67-71.) Sixth, and relatedly, a state law claim for assault and battery against defendant Gong only, arising out of the same conduct. (Am. Compl. ¶¶ 72-78.) Finally, seventh, a municipal liability claim under 42 U.S.C. § 1983 against the City of New York, which alleges that the city has established a policy for its police officers to: (1) wrongfully arrest individuals on the pretext that they are/were involved in illegal acts; (2) manufacture evidence against individuals allegedly involved in illegal acts; and (3) arrest innocent persons in order to meet productivity goals. (Am. Compl. ¶¶ 84-95.) Each of these arguments is addressed in turn.

DISCUSSION

I.False Arrest and False Imprisonment Under 42 U.S.C. § 1983

Alford alleges that he was arrested and imprisoned without probable cause. The Fourth Amendment's prohibition against unreasonable search and seizure requires that an arrest without a warrant be based on probable cause to believe that an offense is being or has been committed. United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). Probable cause exists when the arresting officer has knowledge of or reasonably trustworthy information as to facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (internal quotation marks omitted). The "existence of probable cause to arrest is a complete defense to an action for false arrest." Weyant, 101 F.3d at 852 (internal quotation marks and citation omitted).

Here, there was probable cause for both of Alford's arrests. On each occasion, he did not have a vendor's license or a Certificate of Authority. (Am. Compl. ¶¶ 14, 36.) Not having either document while selling goods on a New York City sidewalk is a crime: New York General Business Law § 34 provides that "any citizen may arrest any peddler who neglects or refuses to produce his license on demand," and New York Tax Law §§ 1134(a)(2) and 1817(d) makes it a misdemeanor for a vendor to not have a Certificate of Authority.

Alford alleges that at the time of each arrest, he handed to the arresting officer a Decision and Order, dated July 1, 2010, "wherein, in a prior action, a New York City Administration Law Judge assigned to the New York City Environmental Control Board, had determined that the plaintiff, who had been similarly accused of selling CDs without a general vendor's license, was not required to have a general vendor's license on the basis that he was a 'First Amendment Vendor.'" (Am. Compl. ΒΆ 36.) If the only basis for the arrest was Alford's failure to have a General Vendor's License, this claim would warrant further discussion. See Defs.' Mem. Law 60, n.12. There was, however, probable cause to arrest Alford for failing to possess a Certificate of Authority. Indeed, even failure to prominently display a Certificate of Authority is enough to provide probable cause for an officer to believe a vendor does not possess one. People v. Pao Fun et al., 840 NYS.2d 295, 297-98 (N.Y. Crim. Ct. 2007). This provided a sufficient basis for his arrest. See Clarke v. City of New York, No. 96cv5762, 1999 WL 608857, *5 (E.D.N.Y. Jul. 22, 1999). I note, parenthetically, that Judge Go ordered Alford to produce his Certificate of Authority on May 24, 2011, June 29, 2011, July 26, 2011, and January 8, 2012, and warned that if he did not produce it by January ...


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