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Johnson v. City of New York

United States District Court, S.D. New York

January 28, 2014

LYNDEN JOHNSON, Plaintiff,
v.
CITY OF NEW YORK and HECTOR BRUNO, Defendants.

OPINION AND ORDER

RONNIE ABRAMS, District Judge.

Pro se Plaintiff Lynden Johnson brings this suit against Defendants City of New York and New York Police Department ("NYPD") Detective Hector Bruno, alleging that they violated his rights under Article 36 of the Vienna Convention on Consular Relations ("the Vienna Convention" or "the Convention"), Apr. 24, 1963, [1970] 21 U.S.T. 77, 100-01, T.I.A.S. No. 6820. Paragraph 1(b) of Article 36 requires officers who arrest a foreign national (1) to notify the individual's consulate of his arrest upon request; (2) to forward "[a]ny communication addressed to the consular post by the person arrested"; and (3) to "inform the person concerned without delay of his rights under this sub-paragraph." 21 U.S.T. at 101.

Plaintiff's complaint alleges that he was arrested on May 12, 2011, and that during his arrest, NYPD officers failed to inform him of his rights under Article 36 of the Convention, despite being notified of his "foreign status."[1] (Compl. at 3.) He alleges further that officers "refused to contact [his] consulate upon [his] request for assistan[ce]." (Id.) Defendant Hector Bruno, according to the complaint, was the arresting officer who refused to convey to the consulate Plaintiff's "request for legal assistance and emotional support." (Id.)

Before the Court is Defendant City of New York's motion to dismiss.[2] For the following reasons, that motion is granted.

1. Article 36 and the Mora Decision

The Vienna Convention was drafted in 1963, with the aim of "contributing to the development of friendly relations among nations, irrespective of their differing constitutional and social systems. Sanchez-Llamas v. Oregon , 548 U.S. 331, 337 (2006) (quoting 21 U.S.T. at 79) (alteration omitted). Upon the advice and consent of the Senate, the United States ratified the treaty in 1969. Id . at 338. Paragraph 1 of Article 36 of the Convention provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

21 U.S.T. at 100-01 (emphasis added).

A treaty "is primarily a compact between independent nations; it depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it." United States v. De La Pava , 268 F.3d 157, 164 (2d Cir.2001) (quoting Head Money Cases , 112 U.S. 580, 598 (1884)) (alteration omitted). As a general matter, "there is a strong presumption against inferring individual rights from international treaties." Id . Whether this presumption is overcome in a particular case "is for the court to decide as a matter of treaty interpretation." Mora v. New York , 524 F.3d 183, 193 (2d Cir. 2008).

The Supreme Court has not addressed whether individuals may bring suits for damages to remedy violations of Article 36 of the Convention. In Sanchez-Llamas v. Oregon , 548 U.S. 331, the Court assumed without deciding that Article 36 "grants individuals enforceable rights, " but concluded that suppression of evidence was not an appropriate remedy for violations of Article 36. Id . at 337, 343.

The Second Circuit has addressed the viability of a damages action under Article 36, in a decision that is highly instructive in the instant case. In Mora v. New York , 524 F.3d at 209, the Circuit held that individuals cannot bring an action for damages under Article 36, 42 U.S.C. ยง 1983, or the Alien Tort Statute for violations of the third clause of Article ...


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