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Burgess v. City of New York

United States District Court, E.D. New York

March 29, 2018



          ROSLYNN R. MAUSKOPF United States District Judge.

         Plaintiff Lashawn Burgess commenced this action for false arrest, denial of the right to a fair trial, and malicious prosecution under 42 U.S.C. § 1983, as well as malicious prosecution and respondeat superior under New York State law against defendants the City of New York, and police officers Vincent Agostino, Michael DiCecco, and Ricky Alexander. (Am. Compl. (Doc. No. 13).)[1] Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Mot. for Summ. J. (Doc. No. 42).) Burgess opposes the motion. (Pl.'s Opp'n (Doc. No. 48).) Because a jury could credit Burgess's version of what occurred on the night that he was arrested, summary judgment does not lie.


         The facts in this are rather straightforward. They are taken from the record and are largely undisputed, except in where noted. At approximately 9:00 p.m. on the night of February 28, 2014, officers Agostino, Alexander and DiCecco were on patrol in plainclothes and in an unmarked car in the Port Richmond neighborhood of Staten Island, an area known for drug activity. (Defs.' Ex. B (Doc. No. 41-2) at 17:12-14, Defs.' Ex. C (Doc. No. 41-3) at 57:9-22, Pl.'s Ex. A. (Doc. No. 46-1) at 53:3-13.) According to the officers' version of events, as they approached the corner of Park Avenue and Church Street, they observed two men, Burgess and an acquaintance of his later identified as Leroy Miller. (Defs.' Ex. A (Doc. No. 41-1) at 25:12-22.) Miller was known to the officers as an individual who had previously been arrested for possession of a controlled substance, a fact that Burgess does not dispute. (Defs.' Ex. A at 37:6-38:18; Defs.' Ex. B at 29:8-30:2, 65:22-66:4; Defs.' Ex. C at 23:14-24:7.) They were the only two men on the street, and they were standing close to each other when the officers first saw them from a distance of 20 to 50 feet. (Defs.' Ex. A at 25:12-17, 30:25-31:5; Defs.' Ex. B at 23:11-16, 27:22-28:4.) The intersection of Park Avenue and Church Street is well lit. (Defs.' Ex. A at 26:4-7.)

         All three officers claim that, from their vantage point in their slow-moving vehicle, straight ahead of them they saw Burgess hand something to Miller, and Agostino and DiCecco both claim that they saw Miller hand over U.S. currency in exchange. (Defs.' Ex. A at 10:10-18, 35:10-36:9; Defs.' Ex. B at 26:14-21; Defs.' Ex. C at 22:9-23:10.) The officers then pulled up beside the two men, as Burgess and Miller began to walk away from one another. (Defs.' Ex. A at 34:6-19.) They approached both men, and detained them. They searched Miller and discovered two bags of crack cocaine hidden in his glove. (Defs.' Ex. A at 41:21-24.) The officers then arrested both Miller and Burgess. (Defs.' Ex. A at 43:17-19, 47:13-15.) Burgess was then searched; no drugs were found, but the officers recovered $20 from him.[2] (Defs.' Ex. E (Doc. No. 41-5) at 62:1- 63:5.)

         Burgess's version is not dissimilar except in a few material respects. Burgess concedes that upon initially seeing Miller, the two greeted one another with a handshake. (Pl.'s Ex. A at 56:24-57:4.) He says that the men did not shake hands again after their initial greeting. (Id. at 58:7-15.) Burgess adamantly denies handing anything to Miller at any time that evening. (Pl.'s Ex. K (Doc. No. 46-11).) In addition, Burgess claims that the two men had been in conversation for five minutes before the police arrived on the scene, and as a result, he claims that the officers could not possibly have observed the handshake between the two men. (Pl.'s Ex. A at 57:11-12; Pl.'s Opp'n at 13-14.)

         After the arrest, Agostino prepared an arrest report in which he claimed to have seen Burgess sell drugs to Miller. (Pl.'s Ex. F (Doc. No. 46-6) at 8-10.) Alexander entered this report, and DiCecco was the approving supervisor. (Id.) Alexander also prepared a complaint report in which he claimed to have witnessed this drug transaction, again with DiCecco approving the report. (Pl.'s Ex. F at 11-12.) Agostino later spoke with a Queens County Assistant District Attorney (“ADA”) in his role as the arresting officer and signed a criminal complaint charging Burgess with criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree. (Defs.' Ex. A at 60:18- 61:16; Defs.' Ex. J (Doc. No. 41-10) at 2-3.) After coming in to court three different times, the charges against Burgess were dropped on September 16, 2014. (Pl.'s Ex. H (Doc. No. 46-8); Pl.'s Ex. I (Doc. No. 46-9).)


         Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In determining whether a genuine issue of material fact exists, the evidence of the nonmovant “is to be believed” and the court must draw all “justifiable” or “reasonable” inferences in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see also Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004). Once the moving party has satisfied its burden, “the nonmoving party must come forward with ‘specific facts showing there is a genuine issue for trial, '” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)), and “may not rely on conclusory allegations or unsubstantiated speculation, ” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal citations omitted). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [its] case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322) (internal quotation marks omitted) (alteration in original). Thus, a “defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).


         I. False Arrest

         To state a claim for false arrest, a plaintiff must show that “(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003). A confinement is “privileged” when the arrest was based on probable cause. Torres v. Jones, 26 N.Y.3d 742, 759 (2016). Therefore, the existence of probable cause is an absolute defense to claims for false arrest. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007).

         “An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed a crime.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (internal citations and alterations omitted). In determining whether an officer had probable cause, courts consider the totality of the circumstances, based on the facts available to the officer at the time of the arrest. Id. Where the question of whether an arresting officer had probable cause is dependent on a factual dispute, the issue should be decided by the jury. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997).

         Taking the facts in the light most favorable to Burgess, a jury crediting his version of events could find that the officers lacked probable cause for his arrest. First, Burgess's mere proximity to “others independently suspected of criminal activity, does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). This is true even when a person is arrested at a location known for drug sales, and when others in near proximity are found to be in possession of drugs. Flores v. City of Mount Vernon, 41 F.Supp.2d 439, 443-44 (S.D.N.Y. 1999) (no probable cause to arrest bartender where owner had been selling cocaine from behind the bar, and patrons were found with cocaine).

         Second, and most important, Burgess presents facts which, if credited, cast doubt on the credibility of the officer's version of events. Critically, Burgess admits that he shook Miller's hand, and adamantly denies that he handed anything to the officers. Assuming that Burgess's version of the facts is true, and that all the officers' saw was a handshake, those observations, even in a drug prone location where one man is a known drug user, are not sufficient to give rise to probable cause. Moreover, Burgess testified that, by his observations, the police officers arrived on the scene five minutes after the men first met and shook hands. This ...

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