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Ferguson v. City of New York

United States District Court, E.D. New York

July 30, 2018

SHAHEYM FERGUSON, Plaintiff,
v.
CITY OF NEW YORK, POLICE OFFICER WILLIAM DUGAN, POLICE OFFICER RONALD SANCHEZ, DET. ANGELO PIZZARRO, P.O. PATRICK SANON, and P.O. MARC ALTMAN, Defendants.

          MEMORANDUM DECISION AND ORDER

          BRIAN M. COGAN U.S.D.J.

         Plaintiff Shaheym Ferguson moves for reconsideration of this Court's order granting summary judgment in favor of defendants on all of plaintiff's claims except his illegal search claim against Officer Dugan. Familiarity with this Court's prior decision is assumed.

         The Court denies reconsideration as to plaintiff's Fourth Amendment false arrest claim and his failure-to-intervene claim deriving from his excessive force claim. The Court grants reconsideration as to plaintiff's Fourth Amendment excessive force claim, his state law assault and battery claims, his Fourth Amendment illegal seizure claim (as to the period after the show-up), his state law false arrest claim, his First Amendment retaliation claim, and his failure-to-intervene claims based on the claims for retaliation and for illegal seizure (post show-up).

         DISCUSSION

         The standard for granting a motion for reconsideration is strict. Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). “A motion for reconsideration should be granted only when the [moving party] identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks and citation omitted). “[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

         I. Fourth Amendment False Arrest Claim and Qualified Immunity

         Plaintiff moves for reconsideration of his Fourth Amendment false arrest claim, arguing that his Terry stop was actually a de facto arrest that violated the Fourth Amendment. In the motion, plaintiff simply rehashes the same arguments he made in support of his motion for summary judgment. Plaintiff does not point to facts or arguments that he presented to the Court that the Court overlooked.[1] Instead, plaintiff cites in his reconsideration motion the same multi-factor test that the Court cited in its opinion. Furthermore, contrary to plaintiff's argument for reconsideration, the Court did not conclude that there is a bright-line rule for when a Terry stop amounts to an arrest. The Court's final sentence of the relevant portion of the opinion states that “[t]he totality of the circumstances supports that this was a stop, not an arrest.” The Court denies reconsideration as to plaintiff's Fourth Amendment false arrest claim.

         Plaintiff's argument on the Court's qualified immunity ruling fails for similar reasons. Plaintiff argues in his motion that the Court's ruling was erroneous because “Dancy [v. McGinley, 843 F.3d 93 (2d Cir. 2016)] . . . did not break any new ground in terms of what is a permissible basis for a Terry stop [but] . . . merely restated the holdings of two controlling cases, which are cited in the decision, that were decided many years before the plaintiff in this case was seized by the defendants.”

         But plaintiff does not point to any caselaw that the Court failed to consider which clearly established that this stop was illegal. As the Court explained in its opinion, Dancy built upon earlier case law, which had already concluded that race alone or race and gender alone are not enough to generate reasonable suspicion. What made Dancy different from those earlier cases - and analogous to this one - is that the Second Circuit concluded that race, gender, and one other descriptor (in Dancy, body build, in this case, height) were also not enough to create reasonable suspicion, at least where plaintiff was stopped in an “unremarkable” environment in only general temporal and geographical proximity to the crime.

         Furthermore, contrary to plaintiff's arguments, the Court acknowledged that there need not be “a case directly on point” for a right to be clearly established, but also acknowledged the Supreme Court's admonition that “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The legal interpretation of this incident was not beyond debate. Plaintiff's motion for reconsideration of the qualified immunity ruling is denied.

         II. Excessive Force and State Law Assault and Battery Claims

         As to the excessive force and state law assault and battery claims, plaintiff argues that the Court erred by concluding that any degree of force by Officer Sanchez was appropriate. In plaintiff's view, the victim's response at the show-up eliminated any suspicion that he committed the robbery and nothing after the show-up created any suspicion about him.

         The Court agrees with plaintiff that reconsideration is appropriate to correct a clear error: summary judgment should not have been granted as to plaintiff's state-law assault and battery claims and as to plaintiff's Fourth Amendment excessive force claim for the reasons plaintiff argues.

         First, as to the state law claims, under New York law, any use of force by a police officer outside the context of a lawful seizure or arrest - regardless of the amount of force - is a technical assault or battery. Sulkowska v. City of N.Y., 129 F.Supp.2d 274, 294 (S.D.N.Y. 2001); Johnson v. Suffolk Cty. Police Dep't, 245 A.D.2d 340, 665 N.Y.S.2d 440, 440 (2d Dep't 1997). Here, defendants did not present any evidence that the force alleged happened during a lawful seizure or arrest; after the show-up, plaintiff was told that he was free to go and Officer Dugan only asked for plaintiff's identification in response to plaintiff's request for his badge number. Any intentional physical contact by Officer Sanchez without plaintiff's consent was at least a technical assault or battery under New York law because it occurred outside a lawful seizure. See Green v. City of N.Y., 465 F.3d 65, 86 (2d Cir. 2006).

         A Fourth Amendment excessive force claim, on the other hand, requires the Court to consider the degree of force exerted (in the context of various factors). But an officer's “right to use some degree of physical coercion or threat thereof to effect it, ” Graham v. Connor, 490 U.S. 386, 396 (1989), only arises during an arrest or an investigatory stop. There was no arrest or investigatory stop happening when Officer Sanchez allegedly slammed his hand into plaintiff's shoulder (nor grounds for suspicion to support one), and therefore any degree of physical force imposed would have been unreasonable. Furthermore, because the right to be free of entirely gratuitous force was clearly established at the time of this incident, see Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010), Officer Sanchez is not entitled to qualified immunity.

         Of course, the parties dispute whether Officer Sanchez struck plaintiff at all. That disputed fact is material for the state law assault and battery and Fourth Amendment excessive force claims and therefore precludes summary judgment on those claims.

         Even if plaintiff's version prevails, this is not to say that plaintiff is entitled to anything more than nominal damages for this very brief encounter. But the presence or absence of damage does not defeat the potential liability for these ...


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