New York City Police Misconduct Handbook Self-advocacy and §1983

THIS HANDBOOK WAS STARTED WHEN SOME OF US WERE FIRST YEAR LAW STUDENTS. WE WORKED ON IT FOR THREE YEARS, WITH THE GUIDANCE OF SOME LAWYERS. WE GOT PRETTY FAR ALONG. BUT WE’RE NOT DONE. WE HOPE THAT WHEN THIS BOOK IS DONE, IT WILL BE A RESOURCE THAT CAN EMPOWER THOSE WHO DO NOT HAVE ACCESS TO COUNSEL – OR THOSE WHO BELIEVE IN A DO-IT-YOURSELF FUTURE – TO BRING THEIR OWN CLAIMS IN VARIOUS COURTS WHEN THEY HAVE BEEN MISTREATED BY THE POLICE. WE HOPE THIS WILL BE A ROADMAP. SOME SECTIONS OF THIS BOOK ARE A SKETCH – WE WOULD LOVE YOUR HELP IN FILLING IN THE LINES. WE WOULD ALSO LOVE TO HAVE A WAY TO GROUND-TRUTH THIS INFORMATION, AND TO BUILD A COMMUNITY OF COMRADES WHO ARE USING THE COURTS FOR JUSTICE AND CAN SUPPORT EACH OTHER, AS WELL AS OTHER GROUPS WHO CAN BENEFIT FROM AN AVENUE TOWARDS JUSTICE.

WITH THE INCOMPLETION OF THIS PROJECT IN MIND, WE ARE SHARING OUR DRAFT. SPECIFICALLY, IN THE OWS CONTEXT, WE WOULD LIKE TO DRAW YOUR ATTENTION TO A FEW THINGS:

1. YOU CAN SUE THE NYPD IN SMALL CLAIMS COURT. IT COSTS $35.

2. YOU CAN SUE THE NYPD IN FEDERAL OR STATE COURT WITHOUT A LAWYER – PRO SE. IT COSTS MORE ($210, USUALLY) BUT YOU MIGHT GET TREATED NICER BY A COURT THAN YOU WOULD IF YOU HAD A LAWYER.

3. WE ARE NOT SURE HOW TO BEST SHARE THIS INFORMATION. SHOULD WE PRINT THIS BOOK? SHOULD WE MAKE A WIKI? WE WOULD LOVE YOUR INPUT. YOU GUYS ARE A FORCE.

CONTACT 1983WORKINGGROUP@GMAIL.COM

OCCUPY EVERYWHERE!

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TABLE OF CONTENTS

CHAPTER1:Introduction......................................................................................................... 5 WhatisthisHandbook...................................................................................................................................................................5 Whocanusethishandbook? ...........................................................................................................................................5 Howtousethishandbook ................................................................................................................................................5 Historyof1983 ......................................................................................................................................................................5

YourOptions .......................................................................................................................................................................................5 CCRB ...........................................................................................................................................................................................5 IAB...............................................................................................................................................................................................6 DARacketsBureau...............................................................................................................................................................7 NonInstitutionalCommunityGroupsandPoliceWatchOrganizations ......................................................7 CivilRightsLawsuit .............................................................................................................................................................7 OngoingClassActionsinNYC..........................................................................................................................................7

ImmediateConcernsforCivilSuits...........................................................................................................................................8 Timelimits:StatuteofLimitations&NoticeofClaim...........................................................................................8 StoppingtheClock.............................................................................................................................................................10 Equitabletollingexception:...........................................................................................................................................10 PreservingEvidence&CivilClaims ...........................................................................................................................10 StayingYourCivilSuit......................................................................................................................................................10

Chapter2:PlanningYour1983Lawsuit................................................................................. 11 WhatCourt/stoUse.....................................................................................................................................................................11 CourtofClaims....................................................................................................................................................................11 FederalCourt .......................................................................................................................................................................12 StateSupremeCourt.........................................................................................................................................................12 SmallClaimsCourts ..........................................................................................................................................................12

WhomCanYouSue.......................................................................................................................................................................12 JUDGES&JUDICIALIMMUNITY ..................................................................................................................................12 PROSECUTORS&PROSECUTORIALIMMUNITY..................................................................................................12 POLICEOFFICERS&QUALIFIEDIMMUNITY ........................................................................................................13 OFFDUTY&RETIREDOFFICERS ...............................................................................................................................14 CORRECTIONSOFFICERS...............................................................................................................................................14 NEWYORKCITY(notNYPDorDOCS)......................................................................................................................14 DEPARTMENTOFHEALTHANDMENTALHYGENE .........................................................................................15

WhatCanYouGet .........................................................................................................................................................................15 Injunctions ............................................................................................................................................................................15 Damages.................................................................................................................................................................................16 TheSonofSamLaws........................................................................................................................................................16 DeclaratoryRelief ..............................................................................................................................................................16

StepsinaCivilSuit........................................................................................................................................................................16 CommonClaimsRelatedtoPoliceMisconduct(NYPD)................................................................................................18 FalseArrest...........................................................................................................................................................................18 UnlawfulSearches/Seizures .........................................................................................................................................19 SearchesPursuanttoaWarrant .................................................................................................................................19 StripSearches......................................................................................................................................................................20 ExcessiveForce...................................................................................................................................................................20 MaliciousProsecution......................................................................................................................................................23 FailuretoInvestigate .......................................................................................................................................................25

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DeliberateIndifferencetoMedicalNeeds...............................................................................................................27 FailuretoIntervene ..........................................................................................................................................................29 WrongfulConvictions(SueNYSunder8‐b‐courtofclaims) .........................................................................29 FirstAmendmentRetaliation .......................................................................................................................................29 NYStateTortClaims.........................................................................................................................................................31

CommonClaimsRelatedtoCorrectionsMisconduct(pretrialdetention:DOCS&NYPDcustody) ..........33 Brutalitybyofficers ..........................................................................................................................................................33 Deliberateindifferencegenerally(beatingsbyotherinmates) ....................................................................34 DeliberateindifferencetoMedicalNeeds ...............................................................................................................34 MedicalMalpractice(byRikersmedicalstafforotherhospitalstaff)........................................................35 Holdovers(beingheldbeyonddetentionreleasedates) .................................................................................36

SuingMunicipalitiesandSupervisors ..................................................................................................................................36 MunicipalLiability.............................................................................................................................................................36 Supervisorliability............................................................................................................................................................40

TheEffectofOngoingCases,Convictions,PleaNegotiations,andCriminalCourtProceedingsonYourCivilCase. ..........................................................................................................................................................................................40 OngoingCriminalCases ..................................................................................................................................................40 GuiltyPleasandConvictions.........................................................................................................................................41 Adjournmentsincontemplationofdismissal“ACD”..........................................................................................42 DismissalsforLackofJurisdiction .............................................................................................................................42 SpeedyTrial(30.30)Dismissals..................................................................................................................................42 DismissalintheInterestofJustice(ClaytonDismissal) ...................................................................................42 PartialAcquittals&DroppedCharges ......................................................................................................................43 OverturnedConvictions..................................................................................................................................................43 PriorCriminalCourtProceedings(CollateralEstoppel) ..................................................................................43 DealsReleasingthePolice,Prosecution&CityfromLiability .......................................................................44 TheCriminalCourtPleaColloquy ..............................................................................................................................46

COMMONPROBLEMSPREVENTINGSUIT .........................................................................................................................46 ArrestWarrants..................................................................................................................................................................47 ArrestsonaWarrantBasedonMistakenIdentity ..............................................................................................47 ArrestsBasedonStatements/Information/IdentificationsofNonOfficers............................................48 FailuretoInvestigatebyPoliceOfficers ..................................................................................................................49 SearchesBasedonMistakesinWarrants................................................................................................................50 NoFruitofthePoisonousTreeinCivilSuits .........................................................................................................50 IllegalSearchesandSeizuresbasedonStateLaw...............................................................................................51

TheProblemofQualifiedImmunity......................................................................................................................................51 PreSuitinvestigations ................................................................................................................................................................51

Chapter 3 Starting Your Civil Suit.................................................................................. 52 OverviewofStepsforStartingaSuit ....................................................................................................................................52 TheNoticeofClaim&the50(h)Hearing ...........................................................................................................................52 TheNoticeofClaim...........................................................................................................................................................53 HowtofileaNoticeofClaim.........................................................................................................................................53 LateNoticeofClaim..........................................................................................................................................................53 The50‐hHearing ...............................................................................................................................................................54

WritingtheComplaint ................................................................................................................................................................56 Filingyourcomplaint ..................................................................................................................................................................56 Wheretofile.........................................................................................................................................................................56 Howtofile .............................................................................................................................................................................56

ServingProcess...............................................................................................................................................................................56

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PreliminaryConcerns ......................................................................................................................................................57 FormsofService:................................................................................................................................................................59 Aftercompletingserviceofprocess ..........................................................................................................................61

GettingHelpfromtheCourt .....................................................................................................................................................62

Chapter 4 What Happens After You File Your 1983 Suit ............................................ 62 Rule12(b)(6)dismissalsandIFPDismissals.....................................................................................................................62 Summaryjudgmentdismissals................................................................................................................................................62 Discovery...........................................................................................................................................................................................62 Discoverytools: ..................................................................................................................................................................63 2)Interrogatories ..............................................................................................................................................................64 3)RequestforProductionofDocuments................................................................................................................64 (4)Inspection ......................................................................................................................................................................67 (5)Depositions ...................................................................................................................................................................67 (6)Subpoenas .....................................................................................................................................................................68 (7)ContinuingIndependentInvestigations...........................................................................................................68

Motions ..............................................................................................................................................................................................69

Chapter 5 The Legal System and Legal Research ...................................................... 69 TakeallfromPLAHandbook ...................................................................................................................................................69

Appendix............................................................................................................................ 69 FreeResearchResources&Libraries ...................................................................................................................................69 CourtContacts ................................................................................................................................................................................69 Glossaryofterms ...........................................................................................................................................................................70 Forms..................................................................................................................................................................................................70 NoticeofClaimBlank .......................................................................................................................................................70 NoticeofClaimInstructions..........................................................................................................................................70 NoticeofIntenttofileaClaimBlank(CourtofClaims) ....................................................................................71 Sample1983Complaint..................................................................................................................................................71 NYPDFOIL ............................................................................................................................................................................71 DAFOIL ..................................................................................................................................................................................71 MotionforLeavetoFileanAmendedComplaint ................................................................................................71 DeclarationforEntryofDefault ..................................................................................................................................71 MotionforJudgmentbyDefault ..................................................................................................................................71 MotiontoCompelDiscovery.........................................................................................................................................71 SubpoenaDucesTecum ..................................................................................................................................................71 SubpoenatoappearforaDeposition........................................................................................................................71 Includeotherexamplesbutrefermosttotheindividualdistrictcourts ..................................................71

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CHAPTER 1: Introduction

WHAT IS THIS HANDBOOK Who can use this handbook? Even non-arrestees. Everyone who was mistreated by NYPD officers or policy. Some mistreatment may not create a right to a civil suit. Although the bulk of this manual deals with civil litigation it is designed to provide various options for resolving mistreatment/misconduct by the NYPD.

How to use this handbook -Be creative this is not an exhaustive recitation of law. -For procedural issues including motions and discovery consult your local district court rules and pro se offices. The individual offices have their own ways of doing things and unique rules. Failing to comply with rules is a sure way to get on the courts bad side if not get your case dismissed entirely.

History of 1983 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

YOUR OPTIONS CCRB Most civil rights and defense attorneys will tell you complaints to the CCRB (Civilian Complaint Review Board) are pointless and potentially harmful to any potential civil or open criminal case. Few of their cases are ever substantiated.1 However, the CCRB unlike the Internal Affairs Bureau “IAB” is independent of the police department and many investigators do take their job seriously. If you do not wish to file a civil lawsuit and have no pending criminal lawsuit you may want to contact the CCRB to make a complaint. Under New York State Civil Service Law, officers who are subjects of substantiated CCRB investigations must be disciplined or served with disciplinary charges within 18 months of the date of the incident.2 So, make the complaint immediately. You can make a complaint online, through 311 or by visiting CCRB offices directly. An investigator will generally interview you once on the phone and once in person at their offices depending on how you make your complaint. Expect them to question you extensively and remain calm throughout the interview. The investigators are generally fair and polite. 1 See http://www.nyc.gov/html/ccrb/html/how.html 2 N.Y. Civ. Serv. Law § 75(4) (McKinney)

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At the end of your interview they will likely ask if you want to engage in mediation or have an investigation into the officers actions. Mediations are a chance to sit down with the officer and a mediator to discuss the incident. Prior to mediation you will have to sign a confidentiality agreement. According to the CCRB website this agreement protects the mediator from being called to testify in any future legal proceeding.3 If you opt for an investigation and complaint rather than mediation you will not get a chance to confront the officer. The investigation they may interview witnesses(police and civilian), subpoena documents(like video), and examine records. At some point they will also interview the offending officer. If you did not know the offending officer’s name or badge number you may be asked to identify them in a photo array. If you have a criminal case related to the incident do not go to the CCRB without your criminal attorney. The CCRB investigators will likely question you about the underlying crime even where it has nothing to do with the police officer misconduct. Often investigators will question you about the events over the phone prior to conducting an official interview. Do not answer any questions without your attorney. Additionally, CCRB will often interview eyewitnesses prior to you or your attorney speaking to them. Eyewitnesses often tell the investigators, “I didn’t see anything,” to avoid speaking with them. This can obviously hurt their credibility if their testimony is needed later in criminal and civil cases. Similarly, if you want to file a civil case you should only visit the CCRB with and at the advice of your attorney. Despite it’s many potential pitfalls and low substantiation rate, the CCRB can be used as a discovery tool for civil and criminal cases. One advantage of the CCRB complaint is that it will likely occur before a criminal trial and often creates testimony by the officer that would be available to your criminal attorney by subpoena. Again, do not do this unless your criminal attorney advises you to do so and attends the meetings with you. A second and more advisable use is in cases where you were not arrested. If you were not arrested and do not know the officer’s name it is often very difficult and time consuming to use the civil discovery process to find out the officer’s name. However, if the CCRB gets involved they will generally be able to identify the officer for you prior to filing the suit. If they do not give you the identity of the officer, you can file your suit against the city, name the officer “john doe”, and subpoena the CCRB as soon as your suit is underway. Then you can amend your suit to add the officer. If you are using the CCRB as a discovery tool do not opt for mediation.

IAB The IAB (Internal Affairs Bureau) is an arm of the NYPD and their investigators are likely police detectives. IAB occasionally becomes involved in your case before you have obtained an attorney, especially in the case where you were arrested and received serious injury at the hands of the NYPD. The IAB interviews almost invariably involve questions locking you and your witnesses into testimony favorable to the police. In

3 Id.

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general you should not speak with IAB. However, where there was an investigation you should let your attorneys know and/or request the records as a part of the discovery process in a criminal or civil case. DA Rackets Bureau The district attorney’s offices have “rackets bureaus” to handle allegations of criminal conduct against police officers acting in the course of their job. Typically if your case is compelling enough the DA’s office will reach out to you or your attorney. Again, if you have an attorney, speak to them before cooperating. Non Institutional Community Groups and Police Watch Organizations xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx- encourage creative solutions to misconduct and maybe quote Paul Wright or someone else about the limitations of the courts. Encourage people to start community groups around policing, contacting the press, talking to neighbors etc. Civil Rights Lawsuit

Generally if you were the victim of police misconduct a civil lawsuit will be the best avenue for redress. However, a civil rights lawsuit is often a long and invasive process. You will almost certainly be deposed several times. Civil depositions are a very difficult process and will always involve questions about your criminal history, mental health, drug use, or any number of uncomfortable topics. The attorneys conducting the depositions for the city can be nasty and accusatory and often act as if they have some personal stake in the litigation. Additionally, they are often racist and treat indigent clients poorly without regard to the circumstances of their case. In addition to being a long unpleasant process these cases rarely go to court in part because of federal rules that limit attorney fees after offers of settlement have been made.4 So, even where you are able to get money you may never have your “day in court.” Most importantly the police officers will likely not be fired or penalized by the department even where the city settles the suit for a large sum of money. Ongoing Class Actions in NYC Because police often violate citizens rights repeatedly there are often class actions lawsuits related to police misconduct. You should always check to see if there are class action suits you can join. Below are several current class action lawsuits pending against the NYPD. Floyd, et al. v. City of New York, et al. is a federal class action lawsuit filed against the New York City Police Department (NYPD) and the City of New York that challenges the NYPD's practices of racial profiling and unconstitutional stop-and frisks. These NYPD practices have led to a dramatic increase in the number of suspicion-less stop-and-frisks per year in the city, with the majority of stops in communities of color.5 Davis, et al. v. The City of New York, et al. is a a federal class action lawsuit filed in January 29, 2010 by The Legal Aid Society, the NAACP Legal Defense & Educational 4 F.R.C.P. 68 5 http://ccrjustice.org/floyd

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Fund, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, against New York City and the New York City Housing Authority challenging their unlawful policy of routinely subjecting NYCHA residents and their visitors to unlawful stops and arrests purportedly to enforce the trespass laws. The complaint asserted that police officers indiscriminately stop and arrest people living in or visiting NYCHA residences. As a result, people who have a legitimate and lawful reason for being on NYCHA property, including residents, are routinely detained and/or arrested for criminal trespass.6

IMMEDIATE CONCERNS FOR CIVIL SUITS Time limits: Statute of Limitations & Notice of Claim

6http://www.legal-aid.org/en/mediaandpublicinformation/inthenews/cityreachessettlementwithsomeindividualplaintiffsintrespasscase.aspx

If you are considering filing a lawsuit either through a lawyer or pro-se you have a limited amount of time to begin this process. For each type of claim they can make, there is a statute of limitations that prevents any suit filed after a certain time period. You must file your lawsuit before the statute of limitations runs out. The general rule is that the statute of limitations for all federal claims is 3 years from the accrual date while the statute of limitations on intentional state torts is one year from the accrual date.7 If they are suing the City of New York the statute of limitations is 1 year and 90 days from the accrual date.8 Additionally, if you want to sue the city of New York under state law you must file a notice of claim within 90 days.9 Similar laws apply if you are suing the State of New York.10 Below is a chart explaining the most common statute of limitations and their time of accrual.

7 Owens v. Okure, 488 U.S. 235, 249-50, (1989). N.Y.C.P.L.R § 214(5). N.Y. Gen. Mun. Law 8 N.Y. Gen. Mun. Law §50-e(1)(a). 9 See generally N.Y. Gen. Mun. Law 10 See generally Court of Claims Act. Article I- III.

Stopping the Clock The Time stops running on the statute of limitations once you have commenced the suit by filing a copy of the complaint with the district court.11 In the case of the Notice of Claim the clock stops when the notice is mailed or served on Corporation Council.12

Equitable tolling exception: In certain situations you can argue that the clock stopped running and that even though three years has passed the statute of limitations has not run out. This is called “equitable tolling” and generally requires that you show that the defendants(officers/DAs) engaged in some kind of fraud that prevented you from knowing of the harms you suffered or the information you needed to file the complaint.13 Preserving Evidence & Civil Claims To preserve your claims the first thing you should do is file a Notice of Claim with the Comptrollers office. (See Chapter 3 Starting Your Civil Suit). This preserves your right to sue in state or federal court under state tort law. However, if you missed this deadline you may still sue for constitutional violations! Additionally you should carefully examine the section on the effects of criminal court dispositions, and other criminal court proceedings on your case. (See Chapter 2 The Effect of Ongoing Cases, Convictions, Plea Negotiations, and Criminal Court Proceedings). Occasionally a disposition that would appear favorable will be fatal to your civil case. For example ACD’s will bar malicious prosecution suits. Preserving evidence is very difficult but can generally be done by sending letters to preserve evidence, by use of FOIL letters, or by requesting preservation in your Notice of Claim. If you were arrested and charged with a crime you should consult with your criminal attorney and let them know you want to file a civil suit and need to preserve any evidence necessary and need whatever discovery they were given. Ask them to subpoena videos and documents for you. If the case was terminated before discovery you should ask for a copy of everything they have and then send a FOIL letter requesting all of the relevant documents (see section ___ FORMS) Sometimes preserving evidence is as simple as going to the place where evidence(like videos or records) is located and asking for a copy. Other times it will only be handed over by subpoena, FOIL, or formal civil discovery. See section ____ pre suit investigations. Staying Your Civil Suit

11 Fed. R. Civ. Proc. 3. West v. Conrail, 481 U.S. 35, (1987). Walker v. Armco Steel Corp., 446 U.S. 740, (1980). McKinney's CPLR § 304. 12 N.Y. Gen. Mun. Law §50-e(3)(a) & (b). 13 Daniel v. Safir, 175 F.Supp.2d 474, 480 (E.D.N.Y. 2001). Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2 Dept 1995)

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Obviously you will not want to testify in your civil case until your criminal case is over. While the Fifth Amendment states only that, “[n]o person ... shall be compelled in any criminal case to be a witness against himself,”14 there is no question that an individual is entitled to invoke the privilege against self-incrimination during a civil proceeding.15 “[T]his means that a civil litigant may legitimately use the Fifth Amendment to avoid having to answer inquiries during any phase of the discovery process.”16

Despite the fact that the city cannot assert any privilege under the 5th amendment, a stay of the civil proceedings is generally appropriate and will likely be granted at the request of either party.17 If requested by the city, a stay could be granted prior to discovery.18 This is because, “[a] litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal trial.”19

If for some reason the city has not already requested a stay, for discovery purposes you may want to wait until interrogatories, request for the production of documents, and even some of the depositions are completed before you assert your 5th amendment privilege. However, this strategy may have a negative impact on your civil case.20

Chapter 2: Planning Your 1983 Lawsuit

WHAT COURT/S TO USE Court of Claims

14 U.S. Const. amend. V 15 U.S. v. Kordel, 397 U.S. 1 (1970); See, e.g. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (explaining that the Fifth Amendment permits an individual “not to answer official questions put to him in any ... proceeding, civil or criminal, formal or informal, where the answer might incriminate him”). 16 U.S. v. Certain Real Property and Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78 (2d Cir. 1995); Citing Charles A. Wright, Arthur R. Miller and Richard L. Marcus, Federal Practice and Procedure § 2018, at 273 (2d ed. 1994). 17 Wallace v. Kato, 549 U.S. 384 127 S. Ct. 1097, 1098, 1100 (U.S. 2007) (“If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.”). citing Heck v. Humphrey, 512 U.S. 477, 487-488, n. 8, (1994). 18 Gustave v. City of N.Y., Slip Copy, 2010 WL 3943428 (E.D.N.Y. 2010). 19 Bd. of Governors of the Fed. Reserve Sys. v. Pharaon, 140 F.R.D. 634, 639 (S.D.N.Y.1991). 20 U.S. v. Certain Real Property and Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 84-85 (2d Cir. 1995) ( “If it appears that a litigant has sought to use the Fifth Amendment to abuse or obstruct the discovery process, trial courts, to prevent prejudice to opposing parties, may adopt remedial procedures or impose sanctions.”).

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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Federal Court xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx State Supreme Court xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Small Claims Courts xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

WHOM CAN YOU SUE JUDGES & JUDICIAL IMMUNITY Judges receive absolute immunity and any suit brought against a judge will be dismissed unless they have acted in the “clear absence of all jurisdiction.”21 This is a very high threshold, meaning any suit against a judge will likely be dismissed immediately. “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.”22 However, Judges are not entitled to judicial immunity when acting in their administrative capacity.23 PROSECUTORS & PROSECUTORIAL IMMUNITY Similarly, prosecutors enjoy absolute immunity for their role as an advocate, but are not protected where they are acting in an administrative or investigative capacity.24 One way to think about this is the more a prosecutor was acting like a police officer or detective when they caused your client’s rights to be violated the less likely they are to be granted absolute immunity. On the other hand the more they were acting like a lawyer the more likely they will be granted absolute immunity. Examples of activities for which prosecutors are entitled to absolute immunity include filing a criminal information and obtaining an arrest warrant25, plea bargaining26, the

21 Stump v. Sparkman, 435 U.S. 349 (1978). 22 Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990). 23 Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993). 24 Imbler v. Pachman, 424 U.S. 409 (1976). 25 Kalina v. Fletcher, 522 U.S. 118, 128-29 (1997).

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knowing use of perjured testimony and deliberate withholding of exculpatory information27, alleged coercion of witness testimony28, management of informants29, issuing a search warrant and participating in a probable cause hearing.30 Examples of activities for which prosecutors are not entitled to qualified immunity include holding a press conference31, giving legal advice to police officers32 participating in the execution of an arrest,33 making false statements in an affidavit in support of an arrest warrant,34 repeatedly and needlessly transporting someone from jail to courthouses or keeping a person in custody after termination of all charges.35 This is because the challenged conduct that is not a traditional function of a prosecutor nor a part of his adversarial function. Even where your client can prove a prosecutor is acting as an investigator or administrator they may be entitled to qualified immunity. This is the same kind of immunity that Police officers are often granted and is a defense that your client will probably see raised at some point during their lawsuit. POLICE OFFICERS & QUALIFIED IMMUNITY Police officers are granted absolute immunity for their testimony in judicial proceedings, usually even where they lie.36 However, outside of their roles as witnesses in court, police officers are only granted qualified immunity. Qualified immunity is granted to an officer where: 1) the conduct was not a violation of Federal law or a Constitutional Right; or 2) where the conduct is prohibited, if the plaintiffs right not to be subjected to such conduct… was not clearly established at the time of the conduct; or 3) if the defendant’s action was “objectively legally reasonable… in light of the legal rules that were clearly established at the time it was taken.”37 What this means in short is that even if the court determines that your client’s constitutional rights were violated they may not be entitled to recovery from an officer. These defenses usually take one of two forms, either the defendants claim that the law was not clearly established at the time your rights were violated, or that even though it was, the nature of the law made his/her actions objectively reasonable because the law was not sufficiently particularized. Determining whether someone is entitled to qualified

26 Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981). 27 Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005). 28 Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981). 29 See Van De Kamp v. Goldstein, 129 U.S. 855 (2009). 30 Burns v. Reed, 500 U.S. 478, 486 (1991). 31 Buckley v. Fitzsimmons, 509 U.S. 259, 275-78 (1993) 32 See Burns v. Reed, 500 U.S. 478, 495-96 (1990). 33 See Robison v. Via, 821 F.3d 913, 918 (2d Cir. 1987). 34 See Kalina v. Fletcher, 522 U.S. 118 (1997). 35 Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir.1995). 36 Briscoe v. LaHue, 460 U.S. 325 (1983). Cf. White v. Frank, 855 F.2d 956 (2d Cir. 1988) (May have a malicious prosecution claim against officers for perjured testimony). 37 X-Men Security, Inc. v. Pataki, 196 F.3d 56, 65, 66 (2d Cir 1999); See also Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir 2007).

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immunity requires a fact intensive inquiry and may be difficult to determine at the outset of any case. OFF DUTY & RETIRED OFFICERS Even off duty officers can be held liable under 1983. In order to determine whether an off duty or retired officer is liable the court must examine the nature of the officer's actions as a whole.38 How the plaintiff subjectively reacted to the officer's conduct or whether the plaintiff perceived the officer as such is not the subject of the inquiry.39 Liability may attach where an off-duty officer “invokes the real or apparent power of the police department.”40 “Liability also may exist where off-duty police officers perform duties prescribed generally for police officers.”41 Additionally a client can always sue an off duty officer in state court under state tort law regardless of what capacity they were acting in when causing a tort. CORRECTIONS OFFICERS (can be sued but get more protection to use force etc.) Corrections officers can be sued and will only be entitled to qualified immunity. However they do get an extra layer of immunity in the sense that any claims against them for excessive force (the usual claim against them) requires showing that the force was unprovoked, a severe overreaction, reckless, or done with evil intent or deliberate indifference.42 Read section ____ ???? for a better understanding of the liability of correction officers for use of force. NEW YORK CITY (not NYPD or DOCS) The NYPD, DOCS and DOHMH are non-suable entities, and all claims against it will be dismissed.43 However, the City of New York is a suable entity and the appropriate “person” to name in your suit.44 The problem with suing the City of New York under § 1983 is that that you must prove that there was an official police or an unofficial custom that caused your constitutional rights to be violated.45 Even if you win a case based on

38 See Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.1994). 39 See Davis v. Lynbrook Police Dep't., 224 F.Supp.2d 463, 476 (E.D.N.Y.2002); See also Wong v. Yoo, 2009 WL 2568003 ** 11 (E.D.N.Y.,2009); See also Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.1994) ( “Although Davis does not claim to have believed that Curtis was a police officer at this point, Davis' subjective reaction to Curtis' conduct is not relevant to determining whether Curtis was acting under color of state law.”). 40 Pitchell, 13 F.3d at 548. 41 Id. 42 See Johnson, 481 F.2d at 1029. See also Arroyo v. Schaefer, 548 F.2d at 49. 43 See N.Y. City Charter Ch. 17 § 396 (2009) See also Hyde v. Ar- resting Officer Caputo, No. 98 Civ. 6722, 2001 WL 521699, at *2 (E.D.N.Y. May 11, 2001); Morris v. New York City Police Department, No. 98 Civ. 6607, 1999 WL 1201732, at *3 (S.D.N.Y. Dec. 14, 1999); Bailey v. New York City Police Department, 910 F.Supp. 116, 117 (E.D.N.Y.1996). Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997). Johnson v. New York City Dept. of Health, 06CIV13699BSJFM, 2008 WL 5378124 (S.D.N.Y. Dec. 22, 2008) 44 New York City Charter Ch. 17 § 396. 45 See Monell v. Dept. of Social Service, 436 U.S. 658 (1978).

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municipal liability under § 1983 you will not be entitled to punitive damages.46 The one way to get around the problems of municipal liability is including state tort claims in your suit. In order to do that you must file a Notice of Claim within 90 days of the occurrence. (See sections ____). DEPARTMENT OF HEALTH AND MENTAL HYGENE Rikers Island and other pretrial detention centers are operated by the Department of Health and Mental Hygene(DOHMH). Unlike DOCS the DOHMH may be named as a party to a suit.47 Note that DOHMH contracts with at least one private company, Prison Health Services, Inc., to provide health services to prisoners your client should also be suing any private companies associated with their injuries. This corporation and others change and are often incorporated out of state. They have also been called P.H.S. Correctional Healthcare, and P.H.S. Medical Services P.C. You may have to do significant research to discover who exactly performed medical services or lack thereof and determine where they are based.

WHAT CAN YOU GET Injunctions xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

46 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261 (1981). 47 N.Y. City Charter ch. 22 § 564. Johnson v. New York City Dept. of Health, 06CIV13699BSJFM, 2008 WL 5378124 (S.D.N.Y. Dec. 22, 2008).

Damages xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The Son of Sam Laws xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Declaratory Relief xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

STEPS IN A CIVIL SUIT FROM FILING A NOTICE OF CLAIM TO TRIAL The following section is intended to provide a rough linear outline of a case. It does not contain all of the information necessary to navigate each step but instead provides only a quick description of what each entails and reference to the applicable section of the manual. Make this section short and simple most of the information is contained in other parts of the manual.

1. Filing a Notice of Claim: The notice of claim is a piece of paper filed with the city putting them on notice of what your claims are and when and where they occurred. This should include very little information and must be filed within 90 days of the misconduct. See section…

2. The 50-h Hearing: The 50-h hearing is similar to a deposition and your statements will be transcribed and sworn to by you. A private attorney contracted by the city will ask you questions regarding your claim. For more information on 50-h hearings read the section entitled “Notice of Claim & the 50-h Hearing.”

3. Filing the lawsuit: Within the time listed in the statute of limitations section you must file a complaint against the city in federal court. When you file a lawsuit with the Southern or Eastern District Court you will have to plead sufficient facts to make out a claim. This means that you must include a factual recitation of the incident. In federal district court this is sworn to by you or your attorney.

4. IFP application 5. Service of process 6. IFP and 12b6 dismissals 7. Discovery: Discovery is the process of getting and giving information to the city.

Generally a discovery schedule is set at the outset of the federal suit. Discovery in federal civil suits is supposed to be broad and generally consists of: 1) Rule 26 Disclosures; 2) Interrogatories; 3) Request for the Production of Documents; and 4) Depositions.

a. Rule 26 disclosures: These require both sides to provide: (i)The name and, if known, the address and telephone number of each individual likely

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to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii)A copy – or description by category and location – of all documents, electrically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii)A computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) For inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

b. Interrogatories: These require both sides to answer written questions regarding the facts of the case. While objections are common and can be made, the rules of discovery are liberal.48

c. Request for the Production of Documents: Requests for the production of documents like interrogatories must be made and complied with by both parties and are subject to the liberal discovery rules of the FRCP. Generally the police and city have more relevant documents to turn over than your client and there is little to fear from this area of discovery.

d. Depositions: Depositions are done outside the courtroom and will generally include your client’s civil attorney, an attorney or two for corporation counsel and the witness being deposed. They will be recorded by may be recorded by audio, audiovisual, or stenographic means.49 They are generally subject to the rules of evidence and the civil attorney may make objections, which will be noted on the record.50 However, the examination will proceed regardless of objections and the attorney may only instruct a deponent not to answer when necessary to preserve a privilege, or to enforce a limitation ordered by the court.51 Finally the witness testifying may within 30 days correct any perceived errors in their testimony.52

8. Rule 56 summary judgment motions 9. Trial: Federal Civil cases move fairly rapidly and it is not unheard of that the civil

case could be set for trial before the criminal case. However, state court cases are notoriously slow. They are in fact so slow that the city does not even assign one attorney to the case because they are often not employed by the city long enough to see the case through.

48 See discussion above on discovery. 49 Fed.R.Civ.P. 30(b)(3). 50 Fed.R.Civ.P. 30(c)(1)&(2). 51 Id. 52 Fed.R.Civ.P. 30(e).

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COMMON CLAIMS RELATED TO POLICE MISCONDUCT (NYPD) This section was designed to provide you with an idea of the most common causes of action in police misconduct suits. Federal courts have jurisdiction to bring both federal causes of action under the constitution and claims based on state tort law.53 These claims often overlap and share the same elements. Some federal causes of action like malicious prosecution derive their elements from state tort law. There are some claims, like first amendment claims, based entirely on federal law, and others like assault and battery, based entirely in state law. There are many advantages to bringing state torts not the least of which is the availability of respondeate superior. This section should provide you with basic knowledge of the most common claims related to police misconduct. False Arrest this whole section will need to be fixed eventually but is sufficient for now- I have materials in the PD’s guide to civil suits. An action for false arrest and false imprisonment may be brought under § 1983 for violation of the Fourth Amendment’s Reasonable Search and Seizure Clause, and the Fourteenth Amendment’s Due Process Clause. A § 1983 claim for false arrest is the same as a claim for false arrest under New York law.54 These claims are always brought together and are essentially the same in that they share the same elements. However, false arrest is concerned with the moment of arrest and false imprisonment focuses on the unlawful detention following arrest. Thus both must be brought to obtain full damages. To state a claim for false arrest under § 1983 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.”55 In the case of indigent defense counsel, your client has already been arrested by the time you meet them at arraignments, and the first three elements of a false arrest/imprisonment claim will be satisfied. Therefore, the issue will be whether the confinement was privileged. Whether the confinement was not otherwise privileged rests on a determination of the existence of probable cause at the time of the arrest. Probable Cause is said to exist where the facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being

53 28 U.S.C. § 1367. 54 Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995); Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir.1992); Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991). 55 Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994).

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committed.56 It is an objective standard, therefore, the officer’s subjective reason for making the arrest does not have to be the criminal offense which the known facts provide probable cause. Thus, a warrantless arrest in a public place does not violate the Fourth Amendment so long as probable cause to arrest the suspect exists for some crime, if not the crime articulated by the arresting officer. 57 Unlawful Searches/Seizures

Searches and seizures conducted in violation of the Fourth and Fourteenth Amendments are actionable under the Civil Rights Acts.58 An arrest violates the Fourth and Fourteenth Amendments when they are conducted without a warrant and without probable cause. Thus when a seizure amounts to an arrest the analysis for searches is the same as that described in the preceding section. However, in addition to suits for unlawful arrests defendants may sue for an unlawful searches and seizures that do not rise to the level of arrest.59 These suits often arise where police enter a home without a warrant, destroy property and disrupt families.60

SearchesPursuanttoaWarrantLike arrests, searches conducted pursuant to a warrant are entitled to “great

deference” from the reviewing court and will give rise to a cause of action where: 1) the lack of probable cause was so apparent that the officer should have known it was absent61 or 2) the officer knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause.62 Furthermore there may be a cause of action under the fourth amendment where a warrant is stale63, procedurally flawed64, improperly executed (beyond the scope or force used is inappropriate), or fails to adequately describe the location65 to be searched or the items to be seized. 56 Draper v. United States, 358 U.S. 307, 313 (1959). 57 Devenpeck v Alford, 543 U.S. 146 (2004). 58 Monroe v. Pape, 365 U.S., 167 (1961). 59 See Id. 60 See Dockery, 73 F.Supp.2d at 232. 61 See U.S. v. Leon, 464 U.S. 889 (1983). See also Malley v. Briggs, 475 U.S. 335 (1986). 62 Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (omission in warrant affidavit that suspect had not resided in mother's home for seven years was fatal to probable cause to search her home and created a cause of action under § 1983 despite a magistrate’s signature); See also Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994); Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.1991); U.S. v. Leon, 464 U.S. 889 (1983). 63 See United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990) (an 18-month delay between information provided by informants and the application for a wiretap did not make the information too stale to be relied upon where the defendant and informants had made statements about an ongoing marijuana distribution operation) 64 United States v. Smith, 9 F.3d 1007, 1013 (2d Cir. 1993) (federal constitutional requirements and not state law govern); Frazier v. Roberts, 441 F.2d 1224, 1228 (8th Cir. 1971) (A bare unsworn assertion is not sufficient). 65 See United States v. Williams, 69 F. App'x. 494, 495-96 (2d Cir. 2003) (“[i]t is enough if the description is such that the officer[s] armed with a search warrant can with reasonable effort ascertain and identify the place intended… Even a warrant containing “partial misdescriptions of the place to be searched” is

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If the police have a warrant founded on probable cause, they may enter the home of a suspect to make an arrest, when there is reason to believe the suspect is within.66 However, police may not enter the home of a suspect to make a criminal arrest on the purported authority of an administrative warrant.67

StripSearches“A visual body inspection may be conducted if the police have a factual basis supporting a reasonable suspicion that the arrestee has evidence concealed inside a body cavity and the search is conducted in a reasonable manner. If the visual inspection reveals the presence of a suspicious object, the police must obtain a warrant authorizing the object's removal unless there are exigent circumstances.” People v. Hall, 10 N.Y.3d 303, 305 (2008). “Reasonable suspicion could be supported by consideration of ‘the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest’” Id. at 308. However “visual cavity inspections and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests or permitted under a police department's blanket policy that subjects persons suspected of certain crimes to these procedures.” Id. at 311. In addition, the reasonableness of the manner in which the search is conducted should be evaluated by reference to where, how and by whom the inspection occurred (e.g., usually in a private location,8 by a person of the same gender and without causing the arrestee to suffer further undue humiliation). Id. Public strip searches are patently unconstitutional unless there are extraordinary circumstances (ie necessary to save the life of the arrestee). Id footnote 8. In Hall reasonable suspicion was found where officers saw the defendant engage in a hand to hand where he took money and disappeared into a bodega for three minutes before returning with the drugs. This indicated the drugs were readily accessible to the defendant. Additionally an officer testified that a “good majority” of arrestees in the neighborhood secreted drugs in their buttocks. Id. at 312. However, the court found that their were no exigent circumstances justifying a manual search(pulling the plastic bag out of the defendant’s buttocks) without a search warrant. Id. (currently a pending supreme court case on this) This whole section will need to be revamped a little and put into simpler language – it was taken from the PD manual directly where it was unnecessary to get into search & seizure in more detail. Excessive Force The rules and analysis for excessive force claims depend on where in the criminal justice system you were when you were subjected to excessive force. Claims arising in prison are analyzed the 8th amendment cruel and unusual punishment clause.68 Claims sufficient if “the officer executing the warrant could ascertain and identify the target of the search with no reasonable probability of searching another premises in error… Warrants have been upheld despite ‘technical error,’ such as an incorrect street address, when the possibility of actual error is eliminated by other information, ... [including] knowledge of the executing agent derived from personal surveillance of the location to be searched.” citing Velardi v. Walsh, 40 F.3d 569, 576 (2d Cir.1994).) 66 Payton v. New York, 445 U.S. 573 (1980). 67 Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996); See Abel v. U.S., 362 U.S. 217, 225-226. 68 See Graham v. Connor, 490 U.S. 386 (1989).

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arising from excessive force to pretrial detainees (post-arraignment but pre-trial) are governed by the 5th & 14th substantive due process clauses.69 The fourth amendment protects your right to be free from excessive force during street encounters, arrests, and any other time prior to arraignment.70 71 When determining if the force used against you is sufficient to give you a right to sue under § 1983 a court will look at whether the officer's use of force objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.72 This is similar to how the court examines claims of wrongful arrest in that it requires determining what a reasonable officer would have done considering what they knew at the time of the arrest or use of force.73 This reasonableness inquiry does not consider whether the police officer had some sinister motive to use force.74 Proof that an officer had motive to violate your rights will likely help your case at trial, but you cannot rely on it in your complaint will cause the court to dismiss your case. Generally excessive force cases present two issues you will need to consider the significance of the injury and the reasonableness of the force used (ie. reasonableness of the seizure). 1. Significance of the injury: The force used by the officers must be more than de minimis to rise to the level of a constitutional violation as a matter of law.75 However, your injury need not have been a permanent or “severe injury to maintain a claim that the use of force was objectively unreasonable under the Fourth Amendment.”76 This means you will need to state in your complaint and demonstrate through discovery that you suffered some injury. Examples of more than de minimus injury include bruising, swelling, pain, dizziness.77 However, some courts have stated that pain, and bruising were de minimus.78

69 See Id.; See also Johnson v. Glick, 481 F.2d 1028, cert. denied, 414 U.S. 1033 (1973) (in determining whether force used against a pretrial detainee was excessive the courts will look at the following four factors: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) “[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.”) 70 See Id. 71 The right to be free of excessive force in constitutional terms is a 4th amendment right to be free from unreasonable seizures. See Id. at 394. You should also know that post arraignment excessive force is analyzed under the 8th amendment and focuses on different issues of fact. Id. 72 Id. at 397. (In order to sustain a claim of excessive force under the 4th amendment a plaintiff must demonstrate 1) that they were seized and 2) that the seizure was unreasonable). See also section ____ infra on qualified immunity. 73 Id. at 396. 74 Id. at 397. 75 See. Landy v. Irrizarry, 884 F. Supp. 788, 799 (S.D.N.Y. 1995). See also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993). 76 Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004); Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987) See also Yang Feng Zhao v. City of N.Y., 656 F.Supp.2d 375, 390 (S.D.N.Y.2009); (holding that, to survive a motion for summary judgment, the plaintiff does not need long-term or documented injuries). See also Li v. Aponte, No. 05-CV-6237, 2008 WL 4308127, at *9-*10 (S.D.N.Y. 2008). 77 See Id. See also Griffin v. Crippen, 193 F.3d 89, 91-92 (2d Cir.1999). 78 See Williams v. City of N.Y., No. 05 Civ. 10230, 2007 WL 2214390, at *11 (S.D.N.Y. July 26, 2007). See also Cunningham v. Rodriguez, No. 01 Civ. 1123, 2002 WL 31654960, at *5 (S.D.N.Y. Nov. 22, 2002).

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Even where the injuries are more than de minimus, the court will compare the injuries to the urgency and danger of the situation.79 In other words the more dangerous and serious the situation is the more likely the courts are to find your injuries to be acceptable. If you are uncertain about whether you sustained sufficient injury research other cases on this topic and compare yours. You can start by looking at some of the cases cited in this section. However, simply put, the question of injury boils down to this, the greater your injuries are the less likely it is that your case will be dismissed. 2. Reasonableness of an officer’s force: In order to determine what a reasonable officer would have done the courts will examine 1) “the severity of the crime at issue,” 2) “whether the suspect poses an immediate threat to the safety of the officers,” 3) “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”80 Additionally, courts will analyze the circumstances leading to a situation involving force in light of them often being “tense, uncertain, and rapidly evolving.”81 What this means is that officers are often justified in the eyes of the law for force that was in retrospect clearly excessive. For example, in one Fifth Circuit case, the court found a police officer was justified in shooting an unarmed boy.82 The court explained that this was not unreasonable because the boys were suspects in a bank robbery and had just led officers in high-speed chase.83 Furthermore, the boy repeatedly reached down below police officer's sight line in defiance of police officer's orders to raise his hands.84 Therefore, the court explained, the officer could reasonably have believed that passenger had retrieved gun and was about to shoot, even though vehicle was totally surrounded by nine police officers and passenger was actually unarmed.85 In another case the Fourth Circuit held that a police officer was justified in shooting an unarmed man because another police officer shouted, “the man has a gun.”86 What all of this means is that in your complaint you want to include facts that make the officer’s use of force clearly unreasonable. You may need to include facts that make it apparent the situation was not urgent. If your case goes to trial you may need to have witnesses explain that counter the police officer’s testimonies. Police officers are experienced in testifying in a way that maximizes the sense of urgency of any given situation. This is something you will need to plan addressing from the very beginning of your suit. For an additional explanation on objective reasonableness see the section on qualified immunity. Section _____ Infra. Section ______ on Failure to Intervene.

79 Johnson v. Police Officer # 17969, No. 99 Civ. 3964, 2000 WL 1877090, at *5 (S.D.N.Y. Dec.27, 2000). 80 Connor, 490 U.S. at 396. 81 Id. at 397. 82 Reese v. Anderson, 926 F.2d 494 (5th Circuit 1991). 83 Id. at 496. 84 Id. at 497. 85 Id. at 501. 86 McLenagan v. Karnes, 27 F.3d 1002, 1006-07 (4th Cir.1994).

Malicious Prosecution Malicious prosecution claims are complex and misleading on their face since they are rarely brought against prosecutors. Any malicious prosecution claims against an assistant district attorney will likely be dismissed because prosecutors enjoy absolute immunity for all acts other than those that are administrative or investigative in nature.87 However, you can claim malicious prosecution against a police officer.88 Despite the fact that these claims are very complicated and generally cannot be brought against prosecutors, for litigation purposes they provide some important strategic advantages over other causes of action. A claim for malicious prosecution under § 1983 is governed by state law.89 To establish malicious prosecution under New York law, a plaintiff must show “(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiff's favor.”90 1. Initiation Or Continuation Of The Criminal Prosecution “[T]here is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding.”91 However, a plaintiff may overcome the presumption by “demonstrating that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.”92 “For laypersons who are defendants in cases of malicious prosecution, courts have held that simply reporting a crime to the police and serving as a witness does not meet the first element of initiating a criminal proceeding.”93 However, “[w]here a party is responsible for providing false information or manufactured evidence that influences a decision whether to prosecute, he may be held liable for malicious prosecution.”94 Applying these principles to claims against police officers, courts have found a triable issue of fact as to the initiation element where the defendant-officer brought formal charges and had the person arraigned, filled out complaining and corroborating affidavits, applied for arrest warrants, swore to and signed a felony complaint, or created false information and forwarded it to prosecutors.95

87 Imbler v. Pachman, 424 U.S. 409 (1976). 88 White v. Frank, 855 F.2d 956 (2d Cir. 1988). See also, Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092 (1986). 89 See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002). 90 Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir.1999). Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir.1997) 91 See Brome v. City of New York, No. 02 Civ. 7184, 2004 WL 502645, at *5-6 (S.D.N.Y. Mar. 15, 2004). 92 See Espada v. Schneider, 522 F.Supp.2d 544, 553 (S.D.N.Y.2007). 93 Llerando-Phipps v. City of N.Y., 390 F.Supp.2d 372, 382 (S.D.N.Y.2005) (citing Rohman v. N.Y. City Transit Auth., 215 F.3d 208, 217 (2d Cir.2000)). 94 Chimurenga v. City of N.Y., 45 F.Supp.2d 337, 343 (S.D.N.Y.1999). 95 Id. See also Malley, 475 U.S. at 335. White, 855 F.2d at 956.

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2. Lack of Probable Cause The probable cause at issue in a malicious prosecution claim is “probable cause to believe that [plaintiff] could be successfully prosecuted.”96 If a plaintiff can show that there is a material issue of fact as to the existence of probable cause to make an arrest, then a material issue of fact exists as to whether there was probable cause to prosecute.97 Conversely, if probable cause exists at the time of arrest, it is presumed to continue to the time of prosecution unless undermined by new exculpatory facts.98 Unlike claims involving false arrest a determination of probable cause as to one of several charges does not preclude a claim of malicious prosecution.99 Therefore a probable cause determination may have to be made as to multiple charges. 3. Malice “Under New York law, malice does not have to be actual spite or hatred, but means only ‘that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.’ ”100 “In most cases, the lack of probable cause-while not dispositive-‘tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.’ ”101

Other facts that may establish malice include things like a police officer laughing at or mocking an individual complaining of constitutional violations.102 4. Favorable Termination This element has two parts: first the termination must be final and second it must be favorable.103 Under current New York law the termination of your criminal proceedings is favorable where it is, “not inconsistent with innocence.”104 Despite the “not inconsistent with innocence” rule an “adjournment in contemplation of dismissal” (ACD) will generally preclude claims of malicious prosecution.105 Additionally, cases dismissed for lack of jurisdiction or facial insufficiency of the complaint your claim of malicious prosecution could be barred as not being final.106 In order to proceed with a claim for malicious prosecution on either of these instances you may need to prove that a prosecution was 96 Posr v. Court Officer Shield # 207, 180 F.3d 409, 417 (2d Cir.1999). 97 Id. 98 See Kinzer v. Jackson, 316 F.3d 139, 143-44 (2d Cir.2003). 99 Posr v. Doherty, 944 F2d 91, 100 (2d Cir. 1991). 100 Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir.1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 406 N.Y.S.2d 443, 377 N.E.2d 975, 976 (1978)). 101 Id. (quoting Conkey v. State, 74 A.D.2d 998, 427 N.Y.S.2d 330, 332 (4th Dep't 1980)). 102 See Wong v. Yoo, 2009 WL 2568003 (E.D.N.Y. 2009). 103 See Smith-Hunter v. Harvey, 95 N.Y.2d 191,198 (N.Y. 2000). 104 Id. 105 Hock v. Kline, 304 A.D.2d 477 (1st Dept. 2003). Molina v. City of New York, 28 A.D.3d 372 (1st Dept. 2006). Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980). See also Weyand v. Okst, 101 F3d 845, 853 (2d Cir 1996); (No bar where there is no determination as to guilt). 106 Smith-Hunter v. Harvey, 95 N.Y.2d 191,198 (N.Y. 2000).

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formally dropped by the entry of a nolle prosequi or that it cannot be resurrected.107 However, where your case was dismissed on speedy trial grounds you are not barred from claims of malicious prosecution.108 Similarly, dismissal based on “the interest of justice” (commonly called “Clayton dismissal”) does not necessarily bar a claim of malicious prosecution.109 Whether or not a claim is barred mainly on the the reasons for the dismissal.110 Advantages of a Malicious Prosecution Claim The most advantageous aspect of malicious prosecution claims from the point of view of the plaintiff in New York is that you can still win malicious prosecution claim where you were convicted on one charge and not another. For, example if your was convicted of disorderly conduct, but not on a separate charge of resisting arrest the may still be able to sue for malicious prosecution on the resisting arrest charge.111 Additionally, for the same reasons, a plaintiff can proceed on a malicious prosecution claim even where they had a warrant at the time of arrest. However, if the charges were dropped as part of a plea agreement you may not be able to sue.112 Additionally this may be one of the few causes of action that allows you to hold police officers accountable for perjury.113 Failure to Investigate There is generally no affirmative duty on the part of police officers to investigate.114 This is especially true where police officers are relying on facts given to them by complaining witnesses.115 However, in some situations the police have a minimal duty to investigate information given to them by others where the victim or eyewitness’s veracity is

107 Id. 108 Id. at 191.(Set a new standard that in a dismissal must be 1) final and 2) not inconsistent with innocence.) 109 Cantalino v. Danner, 754 N.E.2d 164 (N.Y. 2001). Cf. Hygh v. Jacobs, 961 F.2d 359, 369 (2d Cir. 1992). Cf. Smith-Hunter v. Harvey, 95 N.Y.2d 191,198 (N.Y. 2000). Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989). 110 See Cantalino v. Danner, 754 N.E.2d 164 (N.Y. 2001). 111 Janetka v. Dabe, 892 F.2d 187, (2d Cir. 1989). See also Cooperstien v. Procida, No. 00 cv 2642 2001 WL 715831 at 4, (E.D.N.Y. 2001). (In order to prevail on a qualified immunity defense for malicious prosecution the defense, “must prove that there was arguable probable cause for each charge.”) See also Posr v. Doherty, 944 F2d 91, 100 (2d Cir. 1991). 112 See Smith-Hunter v. Harvey, 95 N.Y.2d 191,197 (N.Y. 2000). Okoi v. El Al Israel Airlines, 2010 WL 1980263 (2d Cir 2010). Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004). 113 See Malley, 475 U.S. at 335. White, 855 F.2d at 956. 114 “[T]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause,” and an officer's failure to investigate an arrestee's protestations of innocence generally does not vitiate probable cause. Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006); Citing United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985). See also Coons v. Cassabella, 284 F.3d 437 (2d. Cir. 2002); (police officers are “not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.”). See also, Martinez v. City of New York, 340 F. App'x. 700, 701-702 (2d Cir. 2009) (holding NYPD has no duty to fingerprint individuals arrested on a warrant after protests of misidentification). 115 Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001). Minott v. City of New York, 203 A.D.2d 265, 609 N.Y.S.2d 334 (2 Dept. 1994).

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questionable.116 You could also potentially sue where the officer reasonably should have known an identification was incorrect based on prior inconsistent description given by the witness.117 However, if a criminal proceeding was lawfully commenced against you, based on the statements of a private individual who lied to police, you may sue that individual for malicious prosecution and other state torts.118 However, this will probably have to be done in state court because without some constitutional violation by an official acting “under the color of state law” there is no federal question jurisdiction.119 Additionally, where the police officers fail to investigate readily available information it may effect the courts determination as to the existence of probable cause for the arrest and whether defendants are entitled to qualified immunity.120 For example, in Williams the district court determined that there was no probable cause for the arrest the defendant for trespassing even though his ID said he did not live in the building, because, “Given Williams's claim that he had permission to be in the building, an inference that he was trespassing was not warranted without some further investigation, even in light of the possible drug-related activity the officers believed they had observed. The officers did not ask any follow-up questions or make any further efforts to ascertain the facts.”121 Furthermore, the Second Circuit has recognized a Fourth Amendment right “not to suffer prolonged detention from an officer's refusal to investigate available exculpatory evidence.”122 In Russo the court indicated that such claims are actionable where they “shock the conscience.”123 In other words the failure to investigate must rise to the level of intentional violation of, or deliberate indifference to, the plaintiff’s constitutional rights.124 Russo was held for two hundred and seventeen days after his arrest for armed

116 Cortez v. McCauley, 438 F.3d 980, 990 (10th Cir). (No qualified immunity was granted where there was a failure to interview readily available witnesses and examine physical evidence before arrestee based on an uncorroborated victim statement). Radavzki v. City of Olmstead Falls, 395 F.3d 291, 304 (6th Cir 2005). See also Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (“It is well-established that a law enforcement official has probable cause to arrest if he received his information from ... the putative victim or eyewitness, unless the circumstances raise doubt as to the person's veracity.”). 117 See e.g. Smith v. Nassau County, 34 N.Y.2d 18, 24 (1974) (5 to 6 inch discrepancy in height, an 8 to 18 year discrepancy in age, and discrepancies as to build and possibly as to the use of eyeglasses). 118 See Smith-Hunter v. Harvey, 95 N.Y.2d 191 (N.Y. 2000). 119 See Monroe v. Pape, 365 U.S. 167 (1961). See also 28 U.S.C. § 1983, 1343(3) & 1331. 120 See Williams v. City of New York, 2009 WL 3254465 (E.D.N.Y.). See also Carlton v. Nassau County Police Dept., 306 A.D.2d 365, 761 N.Y.S.2d 98 (2 Dept. 2003); (no probable cause to arrest for theft of services where the defendant left his business card with restaurant owner after a dispute over a bill). Mason v. City of New York, 949 F.Supp. 1068 (S.D.N.Y.1996) (Plaintiff was seized and handcuffed by bounty hunters who mistook her for a woman who had jumped bail in Alabama. For several hours she was kept handcuffed to a chair by Port Authority Police until the plane arrived. Port Authority Police were not immune from charge of false imprisonment because they had a duty to take reasonable steps to verify her identity.) 121 Id. at *6. 122 Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.2007). See also Baker v. McCollan, 443 U.S. 137 (1979). 123 Id. at 210. 124 Id. at 210.

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robbery.125 During that time, despite the Russo’s claims of innocence and insistence that someone review the video of the robbery, detectives failed to review the tape.126 Upon viewing the tape, two hundred and seventeen days after Russo’s arrest, the prosecution dropped the case against him.127 However, the court was clear that their holding may not apply were the defendant to be held for a shorter period of time.128 Deliberate Indifference to Medical Needs The Due Process Clause of the Fourteenth Amendment protects arrestees from deliberate indifference to serious medical needs.129 Claims for deliberate indifference to a medical needs have both an objective and a subjective element: (1) objectively, a deprivation must be "sufficiently serious," i.e., "a deprivation that presents a condition of urgency, one that may produce death, degeneration, or extreme pain[;]" and (2) subjectively, the defendant officials must act with a reckless indifference, "that is, defendants were aware of plaintiff's serious medical needs and consciously disregarded a substantial risk of serious harm."130 1. Objectively Serious Medical Conditions In order to survive summary judgment a plaintiff must demonstrate that they suffer or were suffering from an objectively serious medical condition.131 Police failure to treat a detainee after beating them or subjecting them to excessive force does not automatically give rise to a claim of deliberate indifference unless the injury is sufficiently serious.132 Generally an objectively serious medical condition is one that presents a “condition of urgency, one that may produce death, degeneration, or extreme pain.”133 Many chronic medical conditions are per se objectively serious. For example diabetes is a serious medical condition requiring medical attention.134 Other conditions that can be

125 Id. at 199. 126 Id. at 205-206. 127 Id. at 199. 128 Id. at 209 129 Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996). See also Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). 130 See Dzwonczyk v. Syracuse City Police Dep't, 710 F. Supp. 2d 248 2008 U.S. Dist. LEXIS 103315, at 38-39 (internal quotation marks and citations omitted); see also Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). 131 Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). 132 See, e.g., Rodriguez v. Mercado, No. 00 CIV. 8588 JSRFM, 2002 WL 1997885 at *8 (S.D.N.Y. Aug. 28, 2002). 133 Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). 134 Beatty v. Davidson, 713 F. Supp. 2d 167, 174 (W.D.N.Y. 2010); See Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996) (diabetic denied full and appropriate medical attention despite pleas for assistance and physical manifestations of insulin shock); Thomas v. Tisch, 2009 U.S. Dist. LEXIS 19350 (E.D.N.Y. 2009) (diabetic and epileptic remained in a holding pen on Rikers Island for twenty (20) hours without receiving any of his medication); Beatty v. Davidson, 713 F.Supp.2d 167 (W.D.N.Y. 2010) (“This Court need not linger on this point: diabetes is a sufficiently serious medical condition to meet the objective prong” citing Butler v. Smith, 07-CV-00431, 2008 WL 4186338, at *4 n. 6 (N.D.N.Y. Sept. 10, 2008); Shabazz v. Lee,

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objectively serious are mental illness and psychiatric or psychological problems requiring immediate treatment135, ruptured patellar tendon136, and loss of consciousness137 to name a few. On the other hand injury from mace or pepper spray in the eyes has been held in some cases not sufficiently serious.138 2. The Police Were Aware of and Acted with Deliberate Indifference Towards Serious Medical Needs In order to establish deliberate indifference, a plaintiff must show “something more than mere negligence”; but proof of intent is not required, for the deliberate-indifference standard “is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”139 This state of mind equates to recklessness as it is referred to in the criminal context.140 This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.141 An officer need not know of the exact nature of the medical condition.142 However, even where injury is apparent and serious your client must indicate they are in need of treatment.143 One major problem in the city is that NYPD tells clients that if they request treatment they will spend an extended amount of time in jail, and promising them they will get out in a few hours if they waive treatment. Then they have a client sign paperwork indicating that they do not require treatment. If you have a client that was injured, ask them about this, make a note in the file and on any internal databases, and put it on the record that the client is suffering from injuries or illnesses, requested medical attention, and was told if they were treated they would spend more time in jail. The analysis for deliberate indifference is a reasonableness inquiry and where police do provide medical treatment after a relatively short period of time the courts have determined there can be no deliberate indifference.144 Obviously the reasonableness of

03-CV-1520, 2007 WL 119429, at *6 (N.D.N.Y. Jan. 10, 2007); Johnson v. Harris, 479 F.Supp. 333, 337 (S.D.N.Y.1979). 135 See Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir 1989). 136 See Mills v. Fenger, 216 Fed.Appx. 7 (2d Cir. 2006). 137 Osuna v. City of New York, 08 Civ. 4759, 2009 U.S. Dist. LEXIS 66282, at *14, 2009 WL 2356424 (S.D.N.Y. July 28, 2009). 138 Strassner v. O'Flynn, Not Reported in F.Supp.2d, 2006 WL 839411 (W.D.N.Y. 2006). Universal Calvary Church v. City of New York, Not Reported in F.Supp.2d, 2000 WL 1538019 (S.D.N.Y. 2000). 139 Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996). See also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). 140 Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006). 141 Id. See also Farmer v. Brennan, 511 U.S. 825, 837 (1994). 142 See, e.g., Mills v. Fenger, 216 Fed.Appx. 7 (2d Cir. 2006). 143 See, e.g., Bewry v. Hopkins, 125 F.3d 843 (2d Cir 1997). 144 See Shankle v. Andreone, 2009 WL 3111761 (E.D.N.Y.) (defendant treated within 25-60 minutes). Thompson v. Delvalle, Slip Copy, 2010 WL 2505638 (S.D.N.Y.,2010). (Treatment following less than one hour after plaintiff suffered injuries does not show deliberate indifference). Osuna v. City of New York, 08 Civ. 4759, 2009 U.S. Dist. LEXIS 66282, at *15, 2009 WL 2356424 (S.D.N.Y. July 28, 2009) (holding that a 75-minute delay, in which plaintiff was transported to a police precinct before being transported to the hospital, did not rise to the level of a constitutional violation); Universal Calvary Church v. City of New York, 96 Civ. 9606, 2000 U.S. Dist. LEXIS 15153, at *35 (S.D.N.Y. Oct. 13, 2000) (finding that plaintiff

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the speed of the response times depend on the gravity of the injury. In addition to the response time, other issues arise when some (insufficient) medical treatment is provided. Courts have in many instances held that although the treatment was insufficient, deliberate indifference is lacking where the officers take reasonable steps to provide treatment.145 Failure to Intervene Failure to intervene is not a cause of action under 1983. Instead, it is a way to hold an officer liable for the conduct of their fellow officers. A police officer “has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.”146 “An officer who is present and fails to intervene to prevent the other law officers from infringing on the constitutional rights of citizens is liable under § 1983 if that officer had reason to know 1) that excessive force was being used 2) that a citizen has been unjustifiably arrested, or 3) that any constitutional violation has been committed by law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.”147 So, if your client has a claim against one officer they may have a claim against all other officers present at the time of the incident. Wrongful Convictions (Sue NYS under 8-b- court of claims) This section needs to be researched thoroughly and should include discussion 440/post conviction motions as well as the court of claims procedures. These are very complicated and the court of claims has very strict procedural rules. First Amendment Retaliation This section needs to be supplemented with a discussion about 1st amendment chilling where no arrest occurred. The majority of first amendment lawsuits are brought under § 1983. To prevail on a first amendment retaliation claim in the Second Circuit, plaintiff must prove: (1) He/she has an interest protected by the First Amendment; (2) that the defendants' actions were motivated or substantially caused by his/her exercise of that right(ie lack of probable cause148); and (3) that the defendants' actions effectively chilled the exercise of his/her First Amendment right.149 1) Interests Protected By The First Amendment

failed to state a claim for deliberate indifference where delay was no longer than two hours); Rivera v. New York, 96 Civ. 7697, 1999 U.S. Dist. LEXIS 129, 1999 WL 13240 (S.D.N.Y. Jan. 12, 1999). 145 See Kelsey v. City of New York, 306 Fed.Appx. 700 (2d Cir. 2009). 146 O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). 147 Yang v. Hardin, 37 F.3d 282 (7th cir 1994). 148 See Hartman v. Moore, 547 U.S. 250 (2006) 149 Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998). See also Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001).

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The first amendment protects speech150, press151, religion152, assembly153, association154, and access to the courts.155 In general this element simply requires identifying the type of speech activity your client was engaging in. For example, speech criticizing police action is acceptable protected speech and generally does not fall within the “fighting words” exception to protected speech.156 Additionally, any arrest based simply on the defendant’s words to an officer is often prone to a claim of false arrest.157 Political protesters are often engaging in several protected activities at the same time. The freedom of assembly and association means that the police may not interfere with lawful demonstrations unless there is a “clear and present danger” of riot, imminent violence, interference with traffic or other immediate threat to public safety.158 “Neither energetic, even raucous, protesters who annoy or anger audiences, nor demonstrations that slow traffic or inconvenience pedestrians, justify police stopping or interrupting a public protest.”159 Furthermore, “[t]he right to associate [and assembly] does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.”160 2) Causation To show causation for claim of first amendment retaliatory prosecution against a law enforcement officer where the retaliation is in the form of a criminal charge, a plaintiff must plead and demonstrate: 1) retaliatory motive, and 2) an absence of probable cause.161 For this reason there is often very little difference between a first amendment retaliation and a false arrest claim. 150 Hustler Magazine v. Falwell, 485 U.S. 46, 51, (1988). 151 Lovell v. City of Griffin, 303 U.S. 444 (1938) 152 Sherbert v. Verner, 374 U.S. 398 (1963) 153 De Jonge v. Oregon, 299 U.S. 353, 364, (1937) See Boos v. Barry, 485 U.S. 312, 318, (1988); (calling organized political protest “classically political speech” which “operates at the core of the First Amendment”). 154 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61, (1958) 155 See Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.1997), cert. denied, 525 U.S. 823, 119 S.Ct. 66, 142 L.Ed.2d 52 (1998). 156 Posr v. Court Officer Shield No. 207, 180 F.3d 409 (2d Cir. 1999); (plaintiff's remark to officer, "one day you're gonna get yours," was protected by First Amendment; court notes that "'fighting words' doctrine is probably 'narrower [in] application in cases involving words addressed to a police officer, because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen,'’). Citing City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). 157 See Posr v. Court Officer Shield No. 207, 180 F.3d 409 (2d Cir. 1999); Spiller v. City of Texas City, Police Dept., 130 F.3d 162 (5th Cir. 1997); (officer not entitled to qualified immunity for arrest of motorist who told him to "move his damn truck"). See Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003); (fact that subject of Terry stop muttered "son of a bitch" during the encounter did not give officer probable cause to arrest him for disorderly conduct). 158 Cantwell v. Connecticut, 310 U.S. 296 308-309 (1940). 159 Jones v. Parmley, 465 F.3d 46, 58 (2d Cir. 2006). Citing Cox I, 379 U.S. at 546-47, 549 n. 12, 85 S.Ct. 453. 160 Jones v. Parmley, 465 F.3d 46, 58 (2d Cir. 2006). Citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). 161 See Hartman v. Moore, 547 U.S. 250 (2006). Compare with Mount Healthy City Sch. Dist. Bd. of Educ.

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Generally demonstrating causation will require looking at the underlying statute and the case law on probable cause. Unfortunately statutes used to prosecute individuals exercising first amendment rights often very broadly written.162 However, there is generally a significant amount of first amendment case law around these statutes and where retaliation is the motivation of the arrest or prosecution police officers allegations often run afoul with the first amendment.163 Because of the probable cause requirement first amendment claims that result in arrest have basically taken the form of false arrest claims that occur when a plaintiff was engaging in conduct protected by the first amendment. 3) The Defendant’s Actions Actual chilled The Plaintiff’s First Amendment Exercise The Second Circuit in contrast with most other circuits requires a plaintiff demonstrate that their First Amendment rights were “actually chilled.”164 Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech.165 NY State Tort Claims As mentioned in other sections you can and should bring supplemental tort claims against the City of New York and any officers, officials or individuals engaging in misconduct.166 The following section includes few of the most common causes of action under state tort law relevant to police misconduct cases. This section will be especially important if you are filling out the notice of claim. In order to preserve your right to relief you must include each claim in the notice of claim. Err on the side of caution. If you think you may have a claim include it.

v. Doyle, 429 U.S. 274, 287, (1977); (Where a plaintiff satisfies burden of showing that his/her conduct is constitutionally protected and is a motivating factor in his/her punishment, the burden then shifts to the defendant to demonstrate by a preponderance of evidence that it would have reached same decision even in absence of protected conduct). 162 See e.g. N.Y. Penal Law § 240.20. See e.g. N.Y. Penal Law § 240.26(1). 163 People v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007) (With respect to Penal Law § 240.20(5), “[s]omething more than a mere inconvenience of pedestrians is required to support the charge” of disorderly conduct); Watts v. U.S., 394 U.S. 705, 707-708 (1969); (With respect to charges involving threatening speech, “the government must prove that the words are a “true threat” and not just “political hyperbole,” contingent on some future occurrence); People v. Smith, 392 N.Y.S.2d 968 (2d Dep't 1977); (Alleged threats must be unequivocal and specific and not based on future contingencies); People v. Dietze, 75 N.Y.2d at 53-54 (NY 1989) (charge dismissed where nothing in the record demonstrated that the defendant's threat “was either serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst”). 164 Compare Davis v. Vill. Park II Realty Co., 578 F.2d 461, 464 (2d Cir.1978), with Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) 165 See Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir.1995) (finding no chilling effect where, after an arrest, the plaintiff continued to publish his newspaper through which he criticized the village government); Spear v. Town of W. Hartford, 954 F.2d 63, 67 (2d Cir.1992) (finding no chilling effect where, after the filing of a lawsuit, the plaintiff continued to write criticizing editorials in the same manner as before the lawsuit). 166 28 U.S.C. § 1367.

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1) Assault & Battery The elements of assault in New York are: 1) the intentional placing of, 2) another person, 3) in apprehension of, 4) imminent harmful or offensive contact.167 The elements of battery are: 1) bodily contact, 2) made with intent, 3) the contact was offensive in nature.168 That a plaintiff consented is considered in determining the offensiveness of the contact.169 2) Negligent Infliction of Emotional Distress The elements of negligent infliction of emotional distress are: 1) a breach of a duty 2) to the plaintiff either a) unreasonably endangering a plaintiff’s physical safety; or b) causing the plaintiff to fear for his or her own safety.170 There is no physical injury requirement.171 There is a three year statute of limitations on these claims.172 3) Intentional Infliction of Emotional Distress The elements of intentional infliction of emotional distress are: 1) intentional or reckless, 2) extreme and outrageous conduct, 3) intended to cause severe emotional distress, 4) forming a nexus between the conduct and the injury, and 5) causing severe emotional distress to another.173 These claims can also be made by family members of your client when they are in the “zone of danger” and witness severe and intentional acts of violence resulting in physical injury to your client.174 There is a one year statute of limitations on these claims.175 4) Trespass on Land The elements of a tort for trespass upon land or property are: 1) interference with, 2) a person’s right to possession of real property either a) by unlawful act or b) a lawful act performed in an unlawful manner.176 5) Trespass to Personal Property/Chattel The elements of a tort for trespass to chattels are: 1) interference with possession, 2) of the property of another, 3) committed intentionally and improperly and 4) damages.177 6) Slander & Libel The elements of libel in New York are: 1) publication of 2) a statement about an individual 3) that is false and 4) defamatory.178 The elements of a tort for slander are: 1) the publication of 2) a defamatory matter 3) heard by a third party.179 167 Tom v. Lenox Hill Hosp., 165 Misc. 2d 313 (N.Y. Sup. Ct. N.Y. Co. 1995). 168 Zgraggen v. Wilsey, 200 A.D.2d 818 (3d Dept 1994). 169 Id. 170 E.B. v Liberations Publ’ns, Inc., 7 A.D.3d 566, 567 (2d Dep’t 2004). 171 Id. 172 Goldstien v. Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821 (2d Dept 2006). 173 Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (N.Y. 1983). 174 Bovsun v. Sanperi, 61 N.Y.2d 219 223-24 (N.Y. 1984). 175 NYCPLR § 215(3). 176 New York State Nat’l Org. for Woman v. Terry, 886 F.2d 1339, 1361 (2d Cir 1989). 177 Ivancic v. Olmstead, 66 N.Y.2d 349, 352 (N.Y. 1985). 178 Klepetko v. Reisman, 41 A.D.3d 551 (2d Dept 2007). 179 Rabushka v. Marks, 256 A.D.2d 562 (2d Dept 1998).

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7) False Arrest The elements for this tort is the same as those under federal law in the Second Circuit. In the case of your client it is an arrest without a warrant or probable cause. 8) False Imprisonment The elements of false imprisonment are: 1) defendant intended to confine the plaintiff 2) the plaintiff was conscious of the confinement 3) the plaintiff did not consent to the confinement 4) the confinement was not privileged.180 This is essentially the same rule as false arrest except that the final element focuses on privilege rather than probable cause. This claim is more appropriate for claims where the arrest was appropriate, but the plaintiff was held when they should have been released. 9) Abuse of Process The elements of abuse of process are 1) defendants used regularly issued process, either civil or criminal 2) intended to do harm without excuse or justification 3) used process in a perverted manner to obtain a collateral objective.181

COMMON CLAIMS RELATED TO CORRECTIONS MISCONDUCT (PRETRIAL DETENTION: DOCS & NYPD CUSTODY) Brutality by officers Claims arising from excessive force to pretrial detainees are governed by the 5th & 14th substantive due process clauses.182 In determining whether force used against a pretrial detainee was excessive the courts will look at the following four factors: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) “[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.”183

Johnson and it’s progeny make clear that reasonableness is not so much of the issue for detainee cases instead the prisoner must allege that the attack was unprovoked or a sever overreaction.184 “There must be present ‘circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of [the guard’s] conduct.’”185 In Johnson, while the plaintiff was being checked into detention, an officer reprimanded him and other men for a claimed failure to follow instructions. “When Johnson endeavored to explain that they were doing only what another officer had told 180Broughton v. State of New York, 37 N.Y.2d 451 (1975). 181 Johnson v. Kings County District Attorney's Office, 308 A.D.2d 278 (2 Dept., 2003). 182 See Id.; See also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973), cert. denied, 414 U.S. 1033 (1973). 183 Id. 184 See Id. at 1029. 185 Arroyo v. Schaefer, 548 F.2d 47, 49 (2d Cir. 1977) (the use of teargas effecting a wing of central booking was not excessive because it was targeted at a dangerous prisoner and was not intended to injure the plaintiffs).

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them to do, the officer then rushed into the holding cell, grabbed him by the collar and struck him twice on the head with something enclosed in the officer's fist, threatened him and detained him in the holding cell for two hours.”186

Deliberate indifference generally (beatings by other inmates) Pretrial detainees can show a violation of substantive due process by meeting the deliberate indifference standard set out in Farmer.187 Thus a prison official may be held liable under the Eighth Amendment only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.188 This is subjective inquiry and that an official should have known of a substantial risk is irrelevant. See Id. Instead you must be able to prove the officer had actual knowledge of the risk to assert a claim of deliberate indifference under the 14th amendment.189 The knowledge prong does not have to be knowledge of a risk of harm created by a specific individual.190 In determining whether reasonable measures were taken to abate the known risk courts will consider, “The adequacy, and thus the reasonableness, of specific measures depends on all the facts and circumstances of a particular case. Where the threat of danger is relatively vague and unsubstantiated, it may be reasonable for prison authorities to take relatively minor steps to avoid the danger. Where the danger is clear and imminent, substantially more may be required to avoid a finding of negligence.”191 Deliberate indifference to Medical Needs The analysis for deliberate indifference to medical need is the same from arrest, to pretrial arraignments, until incarceration.192 These claims have an objective and subjective elements: (1) objectively, a deprivation must be "sufficiently serious," i.e., "a deprivation that presents a condition of urgency, one that may produce death, degeneration, or extreme pain[;]" and (2) subjectively, the defendant officials must act with a reckless indifference, "that is, defendants were aware of plaintiff's serious medical needs and consciously disregarded a substantial risk of serious harm."193 Practically the difference between the pre/post arraignment detention is that some medical concerns are not sufficiently serious where left untreated for a short amount of 186 Johnson, 481 F.2d at 1029-30. 187 Benjamin v. Fraser, 343 F.3d 35 (2d Cir. 2003). 188 Farmer v. Brennan, 511 U.S. 825, 847 (1994). 189 Id. 190 See Farmer, see also Hayes v. New York City Dept. of Correction, 84 F.3d 614, 621 (2d Cir 1996). 191 33 Am. Jur. Proof of Facts 2d 303 (Originally published in 1983) 192 Constitutional claims by pretrial detainees are analyzed under the Fourteenth Amendment to the United States Constitution, rather than the Eighth Amendment. See Mayo v. County of Albany, 357 F. App'x 339, 341 (2d Cir.2009); Caiozzo v. Korman, 581 F.3d 63, 69 (2d Cir.2009). In practice, the test for deliberate indifference under either Amendment is the same. See Caiozzo, 581 F.3d at 6 (citing Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996)). 193 See Dzwonczyk v. Syracuse City Police Dep't, 710 F. Supp. 2d 248 2008 U.S. Dist. LEXIS 103315, at 38-39 (internal quotation marks and citations omitted); see also Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

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time, but may become sufficiently serious when left untreated during long pretrial detention. For example, denial of dental treatment causing “great pain” over the course of several months is sufficiently serious,194 as are mental illness,195 infections,196 withdrawals and addiction, including alcohol addiction.197 There is a certain amount of slippage between judicial reasoning regarding the objective and subjective factors. Sometimes the courts will hold that an injury or medical need is not sufficiently serious during short detentions while others will reason that there was no conscious disregard for that injury/illness because denial of medical treatment was only for a short period of time. The key thing to remember is that the longer someone is denied medical treatment the more likely they are to meet these elements. Psychiatric, withdrawal, or chronic medical needs may go unmet for a few days before arraignment, but pretrial detention lasting months may create a cause of action. Medical Malpractice (by Rikers medical staff or other hospital staff) Medical Malpractice is a form of negligence, and although the two are different, you should allege negligence and medical malpractice simultaneously in order to cover your bases.198 To establish a cause of action for medical malpractice a plaintiff must show: (1) a breach, deviation or departure from accepted practice and199; (2) an injury to the patient that is proximately caused by the medical professional's deviation or departure from accepted practice.200 In an action against a physician, the existence of a physician-patient relationship creating a duty of care owed by the physician to the patient must also generally be established.201 It is also important to note the differences between deliberate indifference to medical care and Medical Malpractice. Medical malpractice is a state tort while deliberate indifference to medical care is a constitutional violation that can give a federal court jurisdiction over the action. “Mere medical malpractice” is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate indifference; namely, when the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces “a conscious disregard of a substantial risk of serious harm.”202 In certain instances, a physician may be deliberately indifferent if he or she consciously chooses “an easier and less efficacious” treatment plan.203 So, if you cannot show deliberate indifference you still may be able to prove

194 Chance v. Armstrong, 143 F.3d 698 (2d Cir.1998). 195 See Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir 1989). See, also, Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000) (transexualism is psychiatric condition that presents a serious medical need). 196 See Gutierrez v. Peters, 111 F.3d 1364, 1373-74 (7th Cir.1997). 197 See Mayo v. County of Albany, 357 F. App'x 339, 341 (2d Cir.2009). 198 See 15 N.Y.Prac., New York Law of Torts § 13:3. 199 Id. citing Bloom v. City of New York, 202 A.D.2d 465, 609 N.Y.S.2d 45 (2d Dep't 1994). 200 Id. 201 McKinney v. Bellevue Hosp., 183 A.D.2d 563, 584 N.Y.S.2d 538 (1st Dep't 1992). 202 Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citation omitted). 203 Chance v Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

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medical malpractice in state court. Or, if you have a valid federal claim you may assert this state tort in a federal action because of the federal court’s supplemental jurisdiction. Holdovers (being held beyond detention release dates) I have no info on this not sure how to handle it- seems like they are often prone to QI dismissals. I would guess they are simply false imprisonment claims but it is hard to tell how they handle them.

SUING MUNICIPALITIES AND SUPERVISORS I started working on a section about municipal liability but this needs to be very thorough. Supervisor liability is similarly complicated take a look at secondary sources around Iqbal. Municipal Liability

You may want to name the City of New York as a party. The first and easiest way to successfully bring the city as a party is by filing a notice of claim and bringing supplemental state claims. Under New York State law municipalities are liable for the actions of their employees under the doctrine of respondeate superior. The procedures for doing this are laid out in section ____ of this manual describing “filing a notice of claim and a 50-h hearing.” However, if you failed to file a notice of claim or comply with the applicable Municipal laws you may want to attempt to use federal law to bring the city as a party. Additionally, you may want to include these claims in your suit in case a judge at a later date dismisses your state claims.

The federal law requirements for successfully bringing a suit against any city are very strict and difficult even for practicing civil rights attorneys. In order to establish municipal liability under § 1983 the plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy “amounts to deliberate indifference” to the plaintiff's constitutional right; and (4) that the policy is the “moving force behind the constitutional violation.”204 Step one is covered by other area’s of this manual.

Step 1: proving “Policy or Practice”

There are essentially three ways to prove “Policy or Practice”: 1) where the deprivation was caused by an express municipal policy such as an ordinance regulation or policy statement; 2) the act causing the violation was approved by a final decision maker for the municipality, 3) the actions although not made pursuant to a policy or practice of the municipality are so well settled as to constitute a custom or usage.

1. Express Municipal Policy Cases based on proof of an express municipal policy are the most straightforward and require proof that the challenged policy statement ordinance, regulation or decisions

204 Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir 1992). Citing City of Canton, 489 U.S. at 389-91.

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has been adopted or enforced by the municipality. The municipality must not simply be enforcing state law.205 Instead the city must either adopt a policy or ordinance parallel to or exceeding the state law.206 2. Decision by a Final Decision Maker Proving that a violation was caused by a final decision maker is more difficult than it would at first appear. In Pembour, the court imposed municipal liability because, “the conduct creating the violation was approved by an authorized decision maker for the municipality.”207 “Whether an official had final policymaking authority is a question of state law.”208 The court later explained in City of St. Louis v. Propotnick, “The mere exercise of discretion by an employee does not give rise to municipal liability.”209 “[T]he authority to make municipal policy is necessarily the authority to make final policy… When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.”210

3. Custom or Unofficial Practice The court has also allowed suits against municipalities where the plaintiff can prove that their injury was caused by an unwritten practice, “so permanent and well settled as to constitute a custom or usage.” Monell, 436 U.S at 691. The issue is whether there was a particular custom or practice that was, “so well settled and widespread that the policymaking officials of the municipality can be said to have had either actual or constructive knowledge of it yet did nothing to end the practice.”211 While this is logical in theory, in practice it is difficult to prove as they may require access to privileged statistics, documents, sometimes even prior to writing the complaint. This is where we need examples of cases that have worked and examples of resources to use in NYC areas- also possibly a foil example. Step 2: Proving the Policies and Practices are connected to the deprivation of your rights.

Once you have shown that there was a “policy” under one of the three methods (official, made by a final decision maker, or custom) you must then prove that the policy was the cause of the deprivation of your rights. There are several types of policies and practices that may give rise to municipal liability: 1) deliberately indifferent training 2)

205 Section 1983 Litigation Martin A Swartz, Kathryn Urbonya, § XV(4) (Federal Judicial Center, 2008). Citing Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 793 (7th Cir 1991). 206 See McKusick v. City of Melbourne, 96 F.3d 478, 484 (11th Cir. 1996). See also Cooper v. Dillon, 403 F.3d 1208, 1222 (11th Cir. 2005). 207 Pembour v. City of Cincinati, 475 U.S. 469 (1986) (plurality opinion). 208 Id. at 483. 209 City of St. Louis v. Propotnick, 485 U.S. 127, 128 (1988). 210 Id. at 128. 211 Section 1983 Litigation Martin A Swartz, Kathryn Urbonya, § X (Federal Judicial Center, 2008). Citing Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989).

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deliberately indifferent supervision or discipline 3) deliberately indifferent hiring, and 4) deliberately indifferent failure to adopt policies necessary to prevent constitutional violations.212

1. Deliberately indifferent training Claims of deliberately indifferent training require proving: 1) the need for training was so obvious as to show “deliberate indifference” (fault) on the part of the municipality; and 2) that such failure was the “moving force” (cause). “That a particular officer alone is not adequately trained will not alone suffice to fasten liability… neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the encounter resulting in injury-causing conduct…”213 The Supreme Court requires that in order for municipal liability to be attached to a violation there must a high degree of predictability between the municipalities actions and the deprivation of the plaintiff’s constitutional rights.214 This generally requires showing a pattern of violations in one area.215 In order to better understand what these requirements look like you may need to read City of Canton, Ohio v. Harris and Board of County Commissioners of Bryan County, Oklahoma v. Brown. Due to the difficulty of meeting these heightened levels of fault and causation these claims rarely succeed. 216 3. Deliberately indifferent hiring

Claims of municipal liability based on deliberately indifferent hiring pose similar problems for plaintiffs in that it’s heightened causation requirements are almost impossible to meet. Where municipal liability is claimed on the basis of a single hiring decision by a municipal policy maker the court requires a showing of: 1) “deliberate indifference” (fault) 2) to an obvious risk; 3) that actually caused the deprivation.217 The difficulty in obtaining liability through inadequate hiring can be seen in the holding of the decision Board of County Commissioners of Bryan County, Oklahoma v. Brown. There, a Sheriff hired the son of his nephew despite his extensive rap sheet.218 The nephew’s son injured a woman while dragging her out of her car after her husband avoided a police traffic stop.219 This case can be summarized to stand for the proposition that municipal liability will not attach to single hiring decisions. However, this does not preclude municipal liability where the plaintiff can prove a pattern of hiring that demonstrates deliberate indifference to the constitutional rights of citizens.

4. Deliberately Indifferent Failure Impose Policies to Prevent the Deprivation of Rights

212 Section 1983 Litigation Martin A Swartz, Kathryn Urbonya, § X (Federal Judicial Center, 2008). 213 City of Canton, Ohio v. Harris 489 U.S. 378, 391 (1989). 214 Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 410 (1997). 215 Id. 216 Section 1983 Litigation Martin A Swartz, Kathryn Urbonya, § XV(4) (Federal Judicial Center, 2008). 217 Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 406-410 (1997). The dissent in Board of County Commissioners of Bryan County, Oklahoma v. Brown, notes that the two of these sound like “reckless” fault in criminal law. Id. at 422. 218 Id. at 401. 219 Id. at 400, 401.

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To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy “amounts to deliberate indifference” to the plaintiff's constitutional right; and (4) that the policy is the “moving force behind the constitutional violation.”220

In Oviatt the defendant was deprived of “liberty” in contravention of the due process clause of the Fourteenth Amendment when the County of Multnomah incarcerated him for 114 days without being arraigned.221 There, Sheriff Pearce (a municipal policy maker) stated that, “from time to time” individuals were not arraigned because of mistakes made by the court or the jail. Nevertheless, the jail system had no internal procedures for keeping track of whether inmates had received an arraignment or attended other scheduled court appearances. Instead, the jail system relied on inmates, attorneys, family members, court personnel, and members of the jail staff (who had never been instructed to ask inmates whether they had been arraigned) to bring to the system's attention missed arraignments or court appearances. Pearce had discussed the problem with colleagues occasionally, but took no steps to alleviate it… “Pearce was convinced that it would be more trouble tha[n] it was worth given the nature of the problem because it involved small numbers of people.”222

The court held that the municipality was liable because, “Sheriff Pearce knew that some inmates could not communicate their plight or were out of touch with their families or lawyers. He also knew that “from time to time” some inmates remain incarcerated for a period of time because they missed their arraignments. Specifically, Sheriff Pearce knew of at least 19 incidents between 1981 and 1989 in which individuals sat in jail for periods of undetermined length after they missed arraignment. Given the lack of procedures to alleviate this problem, it was virtually certain that some inmates would, as a result, be erroneously deprived of their liberty. The need for different procedures was so obvious that Sheriff Pearce's adamant refusal to take action amounted to deliberate indifference to the detainees' constitutional rights.”223

Thingstoaddoneexampleattheendeitherfromcaselaworimaginary.

SeebelowNYstateRespondeatSuperior!

“Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” ( Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896; see Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933). Significantly, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business ( see Carnegie v. J.P. Phillips, Inc., 28 AD3d 599, 600;

220 Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir 1992). Citing City of Canton, 489 U.S. at 389-91. 221 Id. at 1474. 222 Id. at 1473. 223 Id. at 1478.

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Schuhmann v. McBride, 23 AD3d 542, 543; Lombardo v. Mastec North American Inc., 2009 WL 4855749 (N.Y.A.D. 2 Dept.).” See also Shapiro v. Good Samaritan Regional Hosp. 55 AD3d 821 (2d Dept .2008). “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his act may be reasonably said to be necessary or incidental to such employment ( see Oliva v. City of New York, 297 A.D.2d 789, 748 N.Y.S.2d 164; Smith v. Midwood Realty Assoc., 289 A.D.2d 391, 734 N.Y.S.2d 237; Felberbaum v. Weinberger, 54 AD3d 717 (2 Dept.2008).” Although the statute governing supplemental jurisdiction, 28 U.S.C. § 1367, does not require dismissal of pendent claims where all of the federal claims have been dismissed, if it appears that non-federal issues “substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought,” those nonfederal claims “may be dismissed without prejudice and left for resolution to state tribunals.” United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). “In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.” Marcus v. AT & T Corp., 138 P.3d 46, 57 (2d Cir.1998). Also add the language in Prapotnik about RATIFICATION on 1 Supervisor liability XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

THE EFFECT OF ONGOING CASES, CONVICTIONS, PLEA NEGOTIATIONS, AND CRIMINAL COURT PROCEEDINGS ON YOUR CIVIL CASE. What if you have an ongoing criminal case or the incident you are suing from resulted in a conviction or plea of guilt on a criminal charge? Ongoing criminal charges should inform the strategy of your civil case and vice versa. Convictions on criminal charges may prevent you from successfully bringing a suit in some cases and on some claims, but not others. This section describes some common problems you may face when your civil lawsuit is in some way connected to a criminal case and or charges. However, this information is by no means complete. If you have a criminal case it is extremely important that you consult with your criminal attorney at every step in your civil case. Also each of these sections is designed to help you navigate motions to dismiss. Therefore each of the sections here speaks only to protecting your ability to bring a claim and not about the effects each proceeding may have on the strength of your case. Ongoing Criminal Cases

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Usually, it is beneficial for you to wait until the end of your criminal case before beginning your suit, so as not to alert the district attorney and the police to your intentions. If the district attorney believes that you intend to sue the police, they may withdraw any plea bargains, better prepare themselves in their prosecution, or even bring additional charges against you. In some circumstances, however, you may want to file a suit while criminal charges are still pending in order to highlight the abuse you suffered or to use the suit as a bargaining chip in the criminal prosecution. Additionally, the statute of limitations may require you to file a lawsuit before the end of your criminal proceedings. You should also remember that if you want to bring the state claims against the city you need to file a notice of claim within 90 days of the incident or accrual date. For these reasons it is very important to know when the statute of limitations accrues. See section ___ on Statute of Limitations. Guilty Pleas and Convictions The general rule around convictions and pleas as stated by the Supreme Court is that you cannot sue where a claim asserted under § 1983 would imply the invalidity of an earlier criminal conviction, unless/until that conviction has been vacated or set aside.224 This means that sometimes a guilty plea will automatically prevent you from prevailing on a civil suit. For example you cannot bring a claim for false arrest, false imprisonment, or malicious prosecution after pleading guilty to or being convicted of any crime or violation even something as minor as a disorderly conduct charge.225 However, a guilty plea does not necessarily preclude you from filing a civil suit. This is true in many Fourth Amendment cases where a federal court's finding of a constitutional violation would not necessarily imply that the prior conviction was unlawful.226 For instance, if you are claiming that officers used excessive force, a conviction to the underlying charge will not automatically prevent you from filing or winning a § 1983 suit.227 This is even true where a defendant plead to disorderly conduct or even resisting arrest.228 Furthermore if your claims are based on an unlawful search and seizure a conviction on the underlying offense should not prevent you from raising your claim.229 This is explained in greater detail in the section entitled, “Prior Court Proceedings.” Also, it is important to remember that in this section we are talking only about your ability to bring the claim as a matter of law. As a practical matter any guilty plea will

224 Heck v. Humphrey, 512 U.S. 477, 487 (1994). 225 Heck, 512 U.S. at 487. Cameron v. Fogarty, 806 F.2d 380, 387-389 (2d Cir.1986). 226 Id. at 487. (stating that doctrines like independent source, inevitable discovery, and harmless error could still save the conviction). 227 See Heck, 512 U.S. at 487. See also Graham v. Connor, 490 U.S. 386, 395 (1989). See also Shankle v. Andreone, Slip Copy, 2009 WL 3111761 E.D.N.Y.,2009. (plaintiff proceeding pro se). 228 See Heck, 512 U.S. at 487. See also Graham, 490 U.S. at 395 (1989). See also Dockery v. Tucker, 73 F.Supp.2d 224, 234 (E.D.N.Y.1998). Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008) (plaintiff could show that force used by police was not in response to his resisting arrest) 229 See Haring v. Prosise, 462 U.S. 306 (1983). See also Dockery, 73 F.Supp.2d at 234.

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likely have some sort of impact on the outcome of your case. It may impact settlement negotiations, damages, how a judge or jury perceives you etc. Here we are only discussing whether you can successfully get your lawsuit past the preliminary stages without being dismissed. Adjournments in contemplation of dismissal “ACD” An Adjournment in Contemplation of dismissal is not a plea of guilty and should not appear on your record, generally after six months or one year.230 If your criminal case ended in an adjournment in contemplation of dismissal or “ACD” you are not precluded from suing for false arrest or imprisonment, excessive force, and most 1983 claims, but cannot sue for malicious prosecution.231 However, this bar against malicious prosecution claims is contestable and you should probably bring the claim if you have already accepted an ACD.232 Additionally, if you have a claim for malicious prosecution you may also have a claim for false arrest, in which case an ACD will not preclude your entire suit only the malicious prosecution claim. Dismissals for Lack of Jurisdiction If your case was dismissed for lack of jurisdiction or facial insufficiency of the complaint your claim of malicious prosecution could be barred as not being final. In order to proceed with a claim for malicious prosecution on either of these instances you may need to prove that a prosecution was formally dropped by the entry of a nolle prosequi or that it cannot be resurrected.233 Speedy Trial (30.30) Dismissals Where your case was dismissed on speedy trial grounds you are not barred from claims of malicious prosecution.234 A speedy trial dismissal should not bar any civil suit unless you fail to file within the statute of limitations. Often dismissals on speedy trial grounds will take longer than the statute of limitations. In those cases you should begin the suit and request a stay until the criminal trial ends. Dismissal in the Interest of Justice (Clayton Dismissal) A dismissal based on “the interest of justice” (ie. “Clayton dismissal”) does not necessarily bar a claim of malicious prosecution, false arrest, or excessive force.235

230 CPL § 170.55 & 170.56 231 Hock v. Kline, 304 A.D.2d 477 (1st Dept. 2003). Molina v. City of New York, 28 A.D.3d 372 (1st Dept. 2006). Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980). See also Weyand v. Okst, 101 F3d 845, 853 (2d Cir 1996). (No bar where there is no determination as to guilt) 232 See 7/23/2007 N.Y.L.J. 3 (col. 1). 233 Smith-Hunter v. Harvey, 95 N.Y.2d 191,198 (N.Y. 2000). 234 Id. at 191. (Set a new standard that in a dismissal must be 1) final and 2) not inconsistent with innocence.) 235 Cantalino v. Danner, 754 N.E.2d 164 (N.Y. 2001). Cf. Hygh v. Jacobs, 961 F.2d 359, 369 (2d Cir. 1992). Cf. Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989).

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However, the court may look into the reasons for the dismissal. Where the court’s dismissal is based primarily on a showing of mercy to the defendant, the dismissal may bar a malicious prosecution claim.236 However, where the dismissal is based on the relative strength or weakness of the case or a lack of probable cause such dismissal will not bar a malicious prosecution claim.237 If you are/were granted a dismissal in the interest of justice because the people cannot/could not prove their case this must be indicated on the record. Partial Acquittals & Dropped Charges For Claims of false arrest a conviction of any charge bars a § 1983 suit. However, the most advantageous aspect of malicious prosecution claims from the point of view of the plaintiff in New York is that you can still win malicious prosecution claim where you were convicted on one charge and not another. For, example if you were convicted of disorderly conduct, but not on a separate charge of resisting arrest you can still sue for malicious prosecution on the resisting arrest charge.238 The same applies where your charges were dropped or dismissed for various reasons. However, if the charges were dropped as part of a plea agreement you may not be able to sue.239 Overturned Convictions Under Heck, a plaintiff who files a Section 1983 action seeking damages for unconstitutional conviction or imprisonment must first “prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.”240 Prior Criminal Court Proceedings (Collateral Estoppel) In some instances the doctrine of collateral estoppel will prevent you from proceeding to trial where the criminal court has already decided the issues you will need to argue in your § 1983 suit. Meaning if, in your criminal trial, you had a hearing, filed a motion or in some way argued a point of law you cannot raise a claim based on that issue in your § 1983 suit.241 For example, if you had a hearing and your lawyer wrote/argued a motion about whether there was probable cause for the arrest (known as a “Dunaway” hearing in NY242) and you lost, you may be precluded from bringing a claim of false arrest or false imprisonment.243 However, if you lost a suppression hearing, won at trial, and

236 Smith-Hunter v. Harvey, 95 N.Y.2d 191,198 (N.Y. 2000). 237 See Id. 238 Janetka v. Dabe, 892 F.2d 187, (2d Cir. 1989). 239 Green v. Montgomery, 219 F.3d 52 (2d Cir. 2000) citing Posr v. Doherty, 994 F.2d 91, 100 (2d Cir. 1991). 240 Heck, 512 U.S. at 486-87. 241 Allen v. McCurry, 449 U.S. 90 (1980). 242 See Dunaway v. New York, 442 U.S. 200 (1974). 243 See Allen, 449 U.S. at 95. (collateral estoppel applies where the defendant had a “full and fair opportunity” to litigate that issue in the earlier case). See also, Brown v. Roland, 215 A.D.2d 1000, 627

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never appealed the suppression hearing you are not collaterally estopped from raising a claim for false arrest.244 You should make sure you know what arguments were made in your criminal proceedings in order to anticipate these issues. Similarly, Grand Jury indictments will not necessarily preclude claims of false arrest and false imprisonment.245 However, a grand jury indictment creates a presumption of probable cause246 which can only be overcome by showing that the NYPD engaged in fraud, perjury, withheld evidence, or otherwise egregiously deviated from accepted police procedure in investigating the crime.247 Also as previously stated, a § 1983 plaintiff who pleads guilty to a state court criminal charge is not precluded from subsequently litigating the validity of the search conducted by police officials.248 This means that if you won a hearing based on a fourth amendment issue you may have a good § 1983 suit regardless of the final outcome of your case. Additionally if you were convicted and never had a hearing or argued the search you may have a good § 1983 suit. For example, in one Eastern District case, the plaintiff was allowed to proceed past a motion to dismiss his unlawful search and seizure case even though the he was convicted on drug charges.249 The court held that because his claim was based on allegations that the police entered his home without a valid warrant, destroyed his property, and disrupted his family he was free to bring the claim despite his conviction.250 The court explained that this was because their decision on the validity of the search seizure and arrest would not imply the invalidity of his conviction.251 Deals Releasing the Police, Prosecution & City from Liability Occasionally as a part of a plea or even in order to get out of jail the police or prosecutors will request you sign papers agreeing not to file a civil lawsuit. As a practical matter you should never sign one unless you have no choice and you have consulted with a criminal attorney and if possible a civil rights attorney. That being said, if you have signed what is often referred to as a “release-dismissal agreement” it could be considered unenforceable- meaning it would not prevent you from bringing a § 1983 suit.

N.Y.S.2d 791, appeal dismissed, 87 N.Y.2d 861, 639 N.Y.S.2d 313, 662 N.E.2d 794 (3 dept 1995). (pretrial determination of probable cause creates a presumption of probable cause that can be overcome only upon a showing of fraud, perjury or the withholding of evidence). 244 Johnson v. Watkins, 101 F.3d 792, 793 (2d Cir. 1996). 245 Arnott v. Mataya, 995 F.2d 121 (8th Cir 1993). 246 Probable cause is the key issue in false arrest/imprisonment as well as unlawful search and seizure cases. Probable cause is what makes an arrest lawful. So, where there is probable cause you will lose these claims. 247 Gonzalez v. City of New York, 20 Misc.3d 1130(A), 872 N.Y.S.2d 690 (N.Y.Sup.,2008). See also Bernard v. United States, 25 F.3d 98, 104 (2nd Cir.1994) See also Brown v. Roland, 215 A.D.2d 1000, 627 N.Y.S.2d 791, appeal dismissed, 87 N.Y.2d 861, 639 N.Y.S.2d 313, 662 N.E.2d 794 (3 dept 1995). (applying the same rule to all pretrial determinations). 248 Haring, 462 U.S. at 306. See also Powers v. Coe, 728 F.2d 97, 102 (2d Cir. 1984) 249 Id. at 232. 250 Dockery, 73 F.Supp.2d at 235. 251 Id.

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Release-dismissal agreements offered by police are rarely enforceable because the courts are suspicious of the likelihood that they are coerced.252 However, where the “release dismissal requirement was offered by the district attorney, the enforceability issue is more complicated. The Supreme Court has said that so-called “release-dismissal” agreements are not per-se unenforceable.253 Under Rumery, in order for a release to be valid three requirements must be met: 1) It must be voluntary; 2) There must be no evidence of prosecutorial misconduct; and 3) Enforcement of the agreement must not adversely affect relevant public interest.254 The court reasoned that Rumery had made a voluntary, deliberate and informed decision in signing the release.255 The court's reasoning was based on several factors: Rumery was a "sophisticated businessman,"256; "he was not in jail and was represented by an experienced criminal lawyer, who drafted the agreement,"257; and "he considered the agreement for three days before signing it."258 The court concluded that the prosecutor did not engage in overreaching because, "the prosecutor had an independent legitimate reason to make the agreement directly related to his prosecutorial responsibilities" because the prosecutor believed that the key witness in a sexual assault case, would not have testified in that case had she been forced to testify against Rumery in the witness tampering case.259 Justice Powell identified the "relevant" public interests as follows: the public interests in protecting officials from the burdens of defending "marginal" and "frivolous" § 1983 claims, and in resolving minor criminal charges and allocating scarce resources of the criminal justice system to the prosecution of more serious charges.260 Usually § 1983 cases are against police officers for misconduct, in which case the district attorney may have difficulty articulating the, “independent legitimate reason to make an agreement directly related to their prosecutorial responsibilities.” The New York Court of appeals addressed this situation. In Cowles v. Brownell the Court of Appeals explained, “absent compelling reasons for their enforcement, “release-dismissal agreements present an unacceptable risk of impairing the integrity of the criminal justice process.”261 The court also explained that where there was no such compelling reason the agreements were unenforceable regardless of the fact that they were knowingly entered into by the defendant.262 If you choose to bring a suit even where you entered into a release-dismissal agreement losing the civil case may not be your only problem. The State prosecutors may re-open the case even while they try to enforce the waiver. A federal court cannot prevent a state court prosecution unless the plaintiff can prove that the case was re-

252 See Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987). 253 Newton v. Rumery, 480 U.S. 386 (1987). 254 Id. at 398. 255 Id. at 394. 256 Id. 257 Id. 258 Id. 259 Id. 260 Id. at 395-96. 261 Cowles v. Brownell, 540 N.Y.S.2d 973, 975 (1989). 262 Id.

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opened in bad faith.263 Bad faith is not demonstrated automatically simply because the criminal case was reinstated after you filed a civil suit.264 If you are faced with a situation where the district attorney is offering a favorable plea in exchange for a waiver agreement you may want to notify your attorney of Cowles v. Brownell, in order to help them dissuade the district attorney from attempting to require such a waiver as a condition to the favorable plea. The Criminal Court Plea Colloquy When you take a plea in criminal court you have to admit to the judge on the record (written down by the court reporter) that you did certain things. This is called the plea colloquy. Often admitting to all of the allegations in the criminal complaint would prevent you from successfully suing under § 1983. If you are going to file a civil suit, but have determined that you want/need to take a plea in your criminal case you should have your defense attorney tailor your admissions to protect your civil suit. For example: Imagine you were initially charged with disorderly conduct, obstruction of justice, and resisting arrest. However, your defense attorney has advised you to take a plea to a disorderly conduct violation. The criminal court complaint alleges that you: 1) Acted disorderly and impeded the investigation of an assault by refusing numerous orders to leave the scene, shouting at officers, and making threats of physical violence. 2) Resisted arrest by intentionally attempt to prevent officers from affecting a lawful arrest of yourself by pulling away from officers and clenching your fists. What really happened was the police exaggerated the situation in their reports in order to justify hitting you over the head with a flashlight and spraying you with mace. However, you were guilty of disorderly conduct in that you didn’t obey lawful commands to disperse and shouted at officers. You should have your lawyer request that you plead only to the fact that you “refused to comply with a lawful order to disperse” that way you should not be prevented from bringing your civil suit.265 This is a very complicated matter that requires knowledge of the elements of your criminal charge and your civil rights claims. You and your criminal lawyer should speak in detail about what you are pleading to and what civil claims you may want to bring.

COMMON PROBLEMS PREVENTING SUIT There are numerous common situations that would seem to give rise to a civil

suit, but are often not compensable under § 1983 or state law. These problematic cases usually arise where arrests and searches are based on warrants, statements of non-police officers, or a police officer’s failure to investigate. This area of law can

263 Younger v. Harris, 401 U.S. 37, (1971). 264 See Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979). 265 Factual scenario based loosely on Coleman v. City of Niagara Falls, 2010 WL 2869529 (W.D.N.Y. 2010). See also Getlin v. Zoll, 2010 WL 1608845 (E.D.N.Y.2010) (Plaintiff's claim of excessive force is not precluded by his prior conviction for reckless endangerment. Neither the conviction itself nor the plea allocution addresses Plaintiff's action in accelerating his car so as to endanger a police officer vis a vis when Plaintiff was shot.

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be very complicated, but is usually unfavorable to your ability to bring a civil suit. This section was meant only as an outline of potential trouble spots not as a complete guide to these issues.

Arrest Warrants

Even if you were arrested for a non-crime you will be precluded from claiming false arrest where they had a valid underlying warrant.266 Arrest warrants are presumptively valid and an arrest conducted pursuant to a warrant will only give rise to a federal cause of action where: 1) the lack of probable cause for the warrant was so apparent that the officer should have known it was absent267 or 2) the officer knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause.268 So, in some instances although the arresting officer is protected from suit, the officer(s) applying for a warrant may not be.

Arrests on a Warrant Based on Mistaken Identity

In Baker v. McCollan the Supreme Court appeared to rule that arrests for short periods of time based on mistaken warrants are not unconstitutional and therefore cannot give rise to a cause of action in federal court.269 In Baker the plaintiff was arrested on a valid warrant matching his name, but intended for his brother.270 The plaintiff protested his arrest, telling officers they had the wrong person.271 After eight days the mistake was realized and he was released.272 The court held that there was no violation of the constitution, but noted that a longer period of wrongful detention might have become a due process violation.273

However, subsequent decisions indicate the Court’s ruling in Baker did not completely exclude civil suits based by individuals mistakenly arrested on warrants. Even in Baker the court noted that that imprisonment based on mistaken identity, although not unconstitutional, is a violation of tort law, “in most if not all jurisdictions.”274 New York Appellate Courts have allowed suits where an officer had warrant, but their reliance on it was unreasonable because they failed to exercise due care in executing

266 See e.g., Baker v. McCollan, 443 U.S. 137 (1979). 267 See Malley v. Briggs, 475 U.S. 335 (1986) (Finding no probable cause where police overheard an unknown individual make reference to “token” during a telephone conversation); citing U.S. v. Leon, 464 U.S. 889 (1983). 268 Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (omission in warrant affidavit that suspect had not resided in mother's home for seven years was fatal to probable cause to search her home and created a cause of action under § 1983 despite a magistrate’s signature); See also Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994); Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.1991); U.S. v. Leon, 464 U.S. 889 (1983). 269 Baker, 443 U.S. at 137. 270 Id. at 141. 271 Id. 272 Id. 273 Id. at 145. 274 Id.

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it.275 This is especially true where multiple individuals share the same name.276 Many federal circuits and district courts have come to similar conclusions and refused to bar suits where police acted unreasonably in mistakenly detaining an individual named in a facially valid warrant.277

The Second Circuit’s recent holdings on the issue of misidentification are very bad for plaintiffs. Recently they dismissed a claim where an individual was arrested based on having the same name and birth date, but where his appearance and the person described in the warrant differed in slightly more than two inches in height, twenty pounds in weight, as well as different skin tone.278 This case was dismissed despite the fact the police department could have easily discovered the misidentification by fingerprinting the plaintiff.279 Another Second Circuit case found an arrest was valid where the police arrested a man accidentally assigned someone else’s NYSID.280 The court found the arrest based on the mistaken warrant was lawful despite the fact that the arrestee voluntarily came the precinct to pick up his towed car, stated that he had been previously confused with the subject of the warrant, and the subject of the warrant was an inch taller, 18 pounds heavier, and described as “black” while the arrestee was “white”.281

So, while suits based on mistaken identity present distinct difficulties, they are not impossible(at least in not in state court). When an arrest is based on a warrant examine the particularity(name, description etc) of the underlying warrant and any discrepancies in the description of the individual named in the warrant.

Arrests Based on Statements/Information/Identifications of Non Officers

There is no claim for false arrest or malicious prosecution where police officers are relying on facts given to them by complaining witnesses.282 However, in some situations the police have a minimal duty to investigate information given to them by others where the victim or eyewitness’s veracity is questionable.283 You could also

275 Boose v. City of Rochester, 71 A.D.2d 59, 67 (4th Dept' 1979) (Noting that the case was “not a misnomer case” but explaining that an arrest on one warrant was valid because although the surname was erroneous, it was a reasonable approximation of the accused's true name and the error was not fatal. A second warrant was not valid on its face because it failed to identify the person to be arrested either by name or other descriptive information by which she could be identified with reasonable certainty). 276 Id. citing inter alia Craner v. Corbett, 27 A.D.2d 796 (4 Dept’ 1967); Maracle v. State of New York, 50 Misc.2d 348, (Ct of Cl. 1968). 277 Police Misconduct: Law and Litigation § 2:10; citing inter alia Berg v. County of Allegheny, 219 F.3d 261, 273 (3d Cir. 2000); Blackwell v. Barton, 34 F.3d 298 (5th Cir. 1994). 278 Martinez v. City of New York, 340 F. App'x. 700, 701-702 (2d Cir. 2009). 279 See Id. at 702. 280 Caceres v. Port Auth. of New York & New Jersey, 631 F.3d 620, 624 (2d Cir. 2011). 281 Caceres v. Port Auth. of New York & New Jersey, 06 CIV. 1558 (JGK), 2008 WL 4386851 (S.D.N.Y. Sept. 24, 2008); Decision abrogated by Caceres, 631 F.3d at 620 (Qualified immunity granted on appeal of motion JNOV). 282 Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001). Minott v. City of New York, 203 A.D.2d 265, 609 N.Y.S.2d 334 (2 Dept. 1994). 283 Cortez v. McCauley, 438 F.3d 980, 990 (10th Cir). (No qualified immunity was granted where there was a failure to interview readily available witnesses and examine physical evidence before arrestee based on an uncorroborated victim statement). Radavzki v. City of Olmstead Falls, 395 F.3d 291, 304 (6th Cir 2005).

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potentially sue where the officer reasonably should have known an identification was incorrect based on prior inconsistent description given by the witness.284

Furthermore, if a criminal proceeding was lawfully commenced against your client, based on the statements of a private individual who lied to police, you may sue that individual for malicious prosecution and other state torts.285 However, this will probably have to be done in state court because without some constitutional violation by an official acting “under the color of state law” there is no federal question jurisdiction.286 Also, it will likely be much harder to find a civil attorney to take one of these suits.

Failure to Investigate by Police Officers There is generally no affirmative duty on the part of officers to investigate.287 However, as explained in the previous section, in some situations the police have a minimal duty to investigate information given to them by others where the victim or eyewitness’s veracity is questionable. Additionally, where the police officers fail to investigate readily available information it may effect the courts determination as to the existence of probable cause for the arrest and whether defendants are entitled to qualified immunity.288 For example, in Williams the district court determined that there was no probable cause for the arrest the defendant for trespassing even though his ID said he did not live in the building, because, “Given Williams's claim that he had permission to be in the building, an inference that he was trespassing was not warranted without some further investigation, even in light of the possible drug-related activity the officers believed they had observed. The officers did not ask any follow-up questions or make any further efforts to ascertain the facts.”289

See also Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (“It is well-established that a law enforcement official has probable cause to arrest if he received his information from ... the putative victim or eyewitness, unless the circumstances raise doubt as to the person's veracity.”). 284 See e.g. Smith v. Nassau County, 34 N.Y.2d 18, 24 (1974) (5 to 6 inch discrepancy in height, an 8 to 18 year discrepancy in age, and discrepancies as to build and possibly as to the use of eyeglasses). 285 See Smith-Hunter v. Harvey, 95 N.Y.2d 191 (N.Y. 2000). 286 See Monroe v. Pape, 365 U.S. 167 (1961). See also 28 U.S.C. § 1983, 1343(3) & 1331. 287 “[T]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause,” and an officer's failure to investigate an arrestee's protestations of innocence generally does not vitiate probable cause. Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006); Citing United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985). See also Coons v. Cassabella, 284 F.3d 437 (2d. Cir. 2002); (police officers are “not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.”). See also, Martinez v. City of New York, 340 F. App'x. 700, 701-702 (2d Cir. 2009) (holding NYPD has no duty to fingerprint individuals arrested on a warrant after protests of misidentification). 288 See Williams v. City of New York, 2009 WL 3254465 (E.D.N.Y.). See also Carlton v. Nassau County Police Dept., 306 A.D.2d 365, 761 N.Y.S.2d 98 (2 Dept. 2003); (no probable cause to arrest for theft of services where the defendant left his business card with restaurant owner after a dispute over a bill). Mason v. City of New York, 949 F.Supp. 1068 (S.D.N.Y.1996) (Plaintiff was seized and handcuffed by bounty hunters who mistook her for a woman who had jumped bail in Alabama. For several hours she was kept handcuffed to a chair by Port Authority Police until the plane arrived. Port Authority Police were not immune from charge of false imprisonment because they had a duty to take reasonable steps to verify her identity.) 289 Id. at *6.

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Furthermore, the Second Circuit has recognized a Fourth Amendment right “not to suffer prolonged detention from an officer's refusal to investigate available exculpatory evidence.”290 In Russo the court indicated that such claims are actionable where they “shock the conscience.”291 In other words the failure to investigate must rise to the level of intentional violation of, or deliberate indifference to, the plaintiff’s constitutional rights.292 Russo was held for two hundred and seventeen days after his arrest for armed robbery.293 During that time, despite the Russo’s claims of innocence and insistence that someone review the video of the robbery, detectives failed to review the tape.294 Upon viewing the tape, two hundred and seventeen days after Russo’s arrest, the prosecution dropped the case against him.295 However, the court was clear that their holding may not apply were the defendant to be held for a shorter period of time.296

Searches Based on Mistakes in Warrants

Despite the particularity and scope requirements, where a search was conducted pursuant to a warrant listing the wrong address there is generally no cause of action against the police for a fourth amendment violation.297

No Fruit of the Poisonous Tree in Civil Suits

The fruit of the poisonous tree doctrine does not apply in civil suits.298 As the Second Circuit explained, ‘[v]ictims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy- including… damages for physical injury, property damage, injury to reputation etc.; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.”299 Therefore, where a 4th amendment violation results in discovery of incriminating evidence the only damages a plaintiff can get are for the limited, “brief invasion related to the initial search and seizure of [their] person.”300 This 290 Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.2007). See also Baker v. McCollan, 443 U.S. 137 (1979). 291 Id. at 210. 292 Id. at 210. 293 Id. at 199. 294 Id. at 205-206. 295 Id. at 199. 296 Id. at 209 297 Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 401 (S.D.N.Y. 2009) (Non constitutional violation where police obtained a search warrant and carried out the search in accordance with the literal terms of that warrant despite the fact that the warrant contained the wrong address.). Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 470 (S.D.N.Y. 2008) (“This Court is acutely sympathetic with plaintiffs, whose home was forcibly entered, and who were rousted from their sleep, menaced with drawn handguns, confined for three hours with the adult males uncomfortably or even painfully handcuffed while their entire home was ransacked, without uncovering the slightest evidence of wrongdoing”); Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994). 298 Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999). 299 Id. at 149. 300 Id.

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rule would not apply in situations where possession was wrongfully attributed to you. For example if you were arrested based on constructive possession of illegal material in an apartment.

Illegal Searches and Seizures based on State Law

Your ability to recover under § 1983 is dependant on violations of federal law. Therefore the greater protections afforded to individuals in New York are not applicable in most situations.

THE PROBLEM OF QUALIFIED IMMUNITY I have tons of info on this but never got around to adding it. Remind me and I will try to find the draft of this section.

PRE SUIT INVESTIGATIONS Investigations are one of the most valuable tools you have and should be used throughout your lawsuit. An investigation is only limited by your imagination and your authority(or lack thereof) as a citizen/civilian. You can and should: take photographs of the scene of the incident, and any injuries you sustained, locate, contact, and interview witnesses, locate and copy video audio and written records, contact community members and groups that may have relevant information regarding your case or the police involved. Just keep in mind anything you write or record is likely discoverable (you will have to give it to the defendants). So, if a friend has relevant information and will likely testify for you at trial, there is no need to have them write out a statement (unless it is in the form affidavit required to overcome a motion for summary judgment). If someone or some business has videotapes or documents and refuses to give them to you, you can write a letter (certified mail) requesting that they preserve the tape/document. Then once you file suit you can serve a subpoena duces tecum to force them to turn over the document. Additionally if you have contacted the CCRB or some other government official or agency they can subpoena the documents if you notify them that the documents exist. If you have a criminal attorney and an open case they can subpoena documents for you. They may also have access to databases on police misconduct as well as other resources that could be useful to you. You should be in close contact with your criminal attorney if you are considering a civil suit both for the purpose of accessing resources and ensuring that your actions do not jeopardize your criminal case.

There are several agencies and individuals and agencies that commonly deal with misconduct by police officers. These are discussed in detail in the section entitled “Your

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Options”. Each of these groups will conduct their own investigations into misconduct and could aid in your investigation. However, each group has its disadvantages and you should tread carefully in dealing with each agency. Remember the CCRB can be especially helpful in identifying officers whose name or badge number you do not know. In addition to the CCRB, IAB, and DA “rackets bureau” city council members may conduct investigations at their discretion. They will also have authority and connections allowing them access to information you don’t have. One tool available to all individuals prior to filing suit are NY’s freedom of information laws(FOIL). FOIL allows you to request certain documents from any local or state agency without a court ordered subpoena. We need to add materials here and direct people to the Forms section. I have a great summary of how to use foil. The key to investigations is to be creative and constantly reevaluate what it is you need to know in order to succeed with your civil suit. After reviewing your potential claims you should itemize what you need to know and from whom you may obtain that information. Never stop investigating. We need to put some examples here- like using ccrb and foil to find officers and establish supervisor/municipal liability.

Chapter 3 Starting Your Civil Suit

OVERVIEW OF STEPS FOR STARTING A SUIT xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

THE NOTICE OF CLAIM & THE 50(H) HEARING Federal law allows you to bring state claims in federal court.301 There are several reasons for bringing state claims. First there are some claims that are only available under state tort law. For example if someone is wrongfully arrested under state law they can also make claims for assault and battery. Additionally some claims are easier to prove under state law. One very important reason for including state claims is that it is a way around the problems presented in bringing the case against the City of New York (see CHAPTER 2(B) on who can you sue: City of New York & the NYPD). If you decide to bring state claims against the city there are certain steps that you must take immediately and before filing a lawsuit against the city. First you must file a Notice of Claim with the Comptrollers office. This preserves your right to sue the City of New York under state law. Once this is done you must wait 30 days before you file the actual lawsuit against the city.302 During that time you may have to attend what is called a 50(h) hearing on the facts of your case if this happens you must then wait until after the 301 28 U.S.C. § 1367. 302 N.Y. Gen. Mun. Law §50-i.

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hearing to file your claim with the city.303 The following is a detailed description of this process. IMPORTANT: If you have an ongoing criminal case you should speak with your criminal attorney before filing a notice of claim.

The Notice of Claim The notice must be in writing, sworn to by or on behalf of the claimant, and shall include: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.304 If you have an ongoing criminal case you should speak with your attorney about what to include and not include here. See FORMS – NOTICE OF CLAIM for an example of what this should look like; also the comptrollers office has printable pdfs305 How to file a Notice of Claim FIRST, You must file a notice of claim with the comptroller’s office within 90 days of the incident. This can be delivered personally or via registered or certified mail to:

The Comptroller of the City of New York Municipal Building - Room 1225 1 Centre Street New York, New York 10007

For updated information on notice of claims check the comptroller’s website306 SECOND, once your notice of claim is filed you have to wait 30 days to file suit in state/federal court.307 However, if during the 30 days the city contacts you to attend a 50(h) hearing you must do so before you file a claim against the city in state or federal court.308 Late Notice of Claim If your Notice of Claim could not be filed within the statutory period of 90 days, you can make an application to the Court for leave to file a late Notice of Claim.309 The basis for the motion will depend on the factual circumstances, which would justify excusing the

303 N.Y. Gen. Mun. § 50-h(5); see also Ambroziak v. County of Erie, 577 N.Y.S.2d 1020, 1020 (1991). 304 NY Gen. Mun Law 50-e(2). 305 http://www.comptroller.nyc.gov/bu reaus/bla/claim_forms.shtm 306http://www.comptroller.nyc.gov/bu reaus/bla/filing_claims.shtm 307 N.Y. Gen. Mun. Law §50-i. 308 See footnote 3. 309 N.Y. Gen. Mun. § 50-e(5).

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late filing. While the decisions are fact intensive, the various factors usually considered in combination are set forth in General Municipal Law Section 50-e(5):

1) whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter.

2) whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim;

3) whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier;

4) whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and

5) whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

Additionally you should use the research section of this manual to find cases similar to yours that you could use to back up your arguments. Most federal district courts will not entertain these motions and will claim they do not have jurisdiction to hear them.310 Therefore you may have to file them with the Supreme Court in the same county. However, the statute of limitations should be “tolled” (stop running) during the time your motion is pending.311 The 50-h Hearing The purpose behind the Notice of Claim requirement is to allow the municipality to investigate the claim while the information is still available and before witnesses depart or conditions change. 312 Remember that everything you say is being recorded and can be used against you later in the proceedings. It is important to keep your statements as consistent as possible throughout the course of litigation. You should read this document and understand the general concepts of how a § 1983 claim works then create a thorough plan for the interviews. If you have a lawyer from a criminal case you must talk to them before attending a hearing(you should be able to delay the hearing until your criminal case is terminated). 1. Procedure

a) Notice of the hearing

After filing a notice of claim you have to wait 30 days before filing the complaint in any court.313 However, if within 30 days after filing the notice of claim the city requests that you attend a 50(h) hearing you cannot file your complaint until your

310 Jewel v. City of New York, No. 94 Civ. 5454, 1995 U.S. Dist. LEXIS 2282, at *4 (S.D.N.Y. Mar. 1, 1995). 311 Giblin v. Nassau County Medical Center, 61 N.Y.2d 67 (1984); Cespedes v. City of New York, 172 A.D.2d 640, 641 (2d Dept 1991). 312 Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9 (1978). 313 N.Y. Gen. Mun. Law §50-i.

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attend the 50(h) hearing.314 The notice will include the date time and location of the hearing. It should also include a description of your rights to request adjournments and the penalties for failing to appear at a scheduled hearing. If you cannot attend a hearing on a specific date you should follow the instructions on the notice regarding adjournments. Remember, there is no limit to the number of adjournment dates you can request. However, if the city requests a hearing you must attend it if you wish to file a lawsuit against the city.

b) The Hearing

Generally you will be questioned by one or two attorneys in the presence of a court reporter at a place designated by the attorney facilitating the hearing. The questions asked at a 50-h hearing generally fall into three categories.

1) Background information: This will include questions like, “Where were you born? Where do you live? Where do you work? How much do you earn?”

2) The circumstances event from which the suit arises: This will include questions like, “What happened on (the date in question)? What happened next? Etc.” If you are suing for a wrongful arrest the attorney may ask you questions about probable cause. 3) Damages: These questions may arise throughout the description of the events. For example if you are suing because you were wrongfully arrested the attorney may ask you questions about how long you were held or how you were treated. However, at the end of the interview they generally ask questions related to injuries loss of work, or mental distress. This may just be a question like, “Have you had any other problems because of the incident?”

Things to know for the hearing

1) The municipality does not have the right to exclude other plaintiffs from the hearing. For example if you and another person are suing together you may each attend one another’s 50(h) hearing. If they attempt to exclude you from the hearing they are most likely relying on an incorrect reading of 50(h) law applying to physical examinations. 2) The municipality has the right to order a physical examination of a claimant where necessary. However they must schedule it in a timely manner. You must comply with these requests.315 3) There are limits on the questions that you must answer and the information you must supply. However, these limits are not well defined.

314 N.Y. Gen. Mun. § 50-h(5); see also Ambroziak v. County of Erie, 577 N.Y.S.2d 1020, 1020 (1991). 315 Idi v. New York City Housing Authority, __ Misc.2d __, ___ N.Y.S.2d ___,(Supreme Ct., N.Y. County 2002).

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Municipal law 50(h) states that the municipality has a right to inquire “relative to the occurrence and extent of the injuries or damages”. The hearing should be limited in its scope to allow the municipality to gain basic information to investigate the accident and the injuries, and to obtain necessary information concerning witnesses to the occurrence.316 Failure to answer questions will generally not lead to dismissal of the action. Use this information with caution. The rule is not absolute, but questionable at best and entirely dependant on the question being asked. 317

c) Correcting the record After the hearing you should receive a copy of the transcript in the mail. Read through the transcript carefully and make all necessary corrections on separate a separate sheet of paper indicating the page and line that is to be changed, what should be substituted with, and the reason for the change. Then sign and notarize the correction sheet. You must sign and return the transcript to the specified address within 60 days of receiving it.318 The correction sheet must be signed by the same person who testified. No one can sign for the person testifying.

WRITING THE COMPLAINT XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

FILING YOUR COMPLAINT Where to file How to file

SERVING PROCESS

316 See Tardibuono v. County of Nassau, 181 A.D. 2d 879 (2d Dep’t 1992). 317 Other relevant case law includes - Wilson v. City of Johnstown, 78 A.D.2d 932, (3d Dep’t 1980); Alouette Fashions, Inc. v. Consolidated Edison Co. of New York, Inc., 119 A.D.2d 481(1st Dep’t 1986), aff’d, 69 N.Y.2d 787 (1987). 318 N.Y. CPLR Rule 3116.

Once you have filed all of your papers in court you must give copies of the paperwork you filed and a summons to each of the parties that you are bringing a suit against. This is called “Serving Process.” The procedure for doing this may vary depending on whether you are filing in forma pauperis, what type of officer you are serving, time concerns, and your own personal preference. Included here is a description of several ways to serve these papers on individual officers and the City of New York. However, you should check with the district court pro-se manuals for additional methods of service and information about filing. Preliminary Concerns

1. What papers are you serving? If you were not granted in forma pauperis (IFP) status you must file according to one of the methods below, which requires serving copies of both the summons and the complaint. If you were granted IFP status see the section below (Proceeding in forma pauperis).

2. Who can serve process? Anyone who is over 18 years old and not a party to the action (someone other than you) a) At your request, the court must assign a US marshal to serve process for you, if you have

received permission from the court to proceed in forma pauperis. Even if you are not proceeding IFP, you may request that a Marshal serve process however, the court’s decision is discretionary. If a US Marshal will be serving the officers and the city you do not need to read this entire section just the procedure for IFP.

b) If you can afford to do so you may want to consider hiring a process server to serve the officers for you. Process servers can be found in the Yellow Pages and online. You should check with multiple agencies or individuals to determine a reasonable price for service. However, hiring a process server can be expensive and is not absolutely necessary.

c) If you decide to have someone other than a marshal or a process server serve process you should go over the following sections with that person carefully. Failure to properly serve process could result in a judge dismissing your suit.

3. Proceeding In forma pauperis (IFP)

If you filed in forma pauperis you must send the Marshal's office: 1) a copy of the summons for each defendant, 2) a copy of the complaint for each defendant, 3) a certified (?) order granting IFP status for each defendant, 4) one USM-285 U.S. Marshal service instruction form for each defendant. 5) either full name of the officer or the last name and badge number; and an address on which to serve them.

Send this documentation to: United States Marshals Service Daniel Patrick Moynihan United States Courthouse 500 Pearl Street 4th Floor

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New York, NY 10007

All of this must be done as soon as possible. The marshal service often takes 60-90 days to serve the defendants. This means that if you do not send this information to them immediately the information may not be served within the required 120 days (see below).

4. Proceeding without IFP status (where you paid the filing fee) If you are filing in forma pauperis the marshals will take care of service of process for you as explained in the previous paragraphs. However, if you do not file IFP you will have to serve process on your own (and with the help of someone unconnected to the suit). 5. When must you serve process? You must serve process within 120 days of filing your complaint. You may serve papers any day except Sunday - or maliciously (you know that it is a religious holiday and do it any way) on a religious day like the Sabbath. However, if you are serving the City you must go during office hours. To get the office hours of Corporation Counsel (where papers are accepted) Call 311 or check their website http://www.nyc.gov/html/law/html/contact/offices.shtml

** IMPORTANT: Serving the City of New York ** If you are suing the City of New York (they are named in your complaint) you must serve process on NYC Corporation Counsel. This is done by:

1) Serving one copy on the clerk at the following address: The Law Department of the City of New York Office of the Corporation Counsel 100 Church Street New York, NY 10007

This is very easy. There is a clerk there who should accept your papers without question and provide you with a time stamp on your copy and the copy being filed with the court.

http://www.nyc.gov/html/law/html/contact/offices.shtml 2) Filing the same papers with the court immediately as explained in the section “filing proof of service.”

6. Serving Individual Police Officers Serving the individual Officers is often much more difficult because they can be hard to locate and hostile to service. In New York you may serve process by several other methods, each of which are valid but some may be preferable depending on your circumstances. You should read each carefully to determine which best suits your situation. You should also take careful notes of your delivery, including: time/date served, address served at, a description of the person accepting papers, and any other relevant information. This will be necessary when you fill out an affidavit of service to file with the court.

TIP: Finding Police Officers

Finding NYPD Officers can be challenging because they are rarely listed in the phone book and take steps to conceal their residence. If you were arrested you should have at least the arresting

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officer’s name and/or badge number. If you were not arrested you should try to find out the officer’s name any way possible. Be creative- ask around the neighborhood, or talk to one of the organizations listed in this packet that deal with police brutality in your area. If a Police Officer assaulted or mistreated you, chances are this was not their first incident and people will remember them. You could also go to the CCRB and make a complaint. When you make a complaint but do not know the officer’s name or badge # they will likely have you look at a photo array of officers. You may also be able to get the names of many officers through the discovery process, in which case you should serve them as “John Doe” or if multiple officers “John Doe 1” John Doe 2” etc. They should be served at the same precinct as known officers; or at the precinct you were arrested; or the precinct you were nearest to when the incident occurred. You can then amend the complaint after discovery and within the statute of limitations (see section on amending the complaint). It is often easiest to serve the officers at their precinct. To find out what precinct the officers work at, you can call a free service called “the Wheel.” Call this number 646-610-5130 and ask for the precinct of each officer whose name you have. They will give you the precinct and the address of each officer. If you call “the wheel” and they tell you the officer has retired you can subpoena their last known address through the New York City Police Pension Fund located at 233 Broadway 25th floor. However, you need a so ordered subpoena and $15 check or money order written out to the New York City Police Pension Fund. Once you get their address you can serve them at that residence as long as it is by the proper service rules. If you know the officers name and are going to serve them personally you can use one of the many private Internet databases, which charge a fee to find. However, police officers are often unlisted even in paid databases and you may get outdated or inaccurate results if the only identifier you have is their name. Forms of Service:

1. Waiver of Service UNDER Federal Rule of Civil Procedure 4(d) you may send a request via first class mail requesting the defendant to waive formal service. This requires sending them two requests for waivers and a self-addressed envelope. You can get these forms online from the southern or eastern district or at their pro se offices. Once you send the notice with your summons and complaint the defendant has 60 days to answer the complaint otherwise they must bear the cost of formal service. This means that if they do not agree to waive you can hire someone to serve process and they will have to reimburse you for this expense. The problem with this approach is that if they don’t waive you have lost most of the 120 days you have with which to serve process. For this reason you should probably only use this method if you are confident that they will waive service and you do it immediately. Some individuals are hard to track down and you may need all 120 days.

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2. Personal Service a) The summons and complaint must be given directly to the officer. b) If the officer resists or tells the server that they will not accept the papers they may be left

in the officer’s presence or outside the door that the officer answered but refused to open (as long as the process server identified them as the officer)

c) It is generally best to state “you have been served” or something similar. However, this is not always necessary.

d) Must be given to the actual officer not someone else (unless using the deliver & mail method)

e) Summons and complaint must not be in an envelope or covered

3. Substituted Service a) Deliver & Mail The third and probably the easiest method of service for multiple officers is also called “substituted service.” This type of service requires two steps 1) service on a representative and 2) mailing to the officers. This method does not require that you first attempt to serve the officers personally when multiple defendants are named, and the same person of suitable age and discretion is served on behalf of all. However, copies & summons must be provided for each defendant.

Step 1: Serving the summons on a representative You may serve a person of suitable age & discretion at either: the defendant’s actual place of business; or defendant’s usual place of abode. The easiest way is usually going to the precinct that the officers work out of and serving the person at the front desk. You should first ask if the officers are there. They will probably ask you who you are and what you want. Just tell them you are there to serve papers. They may be rude and or angry, but you must stay calm. If they tell you that you must wait for a supervisor or officer and do not indicate a reasonable time or they tell you to keep waiting, simply leave the papers on the individual at the desk and let them know they have been served. Then walk away. If they become angry and shout at them or throw them at you continue walking away. Do not take the papers back or respond to their actions. If you feel like you need to say something simply say “hey its just my job,” or something similar. Step 2: Mailing the summons & complaint Mail the summons to either: the defendant’s last known residence; or actual place of work.

Mailing issues If you mail to the actual place of business you must:

1) You must write “personal and confidential” on the cover of the envelope” or service is invalid.

2) You must not send the service certified mail or it will be invalid. However, you should get a receipt for the mailing. You must not include any information that would reveal that the communication concerns legal action against the person- or service is invalid.

3) You must mail the papers within 20 days of the physical service.

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*** REMEMBER: you must have enough copies of the summons and complaint to serve everyone and keep one copy of each for yourself. ***

b) Nail & Mail:

This method can only be done after multiple attempts at personal service as described in the first method in this section. This method of service is the least preferred by the courts and should be used only where absolutely necessary. This method has several steps.

1) You must first attempt personal service several times all at different times of day

and possibly at different locations. The Southern District Court’s pro se manual recommends personal service be attempted at least 3 times (before and after business hours) before “nail & mail service” can be effective. However, many sources note that courts may require more than this, including making inquiries into the person’s schedule, actual residence and work locations.

2) Summons & complaint must be affixed to the door of the defendant’s actual place of work, dwelling, or usual place of abode. Affixed means nailed, glued, taped, or attached in a way that insures it will stay there.

3) Mail a second copy of the summons & complaint to either: the last known residence; or actual place of work (this must be done in accordance the same rules for mailing as the serve & mail above)

TIP: Serving Special Units or Serving Agents

Certain Specialized units or officers must/should be served through an agent. You should be able to find this information out by calling the wheel. For example all Narcotics Divisions are closed to the public and you cannot get in the buildings to serve the officers. Therefore; you must go to 1 Police Plaza and serve someone in NYPD’s Narcotics Division. This is currently located in room 1100. Make sure you get the name and description of the person served. They will not stamp a copy for you. After completing service of process

1) Filing proof of service After a person other than you has served process, they must complete the form on the back of the original summons where it says “declaration of server,” affirming under penalties of perjury that service has been made and describing how the service was made. Then Make a copy of all of these papers and file the original with the court (actually the or ED SD Pro-Se Office) immediately. 2) Defendant’s time to respond After you have filed the complaint and served process on the defendants they have 20 days to respond with an answer or a motion. If they fail to raise any problems with your service of process within this time they have waived their right to do so. See Fed. R. Civ. Proc. 12(h).

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*** Remember you should check all of the filing rules with the court you are bringing your suit in. Each court and judge may have their own rules, which change over time and may be different for individuals filing pro se. ***

GETTING HELP FROM THE COURT XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Chapter 4 What Happens After You File Your 1983 Suit

RULE 12(B)(6) DISMISSALS AND IFP DISMISSALS XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

SUMMARY JUDGMENT DISMISSALS XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

DISCOVERY If you have made it past the defendant’s motions for dismissal and/or summary judgment, then there is a better chance that the court will appoint an attorney to assist you. If you have a lawyer, you can use this section of the Handbook to understand what your lawyer is doing, to help him or her do it better. If you do not have a lawyer, this section will help you get through the next stage on your own – but what you will be able to do will be more limited. Discovery is the process by which you gather information to your case and are required to disclose information to your opponent. Rules 26- 37 of the Federal Rules of Civil Procedure explain some “discovery” tools that either party in a lawsuit can use to get important information and materials from the other party before the case goes to trial. Discovery is very important, because it is a way for you to get the information you will need to win your case. If you don’t have a lawyer at this stage, you will need to spend a lot of time thinking about what facts you will need to prove at trial, and coming up with a plan about how to find out that information. In most cases, the first step in the discovery process is called a “Rule 26(f) Meeting.” The Federal Rules of Civil Procedure require that the plaintiffs and the defendants get together to talk about the case, the possibility of settlement, arrange for some exchange of information, and create a discovery plan or schedule. In the Southern district this is often referred to as a Rule 16 conference. You should be aware of the schedule and

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what the client and/or city is turning over. You need to read your district court’s rules, however, because many courts do not require this meeting for pro se inmates. Discovery in federal civil suits is much broader than that in criminal trials. Federal Rule of Civil Procedure 26(b)(1) provides in relevant part: “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”319 Courts have construed this rule liberally, “creating a broad range for discovery which would ‘encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ”320 Discovery tools: There are seven common types of discovery tools: 1) Rule 26 disclosures, 2) interrogatories, 3) request for the production of documents, 4) inspection, 5) depositions, 6) subpoenas, and 7) continuing independent investigation. 1) Rule 26 Disclosures Rule 26 Disclosures require both sides to provide the following automatically and without request from the opposition: (i) The name and, if known, the address and telephone number of each individual

likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) A copy – or description by category and location – of all documents, electrically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) A computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) For inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. These disclosures are subject to some exemptions and must be made within 14 days of the Rule 26(f) conference/meeting, unless some other period of time is set in the meeting/conference.

319 Fed.R.Civ.P. 26(b)(1). 320 Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J.2000) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)).

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2) Interrogatories Interrogatories are written questions, which must be answered in writing under oath. Under Fed.R.Civ.P. 33, you can send up to 25 questions to each of the other parties to the suit. There is no need to file the interrogatories with the court. Send them directly to the party. A person who is just a witness, and not a party, cannot be made to answer interrogatories, though he or she can voluntarily answer questions in an affidavit. If you want to question a witness you must do so in a deposition. Another downside to interrogatories is that they allow the defendants time to prepare an answer with an attorney.

You may want to ask questions about how long the specific officer has worked for the NYPD, where they are assigned, what their duties are, what they remembers of the incident, what they wrote about the incident in any reports, whether they have ever been disciplined, etc. It is also a good idea to take the opportunity to try to find out who else might be a helpful witness. You could ask the defendant to, “State the name and address or otherwise identify and locate any person who, to you or your attorney’s knowledge, claims to know of facts relevant to the conduct described in these interrogatories.” While objections are common and can be made, the rules of discovery are liberal.321

At the end of your questions, you should date and sign the page and type your full name and address below your signature. 3) Request for Production of Documents Requests for the production of documents like interrogatories must be made and complied with by both parties and are subject to the liberal discovery rules of the FRCP. Generally the police and city have more relevant documents to turn over than you do. If you were arrested the police department and City of New York will have documentation on the arrest. You should request:

“All police records related to People v. (your name) IND/DKT # (insert docket/indictment number) including but not limited to any of the following: “UF 61’s”, Arrest Reports/OLBS (On Line Booking Sheet), “DD5’s”, “UF-250’s”, 911 calls, sprint reports, complaint reports, complaint follow up reports, Activity log entries, arrest photos, firearms discharge/assault reports, “verification of Crime” forms, tactical plans, search warrants, supporting documents and affidavits for search warrants, investigations unit warrant notification sheets, return of search warrants, investigation unit warrant notification sheets, medical treatment of prisoner forms (AIDID- cards & reports), buy reports, prisoner movement sheets, ambulance call reports, log book entries, property vouchers, property envelope cover sheets.”

You may have already obtained these records through the use of foil or criminal court discovery, however, you should request them again and compare. Often multiple 321 See discussion above on discovery.

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requests turn up documents that were either intentionally or inadvertently left out of earlier responses. Even where you were not arrested you should request all of these documents. Although many, like arrest reports, will not apply, others may. For example if you were stopped and frisked the officer should have filled out a UF-250. So, when in doubt make the request.

You should also request any reports made by the Civilian Complaint Review Board (“CCRB”) and the Internal Affairs Bureau (“IAB”) against or involving the officers in your case. Additionally, you may request any and all other disciplinary records and records pertaining to civil actions against the officers. Often the city refuses to turn over any information that shows prior misconduct by the officers. Generally the city claims that CCRB and IAB complaints are irrelevant, or privileged.

Regardless of the city’s claims the reports are always relevant- at least for the purposes of discovery. The reason for the city’s objections are that complaints and reports are in legal terms “prior bad acts” which are generally irrelevant because they would be inadmissible at trial. However these bad acts in the context of a 1983 suit against officers are relevant & discoverable when offered for the following purposes at trial:

i) to prove motive322, opportunity, intent323, preparation, plan, knowledge, identity324 or absence of mistake325 under Rule 404(b);

ii) to impeach officer under rule 608 because the “prior bad acts” are probative of truthfulness or untruthfulness326;

iii) to show evil motive or intent or to show reckless or callous indifference to constitutionally protected rights for the purpose of obtaining punitive damages; 4) to prove your Monell claims against the city. 327 Furthermore, CCRB and IAB complaints are not irrelevant because they reflect charges dating from a long time ago or if they were deemed unsubstantiated.328

322 Lewis v. City of Albany Police Dept., 547 F. Supp. 2d 191, 200 (N.D.N.Y. 2008) aff'd, 332 F. App'x. 641 (2d Cir. 2009) 323 See, e.g., Ismail v. Cohen, 899 F.2d 183, 188-89 (2d Cir.1990); See also Pacheco v. City of New York, 234 F.R.D. 53, 55 (E.D.N.Y. 2006); Lewis v. City of Albany Police Dept., 547 F. Supp. 2d 191, 200 (N.D.N.Y. 2008) aff'd, 332 F. App'x. 641 (2d Cir. 2009). 324 Lewis v. City of Albany Police Dept., 547 F. Supp. 2d 191, 200 (N.D.N.Y. 2008) aff'd, 332 F. App'x. 641 (2d Cir. 2009) 325 DiRico v. City of Quincy, 404 F.3d 464 (C.A.1 (Mass.),2005). 326 See Hinojosa v. Butler, 547 F.3d 285 (C.A.5 2008) (defendant officer had, admitted dishonesty in explaining why he had fired his service weapon, allegedly violated internal rules in order to protect a City employee, allegedly lied in claiming that his patrol car was involved in a collision, and resigned from the police department followed these incidents. The court held that the plaintiff should have been able to cross the defendant officer on these prior dishonest acts where, “[g]iven that there were no witnesses to the arrest, credibility was paramount at trial.”) 327 Zhao v. City of New York, 2007 WL 4205856 (S.D.N.Y. 2007) citing Bradley v. City of New York, 2005 WL 2508253, at *1 (S.D.N.Y. Oct. 3, 2005); See also Jones v. DeRosa, 238 F.R.D. 157 (D.N.J. 2006); Lewis v. City of Albany Police Dept., 547 F. Supp. 2d 191, 200 (N.D.N.Y. 2008); See Vann v. City of New York, 72 F.3d 1040, 1045 (2d Cir.1995). See Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1966); Riggs v City of Albequerque, 916 F.2d 582 (10th Cir) 328 Zhao v. City of New York, 2007 WL 4205856 (S.D.N.Y. 2007); citing Castro v. City of New York, 1996 WL 355378, at *1 (S.D.N.Y. June 27, 1996); accord, e.g., Williams v. McCarthy, 2007 WL 3125314, at *5-6 (S.D.N.Y. Oct. 25, 2007); Barrett v. City of New York, 237 F.R.D. 39, 40-41 (E.D.N.Y.2006); Frails v. City

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If the city refuses discovery on the grounds of relevance you should argue that the documents are relevant for one or more of the applicable purposes described above. If they argue the documents are privileged they have to specify the privilege they are asserting and there is no general privilege protecting such documents.329 If the city asserts a privilege they must:

i. submit an affidavit from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit (a declaration or from defendant's counsel will suffice, provided that it is based on personal review of the documents by an official in the police agency (not the defendant's attorney); and

ii. must explain (not merely state in a conclusory manner) how the materials at issue have been generated or collected;

iii. how they have been kept confidential; iv. what specific interests (e.g., of the police officers, of law enforcement, or

of public concern) would be injured by disclosure to the plaintiff, to plaintiff's attorney, and the public; and

v. the projected severity of each such injury.330 The city will often refuse to disclose information under the law enforcement privilege. The law enforcement privilege protects information related to investigations including names and information related to confidential informants used to obtain search warrants331, and information that would reveal undercover officers investigatory techniques.332 Procedure for interrogatories and production of documents: The procedure for getting interrogatories and production is fairly simple. Just send your questions and your requests for production to Corporation Counsel of the City of New York, who is the lawyer for the police officers. Send separate requests and questions for each defendant. The city must respond within 30 days unless the court or the parties agree otherwise. The City may ask the judge for a “protective order” which blocks some of your questions or requests because they are irrelevant, privileged, or impose “undue burden or expense.” To do this they have to submit a motion, which then proceeds like the motion

of New York, 236 F.R.D. 116, 117-18 (E.D.N.Y.2006); Harper v. Port Auth. of N.Y. and N.J., 2006 WL 1910604, at *2 (S.D.N.Y. July 10, 2006); Pacheco v. Cit y of New York, 234 F.R.D. 53, 54 (E.D.N.Y.2006); Fountain v. City of New York, 03 CIV. 4526 (RWS), 2004 WL 941242 (S.D.N.Y. May 3, 2004) on reconsideration in part, 03 CIV.4526 RWS, 2004 WL 1474695 (S.D.N.Y. June 30, 2004). 329 See Barrett v. City of New York, 237 F.R.D. 39 (E.D.N.Y.,2006); King v. Conde, 121 F.R.D. 180, 189-190 (E.D.N.Y. 1988); Fountain v. City of New York, 03 CIV. 4526 (RWS), 2004 WL 941242 (S.D.N.Y. May 3, 2004) on reconsideration in part, 03 CIV.4526 RWS, 2004 WL 1474695 (S.D.N.Y. June 30, 2004). 330 See Id. 331 See eg., White v. City of New York, 2010 WL 2899665 (S.D.N.Y. 2010). 332 In re The City of New York, 607 F.3d 923 (2d Cir. 2010).

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to dismiss, with opportunity for legal memos and a court hearing. See Part ___ of this chapter. The prison officials may also refuse to answer questions or requests which are not covered by a protective order. Then you need to submit a Motion for an Order Compelling Discovery. In this motion, you indicate what they refused and why you need it. See Appendix Section _____. (4) Inspection With the permission of the court you also have the ability to inspect tangible things (clothing, weapons, etc.) and a chance to “inspect and copy, test or sample” them. And you have a right to enter property under the defendants’ control – such as a prison cell, or precinct, to examine, measure, and photograph it. (5) Depositions Deposition procedures are governed by FRCP 30 and are done outside the courtroom and will generally include you, an attorney or two for corporation counsel, and the witness being deposed. They will be recorded by may be recorded by audio, audiovisual, or stenographic means.333 They are generally subject to the rules of evidence and you and the attorney for the city may make objections, which will be noted on the record.334 However, the examination will proceed regardless of objections and the attorney may only instruct a deponent not to answer when necessary to preserve a privilege, or to enforce a limitation ordered by the court.335 Finally the witness testifying may within 30 days correct any perceived errors in their testimony.336 The pro se offices should provide you with a space and equipment to complete a deposition. One of the many advantages that depositions have over interrogatories is that you may depose anyone not just parties. Another advantage is that you will get to ask the person being deposed questions before they are able to consult with an attorney. Depositions are much more difficult than they sound, especially where you are a party to the suit. You should take the time to read and or watch any videos on how to effectively take or defend depositions prior to attending your own. You may find copies of these types of materials at bookstores, online or at some of the law libraries listed in the legal research section of this manual. Section ____ infra…

Procedure for commencing a deposition:

333 Fed.R.Civ.P. 30(b)(3). 334 Fed.R.Civ.P. 30(c)(1)&(2). 335 Id. 336 Fed.R.Civ.P. 30(e).

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Generally if you wish to depose a party all you have to do is serve a “notice of deposition” on opposing counsel. For non-parties that you wish to depose you will have to get and serve a subpoena to appear. You do not want to depose your own witnesses. The city will likely depose them, but if they don’t they may submit affidavits. This need only be done if they are the only witness can attest to facts you need to proceed past a motion summary judgment. Check these rules with the ED and SD.

(6) Subpoenas Once you begin your lawsuit you will have the power to subpoena documents and people with permission and authority of the court. While you should be able to obtain the majority of documents related to your case from the city, you may need to subpoena documents from public agencies, private corporations, or individuals not a party to the lawsuit. In this case you should use subpoenas. Although, if it is a public agency you should have attempted to FOIL those documents prior to filing your lawsuit where possible. Subpoenas must be authorized by the court. Contact the Pro se office of the court your action is in for information on how to get your subpoena authorized.

TIP: Don’t forget this is how you get CCRB investigation results

(7) Continuing Independent Investigations Investigations are one of the most valuable tools you have and should be used throughout your lawsuit as well as the discovery process. An investigation is only limited by your imagination and your authority (or lack thereof) as a citizen/civilian. You can and should: take photographs of the scene of the incident, and any injuries you sustained, locate, contact, and interview witnesses, locate and copy video audio and written records (and subpoena them if necessary), contact community members and groups that may have relevant information regarding your case or the police involved. Just keep in mind anything you write or record is likely discoverable (you will have to give it to the defendants). So, if a friend has relevant information and will likely testify for you at trial, there is no need to have them write out a statement (unless it is in the form affidavit required to overcome a motion for summary judgment).

The Defendant’s Discovery of Your Information and Material The city and police officers can use discovery against you. They will try to intimidate and scare you and get you to say things they can use against you. You must answer the questions unless the answers are privileged. If you don’t have an attorney, then the privilege that it is most important for you to know about is the 5th Amendment right against self-incrimination. You can refuse to answer a question in a deposition or an interrogatory if it might amount to admitting that you have committed a crime for which you could face charges.

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In general, try to keep cool and say as little as you can. If they ask to depose you, then ask the judge to put off the deposition until after he or she reconsiders your request for appointed counsel. See if the judge will at least appoint a lawyer to represent you at the deposition. You may want to tell the judge that you’re afraid you might be asked to say things which could be used against you in a criminal prosecution. Under Rule 30(a), a prisoner can be deposed “only by leave of the court on such terms as the court prescribes.” Warn your witnesses that the City will probably will depose them once you’ve revealed their identities. You must be notified in advance of any deposition scheduled in your case. You or your lawyer are entitled to be present, to advise and consult with your witness, and ask him or her questions that become part of the official record of the deposition. The witness has a right to talk with you or your lawyer beforehand and also to refuse to talk about your suit outside the deposition with anyone from the City of New York or anyone representing the police officers.

MOTIONS XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Chapter 5 The Legal System and Legal Research

TAKE ALL FROM PLA HANDBOOK XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Appendix

FREE RESEARCH RESOURCES & LIBRARIES XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX CUNY LAW!! Midtown library around 34th has the NYPL’s best legal collection

COURT CONTACTS

• Southern District Court pro se office (212) 805-0136 x 0175 room 230 • Eastern District Court pro- se office (718) 631-2600 press number for clerk then number

for pro se applicants. • Any other court contact information

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GLOSSARY OF TERMS Criminal complaint- A criminal complaint is the document that the prosecution creates in order to prosecute you in New York. It includes a recitation of the charges against you and the factual allegations against you. Accrue/accrual date- The accrual date is the date when the statute of limitations starts running against you. See section _____ on Statute of Limitations. Arraignment- If you are arrested in New York City you will either be issued a summons ticket, a desk appearance ticket (or “DAT”) or you will be sent to central booking and be brought before a judge. In either case your arraignment is the first time you will see a judge. There you will have a lawyer assigned or meet with private counsel and be brought before the judge who will either set bail, remand you (send you to jail without bail) or release you on your own recognizance (release you without requiring you to post bail). Collateral estoppel- Where a judgement on an issue in one case prevents (estops) a party from trying to litigate the issue in another legal action. De minimus- 1. Trifling; minimal. 2. So insignificant that the court may overlook it in deciding an issue or case. Black’s Law Dictionary 8th Ed. 2005. Nolle prosequi – This is a term used in criminal cases to describe a prosecutor's application to discontinue criminal charges before trial, or up until, but before verdict. Subpoena- A writ commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply. Black’s Law Dictionary 8th Ed. 2005. Subpoena duces tecum- a writ (subpoena) ordering the witness to appear and to bring specified documents records or things. (they may where applicable inform the person that appearance is not necessary). Black’s Law Dictionary 8th Ed. 2005. “So ordered” subpoena- a subpoena is a court document that orders the production of people or documents to a court. A subpoena is “so ordered” when it is signed by the judge. Someone needs to go through the entire manual and pull out legal terms and define them here (or potentially get rid of them if they are not terms a plaintiff will need to learn in order to communicate with the court)

FORMS Notice of Claim Blank Notice of Claim Instructions

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Notice of Intent to file a Claim Blank (Court of Claims) Sample 1983 Complaint NYPD FOIL DA FOIL Motion for Leave to File an Amended Complaint Declaration for Entry of Default Motion for Judgment by Default Motion to Compel Discovery Subpoena Duces Tecum Subpoena to appear for a Deposition Include other examples but refer most to the individual district courts

Contributors (not including the original NLG people who made the PLA which this is based on) thus far include: Jane Fisher-Byrialsen, Cynthia Conti-Cook Andrew B. Stoll, Kathryn Wentzel, Patrick Foster, Jane Gish, Insha Rahman, Amanda Jack, Orlando Rodriguez, Sidney Thaxter, Gideon Oliver, Paula Z. Segal… Don’t forget to add people as they do work, otherwise you will forget (as I have) exactly who contributed.