Stutz Civil Rights Complaint Against NYC Police Officers

7/30/2019 Stutz Civil Rights Complaint Against NYC Police Officers

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK______________________________

PAUL STUTZ,

PLAINTIFF09 Civ 01759/VM/DF

vs COMPLAINT [JURY TRIAL]

THE CITY OF NEW YORK, amunicipal entity, NEW YORKCITY POLICE OFFICER, NEWYORK CITY POLICE OFFICERVINCENT KONG, Shield # O1661,NEW YORK CITY POLICE OFFICERSJOHN DOES, all of theidentified and non identifiedpersons in their individual andin their official capacities,

DEFENDANTS________________________________

I. INTRODUCTION

1. This litigation arises out of the custodial arrestof the Plaintiff on the late evening of Thursday, July 17,

2008 and the early morning of Friday, July 18, 2008 at thelocation known as 344 West 38th Street, New York City, NewYork and the preferral of criminal charges and theprosecution of the Plaintiff associated therewith.

2. The Plaintiff was detained in custody forapproximately twenty six hours until at or about 1:30 A.M.in the morning of Saturday, July 19, 2008 when thePlaintiff appeared at an arraignment in the Criminal Courtof the City of New York, County of New York, and State ofNew York and was then released without bail and directed to

return to Court for further proceedings on September 25,2008.

3. The Plaintiffs Court appearance was thereafteradvanced and the Plaintiff returned to the Criminal Courtof the City of New York, County of New York, and the Stateof New York on August 12, 2008 where and when, on themotion of the New York County District Attorneys Office,


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the Criminal Court charge against the Plaintiff wasdismissed.

4. This is an action in which the Plaintiff seeksrelief for the violation of his rights as guaranteed under

the laws and Constitution of the United States.

5. The Plaintiff seeks monetary damages and suchother relief, including injunctive relief and declaratoryrelief [if appropriate], as may be in the interest ofjustice and as may be required to assure that the Plaintiffsecures full and complete relief and justice for theviolation of his rights.

II. JURISDICTION

6. Jurisdiction of this Court is invoked pursuant toand under 28 U.S.C. Sections 1331 and 1343 in conjunctionwith the Civil Rights Act of 1871, 42 U.S.C. Section 1983,and the Fourth and Fourteenth Amendments to the UnitedStates Constitution and the laws and Constitution of theState of New York.

7. The Plaintiff also invokes the jurisdiction ofthis Court in conjunction with the Declaratory JudgmentAct, 28 U.S.C. Sections 2201, et seq., this being an actionin which the Plaintiff seeks, in addition to monetarydamages, whatever other relief is needed to provide full

and complete justice including, if appropriate, declaratoryand injunctive relief.

8. This is an action in which the Plaintiff seeksrelief for the violation of his rights as guaranteed underthe laws and Constitution of the United States.

III. THE PARTIES

9. The Plaintiff is an American citizen and residentof the State of New York, the City of New York, and the

County of Queens.

10. The Defendant City of New York is a municipalentity which was created under the authority of the lawsand Constitution of the State of New York and which isauthorized with, among other powers, the power to maintaina police department for the purpose of protecting thewelfare of those who reside in the City of New York.


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11. Defendants Vincent Kong, Shield # 01661 and JohnDoes are New York City Police Officers and agents andemployees of the City of New York. Although their actionsand conduct herein described were unlawful and wrongful and

otherwise violative of the Plaintiffs rights as guaranteedunder the laws and Constitution of the United States, theywere taken in and during the course of their duties andfunctions as New York City Police Officers and as agentsand employees of the City of New York and incidental to theotherwise lawful performance of their duties and functionsas New York City Police Officers and agents and employeesof the City of New York.

IV. ALLEGATIONS

12. This litigation arises out of the Plaintiffscustodial arrest of the Plaintiff on Thursday night, July17, 2008 and on Friday morning July 18, 2008 at 344 West38th Street, New York, New York where the Plaintiff wasemployed in a part time basis and had been employed thereatonly since around or about July 8, 2008.

13. The Plaintiff was released from custody withoutbail at an arraignment at or about 1:30 A.M. on July 19,2008 and he was directed to return to the Court onSeptember 25, 2008 for further proceedings.

14. Thereafter, the date of the Plaintiffs return tothe Court was advanced to August 12, 2008. The Plaintiffreturned to Court on August 12, 2008 when, on the motion ofthe New York County District Attorneys Office, thecharges, which had been preferred against the Plaintiff,were dismissed.

15. The Plaintiff, who is an American citizen andresident of the City of New York, County of Queens, Stateof New York, is sixty three [63] years of age.

16. The Plaintiffs birth date is January 27, 1945.

17. The Plaintiff is legally. The Plaintiff waspreviously married and divorced. The Plaintiff has threechildren. His childrens respective ages are thirty eight[38], thirty six [36], and twenty [20].


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18. The Plaintiff resides at 31-75 29th Street, Apt. #C-8, Astoria, Queens, New York 11106.

19. At the time of the arrest the Plaintiff wasemployed full time, as a tax preparer and income tax

advisor, by a New York City tax preparation firm.

20. The Plaintiff has been employed full time at thefirm for approximately three years. The Plaintiff hasotherwise been doing income tax preparation, part time, forapproximately thirty [30] years since about 1976.

21. On the date of his arrest, the Plaintiff was alsoemployed, part time, at Hot Lap Dance Club which is locatedat344 West 38th Street, New York City, New York.

22. The Plaintiff had been employed in his part timeposition for only approximately nine days and, on the dateof the Plaintiffs arrest, the Plaintiff was working foronly the fifth time.

23. The Plaintiff is college educated. He receivedhis Bachelor of Science, in mathematics, from DrexelUniversity in Philadelphia in 1967. The Plaintiff has twomasters including a Masters in Computer Science from GeorgeWashington University, which the Plaintiff received in1972, and a Masters in Secondary Education which hereceived from Hofstra University in 2003.

24. On the date of the Plaintiffs arrest, thePlaintiff was working in his part time position at theafore-described location.

25. The Plaintiff was working as a part time employeeat the Club location because the Plaintiff was in need ofmore income to supplement the salary which he was receivingas a tax preparer and tax preparation adviser.

26. The Plaintiffs duties included creating the

nightly staff roster during the period of time that thePlaintiff was working at the Club location and otherwiseassuring that the Club location was operating smoothly andin a safe manner and fashion.

27. At or about 11:30 P.M., while working, a policearrest operation was commenced at the Club when many New


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York City Police Officers, most if not all of whom were inplain clothes, burst into the Club location.

28. Some of the Officers carried shields and somebrandished batons.

29. The Plaintiff was then performing his duties asdescribed on the floor at the Club location.

30. As the arrest operation commenced and took place,customers were rounded up and located in one area of theClub location while the employees of the Club, includingdancers employed by the Club, were gathered together by thepolice in another area within the Club location.

31. The Plaintiff was placed by the police in the areawith the customers, the police, apparently, believing thatthe Plaintiff was a customer.

32. All of the customers, including the Plaintiff,were asked to turn over their license. At some point, thecustomers, including the Plaintiff, were informed that theycould leave.

33. During the period, police officers would go to thearea where the employees of the Club had been situated andwould, then, from a list of the employees, take thatemployee to the office at the Club location and arrest that

individual.

34. At that time the Plaintiff was informed he couldleave after his license had been checked, the Plaintiffindicated to the police that he wanted to go to the officein order to retrieve his brief case.

35. When asked by a police officer why his brief casewas in the office, the Plaintiff informed the officer thathe was a part time employee at the Club and had only juststarted working, in his part time capacity, recently.

36. The Plaintiff was, then, placed under arrest andescorted to the office where he retrieved his brief casewhich was then seized by the police.

37. When the Plaintiff was informed that he was underarrest, the Plaintiff indicated that he had done nothing


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improper, that he was a part time employee, and he had onlyjust started to work at the Club location recently.

38. Along with other individuals who were arrested atthe time and at the location, the Plaintiff was transported

to the 7

th

Precinct where he was processed.

39. It is believed that the police who were engaged inthe police operation had a list of employees whom they wereauthorized to arrest and which the police utilized in thecourse of the police operation.

40. It is believed that the Plaintiffs name was noton the list and, if it was on the list, it should not havebeen on the list since the Plaintiff was only recentlyemployed at the Club location in a [part time capacity andengaged in no illegal conduct or activities on the fiveoccasions, including the night of July 17, 2008, when heworked at the Club location and otherwise was unaware ofany unlawful conduct, if any, on-going at and in the Clublocation.

41. Again, it is believed that the Plaintiff was noton that list and that, accordingly, the City of New Yorkand its agents knew or should have known that the arrest ofthe Plaintiff was improper and inappropriate and unlawful.

42. The Plaintiff had no information or idea

whatsoever what the basis was for his arrest as he had onlybeen working in the Club location for the last week orthereabouts and was only on his fifth shift.

43. When the Plaintiff protested his arrest, he wasdirected by a police officer to keep quiet.

44. The Plaintiff had no idea about any unlawful orillegal conduct, if any, which is alleged, as part of thepolice operation, was on-going, if any, at the Clublocation.

45. The Plaintiff tried to tell the police that he hadonly just been employed at the Club and that he was unawareof any alleged unlawful activity but the police simply toldthe Plaintiff to keep quiet.


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46. After several hours at the 7th Precinct, thePlaintiff was transported to Manhattan Central Booking inthe morning hours of July 18, 2008.

47. At or about 1:30 A.M. on Saturday, morning, July

19, 2008, the Plaintiff was presented at an arraignment inthe Criminal Court of the City of New York, County of NewYork, and the State of New York.

48. The Plaintiff was charged with promotingprostitution.

49. The Plaintiff never promoted prostitution or otherunlawful conduct, ever, in the Club location or otherwise;and he was unaware of any unlawful conduct whatsoever inthe Club location.

50. The Plaintiff has no criminal record and, prior tothe challenged arrest herein, the Plaintiff has never, everbeen arrested.

51. His arrest on the night in question, in front ofemployees and otherwise, was humiliating ands embarrassingand stress and anxiety inducing.

52. The Plaintiff was released without bail and on hisown recognizance and directed to return to Court onSeptember 25, 2008.

53. Thereafter, the Plaintiff retained a criminaldefense attorney.

54. The Plaintiffs court return date was advancedfrom September 25, 2008 to August 12, 2008.

55. On August 12, 2008, the Plaintiff returned to theCriminal Court of the City of New York, the County of NewYork, and the State of New York.

56. At the August 12, 2008 Court proceeding and on themotion of the New York County District Attorneys Office,the charge against the Plaintiff was dismissed.

57. The pendency of the Criminal Court proceeding,until it was dismissed, was stress and anxiety inducing,emotionally distressful, and otherwise humiliating andembarrassing.


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58. The Plaintiff committed no criminal offense orother offense whatsoever and no reasonable police officercould have reasonably and objectively believed that thePlaintiff committed any criminal offense or any other

offense under and of the law to justify custodial arrest,further detention, the preferral of any charge, includingbut not limited to promotion of prostitution, against him,and his criminal prosecution associated with the preferralof criminal charges including but not limited to thepromotion of prostitution charge.

59. There was no basis for the custodial arrest of thePlaintiff by the New York City Police Officers, each ofwhom is an agent and employee of the City of New York.There was no justification to handcuff the Plaintiff, frisksearch the Plaintiff, strip search the Plaintiff [withsquat], or to detain the Plaintiff in custody for theperiod of time he was held in custody until he appeared athis arraignment when and where he was released without bailand required to return to Court shortly thereafter when andwhere upon the motion of the New York County DistrictAttorneys Office the charge preferred against thePlaintiff was dismissed.

60. While the actions and conduct of the New York CityPolice Officers were unlawful they were taken in the courseof their duties and functions and incidental to the

otherwise lawful performance of those duties and functionsas New York City Police Officers and as agents andemployees of the City of New York. Among others involvedin the challenged actions and conduct herein were New YorkCity Police Officers John Does and Police Officer Kong,Shield # 1661.

61. There was no probable cause for the arrest of thePlaintiff or for the preferral of charges against thePlaintiff or for the criminal prosecution of the Plaintiff.

62. The Plaintiff was subjected to a Fourth Amendmentoffensive probable cause lacking false arrest and unlawfulcustodial detention and imprisonment, and he was subjectedto excessive, unreasonable and unnecessary force in theform of his handcuffing. Moreover, he was subjected to anunlawful frisk search subsequent and to a malicious abuseof criminal prosecution.


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63. The actions and conduct herein described werepropelled by the crime offense enforcement initiatives ofthe City of New York which are grounded in the philosophyof the ends justifies the means and which propel New YorkCity Police Officers to make unlawful and otherwise

unjustified arrests.

64. Such crime offense enforcement initiative propelsofficers to make custodial arrests where there is noprobable cause for the arrest and, by such, to generatearrest statistics and to otherwise make examples ofindividuals in the hope that such would depress crimeoffenses.

65. The Plaintiff was falsely arrested and subjectedto and excessive and unreasonable and unnecessary force [inthe form of handcuffing] and excessive detention and anunlawful frisk search and a malicious abuse of criminalprocess and a malicious prosecution.

66. The actions, conduct, policies and practices andcustoms herein described violated the Plaintiffs rights asguaranteed under the Fourth and Fourteenth Amendments tothe United States Constitution and the Civil Rights Act of1871, 42 U.S.C. Section 1983.

67. The Plaintiff suffered injuries and damagesincluding loss of liberty, fear, anxiety, mental distress,

emotional anguish, and psychological trauma and physicalpain and suffering.

68. The Plaintiff has not yet placed a monetary valueon the damages which he incurred although he believes themto be substantial and to include compensatory and punitivedamages.

69. The Plaintiff has no other adequate remedy of lawother than for the institution of this litigation.

V. CAUSES OF ACTION

A. FIRST CAUSE OF ACTION

70. The Plaintiff reiterates Paragraph #s 1 through69 and incorporates such by reference herein.


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71. The Plaintiff was unlawful and falsely arrestedand falsely and excessively imprisoned and detained inviolation of his rights as guaranteed under the FourthAmendment to the United States Constitution and the CivilRights Act of 1871, 42 U.S.C. Section 1983.

72. The Plaintiff suffered injuries and damages.

B. SECOND CAUSE OF ACTION


74. The Plaintiff was subjected to maliciousprosecution in violation of his rights as guaranteed underthe Fourth and Fourteenth Amendments to the United StatesConstitution and the Civil Rights Act of 1871, 42 U.S.C.Section 1983.


C. THIRD CAUSE OF ACTION


77. The Plaintiff was arrested for collateralobjectives other than legitimate law enforcement functions

including, as a collateral justification, that it wassimply easier to arrest someone and sort it out later thanit was to utilize the power of arrest in its proper,probable cause grounded form and fashion based on anobjective and reasonable belief of the arresting lawenforcement officer at the time of the arrest that theindividual was engaged in unlawful conduct.

78. Simply being present at a location and beingemployed by the entity which does business at the locationis not a sufficient basis to justify the formation of that

required objective and reasonable belief thereby propellinga belief that some other non legitimate, ancillary purposewas the basis on which the arrest of the individual wasgrounded.

79. The Plaintiff was subjected to malicious abuse ofcriminal process in violation of his rights as guaranteedunder the Fourteenth Amendment to the United States


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Constitution and the Civil Rights Act of 1871, 42 U.S.C.Section 1983.


D. FOURTH CAUSE OF ACTION


82. The policies, practices and customs hereindescribed propelled the actions and conduct herein. Thosepolicies, practices, and customs violated the Plaintiffsrights under the Fourth and Fourteenth Amendments to theUnited States Constitution and the Civil Rights Act of1871, 42 U.S.C. Section 1983.


E. FIFTH CAUSE OF ACTION


85. The Defendant City of New York, if the Cityrepresents its Officers, uniformly and as a matter ofpolicy and practice indemnifies its Officers for any awardof both punitive damages and compensatory damages.

86. The named and unnamed individual Defendants areemployees and agents of the City of New York and theirconduct, as described, was taken in the course of theirduties and functions as New York City Police Officers and,in their capacities as such, as agents and employees of theCity of New York.

87. Their actions and conduct, while unlawful andunconstitutional, nonetheless were actions and conducttaken to the otherwise lawful performance of their duties

and functions as agents and employees of the City of NewYork.

88. The Plaintiff is entitled to recover against theCity of New York for the conduct of its named and unnamedOfficers under the federal claim jurisdiction pursuant tothe doctrine of respondeat superior.


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WHEREFORE and in light of the foregoing, it isrespectfully requested that the Court assume jurisdictionand:

[a] Invoke pendent party and pendent claimjurisdiction.

[b] Award appropriate compensatory andpunitive damages.

[c] Award appropriate declaratory andinjunctive relief.

[d] Empanel a jury.

[e] Award attorneys fees and costs.

[f] Award such other and further relief asthe Court deems to be in the interestof justice.

DATED: New York, New YorkFebruary 24, 2009

Respectfully submitted,

/s/ James I. Meyerson______JAMES I. MEYERSON [JM 4304]64 Fulton Street @ Suite # 502New York, New York 10013[212] 226-3310[212] 513-1006/[email protected]

ATTORNEY FOR PLAINTIFFBY:_______________________

Stutz Civil Rights Complaint Against NYC Police Officers

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