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Thursday, November 20, 2014

Know Your Rights: Peaceably Congregating In Public a/k/a "Standing While Black" Is Not A Crime

As a civil rights lawyer, I frequently am consulted by people, and represent clients, who have experienced the following situation:

They are standing and talking with friends on a public sidewalk, minding their own business and not interfering with anyone else, when they are approached by police officers and ordered to "move along" or "clear out" or "disperse."  Most people in this situation obey the police officers and leave.  But some people challenge the police officers, asking why they have to move, claiming they have the right to be where they are, and refusing to leave.  Almost inevitably, these people are issued a summons or are arrested, usually for "disorderly conduct."

The question they always ask me is, are the police really allowed to boss people around like this and then arrest them when they refuse to obey their commands?

Before discussing the legal issues involved in this scenario, let's be clear:  We're talking about minority persons, primarily blacks and hispanics, living in predominantly minority neighborhoods, who are being bossed around by the police in this manner.  This scenario rarely happens to white persons or in white neighborhoods.  Indeed, my clients refer to this as "standing while black."

In my experience, this is a common NYPD tactic (directed and approved by high-level supervisors), which police officers argue is necessary to help deter and prevent crime.

As a practical matter, they may be right; aggressive policing probably does have some "positive" effect on the level of crime.  But as a legal matter, they are wrong.  In my view, the policing tactic we are discussing here is contrary to well-established state law and violates the First and Fourth Amendments of the U.S. Constitution.  Whatever the "benefits" may be of this policing tactic, they are outweighed by the high cost of violating individual rights, fueling anger and resentment towards the police, and eroding civil liberties for all New Yorkers.

In my experience, police officers firmly believe they have the authority to order groups of people to "disperse" for alleged crime fighting purposes, even people who are behaving in an orderly and peaceable manner.  The officers believe this authority comes from the disorderly conduct statute, which includes a subsection that states that a person is guilty of disorderly conduct when . . . "[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse."  P.L. 240.20(6).  Police officers interpret this provision to mean that they may order groups of people (usually three or more persons) who are congregating in public to disperse, and that refusal to obey their commands constitutes disorderly conduct.  WRONG!

Why is this wrong?  Because the police officers ignore the all-important introductory language of the disorderly conduct statute, which states that, to be guilty of disorderly conduct, a person must act "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."  This means that before a police officer may order a group of persons to disperse, they must be congregating "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."  People who are congregating in an orderly and peaceable manner -- who are not "disturbing the peace" -- are not acting disorderly and, therefore, the police do not have the "lawful" authority to order them to disperse.

The New York Court of Appeals has discussed this scenario in two recent cases:  People v. Jones (2007) and People v. Johnson (2014):

People v. Jones 

The defendant in Jones was charged with disorderly conduct, for obstructing pedestrian traffic (P.L. 240.20(5)), and resisting arrest.  The information alleged that the police officer "observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic]."  The officer then "directed defendant to move and defendant refused and as [the officer] attempted to stop defendant, defendant did run."  Based on these allegations, the Court of Appeals reversed the lower courts and dismissed the disorderly conduct charge against Jones, explaining (citations omitted):

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm."  The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here.  Something more than a mere inconvenience of pedestrians is required to support the charge.  Otherwise, any person who happens to stop on a sidewalk – whether to greet another, to seek directions or simply to regain one's bearings – would be subject to prosecution under this statute.  Those congregating on the street display "atrociously bad manners” by "discommod(ing) some other persons" but such conduct alone does not necessarily give rise to disorderly conduct.

Significantly, the Court of Appeals also dismissed the resisting arrest charge against Jones, because a person is guilty of resisting arrest only when he interferes with "an authorized arrest of himself or another person" (P.L. 205.30), and the Court of Appeals held that the police officer's arrest of Jones was not authorized (because Jones was not committing disorderly conduct).  In other words, although the officer gave Jones an "order" to disperse, the officer was not authorized to arrest Jones simply for refusing to obey the order; hence, the order could not have been a "lawful order" within the meaning of the disorderly conduct statute. 

The Jones decision stands for the proposition that police officers do not have the "lawful" authority to order groups of people who are peaceably congregating in public to disperse and then to arrest those who refuse to obey their commands.

People v. Johnson        

The defendant in Johnson was arrested for disorderly conduct, for refusing a lawful order to disperse (P.L. 240.20(6)), then charged with criminal possession of a controlled substance when cocaine was found on his person during a search incident to arrest.  Reversing the lower courts, the Court of Appeals held that there was insufficient evidence to support the defendant's arrest for disorderly conduct and, consequently, the drug evidence was suppressed and the indictment dismissed.  Specifically, the Court of Appeals found that "the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences."

The Court of Appeals based its decision on the police officer's testimony at the suppression hearing:

According to the officer's testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police.  The only evidence of any possible impact on the public resulting from their presence was the officer's testimony that one of defendant's companions "was partially blocking" the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it.  There is no evidence that anyone trying to enter or leave the store was actually obstructed.

Based on these facts, the Court of Appeals found that "[t]his was not sufficient to satisfy the public harm element of the statute."  As the Court emphasized, "[w]e have made clear that evidence of actual or threatened public harm ('inconvenience, annoyance or alarm') is a necessary element of a valid disorderly conduct charge" (citing People v. Baker (2013) and People v. Weaver (2011)).

The Court's concluding comment in Johnson highlights the unlawful nature of the policing tactic we are discussing:

It is understandable that police officers become concerned when people they believe to be gang members and their associates gather in public.  It is not disorderly conduct, however, for a small group of people, even people of bad reputation, to stand peaceably on a street corner.

In other words, so long as a group of people are congregating in public in a peaceable manner, the police do not have the lawful authority to order them to "disperse," even for alleged crime fighting purposes.  Indeed, the First Amendment of the U.S. Constitution guarantees the right of the people "peaceably to assemble."  Assuming a person otherwise is in compliance with the law, merely standing with others on a public sidewalk is not illegal.

A Word of Caution

Nothing in this blog entry should be construed as advising or recommending that people disobey the police and refuse to comply with orders to disperse.  For one thing, many times these orders are lawful and appropriate and refusing to obey the orders will result in a person's arrest (and possible beating) and prosecution.  For another thing, even when the orders are not lawful and appropriate, refusing to obey them still will result in a person's arrest (and possible beating) and prosecution.  Although in such a situation the person may have a valid civil rights claim, this does not outweigh the costs of being arrested (and possibly beaten) and prosecuted.  Lastly, many local criminal court judges either do not understand or do not care about constitutional rights and will convict a person even when the police acted unlawfully.  Consequently, whenever possible, it is better to avoid any problems with the police. 

Persons who have been wrongly arrested for "standing while black" should contact The Warshawsky Law Firm or another qualified civil rights lawyer immediately.


Monday, September 15, 2014

Workplace Bullying Is Not Illegal Unless It Is Motivated By The Victim's Membership In A Protected Class

Workplace bullying is a too common experience for too many employees, whether blue collar or white collar, hourly or salaried, administrative, technical, or professional.  As an employment lawyer, I frequently am called and emailed by people who have been bullied at work by coworkers, supervisors, and/or managers and who want to know their rights.  Unfortunately, unless the bullying was motivated by the victim's membership in a protected class, the victim essentially has no "rights" under existing federal, state, and city employment laws.

This important issue -- one that most people are not aware of -- was highlighted in a decision issued today by the U.S. District Court for the Southern District of New York (SDNY) in the case of Alfred Johnson v. City University of New York, No. 14-CV-587 (Hon. Valerie Caproni).  The plaintiff in Johnson was a lecturer in the music department of CUNY's Medgar Evers College.  He alleged that, for more than three years, he had been "bullied" and "harassed" by his department chairman.  After complaining about the bullying, first to the college and then to the U.S. Equal Employment Opportunity Commission (EEOC), his appointment was not renewed, which he alleged was retaliation for his complaints. 

The plaintiff then filed a lawsuit against CUNY, representing himself (pro se), in which he charged the college with wrongful discharge, failure to hire, failure to promote, and retaliation.  However, he did not allege that this mistreatment was based on his race, sex, age, national origin, religion, disability, or any other protected characteristic.  At a court conference, the plaintiff confirmed to the judge that "he was not alleging that his Chair's hostility was motivated by his race, sex, age, or national origin."  Consequently, the judge granted CUNY's motion to dismiss the lawsuit.  The judge explained the basis of her ruling in the opening paragraph of her decision:

"Bullying and harassment have no place in the workplace, but unless they are motivated by the victim's membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (Title VII), and any complaint to the Equal Employment Opportunity Commission (EEOC) based on them does not constitute 'protected activity' under Title VII.  Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due.  The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin."

The key point is that Title VII and other employment discrimination laws -- including, for example, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law -- only protect employees from mistreatment that is motivated by one or more of their protected characteristics.  The term "protected characteristic" refers to certain physical and social traits that are deemed by the law to be unrelated to a worker's occupational abilities, including age, sex/gender, race/color, national origin, religion, marital status, pregnancy, disability, and sexual orientation.  Importantly, different laws protect different characteristics.  For example, just about every law prohibits race and sex discrimination, but only the state and city laws prohibit sexual orientation discrimination.  A qualified employment lawyer will know which laws potentially apply in each particular situation.

The bottom line is that, for a victim of workplace bullying to be able to sue in court, the bullying must have been motivated by the employee's protected characteristic(s).  This is because the employment discrimination laws only protect against certain kinds of mistreatment, specifically defined in each law.  These laws do not protect against bullying, harassment, hostility, meanness, and unfairness in general.  Unfortunately for the plaintiff in the Johnson case, this means that his lawsuit against CUNY was doomed from the start.  Judge Caproni had no choice but to dismiss the case. 

If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.  


Tuesday, September 02, 2014

The Warshawsky Law Firm Files Civil Rights Lawsuit On Behalf Of Street Artist Who Was Falsely Arrested By NYPD

The Warshawsky Law Firm has filed a civil rights lawsuit on behalf of a New York City street artist who was falsely arrested by the NYPD for not having a general vendor license.

The artist, Peter Arkhanguelski, creates and sells wire art sculptures to the public and has been doing so for several years.  Last October, Mr. Arkhanguelski was selling his sculptures from a temporary folding table on the sidewalk on Broadway between 47th and 48th Streets.  A police officer, the defendant in the lawsuit, demanded to see his vendor license, which Mr. Arkhanguelski does not have and, by law, is not required to have.  Mr. Arkhanguelski tried to explain to the officer that a vendor license is not required to sell artwork, but the officer would not listen and arrested him for violating the city vendor rules.  The police officer then worked with the District Attorney's Office (which is entitled to absolute immunity from a civil rights lawsuit) to prosecute Mr. Arkhanguelski, who was found "not guilty" by Justice Anthony J. Ferrara. 

The police officer's actions violated Mr. Arkhanguelski's rights under the Fourth Amendment of the U.S. Constitution, which protects Americans from unreasonable searches and seizures.

Almost 20 years ago,  in the case of Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), the federal court of appeals ruled that the city vendor rules could not be applied to street artists because that would infringe their right to free speech under the First Amendment.  The NYC Department of Consumer Affairs acknowledges that artists are not subject to the city vendor rules, stating on its website that a general vendor license is not required for persons who sell "artwork, including paintings, photographs, prints, and sculptures."

The police officer who arrested Mr. Arkhangueski either knew or should have known that Mr. Arkhanguelski was not breaking the law by selling his artwork to the public without a vendor license.  (Mr. Arkhanguelski possessed other necessary business licenses.)  By arresting Mr. Arkhanguelski, the officer violated his constitutional rights and the officer can and will be held personally liable in a court of law.

The lawsuit was filed in the U.S. District Court for the Southern District of New York and has been assigned to District Judge George B. Daniels.  Case No. 14-CV-7068 (GBD) (SDNY).  The complaint asserts causes of action under 42 U.S.C. s. 1983 for false arrest and malicious prosecution.  Steven M. Warshawsky is lead plaintiff counsel.

 

If you or someone you know has been the victim of false arrest, please contact The Warshawsky Law Firm today. 


Tuesday, July 29, 2014

Steven M. Warshawsky Will Be Speaking At PLI Bridge-The-Gap Program In NYC On August 6, 2014

The Warshawsky Law Firm is pleased to announce that Steven M. Warshawsky will be speaking at the Practicing Law Institute's Bridge-The-Gap program in New York City on August 6, 2014.  This all-day CLE program is designed for newly admitted attorneys and will cover a variety of topics.  Mr. Warshawsky's topic is "Elements of effective legal writing, whether directed to judges, counsel, or clients."  For more information about the program, see here.  For a copy of Mr. Warshawsky's lecture handout, "76 Tips For Better Legal Writing," see here.


Monday, July 21, 2014

The Warshawsky Law Firm Obtains $50,000 Judgment For Discharged Hotel Worker

In December 2012, the Warshawsky Law Firm filed a federal employment discrimination lawsuit on behalf of  Walter Pacheco, a now-retired houseman at the Park South Hotel in Manhattan, who alleged that he was discriminated and retaliated against by the hotel on the basis of age, disability, and protected activity, when the hotel failed to accommodate his disability (back injury), terminated his employment (allegedly as part of hotel-wide layoffs), and refused to rehire him (although the hotel hired several younger workers for the same position).

The complaint was filed in the U.S. District Court for the Southern District of New York (SDNY) and asserted claims under the Americans With Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the New York City Human Rights Law (NYCHRL).  The hotel subsequently filed a motion to dismiss the complaint, which was denied in its entirety by the court.

After the court denied the hotel's motion to dismiss, and before the parties engaged in discovery, the hotel made an "offer of judgment" to Mr. Pacheco, in the amount of $50,001, plus costs and reasonable attorney's fees, pursuant to Rule 68 of the Federal Rules of Civil Procedure.  Unlike an ordinary settlement offer, which results in the dismissal of a pending lawsuit, an "offer of judgment" means that a decision (judgment) is entered in the lawsuit in favor of the plaintiff (here, Mr. Pacheco).  Although Park South Hotel denies any wrongdoing, the legal effect of the "offer of judgment" is that Mr. Pacheco "wins" the case.  See here for a more detailed discussion of Rule 68 offers of judgment.

Judgment officially was entered in this case against Park South Hotel on July 17, 2014, by order signed by District Judge Paul A. Crotty.

Our client's rights have been vindicated!

 

If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.


Wednesday, June 18, 2014

The Warshawsky Law Firm Files Wage And Hour Class Action On Behalf Of Brooklyn Preschool Teachers

On Tuesday, June 17, 2014, The Warshawsky Law Firm filed a class action lawsuit on behalf of a group of preschool teachers in Brooklyn who were not paid any wages for more than five weeks of work between December 7, 2013, and January 17, 2014.  The defendants in the lawsuit are Kinder Stuff 2010 LLC d/b/a Kinderstuff Daycare & Learning Centers and Mark Tress, the owner and CEO of Kinder Stuff.  Kinder Stuff operates several sites throughout Brooklyn (see the company's website).  The plaintiffs are seven preschool teachers who worked at the company's Bay Parkway location.

The plaintiffs assert claims for unpaid minimum wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. s. 206, and for unpaid wages under the New York State Labor Law, Article 6 s. 190.  In addition, they assert claims for violations of the pay rate notice requirements set forth in the New York State Labor Law, Article 6 s. 195 (as adopted by the Wage Theft Prevention Act).  The plaintiffs are bringing their lawsuit as a collective action under the FLSA and as a class action under the New York State Labor Law, on behalf of all similarly-situated Kinder Stuff employees who likewise were not paid for their work and/or who did not receive the mandatory pay rate notices.

The lawsuit was filed in the United States District Court for the Eastern District of New York in Brooklyn.  Case No. 14-CV-3789 (Block, J.) (Pollak, M.J.).  Steven M. Warshawsky is lead plaintiff counsel, along with co-counsels Sheila Y. Samuels (Law Office of Sheila Samuels) and Tomasz J. Piotrowski (T.J. Piotrowski Law Firm).

 

If you or someone you know has been the victim of unpaid wages or other labor law violations, please contact The Warshawsky Law Firm today.

 


Thursday, May 22, 2014

The Police Violated My Rights; Should I Complain To The CCRB?

The New York City Civilian Complaint Review Board (CCRB) is an "independent" city agency, created in 1993, whose mission is to "receive, investigate, mediate, hear, make findings, and recommend action on complaints against New York City police officers alleging the use of excessive or unnecessary force, abuse of authority, discourtesy, or the use of offensive language."  The CCRB is an "all-civilian" agency and is not a part of the NYPD.

As described on the CCRB website, the CCRB handles complaints about four kinds of "alleged police misconduct":

1.  Force -- this refers to the use of excessive or unnecessary force; behavior that includes punching, shoving or choking a civilian, using pepper spray and up to and including the use of deadly force.

2.  Abuse of authority --  this refers to abuse of police powers to intimidate or mistreat a civilian; for example, an officer’s refusal to provide name and badge number, an improper strip search or vehicle stop and search, or an improper “stop, question and frisk."

3.  Discourtesy -- this refers to cursing and using other foul language or gestures.

4.  Offensive language -- this refers to slurs and derogatory remarks or gestures based upon race, ethnicity, religion, gender, sexual orientation, or physical disability.

The general procedures for filing a complaint with the CCRB are described here.

As a civil rights lawyer, one of the questions I often am asked by potential clients who believe their rights were violated by the police is whether or not they should file a complaint with the CCRB.  There is no one "right" answer to this question, which depends on the specific facts and circumstances of each person's situation, but let me discuss some basic issues to consider.

First, there is no legal requirement that a person file a complaint with the CCRB before pursuing a civil rights lawsuit against the police, for example, for false arrest or excessive force.  The CCRB plays no role under either federal or state civil rights law.  (In legal terms, there is no "administrative exhaustion" requirement involving the CCRB.)  Rather, the CCRB provides a separate avenue for seeking "justice" when the police violate a person's rights.

Note:  Before a person may file a civil rights lawsuit against the NYPD under state law, a notice of claim must be filed with the NYC Comptroller's Office.  See my Civil Rights Law FAQs for a discussion of "notice of claim."  A complaint made to the CCRB does NOT qualify as a notice of claim under state law.

Second, in my experience, the CCRB is a toothless, ineffectual agency that routinely sides with the police and rarely achieves any justice for persons whose rights have been violated.  If a person wants justice, he or she needs to go to court.

In my experience, the CCRB almost always finds that a person's complaint against the police is "unsubstantiated."  Under CCRB rules, this means that "there was insufficient evidence to establish whether or not there was an act of misconduct."  From the CCRB's perspective, "insufficient evidence" exists whenever there is a "he said - he said" disagreement between the complainant and the police officer(s).  Without additional evidence, ideally in the form of video or audio recordings, the CCRB almost always concludes that the complainant has not met his burden of proof (by a preponderance of the evidence) and, therefore, the complaint is "unsubstantiated."

Significantly, the CCRB will not question the credibility of the police officers or carefully scrutinize their stories and evidence.  They do not act as the advocate for the complaining party, like a lawyer will in court.  Once they have completed their investigation, they usually decide against the person whose rights were violated.

In sum, my advice is not to expect justice from the CCRB.  A person who files a complaint with the CCRB will expend time and effort (for example, to meet with the investigator and provide a statement about the situation) and will believe or hope that justice will be done.  It probably won't be.

Third, nevertheless, it still can be a good idea to file a complaint with the CCRB.  Why?  Because, although they do not do justice for people, they conduct very thorough investigations that provide valuable information and documentation for a person who wants to bring a civil rights lawsuit in court.  The agency's investigation process is described here.

The most important part of the CCRB investigation process are witness interviews.  The agency's investigator will interview the complaining party (who must provide a truthful statement, of course), the police officers involved in the incident (who are supposed to provide truthful statements but frequently lie), and other witnesses who can be identified and contacted.

In my experience, police officers usually have not been "coached" by lawyers before meeting with the CCRB investigator and, consequently, are much less likely to lie effectively during the interview.  By the time they get to court, however, they usually "get their stories straight."  So having them questioned, under oath and on the record, even before a lawsuit is filed is extremely useful.     

As a general rule, therefore, I recommend that a person who believes his or her rights have been violated by the police make a complaint to the CCRB, not to achieve justice, but to take advantage of the agency's investigation process to obtain information and documentation that will be very useful in a civil rights lawsuit in court.  Although this may delay the filing of the lawsuit, I think the trade-off is worth it. 

Note:  There is a big caveat to this recommendation, which has to do with the statute of limitations for filing a civil rights lawsuit in court.  If a person makes a complaint to the CCRB, this does NOT "toll" (or stop) the running of the statute of limitations under either state or federal law.  Regardless of the CCRB, under state law a person must file a notice of claim within 90 days of the incident and must file a lawsuit within one year and 90 days of the incident; under federal law (42 U.S.C. s. 1983), the lawsuit must be filed within three years of the incident.  Because these procedural issues are complicated, it is extremely important to contact a civil rights lawyer as soon as possible after an incident.

 

If you or someone you know has been the victim of police misconduct, please contact The Warshawsky Law Firm today.

 


Friday, May 09, 2014

Employment Laws Prohibiting Sex Discrimination In The Workplace

According to the U.S. Bureau of Labor Statistics, women make up 47% of the American work force (in 2013). Although a lower percentage of women (57.2%) than men (69.7%) participate in the labor market overall, women are disproportionately represented in “management, professional, and related occupations” and “sales and office occupations,” comprising 51.4% and 61.9% of these fields respectively.

Specific examples of women’s share of various occupations include: 71.9% of human resources managers; 69.7% of health services managers; 62.1% of accountants; 58.1% of market research analysts; 34.9% of computer systems analysts; 73.8% of psychologists; 33.1% of lawyers; 37.3% of producers and directors; 63.3% of public relations specialists; 56% of pharmacists; 35.5% of doctors; 60.6% of physical therapists; 54.7% of veterinarians; 47.2% of advertising sales agents; 57.6% of real estate brokers and sales agents; 49.7% of retail salespersons; and 94.4% of secretaries and administrative assistants. Complete statistics for 2013 may be found here.


Read more . . .


Tuesday, April 22, 2014

The Warshawsky Law Firm Succesfully Opposes Summary Judgment Motion In Employment Discrimination Lawsuit Against CrowdTwist

The Warshawsky Law Firm represents Fred Brown, a senior sales and marketing professional with more than 15 years experience in business consulting and software solutions, in an employment discrimination lawsuit against CrowdTwist, Inc., an internet start-up in New York City focusing on "omni-channel loyalty" programs.  Mr. Brown was recruited by CrowdTwist in 2011 to serve as the young company's Head of Sales, but was terminated without warning less than four months later, despite an excellent performance evaluation.  Mr. Brown filed suit against CrowdTwist alleging, inter alia, age discrimination in violation of the New York City Human Rights Law.  The lawsuit is pending in the U.S. District Court for the Southern District of New York (SDNY), before District Judge Harold Baer.

Following extensive discovery, the defendant moved for summary judgment.  On April 15, 2014, Judge Baer denied the defendant's motion with respect to the plaintiff's age discrimination claim.  Judge Baer found that the plaintiff made out a prima facie case of age discrimination, based on evidence of discriminatory comments made about his age (Mr. Brown is in his 40s whereas the company's officers and employees are in their 30s) and the company's decision to replace him with a younger employee (also in his 30s). Judge Baer further found that the plaintiff raised an issue of fact regarding his job performance, which the company claims was unsatisfactory but which the company's own employee evaluation program reported was "excellent."  Judge Baer concluded that "[a] reasonable jury might see these positive indicators as undermining Defendant's story."

Judge Baer's decision denying the motion for summary judgment on the plaintiff's age discrimination claim is a tremendous victory for our client!  

The next step is a jury trial, which is scheduled to begin May 5, 2014, in the SDNY courthouse on Pearl Street in Manhattan.  We are confident that we will prevail!

Steven M. Warshawsky is lead counsel for Mr. Brown.

Update:  The parties reached a confidential settlement prior to the start of trial.

If you or someone you know has been discriminated against in the workplace, please contact The Warshawsky Law Firm today.  


Saturday, February 01, 2014

How Much Is My False Arrest Case Worth?

As a civil rights lawyer, I frequently am consulted by people who have been arrested by the police without justification, what the law calls a “false arrest.”  After describing the facts to me, they always ask me two questions:  first, “do I have a case?” and, second, “how much money can I win in court?”  These are complicated questions that depend on the facts of each case.  Nevertheless, there are certain general principles that apply to all false arrest cases.

Regarding the first question, I discussed the requirements for bringing a false arrest lawsuit in a previous blog entry.  This blog entry will discuss how much a person’s false arrest claim may be worth.

Generally speaking, a "false arrest" occurs when a police officer (or sometimes a private person or business) detains or confines a person against his or her will and without proper legal authority.  A false arrest violates both federal law (the Fourth Amendment of the United States Constitution as enforced through 42 U.S.C. s. 1983) and New York law (the common law tort of false imprisonment). 

Under both federal and state law, a person who is falsely arrested is entitled to compensation for (1) loss of liberty, and (2) physical and/or emotional pain and suffering caused by the false arrest.  (Injuries caused by excessive force and malicious prosecution are compensated separately.)

Importantly, a person who is falsely arrested is legally entitled to compensation for loss of liberty (to redress denial of free movement and harm to personal dignity), even if he or she does not experience any additional physical or emotional pain and suffering.  See Kerman v. City of New York, 374 F.3d 93,123-126 (2d Cir. 2004); Gardner v. Federated Department Stores, Inc., 907 F.2d 1348, 1353 (2d Cir. 1990).

Obviously, a person who suffers more harm, including physical and/or emotional injuries, would be entitled to more compensation than a person who suffers less harm, including only loss of liberty.  Nevertheless, “even absent such other injuries, an award of several thousand dollars may be appropriate simply for several hours loss of liberty.”  Kerman, supra, at 125-126.

Ultimately, the question as to how much a person should be compensated for being falsely arrested is decided by the jury (or sometimes the judge in a bench trial), which has broad discretion to award an amount of money that is “fair and reasonable” given all of the facts and circumstances of the case.  The jury is not required to award the plaintiff any specific amount of money; it can award a small amount or a large amount, depending on the case.

It is impossible to predict how much the jury (or judge) will award in any given case.  However, reported court decisions provide useful insight as to how courts “value” false arrest claims.  These decisions include:

In Gardner v. Federal Department Stores, supra,  at 1353, the Second Circuit held that $50,000 was reasonable compensation for approximately 8 hours in custody, or $6250 per hour.

In Musto v. Arakel, 584 N.Y.S.2d 812, 813 (N.Y. App. 1st Dep’t 1992) (mem.), the First Department held that $60,000 was reasonable compensation for a false arrest (time in custody not given by court in decision).

In Roundtree v. City of New York, 617 N.Y.S.2d 170, 171 (N.Y. App. 1st Dep’t 1994) (mem.), the First Department held that $200,000 was reasonable compensation for approximately 84 hours in custody, or $2381 per hour.

In Mercado v. City of New York, 703 N.Y.S.2d 283, 283 (N.Y. App. 2d Dep’t 2000) (mem.), the Second Department affirmed the jury’s verdict that $120,000 was reasonable compensation for a false arrest (time in custody not given by court in decision).

In Martinez v. Port Authority of New York and New Jersey, 445 F.3d 158, 160-161 (2d Cir. 2006) (per curiam), the Second Circuit affirmed the lower court’s ruling that $160,000 was reasonable compensation for approximately 19 hours in custody, or $8421 per hour.

In Sylvester v. City of New York, 2006 WL 3230152, at *4 (S.D.N.Y. Nov. 8, 2006), the district court affirmed the jury’s verdict that $30,000 was reasonable compensation for “several hours” in custody at precinct (specific time in custody not given by court in decision).

In Landow v. Town of Amherst, 853 N.Y.S.2d 760, 761 (N.Y. App. 4th Dep’t 2008) (mem.), the Fourth Department affirmed the lower court’s ruling that $10,000 was reasonable compensation for approximately 4 hours in custody, or $2500 per hour.

Based on these cases – and there are others that show larger and smaller amounts of compensation – a good rule of thumb is that a typical false arrest claim is “worth” between $2500 and $5000 per hour that the plaintiff spends in custody.  (Note:  These amounts do not include punitive damages, which the plaintiff sometimes is awarded in false arrest cases.)

Of course, some cases will be worth more and some cases will be worth less, depending on the circumstances of each case.  As noted previously, it is impossible to predict how a jury (or judge) will rule in any given case.  Consequently, I think it is prudent for lawyers and clients alike to take a cautious, conservative approach in estimating how much a false arrest claim may be worth. 

Moreover, this analysis assumes that the plaintiff in fact proves that he was falsely arrested.  A person who was not falsely arrested is not entitled to any compensation for being held in custody, no matter how long the detention or how traumatic the experience (although the person may have other claims, e.g., for excessive force or for denial of due process).        

Lastly, it should be noted that under federal law, but not under state law, a plaintiff who wins a false arrest lawsuit is entitled to recover reasonable attorney’s fees, in addition to compensatory damages.  In many cases, this means that the defendant will be ordered to pay the plaintiff’s lawyer directly, instead of the lawyer taking a percentage of the plaintiff’s jury award. 

If you or someone you know has been the victim of a false arrest, please contact The Warshawsky Law Firm today.

 


Thursday, January 30, 2014

How To File A Lawsuit For False Arrest Against The Police In New York City

Police officers have one of the most important and difficult jobs -- maintaining law and order -- without which everything we hold dear, our freedom, our property, our safety, our prosperity, would be in jeopardy.  But this does not mean that police officers are above the laws they enforce or the people they serve.  On the contrary, in "a nation of laws, not men," police officers are required to carry out their duties with a punctilious regard for the constitutional rights of citizens, who are entitled to "life, liberty, and the pursuit of happiness" without unjustified interference by the police.

Unfortunately, in a nation (and city) as large and diverse and tumultuous as ours, police officers often overstep their authority and violate people's rights.  Sometimes they do so intentionally, even maliciously; other times, they do so mistakenly or negligently.  Either way, someone's rights have been violated.  The question is, what can be done about it?  What remedy, if any, does the legal system provide?  Civil rights lawyers, like myself, use the legal system, wherever possible, to help people whose rights have been violated by the police.

Perhaps the most common type of civil rights case involves false arrest.  Generally speaking, a "false arrest" occurs when a police officer (or sometimes a private person or business) detains or confines a person against his or her will and without proper legal authority.

A false arrest potentially violates both federal civil rights law and state common law.  Although the basic definition of false arrest is the same under federal and state law, the procedural rules governing false arrest claims under federal and state law are very different and must be complied with strictly or the person's case will be thrown out of court.  This discussion outlines these differing rules.

Anyone who believes they have been falsely arrested should consult with a qualified civil rights lawyer immediately.

Probable Cause

A false arrest claim under federal law arises from the Fourth Amendment of the United States Constitution, which provides, in relevant part:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."  A false arrest, therefore, involves the "unreasonable" "seizure" of a "person."  This language has been interpreted over the centuries to prohibit an arrest without probable cause.  The same definition is used under state law.

Probable cause is the most important concept in false arrest cases.

What is "probable cause"?  Probable cause means "information sufficient to support a reasonable belief that an offense has been committed by the person to be arrested."  Probable cause does not mean proof beyond a reasonable doubt or proof by a preponderance of the evidence.  It does not mean the person is guilty.  It simply means that the police officer had a "reasonable belief" that the person committed a crime.

This is a very low standard, one that is usually satisfied by police officers who perform their jobs competently and in good faith.  (An even lower standard -- "reasonable suspicion" -- is required to justify a so-called investigative stop-and-frisk.)  Importantly, just because a person in fact is innocent, there still may be probable cause for his arrest.

The existence of probable cause is a complete defense to an action for false arrest, under both federal law and state law.  If the police officer had probable cause, therefore, even if the person was innocent, the police officer (or the city) will not be liable for false arrest.  This means that many claims for false arrest will be defeated in court, once the police officer shows the court the evidence he relied upon in arresting the plaintiff.

Of course, if the police officer's version of events is legitimately disputed by the plaintiff, or if the police officer is lying about what happened, or if the police officer's assessment of the situation was wrong, or if the police officer acted in bad faith, then the plaintiff may be able to show that there was no probable cause for his arrest; if so, his claim will be allowed to proceed.

Note:  If a person was indicted by a grand jury, or the criminal court ruled against him at a probable cause hearing, or he pleaded guilty, or the jury convicted him at trial, then he will not be able to sue for false arrest (unless he can prove that he was the victim of police fraud or perjury or suppression of evidence or other serious misconduct).  But accepting an ACD (adjournment in contemplation of dismissal) will not bar a person from suing for false arrest.    

Federal Law

A person who is falsely arrested by the NYPD may sue the police officer who arrested him under federal civil rights law, specifically, 42 U.S.C. s. 1983.  Other laws may apply in certain situations, but Section 1983 is the main federal law used by civil rights plaintiffs.

The statute of limitations for false arrest claims under Section 1983 in New York is three years (note: it is different in other states).  This means that a person must file his lawsuit within three years of the false arrest or his claim will be untimely and dismissed by the court.  

As a general rule, a person's false arrest claim accrues -- i.e., the statute of limitations starts running -- when he is released from custody (not necessarily the same day as the arrest).  If a person is arraigned before a judge and remanded for further detention, his false arrest claim accrues when he becomes detained pursuant to legal process.  This is a technical legal issue that the U.S. Supreme Court addressed in Wallace v. Kato, 549 U.S. 384 (2007).

For most persons, who are released from custody pending the outcome of their criminal matter (whether on bail or ROR), the statute of limitations on their false arrest claims starts running as soon as they are released.  This also is the rule under state law.

Either way, a person who has been arrested should consult with a qualified civil rights lawyer as soon as possible.

There are no administrative prerequisites for filing suit under Section 1983.  This means that a plaintiff may file his case directly in court without first filing a claim with the police department or other government agency.

Section 1983 provides a full range of potential remedies, including actual damages, compensatory damages, punitive damages (only against individual police officers, not against municipalities), and attorney's fees.

Section 1983 can be a powerful statute for plaintiffs, but it has two serious limitations.

First, individual police officers who violate a person's civil rights may escape liability if the court believes that the officers, in effect, made a "reasonable mistake."

Generally speaking, courts are reluctant to hold police officers liable for their misconduct.  Courts will impose liability on police officers only if they violate a person's "clearly established" rights and only if a "reasonable" police officer would have known he was violating the person's rights.  This is the doctrine of "qualified immunity" -- the purpose and effect of which is to excuse police misconduct except in the clearest or most egregious cases.  Unfortunately, many meritorious civil rights lawsuits are defeated on the grounds of qualified immunity.

The second limitation under Section 1983 is that there is no respondeat superior liability by which to hold municipalities vicariously liable for their police officers' civil rights violations.  "Respondeat superior" refers to the basic legal principle whereby an employer will be held vicariously (automatically) liable for the employee's wrongful acts committed within the scope of employment.  This rule does not apply under Section 1983.

To hold a city liable under Section 1983, a plaintiff must prove that the city itself violated his civil rights.  How?  For example, by showing that the police officer who violated his rights was acting pursuant to an official policy or pervasive custom and practice of the police department (e.g., the NYPD's stop-and-frisk program); or the police officer's actions were authorized and approved by a high-ranking official with policymaking authority; or the police department was "deliberately indifferent" to the plaintiff's civil rights by failing to properly train and supervise the abusive officer.  These are the main theories of municipal liability under Section 1983.  They derive from the seminal U.S. Supreme Court case of Monell v. Department of Social Services, 436 U.S. 658 (1978).

Unfortunately, in the typical false arrest case it is extremely difficult for the plaintiff to hold the City of New York liable under Section 1983.  This means that if the individual police officer defendant is granted qualified immunity by the court, the plaintiff loses his case.

State Law

In some ways, state law is both better and worse than federal law when it comes to civil rights lawsuits.  It is better because it provides a remedy directly against the City of New York (and other municipalities).  It is worse, however, because it has a much shorter statute of limitations and imposes strict administrative prerequisities that must be followed before a lawsuit may be filed in court.

To hold a city or city employee (including police officer) liable under state law, a person (called the "claimant") must first file a "notice of claim" with the appropriate government agency.  This is a requirement of New York General Municipal Law s. 50-e 

For false arrest claims against the NYPD, the notice of claim must be filed with the NYC Comptroller's Office.  See here for instructions and forms.

IMPORTANT:  The notice of claim must be filed within 90 days of the false arrest.  (Not three years, as under Section 1983.)

The notice of claim must include the claimant's personal information and provide a complete description of the incident, including when it occurred, where it occured, who it involved (including all information known about the police officers), what happened, and how the claimant was injured.  It must be notarized by the claimant.

It is crucial that the notice of claim be completed and filed properly, as any errors in the process can bar the claimant from suing in court under state law.  (The notice of claim requirements do not apply to, or have any effect on, a plaintiff's claims under Section 1983.)

Once the claimant submits his notice of claim, the city will investigate the claim, including taking the claimant's deposition (called a "50-h hearing") and obtaining medical and financial records pertaining to the claimant's injuries (e.g., physical injuries, psychological trauma, lost wages, property damage, etc.).  The claimant cannot file his lawsuit in court until he has complied with the city's investigation.  See N.Y. Gen. Mun. Law s. 50-h.

In any event, a lawsuit under state law against a police officer and/or the City of New York must be filed no later than one year and ninety days after the incident.  This is a strict time limit.  If the city drags its feet during the investigation process, the claimant still must abide by this deadline.  (Any legitimate disputes over the city's conduct during the investigation can be addressed in court.)  Accordingly, the sooner the claimant files his notice of claim and complies with the city's investigation, the better.

Assuming a person follows the notice of claim rules, he can assert false arrest claims under state law against both the individual police officer and the City of New York.  (Do not name the NYPD itself as a defendant, because it is considered a "non-suable" entity.)

Significantly, under state law, the doctrine of respondeat superior applies -- meaning that the City of New York will be held vicariously (automatically) liable for the police officer's misconduct -- even if the officer himself is granted qualified immunity (a version of which also applies under state law).  This is the greatest advantage of state law over federal law in civil rights cases.  Indeed, it can be the difference between winning a case and receiving compensation for a false arrest and having the case thrown out by the judge.

Remember, however, that under state law, as under federal law, the City of New York cannot be held liable for punitive damages.  State false arrest law, which derives from common law tort law, also does not provide recovery for attorneys fees.  This means that the plaintiff's attorney will be paid from the plaintiff's damages award or settlement amount (i.e., a contingency fee).

It cannot be emphasized enough how important the filing of a proper and timely notice of claim is for a successful civil rights lawsuit.  Although Section 1983 can be a powerful statute, the best strategy in these cases is to combine federal law claims and state law claims in one lawsuit.

In short, the first thing an NYPD false arrest victim should do is file a notice of claim about the incident with the NYC Comptroller's Office.  It generally is a good idea to have a qualified civil rights lawyer prepare and file the notice of claim to ensure compliance with its myriad requirements.

Important:  Do not wait to file the notice of claim until after the criminal proceedings have ended; otherwise the 90-day deadline may have passed and you may lose the right to pursue your claim under state law.

If you or someone you know has been the victim of a false arrest, please contact The Warshawsky Law Firm today.


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