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A police officer may frisk a detainee if the officer reasonably suspects that he or she is in danger of physical injury


Pursuant to CPLR 3211(a)(7) and/or CPLR 3212, the defendants, by notice of motion dated 15 November 2010, move for an order dismissing plaintiff’s claims against them. This motion is opposed by the plaintiff.

On 21 May 2008, MM and JC, NYPD officers assigned to the prisoner van component of a Street Narcotics unit, were driving in the vicinity of West 121st Street and Eighth Avenue in Manhattan when they saw plaintiff with another individual at the northeast corner. As the two walked north on Eighth Avenue towards West 122nd Street, the officers observed plaintiff twice adjust the right side of his waistband. They thus decided to follow the men as they walked around the block to West 121st Street and Seventh Avenue. Deeming plaintiff’s conduct as indicative of his possession of a firearm, and given what they characterized as a circuitous route the two took in a high- crime area, they decided to stop them.

The officers approached the two and ordered them to stop. MM approached plaintiff’s companion to question him, turning his back to plaintiff, while JC approached plaintiff, frisked him, and removed from his right pants pocket a firearm. MM and JC then arrested plaintiff for criminal possession of a weapon.

Plaintiff was detained at the 28th Precinct and subsequently transferred to Rikers Island Correctional Facility. On 23 May 2008, he was indicted for criminal possession of a weapon in the third degree. A Mapp hearing was held on 9 September 2009, during which only MM testified. He was unable to testify as to the exchange between JC and plaintiff or as to the specifics of the search. The judge ordered the gun suppressed, finding that although there may have been a predicate for approaching and inquiring, there was no probable cause for searching plaintiff, absent any evidence that he said anything in response to JC’s questioning that was in any way suspicious. On 15 October 2008, the charge against plaintiff was dismissed.

On 5 November 2008, plaintiff served a notice of claim on City and the NYPD, and on 14 January 2009, he was examined pursuant to General Municipal Law (GML) § 50-h. Recounting the events of 21 May 2008, plaintiff stated that he and his friend were walking to lunch and that he never left his friend’s side. He also testified that as soon as the officers approached them, JC ordered him up against a car and frisked him, and that there was no verbal exchange between them.

On 27 July 2009, plaintiff served on defendants a summons and complaint in Bronx County, asserting claims for false arrest, false imprisonment, malicious prosecution, negligent and intentional infliction of emotional distress, and civil rights violations under 42 USC § 1983. On 25 January 2010, City interposed its answer and demand to change venue. It was changed to New York County by order dated 14 October 2009. On 11 February 2010, plaintiff served defendants with a verified bill of particulars. Depositions of plaintiff and MM were conducted on 27 September 2010 and plaintiff filed a note of issue on 14 October 2010.

On 5 November 2010, JC executed an affidavit setting forth his version of the facts leading to plaintiff’s arrest, stating that he observed plaintiff and his friend acting suspiciously, as plaintiff had repeatedly adjusted his waistband, the two had walked around the block in a high- crime area, and plaintiff’s friend briefly disappeared from their view, leaving plaintiff standing on the street corner. He also states that on stopping plaintiff, he asked him to show his hands and inquired as to whether he had anything he should not have, and that plaintiff did not respond verbally but instead placed his hands on a car parked at the curb and spread his legs. He observes that plaintiff seemed nervous, as he was “sweating, jittery, and scanning quickly with his eyes” after he asked him again if he “had anything he should not have, and specifically if he had any sharp objects on him,” and that he decided to frisk him because he feared for his safety.

Winegrad v New York Univ. Med. Or. and Zuckerman v City of New York ruled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. If this burden is not met, summary judgment must be denied, regardless of the sufficiency of plaintiff’s opposition papers.

Alvarez v Popect Hosp. ruled that when the moving party has demonstrated entitlement to summary judgment, the burden of proof shifts to the opposing party which must demonstrate by admissible evidence the existence of a factual issue requiring trial. The opposing party must “lay bare” its evidence unsubstantiated allegations or assertions are insufficient. Moreover, as a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof, but must affirmatively demonstrate the merit of its claim or defense. A defendant moving for summary judgment must negate, prima facie, an essential element of the plaintiff’s cause of action. All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.

In the case at bar, there is no evidence in the record indicating that MM and JC misrepresented, falsified, or suppressed evidence or acted in bad faith, and JC’s unlawful frisk of plaintiff neither constitutes fraud nor shows bad faith.

To state a claim for malicious prosecution, a plaintiff must allege that: (1) a criminal proceeding was commenced; (2) the proceeding was terminated in his favor; (3) there was no probable cause; and (4) the proceeding was brought out of actual malice. A criminal defendant has not obtained a favorable termination of a criminal proceeding where the outcome is inconsistent with the innocence of the accused. Although a criminal defendant need not prove actual innocence, the absence of a conviction is not in and of itself a favorable termination. Thus, a final disposition that does not involve the merits and that does not reflect the defendant’s innocence does not constitute a favorable termination.

The charges against plaintiff were dismissed after the weapon was suppressed, and neither the merits of the charges against plaintiff nor his innocence led to the dismissal. Thus, plaintiff has not shown that the termination of the criminal proceeding is not inconsistent with his alleged innocence.

When a plaintiff’s civil rights claims under 42 USC § 1983 are premised on common law claims for false arrest, false imprisonment, and malicious prosecution, and these claims are dismissed because defendants have demonstrated that there was probable cause for plaintiff’s arrest, plaintiff’s section 1983 claims must be dismissed as well.

It was ruled in People v Brannon that in order to forcibly stop and detain a person, a police officer must have “reasonable suspicion that such person has committed, is committing or is about to commit a crime. If a person’s actions are at all times innocuous and readily susceptible of an innocent interpretation, reasonable suspicion does not exist. Presence in a high- crime area and the readjustment of one’s waistband do not ordinarily give rise to reasonable suspicion.

A police officer may frisk a detainee if the officer reasonably suspects that he or she is in danger of physical injury as held in Powell v Powell. As with a stop, presence in a high-crime area and repeated adjustments to one’s waistband alone do not give rise to the reasonable suspicion required for a frisk. Additionally s held in the same case, in light of the recognized unsettling aspect of a police-initiated inquiry of citizens. A detainee’s nervous demeanor does not authorize a frisk.

Believing that plaintiff had a gun, JC decided to search him to protect himself from physical injury, and he interpreted plaintiff’s nervous behavior as indicating that he could attack him. Without more, JC had no authority to frisk plaintiff absent any suspicious responses to or gestures toward him. JC’s observation that defendant and his friend’s “seemed ‘very apprehensive”‘ did not provide reasonable suspicion for frisk, as there existed no objective indicia of criminality. Moreover, there exist material issues of fact as to the verbal exchange between plaintiff and JC. Although JC states that he ordered plaintiff to show his hands and asked him whether he had anything he should not have, plaintiff maintains that JC ordered him up against a car and frisked him without saying anything.

In asserting a claim against a municipality under 42 USC § 1983 on the basis of a municipal employee’s acts, a plaintiff must demonstrate that the employee was acting pursuant to an official municipal custom or policy in depriving plaintiff of his civil rights akin to Monell v New York City Dept. of Social Servs. A municipality may, under certain circumstances, be held liable under section 1983 for constitutional violations resulting from its failure to train its employees. The failure to train, however, must result in deliberate indifference to the constitutional rights of an individual.

In this case, plaintiff alleges that MM and JC were acting pursuant to official City policy and custom in stopping, frisking, and arresting him, and that City failed to train their employees effectively as to the constitutional limits on their authority to stop and search, encouraged its employees to lie about and cover up their constitutional violations, and failed to remove from duty officers with prior disciplinary records. As defendants have failed to offer evidence demonstrating that they adequately trained and supervised NYPD officers, or that their failure to do so does not constitute “deliberate indifference, they have failed to negate, prima facie, an element of plaintiff’s claim and have thus failed to satisfy their prima facie burden on plaintiff’s civil rights claims related to his stop and search.

Based on Tannenbaum v City of New York and pursuant to GML § 50-e, a plaintiff asserting common law claims against City employees must name them in his notice of claim, and the failure to do so warrants dismissal of these claims. Here, it is undisputed that plaintiff failed to name MM and JC in his notice of claim.

A police officer is entitled to qualified immunity where his conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known or was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act. An officer’s belief is “objectively reasonable” if there was arguable probable cause, which exists if either, it was objectively reasonable for the officer to believe that probable cause existed or officers of reasonable competence could disagree on whether the probable cause test was met. Immunity should ordinarily be determined by the court on a motion for summary judgment unless the facts concerning its viability are in dispute.

A person’s right not to be subjected to an unlawful stop, search, or arrest is clearly established. Therefore, MM and JC are entitled to qualified immunity only if it was objectively reasonable for them to believe that there was reasonable suspicion to stop and search plaintiff and probable cause to arrest him.

It undisputed that JC discovered a gun upon frisking plaintiff. As possession of a gun constitutes a crime, the officers had an objectively reasonable belief that there existed probable cause to arrest plaintiff, and they are entitled to qualified immunity on this ground.

The court, therefore, grants defendant’s motion for summary judgment as to plaintiff’s common law claims for false arrest, false imprisonment, and malicious prosecution, grants defendant’s motion for summary judgment as to plaintiff’s federal claims for false arrest, false imprisonment, and malicious prosecution, denies defendants’ motion for summary judgment as to plaintiff’s federal claims related to his stop and frisk and orders that the remainder of the action shall continue.

New York Gun Crime Lawyers, New York Arrest Lawyers and Stephen Bilkis & Associates are experts in this kind of litigation. If you have questions regarding the issues in this case where you find yourself similarly situated, please do not hesitate to call our toll free number or visit our office near you.

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