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No More Police Violence

An Unjust Chase, and Avoidable Police Brutality

  Alan Fuchsberg  |  June 6, 2018  |  

This is the story of an actual case successfully settled by our attorneys despite conjured and unjust opposition. The case concerns excessive force, false arrest and imprisonment, battery, and the violation of constitutional rights committed by the defendant, a police officer of the City of New York Police Department (NYPD) against our client, a recent high school graduate known as a football star, and a dedicated volunteer in serving his community. The instance of these concerns occurred on a warm Sunday evening in July, the day before our client’s university programming began. The harmful events that took place that evening, however, not only disallowed our client from being able to attend his highly-anticipated start to college but his recovery caused him to miss his first year of college altogether, as he was traumatically brain damaged.

On that July night, our client was returning home from enjoying a summer barbecue at Carnarsie Pier with friends. The police presence that evening emerged when, soon after sundown, law enforcement began demanding that the youth attending the barbecue evacuate the public pier. Even as the group complied and began their leave, the law enforcement tailed behind in suspicion and followed them their walk home. Beyond this escort, as our client and the group approached their homes at a nearby housing development, the police in the area became tense and alert in sight of the large numbers of youth. This tension manifested in the form of shouts from the group of youth when a gunshot was fired into the air by a member of the crowd. While no one was injured, nor was there knowledge of who in the group had fired the shot, the officer present called on the radio “shots fired” and requested supporting law enforcement. Members of the group, including our client, began leaving the scene—possibly in fear of the arriving police officers, and possibly in fear of additional gunshots. When our client and his friends continued their leave and were a few blocks away, a police officer leaped from the back of a cop car and began to pursue them. They dispersed, leaving our client to be chosen for an unsubstantiated chase by the police officer. Reminiscent of a video game, the officer went after our client for multiple blocks in order to “catch the bad guy,” without any evidence as to our client having had a gun nor firing the shots. After the officer yelling, “Stop,” our client slowly turned around with his hands in the air. Contradictory to his own directions, the police officer did not stop, and instead unreasonably, recklessly, intentionally, and violently tackled and struck our client in the head with his shoulder and bared upper forearm. This impact caused our client to fly off his feet and land violently head-first onto the concrete sidewalk.

Our own analysis partnered with reviews by a police best practices expert, as well as a biomechanical expert, leads us to conclude that the police officer’s actions and use of force were improper and against police tactics, training, duty, and procedure. In addition to demanding responsibility be taken by the officer that has committed this violence, we also took on this case in order to retrieve damages for our client that would alleviate the medical costs of his severe injuries, as well as attempt to assuage some emotional trauma. The results of the officer’s recklessness were the life-altering injuries of our client, stated by our neurological expert testimony to be:

“Acquired Aphasia, which makes it harder for him to say what he means, to follow conversations, and to read; Neurocognitive Disorder due to Traumatic Brain injury, which includes deficits in memory, language, and executive functions as well as having components of behavioral disturbance in terms of mood issues, apathy, and other behaviors; Cognitive decline since July 11, 2010; Moderate Major Depressive Episode…[and] Post Traumatic Stress Disorder.”

Our settlement for this case arose on the eve of trial, following court proceedings that included an effective defeating of motion for summary judgment. Such fact is important to note, as a motion for summary judgment on behalf of the defense if granted, would have disregarded all of the substantial evidence of the case crucial to rectifying the violence against our client. The defense was doing so in an attempt to dismiss the charges held against the police officer for the harm he caused our client, despite our layers of factual evidence demonstrating the validity of our charges. Below we detail the evidence, including an impartial eye-witness testimony of the events, as well as professional evaluations—in order to paint a full picture of opposing injustice.

The seeking of dismissal and Motion for Summary Judgment were based on the police officer’s take of the events that had occurred, which can be reasonably stated as inherently biased toward his own defense and against our client—unlike our impartial eyewitness testimony. Our demand for our evidence to be heard in front of a jury, rather than being dismissed, was reasonable and crucial also due to the fact that our client was knocked unconscious by the event, and does not have a memory of those final moments. The officer’s testimonies of the events and his actions, in addition, were inconsistent and unreliable when called into question as to whether his collision with our client was accidental or intentional. Such inconsistencies regarding this question are impactful on the consequences to be faced by the officer, as,

“An accidental application of force, even if caused by negligence, may not serve as the basis for a § 1983 excessive force claim inasmuch as the force must be intentionally applied (County of Sacramento v Lewis, 52~ US 833, 843-844 [1998])…[t]o recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e. wrongful under all the circumstances, and intent to make the contact without the plaintiffs consent” (Higgins v Hamilton, 18 AD3d436 [2005].)

In the process of court proceedings, the defendant police officer generally maintained that the collision was an accident, demonstrated by the following excerpt from one of the police officer’s interviews stating that he:

”was chasing [plaintiff], but about three [3] car lengths behind, when [plaintiff] suddenly stopped and turned in his direction. Because his momentum was carrying him forward so quickly, [Officer] said, he was unable to stop in time. So, he put his arm up to cover his face and he and [plaintiff] collided head on. As a result of the impact, [plaintiff] stumbled backward, fell, and hit his head.”

Thus, the officer claimed that his collision with plaintiff was accidental. However, when asked during the NYPD administrative trial what his intention was as he approached plaintiff at full speed, he testified that his intent was “to get him immediately on the ground…[by] whatever means possible” because he feared that our client might have had a gun. In examining this statement, it is evident that the officer effectively intentionally collided with our client.

In addition to being contradictory to his previous statement of knocking our client down accidentally, the events of that night left the officer with no substantial reason to assume our client had been possessing a gun—a fact admitted by the defendant himself when questioned under oath. This fact was evident before beginning the chase against our client, and was evident during and after, according to our eyewitness testimony—a Domino’s Pizza delivery man who was returning from a delivery, and standing across the street during the events—gave the following statement,

“a T-shirt wrapped around his head and hanging down a little bit…[he was] stopping, no weapons on him, you can see. He had big hands, he had on basketball shorts. You could see his waistline[his] hands were up. His hands never went down. He didn’t have nothing…he didn’t have nothing in his hands.”

Just as the eyewitness said, the police officer later admitted that there was not, in fact, a weapon in possession of our client.

Even if the officer’s claim to accidental violence was to be taken into account, the licensed biomechanical engineer, based on the eyewitness testimony, explains that the distance between our client and the officer was approximately 8.5 feet at the time our client began to slow down and turn around in an attempt to comply with the officer’s unsubstantiated order to stop. At this distance, the officer should have been able to stop three to five seconds prior to making contact with the plaintiff—in accordance with his sworn police officer duty to use minimum force against our client. The officer also declared while under deposition questioning that there was not, in fact, anything that prevented him from turning to the left or right in order to avoid collision with our client. These factors void any claim that the officer was using as minimal force as possible, as well as any chance that the nature of the collision was accidental—showing his unjust intentions to tackle our client.

This further raises an inference that the police officer intentionally and unreasonably decided to strike our client in his head in order to injure him. This inference is additionally supported by eyewitness testimony of how the officer,

“hit the back [our client’s] with his forearm, he locked in, as he charged in. If you’re playing football and you know how you go for a block or something, he hit him with the back of his forearm. He came in full charge, boom” and how the officer “raised his elbow and charged in, pushing his shoulder blade up and with force as strong as he could—like a football charge—with the full force with the back of his arm.” Harrell EBT, p. 35 (Exhibit 10); Statement of Terry Harrell (Exhibit 8).

A police expert that was prepared to testify on our case importantly explains that police officers are trained to, have a duty to, and have an obligation to stay away from the “danger zone” when applying force, instituting a stop, detaining a person, and/or arresting a person. He states that police officers should never apply force to the “danger zone,” which includes a person’s head and neck area. This is understandable, as it is commonly known that the head and neck are areas of the body particularly vulnerable to severe, life-altering injuries. Making clear the measure of abuse and excessive force that the police officer utilized is important not only to demonstrate his grave wrongdoings as an individual sworn to protect the general public but also to demand that the institution he functions under, namely the NYPD, be held accountable for such. “A municipality may be held vicariously liable for torts committed by its employee while acting within the scope of his or her employment” including a claim for “excessive force pursuant to New York common law” Holland, 90 A.D.3d at 844, 846.

Beyond the mechanics of how the police officer was able to decrease if not entirely avoid the collision with our client, our police expert also pointed out how merely fleeing or running from the scene of the events, when there was no evidence to support our client had done anything wrong nor possessed a weapon, does not create probable cause for an arrest of an individual. Nor was our client obligated to comply with the order to stop that the officer has emitted, as legally an individual has a right to “remain silent or walk or run away” and a right to refuse to answer a police officer’s inquiry, and that there is no right to stop or even pursue an individual “absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime.” Howard, 50 N.Y.2d at 586. The fleeing as it is is not illegal and can be just as consistent with innocence as it is with guilt, since “flight, like refusal to answer, is an insufficient basis for seizure or the limited detention that is involved pursuit.” Id. at 592. In addition, it was argued during our case that the defense had no grounds as to allege our client with a Disorderly Conduct by Obstructing Traffic charge during this flee, as the illegal pursuit by the police is what caused our client to run across the street supposedly obstructed during the events. We reasoned in our court proceedings that there is an issue as to whether the officer had probable cause to arrest plaintiff on this charge, nor any charge at all.

Finally, our expert explains how in the following protocol properly to express minimal force, de-escalation tactics could have been used in this case and how such tactics would have avoided the need for the use of force and would have prevented the injuries that our client sustained as a result of the officer’s actions. Therefore what is essential to know about this case is that whether the collision was accidental, or an intentional use of excessive force as we believe, the officer had no probable cause to chase our client—a fact to have been known by the police officer before hurting our client in such a manner. It is clear through multiple explanations as to how the officer could and should have avoided unjust violence against our client that was an unreasonable, excessive, and reckless abuse of force.

In examining the factors of our case, they all reminisce of a violent series arising from an effort to wrongfully arrest our client. In addition to the faulty charge of Disorderly Conduct by Obstructing Traffic, the defendant was attempting to charge our client with resisting arrest, claiming that our client had been resistant when the officer attempted to place him in handcuffs. However, our eyewitness testimony makes clear that after our client’s impact onto the pavement, he did not move, badly hurt by his head injuries. It is clear that our client was a victim to a wrongful arrest, as during an arrest,

“‘the plaintiff must demonstrate that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and that the confinement was not privileged’” (Shaw v City of New York, 149 AD3d 698 [2016], quoting Torres v Jones, 26NY3d 742, 759 [2016]).

In our case, our client was injured so severely due to the officer’s tackle, he was unable to physically resist arrest. After our client’s transport to the hospital, and during his treatment for the tackle-induced trauma, he was woke up to being under wrongful arrest and imprisonment—handcuffed to his hospital bed.

One of the most important efforts our firm had made in this case was the defining of the defendant police officer’s intentions. The clarification of the officer’s meaning behind his actions as intentional, not accidental, establishes the grounds of abusive force against our client while substantiating, in addition, the injustices of false arrest and imprisonment. Voiding this idea that such severe injustices were accidental is crucial to proving the intentional violation of his duties a New York City police officer, who is sworn to serve the best interest and safety of the public. Evidence shows that there could have been the prevention of this violence and the physical and emotional trauma of our client if the police officer had practiced due intentionality. However, the prevention of this violence is not only applicable when in relation to our client’s case, as he is not, too great misfortune, the first victim of police brutality.

Instances of police violence are a common and chronic issue amongst low-income communities of color, despite the oath to be kept by the NYPD in a supposedly non-discriminatory fashion:

“On my honor, I will never betray my badge, my integrity, my character or the public trust. I will always have the courage to hold myself and others accountable for our actions. I will always uphold the constitution, my community, and the agency I serve,” (IACP).

When we examine this oath, in comparison to our case alone, it is clear that our client’s constitutional rights were disregarded rather than upheld. The defendant’s actions, as well as testimonies, revealed dents in his integrity, as well as his unwillingness to take accountability for his violence perpetrated. Police officers such as the defendant, the officers following our client and his friends from the pier, and the regular high police presence in low-income communities, are part of a system that hurts rather than helps diverse communities. We see this in interactions specifically between black populations and the police, whether singularly or in large numbers—their interactions more frequently occurring and marked by the idea that such populations are more likely to be threatening or criminal.

This trope is exemplified by a social issue that stood particularly at large when the violence against our client occurred in 2010—known as stop-and-frisk. The issue of stop-and-frisk accurately shows the disparity between stops in low-income communities of color versus white communities, as pointed out in publication Colorlines’s article “Voices from Brooklyn: Racial Profiling’s Part of Everyday Life Here” (2010):

“Stop-and-frisk comes out of a Supreme Court case, Terry v. Ohio, which allowed police to do stops and frisks when they had reasonable suspicion that a crime had been or was about to be committed,” explains Steven Zeidman, a CUNY School of Law professor and director of the Criminal Defense Clinic. ”But now we allow police to stop people on virtually no information whatsoever.” “Hunches” and “whims,” says Zeidman, should not be enough to employ a stop-and-frisk.”

These “hunches” and “whims” particularly present in housing complexes such as our client resided, is a setting where,

“cops use expansive authority for investigating trespassing in public housing as a pretext for many stops, often with the explicit goal of boosting stats showing enforcement actions. The Brownsville rec center we visited serves the nearby housing projects, and the young men who come there say stop-and-frisks are now a routine part of their lives” (Colorlines 2010).

The over-policing of these neighborhoods through tools such as stop-and-frisk normalize extensive police presence, as well as unsubstantiated stops by law enforcement based off “hunches and whims”—the very same ones that could have caused the defendant police officer to chase our client, and tackle him. Beyond the normalization, such targeting of communities with disproportionate police presence increases crime rates that are not due to increased crime but increased stops—feeding the stereotype that communities of color are inherently violent and criminal.

While sounds of gunshots, and the possibility of firearm presence, can incite a response to danger from any human being, there is an added cautiousness and accuracy that should be present in police enforcement’s ability to use minimal force while working toward safety in a situation. However, when there is a history of stereotyping, disproportionate stops and arrests, and unequal power dynamics between law enforcement and communities of color, specifically black communities, there is a diminishment of justice as well as higher risk of police-induced violence. Our client’s suffering of injustice is part of a pattern of unnecessary systematic violence that has begun long before his case, continues in one way or another presently, and will always need to be challenged. Our firm recognizes the violation of civil rights amongst low-income communities of color and demands visibility of and accountability for these injustices. While a police system functions around us whose purpose is meant to do good for the general public, it is our responsibility to protect civil rights in the instances that the system fails to do so. In these instances, our firm pursues justice for our clients with utmost determination and compassion.

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