Zarkower v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------

JONATHAN ZARKOWER,

Plaintiff,

19-cv-3843 (ARR) (RLM)

-against-

OPINION & ORDER

CITY OF NEW YORK, PETER FORTUNE, SALVATORE

DIMAGGIO, ANDREW CHIN, PABLO DEJESUS, and

JOHN AND JANE DOES 1–50,

Defendants. X

---------------------------------------------------------------------

ROSS, United States District Judge:

Plaintiff, Jonathan Zarkower, brings this 42 U.S.C. § 1983 action alleging that he was

unconstitutionally detained by police officers Salvatore Dimaggio, Andrew Chin, and Pablo

Dejesus under the supervision of Captain Peter Fortune. He further claims that his detention

occurred pursuant to an illegal policy, practice, or custom of the New York Police Department

(“NYPD”) promulgated and implemented by Peter Fortune and other unknown individuals.

According to the complaint, Zarkower was arrested, taken to the precinct, issued a Desk

Appearance Ticket (“DAT”) authorizing his release, and then returned to a cell for another five

hours for the sole purpose of being questioned by a detective about unrelated crimes committed

by other people. The individual defendants Peter Fortune, Salvatore Dimaggio, Andrew Chin and

Pablo Dejesus move to dismiss the action for failure to state a claim. The defendants argue that

they are entitled to qualified immunity because the alleged conduct does not violate a clearly

established right. I disagree. The complaint alleges an obvious violation of the Fourth Amendment

right to be free from unreasonable detention. Thus, the defendants’ motion is denied.

BACKGROUND

On November 11, 2016 at 2:41 a.m., Zarkower was randomly stopped at checkpoint in

Queens. Am. Compl. ¶ 14, ECF No. 13. He was arrested because his license had been suspended

due to an unpaid fine. Id. ¶¶ 15–16. The arresting officer took him to the 114th Precinct, where his

arrest was processed by defendant Salvatore Dimaggio, with assistance and under the supervision

of defendant Andrew Chin. Id. ¶¶ 16–17. At 4:38 a.m. Dimaggio issued a desk appearance ticket

(“DAT”) to the plaintiff. Id. ¶ 18. A DAT is “an appearance ticket issued in lieu of detention, at

the direction of a desk officer, for misdemeanors, violations, and certain Class ‘E’ felonies[.]” New

York Police Department Patrol Guide (“NYPD PG”) Pro. No. 208-27, available at

https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/patrol_guide/208-27-

dat.pdf; see also N.Y. Crim. Proc. Law § 140.20(2).

After the 4:38 a.m. issuance of the DAT, defendants Chin and Dimaggio continued to

detain Zarkower in a cell at the 114th Precinct for approximately five hours. Id. ¶¶ 19, 21. Dimaggio

told the plaintiff that the he was being held so that he could be questioned by a detective who came

on duty in the morning. Id. ¶ 20. At 9:30 a.m., Zarkower was taken out of his cell to meet with

Detective Pablo Dejesus. Id. at 21. Dejesus questioned Zarkower for five minutes about “whether

he knew about crimes in the neighborhood, such as break-ins and assaults, and whether plaintiff

had guns in his home.” Id. After Zarkower denied any knowledge, he was released at 9:45 am. Id.

¶¶ 21–22.

NYPD’s Patrol Guide Procedure No. 210-18entitled “Debriefing of Prisoners” describes a

procedure for questioning arrestees about unrelated crimes. The stated purpose of the policy is

“[t]o provide a central repository of criminal intelligence received from prisoners and improve

communications and sharing of information among Department units.” NYPD PG 210-18 at 1,

Depoian Decl., Ex. C, ECF No. 25-3. .The Scope of the policy is as follows:

All prisoners in custody of this Department and all new arrestees must be debriefed

by a member of the service. For the purposes of this procedure, the debriefing

member of the service may be an investigator from the Detective Bureau, a Field

Intelligence Officer (FIO), Anti-Crime/Street Narcotics Enforcement Unit (SNEU)

supervisor, desk officer, etc. Police officers will not normally conduct debriefings.

Id. A positive debriefing is described as:

Specific information received from a prisoner during the course of an interview

regarding crime, criminal activity, or evidence related to a crime that is not related

to the current arrest charges against the prisoner. For the purpose of this definition,

a prisoner is to include new arrestees, and parolees, probationers, and inmates in

custody.

Id.

Plaintiff alleges he is one of many individuals detained pursuant to this New York City

policy, practice or custom of detaining persons who have been cleared for release on a DAT, for

the sole purpose of unrelated debriefing. Id. ¶¶ 36–37. He brings this lawsuit on his own behalf

and on behalf of this purported class. Id. ¶ 1.

Zarkower alleges four causes of action under § 1983. His first and second causes of action

allege that his detention was excessive in violation of his constitutional rights. Id. ¶¶ 43–48. His

third cause of action alleges supervisory liability for this constitutional violation against Fortune

and John/Jane Does. Id. ¶¶ 49–51. His fourth cause of action alleges municipal liability against the

city of New York. Id. ¶¶ 52–57. The individual defendants bring this motion to dismiss the first

three causes of action on the basis of qualified immunity.

DISCUSSION

I. Motion to Dismiss

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must

accept all factual allegations in the complaint as true and must draw all reasonable inferences in

favor of the non-moving party. Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106,

113 (2d Cir. 2013) (citing Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)). Thus, in

deciding defendant’s motion to dismiss, the court must accept the facts alleged in plaintiff’s

amended complaint as true. The complaint’s allegations “must be enough to raise a right to relief

above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Only “a

plausible claim for relief survives a motion to dismiss.” LaFaro v. N.Y. Cardiothoracic Grp.,

PLLC, 570 F.3d 471, 476 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

Courts “are not bound to accept as true a legal conclusion couched as a factual allegation[.]” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 555)).

A qualified immunity defense is often a “‘mismatch’” for a motion to dismiss and a “‘bad

ground of dismissal.’” See Barnett v. Mount Vernon Police Dep’t, 523 F. App’x 811, 813 (2d Cir.

2013) (summary order) (quoting McKenna v. Wright, 386 F. 3d 432, 436 (2d Cir. 2004)). However,

a qualified immunity defense is an appropriate ground for dismissal when “entitlement to qualified

immunity can be established ‘based [solely] on facts appearing on the face of the complaint.’” Id.

at 813 (quoting McKenna v. Wright, 386 F. 3d at 436).

II. Qualified Immunity

“A police officer is entitled to qualified immunity from liability for his discretionary

actions if either (1) his conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known, or (2) it was objectively reasonable for him to

believe that his actions were lawful at the time of the challenged act.” Cerrone v. Brown, 246 F.3d

194, 199 (2d Cir. 2001) (internal citations and quotation marks omitted).

A. Clearly Established Law

“A government official’s conduct violates clearly established law when, at the time of the

challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable

official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To meet

this standard, the plaintiff must demonstrate “cases of controlling authority in [the] jurisdiction at

the time of the incident” or at least “a consensus of cases of persuasive authority[.]” Id. at 746

(Kennedy, J., concurring) (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). In a typical case, the

right at issue should be defined with specificity, rather than at “a high level of generality.” Ashcroft,

563 U.S. at 742; see also Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (“[S]pecificity is especially

important in the Fourth Amendment context, where the Court has recognized that ‘[i]t is sometimes

difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual

situation the officer confronts.’” (quoting Saucier v. Katz 533 U.S. 194, 205 (2001))).

However, the plaintiff need not provide a case “directly on point” addressing “the very

action in question[.]” Ashcroft, 563 U.S. at 741; Anderson, 483 U.S. at 640. “General statements

of the law are not inherently incapable of giving fair and clear warning” to officers. United States

v. Lanier, 520 U.S. 259, 271 (1997) (citing Anderson, 483 U.S. at 640). The Supreme Court has

recognized the existence of “the rare ‘obvious case,’ where the unlawfulness of the officer’s

conduct is sufficiently clear even though existing precedent does not address similar

circumstances.” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004) (per curiam)). “[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 745 (2002)

(denying a qualified immunity defense in an Eighth Amendment suit where the “obvious cruelty

inherent in the practice [of handcuffing inmates to a ‘hitching post’] should have provided

respondents with some notice that their conduct was unconstitutional”); see also Cerrone, 246

F.3d at 196 (rejecting a qualified immunity defense because defendant’s conduct violated a clearly

established Fourth Amendment right to be free from seizures without probable cause, even though

there was no precedent applying this rule to the detention of a police officer); Morse v. Cloutier,

869 F.3d 16, 19, 29–30 (1st Cir. 2017) (warrantless entry into home was obviously

unconstitutional, regardless of the fact that the particular circumstances were not addressed by

prior case law); Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1083 (9th Cir. 2013) (lengthy

detention and questioning of witness for investigative purposes was “an obvious case” where

qualified immunity could be denied despite “the lack of on-point precedent”); Jackson v. Tellado,

236 F. Supp. 3d 636, 664 (E.D.N.Y. 2017) (particular violent action was obviously excessive

force); and Johnson v. Wright, 234 F. Supp. 2d 352, 367 (S.D.N.Y. 2002) (particular denial of

medical treatment was obviously deliberate indifference).

B. Objective Reasonableness

The second prong of the qualified immunity test asks whether the officials’ conduct was

objectively reasonable. “The objective reasonableness test is met—and the defendant is entitled to

immunity—if ‘officers of reasonable competence could disagree’ on the legality of the defendant’s

actions.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)). In a case involving a seizure without probable cause, “the arresting officer is

entitled to qualified immunity as a matter of law if the undisputed facts and all permissible

inferences favorable to the plaintiff show either (a) that it was objectively reasonable for the officer

to believe that probable cause existed, or (b) that officers of reasonable competence could disagree

on whether the probable cause test was met.” Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987).

A defendant is entitled to qualified immunity if his conduct was objectively reasonable, even if the

right at issue was clearly established.

III. Desk Appearance Tickets

“Under the New York Criminal Procedure Law, rather than holding an arrestee in custody

until a judge is available to conduct an arraignment, police officers have the discretion in certain

cases to release the arrestee and issue him or her a so-called desk appearance ticket directing the

arrestee to return to the criminal court at some future date to be arraigned.” Cabrera v. City of New

York, No. 16 CIV. 1098 (GBD), 2017 WL 6040011, at *3 n.2 (S.D.N.Y. Dec. 4, 2017) (citing

Bryant v. City of New York, 404 F.3d 128, 132 (2d Cir. 2005). A DAT is a document directing a

person to “appear in a designated local criminal court at a designated future time in connection

with his alleged commission of a designated offense.” N.Y. Crim. Proc. Law § 150.10(1). The

DAT procedure operates as an alternative to holding an arrestee in custody until arraignment. See

NYPD PG 208-27 (authorizing the issuance of a DAT “in lieu of detention”); Bryant, 404 F.3d at

132 (“Under [the DAT] procedure, the arrestee is released and must return to the criminal court at

a future date for arraignment.”); Black Jack Distributors, Inc. v. Beame, 433 F. Supp. 1297, 1301

(S.D.N.Y. 1977) (“The ‘desk appearance ticket’ procedure enables a qualifying defendant . . . to

leave the stationhouse after the initial processing merely by accepting a written ticket requiring his

appearance in court at some future time.”). This procedure is often described as an arrestee being

“released with a Desk Appearance Ticket[.]” See, e.g., Lovitch v. Lovitch, No. 11 CIV. 2536 ER

LMS, 2015 WL 1047807, at *3 (S.D.N.Y. Mar. 10, 2015); see also Floyd v. City of New York, No.

16 CIV. 8655 (LAP), 2018 WL 4360773, at *1 (S.D.N.Y. Aug. 2, 2018); (“releasing him…with a

desk appearance ticket”)

The decision to issue a DAT in lieu of detention is discretionary. See Bryant v. City of New

York, 404 F.3d at 138. “An arrestee is not entitled to a DAT as a matter of right” under New York

state law. Id. at 133 (citing Bryant v. City of New York, 2003 WL 22861926, at *11–12 (S.D.N.Y.

Dec. 2, 2003)). Thus, a plaintiff fails to state a claim if she argues that her rights were violated

because she was eligible for but was not issued a DAT.

IV. The Fourth Amendment

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. Amend.

IV. This bedrock of constitutional law requires courts to inquire into the “reasonableness” of any

challenged police seizure. Over the years, a robust case law has developed outlining the conditions

under which a person may be seized, for what purposes, and for what length of time.

A seizure occurs when “‘in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.’” I.N.S. v. Delgado, 466 U.S.

210, 215 (1984) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980). Arrests are the

most obvious form of seizure, but other circumstances short of arrest, such as custodial

interrogation, traffic stops, and brief stops of pedestrians also constitute seizures. See, e.g., Terry

v. Ohio, 392 U.S. 1, 16 (1968).

A. Arrests and Post-Arrest Detention

The traditional Fourth Amendment rule is that police seizures of criminal suspects must be

supported by probable cause that the person seized has committed or is committing a crime. See,

e.g., Dunaway v. New York, 442 U.S. 200, 208 (1979). “[T]he existence of probable cause [should]

be decided by a neutral and detached magistrate whenever possible.” Gerstein v. Pugh, 420 U.S.

103, 112 (1975). Ideally, this determination is made before the arrest and the arrest is made

pursuant to an arrest warrant signed by a magistrate. Id. at 113. However, arrests are also permitted

based on “a policeman’s on-the-scene assessment of probable cause[.]” Id. These warrantless

arrests can be followed by “a brief period of detention to take the administrative steps incident to

arrest” but a judicial determination of probable cause must occur “promptly after arrest.” Id. at

114, 125.

In County of Riverside v. McLaughlin, the Court provided guidance on what constitutes a

“prompt” judicial determination of probable cause following a warrantless arrest. 500 U.S. 44, 55–

56 (1991). The hearing is prompt, and thus the detention does not violate the Fourth Amendment,

if there is no unreasonable delay. Id. at 55–57. A delay of 48 hours or more before receiving a

probable cause hearing is presumptively unreasonable, unless the government can show that the

delay was caused by “a bona fide emergency or other extraordinary circumstance.” Id. at 57. Pre-

arraignment detentions of less than 48 hours may or may not be unreasonable, depending on the

reason for the delay. Id. at 56.

County of Riverside provides the following three circumstances as examples of

unreasonable delay even if the detention lasts less than 48 hours: “delays for the purpose of

gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested

individual, or delay for delay’s sake.” Id. The Court also provided examples of delays that are not

unreasonable, as long as the delay lasts less than 48 hours: “unavoidable delays in transporting

arrested persons from one facility to another, handling late-night bookings where no magistrate is

readily available, obtaining the presence of an arresting officer who may be busy processing other

suspects or securing the premises of an arrest, and other practical realities.” Id. at 57.

Since County of Riverside, neither the Supreme Court nor the Second Circuit has provided

additional guidance for interpreting what constitutes an unreasonable delay. Second Circuit cases

on the topic have merely restated the three examples of unreasonable delay put forth in County of

Riverside, 500 U.S. at 56. See Bryant, 404 F.3d at 137; Caravalho v. City of New York, 732 F.

App’x 18, 24 (2d Cir. 2018) (summary order); Lebowitz v. City of New York, 606 F. App’x 17, 18

(2d Cir. 2015) (summary order).

To summarize, one type of permissible seizure is a warrantless arrest based on a police

officer’s judgment of probable cause. That arrest may be followed by a brief period of detention

for the purpose of arranging a judicial probable cause hearing, which should occur without

unreasonable delay.

B. Other Types of Seizures

The Fourth Amendment reasonableness standard has evolved to allow other types of

seizures which need not be based on probable cause. The reasonableness of a seizure may be

determined through a nuanced balancing test, rather than defaulting to a probable cause

requirement in all cases. See Brown v. Texas, 443 U.S. 47, 50 (1979). This balancing test allows

for seizures without probable cause if justified by weighing “the gravity of the public concerns

served by the seizure, the degree to which the seizure advances the public interest, and the severity

of the interference with individual liberty.” Id. at 51 (citing U.S. v. Brignoni-Ponce, 422 U.S. 873,

878–883 (1975).

Under this more flexible standard, temporary stops for brief questioning or a weapons frisk

need only be supported by reasonable suspicion, rather than probable cause. Terry, 392 U.S. at 27.

In some circumstances, brief stops and questioning at checkpoints are permitted to investigate

whether the person seized has committed a crime, without requiring any individualized suspicion

at all. See United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976). These stops must be based

on a special law enforcement need, and are not permitted if their “primary purpose was to detect

evidence of ordinary criminal wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 41

(2000). The reasonable suspicion or “special needs” standards do not apply to actual arrests or to

lengthy custodial interrogation, which are much more significant intrusions. See Dunaway, 442

U.S. at 209; Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001).

Of course, the Fourth Amendment “permits police to seek the voluntary cooperation of

members of the public in the investigation of a crime.” Illinois v. Lidster, 540 U.S. 419, 425 (2004).

“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an

individual on the street or in another public place [and] asking him if he is willing to answer some

questions[.]” Florida v. Royer, 460 U.S. 491, 497 (1983). However, the person approached may

decline to answer law enforcement questions, and his refusal generally is not grounds for “even

momentar[y]” detention. Id. at 498.

In very limited circumstances, the Fourth Amendment allows for temporary seizures for

the purposes of seeking information from members of the general public. Lidster, 540 U.S. at 423–

25. An “information-seeking” seizure occurs when the police detain a person for the purpose of

questioning in order to elicit information “to help them apprehend, not the [person questioned],

but other individuals.” Id. at 423–24. “[A]n information-seeking stop is not the kind of event that

involves suspicion, or lack of suspicion, of the relevant individual.” Id. at 425. Brief detentions of

this type are not automatically barred by the Fourth Amendment. Id. at 426.

The Fourth Amendment also allows for temporary suspicion-less seizures in cases

involving “‘an exigency that justifies immediate action on the police’s part.’” Palacios v. Burge,

589 F.3d 556, 562 (2d Cir. 2009) (quoting Georgia v. Randolph, 547 U.S. 103, 117 n.6 (2006)).

“[S]uch an exigency exists when the police utilize an ‘appropriately tailored’ seizure ‘set up . . . to

catch a dangerous criminal who is likely to flee by way of a particular route.’” Id. at 563 (quoting

Edmond, 531 U.S. at 44).

In a Fourth Amendment balancing test, “the [state] interest in detaining witnesses for

information is of relatively low value.” Maxwell v. Cty. of San Diego, 708 F.3d at 1084. “Although

detention of witnesses for investigative purposes can be reasonable in certain circumstances, such

detentions must be minimally intrusive.” Id. at 1083–84 (holding that five-hour detention of a

witness was unconstitutional); see also Walker v. City of Orem, 451 F.3d 1139, 1149 (10th Cir.

2006) (holding that 90-minute detention of a witness was unconstitutional). In Lidster, an

important factor was that the seizure at issue lasted for a “few minutes at most.” 540 U.S. at 427.

V. Application

Zarkower alleges that he was subject to an unconstitutional detention by police officers

Salvatore Dimaggio, Andrew Chin, and Pablo Dejesus under the supervision of Peter Fortune. Am.

Compl. ¶¶ 43–51. He asserts that his arrest was fully processed and he was cleared for release by

4:38 a.m., but he was detained for an additional five hours pursuant to an unreasonable debriefing

policy. Pl.’s Mem. in Opp. to Mot. to Dismiss for Failure to State a Claim (“Pl.’s Br.”) 6–7, ECF

No. 26. The defendants argue that they are entitled to qualified immunity because their conduct

did not violate clearly established law and was objectively reasonable. Defs.’ Mem. in Supp. Of

Mot. to Dismiss for Failure to State a Claim (“Defs.’ Br.”) 4–9, ECF No. 24. Because, as explained

below, I conclude that Zarkower’s allegations present a clear case of an unreasonable and unlawful

seizure, the defendants’ motion is denied.

A. Clearly Established Law

The detention described in the complaint obviously violates clearly established Fourth

Amendment law. A reasonable officer does not need a Second Circuit precedent specifically

addressing “debriefing” to understand that a person should not be held in custodial detention for

five hours for the sole purpose of allowing a detective to conduct an inquiry about crime in the

community.

In an attempt to avoid this obvious result, the defendants focus narrowly on County of

Riverside’s statement that 48 hours of pre-arraignment detention is presumptively reasonable.

Defs.’ Br. at 4. They interpret Riverside as a blank check to detain people for 48 hours after an

arrest, unless the detention is caused by one of the three examples of unreasonable delay spelled

out in the decision. See id.; County of Riverside, 500 U.S. at 56 (delay of less than 48 hours before

probable cause hearing is reasonable unless the arrestee can show “delays for the purpose of

gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested

individual, or delay for delay’s sake.”). The defendants argue that there is no clearly established

law regarding the reasonableness of pre-arraignment detention that does not fall precisely within

one of those three examples. See Defs.’ Reply in Supp. Of Mot. to Dismiss for Failure to State a

Claim (“Defs.’ Reply”) 3, ECF No. 27. Thus, they reason, because Zarkower was detained for the

purpose of debriefing, rather than one of three reasons listed in Riverside, a reasonable officer

would not have known that the detention at issue was unlawful. Id. at 3, 5–6. Defendants further

assert that Riverside in fact supports the legality of Zarkower’s detention because he was not held

“for any nefarious purpose” but instead a “practical reality” associated with processing the arrest.

Defs.’ Br. 6 (“[P]laintiff’s detainment occurred because of the practical reality that he was arrested

in the middle of the night and no detective was available to debrief him until the morning.”).

I agree with defendants that at the time of Zarkower’s detention, there was no controlling

case law addressing the specific circumstance of an arrestee being issued a DAT, then detained for

an additional five hours for the sole purpose of being debriefed about unrelated crimes. See Defs.’

Br. 4. Plaintiff has cited no such case law because it does not exist. See Defs.’ Reply 5. But that

does not mean that the defendants are entitled to qualified immunity for conduct that so flagrantly

violates the Fourth Amendment right to be free from unreasonable custodial detention. See

Cerrone, 246 F.3d at 196. This is an obvious case “where the unlawfulness of the officer’s conduct

is sufficiently clear even though existing precedent does not address similar circumstances.”

Wesby, 138 S. Ct. at 590.

By focusing on Riverside’s rule that 48 hours of detention is presumptively reasonable, the

defendants lose the forest for the trees. That particular sentence in Riverside exists within a world

of Fourth Amendment law where all custodial arrests must be justified by probable cause.

Riverside, building on Gerstein, acknowledges that the probable cause determination cannot

always happen before an arrest, and in many cases, for logistical reasons, it cannot happen

immediately after the arrest either. See Cty. of Riverside, 500 U.S. at 53. The point of Riverside is

that there can be some delay between the arrest and the probable cause determination, as long as

that delay is not unreasonable. Id. at 56–57.

The case before me now does not actually involve a delayed judicial probable cause

determination. It involves a circumstance where police formally issued a DAT explicitly stating

that there would not be a prompt judicial probable cause hearing, and that instead, the arrestee

would be released to return for arraignment at a later date. Riverside authorizes post-arrest

detention for the purposes of processing an arrest and arranging a judicial probable cause

determination, while taking into account logistical realities that prevent the hearing from

happening immediately upon arrest. Riverside does not provide any authority for detaining a

person after their arrest has been fully processed and there is a formal decision made to release the

person without holding a prompt probable cause hearing.

Defendants seem to take the position that because issuing a DAT is discretionary, the fact

that Zarkower was issued a DAT five hours before his release is somehow irrelevant. Defs.’ Br. at

4 (citing Bryant, 404 F.3d at 138). But defendants simultaneously acknowledge that “[i]n certain

circumstances police officers may, but are not required, to issue a DAT to an arrestee rather than

hold him in custody until a judge is available.” Id. at 4–5 (citing N.Y. C.P.L. § 150.20(20(2)(a))

(emphasis added). In the hours following a warrantless arrest, police officers are faced with a

binary choice of either detaining an arrestee until a judge is available for a probable cause hearing

or releasing the arrestee pursuant to a DAT. That decision is to be made within the officer’s

discretion. But once the second option is chosen, the detention is no longer justified by Riverside.

This case does not involve a question of whether issuing a DAT is discretionary. Zarkower asserts

that he was issued a DAT. Once he received the DAT, it was clear that he was not going to be

promptly arraigned, and the constitutional reason for the detention evaporated.

The defendants’ attempt to justify the five-hour delay by claiming “practical realities”

overlooks the fact that the County of Riverside Court was talking about the practical realities that

would cause the “probable cause determination [to be] delayed unreasonably.” 500 U.S. at 56. The

fact that there would be no detective on duty was a “practical reality” of operations at the precinct

where Zarkower was detained. But that practical reality had absolutely nothing to do with

facilitating a probable cause hearing. Everyone knew there was not going to be a prompt probable

cause hearing. The debriefing by a detective was completely unrelated.

Waiting for a detective to debrief Zarkower was also not an “administrative step[] incident

to arrest[.]” Gerstein v. Pugh, 420 U.S. 114. This is obvious from the complaint, because

Zarkower’s arrest was processed and he was issued a DAT long before the debriefing. Am. Compl.

¶ 19. But on a more fundamental level, asking someone questions about crime in the neighborhood

cannot possibly be a necessary step to processing an arrest. While states have leeway in designing

post-arrest procedures, they cannot simply label something “incident to arrest” when it has nothing

to do with the arrest or the arrestee.

Zarkower alleges he was detained for an altogether different purpose than contemplated in

Gerstein and Riverside. He asserts that he was locked in a cell for five hours, “for the sole purpose

of being questioned by a detective who came on duty in the morning[.]” Am. Compl. ¶ 20. He says

he was questioned regarding “whether he knew about crimes in the neighborhood, such as break-

ins and assaults, and whether plaintiff had guns in his home.” Id. ¶ 21; see also NYPD PG Pro.

No. 210-18 at 1 (describing debriefing procedure for questioning prisoners about “crime that is not

related to the current arrest charges against the prisoner.”).

The idea that police officers would be permitted to subject someone to hours of detention

for the sole purpose of asking general questions about crime in the community flies in the face of

all Fourth Amendment doctrine on seizures of a person. It is well established that all seizures must

be reasonable, and in the vast majority cases, suspicion-based. See supra Section IV. Custodial

detentions, in particular, must be justified by probable cause. Id. A desire to question a person who

may or may not be a witness to any crime is not even supported by an articulable reasonable

suspicion, let alone probable cause. The only case law tending to support something at all close to

detention for purposes of debriefing is the “information-seeking” detention in Lidster, which

authorized a traffic stop of minutes to inquire about a specific crime that occurred in the

neighborhood. Lidster, 540 U.S. at 427. The Lidster Court emphasized that a brief traffic stop

under these circumstances was permissible because it was not “likely to provoke anxiety or to

prove intrusive.” Id. at 425. The same cannot be said for locking a person in a cell for five hours.

Defendants state that the plaintiff does not allege that the defendants detained him for “any

nefarious purpose[.]” Defs.’ Br. at 6. But I do see something nefarious alleged in the complaint.

Locking someone up in a cell for hours to question him about what his neighbors have been up to

is conduct associated with police states. It is the exact type of arbitrary and invasive seizure the

Fourth Amendment is designed to protect against. Of course, police can constitutionally request

voluntary assistance in gaining information about crime in the community. They can ask questions

on these topics from people in custody, just as they may approach members of the general public

on the street to ask questions. In limited circumstances, they can briefly seize a person in a traffic

stop to ask a couple of questions. See Lidster, 540 U.S. at 427. There may be some rare

circumstances, typically involving exigency, where a seizure of a direct witness to a crime may be

permissible. See Palacios v. Burge, 589 F.3d 556, 562 (2d Cir. 2009) (quoting Georgia v.

Randolph, 547 U.S. 103, 117 n.6 (2006)). But the police cannot detain a person for five hours

simply because they want to ask him questions about what he knows about possible criminal

activity on the part of his neighbors. Allowing such detentions would be a serious infringement on

individual liberty and autonomy.

To be clear, I am not stating that Zarkower’s initial arrest was not supported by probable

cause. That is not in question. But once his arrest was fully processed and officials formally

decided by giving him a DAT that he would not be held for arraignment, the initial reason for the

arrest became irrelevant. The detention was no longer about the original arrest, where he was

detained based on the officer’s judgment of probable cause. His detention transformed into a

suspicionless custodial hold of a person who may or may not have witnessed some crime. No

reasonable officer could reasonably think that was constitutional.

Some actions are so outrageous and so obviously unconstitutional that reasonable officers

are on notice without a case addressing similar facts. See Hope v. Pelzer, 536 U.S. at 741. The

fact that there is no Second Circuit precedent addressing detention for purposes of “debriefing”

does not absolve police officers from understanding that Riverside authorizes a brief detention for

purposes of processing the arrest and arranging a probable cause hearing and nothing more.

Nothing in Riverside could be interpreted to authorize detaining someone for the sole purpose of

asking questions about crime in the community. The Supreme Court has rejected much more minor

suspicionless intrusions if the “primary purpose was to detect evidence of ordinary criminal

wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. at 41. The Court approved of information-

seeking detentions only in the very narrow circumstance of a brief traffic stop to ask questions

about a specific crime that recently occurred nearby. Lidster, 540 U.S. at 427. There is no doubt

from the Lidster opinion that if the facts were changed to involve a five-hour detention in a jail

cell, rather than a minutes-long traffic stop, the detention would have been deemed unreasonable

and unconstitutional.

In some cases involving Fourth Amendment rights, it will be “difficult for an officer to

determine how the relevant legal doctrine . . . will apply to the factual situation the officer

confronts.’” Mullenix, 136 S. Ct. at 308 (quoting Saucier, 533 U.S. at 205). In those close cases, a

precedent addressing similar facts may be necessary to give officers adequate notice of whether a

particular circumstance falls on one side or the other of the Fourth Amendment “reasonableness”

line. This is not one of those cases. This is an obvious case of an unreasonable, unconstitutional

seizure.

B. Objective Reasonableness

Defendants have not presented any case that their conduct could have been objectively

reasonable other than their incorrect claim that the law was not clearly established. Because the

law was, in fact, clearly established, there is no real question that plaintiff has alleged objectively

unreasonable conduct by each defendant officer. All police officers know, or should know, the

basic rule that following a warrantless arrest, the next steps are to process the arrest and hold the

person for a probable cause hearing or release the person. All police officers know, or should

know, that issuing a DAT to an arrestee means that he will be arraigned at a later date, rather than

being detained until his arraignment. All police officers know, or should know, that they cannot

lock a person up because they want to ask him general questions about crime in the neighborhood.

On the face of the complaint, there is no reason to think this was a situation where there was some

mistake of fact or other confusion as to why Zarkower was being detained. The complaint allows

for the inference that each of the defendant officers was aware of the facts surrounding Zarkower’s

detention.

Defendants Dimaggio and Chin processed Zarkower’s arrest, issued a DAT, and then

continued to detain him for an additional five hours. Am. Compl. ¶¶ 19, 21. These allegations

mean that both of those officers knew that Zarkower had been cleared for release, and that his

continued detention was for the unconstitutional purpose of debriefing. Zarkower alleges that

Dimaggio even told him that this was the reason. Id. ¶ 21. This alleged conduct is not objectively

reasonable.

Defendant Dejesus questioned Zarkower for five minutes before he was finally released.

Id. ¶ 21. Drawing all inferences in favor of the plaintiff, I assume for purposes of this motion to

dismiss that Dejesus was aware that Zarkower had been cleared for release hours earlier and that

he had been detained for the sole purpose of being debriefed. I cannot conclude at this stage that

he acted objectively reasonably by prolonging a flagrantly unconstitutional detention, even if only

by five minutes.

Finally, Zarkower alleges supervisory liability against defendant Fortune, a supervisor at

the precinct who Zarkower claims was responsible for implementing and promulgating the

debriefing policy. Id. ¶ 21. No reasonable supervisor would implement a policy whereby arrestees

authorized for release were locked up for hours for the sole purpose of debriefing. Fortune’s

alleged conduct is not objectively reasonable.

CONCLUSION

For the reasons described above, the defendants’ motion to dismiss is denied. On the face

of the complaint, the individual officers are not entitled to qualified immunity from liability for

the flagrant Fourth Amendment violation alleged.

SO ORDERED.

__________________________

Allyne R. Ross

United States District Judge

Dated: May 21, 2020

Brooklyn, New York