Frederick v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOHN FREDERICK,

Plaintiff, MEMORANDUM & ORDER

13-CV-0897(EK)(ST)

-against-

NEW YORK CITY POLICE OFFICER DERRICK

BOYD #10014, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff brings a false-arrest claim under 42 U.S.C.

§ 1983 against three officers of the New York City Police

Department. The claim stems from Plaintiff’s arrest on May 6,

2010.1 Defendants moved for summary judgment on the grounds that

they had probable cause for the arrest and, in any event, are

shielded by the qualified immunity doctrine. Judge Margo

Brodie, the presiding judge at the time, denied their motion for

summary judgment.2 Defendants move for reconsideration of that

decision, citing three New York State court decisions that

predate Judge Brodie’s decision, but that they failed to call to

1 Plaintiff initially pled additional claims for malicious prosecution,

and other violations against multiple defendants. In March 2016, Judge

Brodie dismissed all but the false-arrest claim against the three Defendants

named here, plus a fourth officer who was later dismissed. See ECF Nos. 95,

124.

2 This case was transferred to the undersigned in February 2020.

her attention in their summary-judgment briefing. For the

reasons that follow, I grant the motion in part and deny it in

part. Plaintiff’s false-arrest claim will proceed to trial, but

the scope of the claim will be limited as set forth below.

I. Background

The following facts are drawn from Plaintiff’s

complaint and his deposition testimony, unless otherwise noted.3

On May 6, 2010, New York City police officers arrested Plaintiff

in connection with a purported traffic violation. The incident

began when Plaintiff parked his car outside a jewelry store in

Brooklyn. As he exited the store, Plaintiff saw three

plainclothes officers (the Defendants here) sitting in an

unmarked vehicle beside his car. From their vehicle, the

officers told Plaintiff that “[y]our car is blocking the

sidewalk.” Deposition of John Frederick at 27:7-15, ECF No.

135-1 (“Frederick Dep.”). Plaintiff disputes that the car was

blocking the sidewalk. Id. 28:23-29:4 (testifying that the car

was “not parked close to the crosswalk at all,” and was not

3 Because Plaintiff, proceeding pro se, filed a “verified complaint”

attaching a notarized form attesting to the truth of his allegations, the

complaint is “treated as an affidavit for summary judgment purposes, and

therefore will be considered in determining whether material issues of fact

exist, provided that it meets the other requirements for an affidavit under

Rule 56(e) [now 56(c)].” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995),

abrogated on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir.

2020); see also Curtis v. Cenlar FSB, 654 F. App’x 17, 20 (2d Cir. 2016)

(same); Fifth Amended Complaint at ECF page 44, ECF No. 86 (“Compl.”)

(notarized form attesting that the contents of the complaint are “true to

[Plaintiff’s] knowledge”).

parked illegally). Plaintiff then told the officers to “give

[the car] a ticket” and began videotaping them. Id. 27:10-15.

As Plaintiff recorded the interaction, the officers

exited their vehicle, “rushed” Plaintiff, and “tackled [him] to

the ground.” Id. 27:12-15. When Plaintiff tried to pick up his

phone, they “restrained” him by holding both his arms. Id.

59:22-60:4. One officer told Plaintiff he would “shoot [him]

dead” if he picked up the phone. Id. 62:22-63:2.

At some point “while” Plaintiff was “restrain[ed],”

the officers asked him for his license, vehicle registration,

and insurance card. Compl. ¶ 45; but see Deposition of Derrick

Boyd 154:9-10, ECF No. 133-3 (“I exited the car and asked

[Plaintiff] for his identification.”). The parties agree that

when asked for these documents, Plaintiff refused to comply.

Compl. ¶ 45 (asserting that Officers Boyd and Sanders demanded

Plaintiff’s license, registration, and insurance card “while”

restraining him, and acknowledging that “the plaintiff refused”

this request). The officers then handcuffed Plaintiff and drove

him to the 77th precinct stationhouse. Frederick Dep. 63:22-

64:1. Three summonses were issued: for obscene language,

failure to comply with a lawful order, and obstructing

pedestrian traffic. These charges were later dismissed or

adjourned in contemplation of dismissal.

II. Procedural History

On motion for summary judgment, Defendants argued that

the arrest was lawful because there was probable cause to

conclude that Plaintiff broke the law by refusing their request

for his license and registration. This argument is predicated

on Rule 4-12(a)(3) of the New York City Traffic Rules and

Regulations, which provides that “[v]ehicle operators must

present and/or surrender their operator’s license, vehicle

registration and insurance documents upon request of a law

enforcement officer.” N.Y.C. Traf. Rules & Regs. Title 34,

Chap. 4, 4-12(a)(3) (“New York City Traffic Rules”). As Judge

Brodie noted, the critical question on summary judgment was

whether Rule 4-12(a)(3) applied to Plaintiff at all. Plaintiff

argued that it did not, because the term “operators” in that

Rule only extends to persons inside the car — not those standing

outside the vehicle.

Judge Brodie agreed with Plaintiff’s interpretation of

Rule 4-12(a)(3). She noted that the existence of probable cause

is determined by state law, and that New York law is unsettled

on the question of whether the word “operators” in Rule

4-12(a)(3) extends to persons outside the vehicle. She thus

turned to other sources of authority — namely, (1) the

dictionary definition of the term “operator”; (2) the use of the

term “operator” in other parts of the New York City Traffic

Rules; and (3) the use of the term “operator” in New York

State’s Vehicle and Traffic Law (“VTL”), along with New York

State cases interpreting the VTL. Analyzing those materials,

she concluded that “operators” excludes persons standing outside

a car (such as Plaintiff). She also held that, in light of the

factual disputes surrounding the arrest, a finding of qualified

immunity was inappropriate.4

Defendants now move for reconsideration of that

decision. They base this request on three New York State cases

they discovered after the summary-judgment order was issued.

III. Legal Standard

Summary judgment is appropriate when “the movant shows

that there is no genuine dispute as to any material fact” and

that he “is entitled to judgment as a matter of law.” Fed. R.

4 Defendants contend that Plaintiff’s refusal to produce a license and

registration also violated a different state statute — namely, Section 195.05

of the New York Penal Law. Section 195.05 provides that a person “is guilty

of obstructing governmental administration when he intentionally obstructs,

impairs, or perverts the administration of law or other governmental function

or prevents or attempts to prevent a public servant from performing an

official function, by means . . . of any independently unlawful act . . . .”

Judge Brodie noted that the Section 195.05 offense requires, at a

minimum, an underlying violation of Rule 4-12(a)(3). Memorandum & Order at

17, ECF No. 140 (“The Court’s determination that, based on the facts of this

case, Plaintiff was not an operator of the vehicle . . . necessarily means

that Plaintiff’s failure to provide his license, registration, and insurance

documents does not support probable cause to arrest Plaintiff for obstruction

of governmental administration.”). She explained that the mere refusal to

turn over identification documents to officers does not constitute unlawful

obstruction of government administration, unless the refusal itself is

independently unlawful. Id. (citing Uzoukwu v. City of New York, 805 F.3d

409, 414-15 (2d Cir. 2015) (stating that “under New York law obstruction of

governmental administration cannot rest upon refusal to provide

identification” alone)).

Civ. P. 56(a). A material fact is one that “can affect the

outcome under the applicable substantive law.” Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A genuine dispute is

one that can “reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In

performing this analysis, the Court must resolve all ambiguities

and draw all inferences in favor of the non-moving party. Gallo

v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,

1223 (2d Cir. 1994). “If, in this generous light, a material

issue is found to exist, summary judgment is improper.”

Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,

160 (2d Cir. 1999).

The moving party may establish that there is no

genuine dispute “by showing that little or no evidence may be

found in support of the nonmoving party’s case.” Gallo, 22 F.3d

at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)). If the moving party meets this burden, the non-moving

party “must come forward with specific facts showing that there

is a genuine issue for trial.” LaBounty v. Coughlin, 137 F.3d

68, 73 (2d Cir. 1998). However, the non-moving party “must do

more than simply show that there is some metaphysical doubt as

to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Brown v. Eli Lilly

& Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations and

quotations omitted). If “no rational finder of fact could find

in favor of the nonmoving party because the evidence to support

its case is so slight, summary judgment must be granted.” Id.

(internal quotations omitted).

IV. Analysis

Before turning to the merits, I address Plaintiff’s

claim that this motion is procedurally improper. Although

motions for reconsideration are “disfavor[ed]” in this Circuit,

e.g., United States v. Barclay Capital, Inc., No. 16-CV-7057,

2017 WL 5054716, at *1 (E.D.N.Y. Nov. 2, 2017), this is an

appropriate case for one. The limitations on reconsideration

motions are less restrictive when the challenged decision is an

interlocutory order, such as the denial of summary judgment.

See Vornado Realty Tr. v. Marubeni Sustainable Energy, Inc., 987

F. Supp. 2d 267, 276 (E.D.N.Y. 2013) (“Because the denial of a

motion for summary judgment is an interlocutory order, the trial

court is free to reconsider and reverse its decision for any

reason it deems sufficient, even in the absence of new evidence

or an intervening change in or clarification of the substantive

law.”). It is suboptimal (to say the least) that Defendants

failed to locate the cases at issue earlier, given the

centrality of this legal issue. But if consideration of the

newly unearthed cases would preclude liability (in part or

whole) at trial, even on the admitted facts, it would make no

sense to ignore them now.

A. Merits of the Motion

Plaintiff admits that he refused to comply with

Defendants’ request to produce identification documents. Thus,

if Rule 4-12(a)(3) required such production, there is no factual

dispute that he violated that Rule (and, as a consequence, that

the officers had probable cause to arrest him).5 As noted above,

Judge Brodie concluded that the Rule did not apply to him

because he was not an “operator” of the vehicle within the

meaning of that Rule.

Defendants argue that the cases they discovered change

this analysis, and therefore warrant summary judgment on at

least part of Plaintiff’s claim. These cases, they assert, show

that the term “operators” includes persons outside the vehicle,

and that the officers therefore had probable cause to arrest

Plaintiff for violating Rule 4-12(a)(3) and NYPL § 195.05.

5 Plaintiff argues that, even if Frederick violated Rule 4-12(a)(3) of

the New York City Traffic Rules, a reasonable jury could conclude that

Defendants lacked probable cause for the arrest because the officers arrested

him for other reasons — namely, for using obscene language, failing to comply

with a lawful order, and obstructing pedestrian traffic. See Pl.’s Supp. Br.

at 2, ECF No. 164. But the law is clear that “officers who [have] objective

probable cause to arrest individuals for any crime — whether or not that

particular crime was closely related to the offense the officers said was the

reason for arrest — [are] not subject to damages for false arrest under

[Section] 1983.” Berg v. Kelly, 897 F.3d 99, 111 (2d Cir. 2018). Thus, if

Rule 4-12(a)(3) applied to Plaintiff, no question of fact exists as to

whether Defendants had probable cause to arrest him following his admitted

refusal to produce his identification documents.

The cases Defendants have identified may not

definitively resolve the “operators” issue. They do, however,

establish definitively that reasonable minds can differ —

indeed, have differed — on the matter. Under the doctrine of

qualified immunity, this showing requires reconsideration.

Defendants’ motion, therefore, must be granted in part.

1. The Qualified-Immunity Standard

Under Supreme Court and Second Circuit precedent,

police officers are afforded broad legal protection by the

doctrine of qualified immunity, which “protects government

officials from suit if their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Gonzalez v. City of

Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (internal

quotations omitted). To determine whether the doctrine applies,

a court must assess: “(1) whether [a] plaintiff has shown facts

making out [a] violation of a constitutional right; (2) if so,

whether that right was ‘clearly established’; and (3) even if

the right was ‘clearly established,’ whether it was ‘objectively

reasonable’ for the officer to believe the conduct at issue was

lawful.” Id. “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.” Rothman v. N.Y.C. Transit Auth., 215 F.3d

208, 216 (2d Cir. 2000) (internal quotations omitted). This

standard protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). Because the Defendants have invoked the doctrine of

qualified immunity, I review the merits of Plaintiff’s claim

through this lens.

2. Elements of a False-Arrest Claim

As noted above, Plaintiff’s only remaining claim is

for false arrest. When assessing Section 1983 claims for false

arrest, courts look to the law of the state in which the arrest

occurred. Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004).

Under New York law, a plaintiff must show that “(1) the

defendant intended to confine him, (2) the plaintiff was

conscious of the confinement, (3) the plaintiff did not consent

to the confinement, and (4) the confinement was not otherwise

privileged.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.

2003).

“The existence of probable cause to arrest,” however,

“constitutes justification and is a complete defense to an

action for false arrest.” Lozada v. Weilminster, 92 F. Supp. 3d

76, 88 (E.D.N.Y. 2015) (internal quotations omitted). Probable

cause operates as a defense even if the violation in question

was “a very minor criminal offense.” Atwater v. City of Lago

Vista, 532 U.S. 318, 354 (2001) (arrest for seatbelt violation);

see also Sands v. City of New York, No. 056-CV-5275, 2006 WL

2850613, *5 (E.D.N.Y. Oct. 3, 2006) (dismissing false-arrest

claim because there was probable cause to arrest plaintiff for

littering). The defense applies even when an officer initially

arrested the defendant for an offense other than the one giving

rise to probable cause. See Figueroa v. Mazza, 825 F.3d 89, 99

(2d Cir. 2016) (“The existence of probable cause to arrest —

even for a crime other than the one identified by the arresting

officer — will defeat a claim of false arrest under the Fourth

Amendment.”). “[A]n arresting officer will . . . be entitled to

qualified immunity from a suit for damages if he can establish

that there was arguable probable cause to arrest.” Escalara v.

Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotations

omitted).

In determining whether conduct gives rise to a state

crime (and thus probable cause), federal courts must of course

turn to state law. If the question is “unsettled” in state

court, the court must “carefully predict how the state’s highest

court would resolve the uncertainties.” Travelers Ins. Co. v.

Carpenter, 411 F.3d 323, 329 (2d Cir. 2005) (cleaned up). This

is the crux of the issue here.

3. Analysis

As Judge Brodie noted, New York State courts have not

squarely resolved this question. But the three cases Defendants

discovered support a broader view of the term “operators” than

the one this Court initially adopted (without the benefit of

those cases). At a minimum, these cases provide definitive

support for the conclusion that the officer-defendants here

violated no “clearly established” provision of New York law when

they arrested the Plaintiff for failing to produce his license

documents.

Indeed, one of the cases Defendants cite, People v.

Frank, 305 N.Y.S.2d 940, 943-44 (N.Y. Sup. Ct. 1969), considered

the term “operating” in an almost identical provision of the

VTL, and concluded that it applies to a former driver of a car

who was outside the vehicle when approached by law enforcement.

Frank interpreted Section 401 of the VTL, which provided at the

time that “every person operating a vehicle . . . shall upon

demand of any . . . peace officer . . . produce for inspection

. . . and shall furnish . . . any information necessary for the

identification of such vehicle and its owner.” Id. at 943-44

(quoting N.Y. Veh. & Traf. L. § 401). In holding that this

section applied to a person outside his vehicle, the court

stated that the former driver of a car was the “operator”

because his admission that he owned the car, along with his

accession to the officers’ requests to search it, established

the defendant’s “dominion” over the vehicle. Frank, 305 N.Y.S.

2d at 945 (“While it is true that the statute speaks of a demand

for identification of the motor vehicle upon the ‘person

operating a motor vehicle,’ it would seem apparent that the

intent of the statute is to cover not only the person actually

operating the vehicle but also anyone who exercises dominion

over a motor vehicle” registered in New York). As the state

court explained in Frank, “it is indisputable” that the car “was

operated” shortly before the officer saw it, that the defendant

“acknowledged that he owned it,” and that the defendant

“acced[ed] to [the officer’s] request for permission to look at

the car (albeit superfluous[ly]).” Id.

The same analysis (largely) applies here, even on the

undisputed facts: when approached by the officers on the date

in question, Plaintiff did not dispute that he owned the car or

that he had parked it where it stood; instead, he told

Defendants to ticket it. See Compl. ¶ 45 (Plaintiff told the

officers to “give the car a ticket”). At a minimum, these facts

rendered the officers justified in assuming that Plaintiff

exercised “dominion” over the car, as was key to the definition

of “operate” in Frank.

Another New York State court read the word “operating”

similarly in People v. Ceschini, 310 N.Y.S.2d 581 (N.Y. Crim.

Ct. 1970). Ceschini was arrested for leaving the scene of an

accident, and moved to dismiss the criminal complaint on the

basis that the statute he was charged with violating — Section

600 of the VTL — did not reach his conduct. Section 600

prohibits “[a]ny person operating a motor vehicle” who causes

damage to property from “leav[ing] the place where the damage

occurred”; Ceschini argued that it did not reach his conduct

because he had exited the car prior to the accident in question.

(He left the engine running, and the driverless vehicle then

collided with a parked car “under circumstances which [Ceschini]

did not choose to explain.”). Id. at 582. The court held that

Ceschini’s arrest was proper because “a person may be

‘operating’ a vehicle” within the meaning of Section 600 “while

it is at rest or even when the person against whom civil or

criminal sanctions are invoked is outside the vehicle.” Id. at

583. The court reasoned that “cause and effect are not housed

in compartments insulated from each other, but rather . . . one

flows into the other”; thus, because Ceschini’s actions while he

was in the car “caused” the accident after he left the car, he

was the “operator” for purposes of the statute. As in Ceschini,

Plaintiff admittedly operated the vehicle when he performed the

act that gave rise to the Rule 4-12(a)(3) encounter — namely, by

parking it where it stood. The same cause-and-effect

underpinning Ceschini’s “operator” analysis therefore applies

here with equal force.

Lastly, in People v. Jeffrey, 998 N.Y.S.2d 307 (N.Y.

Crim Ct. 2014), the court held that officers could conclude a

person found hiding under a vehicle and clutching its keys had

“operated” the car for purposes of VTL Sections 1192(3),

1192(1), 600(1)(a), and 509(1), which prohibit the “operation”

of vehicles while intoxicated (among other things). Jeffrey,

998 N.Y.S.2d at 307 (holding that these allegations

“collectively support the conclusion that the defendant had

recently ‘operated’ the now inoperable vehicle”). As Jeffrey

suggests, a reasonable police officer could have concluded,

based on the circumstantial evidence, that Plaintiff was the

“operator” of the vehicle.

In light of these precedents, it simply cannot be said

that no reasonable officer in Defendants’ position would have

seen probable cause to arrest Plaintiff after he refused to

produce his identification documents. Frederick evidenced his

“dominion” over the car, as in Frank, and there was a cause-and-

effect between his actions (in parking it) and the circumstances

leading to the alleged underlying violation, as in Ceschini.

Accordingly, the officers did not violate “clearly established”

constitutional or statutory rights when they arrested him under

a law requiring that “operators” of a car produce certain

documents on request, and Frederick (by his own admission)

refused.6

I noted above that probable cause operates as a

defense even if the violation in question was “a very minor

criminal offense.” Atwater, 532 U.S. at 354. A New York

“traffic infraction is not a crime” — even a very minor one.

See VTL § 155. But violations of the New York City Traffic

Rules are nonetheless arrestable offenses. See N.Y. C.P.L.

§ 140.05 (persons believed to have committed an “offense” may

“be arrested for such offense” without a warrant); VTL § 155

(“For purposes of arrest without a warrant, pursuant to [N.Y.

C.P.L. § 140], a traffic infraction shall be deemed an

offense.”); see also United States v. Dupree, No. 16-CR-84, 2016

WL 10703796, at *3 n.1 (E.D.N.Y. Aug. 29, 2016) (“[A] violation

of any New York City traffic regulation is an arrestable

‘traffic infraction’ under New York State law.”); Evans v.

Solomon, 681 F. Supp. 2d 233, 243 n.5, 248 (E.D.N.Y. 2010)

(same, and holding that police officer “undoubtedly had probable

cause to arrest Plaintiff based either on Plaintiff’s traffic

infraction” under the New York City Traffic Rules, “or on his

6 People v. Alamo, 34 N.Y.2d 453 (1974), does not require a different

conclusion. There, the New York Court of Appeals held that “operation of [a]

vehicle is established on proof that the defendant was merely behind the

wheel with the engine running.” Id. at 458. But the Alamo court did not

limit the term “operation” to that definition.

refusal to furnish a driver’s license” under the VTL); see also

Cox v. City of New York, No. 13-CV-163, 2014 WL 3696003, at *8

(E.D.N.Y. July 23, 2014) (violation of New York City Traffic

Rules justifies police stop). Put simply, police officers are

(at least arguably) authorized to arrest vehicle “operators” who

refuse to produce the identification documents listed in New

York City Traffic Rule 4-12(a)(3) on demand.7

And this is true even though Plaintiff disputes that

his car was illegally parked to begin with. Nothing in Rule

4-12(a)(3) requires a predicate offense for the Rule to apply.

For better or worse, the Rule allows police officers to demand

identification from any “operator” of a motor vehicle, whether

or not they have cause to suspect that a violation has occurred.

Thus, once Plaintiff refused to produce identification, the

7 Plaintiff does not argue otherwise. But Judge Brodie referenced one

case, People v. Desmornes, 82 N.Y.S.3d 691 (N.Y. Crim. Ct. 2018), that

suggests traffic arrests may, in some circumstances, be “unauthorized” when

the officers could issue a parking ticket or tow the parked vehicle instead.

Id. at 95-96. But Desmornes dealt with a motion to suppress evidence

collected incident to arrest. It did not mention the New York Traffic Rule

at issue here. And its conclusion that the arrest was “unauthorized” finds

little support in New York statutory law (as explained above), or the cases

on which it relies. See People v. Howell, 49 N.Y.2d 778, 779 (1980)

(granting motion to suppress because arrest for reckless driving was “neither

called for nor the preferred procedure”) (citing People v. Troiano, 35 N.Y.S.

476, 478 (1974) (stating that searches incident to traffic arrests may,

“perhaps,” be “unjustified” where the arrest “was not necessary because an

alternative summons was available or because the arrest was a suspect pretext

. . . .”) (citing People v. Marsh, 20 N.Y.2d 98, 101-02 (1967) (expressing

doubt that “the [New York State] Legislature intended” to allow searches

incident to arrest for “traffic violations”)))); see also People v. Adams, 32

N.Y.2d 451, 454-55 (1973) (stating that “the lawfulness of [a traffic] arrest

will not always justify an otherwise illegal search”). Thus, Desmornes does

not change my conclusion that Defendants were (at least arguably) authorized

to arrest Plaintiff for violating New York City Traffic Rule 4-12(a)(3).

officers had a reasonable basis — at least for qualified-

immunity purposes — to arrest Plaintiff under Rule 4-12(a)(3).

Because probable cause (at least) arguably existed from that

point forward, Defendants are entitled to qualified immunity for

the events following Plaintiff’s refusal to produce

identification documents — including the formal arrest itself.

They are not, however, shielded by qualified immunity

from the events preceding Plaintiff’s refusal. For that reason,

this case will proceed to trial. Plaintiff testified that the

Defendants “tackled” and “restrained” him before asking for his

identification documents. See Compl. ¶ 45; Frederick Dep. at

27:12-15; 59:22-60:4. Those acts constitute an “arrest.” See,

e.g., Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991) (“An

arrest need not be formal; it may occur even if the formal words

of arrest have not been spoken provided that the subject is

restrained and his freedom of movement is restricted”); Jennings

v. Decker, 359 F. Supp. 3d 196, 209 (N.D.N.Y. 2019) (“Plaintiff

was arrested at least as of the moment [Defendant] tackled him

to the ground.”); Brown v. Dirga, No. 15-CV-1086, 2017 WL

4399190, at *8 (D. Conn. Sept. 29, 2017) (officer “arrested” the

plaintiff by grabbing his arm, putting it behind his back, and

pushing him against a parked car). And Plaintiff has adduced

sufficient evidence that the officers lacked probable cause to

justify that arrest, given his testimony that the car was not

parked illegally. Frederick Dep. at 28:23-29:4. The officers

dispute these assertions; but that dispute cannot be resolved on

a motion for summary judgment.

Thus, Plaintiff’s false-arrest claim may proceed with

respect to the events preceding his refusal to produce

identification documents. See, e.g., Gonzalez v. City of

Schnectady, No. 00-CV-824, 2001 WL 1217224, at *5 (N.D.N.Y.

Sept. 17, 2001) (plaintiff could maintain false-arrest claim for

the “period of time between [his] initial contact with the

police” and the subsequent discovery of evidence providing

probable cause for an arrest, if his detention during that time

was not supported by probable cause). His false-arrest claim,

however, is limited to this conduct — and not the formal arrest

itself, which occurred after he refused (as he concedes) to

comply with Defendants’ request for his identification

documents.

VI. Conclusion

For the reasons set forth above, Defendants’ motion

for reconsideration is granted in part and denied in part. The

scope of Plaintiff’s false-arrest claim is limited to the events

preceding his refusal to produce identification documents at

Defendants’ request. The parties shall submit a revised joint

pretrial order (“JPTO”) or file a letter stating their intent to

proceed on the existing JPTO by July 28, 2021.

SO ORDERED.

/s Eric Komitee___________________

ERIC KOMITEE

United States District Judge

Dated: June 28, 2021

Brooklyn, New York