# Frederick v. City of New York

> District Court, E.D. New York · June 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10306397

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

JOHN FREDERICK,

Plaintiff, MEMORANDUM & ORDER
13-CV-0897(EK)(ST)
-against-

NEW YORK CITY POLICE OFFICER DERRICK
BOYD #10014, et al.,

Defendants.

------------------------------------x
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306397. Public record. Not legal advice.