Harris v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

LEVAR HARRIS, : 20-CV-784 (ARR) (PK)

:

Plaintiff, :

:

-against- : OPINION & ORDER

:

CITY OF NEW YORK; SERGEANT GOMEZ (Shield # :

477, Tax # 941024); POLICE OFFICER KERN (Shield # :

10507, Tax # 955000; POLICE OFFICER REYES :

(Shield # 27566, Tax # 953309), X

Defendants.

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ROSS, United States District Judge:

On February 12, 2020, Plaintiff Levar Harris commenced this action against Sergeant

Cesar Gomez, Officer Sean Kern, and Officer Nelson Reyes, all employees of the New York City

Police Department, as well as the City of New York (collectively, “defendants”). Pursuant to 42

U.S.C. §§ 1983 and 1985, plaintiff brings claims against Sergeant Gomez, Officer Kern, and

Officer Reyes for false arrest, use of excessive force, conspiracy, battery, and assault, as well as a

claim for municipal liability against defendant New York City. Defendants now move for

summary judgment. For the following reasons, I grant defendants’ motion in its entirety.

BACKGROUND1

At approximately 1 a.m. on February 13, 2019, Officer Kern, Officer Reyes, and Sergeant

Gomez (collectively “defendant officers”) “were on patrol in an unmarked vehicle, in plainclothes,

1 The following facts are taken from parties’ respective Local Rule 56.1 statements of facts,

depositions, and exhibits.

in the vicinity of Fulton Street and Throop Avenue.” Defs.’ 56.1 ¶ 12, ECF No. 30; Pl.’s 56.1 ¶

12, ECF No. 33; Pl.’s Mem. L. in Opp’n Summ. J. 3 (“Pl.’s Opp’n”), ECF No. 32. Fulton Street

“runs . . . in an east/west direction and is a two-way street with two lanes in each direction.” Defs.’

56.1 ¶ 7; Pl.’s 56.1 ¶ 7. Defendant officers were driving eastbound on the south side of Fulton

Street, while plaintiff walked westbound on the same side. Defs.’ Reply 56.1 ¶¶ 13–14, ECF No.

36; Defs.’ 56.1 ¶ 15; Pl.’s 56.1 ¶ 15. When plaintiff was approximately in the middle of the block,

the parties passed each other. Defs.’ 56.1 ¶¶ 16–17; Pl.’s 56.1 ¶¶ 16–17. “Plaintiff kept his eyes

on the officers’ vehicle” as they drove by him. Defs.’ 56.1 ¶ 18; Pl.’s 56.1 ¶ 18.

According to defendant officers, “[i]t appeared . . . that plaintiff was carrying a heavy object

in one of his pockets[. Plaintiff] appeared to be quite keenly focused on their vehicle [and] turned

to watch them as they drove past [him].” Defs.’ 56.1 ¶ 19. Defendant officers allege that after they

passed plaintiff, they started to make a U-turn. Defs.’ 56.1 ¶ 21. As they were turning, plaintiff

began crossing the street. Defs.’ 56.1 ¶ 22.

Plaintiff disagrees. According to plaintiff, defendant officers had completed their U-turn

and were already driving back toward plaintiff when he began crossing the street. Pl.’s 56.1 ¶ 22.

But see Aff. in Supp. Summ. J., Ex. D 57:13−15, ECF No. 29-4. As he walked from the south to

the north side of Fulton Street, where a McDonald’s was located, “he turned on his cell phone to

record.” Defs.’ 56.1 ¶¶ 8, 20, 23; Pl.’s 56.1 ¶¶ 8, 20, 23. Plaintiff avers that he pulled out his cell

phone to record because he “knew what was about to happen” between him and defendant officers.

See Aff. in Opp’n Summ. J., Ex. A 45:23−46:1 (“Harris Dep.”), ECF No. 34-1 (“I already knew

what was about to happen. . . . Typical Day. Black man walking down the street.”).

The parties agree that when plaintiff crossed Fulton Street, he was in the middle of the

block and not in a marked crosswalk. Defs.’ 56.1 ¶ 24; Pl.’s 56.1 ¶ 24. Plaintiff disputes that the

intersections of Fulton Street and Throop Avenue and Fulton Street and Albany Avenue had

marked crosswalks and traffic signals in operation. See Pl.’s 56.1 ¶¶ 10–11; Defs.’ 56.1 ¶¶ 10–11.

Once plaintiff was on the other side of Fulton Street, near the McDonald’s parking lot,

defendant officers stopped plaintiff and approached him. Defs.’ 56.1 ¶ 25−26; Pl.’s 56.1 ¶ 25−26.

When they reached him, “[o]ne officer held plaintiff’s one arm, a second officer held plaintiff’s

other arm, and a third officer stood in front of plaintiff holding each side of [his coat].” Defs.’ 56.1

¶ 27; Pl.’s 56.1 ¶ 27. Defendant officers patted down plaintiff and searched him. Defs.’ 56.1 ¶ 28;

Pl.’s 56.1 ¶ 28. Plaintiff was not handcuffed during this interaction. Defs.’ 56.1 ¶ 32; Pl.’s 56.1 ¶

32. Nor was he punched, kicked, or pushed at any point. Defs.’ 56.1 ¶ 33; Pl.’s 56.1 ¶ 33. “The

only physical contact between [defendant] officers and plaintiff consisted of the officers holding

plaintiff’s arms, and frisking and searching him.” Defs.’ 56.1 ¶ 35; Pl.’s 56.1 ¶ 35. Plaintiff felt no

physical pain. Defs.’ 56.1 ¶ 34; Pl.’s 56.1 ¶ 34. After they searched him, defendant officers walked

away from plaintiff without issuing him a summons. Pl.’s Opp’n 7. Once defendant officers had

left, plaintiff stopped recording on his phone. Defs.’ 56.1 ¶ 29; Pl.’s 56.1 ¶ 29.

On February 12, 2020, plaintiff filed a complaint against defendants alleging claims of

false arrest,2 use of excessive force, conspiracy, battery, assault, and municipal liability. See

Compl. ¶¶ 12−14, 17−23. Defendants now move to dismiss all of plaintiff’s claims on summary

judgment.

2 Parties do not dispute that defendant officers conducted a Fourth Amendment arrest of plaintiff.

See Defs.’ Mem. L. in Supp. Summ. J. 4 (“Defs.’ Mot.”), ECF No. 31; Pl.’s Opp’n 6−10; cf.

California v. Hodari D., 499 U.S. 621, 626 (1991) (explaining that under the Fourth Amendment,

an arrest “requires either physical force . . . or, where that is absent, submission to the assertion of

authority” (emphasis omitted)). Herein, I use the words “arrest,” “detention,” and “confinement”

interchangeably and all to indicate plaintiff’s arrest.

LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The function of the court is not to resolve disputed issues, but to determine whether

there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

“While genuineness runs to whether disputed factual issues can reasonably be resolved in favor of

either party, materiality runs to whether the dispute matters, i.e., whether it concerns facts that can

affect the outcome under the applicable substantive law.” McPherson v. Coombe, 174 F.3d 276,

280 (2d Cir. 1999) (citation, internal quotation marks, and ellipses omitted).

In assessing whether summary judgment is appropriate, the court considers “the pleadings,

depositions, answers to interrogatories and admissions on file, together with any other firsthand

information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir.

2011) (citation omitted); see also Southern and Eastern Districts of New York Local Civil Rule

56.1 (directing parties moving for and opposing summary judgment to submit “short, concise

statement[s] . . . of the material facts” to which they “contend[] there is no genuine issue to be

tried”). The moving party carries the burden of proving that there is no genuine dispute respecting

any material fact and “may obtain summary judgment by showing that little or no evidence may

be found in support of the nonmoving party’s case.” Gallo v. Prudential Residential Servs., Ltd.

P’ship, 22 F.3d 1219, 1223–24 (2d Cir. 1994). Once this burden is met, in order to avoid the entry

of summary judgment, 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) (citation

omitted). “[T]he non-moving party must offer such proof as would allow a reasonable juror to

return a verdict in his favor, and only when that proof is slight is summary judgment appropriate.”

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (first citing Anderson, 477 U.S. at

256, and then citing Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). In reviewing

the record before it, “the court is required to resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is sought.” McLee v. Chrysler

Corp., 109 F.3d 130, 134 (2d Cir. 1997).

DISCUSSION

I. False Arrest.

A. Elements of a false arrest claim.

“A claim for false arrest under § 1983 is based on one’s Fourth Amendment right to be free

from unreasonable seizures.” Franks v. City of N.Y., No. 13-CV-3056 (RRM), 2015 WL 4727300,

at *3 (E.D.N.Y. Aug. 10, 2015). While the claim derives from the Fourth Amendment, see Lennon

v. Miller, 66 F.3d 416, 423 (2d Cir. 1995), in the Second Circuit, false arrest claims brought under

§ 1983 are “analyzed pursuant to the same standards as the applicable state law’s false tort.”

Nzegwu v. Friedman, 605 F. App’x 27, 29 (2d Cir. 2015) (citing Jocks v. Tavernier, 316 F.3d 128,

134 (2d Cir. 2003)); see also Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004) (collecting

cases wherein state law was applied to claims of false arrest). Under New York law, a plaintiff

alleging a false arrest claim must show that: “(1) the defendant intended to confine the plaintiff,

(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.” Savino v. City of N.Y., 331

F.3d 63, 75 (2d Cir. 2003) (citation omitted).

Where an officer has probable cause to arrest an individual, the confinement is considered

privileged. Nzegwu, 605 F. App’x at 29. Thus, the existence of probable cause at the time of a

person’s arrest is an absolute defense to a claim of false arrest. Jaegly v. Couch, 439 F.3d 149, 152

(2d Cir. 2006). “Probable cause to arrest exists when the officers have knowledge of, or reasonably

trustworthy information as to, facts and circumstances that are sufficient to warrant a person of

reasonable caution in the belief that an offense has been or is being committed by the person to be

arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). This inquiry is an objective

one: “[A]n arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the

existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Rather, so long as

the circumstances known to the officer, when viewed objectively, justify an arrest, the confinement

is considered privileged. See id.; Whren v. United States, 517 U.S. 806, 814 (1996) (“[T]he Fourth

Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain

circumstances, whatever the subjective intent.” (emphasis omitted)). Moreover, when conducting

an arrest, “the police need not have had probable cause with respect to each [] charge” ultimately

made—if they have probable cause to believe that the individual is committing any crime, the

arrest is justified. Dinler v. City of N.Y., No. 04-CV-7921 (RJS), 2012 WL 4513352, at *3

(S.D.N.Y. Sept. 30, 2012) (citing Marcavage v. City of N.Y., 689 F.3d 98, 109–10 (2d Cir. 2012)).

B. As applied to plaintiff.

The parties in this case do not dispute that on the night of February 13, 2019, defendant

officers confined plaintiff without his consent. Defs.’ 56.1 ¶¶ 25−28; Pl.’s ¶¶ 56.1 25−28. Nor do

they dispute that in the moments leading up to his arrest, plaintiff crossed Fulton Street in the

middle of the block, outside of a marked crosswalk. Defs.’ 56.1 ¶ 24; Pl.’s 56.1 ¶ 24. In contention,

however, is whether this conduct gave rise to probable cause. Plaintiff argues it did not; defendants

disagree. Based on the record before me, I find that at the time of plaintiff’s confinement, defendant

officers had probable cause to arrest him based on his violation of city traffic laws.

Under § 140.10(1)(a) of the New York Criminal Procedure Law, a police officer may arrest

a person without a warrant where the officer “has reasonable cause to believe that such person has

committed [an]offense in [their] presence.” N.Y. Crim. Proc. Law § 140.10(1)(a). Although “[a]

traffic infraction is not a crime and the punishment imposed therefor shall not be deemed for any

purpose a penal or criminal punishment,” Vehicle and Traffic Law § 155 provides that “[f]or

purposes of arrest without a warrant, pursuant to article one hundred forty of the criminal procedure

law, a traffic infraction shall be deemed an offense.” N.Y. Veh. & Traf. Law § 155. “Taking these

sections together, [a violation of the traffic laws] constitutes an ‘offense’ subject to a warrantless

arrest under New York state law.” Noel v. Cnty. of Nassau, No. 11-CV-5370 (JS), 2015 WL

541461, at *7 (E.D.N.Y. Feb. 7, 2015); see also United States v. McFadden, 238 F.3d 198, 201–

02 (2d Cir. 2001) (holding that “[u]nder New York law, the police may arrest someone without a

warrant for a ‘petty offense’” and that “[p]etty offenses include traffic infractions”); cf. Atwater v.

City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in his presence, he may, without

violating the Fourth Amendment, arrest the offender.”).

Defendant officers allege that they had probable cause to arrest plaintiff for violating three

separate traffic laws when he crossed Fulton Street outside of the marked and signaled crosswalks

at both Throop and Albany Avenues: New York City Department of Transportation Traffic Rules

and Regulations (“TRR”) § 4-04(c)(2) (“TRR § 4-04(c)(2)” or “§ 4-04(c)(2)”), which prohibits

pedestrians from crossing at an intersection except within a crosswalk; TRR § 4-04(c)(3) (“TRR

§ 4-04(c)(3)” or “§ 4-04(c)(3)”), requiring pedestrians to cross the street “at a crosswalk on any

block in which traffic control signals are in operation at both intersections bordering the block”;

and Vehicle and Traffic Law § 1156(a), which provides that “[w]here sidewalks are provided and

they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an

adjacent roadway.”

Plaintiff acknowledges that he crossed Fulton Street in the middle of the block but argues

that defendants have failed to establish that he violated the traffic laws. According to plaintiff,

defendants have not submitted reliable evidence that, “on the night of the subject incident, the

sidewalks were able to be used with safety, or that traffic control signals were in operation at both

intersections bordering the block, or even that there was a crosswalk in the roadway.” Pl.’s Opp’n

9. Plaintiff correctly points out that defendants’ initial submission of evidence depicting the

location where plaintiff crossed the street—Google-Maps photographs taken in November 2020,

more than eighteen months after plaintiff’s detention—cannot be relied upon to draw conclusions

about the incident location on the night of February 13, 2019. See id. at 9; Aff. in Supp. Sum. J.,

Ex. C, ECF No. 29-3. Defendants have since cured this defect, however, by submitting four

historical photographs of the incident location from October 2018 and May 2019, shortly before

and after the night of plaintiff’s arrest.3 See Aff. in Supp. Summ. J., Ex. I (“Google-Maps

Photographs”), ECF No. 35-1.

Across these two dates, the historical photographs show sidewalk construction on the south

3 “Although courts need not consider evidence and legal arguments first included in reply papers

unless they are in response to evidence and arguments in opposing papers, they are not without

discretion to do so.” Utica Mut. Ins. Co. v. INA Reinsurance Co., No. 12-CV-194 (TWD), 2012

WL 12874471, at *6 n.11 (N.D.N.Y. Nov. 6, 2012) (citation omitted), report and recommendation

adopted, 2012 WL 12874470 (N.D.N.Y. Dec. 14, 2012). Here, defendants’ inclusion of new

Google-Maps photographs is responsive to arguments raised by plaintiff, as well as evidence

submitted by plaintiff in his opposition to summary judgment. Indeed, these photographs are from

the same dates as the photographs submitted by plaintiff (May 2018 and October 2019);

defendants’ photographs merely show different angles of the same location. See Aff. in Opp’n

Summ. J., Exs. H1−H3, ECF Nos. 34-8−10. “In addition, the record does not reflect any request

by [plaintiff] to serve a sur-reply in response to [defendants’] inclusion of new evidence.” Utica

Mut. Ins. Co., 2012 WL 12874471, at *6 n.11. I therefore deem it appropriate to consider this new

evidence submitted in defendants’ reply.

side of Fulton Street, where plaintiff was walking before he crossed the street.4 The photographs

additionally depict open crosswalks at both the Albany Avenue and Throop Avenue intersections

and operating traffic signals at both locations. See Google-Maps Photographs. Based on these

photographs, which show segments of the Fulton Street sidewalk barricaded, it is not clear

whether, on the night of February 13, 2019, the sidewalks were safely useable—and, relatedly,

whether plaintiff violated Vehicle and Traffic Law § 1156(a) when he walked across the road.

Whether the sidewalks were available to plaintiff when he stepped into the road is thus a material

fact properly determined by a jury. Nor can I find that plaintiff had violated TRR§ 4-04(c)(2) at

the time of his arrest based on the evidentiary record. TRR § 4-04(c)(2) provides that pedestrians

shall not “cross any roadway at an intersection except within a cross-walk.” But plaintiff and

defendants agree that plaintiff crossed the roadway in the middle of the block. Defs.’ 56.1 ¶¶

24−25; Pl.’s 56.1 ¶¶ 24–25. Based on these averments, defendant officers would not have had

probable cause to arrest plaintiff for violating § 4-04(c)(2) because he was not at an intersection

when he crossed Fulton Street. Cf. Gonzalez v. City of N.Y., 14-CV-7721 (LGS), 2016 WL

5477774, at *11 (S.D.N.Y. Sept. 29, 2016) (explaining that the defendants did not have probable

cause to arrest the plaintiff based on § 4-04(c)(2) because the “[p]laintiff was not at an intersection

and was not crossing the roadway”), partially rev’d on other grounds, 2017 WL 149985 (S.D.N.Y.

Jan. 13, 2017).

I can conclude from the record, however, that at the time of his arrest, plaintiff had violated

§ 4-04(c)(3), which prohibits pedestrians from “cross[ing] a roadway except at a crosswalk on any

block in which traffic control signals are in operation at both intersections bordering the block.”

4 I may consider these photographs under the doctrine of judicial notice. See Logan v. Matveevskii,

57 F. Supp. 3d 234, 265 n.10 (S.D.N.Y. 2014) (taking judicial notice of the location of properties

based on Google-Maps photographs).

Plaintiff crossed the roadway outside of the crosswalk, Defs.’ 56.1 ¶ 24; Pl.’s 56.1 ¶ 24, when,

based on photographs of the incident location from shortly before and after plaintiff’s arrest,

crosswalks were clearly demarcated at the Albany Avenue and Throop Avenue intersections and

traffic signals were in operation. Moreover, plaintiff has not adduced any evidence to suggest that

the elements of § 4-04(c)(3) were not met on the night of his arrest. For example, plaintiff has not

proffered that the traffic signals were malfunctioning on February 13 or that crosswalks did not

exist at either intersection. Instead, plaintiff exclusively challenges the reliability of defendants’

evidence, which has since been cured.5 Pl.’s Opp’n 9–10. More is required from plaintiff at this

stage of the case. At summary judgment, a 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); see also Long Island R.R., 230 F.3d at 38. Plaintiff has failed to do so here.

Accordingly, I am persuaded that plaintiff had violated § 4-04(c)(3) in front of defendant officers

at the time he was arrested. As such, there “is no dispute as to the pertinent events” determinative

of probable cause here. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Because “an arrest is

not unlawful so long as the officer has . . . probable cause to believe that the person arrested has

committed any crime,” Zellner, 494 F.3d at 369, I am compelled to dismiss plaintiff’s false arrest

claim.

Resisting this conclusion, plaintiff makes two additional arguments that there was not

probable cause for his arrest. First, plaintiff argues that because “[d]efendants by their own

conduct, without any reasonable basis, created the circumstances by which [p]laintiff was forced

to cross Fulton Street for his own safety,” defendant officers did not have probable cause. Pl.’s

5 Indeed, in their reply brief, defendants rely on Google-Maps photographs from the same dates

as the photographs submitted by plaintiff in his opposition.

Opp’n 8−9. As plaintiff explains, “[t]he police may not create alleged pretextual probable cause

by their own gratuitous conduct.” Id. at 9 (citing People v. Levan, 476 N.Y.S.2d 101 (N.Y. 1984)).

Plaintiff alleges that defendant officers did so when they “made an illegal U-turn” and “double[d]

back directly towards” plaintiff, thereby forcing plaintiff to cross the street. Id. at 8−9. In support

of his argument, plaintiff cites a series of state law cases. See id. at 9 (citing People v. McBride,

902 N.Y.S.2d 830 (N.Y. 2010), Levan, 476 N.Y.S.2d 101, and People v. Lott, 478 N.Y.S.2d 193

(N.Y. App. Div. 1984)). These cases are unpersuasive, however, as they all concern the propriety

of police officers’ warrantless entries into and searches of the defendants’ homes, where, “[a]bsent

exigent circumstances,” the police may not reasonably enter “without a warrant.” Payton v. New

York, 445 U.S. 573, 589−90 (1980). In each case, the officers argued that an exigent circumstance

justified their warrantless entry, while the defendants claimed that the police improperly created

the exigency themselves. See McBride, 902 N.Y.S.2d at 834; Levan, 476 N.Y.S.2d at 103–04; Lott,

478 N.Y.S.2d at 197. But exigent circumstances, which apply “when the needs of law enforcement

[are] so compelling that a warrantless search is objectively reasonable,” Lange v. California, 141

S. Ct. 2011, 2017 (2021) (citation omitted), were not at issue in plaintiff’s case. Defendant officers

did not arrest plaintiff based on any exigency; rather, they arrested him after he created probable

cause by walking across the street in violation of § 4-04(c)(3). Plaintiff has cited no cases in which

a court found that the police improperly created probable cause through their own conduct. Absent

applicable precedent, I decline to find that defendant officers’ probable cause was vitiated by their

own actions.

Plaintiff next contends that defendants made the decision to stop and search plaintiff at the

point when “[d]efendants made [their] U-turn” and before plaintiff had “engaged in jaywalking or

any other behavior that would warrant his forceful seizure and search by defendants.”6 Pl.’s Opp’n

6. Under this argument, plaintiff alleges that defendant officers’ “claim of jaywalking” was purely

pretextual, used to cover up more insidious motives. Id. at 8. To be sure, plaintiff has adduced

compelling evidence that he believed he was being pursued by defendant officers when he decided

to cross Fulton Street: as plaintiff explained in his deposition testimony, when he noticed defendant

officers make the U-turn, he put his phone on record and crossed the street to the McDonald’s,

where there were people around “to see what[ was] about to happen and what could happen.” See

Harris Dep. 45:11−46:9; Pl.’s Opp’n 6. According to plaintiff, pretextual or prejudice-driven

police stops of young Black men are part of everyday life in his neighborhood, suggesting plaintiff

believed he was about to be stopped even before he crossed the street. See Harris Dep. 60: 20−24

(“Young Black men, we experience this every day growing up in this area where we live.”). But

while “courts have understandably expressed [ ] skepticism about justifying custodial arrests

undertaken for other reasons based on violations of traffic laws that likely are rarely the subject of

arrests,” Roper v. City of N.Y., No. 15-CV-8899 (PAE), 2017 WL 2483813, at *4 (S.D.N.Y. June

7, 2017), “the Supreme Court has made explicitly clear that courts may not ‘entertain Fourth

Amendment challenges based on the actual motivations of individual officers,’” United States v.

Dupree, No. 16-CR-84 (ARR), 2016 WL 10703796, at *3 n.2 (quoting Whren, 517 U.S. at 813),

6 According to plaintiff, some defendant officers, when questioned by the New York City Civilian

Complaint Review Board (“CCRB”) about the incident in question, suggested that their stop of

plaintiff was motivated by a bulge in his pocket but gave inconsistent testimony on this point. Pl.’s

Opp’n 6–7. Specifically, plaintiff alleges that Officer Reyes gave conflicting testimony to the

CCRB, first testifying that, when driving past plaintiff, he observed a “heavy object in his coat

pocket,” and then later claiming it was a “bulge in [p]laintiff’s front pants pocket.” See Pl.’s Opp’n

6. However, plaintiff omits key portions of Officer Reyes’s testimony, which also mentions

plaintiff’s crossing of Fulton Street in the middle of the block as a partial reason for the stop. See

Aff. in Opp’n Summ. J., Ex. C 48: 2−23, 84:3−16 (“Reyes Dep.”), ECF No. 34-3. Moreover, while

the reasons for the stop proffered by defendant Officer Reyes may not be identical across his

testimony, they are ultimately immaterial to my analysis for reasons discussed below.

aff’d 767 F. App’x. 181 (2d Cir. 2019).

So long “as the officers[] could have stopped [the plaintiff] because he [violated the traffic

law], the court may not consider whether his commission of this minor infraction was the actual

basis for the stop.” Dupree, 2016 WL 10703796, at *3 n.2 ; see also United States v. Miller, 382

F. Supp. 2d 350, 367 (N.D.N.Y. 2005) (“If the seizure is thus justified, it is irrelevant whether the

police had some ulterior motive or ‘pretext’ for the stop, since probable cause justifies the Fourth

Amendment intrusion.”).7 Applying this standard, plaintiff’s argument as to pretext cannot

succeed. Plaintiff was not seized for purposes of his false arrest claim until defendant officers

approached plaintiff on the north side of Fulton Street, put their arms on him, and searched his

person. See California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical

force . . . or, where that is absent, submission to the assertion of authority.” (emphases omitted));

United States v. Simmons, 560 F.3d 98, 105–06 (2d Cir. 2009) (“A police officer’s order to stop

constitutes a seizure if ‘a reasonable person would have believed that he was not free to leave,’

and the person complies with the officer’s order to stop.” (first quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980) and then citing United States v. Swindle, 407 F.3d 562, 566

(2d Cir. 2005))). By that time, defendant officers had probable cause to arrest predicated on

plaintiff’s violation of § 4-04(c)(3). Accordingly, any reasons that may have motivated defendant

officers’ pursuit of plaintiff are immaterial; plaintiff’s false arrest claim must fail as a matter of

law.

7 Because defendant officers “had the authority to stop and arrest [plaintiff], or at least to stop him

in order to issue a summons,” Dupree, 2016 WL 10703796, at *2 (citing McFadden, 238 F.3d at

202), it also does not matter that they ultimately let plaintiff go without arresting him or issuing a

summons. Cf. United States v. Diaz, 854 F.3d 197, 205−06 (2d Cir. 2017) (explaining that a search

incident to arrest is lawful where officers have probable cause to arrest the defendant, irrespective

of whether the officers intend to arrest him).

Notwithstanding my conclusion, I join several of my sister courts in expressing concern

over custodial arrests for non-criminal traffic infractions. See, e.g., Glasgow v. Beary, 2 F. Supp.

3d 419, 424 (E.D.N.Y. 2014) (“The constitutionality of a full custodial arrest based only on

probable cause for a non-criminal traffic infraction is unclear and dubious. Consider that, once

arrested, an individual may be handcuffed, searched, and divested of property, kept in a jail cell

for forty-eight hours without encountering a judicial officer, and forced to undergo a visual

inspection of genitals, all without offending the Fourth Amendment.” (citations omitted)); Foy v.

City of N.Y., No.17-CV-406 (ARR), 2019 WL 3717317, at *5 (E.D.N.Y. Aug. 7, 2019) (noting

that the plaintiff’s apparent violation of a traffic law did not mean “ that the decision to arrest was

a sensible one” and collecting cases); cf. Utah v. Strieff, 579 U.S. 232, 252 (2016) (Sotomayor, J.

dissenting) (“Although many Americans have been stopped for speeding or jaywalking, few may

realize how degrading a stop can be when the officer is looking for more.”). In addition to the

significant infringements on liberty that attend an arrest, this practice may have unintended

consequences. For example, in New York City, evidence suggests that tickets for jaywalking are

disproportionately meted out to people of color. See Gersh Kuntzman, NYPD Targets Blacks and

Latinos for ‘Jaywalking’ Tickets, StreetsBlog NYC, (Jan. 8, 2020),

https://nyc.streetsblog.org/2020/01/08/nypd-targets-blacks-and-latinos-for-jaywalking-tickets/

(finding that 89.5% of jaywalking summonses went to Black and/or Hispanic people despite those

groups accounting for just 55% of the city’s population). Nevertheless, the New York State

legislature has made clear that traffic infractions are arrestable offenses. Absent a legislative

mandate to the contrary, I am bound to find that defendant officers’ arrest of plaintiff was proper.

II. Excessive Force.

“Excessive force claims brought under Section 1983 are ‘judged under the Fourth

Amendment’s “objective reasonableness” standard,’” Jackson v. City of N.Y., 939 F. Supp. 2d 219,

231 (E.D.N.Y. 2013) (quoting Terranova v. New York, 676 F.3d 305, 308 (2d Cir.2012)), which

asks “whether the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation,” Remy v.

Beneri, No. 09-CV-4444 (SJF), 2011 WL 5546237, at *4 (E.D.N.Y. Nov. 9, 2011) (internal

quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). This inquiry

“requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at stake.” Graham, 490

U.S. at 396 (internal quotation marks omitted). In determining the reasonableness of an officer’s

use of force, therefore, a court must consider “the specific facts in each case, including the severity

of the crime at issue, whether the suspect posed an immediate threat to the safety of others and

whether he [was] actively resisting arrest.” Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000).

Generally, a plaintiff “must prove that he sustained some injury to prevail on an excessive force

claim.” Doonan v. Vill. of Spring Valley, No. 10-CV-7139 (VB), 2013 WL 3305767, at *3

(S.D.N.Y. June 25, 2013); see Landy v. Irizarry, 884 F. Supp. 788, 798 n.14 (S.D.N.Y. 1995) (“An

arrestee must prove some injury, even if insignificant, to prevail in an excessive force claim.”);

McAllister v. N.Y.C. Police Dep’t, 49 F. Supp. 2d 688, 699 (S.D.N.Y. 1999).

Plaintiff acknowledges that he was not physically injured by his arrest, Defs.’ 56.1 ¶ 34;

Pl.’s 56.1 ¶ 34, but contends that defendant officers should be liable for excessive force on several

other bases. First, plaintiff alleges that the force used by defendant officers was altogether

gratuitous because the “entire encounter should never have happened.” Pl.’s Opp’n 10–11. This

argument is without merit, however, as I already determined that at the time of plaintiff’s arrest,

defendant officers had probable cause to detain him. See Discussion I.B, supra.

Plaintiff next points to defendant officers’ verbal harassment of him. To be sure and

viewing the evidence in the light most favorable to plaintiff, defendant officers’ conduct towards

plaintiff was inappropriate and demeaning. According to plaintiff, “[a]fter physically releasing

[him], [defendant officers] proceeded to mock, humiliate, and laugh at him.” Pl.’s Opp’n 10.

Defendant officers responded to his request for their names and badge numbers in a “menacing

and aggressive manner,” with Officer Reyes repeatedly telling plaintiff to “remember that,”

referring to his name and badge number Pl.’s Opp’n 4–5; Aff. in Opp’n Summ. J., Ex. C 55:9–

59:20 (“Reyes Dep.”), ECF No. 34-3. Finally, as defendant officers walked away, they told

plaintiff to get a job and “responded ‘oooh’ in a mocking tone” when plaintiff told them that he

was a pharmacy technician. Pl.’s Opp’n 5. However, “[a]lthough indefensible and unprofessional,”

this conduct cannot amount to excessive force because “verbal threats or abuse are not sufficient

to state a constitutional violation cognizable under § 1983.” Jermosen v. Coughlin, 878 F. Supp.

444, 449 (N.D.N.Y. 1995); see also Cole v. Fischer, 379 F. App’x 40, 43 (2d Cir. 2010) (“[V]erbal

harassment, standing alone, does not amount to a constitutional deprivation.”); Aziz Zarif Shabazz

v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998) (collecting cases).

Finally, plaintiff asserts that because of defendant officers’ conduct, he was “caused to

suffer indignity, humiliation, mental anguish, and distress” and “continues to have a distrust of the

police and experience[] anxiety and stress whenever he observes the police in public.” Pl.’s Opp’n

11; see also Harris Dep. 60:4–60:24; 62:1–62:10 (explaining the emotional degradation of his

arrest). “However, a conclusory assertion of ‘emotional injuries’ of the ‘garden variety—namely

mental pain, suffering, humiliation, damage to reputation, and emotional anguish without more is

insufficient to sustain a claim for excessive force.’” Livingston v. Henderson, No. 15-CV-631

(TWD), 2019 WL 1427689, at *12 (N.D.N.Y. Mar. 29, 2019) (alterations omitted) (quoting

Sullivan v. City of N.Y., No. 17-CV-3779 (KPF), 2018 WL 3368706, at *11 (S.D.N.Y. July 10,

2018)). While there may be instances where an emotional injury can sustain a claim of excessive

force, see Guerrero v. City of N.Y., No. 12-CV-2916 (RWS), 2013 WL 673872, at *5 (S.D.N.Y.

Feb. 25, 2013) (“Such a conclusory assertion [of mental and emotional harm], unaccompanied by

allegations of a specific or identifiable mental injury, is an insufficient basis for an excessive force

claim.” (emphasis supplied)), plaintiff’s conclusory recitations cannot here carry his claim.

Because plaintiff has failed to adduce evidence of any injury that is cognizable under the

Fourth Amendment, I find that summary judgment is appropriate on his excessive force claim.

III. Conspiracy, Battery, and Assault.

A. Conspiracy.

In addition to his constitutional claims, plaintiff’s complaint alleges that defendants

conspired against him. Compl. ¶ 14. However, plaintiff has not addressed defendants’ argument,

raised in their Motion for Summary Judgment, that this claim fails as a matter of law. Indeed,

plaintiff’s opposition to summary judgment is altogether silent on his conspiracy claim. When a

party is represented by counsel, as plaintiff is here, “a court may, when appropriate, infer from a

party’s partial opposition [to summary judgment] that relevant claims or defenses that are not

defended have been abandoned.” Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014); see

also Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (“Federal courts may deem a

claim abandoned when a party moves for summary judgment on one ground and the party opposing

summary judgment fails to address the argument in any way”). When “abandonment by a

counseled party is not explicit,” a court may infer abandonment “from the papers and

circumstances viewed as a whole . . . [and] conclude that abandonment was intended.” Fed.

Express, 766 F.3d at 196. Applying these principles here, I infer, based on plaintiff’s filings, that

he has abandoned his conspiracy claim.

B. Battery and assault.

Finally, plaintiff contends that his last two claims—for assault and battery—proceed under

federal, not state law. See Pl.’s Opp’n 13; Pl.’s 56.1 ¶ 5. However, I have “not found any

[precedent] that recognizes either an assault or a battery claim grounded in § 1983,” Boyler v. City

of Lackawanna, 287 F. Supp. 3d 308, 323 (W.D.N.Y. 2018), aff’d on other grounds, 765 F. App’x

493 (2d Cir. 2019), and plaintiff’s counsel has not provided any cases recognizing these causes of

action under federal law. Indeed, “[a] number of courts have held that a § 1983 claim alleging

assault and battery is properly construed as an excessive force claim.” Johnston v. City of Syracuse,

No. 20-CV-1497 (DNH), 2021 WL 3930703, at *5 (N.D.N.Y. Sept. 2, 2021); see, e.g., Henderson

v. Williams, No. 10-CV-1621 (JCH), 2013 WL 1984545, at *3 n.3 (D. Conn. May 13, 2013)

(“[T]here is no federal common law claim for assault or battery.”); Yanga v. Neb. Dep’t of Corr.

Servs., No. 19-CV-420, 2021 WL 520530, at *6 (D. Neb. Feb. 11, 2021) (coming to the same

conclusion and providing cases).

Accordingly, I find that plaintiff’s § 1983 assault and battery claims duplicate his excessive

force claim and, for the same reasons discussed above, fail as a matter of law.8

CONCLUSION

For the foregoing reasons, defendants’ Motion for Summary Judgment is granted in its

entirety. Plaintiff’s false arrest, excessive force, conspiracy, assault, battery, and municipal

liability claims are dismissed. The Clerk of Court is directed to enter judgment in favor of

defendants and terminate plaintiff’s case.

8 Because I find that plaintiff’s constitutional rights were not violated by defendant officers, I do

not reach plaintiff’s municipal liability claim against defendant New York City. See Segal v. City

of N.Y., 459 F.3d 207, 219 (2d Cir. 2006).

SO ORDERED.

/s/

Allyne R. Ross

United States District Judge

Dated: February 15, 2022

Brooklyn, New York