Alvear v. Kamel

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MHLSSA ALVEAR 5d SSE qORANDUM & ORDER

the age of fourteen years, 18-CV-4255 (NGG) (CLP)

Plaintiff,

-against-

SPECIAL PATROLMAN MOHAMED KAMEL,

Tax Registration No. 160282, SPECIAL

PATROLMAN JUAN CORDOBA, Shield No.

617, SPECIAL PATROLMAN HECTOR LOPEZ

and THE CITY OF NEW YORK,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Pending before the court is Defendants Mohamed Kamel, Juan

Gordoba, Hector Lopez (collectively, the “Officer Defendants”),

and the City of New York’s (together with the Officer Defendants,

the “Defendants”) Motion for Summary Judgment. (Not. of Mot.

(Dkt. 72); Mot. (Dkt. 75).) For the following reasons, the Motion

is GRANTED.

I. BACKGROUND

The following facts are undisputed except as noted and are taken

from the Defendants’ Rule 56.1 Statement and Plaintiff Melissa

Alvear’s Rule 56.1] Statement. Citations to a party's 56.1 state-

ment incorporate the evidentiary materials cited therein. Unless

otherwise noted, where a party's 56.1 statement is cited, that fact

is undisputed or the opposing party has not pointed to any evi-

dence in the record to contradict it. See E.D.N.Y. Local Civil Rule

56.1(c), (d).

On April 30, 2017, Plaintiff Melissa Alvear and her infant son JA

went with Alvear’s mother, Yolanda Octavo, to Flushing Meadow

Park in Queens. (Defs. 56.1 St. (Dkt. 73) 9 1-4; PL 56.1 St. (Dkt.

76) 1-4.) The Officer Defendants, officers with the New York

City Parks Department, were patrolling Flushing Meadow Park

when they saw several unlicensed vendors selling grilled meat

and other food items at a staircase entering the park. (Defs. 56.1

St. ({ 15-16; Pl. 56.1 St. #7 15-16.) Ms. Octavo was near these

vendors with a shopping cart. (Defs. 56.1 St. 5-6; Pl. 56.1 St.

"4 5-6.) Defendant Cordoba recognized Ms. Octavo from a prior

summons for illegal vending, for which she had previously re-

ceived summons at least five times. (Defs. 56.1 St. 7 13, 17; PL

56.1 St. 11 13, 17.) As the Officer Defendants approached, the

vendors and Ms. Octavo left the area. (Defs. 56.1 St. {J 19-20;

PL. 56.1 St. {4 19-20.)

The Officer Defendants pursued Octavo and caught up to her at

a pedestrian island. (Defs. 56.1 St. { 21; Pl. 56.1 St. € 21.) They

told Octavo she could not vend in the park, and stated they

planned to issue a summons. (Defs. 56.1 St. (| 23-27; Pl. 56.1

St. { 23-27.) After several minutes, Alvear arrived at the scene

with JA in tow and began attempting to remove shopping bags

from the cart; she explains that she was attempting to retrieve

Octavo’s speaker, (Defs. 56.1 St. 49 25-27; PL 56.1 St. (4 25-27.)

Kamel and Cordoba told Alvear to stop and told her to watch her

kids; Alvear cursed at Kamel and continued to try and retrieve

the speakers. (Defs. 56.1 St. {9 28-33; Pl. 56.1 St. {4 28-33.)

The hectic scene that occurred next was captured on two videos

taken by bystanders, as a crowd had gathered around the group.

As Alvear held onto the cart and argued with the Officer Defend-

ants, Kamel grabbed her arm and wrestled her to the ground.

(First Video of Incident (Dkt. 74-9) at 1:15-1:25.) JA, who ap-

peared to be trying to intervene on behalf of his mother, was

knocked to the ground as well; after getting back up, he again

tries to assist Alvear, but Lopez picked JA up and pulled him

away from the altercation. (id. at 1:15-1:30.) Meanwhile, Kamel

? .

and Cordoba dragged Alvear across the ground; Alvear rolled on

the ground and attempted to keep her hands under her in an

apparent attempt to escape the officers’ grasp. Ud. at 1:20-1:45;

Second Video of Incident (Dkt. 74-10) at 0:00-0:12.) After these

brief attempts, all three Officer Defendants placed their weight

on Alvear’s back and legs to pin her to the ground, and Cordoba

placed both knees on Alvear. (First Video of Incident at 1:45-

1:53.) The Officer Defendants held Alvear on the ground and

tried to extricate her arms to handcuff her for approximately two

minutes, until Kamel appears to produce handcuffs. Ud. at 1:50-

4:15.) She was ultimately handcuffed by New York City police

officers, rather than by any of the Officer Defendants. (Defs. 56.1

St. 154; Pl. 56.1 St. 9 54.)

Alvear was arrested for resisting arrest, pursuant to New York

Penal Law 205.30, and disorderly conduct, pursuant to New York

Penal Law 240.20, and brought to Queens Central Booking.

(Defs. 56.1 St. 47 60-61; Pl. 56.1 St. % 60-61.) She was ulti-

mately charged with resisting arrest, as well as obstructing

governmental administration, under New York Penal Law

195.05, attempted assault in the third degree, under New York

Penal Law 110/120.00, and harassment in the second degree,

under New York Penal Law 240.26. (Defs. 56.1 St. 963; Pl. 56.1

St. { 63.) The charges were ultimately dismissed. (Defs. 56.1 St.

§ 69; PL. 56.1 St. 169.)

Alvear was treated at Northweil Forest Hills Hospital the day af-

ter the incident. (Northwell Health Records (Dkt. 77-10) at ECF

3.) She complained of neck and shoulder pain and was diag-

nosed with a cervical sprain, for which she was given pain

medication. (Id. at ECF 8-9, 20.) JA was seen by a psychiatrist at

Elmhurst Medical Center, where he was diagnosed with an ad-

justment disorder from having witnessed his mother’s arrest.

(Elmhurst Medical Records (Dkt. 77-11) at ECF 5.)

On July 27, 2018, Alvear filed a Complaint in this lawsuit. (Dkt.

1.) An Amended Complaint, the operative complaint at this

stage, was filed on December 6, 2019. (Dkt. 26.) Following dis-

covery, Defendants filed this Motion on December 16, 2022;

Alvear filed an opposition (Opp. (Dkt. 78)), and Defendants filed

a reply brief in further support (Reply (Dkt. 80).)

Il, LEGAL STANDARD

Summary judgment is warranted where “the movant shows that

there is no genuine dispute as to any material fact and the mo-

vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).}

“An issue of fact is ‘material’ for these purposes if it ‘might affect

the outcome of the suit under the governing law.” Konikoff v.

Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quot-

ing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A

“genuine” issue of fact is one where “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Td, In ruling on a motion for summary judgment, the court must

consider the facts “in the light most favorable to [the non-moving

party].” Holcomb v. fona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

“In certain circumstances, video evidence may be so clear and

unambiguous that a court deciding a summary judgment motion

may rely on the video and need not give credit to assertions that

are ‘blatantly contradicted’ by the video evidence.” Benny v. City

of Long Beach, No. 20-CV-1908 (KAM) (ST), 2022 WL 2967810,

at *10 (E.D.N.Y. July 27, 2022) (quoting Scott v. Harris, 550-U.S.

372, 378-80 (2007)). “On the other hand, if the video evidence

does not conclusively resolve material fact issues, summary judg-

ment based on that evidence alone is not appropriate.” Id.

1 When quoting cases, and unless otherwise noted, ail citations and quota-

tion marks are omitted, and all alterations are adopted. □

If the party seeking summary judgment meets its burden of show-

ing that no genuine issue of material facts exists, “the nonmoving

party must come forward with admissible evidence sufficient to

raise a genuine issue of fact for trial in order to avoid summary

judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d

Gir. 2008) (citing Celotex, 477 U.S. at 322-23). To do so, the non-

moving party must cite to evidence in the record; “[a] party may

not rely on mere speculation or conjecture as to the true nature

of the facts to overcome a motion for summary judgment.” Hicks

v. Baines, 593 F.3d 159, 166 (2d Cir. 2010); see also Fed. R. Civ.

P, 56(c) (“A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by... citing to particular

parts of materials in the record, including depositions, docu-

ments, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other

materials[.]”). They “cannot defeat the motion by relying on the

allegations in [their] pleading, or on conclusory statements, or

on mere assertions that affidavits supporting the motion are not

credible.” Gottlieb v. Cnty. Of Orange, 84 F.3d 511, 518 (2d Cir.

1996). “It is not sufficient merely to assert a conclusion without

supplying supporting arguments or facts.” BellSouth Telecommu-

nications, Inc. v. W.R. Grace & Company-Conn., 77 ¥.3d 603, 615

(2d Cir. 1996).

Ill. DISCUSSION

Alvear brings claims under 42 U.S.C. § 1983, for assault and bat-

tery against her, her false arrest and imprisonment, and

malicious prosecution; a claim for excessive force used against

Alvear and JA; an independent tort claim for battery against Al-

vear and JA; and independent tort claims for Alvear’s false arrest

and imprisonment, and malicious prosecution. (Am. Compl.

56-57, 59-80.)

A. False Arrest and False Imprisonment

Alvear’s claims under section 1983 for false arrest and false im-

prisonment can each be defeated by a showing of probable cause.

See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The ex-

istence of probable cause to arrest constitutes justification and is

a complete defense to an action for false arrest, whether that ac-

tion is brought under state law or under § 1983.”); Kilburn v. Vill.

of Saranac Lake, 413 F. App’x 362, 363 (2d Cir. 2011) (Summary

Order) (quoting Weyant and explaining that “[t]he same holds

true for the false imprisonment claims because, under New York

law, the claim is identical to a false arrest claim”). “Probable

cause [to arrest] exists if police officers have knowledge or rea-

sonably trustworthy information of facts and circumstances that

are sufficient in themselves to warrant a person of reasonable

caution in the belief that (1) an offense has been or is being com-

mitted (2) by the person to be arrested.” United States v. Cole, 26

F. App’x 45, 46-47 (2d Cir. 2001) (Summary Order).

Defendants argue that the officers had probable cause to arrest

Alvear for resisting arrest, disorderly conduct, and obstructing

governmental administration. (See Mot. at 7, 14.) With respect

to obstruction of government administration, the court agrees.?

2 Probable cause for any crime, “even for a crime other than the one iden-

tified by the arresting officer,” is sufficient to defeat a claim of false arrest.

Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016). The court therefore

declines to reach whether probable cause existed for the other two argued

crimes. Nonetheless, the court has serious concerns with the Defendants’

argument regarding probable cause for disorderly conduct, which asserts

that probable cause to arrest exists any time a private individual swears at

a police officer, as Alvear did at one point during the interaction. (Mot. at

7.) New York’s disorderly conduct statute encompasses a person who “[i]Jn

a public place... uses abusive or obscene language, or makes an obscene

gesture,” but requires “intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof.” N.Y. Penal Law § 240.20. De-

fendants do not point to any undisputed evidence of Alvear’s mens rea, but

Obstructing governmental administration occurs when a person

“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 intimidation, physical force or interference[.]” N.Y. Pe-

nal Law § 195.05. Refusing to follow directives from police

officers supports probable cause for obstructing governmental

administration. See Marcavage, 689 F.3d at 109; see also Johnson

vy. City of New York, No. 05-CV-7519 (PKC), 2008 WL 4450270,

at *10 (S.D.N.Y. Sept. 29, 2008) (“An officer has probable cause

to arrest for obstructing governmental administration where a

person refuses to comply with an order from a police officer.”).

It is undisputed that the Officer Defendants repeatedly instructed

Alvear to stop attempting to retrieve property from Octavo’s

shopping cart. (See Defs. 56,1 St. § 28-30; Pl. 56.1 St. 28-30.)

Alvear did not comply with these orders. (See Defs. 56.1 St. 9

merely cite two cases to support their argument that probable cause to ar-

rest Alvear for disorderly conduct was reasonable. (Mot. at 7.) Neither case

persuades the court. In Marcavage v. City of New York, 689 F.3d 98, 110

(2d Cir. 2012), the Second Circuit found probable cause supported arrests

for obstruction of governmental administration where “Plaintiffs rejected

17 directives (by three officers),” and declined to reach the disorderly con-

duct arguments for the same reasons expressed herein. In Smith v. City of

New York, No. 18-CV-5079 GMKV), 2021 WL 4267525, at *10 (S.D.N.LY.

Sept. 20, 2021), the court stated that the undisputed fact that the plaintiffs

obscene statements drew the attention of bystanders and neighbors “made

it objectively reasonable to believe that the conduct went beyond an indi-

vidual dimension and that Plaintiff had the requisite intent for disorderly

conduct.” Although a crowd gathered to watch (and record) Alvear’s inter-

action with the Defendant Officers, they did so prior to her single use of an

obscenity and were almost certainly—and at least disputedly—gathering

to observe the violent and hectic arrest of a mother in front of her child by

three Parks Department officers. The court will not adopt Defendants’ ar-

gument that a single use of an obscenity during a heated interaction with

police officers—without any evidence of the requisite state of mind—sup-

ports probable cause to arrest.

28-30; Pl. 56.1 St. 44 28-30.) This is sufficient to establish prob-

able cause for obstructing governmental administration.

In response, Alvear points out that, under New York law, ob-

structing governmental administration requires a showing that

the officers’ actions with which the suspect interfered were legit-

imate, (Opp. at 5-6.) “A defendant may not be convicted of...

interfering with an officer in the performance of an official func-

tion unless it is established that the police were engaged in

authorized conduct.” People v. Greene, 221 A.D.2d 559, 560 (2d

Dep’t 1995). Alvear argues that, even if the Officer Defendants

were correct in stopping Octavo and seizing the property used in

vending, the relevant city regulations did not plainly authorize

the Officer Defendants to seize Octavo’s personal property (the

speakers) merely because it was in Octavo’s shopping cart. (Opp.

at 5-6 (citing Dep’t of Parks and Recreation’s Regulations (Dkt.

77-12).) But even assuming the Officer Defendants were not en-

titled to seize the speakers, Alvear’s refusal to follow their

directives was not justified. As shown on the video, the scene

grew increasingly hectic, with JA and Alvear attempting to grab

hold of the shopping cart as the Officer Defendants attempt to

interview Octavo. (First Video of Incident at 0:00-1:10.) The Of

ficer Defendants were within their authority to order Alvear to

step away and calm down JA so as to secure the situation. Al-

vear’s refusal to do so supported probable cause for obstructing

governmental administration.

Accordingly, as the undisputed facts establish that the Officer De-

fendants had probable cause to arrest for obstructing

governmental administration, Defendants’ motion for summary

judgment on the false arrest and false imprisonment claims is

GRANTED,

B. Malicious Prosecution

Similar to false arrest and false imprisonment, a claim for mali-

cious prosecution requires a showing of a lack of probable cause.

Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir.

2010) (“To establish a malicious prosecution claim under New

York law, a plaintiff must prove .. . the lack of probable cause for

commencing the [criminal] proceeding[.]”). “Probable cause in

the context of malicious prosecution,” also known as probable

cause to prosecute, “is the knowledge of facts, actual or apparent,

strong enough to justify a reasonable man in the belief that he

has lawful grounds for prosecuting the defendant in the manner

complained of.” Celestin v. City of New York, 581 F. Supp. 2d 420,

433 (E.D.N.Y. 2008) (quoting Rounseville v. Zahl, 13 F.3d 625,

629 (2d Cir. 1994)). Unlike the claims discussed above, however,

the court must “separately analyze the charges claimed to have

been maliciously prosecuted” to determine whether probable

calise to prosecute existed for each, Maldonado v. City of New

York, No. 11-CV-3514 (RA), 2014 WL 787814, at *7 (S.D.N.Y.

Feb. 26, 2014) (quoting Posr v. Doherty, 944 F.2d 91, 100 (2d

Cir, 1991)).

Alvear was ultimately charged with obstructing governmental

administration, resisting arrest, attempted assault in the third de-

gree, and harassment in the second degree. (Defs. 56.1 St. { 63;

Pl, 56.1 St. 63.) Where there is probable cause to arrest on a

crime, a party bringing a claim for malicious prosecution may

only show lack of probable cause by pointing to exculpatory facts

which became known to the officer or prosecutor subsequent to

that arrest. D'Angelo v. Kirschner, 288 F. App’x 724, 726 (2d Cir.

2008) (Summary Order) (“Ordinarily, in the absence of exculpa-

tory facts which became known after an arrest, probable cause to

arrest is a complete defense to a claim of malicious prosecu-

tion.”), As already discussed, the Officer Defendants had

probable cause to arrest for obstructing governmental admin-

istration. Alvear points to no such exculpatory facts which would

change the probable cause analysis.

The other two charges are more difficult for the Defendants, par-

ticularly attempted assault, for which they rely on a moment in

the video where Alvear purportedly “pushed” Cordoba.? (See

Mot. at 14; Defs. 56.1 St. { 44; Pl. 56.1 St. ¢ 44.) Nonetheless, to

prevail on a section 1983 claim for malicious prosecution, Alvear

must also show a “sufficient post-arraignment liberty restraint to

implicate [her} Fourth Amendment rights.” Rohman vy. N.Y.C.

Trans. Auth., 215 F. 3d 208, 215 (2d Cir. 2000); see also Herrera-

Amador v. N.Y.C. Pol. Dep’t, No. 16-CV-5915 (NGG) (VMS), 2021

WL 3012583, at *15 (E.D.N.Y. July 16, 2021) (adopting R&R).

Even where a defendant is not held in custody, the obligation to

return to court for hearings related to the charges is sufficient to

meet this element. Rohman, 215 F.3d at 215-216. Nonetheless,

there must be an “independent deprivation of liberty resulting

from the prosecution,” and where the defendant has a separate

obligation to make court appearances on charges which are sup-

ported by probable cause, they cannot support a claim under

3 Tn particular, the court finds the charge of attempted assault baffling, De-

fendants argue that at one point in the altercation, Alvear “pushed”

Cordoba with her leg; Alvear disputes this claim. (See Mot. at 14; Defs.

56.1 St. (44; Pl. 56.1 St. 4 44.) The altercation begins with Kamel bringing

Alvear to the ground, and for the vast majority of it, Alvear is either pinned

to the ground or has all her limbs being held by the three Officer Defend-

ants. (See First Video of Incident at 1:20-1:55; Second Video of Incident at

0:00-0:20.) Defendants rely on three seconds of this video where, while

Alvear appears to be almost face down, mostly held off the ground by

Kamel, and facing away from Cordoba, her flailing right leg makes inci-

dental contact with him. (See First Video of Incident at 1:23-1:26.)

Attempted assault requires “intent to cause physical injury to another per-

son.” N.Y. Penal Law §8 110, 120.00. The court finds it dubious that based

on these videos and Cordoba’s own experience of the incident, “a reason-

able man” would believe there were “lawful grounds for prosecuting”

Alvear for attempted assault. Celestin, 581 F. Supp. 2d at 433.

10

section 1983. Coleman v. City of New York, 688 F. App’x 56, 57-

58 (2d Cir. 2017) (Summary Order).*

Alvear was released on her own recognizance, but made several

appearances in court before the charges were ultimately dis-

missed. (See Criminal Court Transcripts (Dkt. 74-14) at 3, 14.)

Alvear’s court appearances were, at least in part, attributable to

the obstructing governmental administration charge, which the

court has already determined was supported by probable cause,

and by an unrelated desk appearance ticket which was resolved

simultaneously. (See generally id.) Accordingly, she has not

shown a restraint on liberty caused by the attempted assault or

harassment charges which may not have been supported by

probable cause.

Accordingly, Defendants’ motion for summary judgment on Al-

vear and JA’s claims for malicious prosecution is GRANTED.

C. Excessive Force

Next, the Defendants move for summary judgment on the claims

that the Officer Defendants used excessive force on Alvear and

JA. As shown on the video, the force used in effecting Alvear’s

4 Alvear points to Perez v. Duran, 962 F. Supp. 2d 533, 542 (S.D.N.Y.

2013), in which the district court stated that “there is no case that supports

the proposition that simply because the plaintiff was also required to ap-

pear in court on an unrelated matter the appearance that was required for

the felony charge relevant to this case is not a seizure within the meaning

of the Fourth Amendment.” (Opp. at 19.) While this may have been true

at the time, the Second Circuit has since decided Coleman, and district

courts have followed that case to hold that “{i]t is the plaintiffs burden to

show that the deprivation of liberty was the result of the allegedly mali-

cious prosecution, and not some other charge that is supported by probable

cause.” Mortimer v. Wilson, No. 15-CV-7186 (KPF), 2020 WL 3791892, at

*13 (S.D.N.Y. July 7, 2020) (citing Coleman 688 F. App’x at 58); see also

Warner v. Freeman, No. 14-CV-1192 (DFM), 2017 WL 4227655, at *3 (D.

Conn, Sept. 22, 2017) (granting summary judgment where plaintiffs court

appearances on arrest for criminal trespass were also attributable to sepa-

rate charges supported by probable cause}.

11

arrest can be summarized as follows. First, Kamel used an arm-

bar technique to bring Alvear rapidly to the ground.° (First Video

of Incident at 1:15-1:25.) As he did so, he forced Alvear into JA,

who was standing next to her; JA fell to the ground as a result of

this contact. Ud.) Attempting to disentangle Alvear from JA,

Kamel dragged Alvear several feet across the pavement, at which

point he was able to flip her onto her stomach in an attempt to

cuff her hands behind her back. (id. at 1:20-1:30.) Lopez picked

up JA and placed him down several feet away before returning

to Alvear. (id. at 1:25-1:30.) Alvear returned to her back as the

Officer Defendants continued to drag her in an attempt to gain

control over her hands, then ultimately rolled back onto her

stomach with her hands underneath her body. (id. at 1:30-1:45.)

Cordoba climbed onto Alvear’s buttocks and lower back, using

his left knee to pin her to the ground; Kamel continued to tug at

Alvear’s hands and pinned her shoulders; and Lopez pinned her

legs. Gd. at 1:40-2:00.) Alvear was held in this position for ap-

proximately two minutes, with assorted tussling, until NYPD

officers arrived on the scene and she was successfully placed in

handcuffs. Ud. at 2:00-4:30.) The Officer Defendants never

struck Alvear during this series of events. (See generally id.; see

generally Second Video of Incident; see also Pl. 56.1 St. 4 40 (con-

ceding that Kamel did not “kick, punch or strike Alvear, nor did

he use any weapon or any device during the course of the ar-

rest).} Both Octavo and JA himself testified that the incident

resulted in a bruise to JA’s ribs, resulting from an Officer Defend-

ant’s elbow (likely Kamel’s) and other cuts and scrapes. (Opp. at

14.)

5 Defendants describe it as “plac[ing] her on the ground,” (Defs. 56.1 St. €

37), while Alvear contends that Kamel “threw her” onto the ground. (Pl.

56.1 St. 37.) As is often the case, the truth is somewhere in between, but

Alvear’s version is closer to accurate—there was nothing gentle about the

action, as is implied by the Defendants’ phrasing.

12

“Fourth Amendment jurisprudence has long recognized that the

right to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat

thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989).

“fC]laims that law enforcement officers have used excessive

force... in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard.” Id. at 395. “The □

calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judg-

ments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a par-

ticular situation.” Id. at 396-97. Reasonableness “must be judged

from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight,” and is an objective in-

quiry. Id. at 396-97. In assessing reasonableness, the court must

consider “(1) the severity of the crime at issue, (2) whether the

suspect poses an immediate threat to the safety of the officers or

others, and (3) whether [s]he is actively resisting arrest or at-

tempting to evade arrest by flight.” Brown v. City of New York,

798 F.3d 94, 100 (2d Cir, 2015).

The most serious of the crimes for which Alvear was arrested and

with which she was ultimately charged is a class A misdemeanor,

carrying a maximum of one year imprisonment. See N.Y. Penal

Law § 10.00(3)-(4); id. § 120.00 (assault in the third degree,

class A misdemeanor); id. § 195.05 (obstructing governmental

administration in the second degree, class A misdemeanor); id. §

205.30 (resisting arrest, class A misdemeanor); id. § 240.20 (dis-

orderly conduct, violation); id. § 240.26 (harassment in the

second degree, violation). These are, undoubtedly, not particu-

larly serious charges. See Brown, 798 F.3d at 102 (describing

disorderly conduct offense as of “unquestionably slight” sever-

ity); McKnight v. Vasile, 2017 WL 1176051, at *25 (W.D.N.Y.

Mar. 30, 2017) (“[O]bstructing governmental administration

13

and resisting arrest—Class A misdemeanors punishable by terms

of imprisonment of not more than one year-~are generally not

serious crimes[.]”). But as Alvear began to struggle with the Of-

ficer Defendants for control of Octavo’s shopping cart, JA got

involved in the altercation and a crowd began to gather and take

videos. In such a context, the Officer Defendants had a “signifi-

cant” interest in crowd control during their stop of Octavo despite

the minor infractions purportedly at issue. Brayshaw v. City of

Burlington, No, 13-CV-253, 2015 WL 1523019, at *9 (D. Vt. Apr.

3, 2015) (quoting in parenthetical Am.-Arab Anti-Discrimination

Comm. v. City of Dearborn, 418 F.3d 600, 612 (6th Cir. 2005)).

Although the Officer Defendants needed to control the situation

as the crowd gathered, there is no indication from the record that

Alvear posed any threat to the Officer Defendants or anyone else.

The Officer Defendants’ memo books claim that Alvear was

“bashing” them with the cart before they initiated the arrest, but

the video plainly shows a tug-of-war during which the cart barely

moved, and any contact with the Officer Defendants was de min-

imis and incidental. (Memo Book Entries (Dkt. 77-9) at 4.)° In an

apparent concession that the video did not support this version

of events, the Defendants do not argue that Alvear presented any

threat to the Officer Defendants, and indeed do not even attempt

6 Alvear points out that the Defendant Officers’ entries in their memo books

for the date in question are almost identical in wording, and the Defendant

Officers admitted to preparing the entries together. (Opp. at 10.) Alvear

argues that such behavior gives rise to an inference of unlawful conduct

and the Defendant Officers’ intent to conceal such unlawful conduct, (id.

at 11.} Although the court generally agrees that such coordinated activity

by officers following a violent incident raises serious concerns of impropri-

ety and potential fraud, the video in this case is conclusive as to the events

at the stop, and the court did not rely on the Defendant Officers’ memo

book entries in concluding that the force used was not legally excessive.

14

to justify the charge of Attempted Assault on the basis of “bash-

ing,” instead pointing to the “push[]” discussed and rejected

above. (Mot. at 14.)

Alvear concedes, though, that she was resisting arrest, in partic-

ular by attempting to keep her hands in front of her body to avoid

being handcuffed. (See Pl, 56.1 St. 7 39, 41-43.) Courts have

repeatedly held that law enforcement officers’ use of force to ac-

cess and cuff an uncooperative arrestee’s hands, including the

use of arm bar techniques, are reasonable in such a context.

See Bozung v. Rawson, 439 F. App’x 513, 520-21 (6th Cir.

2011) (holding that force was reasonable where plaintiff failed

to comply with instructions to place his hands behind his

back); Gino v. Bender, No. 09-CV-13261, 2011 WL 1792643, *3

(E.D. Mich. 2011) (holding that force was reasonable where

plaintiff failed to comply with repeated orders to get on the

ground, pulled her arm away, and took a combative posture to-

ward officer); Cardinal v. Allain, No. 05-CV-107 (JJB), 2007 WL

3256447, *4 (M.D. La. 2007) (holding that arm bar technique

was not excessive where plaintiff “jerked away” from officer's at-

tempts to handcuff him). The amount of force used in the

video—pulling Alvear to the ground, struggling with her as she

tried to evade arrest, and pinning her to the ground until hand-

cuffs could be applied—does not exceed that necessary to

effectuate her arrest.”

7 Defendants also argue that Alvear’s de minimis injuries illustrate, as a

matter of law, that the force used was reasonable. (Mot. at 18-19). The

Second Circuit has recently rejected this argument, explaining that “[a]ny

such holding ... would grant a windfall to officers who commit misconduct

but could escape liability based upon the hardiness of their victims.”

Ketcham v. City of Mt. Vernon, 992, F.3d 144, 150-51 (2d Cir. 2021). For

the purposes of liability, as opposed to damages, the relevant question is

the Officer Defendants’ actions, not their results.

15

Regarding the excessive force claim brought by Alvear on behalf

of JA, both parties agree that the relevant legal standard is gov-

erned by the Fourteenth Amendment, because JA was not

“seized” under the meaning of the Fourth Amendment. (Mot. at

21; Opp. at 15.) Alvear asserts that such a claim must be analyzed

under the standard set forth in Kingsley v. Hendrickson, 576 U.S.

389 (2015), which requires a showing “that the force purposely

or knowingly used against [the plaintiff] was objectively unrea-

sonable.” Id. at 396-97. Assuming this is the proper standard does

not aid Alvear. The Officer Defendants are visible throughout the

videos, and although JA is regularly in the thick of the action—

primarily trying to pull various Officer Defendants off of his

mother—the only force “purposely” used against him at any

point is when Lopez picked him up in an attempt to remove him

from the altercation. Although the court feels strongly that an

infant child should not ever be injured in an interaction with po-

lice, his cuts and bruises appear indisputably to have resulted

from unintentional contact as the Officer Defendants struggled

with Alvear. This is insufficient.

' Accordingly, Defendants’ motion for surmmary judgment on Al-

veat’s claim of excessive force is GRANTED.

That the court concludes the Officer Defendants’ actions were

technically permitted under the Constitution should not be mis-

construed as approval of their choices. Although their use of force

was limited to that necessary to effectuate Alvear’s arrest despite

her attempts to resist, the choice to arrest and manner thereof

(and therefore escalate the situation into a violent one) them-

selves were dubious—not as a matter of law, but as a matter of

professionalism and policing policy. Confronted with a minor sit-

uation of suspected unpermitted vending and the vendor's irate

daughter, well-trained officers could have explored the myriad

options that fall between telling Alvear to calm down (their brief

first attempt) and violently arresting and subduing her. At no

16

point did the Officer Defendants attempt to understand the na-

ture of Alvear’s concerns or address them in a manner intended

to deescalate the situation; the member of the community with

whom they were interacting was expected to immediately com-

ply with their orders or face the physical consequences. And

despite defense counsel’s attempts to minimize the events, the

video shows a violent encounter in which the three Officer De-

fendants use significant physical force to subdue an individual

smaller woman who posed no threat. They rapidly took Alvear to

the ground, dragged her several feet, and then used their collec-

tive weight to pin her to the ground for a period of minutes. All

of this occurred in front of her two minor children, one of whom

was visibly distraught and attempting to intervene, despite being

dwarfed by the three adult Officer Defendants.

It appears that the only skill the Officer Defendants could bring

to bear on the events was force. Although the Defendants have

prevailed on their motion for summary judgment, these events

embarrass the Officer Defendants, the City of New York, and the

training the City provides to law enforcement officers across its

various departments. The public deserves better.

D. State Tort Claims

Having dismissed all of Alvear’s federal claims, the court declines

to exercise supplemental jurisdiction over her remaining state

law tort claims for assault and battery, false arrest and imprison-

ment, and malicious prosecution. “The district court[] may

decline to exercise supplemental jurisdiction over a claim [if]...

the district court has dismissed all claims over which it has origi-

nal jurisdiction[.]” 28 U.S.C. § 1367. Although such dismissal is

not mandatory, “the Second Circuit has held that in the usual

case in which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent juris-

diction doctrine will point toward declining to exercise

jurisdiction over the remaining state-law claims.” Guillen v. City

17

of New York, 625 F. Supp. 3d 139, 163 (S.D.N-Y. 2022) (quoting

Kelsey v. City of New York, 306 F. App’x 700, 703 (2d Cir. 2009)).

The court sees no factor related to “judicial economy, conven-

ience, fairness, and comity,” id., which would favor retaining

jurisdiction over these claims.

Accordingly, Defendants’ motion for summary judgment on AL

vear’s state law tort claims is GRANTED.

IV. CONCLUSION

For the aforementioned reasons, Defendants motion for sum-

mary judgment is GRANTED.

SO ORDERED.

Dated: Brooklyn, New York

August<d, 2023

s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS\

United States District Judg

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