Georgia v. Davenport

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

RONALD M. GEORGIA,

Plaintiff,

3:21-CV-0484

v. (ML)

KYLE DAVENPORT,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

OFFICE OF EDWARD E. KOPKO EDWARD E. KOPKO, ESQ.

Counsel for Plaintiff

308 North Tioga Street, 2nd Floor

Ithaca, New York 14850

TOMPKINS COUNTY ATTORNEY’S OFFICE HOLLY MOSHER, ESQ.

Counsel for Defendant

125 East Court Street

Ithaca, New York 14850

MEMORANDUM-DECISION and ORDER

MIROSLAV LOVRIC, United States Magistrate Judge

I. INTRODUCTION

Plaintiff Ronald M. Georgia (“Plaintiff”) commenced this civil rights action on April 27,

2021, alleging that Defendant Kyle Davenport (“Defendant”) violated his civil rights during an

interaction that began on June 1, 2019. (See Dkt. No. 1.) Following the close of discovery, the

Court held a three-day bench trial on April 19, 2023, April 21, 2023, and April 24, 2023.1 (Dkt.

Nos. 60, 61; Text Minute Entry dated 4/24/2023.)

At trial, the pending claims were (1) excessive force in violation of the Fourth

Amendment and 42 U.S.C. § 1983; (2) false arrest in violation of the Fourth Amendment and 42

U.S.C. § 1983; and (3) malicious prosecution in violation of the Fourth Amendment and 42

U.S.C. § 1983. (Dkt. No. 1.)

The parties submitted post-trial briefs. (Dkt. Nos. 64, 67, 68.) Having reviewed the

parties’ pre-trial submissions, the testimony and evidence submitted during trial, the trial

transcript and exhibits, and the parties’ post-trial briefs, the following are the Court’s findings of

fact and conclusions of law made pursuant to Rule 52 of the Federal Rules of Civil Procedure:

II. FINDINGS OF FACT

Virtually all of the pertinent interactions between Plaintiff and Defendant were

videotaped and were introduced into evidence at trial. In the Court’s opinion, there cannot be

any real dispute about the events at issue, as the Court can see and hear it in the video footage.

Instead, the parties appear to dispute how the events that occurred should be interpreted. The

following is intended to summarize, not supplant, the video.

On June 1, 2019, at approximately 11:30 p.m., Defendant (a Tompkins County Sheriff’s

Deputy) responded to Plaintiff’s residence—located at 791 Van Ostrand Road, Lansing, New

York—after an individual at a nearby residence called 911 to report a noise complaint. (Dkt. No.

60 at 6-7.) The Town of Lansing has no noise ordinance regulating noise levels within the

Town. (Dkt. No. 53 at ¶ 5.)

1 This matter is before me on consent of the parties pursuant to 28 U.S.C. § 636(c) and

Northern District of New York Local Rule 73.1. (Dkt. No. 41.) In addition, the parties

stipulated to a bench trial pursuant to Fed. R. Civ. P. 39. (Dkt. No. 53 at 1.)

Defendant parked his patrol car on the road and approached Plaintiff’s residence. (Dkt.

No. 60 at 6-7.) On the body cam video, music can be heard playing as Defendant approached

Plaintiff’s residence. (Exhibit P-14 at T03:27:21Z; Dkt. No. 60 at 13-14.) Plaintiff immediately

directed Defendant to leave his property but Defendant did not leave and explicitly responded

“no” to Plaintiff’s command. (Exhibit P-14 at T03:28:02Z-T03:2815Z; Dkt. No. 60 at 14.)

Plaintiff informed Defendant that there is no noise ordinance in the Town of Lansing.

(Exhibit P-14 at T03:28:19Z.) Defendant placed his hand on Plaintiff’s chest and pushed

Plaintiff back while directing Plaintiff to back up. (Id. at T03:28:21Z.) Plaintiff again directed

Defendant to get off his property. (Id. at T03:28:23Z.) Defendant stated, “we’re not playing this

game” and directed Plaintiff to put his hands behind his back while grabbing for Plaintiff’s hand.

(Id. at T03:28:24Z-T03:28:30Z.) Plaintiff asked why and Defendant responded “because your

music is fucking loud. I came here respectfully to talk to you okay? And then you’re screaming

at me telling me to get the fuck off your property.” (Id. T03:28:30Z-T03:28:41Z.)

Plaintiff and Defendant continued conversing about (1) Plaintiff’s request that Defendant

leave the property and Defendant’s refusal to leave, and (2) Defendant’s direction that Plaintiff

place his hands behind his back. (Exhibit P-14 at T03:28:41Z-T03:30:14Z.) Eventually,

Plaintiff turned around with his hands behind his back, then he turned back around and said

“wait a minute.” (Id. at T03:30:15Z.) Defendant asked Plaintiff “what do you want to do, do

you want to get arrested or do you want to turn your music down?” (Id. at T03:30:15Z-

T03:30:24Z.) Plaintiff informed Defendant that Plaintiff would do whatever he wanted on his

property. (Id. at T03:30:33Z.)

Plaintiff and Defendant continued conversing about Plaintiff’s music. (Exhibit P-14

T03:30:33Z-T03:31:46Z.) The music stopped playing (id. at T03:31:46Z) but Defendant still

directed Plaintiff to turn the music down (id. at T03:31:47Z).

Defendant—who later testified that he was confused about how to address the situation—

stepped away from Plaintiff to call his supervising Sergeant. (Exhibit P-14 at T03:32:04Z; Dkt.

No. 60 at 47.) Plaintiff directed Defendant to move to the street to make the phone call. (Exhibit

P-14 at T03:32:12Z.) Defendant refused and pushed Plaintiff while shouting “back the fuck up

dude.” (Id. at T03:32:26Z.) Plaintiff moved backward as a result of Defendant’s push. (Id. at

T03:32:27Z.) Defendant moved towards Plaintiff—closing the space between them—while

shouting “you need to back the fuck up.” (Id.) Defendant pushed Plaintiff again, causing

Plaintiff to fall backwards near a grill. (Id. at T03:32:28Z.)

Defendant placed handcuffs on Plaintiff. (Exhibit P-14 at T03:33:27Z-T03:34:05Z.)

Plaintiff asked what he was arrested for and Defendant said “obstructing of governmental

administration.” (Id. at T03:38:32Z-T03:38:36Z.)

Plaintiff was put in the back of Defendant’s patrol vehicle. (Exhibit P-14 at T03:39:40Z-

T03:40:10Z.) When Defendant began driving, Plaintiff again asked what the charges against

him were. (Id. at T03:42:52Z-T03:42:54Z.) Defendant told Plaintiff he was charged with

obstructing governmental administration and resisting arrest. (Id. at T03:42:55Z-03:42:59Z.)

In the car on the drive to the station, Plaintiff asked for the handcuffs to be taken off

because they were “really hurting” him. (Exhibit P-14 at T03:48:42-T03:48:43Z.)

At the station, Defendant took one handcuff off Plaintiff and connected the other

handcuff to a pair of handcuffs attached to the structure. (Exhibit P-14 at T03:53:10-

T03:53:25Z.)

Plaintiff was placed back in the patrol vehicle to be transported to the hospital and

informed the police that the handcuffs needed to be loosed. (Exhibit P-16 at T04:38:10Z.)

During the drive to the hospital, Plaintiff again complained that his arms were really hurting him.

(Id. at T04:41:29Z.) Plaintiff directed Defendant to hurry up the drive because his wrists were

bleeding. (Id. at T04:42:10Z.) A few minutes later, Plaintiff again stated that his wrists really

hurt. (Id. at T04:45:38Z.) Defendant testified that Tompkins County policy requires him to

check for the tightness of the handcuffs by putting his finger in between the jaw and the wrist but

that he made no attempt to determine how tight the handcuffs were on Plaintiff. (Dkt. No. 60 at

50-52.)

III. CONCLUSIONS OF LAW

A. Legal Standard

“In a bench trial such as this, it is the Court's job to weigh the evidence, assess credibility,

and rule on the facts as they are presented.” Bahrami v. Ketabchi, 05-CV-3829, 2009 WL

513790, *9 (S.D.N.Y. Feb. 27, 2009) (quoting Johnson-McClean Techs. v. Millennium Info.

Tech. Grp., 02-CV-244, 2003 WL 192175, *8 (S.D.N.Y. Jan. 27, 2003) (internal quotation marks

and alterations omitted)); see also Mathie v. Fries, 121 F.3d 808, 811-12 (2d Cir. 1997). “The

Court [is] ‘in the best position to evaluate [each] witness’s demeanor and tone of voice as well as

other mannerisms that bear heavily on one's belief in what the witness says.’” Bahrami, 2009

WL 513790, at *9 (quoting Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623,

634 (2d Cir. 1996)); see also Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)

(noting that “only the trial judge can be aware of the variations in demeanor and tone of voice

that bear so heavily on the listener’s understanding of and belief in what is said”). If the

“evidence is equally divided . . . ‘the party with the burden of proof loses.’” Bahrami, 2009 WL

513790, at *9 (quoting United States v. Gigante, 39 F.3d 42, 47 (2d Cir. 1994)); see also Fulop

v. Malev Hungarian Airlines, 244 F. Supp. 2d 217, 223 (S.D.N.Y. 2003) (finding that “[t]he

evidence on this issue is substantially divided and, in the Court's assessment, does not tilt

sufficiently to Plaintiff's case to satisfy the preponderance standard”).

B. ANALYSIS

1. Liability

a. Excessive Force

“Excessive force claims related to an arrest or seizure are evaluated under the Fourth

Amendment using an ‘objective unreasonableness’ standard.” Bogart v. City of New York, 13-

CV-1017, 2016 WL 4939075, *7 (S.D.N.Y. Sept. 6, 2016) (quoting Graham v. Connor, 490 U.S.

386, 388 (1989)). Because the force used in the present matter occurred during Plaintiff's arrest,

his claims are properly analyzed under the reasonableness standard set forth in Graham. See

Francis v. Vill. of Potsdam, 20-CV-1097, 2023 WL 2655677, *3 (N.D.N.Y. Mar. 27, 2023)

(D’Agostino, J.).

“The Fourth Amendment prohibits the use of excessive force in making an arrest, and

whether the force used is excessive is to be analyzed under that Amendment's ‘reasonableness

standard.’” Outlaw v. City of Hartford, 884 F.3d 351, 366 (2d Cir. 2018) (quoting Brown v. City

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

The reasonableness determination must include consideration of the fact that law

enforcement officers often are forced to make quick decisions under stressful and rapidly

evolving circumstances rendering the calculation of what amount of force is reasonable difficult.

See Graham, 490 U.S. at 396-97. Relevant factors include the severity of the crime at issue,

whether the suspect posed an immediate threat to the safety of the officers or others, and whether

the suspect was actively resisting arrest. See Brown, 798 F.3d at 100 (citing Graham, 490 U.S.

at 396). As to the third factor, “[t]he fact that a person whom a police officer attempts to arrest

resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of

force, but it does not give the officer license to use force without limit. The force used by the

officer must be reasonably related to the nature of the resistance and the force used, threatened,

or reasonably perceived to be threatened, against the officer.” Sullivan v. Gagnier, 225 F.3d 161,

165-66 (2d Cir. 2000) (emphasis in original). Further, “‘reasonable force does not become

unconstitutional merely because it caused the plaintiff serious injury.’” Otero v. Town of

Southampton, 194 F. Supp. 2d 167, 180 (E.D.N.Y. 2002) (quoting Gonzalez v. City of New York,

98-CV-3084, 2000 WL 516682, *4 (E.D.N.Y. Mar. 7, 2000)), aff'd, 59 F. App’x 409 (2d Cir.

2003). Moreover, to support an excessive force claim, the plaintiff must establish that the

defendant used more than de minimis force. See Feliciano v. Thomann, 747 F. App’x 885, 887

(2d Cir. 2019). Even conduct that caused some physical pain and resulted in side effects need

not be compensated if a jury finds that such injuries were de minimis. See Kerman v. City of

New York, 374 F.3d 93, 123 (2d Cir. 2004).

As to the first factor under Graham—the severity of the crimes at issue—favors Plaintiff.

The crimes that Plaintiff was charged with after the incident on June 1, 2019, were resisting

arrest and obstruction of governmental administration, which are merely Class A

Misdemeanors.2 “Misdemeanors are considered non-serious crimes for purposes of the Graham

analysis.” DeGroat v. Buck, 22-CV-0507, 22-CV-0516, 2023 WL 4763806, at *6 (N.D.N.Y.

July 26, 2023) (Kahn, J.) (citing Ketcham v. City of Mount Vernan, 992 F.3d 144, 150 (2d Cir.

2 In addition, Plaintiff was later charged with disorderly conduct. “[T]he severity of the

crime [of disorderly conduct] is unquestionably slight” for purposes of the Graham analysis.

Brown, 798 F.3d at 102.

2021) (finding that the first Graham factor favored the plaintiff because “the offense was a

misdemeanor”); Gersbacher v. City of New York, 134 F. Supp. 3d 711, 723 (S.D.N.Y. 2015)

(“Obstruction of Governmental Administration . . . and Resisting Arrest [] are not severe.”)).

The second factor—whether Plaintiff posed an immediate threat to the safety of the

officers or others—tips in favor of Plaintiff. The Court finds that the video footage capturing the

incident indicates that Plaintiff did not pose an immediate threat to the safety of Defendant or

others. Instead, as summarized above Defendant pushed Plaintiff away after apparently

believing that Plaintiff was too close to him. Defendant then closed the space between he and

Plaintiff and pushed Plaintiff again, this time causing Plaintiff to fall backwards onto the ground

and sustain physical injuries.

The third factor—whether Plaintiff was actively resisting arrest or attempting to evade

arrest by flight—weighs in favor of Plaintiff. “[R]esisting arrest can include passive resistance

or non-compliance.” Harris v. Leon, 20-CV-10864, 2023 WL 2051171, at *3 (S.D.N.Y. Feb. 16,

2023) (citing Brown, 798 F.3d at 103). Based on the Court’s review of the video capturing the

incident, Plaintiff did not attempt to flee. Although Plaintiff did not comply with Defendant’s

initial directions to place his hands behind his back, at the time that Defendant shoved Plaintiff,

Defendant had not given Plaintiff any pertinent verbal orders or directions. Instead, Plaintiff was

directing Defendant to make his phone call on the road and off Plaintiff’s property. (Exhibit P-

14 at T03:32:18Z.) Defendant states “I’ll be right back.” (Id. at T03:32:21Z.) Defendant then

appeared to hang up the call he was attempting to make, said “Alright, I’m not playing this

fucking--” Plaintiff interrupted with another direction to Defendant to get off his property,

Defendant interrupted Plaintiff and said “no” then simultaneously shoved Plaintiff while

shouting “back the fuck up dude.” (Id. at T03:32:25Z.) Defendant then appeared to close the

space between he and Plaintiff, and simultaneously shoved Plaintiff again while shouting “you

need to back the fuck up. Alright, I’m sick of this fucking game right now.” (Id. at T03:32:32Z.)

Hence, although there had been prior orders that Plaintiff failed to comply with, when considered

in context and in relation to when Defendant used the force, there were no verbal orders or

directions that Plaintiff was non-compliant with or passively resisting.

Based on the facts established at trial, applying this standard poses little difficulty.

Plaintiff was not implicated in any crime, posed little or no threat to the officer, and cannot

reasonably be said to have resisted or fled. In addition to the two shoves discussed above,

Plaintiff repeatedly complained that his handcuffs were too tight and causing him pain.

Notwithstanding Plaintiff’s complaints, Defendant declined to loosen the handcuffs or follow

Tompkins County policy by checking the tightness of the handcuffs. As such, Plaintiff

overwhelmingly established that Defendant used excessive force, not only in Defendant’s

excessive pushing of Plaintiff on Plaintiff’s property, but also in the force used to subdue and

restrain Plaintiff. See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (“In each of these cases, the

question was whether the totality of the circumstances justified a particular sort of search or

seizure.”).

To the extent that Defendant invokes the doctrine of qualified immunity, that argument is

unpersuasive. While the right to be free from the use of excessive force under the Fourth

Amendment is clearly established, the key question is whether a reasonable officer under the

circumstances would believe that his conduct violated that clearly established right. Carr v. City

of Norwich, 17-CV-0954, 2019 WL 1332770, at *9 (N.D.N.Y. Mar. 1, 2019) (Peebles, M.J.),

report and recommendation adopted, 2019 WL 1331910 (N.D.N.Y. Mar. 25, 2019) (Sharpe, J.).

Here, no reasonable officer would believe that the force employed by Defendant was

reasonable. Defendant assaulted, handcuffed, restrained, and confined a citizen who did nothing

unlawful. Defendant is not entitled to qualified immunity. Stratakos v. Nassau Cnty., 15-CV-

7244, 2021 WL 2587722, at *8 (E.D.N.Y. June 24, 2021) (declining to apply qualified immunity

where “the officers assaulted, handcuffed, restrained and confined a citizen whom, they are now

forced to admit, did nothing unlawful.”).

As a result, Plaintiff has established that Defendant used excessive force in violation of

42 U.S.C. § 1983 and the Fourth Amendment.

b. False Arrest

Federal claims of false arrest implicate the Fourth Amendment right to be free from

unreasonable seizures. See Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). A § 1983 claim

alleging false arrest is “substantially the same” as the tort under New York state law. Posr, 944

F.2d at 96. “To state a claim for false arrest under New York law, a plaintiff 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 New York, 331 F.3d 63, 75 (2d Cir. 2003) (citing Bernard v.

United States, 25 F.3d 98, 102 (2d Cir. 1994)).

Based on the facts established at trial, Plaintiff established each element of his false arrest

claim.

However, “[t]he existence of probable cause to arrest constitutes justification and is a

complete defense to an action for false arrest.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d

Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotation

omitted)). “Probable cause exists when an officer has ‘knowledge or reasonably trustworthy

information sufficient to warrant a person of reasonable caution in the belief that an offense has

been committed by the person to be arrested.’” Curley v. Vill. of Suffern, 268 F.3d 65, 69-70 (2d

Cir. 2001) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (additional internal

quotation omitted)). “Whether probable cause exists depends upon the reasonable conclusion to

be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v.

Alford, 543 U.S. 146, 152 (2004); Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (quoting

Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (emphasis in original)) (“‘When

determining whether probable cause exists courts must consider those facts available to the

officer at the time of the arrest and immediately before it.’”).

On June 2, 2019—based on the incident that occurred on June 1, 2019—Plaintiff was

charged with obstructing governmental administration in the second degree pursuant to N.Y.

Penal Law § 195.05 and resisting arrest pursuant to N.Y. Penal Law § 205.30. (Exhibit P-10;

Exhibit P-12.) On August 2, 2019, Plaintiff was charged—by prosecutor’s information—with

disorderly conduct in violation of N.Y. Penal Law § 240.20(2). (Exhibit P-8.)

All of the charges against Plaintiff were dismissed on November 19, 2019, after the

assigned assistant district attorney (“ADA”) moved to dismiss the charge of disorderly conduct

against Plaintiff. (Exhibit P-2.) The ADA noted in his motion to dismiss that, based on his

review, the evidence was insufficient to prove the case beyond a reasonable doubt. (Id.)

The Court finds that there was no probable cause to arrest Plaintiff.

i. Obstructing Governmental Administration

Section 195.05 of the New York Penal Law provides, in relevant part:

A person is guilty of obstructing governmental administration when [she]

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, or by means of an independently unlawful

act.

N.Y. Penal Law § 195.05; see Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995) (“[t]he elements

of obstructing governmental administration therefore include: (1) prevention or attempt to

prevent (2) a public servant from performing (3) an official function (4) by means of

intimidation, force or interference”). New York law makes clear that “the official function being

performed must be one that was ‘authorized by law.’” Lennon v. Miller, 666 F.3d at 424

(quoting In re Verna C., 143 A.D.2d 94 (N.Y. App. Div. 2d Dep’t 1988)).

New York courts have repeatedly held that the word “physical” in the statute modifies the

words “force” and “interference.” See Dowling v. City of New York, 11-CV-4954, 2013 WL

5502867, *5 (E.D.N.Y. Sept. 30, 2013) (internal citations omitted); see also Rasin v. City of New

York, 14-CV-5771, 2016 WL 2596038, *5 (E.D.N.Y. May 4, 2016) (“[i]n addition to intent and

actual or attempted obstruction or impairment of a government function, a violation of the statute

requires physical interference”); Trapp-Miley v. City of New York, 09-CV-3933, 2012 WL

1068102, *6 (E.D.N.Y. Jan. 17, 2012) (“recent caselaw makes clear that some physical aspect to

the interference—albeit not necessarily physical force—must be present to constitute a violation

of section 195.05”), report and recommendation adopted as modified, 2012 WL 1068084

(E.D.N.Y. Mar. 29, 2012). In other words, to constitute obstruction under the statute, the

interference must contain a physical component; “verbal interference” alone is insufficient. In re

Davan L., 91 N.Y.2d 88, 91 (N.Y. 1997); see Hilderbrandt v. City of New York, 13-CV-1955,

2014 WL 4536736, *4 (E.D.N.Y. Sept. 11, 2014) (“words alone, even abusive ones, cannot give

rise to probable cause to arrest for obstructing governmental administration as a matter of law”)

(internal citations omitted); Dowling v. City of New York, 2013 WL 5502867 at *4 (“[f]ailing to

obey a police order, in and of itself, does not constitute a circumstance that gives rise to probable

cause for an arrest for obstructing government administration”); Richardson v. N.Y.C. Health &

Hosps. Corp., 05-CV-6278, 2009 WL 804096, *9 (S.D.N.Y. Mar. 25, 2009).

“The physicality requirement need not be met by physical force, but must be in part, at

least, physical in nature.” Rasin v. City of New York, 2016 WL 2596038 at *5 (internal

quotations omitted). Circumstances involving a verbal communication that has “an interfering

effect combined with unwarranted physical intrusion into an area of police activity” may amount

to physical interference within the meaning of the statute. Hilderbrandt v. City of New York,

2014 WL 4536736 at *5. Accordingly, “[i]nterrelated conduct—actions coupled with words or

conduct causing some ‘physical reaction and dispersal’—is actionable.” Breitkopf v. Gentile, 41

F. Supp. 3d 220, 265 (E.D.N.Y. 2014).

The record establishes that Defendant was not engaged in authorized official duties when

he encountered Plaintiff. The parties agree that the Town of Lansing, where the relevant incident

took place, does not have a noise ordinance. (Dkt. No. 60 at 78:10-13.) Defendant

acknowledged that Plaintiff ordered him off the property multiple times. (Id. at 78:14-17.)

However, Defendant did not leave Plaintiff’s property at Plaintiff’s request. Moreover, once the

music stopped, Defendant did not leave Plaintiff’s property. (Dkt. No. 60 at 64-65.)

The Information charging Plaintiff with obstructing governmental administration alleged

that Plaintiff “intentionally disobeyed [Defendant]’s commands to back away, as [Plaintiff] was

only inches away from [Defendant], screaming obscenities and acting in an aggressive manner.”

(Exhibit P-10.) Plaintiff’s words alone were not enough to constitute the crime of obstructing

government administration. Moreover, as set forth above, the video shows Defendant’s

commands to “back away” being made simultaneous to Defendant shoving Plaintiff. Hence,

Plaintiff was not given a reasonable opportunity to comply with Defendant’s commands.

Further, as discussed below in Part III.B.1.b.ii. of this Memorandum, Decision and Order,

Defendant was not engaged in a legal arrest of Plaintiff and thus, no charge for obstructing

governmental administration will lie. United States v. Olavarria, 08-CR-0870, 2011 WL

1529190, at *7 (S.D.N.Y. Apr. 20, 2011) (citations omitted) (“Where the police are engaged in

an illegal arrest, other unlawful seizure, or an unlawful search, no charge for obstruction of

governmental administration will lie.”).

ii. Resisting Arrest

Section 205.30 of the New York Penal Law provides that “[a] person is guilty of resisting

arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from

effecting an authorized arrest of himself or another person.” N.Y. Penal Law § 205.30. Thus,

the statute explicitly requires that an officer be “effecting an authorized arrest”; an unauthorized

arrest will bar a charge of resisting arrest. People v. Jensen, 86 N.Y.2d 248, 253 (1995) (“[a] key

element of resisting arrest is the existence of an authorized arrest, including a finding that the

arrest was premised on probable cause”); see Curry v. City of Syracuse, 316 F.3d 324, 336 (2d

Cir. 2003) (“[t]here are thus at least two essential elements of a charge for resisting arrest under

New York law: (1) the person charged must have intentionally attempted to prevent the arrest of

[her]self or someone else, and (2) the arrest [s]he attempted to prevent must itself have been

supported by a warrant or by probable cause”).

“This Court's determination that [Defendant] lacked probable cause to arrest [Plaintiff]

for obstruction of governmental administration compels the determination that [D]efendant[]

likewise lacked probable cause to arrest [Plaintiff] for resisting arrest.” McKnight v. Vasile, 11-

CV-6328, 2017 WL 1176051, at *20 (W.D.N.Y. Mar. 30, 2017) (citing Curry v. City of

Syracuse, 316 F.3d at 336 (second element of resisting arrest requires the arresting officer to

have cause to arrest individual for some independent crime at the time individual resists);

Sulkowska v. City of New York, 129 F. Supp. 2d 274, 290 (S.D.N.Y. 2001) (“because the officer

had no probable cause to arrest plaintiff, he likewise lacked probable cause for the charge of

resisting arrest”)).

iii. Other Potential Charges

Although the position of Defendant with respect to Plaintiff’s claims is far from clear

(Dkt. No. 67 [Def.’s Closing Argument which summarizes Defendant’s perspective of the facts

and sets forth a bullet point list of eleven cases]), “the Court must look to whether probable cause

existed to arrest Plaintiff for any crime, irrespective of the crimes with which []he was ultimately

charged.” Richardson v. New York City Health and Hosp. Corp., 05-CV-2009 WL 804096, at *8

(S.D.N.Y. Mar. 25, 2009).

The only other crime that appears conceivable given the circumstances is disorderly

conduct pursuant to N.Y. Penal Law § 240.20(2), which prohibits the making of “unreasonable

noise” with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a

risk thereof. A “finding that [the person]’s disruptive statements and behavior were of a public

rather than an individual dimension” is “critical to a charge of disorderly conduct.” People v.

Baker, 984 N.E.2d 902, 905 (N.Y. 2013) (“This requirement stems from the mens rea

component, which requires proof of an intent to threaten public safety, peace or order (or the

reckless creation of such a risk).”); see People v. Munafo, 50 N.Y.2d 326, 331 (N.Y. 1980)

(holding that the disorderly conduct statute is violated only in “situations that carried beyond the

concern of individual disputants to a point where they had become a potential or immediate

public problem.”).

Defendant testified that he knew he could not arrest Plaintiff for disorderly conduct

unless someone other than Defendant himself complained about Plaintiff’s music. (Dkt. No. 60

at 36-37.) Defendant testified that no one else was at the scene of the incident and before going

to Plaintiff’s residence, he did not contact the complainant who had called 911. (Id. at 7, 31-32,

36-37.) It was not until June 3, 2019, that Plaintiff’s neighbor—Ricky Gonzales—provided a

supporting deposition regarding the volume of Plaintiff’s music on June 1, 2019. (Exhibit P-11.)

Moreover, Defendant failed to present evidence or allegations “establishing the proximity

of [Plaintiff’s music] to neighbors or other members of the public such that [Plaintiff’s] actions

could support a logical inference that [he] acted with intent or recklessness in regard to members

of the public.” Sharon D. v. Dara K., 13 N.Y.S.3d 656, 659 (N.Y. App. Div. 3d Dep’t 2015)

(finding that an altercation between a mother and grandmother in the confines of a great-aunt’s

home did not illustrate the requisite mens rea for purposes of N.Y. Penal Law § 240.20); see

Grant v. City of Syracuse, 15-CV-0445, 2017 WL 5564605, at *6 (N.D.N.Y. Nov. 17, 2017)

(Kahn, J.) (finding that accusations that an individual, in his own home, violently flailed his arms

at his adult daughter and slammed open his front door failed to support a logical inference that he

acted with intent or reckless in regard to members of the public); Kirsten G. v. Melvin G. Sr., 39

N.Y.S.3d 460, 462 (N.Y. App. Div. 1st Dep’t 2016) (holding that “ranting and raging” outside of

an apartment door does not constitute disorderly conduct because no evidence was presented

regarding the proximity of neighbors or other members of the public, or that the individual’s

conduct could have caused public alarm). Thus, Defendant failed to establish the defense that at

the time of Plaintiff’s arrest, there was probable cause to charge Plaintiff with disorderly conduct

pursuant to N.Y. Penal Law § 240.20(2).

As a result, I find that Plaintiff proved by a preponderance of the evidence that on June 1,

2019, Defendant falsely arrested Plaintiff in violation of the Fourth Amendment of the United

States Constitution.

iv. Qualified Immunity

To the extent that Defendant asserts that even if probable cause was lacking, he is

nevertheless entitled to judgment based on the doctrine of qualified immunity, the Court

disagrees.

Even if there was not probable cause to arrest the plaintiff, the defense of qualified

immunity entitles public officials to freedom from suit, as a result of the consequences of the

performance of their discretionary duties, when “(1) their conduct does not violate clearly

established constitutional rights, or (2) it was objectively reasonable for them to believe their acts

did not violate those rights.” Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000)

(quoting Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996)). Qualified immunity is an

affirmative defense, and, as such, defendants bear the burden of proving that the privilege of

qualified immunity applies. Coolick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012). In

considering a qualified immunity defense, courts should not be “concerned with the correctness

of the defendants' conduct, but rather the ‘objective reasonableness’ of their chosen course of

action given the circumstances confronting them at the scene.” Martinez, 202 F.3d at 634

(quoting Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995)).

“[I]n the context of a qualified immunity defense to an allegation of false arrest, the

defending officer need only show ‘arguable’ probable cause.” Martinez, 202 F.3d at 634 (citing

Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1987)). “An officer’s determination is objectively

reasonable”—and thus, arguable probable cause is demonstrated—when “officers of reasonable

competence could disagree on whether the probable cause test was met.” Jenkins, 478 F.3d at 87

(quoting Lennon, 66 F.3d at 423-24). As the Second Circuit explained in Jenkins, “‘[a]rguable’

probable cause should not be misunderstood to mean ‘almost’ probable cause. . . . If officers of

reasonable competence would have to agree that the information possessed by the officer at the

time of the arrest did not add up to probable cause, the fact that it came close does not immunize

the officer.” Id.

“Arguable probable cause exists when a ‘reasonable police officer in the same

circumstances and possessing the same knowledge as the officer in question could have

reasonably believed that probable cause existed in the light of well established law.’” Cerrone v.

Brown, 246 F.3d 194, 202-03 (2d Cir. 2001) (quoting Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.

1997)). Thus, “[a]lthough the tests for probable cause and arguable probable cause are . . . not

congruent, . . . the concept of probable cause is the same in both inquiries.” Zellner v.

Summerlin, 494 F.3d 344, 369 (2d Cir. 2007) (internal citation omitted). Accordingly,

“[a]rguable probable cause must not be misunderstood to mean ‘almost probable cause.’”

Zellner, 494 F.3d at 370 (quoting Jenkins v. City of New York, 478 F.3d at 87). The relevant

inquiry is “whether it was objectively reasonable for the officer to conclude that probable cause

existed”; “[i]f officers of reasonable competence would have to agree that the information

possessed by the officer at the time of the arrest did not add up to probable cause, the fact that it

came close does not immunize the officer.” Id. (quoting Jenkins, 478 F.3d at 87) (emphasis

omitted).

Here, as outlined above, at the time of Plaintiff’s arrest, “officers of reasonable

competence would have to agree that the information possessed by [Defendant] at the time of the

arrest did not add up to probable cause,” and he is therefore not entitled to qualified immunity.

Zellner, 494 F.3d at 370 (citing Jenkins, 478 at 87).

More specifically, the allegations accusing Plaintiff of obstructing governmental

administration are incongruent with the video of the interaction between Plaintiff and Defendant,

which revealed Defendant directing Plaintiff to “back the fuck up” two times while Defendant

simultaneously pushed Plaintiff. (Exhibit P-14 at T03:32:25Z, T03:32:32Z.) As set forth above,

there was no reasonable opportunity for Plaintiff to comply with Defendant’s directions.

Moreover, Plaintiff’s words alone were insufficient to establish probable cause that Plaintiff

committed the crime of obstructing governmental administration.

Because there was no probable cause to arrest Plaintiff for obstructing governmental

administration, it was not a lawful arrest and there was also no arguable probable cause to arrest

Plaintiff for resisting arrest. Moreover, as set forth above, Defendant failed to present evidence

indicating that there was arguable probable cause to charge Plaintiff with disorderly conduct at

the time of the arrest.

Finally, the Court notes that the burden is on Defendant to establish the defense of

qualified immunity and he has failed to meet this burden.

As a result, Plaintiff has established that Defendant falsely arrested him in violation of 42

U.S.C. § 1983 and the Fourth Amendment.

c. Malicious Prosecution

To prove a malicious prosecution claim, a plaintiff must demonstrate “(1) that the

defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable

cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4)

that the prosecution was terminated in the plaintiff's favor.” Posr v. Court Officer Shield # 207,

180 F.3d 409, 417 (2d Cir. 1999) (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d

Cir. 1997)). Under § 1983, to prevail on a malicious prosecution claim, a plaintiff must also

show “a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth

Amendment rights.” Rohman v. New York City Transit Authority, 215 F.3d 208, 216 (2d Cir.

2000); see also Singer v. Fulton County Sheriff, 63 F.3d 110, 116-117 (2d Cir. 1995) (“The

Fourth Amendment right implicated in a malicious prosecution action is the right to be free of

unreasonable seizure of the person . . . . A plaintiff asserting a . . . malicious prosecution claim

under § 1983 must therefore show some deprivation of liberty consistent with the concept of

‘seizure.’”).

“Under New York law, malice does not have to be actual spite or hatred, but means only

‘that the defendant must have commenced the criminal proceeding due to a wrong or improper

motive, something other than a desire to see the ends of justice served.’” Lowth v. Town of

Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 377 N.E.2d 975,

976 (N.Y. 1978)). “In most cases, the lack of probable cause—while not dispositive—'tends to

show that the accuser did not believe in the guilt of the accused, and malice may be inferred from

the lack of probable cause.’” Lowth, 82 F.3d at 573 (quoting Conkey v. State, 427 N.Y.S.2d 330,

332 (N.Y. App. Div. 4th Dep’t 1980)). In addition, malice “may be manifested in an egregious

deviation from proper investigative procedures.” Ramos v. City of New York, 729 N.Y.S.2d 678,

691 (N.Y. App. Div. 1st Dep’t 2001). “Actual malice, in fact, is seldom shown by direct

evidence of an ulterior motive, but is usually inferred from the facts and circumstances of the

investigation.” Ramos, 729 N.Y.S.2d at 691.

Here, there is little dispute that Defendant initiated a prosecution against Plaintiff

(Exhibits P-10, P-12) and that the prosecution was terminated in Plaintiff’s favor (Exhibit P-1).

Further, as set forth above in Part II. B.1.b. of this Memorandum Decision and Order, the Court

finds that there was no probable cause to charge Plaintiff with obstructing governmental

administration and resisting arrest.

However, Plaintiff has failed to establish by a preponderance of the evidence that

Defendant acted with malice. Instead, the testimony of Defendant, video evidence, and

Plaintiff’s own version of the events on June 1, 2019, paint a picture wherein Defendant “was

confused about what to do and did not know how to handle the situation.” (Dkt. No. 64 at 11

[citing Dkt. No. 60 at 47]; see also Dkt. No. 60 at 51-52 [Defendant testifying that he was not

aware at the time of the incident of certain Tompkins County policies].) Hence, Plaintiff has

failed to establish by a preponderance of the evidence that Defendant acted out malice, and not

ineptitude.

To the extent that Plaintiff’s malicious prosecution charge relates to “the commencement

of a criminal proceeding against [Plaintiff] for disorderly conduct” (Dkt. No. 64 at 13-14) the

Court similarly finds Defendant not liable. “In general, courts presume the prosecutor exercises

independent judgment in deciding whether to initiate or continue a criminal proceeding.”

Ventillo v. Falco, 19-CV-03664, 2020 WL 7496294, at *11 (S.D.N.Y. Dec. 18, 2020). “Where

the defendant in a malicious prosecution action is a police officer, courts have found a triable

issue of fact as to the initiation element where the defendant-officer brought formal charges and

had the person arraigned, filled out complaining and corroborating affidavits, swore to and

signed a felony complaint, or created false information and forwarded it to prosecutors.”

Alcantara v. City of New York, 646 F. Supp. 2d 449, 457-58 (S.D.N.Y. 2009). Here, the

disorderly conduct charge was brought via prosecutor’s information signed by Deputy District

Attorney Andrew Bonavia. (Exhibit P-8.) Plaintiff has failed to present evidence to overcome

the presumption that the prosecutor exercised independent judgment in deciding whether to

initiate the charge of disorderly conduct against Plaintiff.

As a result, the Court finds Defendant not liable for malicious prosecution.

2. Damages

Having found liability on Plaintiff’s claims of excessive force and false arrest, the Court

next turns to an appropriate calculation of damages.

Plaintiff submitted medical expenses totaling $557.71. (Plaintiff’s Exhibit P-40.)

Plaintiff testified regarding several physical injuries he sustained as a result of his

interaction with Defendant. (Dkt. No. 60 at 95-101 [discussing Exhibit P-25].) More

specifically, Plaintiff testified he sustained, inter alia, contusions on his knee, right leg, and

elbow (id. at 95-96), a bruise on his lower back (id. at 97), and swelling in his right knee (id. at

98). In addition, Plaintiff testified that to date he still has a scar on his wrist from the handcuffs.

(Id. at 95, 107-08.)

Moreover, with respect to pain from the incident, Plaintiff testified that (1) when he was

“pulled along” from his property to Defendant’s patrol vehicle, it was painful to walk because his

driveway is made of “coal sharp stones” and Plaintiff did not have any shoes on (Dkt. No. 60 at

99), (2) he felt “a lot of pain for a long time” in his back after the incident (id. at 97), and (3) for

several months after the incident, he felt pain in his wrist while driving a bus (id. at 100-101).

Plaintiff testified that he suffered mental and emotional damages. (Id. at 101-103.)

Plaintiff testified that after the incident with Defendant, he lost enjoyment in the use of his

property and continues to fear retaliation by the Tompkins County Sheriff’s Department. (Dkt.

No. 60 at 101-02, 110-11.)

Plaintiff testified about the embarrassment and humiliation of the press release. (Id. at

103-106 [discussing Exhibit P-39].) Plaintiff testified that his friends saw the press release and

asked him about the incident. (Id. at 103.) Plaintiff testified that his children’s friend’s parents

questioned allowing their kids to come to Plaintiff’s house after reading the press release and

expressed concerns that Plaintiff was “some kind of crazy drunk.” (Id.) Plaintiff testified that

co-workers learned of his arrest because of the press release and made comments to the effect of

“have a good weekend, Ron, keep out of the booze and keep Metallica off the radio, ha, ha, ha.”

(Id.)

Plaintiff testified that the incident occurred on the first night of a planned week vacation

from work. (Dkt. No. 60 at 86-87.) Plaintiff testified that he took an additional one and one-half

weeks off from work using sick time because of the injuries he sustained during the incident with

Defendant. (Dkt. No. 61 at 23.)

In other cases, plaintiffs have been awarded a range of damage awards for claims of

excessive force and false arrest. See Franco v. Gunsalus, 16-CV-0634, 2022 WL 93570, at *1

(N.D.N.Y. Jan. 10, 2022) (Scullin, J.) (the jury awarded the plaintiff $5,000 in compensatory

damages after finding for the plaintiff on claims for excessive force, false arrest, and malicious

prosecution); Moore v. Keller, 16-CV-1230, 2021 WL 5493022, at *1 (N.D.N.Y. Nov. 22, 2021)

(Hurd, J.) (“a jury found that Officer Keller had falsely arrested Jalia and awarded her $30,000 in

damages.”); Johnson v. Mauro, 16-CV-0622, 2019 WL 5842765, at *1 (N.D.N.Y. Nov. 7, 2019)

(Sannes, J.) (the jury awarded $25,000 in compensatory damages for excessive force); Grant v.

City of Syracuse, 357 F. Supp. 3d 180, 194-95 (N.D.N.Y. 2019) (Hurd, J.) (holding that jury

award of $1,130,000 to plaintiff Alonzo Grant for claims of, inter alia, false arrest and excessive

force, was not excessive). In this case, the Court finds that $50,000 in compensatory damages is

an appropriate award for Plaintiff’s claims.

The Court finds that punitive damages are not appropriate here. Punitive damages are

appropriate “when the plaintiffs have produced evidence that the defendant’s conduct is

motivated by evil motive or intent, or when it involves reckless or callous indifference to the

federally protected rights of others.” Cameron v. City of New York, 598 F.3d 50, 69 (2d Cir.

2010) (internal quotation marks and alteration omitted). This standard requires “evidence of a

positive element of conscious wrongdoing or malice.” Cameron, 598 F.3d at 30 (internal

quotation marks omitted). Although the Court finds that Defendant used excessive force and did

not have probable cause to arrest Plaintiff, “these findings do not establish [Defendant]’s

subjective intent—which Cameron indicates is required.” Franco v. Gunsalus, 21-71, 22-339,

2023 WL 3590102, at *2 (2d Cir. May 23, 2023) (citing Amid v. Chase, 720 F. App’x 6, 13 (2d

Cir. 2017) (describing the standard as subjective)). “Neither an excessive use of force nor an

unreasonable belief about probable cause necessarily entitles a Section 1983 plaintiff to punitive

damages.” Franco, 2023 WL 3590102, at *2.

IV. PENDING TRIAL MOTIONS

During the trial, Plaintiff and Defendant made oral motions,3 each requesting a finding of

judgment in their favor. (Text Minute Entry dated 04/24/2023.) The Court reserved decision on

those motions. (Id.) For the reasons stated herein, those motions are denied.

3 “Unlike under Rule 50 which governs judgment as a matter of law in jury trials, under

Rule 52(c), the court does not consider the evidence in the light most favorable to the non-

moving party.” Wechsler v. Hunt Health Sys., Ltd., 330 F. Supp. 2d 383, 433 (S.D.N.Y. 2004).

The Court further “does not draw any special inferences in the non movant's favor, or consider

the evidence in the light most favorable to the non-moving party. Instead the court acts as both

judge and jury, weighing the evidence, resolving any conflicts, and deciding where the

ACCORDINGLY, it is

ORDERED that Plaintiff is entitled to judgment in his favor against Defendant on his

Fourth Amendment excessive force and false arrest claims; and it is further

ORDERED that Defendant is entitled to judgment in his favor on Plaintiffs Fourth

Amendment malicious prosecution claim; and it is further

ORDERED that Plaintiff is entitled to compensatory damages in the amount of $50,000

on his Fourth Amendment excessive force and false arrest claims against Defendant; and it is

further

ORDERED that any motion to recover reasonable attorney’s fees pursuant to 42 U.S.C.

§ 1988 shall be filed on or before April 30, 2024; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment.

Dated: March 12, 2024

Binghamton, New York | . □

Miroslav Lovric

U.S. Magistrate Judge

preponderance lies.” LaMarca v. United States, 31 F. Supp. 2d 110, 123-24 (E.D.N.Y. 1998)

(citation omitted).

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