The opinion
USDC SDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK DOCUMENT
ELECTRONICALLY FILED
OO Oa □□
JAWAUN FRASER, DAT 7/14/2022
Plaintiff, □ :
-against- 20 civ. 4926 (CM)
CITY OF NEW YORK, UNDERCOVER OFFICER
NUMBER 84, MATTHEW REGINA, AND JASON
DELTORO,
Defendants.
□□
ORDER DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT
McMahon, J.:
Having had a motion for judgment on the pleadings denied emphatically, the City of New
York and three police officers — Detective Jason Deltoro, Detective Matthew Regina, and
Undercover Officer No. 84 (“UC 84”) (together, “Defendants”) have moved after discovery for
partial summary judgment dismissing certain of Plaintiff Jawaun Fraser’s claims.
The reader is referred to the court’s decision denying the motion for judgment on the
pleadings (Docket No. 45) for a brief recitation of the facts. There is no need to recite them here.
Nor is there any need for the court to repeat the extensive discussion in that decision of the settled
point of law that holds police officers who withhold exculpatory of impeaching evidence from
prosecutors liable to a criminal defendant for violating the disclosure requirements of Brady v.
Maryland, 373 U.S. 83 (1963). It is undisputed that Fraser, a defendant in a criminal case in the
New York State Supreme Court, was not made aware of certain potential impeachment evidence
against the three defendant officers – evidence in the form of lawsuits brought against them for
making up evidence, which is what Fraser argued was done in his case. Indeed, there is a decision
of the New York State Supreme Court so holding – that is why his conviction was thrown out. See
People v. Frazer, Decision and Order, Ind. No. 4844/14 (Supreme Court, N.Y. County, December
6, 2019).
Defendants argue that no evidence in the record establishes that the officers failed to
disclose the existence of civil suits of which they were aware, and that Fraser’s defense counsel
should have been able to locate evidence about those lawsuits in the public record. For the reasons
set forth in Plaintiff’s responsive memorandum of law (Docket No. 79 at pages 5-9), as well as the
discussion beginning at page 10 of this court’s decision denying the motion for judgment on the
pleadings (Docket No. 45) – see especially United States v. Payne, 63 F. 3d 1200, 1209 (2d Cir.
1995) – I reject those arguments and agree that genuine issues of fact preclude summary judgment
on both points. I also agree that long-settled law, which is discussed in this court’s earlier opinion,
eliminates any possibility of placing the blame for the failure to locate the lawsuits on the head of
defense counsel. Disputed issues of fact also exist about whether Detective Deltoro knew that his
fellow officers had made up a false story to justify Fraser’s arrest but failed to correct their lies
and instead knowingly filed paperwork labeling a copy of UC 84’s driver’s license as “arrest
evidence.” In short, this is a case that cries out for resolution by a jury if it cannot be settled prior
to trial, because there are genuine issues of material fact relating to every count.
The only issue that might require extended discussion is whether the law requires that the
individual defendants’ failure to disclose Brady material was intentional or merely reckless. But
since genuine issues of fact preclude judgment in favor of UC 84 and Deltoro on the issue of intent
– both were served with process in at least four of the five undisclosed lawsuits against them –
there is no need to resolve that question of law now, and it may never need to be resolved. If in
fact the officers were aware of the lawsuits – and a jury could find that an officer who was
personally served with a summons and complaint was aware of a lawsuit – then that jury could
conclude that non-disclosure of a known lawsuit was intentional. This ends any possibility of
disposing of the issue of intent on summary judgment. I intend to submit both the question of intent
and the alternate question of recklessness to the jury at trial, and to take special verdicts thereon.
If the jury concludes that the officers behaved intentionally, there will be no need to address this
issue of law; and if it concludes that the officers acted only recklessly, then the court will resolve
the issue after trial, as should be done.
The City also seeks qualified immunity for the officers, arguing that their failure to disclose
potential impeachment material in the form of lawsuits against them did not violate clearly
established law. For the reasons articulated in the Plaintiff’s opposition memorandum (Docket No.
79 at page 11), I conclude that it was clearly established that officers were required to turn over
Brady evidence from prosecutors, and that an officer’s civil lawsuit history qualified as Brady
information if (as Justice Stolz concluded) it could be used to impeach the officer sued. The Second
Circuit so held quite recently, in Horn v. Stephenson, -- F. 4th --, 2021 WL 3776318, at *5 (2d Cir.
Aug. 26, 2021).
As long as there remain questions of fact about whether the officers withheld from
prosecutors information about lawsuits of which they knew – and I have already held that there
are such questions of fact that a jury must resolve – the claims against the officers cannot be
dismissed on qualified immunity grounds. In particular, the case cannot be dismissed on the ground
that there is no precedent involving “fundamentally similar facts.” Id. As the Second Circuit has
held, there is a balance between defining a right with enough specificity so that officers can fairly
be said to be on notice that their conduct was forbidden, but with a sufficient measure of abstraction
to avoid a situation in which rights are deemed “clearly established” only if the exact same fact
pattern has “already been condemned.” Simon v. City of New York, 893 F. 3d 83, 96-97 (2d Cir.
2018).
I also agree with Plaintiff’s argument for why the City of New York could be held liable
under Monell on a failure to train theory.1 The only training materials that existed prior to Fraser’s
trial that were produced from the Police Academy mis-defined what constituted Brady material,
failed to mention impeachment evidence or the impact of Giglio v. United States, 405 U.S. 150
1972) on the Brady doctrine, and failed to mention that civil lawsuits could constitute impeachment
evidence. The officers involved in this case can recall no training on their duty to disclose such
information prior to 2017. A reasonable jury could indeed conclude that the City violated its duty
to train its officers – and could hold the City liable for that failure even in the absence of individual
liability findings against the three officers.
The motion to bifurcate the trial is denied. There is absolutely no basis to bifurcate,
especially since the officers can be expected to rely on an alleged lack of training as part of their
defense. There will, therefore, necessarily be testimony about the City’s training practices during
the court of a trial against the officers. This court does not need to sit through the same evidence
twice.
This case is being placed in the queue for assignment of a trial date on the court’s trial
calendar. If the parties are interested in going to the Magistrate Judge for possible settlement, they
should contact my chambers.
1 Whether training materials that contain an inaccurate and incomplete description of the Brady doctrine qualify as an
“unlawful policy” is a question I do not need to answer now; they clearly constitute deficient training materials.
This constitutes a written decision and order of the court. The Clerk of the Court is directed
to remove the motion at Docket No. 67 from the court’s list of open motions.
Dated: July 14, 2022
2, yp hh
e. fg A
U.S.D.J.
BY ECF TO ALL COUNSEL