Articles Posted in Civil Rights

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MG recently settled the federal civil rights lawsuit of an individual wrongfully arrested in Brooklyn for allegedly possessing a weapon. His friend – with whom he was arrested – is currently facing charges of felony weapons possession and attempted murer, but we were able to demonstrate that our client had been wrongfully accused. The matter settled for an amount that was satisfactory to the client.

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New York state assemblyman Edward Braunstein has proposed legislation to combat the growing problem of “revenge porn,” or the non-consensual disclosure of sexually explicit images. All too often, after a consensual sexual relationship ends, a bitter ex-husband or ex-boyfriend lashes out by posting sexually explicit images of his former lover on the internet. (Note: It is not illegal for websites to host these photos, as sites are not generally responsible for the content posted by non-employed users, though a number of attorneys have attempted to sue them on behalf of their clients. See Section 230 of the Communications Decency Act, at 47 USC §230[c]). The proposed bill, the text of which is below, would make it a class A misdemeanor punishable by up to one year in jail to disclose sexually explicit images when the victim had a reasonable expectation that they would not be shared outside of the relationship.

S T A T E O F N E W Y O R K

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The deadline for a victim of a rape or sexual assault in New York to bring a civil lawsuit for damages against his or her attacker depends principally on three factors: 1) what exactly the attacker did to the victim, 2) whether a criminal action was commenced as a result of the attack, and 3) whether the victim was a juvenile at the time of the alleged assault.

Most lawsuits involving “intentional torts” against another individual, such as an assault, have a one-year statute of limitation, meaning that any such count in a civil lawsuit will be dismissed outright if it was not filed within one year of the date of the assault itself. However, there are three specific types of sexual assaults for which the statute of limitation is set at five years pursuant to New York CPLR § 213-c. That statute states:

§ 213-c. Action by victim of conduct constituting certain sexual offenses. Notwithstanding any other limitation set forth in this article, a civil claim or cause of action to recover from a defendant as hereinafter defined, for physical, psychological or other injury or condition suffered by a person as a result of acts by such defendant of rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be brought within five years. As used in this section, the term “defendant” shall mean only a person who commits the acts described in this section or who, in a criminal proceeding, could be charged with criminal liability for the commission of such acts pursuant to section 20.00 of the penal law and shall not apply to any related civil claim or cause of action arising from such acts. Nothing in this section shall be construed to require that a criminal charge be brought or a criminal conviction be obtained as a condition of bringing a civil cause of action or receiving a civil judgment pursuant to this section or be construed to require that any of the rules governing a criminal proceeding be applicable to any such civil action.

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There are many artists and musicians in New York City that support themselves by performing in the subway system. However, those artists run the risk of being arrested – oftentimes wrongfully – for violations of New York City Transit Rule of Conduct 1050.6.

That statute makes it an infraction punishable by up to 10 days in jail and/or a fine or civil penalty for obstructing or interfering with the flow of traffic in the subway system. (See Section 1050.10). The statute specifically states that artistic performances, including the acceptance of donations, is generally speaking permissible, so long as the performance does not cause any disturbance in the flow of traffic. The precise language is below:

http://www.mta.info/nyct/rules/rules.htm

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Generally speaking, an offer of an Adjournment in Contemplation of Dismissal (“ACD”) to resolve criminal charges is usually an attractive plea bargain offer to a criminal defendant. After all, pursuant to New York CPL 160.50, individuals receiving ACD’s usually have their cases dismissed and sealed and deemed nullities after six months (or one year in marijuana cases). However, acceptance of an ACD can have negative consequences concerning possible civil lawsuits for wrongful arrests.

As explained in one recent case in federal court, Freedman v. Monticello Police Department, 2003 WL13571 (S.D.N.Y. 2003) (Buchwald, J.), acceptance of an ACD precludes a civil action against police officers (or the municipality that employs them) for malicious prosecution. The reason for this is that an element of the tort of malicious prosecution is a “termination in favor of the accused,” and although an ACD is not an admission of guilt or a conviction, it is not considered to be a “termination in favor of the accused,” either.

That being said, that case also explained that an ACD does not preclude a plaintiff from succeeding on a false arrest claim, as that tort does not require a “termination in favor of the accused” as an element. So, the bottom line is that acceptance of an ACD can have some negative impact on the potential recovery in a lawsuit, but it is not fatal to the possibility of successfully recovering damages.

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Today, a federal judge in Manhattan handed down an important ruling by declaring unconstitutional the NYPD’s “Trespass Affidavit Program” for private residential buildings in New York City. This program was also referred to by the Department as “Operation Clean Halls”. The judge declared that the program and the Department’s policy and lax training essentially caused police officers to stop and frisk people entering, leaving, and walking the halls of private residential buildings without any cause to do so. Indeed, the NYCLU, who spear-headed the case, managed to successfully demonstrate that the Department had been systematically searching persons without any suspicion of illegal activity and sometimes even arresting wholly innocent individuals solely because they were inside of or around buildings that voluntarily participated in the program.

Hopefully, this decision leads to further curtailing of unconstitutional stop-and-frisk policies enacted by the NYPD, either through voluntary changes by the NYPD or further court decisions on the constitutionality of similar policies.

Interestingly, this decision may make it easier for people to succeed and win solid settlements in lawsuits against the City stemming from false trespass arrests. The Bronx District Attorney’s Office, for example, recently changed its policy on the prosecution of these matters, and as a result, a large number of people falsely arrested recently for “trespassing” have had their cases “DP’d”, or dismissed as a result of the District Attorney’s Office decision to “decline prosecution”. What many of these individuals that were released by the prosecutor might not realize is that they can win significant settlements for these false arrests, depending upon the length of time that they were unconstitutionally held against their will by the police.

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Today, a ferry traveling from New Jersey to Pier 11 in Lower Manhattan and carrying 326 passengers (as well as 5 crew members) crashed into the pier at a high rate of speed causing numerous injuries. As of the time of this post, two passengers were listed as being in critical condition. This particular boat, operated by Seastreak LLC, a private ferry company, was involved in a terrible accident in 2003 that killed 11 people. The question presented now is what sort of criminal or civil liability that company or its crew members might be facing as a result of this accident.

As a preliminary matter, it is virtually certain that dozens, if not hundreds, of passengers will be considering lawsuits against Seastreak for negligence. Their attorneys will have to determine why the boat crashed (and may have the assistance of the Coast Guard or law enforcement in determining this question) and whether either the operation or maintenance of that boat somehow fell below acceptable minimum standards. If so, then the passengers injured by the crash can expect significant monetary awards.

Law enforcement may have to determine whether any criminal liability should attach as well. First and foremost, if any of the passengers ultimately die as a result of injuries sustained in the crash, then employees of the company could theoretically be looking at charges of Criminally Negligent Homicide, a Class E felony under Penal Law Section 125.10, or even worse, Manslaughter in the Second Degree, Penal Law Section 125.15(1) a Class C felony.

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Police officers are authorized to use lethal force under various life-threatening scenarios. But sometimes, they make mistakes and shoot the wrong person, or shoot someone under the wrong circumstances. Police officers that make these sorts of tragic mistakes can face a wide variety of criminal charges, the most serious of which are contained in Chapter 125 of the Penal Law. Two common charges are Manslaughter and Criminally Negligent Homicide (Penal Law Section 125.10). The most relevant things to consider are: 1) the facts available to the officer at the time that he made his decision, 2) whether the decision to fire was reasonable under the circumstances, and 3) the harm suffered by the shooting victim.

For example, Ramarley Graham was recently shot and killed because the police officer supposedly believed that Graham had a weapon, though he did not. In the case of Ramarley Graham, the police officer was indicted for first- and second-degree manslaughter (Penal Law Sections 125.15 and 125.20) for recklessly causing the death of a young man in his apartment. Penal Law Chapter 15 explains recklessness thusly: “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” Generally speaking, recklessness is more difficult to prove than negligence, and thus the charge of manslaughter is more serious than the charge of criminally negligent homicide (Manslaughter in the First Degree is a Class B violent felony, and Criminally Negligent Homicide is a Class E felony). Penal Law Chapter 15 further defines negligence: “A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

So, in short, the difference between recklessness and negligence in this context is whether the police officer that fired his weapon consciously disregarded the risk that he was making a mistake and fired anyway, or whether he simply did not realize that there was a risk that he was making a mistake.

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This evening, the New York Post is reporting that the Manhattan District Attorney’s Office has indicted at least one person, Anna Gristina, for running an underage prostitution ring in Manhattan. Shockingly, this brothel on East 78th Street – which will implicate a long roster of wealthy and prominent johns – purportedly had police protection from the NYPD. Aside from the possible criminal prosecution of police officers for their involvement in this sordid affair (not to mention the PR disaster that this represents for the NYPD), there may be another reason for the NYPD to be seriously concerned: the possibility of lawsuits.

In 2000, the U.S. Congress passed the Trafficking Victims Protection Act, and later passed the Trafficking Victims Reauthorization Act of 2003, which provided for a civil remedy in Federal court for victims against their traffickers. In a nutshell, victims of sex trafficking (for example, underage prostitutes) have the right to sue their pimps/traffickers for damages, lost wages, and punitive damages (which can be significant). Many other types of civil actions – including civil RICO claims – might lie for this conduct as well. These sorts of remedies are rarely pursued in these sad situations, however, as the pimps/traffickers typically do not have enough money to make a lawsuit worthwhile for the plaintiffs, and almost certainly never have enough money to truly make their victims whole, from a tort standpoint. However, this case presents a unique twist on this tragic story: potentially, the victims of trafficking may be able to sue the police officers that provided protection (and thereby assisted in the trafficking) and by proxy the City of New York (with its very deep pockets) for its failure to monitor its officers and prevent their misconduct. Indeed, this may be the case in which victims of sex trafficking could actually recover judgments worth millions of dollars.

Matthew Galluzzo, the author of this article, is a criminal defense and civil rights lawyer at the Law Office of Matthew Galluzzo. He served for years as a rape prosecutor in the famous Sex Crimes Unit of the Manhattan District Attorney’s Office and continues to volunteer his time to assist in the effort to eradicate sexual violence. If you or a loved one have been a victim of a sexual assault or sex trafficking, or been falsely accused of having committed such a crime, you should strongly consider calling him or emailing him to schedule a consultation.

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Over the course of the last four days, the NYPD arrested 141 people in New York City as part of “Operation Take Back” . Basically, undercover officers approached people on the sidewalk and offered to sell them Apple products (iPhones and iPads) at deeply discounted prices. Those people that purchased the goods were then charged with Attempted Criminal Possession of Stolen Property (Penal Law Section 110/165.40), a Class B misdemeanor, under the theory that they were knowingly attempting to acquire stolen iPhones or iPads. Many of those people that were arrested received ACD’s (adjournments in contemplation of dismissal) at arraignments, but not after spending 24 hours or more in jail. In many ways, the operation calls to mind the widely-criticized “Operation Lucky Bag” from earlier this year.

In our view, many of these arrests probably constitute entrapment by the police. After all, there is not likely to be any evidence that any of the arrested people had any predisposition to purchase stolen iPhones or iPads, or that they were actively seeking to do so. Entrapment is a defense to a criminal charge whereby the accused argues that he would not have committed the crime but for police action. The specific elements of the defense are available here. Moreover, we are hearing reports that at least some of the arrested people had no reason to believe that the iPhones or iPads were stolen, as undercover officers told them that they owned the Apple products and urgently needed to sell them to make money. If true, these police officers, in our view, acted outrageously and created false reasons to make improper arrests of law-abiding people. (We doubt that any of these officers were actually wearing wires to record their conversations with their targets, precisely for this reason). Accordingly, those victims of the police misconduct should contact civil rights attorneys to file lawsuits against the NYPD for false arrest and other violations of their constitutional rights.

If you or a loved one were arrested as part of “Operation Take Back,” you should seriously consider contacting the experienced criminal defense and civil rights attorneys at the Law Office of Matthew Galluzzo. Their team of former Manhattan prosecutors can help you defend against criminal charges from these arrests of file lawsuits on your behalf against the NYPD for false arrest.

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