Stelling v. City of New York et al
ORDER granting 31 Motion for Summary Judgment as to defendant City of New York. Ordered by Judge I. Leo Glasser on 1/10/2017. (Weitzer, Iliza)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against –
CITY OF NEW YORK, Police Officer
JONATHAN CANNIZZARO, Police Officer
GLASSER, Senior United States District Judge:
Plaintiff Christopher Stelling (“Stelling” or “Plaintiff”) brings this action alleging
unlawful arrest and municipal liability pursuant to 42 U.S.C. § 1983 against two New York City
police officers, Jonathan Cannizzaro (“Cannizzaro”) and Thomas Marfoglio (“Marfoglio,”
together the “Officers”), and the City of New York (the “City”). Before the Court is the City’s
motion for summary judgment as to the municipal liability claim. For the reasons stated below,
the motion is GRANTED.
On the afternoon of May 23, 2013, Officers Cannizzaro and Marfoglio, both rookies,
were driving a police van when they noticed Stelling on the sidewalk. ECF 36, Plaintiff’s 56.1
Statement, at ¶¶ 4-6. The Officers could see the end of a folding knife protruding from Stelling’s
front pants pocket. ECF 35-4, Marfoglio Dep., p. 20; ECF 35-5, Cannizzaro Dep., p. 27.
Believing the knife could be an illegal gravity knife, the Officers stopped the van and approached
Stelling to examine the knife. ECF 36, Plaintiff’s 56.1 Statement, at ¶¶ 6-7. Each officer tested
the knife numerous times by attempting to open it with a one-handed, “flick of the wrist” motion.
ECF 35-3, Stelling Dep., pp. 20-21, 25-26, 34-35; ECF 35-4, Margoflio Dep., p. 36; ECF 35-5,
Cannizzaro Dep., p. 44.
The parties dispute what happened next. Stelling claims that the knife was a folding
knife, commonly and legally bought over the counter, and that it did not open when the officers
tested it. ECF 35-3, Stelling Dep., at pp. 19, 35. He says the Officers became increasingly
“aggravated” by their inability to prove it was a gravity knife and arrested him in frustration. Id.
at pp. 29-30, 37-38. Conversely, the Officers say the knife opened easily when they tested it,
satisfying them that it was a gravity knife. ECF 35-4, Margoflio Dep., p. 36; ECF 35-5,
Cannizzaro Dep., p. 35. They arrested and charged Stelling with criminal possession of a
weapon in the fourth degree under N.Y. Penal Law § 265.01(1). ECF 36, Plaintiff’s 56.1
Statement, at ¶¶ 8-9. 1
Stelling commenced this action on January 6, 2015 (ECF 1), and filed an amended
complaint on October 7, 2015. ECF 10. Stelling alleges that the Officers lacked probable cause
because they did not prove that the knife in his possession was a gravity knife before arresting
him. Id. at ¶¶ 22-25; see also generally ECF 34, Opp. A handful of courts have addressed this
issue, and have generally held that, when a plaintiff is carrying a legal folding or utility knife,
“New York City police officers lacked reasonable suspicion to stop and search plaintiffs, or 
they lacked probable cause to arrest them for possessing a ‘gravity’ knife.” Clay v. The City of
New York, et al., 14-CV-9171, 2016 WL 5115497, *1 (S.D.N.Y. Sept. 9, 2016) (citing cases).
Under N.Y. Penal Law § 265.01(1), a person is guilty of criminal possession of a weapon in the
fourth degree when he “possesses any firearm, electronic dart gun, electronic stun gun, gravity
knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack,
bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type
slingshot or slungshot, shirken or ‘Kung Fu star.’”
A gravity knife is defined as:
any knife which has a blade which is released from the handle or sheath thereof by the
force of gravity or the application of centrifugal force which, when released, is locked in
place by means of a button, spring, lever or other device. N.Y. Penal Law § 265.00(5)
To have probable cause for an arrest under N.Y. Penal Law § 265.01, a knife should be tested to
determine whether it opens with the application of gravity or centrifugal force. People v.
Dreyden, 15 N.Y.3d 100, 104 (2010) (an accusatory instrument must explain briefly how the
officer formed the belief that an object is a gravity knife); see also People v. Sans, 26 N.Y.3d 13,
17 (2015) (statement that the knife opened “with centrifugal force” is sufficient to infer that the
“officer flicked the knife open with his wrist”). Stelling alleges that the City is liable because it
failed to train its officers to perform that test, resulting in his unlawful arrest.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712,
720 (2d Cir. 2010) (citations and quotation omitted). “A fact is material if it might affect the
outcome of the suit under the governing law.” Id. In deciding a motion for summary judgment,
the court must “construe the facts in the light most favorable to the nonmoving party” and
“resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya,
Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation omitted).
It is well-settled that a municipality cannot be liable under § 1983 for the conduct of its
employees solely under a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436
U.S. 658, 694 (1978). Rather, Plaintiff must prove that his injury was caused by “action
pursuant to official municipal policy.” Connick v. Thompson, 563 U.S. 51, 61 (2011). The
policymaker’s inaction must be the “result of conscious choice and not mere negligence.” Cash
v. Cnty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011) (quotations omitted).
Under a failure to train theory of liability, Plaintiff must “identify a specific deficiency in
the city’s training program and establish that that deficiency is ‘closely related to the ultimate
injury,’ such that it ‘actually caused’ the constitutional deprivation.” Amnesty Am. v. Town of
W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citing City of Canton, Ohio v. Harris, 489 U.S.
378, 391 (1989)). These two elements, “which together require the plaintiffs to prove that the
deprivation occurred as the result of a municipal policy rather than as a result of isolated
misconduct by a single actor, ensure that a failure to train theory does not collapse into
respondeat superior liability.” Amnesty Am., 361 F.3d at 130.
Stelling argues that the City’s training program was deficient because it lacked
instruction regarding the “application of centrifugal force,” see supra N.Y. Penal Law §
265.00(5), which, he claims, is a “complex concept requiring an elevated understanding of the
laws of physics.” ECF 34, Opp., p. 15. Because an officer must apply centrifugal force to a
knife in his probable cause determination, that term is “precisely the category of determination
that the city should know requires some instruction.” Id. Stelling attaches the City’s written
training materials and alleges they are deficient because they “do not contain an explanation of
what constitutes a ‘gravity knife’ beyond the definition contained in the penal law,” include only
one picture of a gravity knife, and lack a demonstrative component. ECF 34, Opp., pp. 10-11;
see also ECF 35-7, Training Materials. Additionally, Marfoglio says that he never received
training about gravity knives, and that his knowledge of them is based solely on his own reading
of the Penal Law. ECF 34, Opp., pp. 9-10. Stelling speculates that the Officers’ lack of training
“caused confusion as to whether there was probable cause to arrest plaintiff,” and that the
Officers “arrested plaintiff in frustration . . . in the hopes another officer at the station would be
able to properly test and confirm the necessary characteristics.” ECF 34, Opp., pp. 18-19.
Plaintiff has not “identified any authority for his argument that the [City’s] method or
quantity of training provided to its officers is insufficient.” O’Brien v. Barrows, 556 F. App’x 2,
5 (2d Cir. 2014). The conclusory contention that the training of a police officer should provide
an “elevated understanding of the law of physics” as a necessary prerequisite to any meaningful
action regarding a gravity knife is imaginative but will be assumed is not meant to be taken
seriously. Additionally, Stelling has not proffered evidence of “how better or different training
could have prevented the challenged conduct, or how a hypothetically well-trained officer would
have acted under the circumstances.” Amnesty Am., 361 F.3d at 130 (quotations omitted). The
uncontroverted evidence in the record is that the Officers tested the knife correctly and that
further training would not have prevented Stelling’s arrest. Each officer spoke in detail about
using a “flick of the wrist” motion to test the knife, ECF 35-4, Marfoglio Dep., pp. 43-44, 54-55;
ECF 35-5, Cannizzaro Dep., pp. 60-63, and their supervising officer stated that a “flick of the
wrist” is the correct test to apply. ECF 35-6, Durkin Dep., pp. 22-23.
Moreover, if the knife was a legal folding knife, more training would have yielded the
same outcome Stelling claims occurred: the knife would have remained closed when it was
tested. Stelling’s theory that the Officers arrested him in frustration, aside from being entirely
speculative, bespeaks isolated misconduct by two rookie officers, not a deficient training regime
for which the City may be held liable. Amnesty Am., 361 F.3d at 130 (noting that plaintiff must
provide evidence to rule out other causes that would “not support municipal liability, such as . . .
one or more officers’ negligent or intentional disregard of their training”).
The City’s motion for summary judgment is granted, and the municipal liability claim is
Brooklyn, New York
January 10, 2017
I. Leo Glasser
Senior United States District Judge
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