Antic v. City of New York et al
Filing
69
OPINION AND ORDER: For the foregoing reasons, Defendants' motion for summary judgment was GRANTED, and all of Antics claims were dismissed. The Clerk of Court is directed to enter judgment in favor of Defendants and to close the case, and as further set forth in this order. (Signed by Judge Jesse M. Furman on 7/27/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PERO ANTIC,
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Plaintiffs,
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-v:
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THE CITY OF NEW YORK, et al.,
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Defendants.
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07/27/2017
16-CV-2425 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
In 2015, Pero Antic and Thabo Sefolosha were teammates on the National Basketball
Association’s Atlanta Hawks. Early on the morning of April 8th that year, they were both
arrested after officers from the New York City Police Department (“NYPD”) responded to a
nightclub to investigate a stabbing (a stabbing in which Antic and Sefolosha were uninvolved).
Thereafter, they each filed civil rights suits against the City of New York and various NYPD
officers, alleging — among other things — claims of false arrest, malicious prosecution, and
excessive force. On April 5, 2017, the Sefolosha case settled; the Antic case did not. (See
Docket No. 50; see also 16-CV-2564, Docket No. 54). Instead, Defendants moved, pursuant to
Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on all of Antic’s claims.
(Docket No. 45). By “bottom-line” Order entered on June 28, 2017, the Court granted
Defendants’ motion “[f]or reasons to be provided in a forthcoming opinion.” (Docket No. 68).
This is that opinion.
BACKGROUND
The following facts, taken from materials submitted by the parties, are, unless otherwise
noted, undisputed. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). In the
early morning hours of April 8, 2015, Antic and Sefolosha were in 1 OAK, a New York City
nightclub on 17th Street near 10th Avenue, when a stabbing occurred outside the lounge.
(Docket No. 48 (“Defs.’ SOF”) ¶¶ 1-2). To secure the crime scene, the responding NYPD
officers directed those in the nightclub — including Antic, Sefolosha, and two women who were
with them — to leave and walk towards 10th Avenue. (Id. ¶¶ 6, 12). As they walked in that
direction, one of the Defendants here — NYPD Officer Paul Giacona — singled out Sefolosha,
and repeatedly directed him (how forcefully is a matter of some dispute, but ultimately
irrelevant) to keep moving. (Defs.’ SOF ¶ 11; Docket No. 62 (“Pl.’s SOF”) ¶ 9).
When the group arrived at 10th Avenue, Antic and the two women got in a car that Antic
had ordered. (Defs.’ SOF ¶ 15; Pl.’s SOF ¶¶ 7, 15). Sefolosha, however, was approached by a
homeless-looking man asking for money. (Defs.’ SOF ¶ 17). Sefolosha sought to give the man
some money, but before he could do so another Defendant here — Officer Daniel Dongvort —
escorted the man away. (Id. ¶ 18). Instead of entering the car, Sefolosha followed Officer
Dongvort and the man with his hand extended, apparently in an effort to give the homeless man
the money. (Id. ¶¶ 20-21). Moments later, a third Defendant here — Officer Richard Caster —
grabbed Sefolosha; other officers came to Officer Caster’s assistance and, after a brief scuffle
during which Sefolosha suffered injuries to his right fibula and certain ligaments, they arrested
Sefolosha. (Id. ¶¶ 23, 27-28; 16-CV-2564, Docket No. 8 (“Sefalosha Compl.”) ¶ 33).
Whether (or, at a minimum, in what ways) the final individual Defendant here — Officer
Michael O’Sullivan — assisted in Sefolosha’s arrest is to some extent unclear. He and at least
one other officer testified that he was among those who participated in Sefolosha’s arrest.
(Docket No. 46 (“Francolla Decl.”), Ex. I (“O’Sullivan Examination”), at 44; Docket No. 65
2
(“Modafferi Decl.”), Ex. B (“Rossi Testimony”), at 34). Similarly, Antic himself testified that he
approached Officer O’Sullivan to ask why the officers were “do[ing] this” to Sefolosha
(Francolla Decl., Ex. N (“Antic Examination”), at 32), and that Officer O’Sullivan was then
“dealing with Thabo.” (Id. at 34). And Sefolosha identified Officer O’Sullivan as one of the
officers who had “attacked” him prior to his arrest. (Sefolosha Compl. ¶ 32). But other officers
were less certain of Officer O’Sullivan’s role (see Docket No. 61 (“Brown Decl.”), Ex. 9
(“Caster Examination”), at 83, 91; Brown Decl., Ex. 10 (“Dongvort Examination”), at 73), and at
least one officer explicitly testified that “Officer O’Sullivan was not arresting Mr. Sefolosha,”
(Brown Decl., Ex. 17 (“Giacona Examination”), at 121). Regardless, there is no dispute that
Officer O’Sullivan was standing only a few feet away from Sefolosha when the arrest occurred
and that he was participating in the NYPD’s efforts to secure the area around the 1 OAK
nightclub. (See Pl.’s SOF ¶ 31; Caster Examination 105, 142).
Observing these events, Antic got out of the car and approached Officer O’Sullivan from
behind to ask why Sefolosha was being arrested. (Defs.’ SOF ¶ 34; Pl.’s SOF ¶ 35; Antic
Examination 32-33). To get Officer O’Sullivan’s attention, Antic touched the officer on the
shoulder. (Pl.’s SOF ¶ 35). Officer O’Sullivan describes the touch as a “grab”; Antic, however,
asserts that he merely “tapped” Officer O’Sullivan “like a normal human being,” while saying
“excuse me.” (O’Sullivan Examination 44; Pl.’s SOF ¶ 35). In any case, Officer O’Sullivan
responded by pushing Antic, who — despite being six feet, eleven inches tall and weighing 260
pounds — fell to the ground. (Defs.’ SOF ¶ 36; Pl.’s SOF ¶ 36). Antic was then arrested for
obstruction of governmental administration (“OGA”), disorderly conduct, and menacing, and
spent several hours in jail. (Pl.’s SOF ¶¶ 41-42). In contrast to Sefolosha, Antic suffered no
physical injuries as a result of the incident. (Defs.’ SOF ¶ 38; Pl.’s SOF ¶ 38).
3
Later that same day, Antic was charged, in a misdemeanor complaint signed by Officer
Giacona, with OGA, disorderly conduct, and harassment. (Brown Decl., Ex. 28). But on
September 9, 2015, all of these charges were dismissed on an oral motion by the prosecution. In
making the motion, the Assistant District Attorney stated as follows:
On April 8, 2015, the police responded to 453 West 17th Street in regards
to a stabbing outside the 1 Oak nightclub.
Upon arrival, they were ordered to secure the crime scene and remove
over a hundred people off the block. The police ordered the defendant, and
separately charged defendant, Thabo Sefolosha, to leave the area. Both
defendants refused multiple orders to disperse. The defendant Antic was arrested
after he grabbed the shoulder of a police officer, who’s attempting to arrest
Sefolosha.
The investigation revealed the police officer had probable cause to arrest
defendant Antic because he refused multiple orders to disperse, and because he
grabbed the shoulder of a police officer, who’s attempting to arrest defendant
Sefolosha.
However, the investigation also revealed that Antic was attempting to
calm the escalating situation between Sefolosha and the police officers. Officers
reported that while Sefolosha was resisting arrest, Antic was telling Sefolosha to
calm down and to do what the officers said.
Although Antic grabbed the officer’s shoulder, he did not cause any injury
to the officer. In light of these mitigating circumstances, the People move to
dismiss this case against Pero Antic in the interest of justice.
(Docket No. 49 (“Supp. Francolla Decl.”), Ex. Q (“Dismissal Tr.”), at 2-3). Judge Kenneth
McGrath granted the motion, and dismissed all of the charges against Antic. (Id. at 3). 1
On April 1, 2016, Antic filed this suit. His primary claims — brought under federal law,
state law, or both, as the case may be — were for false arrest, malicious prosecution, excessive
force, and assault and battery. (Docket No. 18 (“Am. Compl.”) ¶¶ 32-43, 53-55, 60-67). In
addition, he brought a municipal liability claim under federal law and state-law claims for
Sefolosha, who was charged with OGA, resisting arrest, and disorderly conduct, among
other things, went to trial in October 2015, and was acquitted of all charges. (Sefalosha Compl.
¶¶ 38, 42).
1
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negligent hiring, training, and supervision, and negligence against the City of New York. (Id. ¶¶
44-52, 56-59).
LEGAL STANDARDS
Summary judgment is appropriate where the admissible evidence and pleadings
demonstrate “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); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.
2012) (per curiam). A dispute qualifies as genuine “if the evidence is such that a reasonable jury
could return a judgment for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving
party bears the initial burden of demonstrating the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In moving for summary judgment
against a party who will bear the ultimate burden of proof at trial, the movant’s burden will be
satisfied if he can point to an absence of evidence to support an essential element of the
nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18
(2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); accord PepsiCo, Inc. v. Coca-Cola Co., 315
F.3d 101, 105 (2d Cir. 2002) (per curiam).
In ruling on a motion for summary judgment, all evidence must be viewed “in the light
most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs,
373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought,”
Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). To
defeat a motion for summary judgment, however, a non-moving party must advance more than a
“scintilla of evidence,” Anderson, 477 U.S. at 252, and demonstrate more than “some
5
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The non-moving party “cannot defeat the motion by relying on
the allegations in [its] 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) (citation omitted). Affidavits submitted in support of, or opposition to, summary judgment
must be based on personal knowledge, must “set forth such facts as would be admissible in
evidence,” and must show “that the affiant is competent to testify to the matters stated therein.”
Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (quoting Fed. R. Civ. P. 56(e)).
DISCUSSION
Defendants moved for summary judgment on all claims. (Docket No. 45). 2 The Court
will address each category of Antic’s claims in turn.
A. False Arrest
It is well established that a claim for false arrest, whether brought under federal or state
law, is defeated if there was probable cause to arrest the claimant — even if the offense for
which there was probable cause was not the offense actually invoked by the arresting officer.
See, e.g., Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (“[T]he
existence of probable cause is an absolute defense to a false arrest claim.”); Jaegly v. Couch, 439
F.3d 149, 154 (2d Cir. 2006) (Sotomayor, J.) (noting that, for purposes of a false arrest claim, it
is irrelevant “whether probable cause existed with respect to each individual charge, or, indeed,
any charge actually invoked by the arresting officer at the time of arrest”). Probable cause to
Antic asserts that Defendants failed to move for summary judgment with respect to all of
his claims (Docket No. 60 (“Pl.’s Opp’n”), at 5 n.1), but that is not the case. Notably, Antic
provides no explanation or support for his assertion; nor does he identify the claims Defendants
allegedly left unaddressed.
2
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arrest exists if an arresting officer has actual “knowledge or reasonably trustworthy information
of facts and circumstances that are sufficient to warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is committing a crime.” Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). “A court assessing probable cause must examine the events
leading up to the arrest, and then decide whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to probable cause.” Marcavage v.
City of New York, 689 F.3d 98, 109 (2d Cir. 2012) (internal quotation marks omitted). Probable
cause must be evaluated “on the totality of the circumstances.” Jenkins v. City of New York, 478
F.3d 76, 90 (2d Cir. 2007); see also, e.g., Manganiello v. City of New York, 612 F.3d 149, 161
(2d Cir. 2010).
To prevail on summary judgment, however, Defendants need not prove that there was
actually probable cause to arrest Antic. That is because a law enforcement officer is entitled to
qualified immunity if “arguable probable cause” existed — that is, if “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); see Kass v. City of New York, No. 15CV-2053, 2017 WL 3122289, at *3-4 (2d Cir. Jul. 24, 2017) (holding that the defendant officers
were entitled to qualified immunity because there was arguable probable cause, without reaching
the question of whether there was actual probable cause). 3 Specifically, the doctrine of qualified
Antic asserts that qualified immunity is available only with respect to his federal false
arrest claim (Pl.’s Opp’n 11), but that is wrong. See, e.g., Kass, 2017 WL 3122289, at *9
(dismissing state law false arrest claim because qualified immunity existed for the federal law
false arrest claim); Jenkins, 478 F.3d at 87 (“If the detective defendants were entitled to quality
immunity under federal law, summary judgment would be similarly appropriate on Jenkins’ state
law false arrest claim.”); Mesa v. City of N.Y., No. 09-CV-10464 (JPO), 2013 WL 31002, at *12
(S.D.N.Y. Jan. 3, 2013) (citing cases).
3
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immunity provides a complete defense where “either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.” Golino v. City of New Haven, 950 F.2d
864, 870 (2d Cir. 1991); accord Kass, 2017 WL 3122289, at *3 (“The qualified immunity
defense . . . is a broad shield that protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” (quoting Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir.
2013)). “Thus, under both New York and federal law, summary judgment dismissing a
plaintiff’s false arrest claim is appropriate if the undisputed facts indicate that the arresting
officer’s probable cause determination was objectively reasonable.” Jenkins, 478 F.3d at 88. By
contrast, if, “on the undisputed facts the officer would be unreasonable in concluding probable
cause existed, or if the officer’s reasonableness depended on material issues of fact, then
summary judgment is inappropriate for both New York and federal false arrest claims.” Id.
Applying those standards here, the Court concludes that, at a minimum, the Defendant
Officers had arguable probable cause to arrest Antic for OGA. Under New York law, a person is
guilty of OGA “when he intentionally . . . prevents or attempts to prevent a public servant from
performing an official function, by means of intimidation, physical force or interference.” N.Y.
Penal Law § 195.05. Significantly, district courts in this Circuit have interpreted the statute
broadly, holding that “merely approaching the police, or speaking during the course of a police
action, or disregarding police instructions, will support a conviction.” Rasmussen v. City of New
York, 766 F. Supp. 2d 399, 403 (E.D.N.Y. 2011). In Decker v. Campus, 981 F. Supp. 851, 858
(S.D.N.Y. 1997), for example, the Court found that officers had probable cause to arrest the
plaintiff for OGA when, after the plaintiff and his wife were in a serious car accident, the
plaintiff merely “approached a rescue worker, touched his arm, and asked him questions, while
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the worker was trying to save [the wife’s] life.” 4 Similarly, in Husbands ex rel. Forde v. City of
New York, No. 05-CV-9252 (NRB), 2007 WL 2454106, at *2, 13 (S.D.N.Y. Aug. 16, 2007), the
Court found probable cause because the sister of a suspect (who was struggling with a police
officer and believed to have a gun) took “a step toward the officers” as she was urging her
brother to stop resisting the officers’ attempt to arrest him. In rejecting plaintiff’s false arrest
claim, the Husbands Court held that the plaintiff’s actions constituted “sufficient interference” to
justify her arrest under the OGA statute. Id. at 13 (internal quotation marks omitted); see also
Rasmussen, 766 F. Supp. 2d at 403 (noting that, while the plaintiff “was not acting with an
improper motive,” her “decision to physically interfere with the conduct of the police falls within
the conduct recognized by these authorities as constituting OGA”).
Conspicuously, Antic does not discuss, let alone cite, these cases — even though they are
the principal bases for Defendants’ arguments with respect to probable cause. (Docket No. 47
(“Defs.’ Mem.”), at 7-9). Be that as it may, the decisions require dismissal of Antic’s false arrest
claim because, whether they were right or wrong in construing the OGA statute so broadly that it
would apply to “merely approaching the police, or speaking during the course of a police
action,” Rasmussen, 766 F. Supp. 2d at 403, they compel the conclusion that officers of
reasonable competence could disagree on whether the probable cause test was met here. After
all, it is undisputed that Antic established physical contact of some sort with Officer O’Sullivan
and attempted to ask him a question while Sefolosha was being arrested. (See Pl.’s SOF ¶ 35,
4
In Decker, the plaintiff also “failed to comply with a deputy sheriff’s instructions to ‘step
back’ from the scene of an accident, and physically broke away from the sheriff, who had been
called to assist in a rescue attempt.” 981 F. Supp. at 858. The Court’s opinion, however, makes
clear that it viewed plaintiff’s comparatively more innocuous interactions with the rescue worker
(approaching him, touching his arm, and asking him questions) as an adequate and independent
basis to arrest the plaintiff for OGA. See id. (“In so doing, plaintiff obstructed the duties of two
government officials and risked delaying the rescue of his wife.” (emphasis added)).
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36). It is also undisputed that Officer O’Sullivan was only a few feet away from Sefolosha’s
arrest and that he was, at a minimum, helping to secure and evacuate a crime scene immediately
following a stabbing. (Id. ¶¶ 12, 31). And finally, it is undisputed that Antic’s interference with
Officer O’Sullivan caused the Officer to turn, thus diverting his attention from whatever he was
doing in connection with his duties at the crime scene. (Id. ¶ 36). Given these facts, and the case
law discussed above, the Court cannot — and does not — conclude that “no reasonably
competent officer” would have acted as the Defendant Officers did in arresting Antic. Figueroa
v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016); cf. Kass, 2017 WL 3122289, at *6 (finding arguable
probable cause to arrest the plaintiff for OGA because he refused to obey the defendant police
officers’ repeated orders to move along and, after one officer placed his hand on plaintiff’s
elbow, the plaintiff told the officer to “get [his] hands off” of him and pulled away).
Antic’s principal argument against summary judgment is that there is a factual dispute
with respect to whether Officer O’Sullivan was assisting in Sefolosha’s arrest when his attention
was diverted by Antic’s touch. (Docket No. 60 (“Pl.’s Opp’n”), at 9-10). To the extent the
record reveals a factual dispute, however, it is not a material one. Notably, Antic cites no
authority for the proposition that to be “performing an official function” within the meaning of
the OGA statute, an officer must be personally or physically engaged in actually making an
arrest. N.Y. Penal Law § 195.05. To the contrary, case law makes plain that an officer need not
be directly involved in effectuating an arrest for the statute to be properly invoked. In Husbands,
for example, the Court found probable cause based on the plaintiff’s interference with an officer
who was “kneeling alongside” the arrestee, but was “not actively arresting him.” 2007 WL
2454106, at *2. And many OGA cases, of course, do not involve arrest situations at all. See,
e.g., Kass, 2017 WL 3122289, at *4 (finding arguable probable cause where the officers were
10
“lawfully regulating pedestrian traffic and addressing any congestion or security issues relating
to” a protest); Ali v. City of New York, No. 11-CV-5469 (LAK), 2012 WL 3958154, at *2
(S.D.N.Y. Sept. 5, 2012) (finding probable cause based on the plaintiff’s refusal to disperse from
protest grounds); Richardson v. N.Y.C. Health & Hosp. Corp., 05-CV-6278 (RJS), 2009 WL
804096, at *2-3, *9 (S.D.N.Y. Mar. 25, 2009) (finding probable cause where the plaintiff had
reached into a police officer’s vehicle to remove a clipboard); Decker, 981 F. Supp. at 858
(finding probable cause because the plaintiff “approached a rescue worker” trying to save his
wife’s life after a car accident). Whether or not Officer O’Sullivan was personally or physically
engaged in arresting Sefolosha at the time Antic touched him is immaterial; either way, he was
“performing an official function” within the meaning of the OGA statute by helping to evacuate
and secure a chaotic scene in the immediate aftermath of a violent crime. See, e.g., Kass, 2017
WL 3122289, at *4 (holding that officers who were “ensur[ing] crowd control and safety” near a
protest were performing an “official function” for the purpose of the OGA statute and noting that
the “government certainly has a significant interest in keeping its public spaces safe and free of
congestion”).
In any event, there is less of a factual dispute than Antic suggests and arguably no factual
dispute at all. Officer O’Sullivan testified unambiguously that he and other officers “were trying
to put [Sefolosha] in cuffs and the other defendant, Mr. Antic, grabbed me on my right shoulder
as we were trying to effect the arrest, diverting my attention from what I was trying to do.”
(O’Sullivan Examination 44). That account is corroborated by Officer Jordan Rossi (who was
named as a defendant by Sefolosha, but is not named as a defendant here), who testified that
Antic grabbed an officer’s shoulder and that the officer (now known, of course, to be Officer
O’Sullivan) was “attempting to effect an arrest on Mr. Sefolosha” at the time. (Rossi Testimony
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34). Even more notably, Officer O’Sullivan’s account is corroborated by the accounts of
Sefolosha; Cherisse Porter, one of the women with Sefolosha and Antic on the night in question;
and Antic himself. Sefolosha identified Officer O’Sullivan as one of the officers who “attacked”
him prior to his arrest. (Francolla Decl., Ex. A ¶ 32). Porter testified that Antic went “over
toward Thabo, try[ing] to interfere with the pulling and the tugging.” (Brown Decl., Ex. 5, at
34). And Antic himself all but confirmed that Officer O’Sullivan was involved in arresting his
teammate when he explained that he touched Officer O’Sullivan’s shoulder in order to ask him
why the officers were “do[ing] this” to Sefolosha (Antic Examination at 32), and when he noted
that another officer held him after he was pushed to the ground because Officer O’Sullivan was
“dealing with Thabo [Sefolosha].” (Id. at 34).
In the face of this consistent testimony, Antic points to the accounts of Officers
Dongvort, Caster, and Giacona as evidence of a factual dispute. (Pl’s Opp’n 8-11). But Officer
Dongvort’s testimony was anything but inconsistent: Before the Civilian Review Control Board,
he stated that four to seven officers were engaged in the attempt to apprehend Sefolosha and that
Antic put his hand on one of those officers. (Modaferri Decl., Ex. C, at 13, 17). And while he
could not remember at his deposition precisely which other officers did what aside from Officers
Caster and Giacona, he testified that “a number” of officers were “right in” the area of the arrest,
that he “believe[d]” Officer O’Sullivan was one of them, and that “[e]veryone . . . in that area”
— including the Officer touched by Antic (whose identity he could not remember) — “was . . .
involved” in Sefolosha’s arrest. (Dongvort Examination 73, 120). Similarly, while Officer
Caster acknowledged that he did not know if Officer O’Sullivan “got physical” with Sefolosha,
he testified that Officer O’Sullivan was only one or two feet away from the scuffle and that, at a
minimum, the other officer “was assisting by being there as backup.” (Caster Examination 105-
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06; see also id. at 82-83, 141-42). Officer Giacona’s testimony is perhaps the most helpful to
Antic, as he did state at one point in his deposition that “Officer O’Sullivan was not arresting Mr.
Sefolosha.” (Giacona Examination at 121). From context, however, it is not clear whether he
meant anything more than that Officer O’Sullivan was not physically involved in effectuating
Sefolosha’s arrest; and he also indicated that he did not know precisely what Officer O’Sullivan
was doing immediately before he saw Antic pushed “out the corner of [his] eye.” (Id. at 118-22).
At best, therefore, Antic establishes that some witnesses did not see or do not recall precisely
what Officer O’Sullivan’s role was in the arrest of Sefolosha. But that does not amount to a
factual dispute with respect to the question of whether Officer O’Sullivan was involved in some
capacity in Sefolosha’s arrest. And more broadly, Antic points to nothing in the record
contradicting the proposition that Officer O’Sullivan was in the immediate area and performing
an “official function” at the time that Antic approached and touched him.
In the alternative, Antic argues that summary judgment is inappropriate because OGA is
a specific intent crime and the Defendant Officers lacked proof that he had the necessary intent
(because he did not). (Pl.’s Opp’n 6-7). Significantly, however, “because the practical restraints
on police in the field are greater with respect to ascertaining intent . . . , the latitude accorded to
officers considering the probable cause issue in the context of mens rea crimes must be
correspondingly great.” Kass, 2017 WL 3122289, at *6 (quoting Zalaski, 723 F.3d at 393); see,
e.g., McGuire v. City of New York, 142 F. App’x 1, 3 (2d Cir. 2005) (summary order) (“[W]hen
an officer has evidence that a defendant has engaged in conduct proscribed by law . . . he has
probable cause to arrest the person even without specific evidence on the elements of knowledge
and intent that will have to be proved to secure a conviction at trial.” (citing cases)). Thus, it is
not surprising that Husbands, Rasmussen, and the cases upon which they relied “all . . . involved
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situations where the plaintiff was not acting with an improper motive . . . , but rather, in each of
their views, to assist or alleviate a situation which they believed required their intervention.”
Rasmussen, 766 F. Supp. 2d at 403; Husbands, 2007 WL 2454106, at *2 (finding probable cause
for a violation of the OGA statute even though the plaintiff was “urg[ing] her brother to comply”
with the officers’ demands). Put simply, “[a]n action for damages under § 1983 cannot turn on
the subjective evaluation of a plaintiff as to whether her intervention is morally or legally
justified.” Rasmussen, 766 F. Supp. 2d at 403.
For these reasons, the Court cannot say that, faced with similar circumstances, “no officer
of reasonable competence could have” concluded that Antic had the requisite intent to violate the
OGA statute. Kass, 2017 WL 3122289, at *3 (internal quotation marks omitted); see also
Decker, 981 F. Supp. at 860 (“We need not reach whether plaintiff had the requisite intent to
have violated the statute . . . because we hold that it was reasonable for [the defendant] to believe
that plaintiff had obstructed governmental administration.”). To be sure, assuming the truth of
Antic’s explanation that he was merely trying to defuse the situation — as the Court must — his
motive was certainly laudable. But that does not mean that he lacked the intent to interfere with
Officer O’Sullivan — or, more to the point, that Officer O’Sullivan acted in an objectively
unreasonable manner in believing that he did. After all, Antic had been with Sefolosha, who was
at that very moment engaged in a scuffle with the police. And Antic himself acknowledged that
he was seeking to intervene — that he had made contact with Officer O’Sullivan in order to ask
him why the officers were “do[ing] this” to Sefolosha. (Antic Examination at 32). 5
5
Antic takes issue with Defendants’ passing reference to the “collective knowledge”
doctrine (see Pl.’s Opp’n 10), pursuant to which all information known to one officer can be
imputed to all other officers involved in the same investigation. See United States v. Colon, 250
F.3d 130, 135 (2d Cir. 2001) (describing the “collective knowledge” doctrine). But there is no
14
In short, the Court need not determine whether there was probable cause to arrest Antic
because, at a minimum, the Defendant Officers had “arguable” probable cause to arrest him for
OGA and thus are entitled to qualified immunity with respect to his claims of false arrest. See,
e.g., Benn v. Kissane, 510 F. App’x 34, 38 (2d Cir. 2013) (summary order) (noting that the Court
“need not reach the issue of whether probable cause actually existed . . . because the information
known to the officers at the relevant times plainly gave rise to an ‘arguable’ case that the
probable cause standard was satisfied in these circumstances”). It follows that his false arrest
claims — under both federal and state law — must be and are dismissed. See, e.g., Jenkins, 478
F.3d at 87 (“If the detective defendants were entitled to qualified immunity under federal law,
summary judgment would be similarly appropriate on [plaintiff’s] state law false arrest claim.”).
B. Malicious Prosecution
The Court turns to Antic’s malicious prosecution claims. To prevail on a malicious
prosecution claim under federal or state law, a plaintiff must prove, among other things, that the
underlying proceedings terminated in his favor. See, e.g., Manganiello, 612 F.3d at 161. If the
plaintiff was acquitted at trial (as Sefolosha was), that requirement is plainly satisfied. “Where
the prosecution did not result in an acquittal,” however, “it is deemed to have ended in favor of
the accused, for these purposes, only when its final disposition is such as to indicate the
innocence of the accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997); accord Rothstein
v. Carriere, 373 F.3d 275, 285-86 (2d Cir. 2004). Notably, absent evidence that the dismissal
was prompted by, for example, proffered evidence of innocence, “dismissals by the prosecution
‘in the interests of justice’ under N.Y. Crim. Pro. L. § 170.40, are generally considered not to be
need to rely on the collective knowledge doctrine here (and it is not clear that Defendants
actually do), as Officer O’Sullivan himself arrested Antic. (See Francolla Decl., Ex. J, at 15).
15
dispositions in favor of the accused.” Murphy, 118 F.3d at 949 (citing state-law cases); accord
Lynch v. Suffolk Cnty. Police Dep’t, Inc., 348 F. App’x 672, 674 (2d Cir. 2009) (summary order);
Coleman v. City of New York, No. 11-CV-2394 (ENV) (RLM), 2016 WL 4184035, at *3
(E.D.N.Y. Feb. 25, 2016); cf. Hankins v. Great Atl. & Pac. Tea Co., 208 A.D. 2d 111, 115-16
(N.Y. App. Div. 1995) (holding that the trial court had erred in dismissing a malicious
prosecution claim where the plaintiff alleged that the dismissal “in the interests of justice” was
prompted by her uncontroverted alibi). “The prevailing view is that” if a prosecution was
abandoned as “the result of a compromise to which the accused agreed, or an act of mercy
requested or accepted by the accused, . . . it is not a termination in favor of the accused for
purposes of a malicious prosecution claim.” Murphy, 118 F.3d at 949.
Generally, “the issue of whether a given type of termination was favorable to the accused
is a matter of law for the court. If, however, there is a question as to the nature of the
circumstances leading to that termination, that question is one for the trier of fact.” Id. at 950;
see also Russo v. State of N.Y., 672 F.2d 1014, 1020 (2d Cir. 1982) (noting that a district court
“may decide the issue as a matter of law” where the plaintiff fails to “present evidence of the
circumstances under which the criminal proceeding was terminated” or there is no dispute as to
the reasons for the termination). In either case, the inquiry is “fact-specific” and turns on “the
unique circumstances of the case.” Coleman, 2016 WL 4184035, at *3; cf. Cantalino v. Danner,
96 N.Y.2d 391, 396 (N.Y. 2001) (noting that there is no “per se rule that a dismissal in the
interest of justice can never constitute a favorable termination”). “The answer to whether the
termination is indicative of innocence depends on the nature and circumstances of the
termination; the dispositive inquiry is whether the failure to proceed impl[ies] a lack of
16
reasonable grounds for the prosecution.” Murphy, 118 F.3d at 948 (internal quotation marks
omitted).
In this case, there is no dispute that the charges against Antic were dismissed in the
interests of justice pursuant to Section 170.40 of New York’s Criminal Procedure Law. (See
Pl.’s Opp’n 12). Further, the only evidence in the record of the reasons for that dismissal is the
statement of the prosecutor in making the oral motion to dismiss, which makes plain that the
dismissal was due to “an act of mercy” and not due to “a lack of reasonable grounds for the
prosecution.” Murphy, 118 F.3d at 948-49 (internal quotation mark omitted). She specifically
stated that the investigation had “revealed” that Officer O’Sullivan “had probable cause to arrest
defendant Antic because he refused multiple orders to disperse, and because he grabbed the
shoulder of a police officer, who [was] attempting to arrest defendant Sefolosha.” (Dismissal Tr.
2-3). However, she continued, dismissal was “in the interest of justice” because of “mitigating
circumstances” — namely, because the investigation had also revealed that “Antic was
attempting to calm the escalating situation between Sefolosha and the police officers” and that
Antic “did not cause any injury to the officer.” (Id.). Antic tries to spin that explanation to be a
concession that the prosecution lacked evidence of the “specific intent required to prove the
case” (Pl.’s Opp’n 12-13), but that spin is “rooted in the erroneous assumption that good motive
for committing a crime is inconsistent with criminal intent.” United States v. Edwards, 101 F.3d
17, 19 (2d Cir. 1996) (internal quotation marks omitted); see also, e.g., United States v. Montour,
944 F.2d 1019, 1028 (2d Cir. 1991) (noting that “good motive” is not necessarily “evidence of
lack of specific intent”).
Alternatively, Antic downplays the significance of the prosecutor’s statement by noting
that, “[r]egardless of what position the District Attorney’s office takes, it is the Court that makes
17
the decision on the dismissal of the charges.” (Pl.’s Opp’n 13). But that argument presumes that
the favorable-termination inquiry turns on what was in the mind of the judge who formally
dismissed the charge or charges, and Antic cites no authority suggesting that is the case. To the
contrary, the case law makes clear that the focus of the inquiry is on the “cause of the
abandonment” by the prosecution. Murphy, 118 F.3d at 949; see also id. at 948 (noting that “the
dispositive inquiry” turns on the reasons for the prosecution’s “failure to proceed”). In any
event, it is Antic’s burden to prove that the proceedings were terminated in his favor and thus, to
survive summary judgment, he had to point to evidence in the record suggesting that the charges
“were dismissed because evidence existed suggesting [his] innocence.” Coleman, 2016 WL
4184035, at *4. As he does not do so, his malicious prosecution claims fail as a matter of law.
See id. (dismissing malicious prosecution claims under nearly identical circumstances).
C. Excessive Force and Assault and Battery
Antic’s final claims against any of the Officer Defendants are for excessive force, under
federal law, and assault and battery, under state law. Courts measure such claims against a
standard of “objective reasonableness,” which calls for “a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989)
(internal quotation marks omitted); see also Humphrey v. Landers, 344 F. App’x 686, 688 (2d
Cir. 2009) (noting that “the essential elements of excessive force and state law assault and
battery claims are substantially identical” (internal quotation marks and alterations omitted)).
More specifically, a court must consider the totality of the circumstances, “including the severity
of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers
or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.”
18
Graham, 490 U.S. at 396. Significantly, “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. (internal
quotation marks and citation omitted). Instead, the force used by the law enforcement officer
must generally be more than de minimis for a claim to be actionable. See, e.g., Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (“[A] de minimis use of force will rarely suffice to
state a constitutional claim.” (emphasis omitted)). Relatedly, a “[d]e minimis injury can serve as
conclusive evidence that de minimis force was used.” Washpon v. Parr, 561 F. Supp. 2d 394,
407 (S.D.N.Y. 2008); see also Yang Feng Zhao v. City of N.Y., 656 F. Supp. 2d 375, 390
(S.D.N.Y. 2009) (noting that “the extent and nature of the injury, if any, is typically relevant in
an arrest context . . . because it is probative of the amount and type of force actually used by the
arresting officers, and that in turn is likely to reflect on the reasonableness of that force”).
Applying those standards here, Antic’s excessive force claim fails as a matter of law.
Notably, he alleges only that Officer O’Sullivan, who is smaller than he is, pushed him (and with
only “one arm” at that). (Brown Decl., Ex. 1, at 27). Moreover, it is not clear whether the push
alone caused him to fall or whether he then “tripped.” (Id. at 27). And in any event, Antic
suffered no injury as a result of the push. (Antic Examination 51). Finally, the incident occurred
when Antic came upon Officer O’Sullivan from behind — surprising him during a late-night,
tense, and chaotic situation in which the police were attempting to secure the scene of a stabbing
and to make an arrest. With 20/20 hindsight — and the knowledge that Antic’s motives may
well have been pure — Officer O’Sullivan’s push could perhaps be viewed as unreasonable. But
the Court must “make allowance for the fact that police officers are often forced to make splitsecond judgments — in circumstances that are tense, uncertain, and rapidly evolving — about
the amount of force that is necessary in a particular situation.” Tracy v. Freshwater, 623 F.3d
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90, 96 (2d Cir. 2010) (quoting Graham, 490 U.S. at 397). Making that allowance here, the Court
concludes that no reasonable jury could find that Officer O’Sullivan’s force was objectively
unreasonable. Indeed, “to conclude that a ‘push’ that does not cause the slightest of physical
injuries to the plaintiff is nonetheless an actionable use of excessive force would be to hold that
any physical contact by an arresting officer with an arrested person is actionable.” Roundtree v.
City of New York, 778 F. Supp. 614, 622 (E.D.N.Y. 1991).
D. Claims Against the City
That leaves Antic’s claims against the City. His federal claim, brought pursuant to
Monell v. Department of Social Services, 436 U.S. 658 (1978), falls short, both because he fails
to allege an underlying constitutional violation, see, e.g., Schultz v. Inc. Vill. of Bellport, 479 F.
App’x 358, 360 (2d Cir. 2012) (summary order), and because, conclusory allegations aside, he
fails to allege that any violation resulted from a municipal policy, custom, or practice, see
Monell, 436 U.S. at 690-91; see also City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985)
(plurality opinion) (“Proof of a single incident of unconstitutional activity is not sufficient to
impose liability under Monell . . . .”); Baines v. City of New York, No. 10-CV-9545 (JMF), 2014
WL 1087973, at *3 (S.D.N.Y. Mar. 19, 2014) (“[A]bsent extremely severe circumstances, a
plaintiff must allege facts — other than those giving rise to individual liability — supporting an
inference that the municipality has an unconstitutional policy.”). 6 And Antic failed to defend his
Antic submits a purportedly expert report authored by Walter Signorelli in support of his
Monell claim. (Brown Decl., Ex. 25; Pl.’s Opp’n 17). But the report was apparently not
produced during discovery (Docket No. 64 (“Defs.’ Reply”), at 10), so the Court will not rely on
it. See, e.g., Cranston Print Works Co. v. J. Mason Prods., No. 96-CV-9382 (DLC), 1998 WL
993657, at *3 (S.D.N.Y. July 27, 1998) (finding that the defendant could not rely on an affidavit
that was not produced during the period for expert discovery). In any event, as another court has
held with respect to a nearly identical report from the same purported expert, the report provides
no basis for a Monell claim. See De Michele v. City of New York, No. 09-CV-9334 (PGG), 2012
WL 4354763, at *21 (S.D.N.Y. Sept. 24, 2012) (“Plaintiff cites to a report prepared by his
6
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state-law claims against the City — for negligent hiring, training, and supervision and for
negligence (Am. Compl. ¶¶ 48-52, 56-59) — so they are deemed abandoned. See Chamberlain
v. City of White Plains, 986 F. Supp. 2d 363, 392 (S.D.N.Y. 2013) (“A court may, and generally
will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s arguments that
the claim should be dismissed.”). In any event, a negligent hiring, training, and supervising
claim requires proof that the alleged wrongful conduct occurred “outside the scope of []
employment,” Velez v. City of New York, 730 F.3d 128, 137 (2d Cir. 2013), and there is no
dispute here that the officers were acting within the scope of their employment. (Am. Compl. ¶
58 (conceding that the Defendant Officers “were acting within the course and scope of their
employment”)). And “[u]nder New York law, a plaintiff may not recover under general
negligence principles for a claim that law enforcement officers failed to exercise the appropriate
degree of care in effecting an arrest or initiating a prosecution.” Bernard v. United States, 25
F.3d 98, 102 (2d Cir. 1994).
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment was GRANTED,
and all of Antic’s claims were dismissed. The Clerk of Court is directed to enter judgment in
favor of Defendants and to close the case.
SO ORDERED.
Dated: July 27, 2017
New York, New York
expert, Walter Signorelli, asserting that a number of violations of police procedures and practices
took place in connection with Plaintiff’s arrest. This report does not address the training actually
provided to NYPD officers, however, and accordingly does not support Plaintiff’s Monell
claim.” (citation omitted)).
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