Claims of Excessive Force, Assault and Battery Against The New York City Police Department and County of Westchester Police Department Survive Defendants’ Motion For Summary Judgment

October 19, 2012

PRESS RELEASE – FOR IMMEDIATE RELEASE

Frank De Michele v. City of New York, County of Westchester, et al.

United States District Court for the Southern District of New York

Civil Action No.: 09-CV-9334

On September 24, 2012, Hon. Paul G. Gardephe, in the United State District Court for the Southern District of New York, held that there are “material issues of fact” concerning Plaintiff Frank DeMichele’s claims of excessive use of force, assault and battery, by officers employed by the New York City Police Department (“NYPD”) and the Westchester County Department of Public Safety (“Westchester”).  The trial against NYPD Deputy Inspector Timothy Bugge, NYPD Captain Deodat Urprasad, and Westchester Police Officers Brian P. Tierney, George O. Ruiz and Christian M. Gutierrez, is set for December 10, 2012.

On November 9, 2010, Mr. DeMichele filed an amended complaint in the United States District Court for the Southern District of New York.  The complaint alleged that in a case of true mistaken identity, on January 18, 2009, police officers employed by the NYPD and Westchester, forcibly removed Mr. DeMichele from his home in the Bronx, and beat him.  The complaint alleged that the police officers were acting under the erroneous belief that Mr. DeMichele had led them on a high-speed chase from Westchester County into the Bronx, assaulted a police officer by ramming his vehicle into the police officer’s vehicle, and robbed a civilian.  In fact, the police officers were seeking Mr. DeMichele’s landlord’s son, who was hiding in Mr. DeMichele’s apartment.

The complaint alleged a cover-up by officers employed by defendants, including, the failure of a Westchester night vision video camera to record the arrest, the failure of a NYPD sergeant to record Mr. DeMichele’s injuries when he was brought to the 45^th Precinct Station House, and the failure of that same sergeant to record the names and/or identities of emergency medical personnel who rendered medical treatment to Mr. DeMichele, while he was held there in police custody.

In deciding the motions for summary judgment, the Court held that “there are material issues of fact concerning both the extent to which Plaintiff resisted arrest and the degree of force that was used in effecting Plaintiff’s arrest.”  Furthermore, the Court denied Defendants’ motions to dismiss, even though Mr. DeMichele was not able to identify each of the officers who allegedly used force on him.  The Court held that Deputy Inspector Bugge, and Westchester Police Officers Tierney, Ruiz and Gutierrez, may be liable for the excessive use of force, because they “were concededly all present when the alleged, repeated acts of abuse took place, they had an opportunity to intervene.”  Finally, the Court denied the County of Westchester’s argument that its officers were entitled to qualified immunity, because “if, as [Mr. DeMichele] and other witnesses have testified, [Mr. DeMichele] was not resisting arrest but was nonetheless beaten, the officers could not have reasonably believed that their actions were lawful.”

The Court denied Plaintiff’s claims of false arrest and malicious prosecution, holding that Defendants had probable cause for the arrest and prosecution of Plaintiff.

The Plaintiff is represented by Todd J. Krouner and Diana M. Carlino of the Law Office of Todd J. Krouner in Chappaqua, New York. Mr. Krouner and Ms. Carlino represent victims who are subjected to civil rights violations, including false arrest and police brutality in New York.

A copy of the Court’s decision is available here.  For further information, please contact Todd J. Krouner or Diana M. Carlino at (914) 238-5800.