Case 1:17-cv-03379 Document 1 Filed 05/05/17 Page 1 of 15

Robert L. Herbst (RH 8851)
HERBST LAW PLLC
420 Lexington Avenue, Suite 300
New York, New York 10170
(646) 543-2354
rherbst@herbstlawny.com
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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A.D., a child, by her natural mother, J.D.,
Plaintiff,

COMPLAINT

-againstJURY TRIAL DEMANDED
THE CITY OF NEW YORK, and
New York Police Lieutenant PAUL GAGLIO,
individually and in his official capacity,

ECF CASE

Defendants.
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Plaintiff A.D., a child by her mother and next friend, J.D., by their attorneys,
HERBST LAW PLLC, as and for their complaint against defendants CITY OF NEW YORK
[“CITY”] and Police Lieutenant PAUL GAGLIO [“GAGLIO”], allege as follows:
INTRODUCTION
1.

This is a civil rights action, seeking compensatory damages, punitive damages, and

attorney’s fees and costs.
2.

On February 6, 2015, plaintiff A.D., then an 11-year-old six-grade schoolgirl of

color and Hispanic ethnicity, was falsely seized, arrested, physically abused, assaulted, battered,
placed in a chokehold around the neck and thrown to the ground by defendant New York Police
Lieutenant PAUL GAGLIO, all without lawful cause or justification, while going home from

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school, in Bronx County. A.D. responded affirmatively and peacefully when GAGLIO
summoned her to approach him, but GAGLIO physically and suddenly grabbed her by the arm,
and roughly pulled and pushed her, frightening her. He then grabbed her around the neck and
threw her to ground, handcuffed her, arrested her and transported her to the 44th Precinct, where
she was searched, kept in tight handcuffs, had her personal, private property seized, and was
detained for an excessive period of time until her parents could come to the precinct.
3.

In June 2015, one month after A.D.’s parents filed a Notice of Claim against the

CITY in May 2015 in connection with GAGLIO’s unlawful conduct, defendants CITY and
GAGLIO retaliated against A.D. by commencing and maintaining a juvenile delinquency petition
against her, falsely and maliciously charging her with criminal possession of stolen property and
resisting arrest. The juvenile delinquency case was dismissed in December 2015.
4.

In November 2015, the Civilian Complaint Review Board [“CCRB”] substantiated

A.D.’s complaint against GAGLIO for the unjustified use of force against her, finding that
GAGLIO wrongfully used a chokehold against her. The CCRB also found evidence suggesting
that GAGLIO provided a false official statement in support of the juvenile delinquency petition
earlier commenced by defendants against A.D. The CCRB recommended to the Police
Commissioner that formal disciplinary specifications and charges be commenced against
GAGLIO. Upon information and belief, no such charges have been commenced by the defendant
CITY against GAGLIO.
5.

As a result of defendants’ misconduct in this traumatic incident, this child suffered

and will continue to suffer physical injury and substantial pain in her wrists and hands from the

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tight handcuffing and serious and probably permanent mental and emotional anguish, distress and
suffering, loss of enjoyment of life, and special damages.
JURISDICTION AND VENUE
6.

This civil rights action, seeking compensatory damages, punitive damages and

attorney’s fees and costs, is brought pursuant to 42 U.S.C. §§ 1983 and 1988, the First, Fourth,
Fifth and Fourteenth Amendments of the United States Constitution, Article 1, §§ 6, 11 and 12 of
the New York State Constitution, and New York state law.
7.

Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343 and the aforementioned

statutory and constitutional provisions.
8.

Plaintiff further invokes the pendent and supplemental jurisdiction of this Court

under 28 U.S.C. § 1367 to hear and decide claims arising under state law.
9.

Venue is properly laid in this District under 28 U.S.C. § 1391(b), this being the

District in which one or more of the defendants resides, and in which a substantial part of the
events or omissions giving rise to the claims occurred.
PARTIES
10.

Plaintiff A.D. is and was at all times material herein a citizen of

the United States and the City and State of New York and Bronx County. At the time of the
events leading to this complaint, she was 11 years of age, enrolled in the sixth grade, and a child
of color and Hispanic ethnicity. She appears here by her natural mother and next friend, plaintiff
J.D.

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11.

Plaintiff J.D. and R.D. are and were at all time material herein citizens of the

United States and the City and State of New York and Bronx County. They are the parents of
A.D. and are of Hispanic ethnicity.
12.

Defendant THE CITY OF NEW YORK is and was, at all times material herein, a

municipal corporation organized and existing under and by virtue of the laws of the State of New
York. The CITY maintained and operated the New York City Police Department (“NYPD”),
which acted as the CITY’s agent in the area of law enforcement and for which the CITY is and
was responsible. The CITY assumed the risks incidental to the maintenance of a police force and
the employment of police officers and lieutenants, as said risks attach to the public consumers of
the services provided by the NYPD.
13.

Defendant LT. PAUL GAGLIO, a white male, is and was at all time material

herein, employed as a police lieutenant by the defendant CITY, and was a duly appointed, agent,
servant and employee of the CITY and the NYPD. He is being sued in his individual and official
capacities.
14.

At all relevant times herein, defendant GAGLIO was acting under color of state

law and in the course and scope of his duties and functions as a police lieutenant, and as an agent,
servant and employee of the defendant CITY, and otherwise performed and engaged in conduct
incidental to the performance of those duties and functions. At all relevant times herein,
defendant GAGLIO was acting for and on behalf of the defendant CITY, with the power and
authority vested in him as a police lieutenant and as an agent, servant and employee of the
defendant CITY.

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FACTS COMMON TO ALL CLAIMS
15.

On or about February 6, 2015, A.D. was a sixth-grade student at the New

Millennium Business Academy Middle School, 1000 Teller Avenue, Bronx, New York.
16.

When school was over, at approximately 2:20 p.m., A.D. and a schoolmate left to

walk a few blocks to a bus stop where she normally took the 35 MTA bus home.
17.

On the way, at the intersection of 165th and Clay, they observed some boys from

the school throwing snowballs at a passing car.
18.

The driver of the car got out to yell at the boys.

19.

The driver put one of the boys in a headlock.

20.

The driver then chased some of the boys from 165th and Clay to 167th and Clay, in

the same direction that A.D. was walking to the bus stop.
21.

When A.D. got to 167th and Clay, she saw that the driver had accosted some of the

22.

She heard the driver say to give him back his phone or he would call the police,

boys.

and heard a boy say he did not have the phone.
23.

A.D. and her schoolmate were bystanders who had nothing to do with either the

snowballs or the phone.
24.

A.D. and her schoolmate subsequently observed the police arriving.

25.

A.D. and her schoolmate argued about whether to stay and watch or to leave the

26.

A.D’s schoolmate wanted to stay and watch what happened.

27.

A.D. wanted to leave and continue to the bus stop to catch the bus home.

scene.

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28.

A.D. called her schoolmate an idiot for being nosey and wanting to stay, and then

ran along 167th from Clay toward Teller, toward the bus stop, smiling and laughing, chased by her
schoolmate until they approached the intersection of 167th and Teller.
29.

After crossing the street, A.D. was accosted by the driver, who demanded that she

give him his phone.
30.

A.D. told him that she did not have his phone.

31.

A.D. was then approached by defendant GAGLIO.

32.

As he crossed the intersection of 167th and Teller and approached A.D., defendant

GAGLIO and motioned and told her to come to him.
33.

A.D. responded peaceably and affirmatively to defendant GAGLIO’s direction, by

turning toward and stepping back toward him as he continued to approach her.
34.

As they got within arm’s length of each other, instead of engaging her verbally, or

asking her anything, like her name, or about the phone, defendant GAGLIO reached out and
forcibly seized and arrested A.D., grabbing her by the arm and pulled and pushed her roughly
toward him.
35.

Defendant GAGLIO’s forcible physical touching, seizure and arrest of A.D. was

unreasonable, unnecessary, without legal justification, and unlawful.
36.

Defendant GAGLIO did not announce to A.D. that she was under arrest, or what

crime(s) or offense(s) for which he was arresting her.
37.

A.D. tried to engage defendant GAGLIO in conversation and to protest, telling him

to “wait, wait.”

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38.

But defendant GAGLIO was not interested in conversation and did not release

A.D.’s arm.
39.

Instead, defendant GAGLIO grabbed A.D.’s other arm and with both his hands

pushed A.D. backwards, further frightening her.
40.

Defendant GAGLIO then grabbed A.D. around the neck and threw her to ground.

41.

Defendant GAGLIO then rolled A.D. over on her stomach.

42.

Defendant GAGLIO then tightly handcuffed A.D. behind her back, while still on

the ground, while her schoolmate and other bystanders watched.
43.

This all was totally unnecessary, gratuitous, malicious and unlawful police

violence, visited upon an 11-year-old school girl of color by a white police lieutenant.
44.

Defendant GAGLIO then roughly picked A.D. up off the ground, put her in a

police car, and transported her to the 44th Precinct, where she was searched, kept in tight
handcuffs, had her personal, private property seized, and was detained for hours until her parents
could come to the precinct.
45.

Defendant GAGLIO so tightly handcuffed A.D. that she could feel it against the

bones of her wrist.
46.

A.D. remained handcuffed for all the hours she was at the precinct except for when

she was searched.
47.

The tight handcuffs left marks on A.D.’s wrists.

48.

A.D.’s arrest was referred to the Family Court’s probation department, which

supervises an adjustment process.

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49.

The adjustment process requires a child to attend programs based on the

assumption that the child is guilty of the criminal offense for which she has been arrested.
50.

Thinking that such punishment was not good for a young child innocent of

wrongdoing, J.D. and R.D. declined the adjustment process.
51.

Thereafter, for months, the case lay dormant without charges, leading J.D. and

R.D. to believe that the prosecutor, from the office of the Corporation Counsel of the defendant
CITY, had declined to prosecute.
52.

On May 1, 2015, within the required 90-day statutory period, A.D., J.D. and R.D.

served a Notice of Claim upon the defendant CITY OF NEW YORK, claiming, inter alia, that
A.D. was falsely seized, arrested, physically abused, assaulted and battered by a police officer of
the defendant CITY.
53.

On or about June 8, 2015, defendants CITY and GAGLIO commenced a juvenile

delinquency proceeding against A.D. in the Family Court of the State of New York, Bronx
County, alleging that she committed the crimes of Criminal Possession of Stolen Property in the
Fifth Degree and Resisting Arrest.
54.

That proceeding was commenced and maintained falsely and maliciously and

without legal justification in order to cover defendant GAGLIO’s misconduct and to retaliate
against A.D. and her parents for filing the Notice of Claim.
55.

In order to convict a child in a juvenile delinquency proceeding for Criminal

Possession of Stolen Property in the Fifth Degree in violation of New York Penal Law § 165.40,
the defendant CITY must prove beyond a reasonable doubt that such person knowingly possessed

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stolen property, with intent to benefit herself or a person other than an owner thereof or to impede
the recovery by an owner thereof.
56.

In order to convict a child in a juvenile delinquency proceeding for Resisting

Arrest in violation of New York Penal Law § 205.30, the defendant CITY must prove beyond a
reasonable doubt that such person intentionally prevented or attempted to prevent a police officer
from effecting an authorized arrest of herself or another person.
57.

Defendant GAGLIO’s arrest of A.D. for the crime of Criminal Possession of

Stolen Property in the Fifth Degree was not an authorized arrest because defendant GAGLIO
lacked probable cause to believe that A.D. either possessed the driver’s phone or knew that the
phone was stolen, or that she had had the intent to benefit herself or a person other than the owner
or to impede the recovery by the driver of his phone.
58.

Defendant GAGLIO also lacked probable cause to arrest of A.D. for the crime of

Resisting Arrest.
59.

Juvenile delinquency proceedings are prosecuted by the Corporation Counsel of the

City of New York, the same office of the defendant CITY which defends the CITY and its police
officers and supervisors against claims of police brutality and other police misconduct.
60.

In support of the petition that commenced the juvenile delinquency proceeding,

defendant GAGLIO swore to, submitted and caused to be filed a false official statement, in
violation of Section 210.45 of the New York Penal Law, a Class A Misdemeanor.
61.

Defendant GAGLIO’s false statement falsely stated, inter alia, that:
(a)

both defendant GAGLIO and A.D. slipped on ice on the ground and fell to

the ground. In fact, neither defendant GAGLIO nor A.D. had slipped on ice and fallen to

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the ground; instead, defendant GAGLIO had deliberately grabbed A.D. around the neck
and thrown her to ground;
(b)

on the ground, A.D. flailed her arms and thrashed her body, preventing

defendant GAGLIO from placing handcuffs on A.D, and that she continued to struggle
until he was eventually able to place handcuffs on A.D. In fact, A.D. did not flail her arms
nor thrash her body, nor do anything else to prevent defendant GAGLIO from placing
handcuffs on her, nor did A.D. struggle or continue to struggle until defendant GAGLIO
was able to place handcuffs on her.
62.

Defendant GAGLIO’s interaction with A.D. was almost entirely captured on

videotape from a surveillance camera located outside a barbershop near the intersection of 167th
and Teller, corroborating the allegations set forth above.
63.

In or about December 2015, the juvenile delinquency proceeding was dismissed by

the Criminal Court of the City of New York, Bronx County.
64.

While at the precinct, A.D. learned from a seventh-grade boy also arrested that the

driver’s phone had fallen out of his pocket during the snowball-throwing incident when the driver
came out of his car and placed one of the boys in a headlock, and that another boy had picked up
the phone and taken it away from the scene.
65.

Upon information and belief, the police and/or the Office of the Corporation

Counsel of defendant CITY subsequently learned the name of the boy who had taken the driver’s
phone, but never contacted, questioned, arrested or filed a juvenile delinquency petition against
him.

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66.

Plaintiffs subsequently made a complaint to the Civilian Complaint Review Board

(“CCRB”), an agency of defendant CITY.
67.

On or about November 24, 2015, the CCRB advised plaintiffs that, following its

investigation by the CCRB’s investigative staff, the Board of the CCRB had reviewed the
evidence and made findings substantiating their allegation that defendant GAGLIO had used
excessive force against A.D. In so finding, the Board found that defendant GAGLIO had used a
chokehold against A.D.
68.

The CCRB also found that “[t]here is evidence suggesting that Lt. Paul GAGLIO

provided a false official statement in violation of PG 203-08.”
69.

PG 203-08 is a provision of the defendant CITY’s Police Department Patrol Guide

which provides that the intentional making of a false statement is prohibited, and subject to
disciplinary action, up to and including dismissal. The provision further provides that
“[i]ntentionally making a false official statement regarding a material matter will result in
dismissal from the Department, absent exceptional circumstances.” The provision further provides
that “[e]xamples of circumstances in which false statements may arise include, but are not limited
to, lying under oath during a civil, administrative, or criminal proceeding or in a sworn
document”; or in official interviews conducted during investigations by the CCRB.
70.

The CCRB Board unanimously recommended that defendant GAGLIO be

disciplined for his misconduct with specifications and charges, and forwarded its
recommendations to the Police Commissioner and the Police Department Advocate’s Office.
71.

Upon information and belief, the defendant CITY declined to accept the CCRB

recommendations and has failed to impose discipline upon defendant GAGLIO.

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72.

The defendant CITY has neglected and failed to adjust the claims within the

statutory time period.
FEDERAL CLAIMS FOR RELIEF
(42 U.S.C. § 1983)
73.

The acts and conduct described above deprived A.D. of her rights:
a)

not to be deprived of liberty without due process of law;

b)

not to be subjected to excessive or unreasonable use of force by police
officers;

c)

to be free from unreasonable search and seizure of her person;

d)

to be free from false arrest, imprisonment, and unjustified detention;

e)

not to have false charges lodged against her by police officers;

f)

to be free of abuse of process;

g)

to be free from malicious prosecution;

h)

to fair trial; and

i)

to speak and associate freely and to seek redress of grievances;

all in violation of the First, Fourth, Fifth and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. § 1983.
74.

As a result of the acts and conduct of the defendants complained of herein, plaintiff

has suffered deprivation of her liberty, physical injuries, and serious and possibly permanent
mental anguish, distress and trauma and mental, psychological and emotional injuries, pain and
suffering from the incident and its aftermath, embarrassment, humiliation, shame, indignity, and
damages to reputation, and has incurred special damages.

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75.

The acts and conduct of defendants complained of herein were intentional, wanton,

willful and malicious, and in reckless disregard of plaintiff’s constitutional rights, thus entitling
her to punitive damages.
CLAIMS FOR RELIEF UNDER STATE LAW
FALSE ARREST OR IMPRISONMENT
76.

The allegations of the preceding paragraphs are incorporated by reference herein.

77.

Defendants stopped, detained, arrested and imprisoned A.D. without a warrant.

78.

The arrest and imprisonment was therefore presumptively unlawful.

79.

Defendants confined A.D., and intended to confine her, without her consent; A.D.

was conscious of the confinement, and the confinement was not otherwise privileged.
ASSAULT
80.

The allegations of the preceding paragraphs are incorporated by reference herein.

81.

Defendants placed A.D. in apprehension of imminent harmful and offensive bodily

contact.
BATTERY
82.

The allegations of the preceding paragraphs are incorporated by reference herein.

83.

Defendants made offensive contact with A.D. without privilege or consent.
ABUSE OF PROCESS

84.

The allegations of the preceding paragraphs are incorporated by reference herein.

85.

Defendants issued process, and caused such process to be issued, compelling

plaintiffs to appear in court and respond to the juvenile delinquency proceeding commenced

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against A.D., intending to seek collateral advantage to defendants or corresponding detriment and
harm to plaintiffs outside the legitimate ends of the process.
UNLAWFUL SEARCH
86.

The allegations of the preceding paragraphs are incorporated by reference herein.

87.

Defendants conducted a search of plaintiff without probable cause, privilege or

consent, in violation of plaintiff’s right to be free from unreasonable search under Article I,
Section 12 of the New York State Constitution.
FREE SPEECH
88.

The allegations of the preceding paragraphs are incorporated by reference herein.

89.

Defendants retaliated against A.D. for protesting being assaulted, battered, detained

and arrested, and for seeking redress of grievances, in violation of plaintiff’s right to freedom of
speech and right to petition for redress of grievances under Article I, Section 8 of the New York
State Constitution.
90.

Defendants further retaliated against plaintiffs for filing a notice of claim and

seeking to commence a civil action to recover damages from defendants for their misconduct, in
violation of their right to freedom of speech and right to petition for redress of grievances under
Article I, Section 8 of the New York State Constitution.
RESPONDEAT SUPERIOR
91.

The allegations of the preceding paragraphs are incorporated by reference herein.

92.

Defendant CITY OF NEW YORK is vicariously liable for the acts and omissions

of defendant GAGLIO and its other agents, servants and employees who were on duty and acting
in the scope of their employment when they engaged in the unlawful conduct set forth above.

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NEGLIGENT SCREENING, HIRING, TRAINING, SUPERVISION AND RETENTION
93.

The allegations of the preceding paragraphs are incorporated by reference herein.

94.

Defendant CITY of NEW YORK failed to use reasonable care in the screening,

hiring, training, supervision and retention of defendant GAGLIO who participated in the unlawful
conduct set forth above.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs A.D. and J.D. demand judgment and pray for the
following relief, jointly and severally, against the defendants:
(a)

judgment declaring the actions and conduct of defendants unconstitutional
and unlawful;

(b)

full and fair compensatory damages in an amount to be determined by a
jury;

Dated:

(c)

punitive and exemplary damages in an amount to be determined by a jury;

(d)

reasonable attorneys’ fees and costs and disbursements of this action; and

(e)

such other and further relief as appears just and proper.

New York, New York
May 5, 2017
/s/ Robert L. Herbst
Robert L. Herbst (RH 8851)
HERBST LAW PLLC
420 Lexington Ave, Ste 200
New York, New York 10170
(646) 543-2354
rherbst@herbstlawny.com
Attorneys for Plaintiff
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