Case 3:19-cv-00412-DNH-DEP Document 1 Filed 04/03/19 Page 1 of 65

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ATTORNEYS FOR PLAINTIFF:
Edward E. Kopko, Esq.
NDNY Bar Roll No. 510874
Edward E. Kopko,, Lawyer, P.C.
308 North Tioga St., Second Floor
Ithaca, New York 14850
607.269.1300; 607.269.1301 fax
ekopko@ithaca.law
John A. Fitzgerald, Esq.
NDNY Bar Roll No. 303022
308 N. Tioga St., Ithaca, New York 14850
T: 607.269.7125; jfitzgerald@ithaca.law

KYLE GOLDSTEIN,
Plaintiff,
vs.

Docket No. 3:19-cv-412 (DNH/DEP)
Jury Trial Demanded

JACOB V. ALLARD, DANIEL A.
BECHTOLD, JOHN BARBER, and
CITY OF ITHACA,
Defendants.
COMPLAINT

Plaintiff, Kyle Goldstein, by and through his attorneys, Edward E. Kopko,
Lawyer, P.C., complaints against Defendants and requests trial by jury as follows:
INTRODUCTION
1. This is an action brought by Kyle Goldstein, a college student, for deprivations of
his constitutional rights caused by illegal police conduct and police brutality.
2. On November 17, 2016, Goldstein, then 21 years old, five feet eight inches tall,
and weighing approximately 135 pounds was illegally detained by police during a
party at his rented home on 702 Hudson Street, Ithaca, New York.
3. During the course of this illegal detention Goldstein was arrested illegally.

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4. During the course of this illegal detention and arrest Goldstein was senselessly
sprayed with pepper spray directly into his eyes from mere inches away, causing
injuries to his eyes, and serious and permanent damage to his right eye in particular by
Ithaca City Police Officer Jacob V. Allard.
5. The entire episode was captured by police body cams and irrefutably
demonstrates that Goldstein posed no threat to Allard who is at least six feet tall and
weighs over 200 pounds.
6. The video demonstrates Goldstein was sprayed directly in his eye at a time when
Goldstein was handcuffed behind his back and lying prostrate on his living room floor
and posed no threat, was not resisting arrest, or trying to flee.
7. This picture shows the injury to Goldstein’s eye:

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8. In concert or conspiracy, Defendants then maliciously and baselessly caused
Goldstein to be prosecuted with the charge of Obstruction of Governmental
Administration and Resisting Arrest, charges that were subsequently dismissed by the
Tompkins County District Attorney.

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JURISDICTION
9. Goldstein’s claims against Defendants are predicated upon 42 U.S.C. § 1983,
relating to deprivation of rights. This Court has jurisdiction of this § 1983 claim. Maine
v. Thiboutot, 448 U.S. 1 (1980); Martinez v. California, 444 U.S. 277 (1980).
VENUE
10. All of the acts complained of in this complaint occurred in Tompkins County.

IDENTITY OF THE PARTIES
11. At all relevant times, Goldstein is a citizen of the United States and a resident of
the State of New York, and County of Tompkins.
12. At all relevant times, Defendant Jacob V. Allard was a citizen of the United States
and a resident of the State of New York and was acting under color of state law in his
capacity as a law enforcement officer employed by the Defendant City of Ithaca, and/or
the Ithaca Police Department.
13. At all relevant times Allard was acting in the course and general scope of his
employment by Ithaca City Police Department pursuant to the authority given to him
by the City of Ithaca and pursuant to its instructions and duty assignments.
14. By virtue of Allard’s appointment and employment as a police officer with the
Ithaca City Police Department, Allard is a “police officer” as that term is defined in CPL
§ 1.20(34) (d).

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15. As a police officer, Allard, when seizing, arresting and acting with excessive
force against Goldstein, acted under color of law by using the authority vested in him
by virtue of his appointment and by using the arrest procedures, appearance ticket
procedures, and preliminary arraignment procedures set forth in CPL § 150.20, which
procedures are only available to police officers.
16. Allard is sued in his individual capacity.
17. At all times relevant, Defendant Daniel A. Bechtold (“Bechtold”) was a citizen of
the United States and a resident of the State of New York and was acting under color of
state law in his capacity as a law enforcement officer employed by the Defendant City
and/or of the Ithaca City Police Department.
18. At all relevant times Bechtold was acting in the course and general scope of his
employment by Ithaca City Police Department pursuant to the authority given to him
by the City of Ithaca and pursuant to its instructions and duty assignments.
19. By virtue of Bechtold’s appointment and employment as a police officer with the
Ithaca City Police Department, Bechtold is a “police officer” as that term is defined in
CPL § 1.20(34) (d).
20. As a police officer, Bechtold, when seizing, arresting and acting with excessive
force against Goldstein, acted under color of law by using the authority vested in him
by virtue of his appointment and by using the arrest procedures, appearance ticket

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procedures, and preliminary arraignment procedures set forth in CPL § 150.20, which
procedures are only available to police officers.
21. Defendant Bechtold is sued individually.
22. Defendant City of Ithaca (“City”) is a New York municipal corporation and is the
legal entity responsible for itself and for the Ithaca Police Department. The City is also
the employer of the individual Defendants and is a proper entity to be sued under 42
U.S.C. § 1983.
23. At all relevant times, Defendant John Barber (“Barber”) was a citizen of the
United States and a resident of the State of New York. Barber is sued in his official
capacity as the Chief of Police of the Ithaca City Police Department during the relevant
period of time, employed by the City and/or the Ithaca City Police Department, and
was acting under color of state law.
24. As Chief of the Ithaca Police Department, Barber trained and supervised
Defendants Allard and Bechtold.
25. Defendant City and Barber are properly sued directly under 42 U.S.C. § 1983 for
their own and their delegated deliberately indifferent unconstitutional decisions,
policies, practices, habits, customs, usages, training and derelict supervision,
ratification, acquiescence and intentional failures which were moving forces in the
complained of constitutional violations and resulting injuries.

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26. The Defendant City is also properly sued under 42 U.S.C. § 1983 for the
challenged delegated final decision of Barber in his official capacity as the Chief of the
Ithaca City Police Department, and for those of any final delegated decision makers,
with respect to the challenged deliberately indifferent policies, decisions, widespread
habits, customs, usages, and practices.
STATEMENT OF FACTS
27. On November 17, 2016, at approximately 11:30 p.m., Allard was dispatched to
702 Hudson Street, in the City of Ithaca (“the residence”), for a noise complaint.
28. Allard recorded the entire incident on his body camera.
29. The recording was delivered by the prosecutor in connection with discovery in
the underlying criminal case against Goldstein on a CD. The particular file containing
the footage is labeled “AXON_Body_Video_2016-11-17_2333.” Exhibit 1.1
ALLARD BODY CAM VIDEO
30. Allard parked his cruiser and approached the residence on foot.
31. Upon information and belief, Bechtold is following Allard on foot.
32. Voices can be heard in the background as Allard approaches the residence, but
the volume of the voices is not unreasonable, and there is no loud music being played.
33. As Allard approaches the driveway of the residence, four young women are seen
walking away from the residence.
1

The DVD containing the footage of Defendant Allard’s body cam was sent to the Clerk of the United States District
Court for the Northern District of New York for filing.

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34. Allard says “Have a good night, ladies,” and one of the women respond “You
too, thank you.”
35. Allard approaches a set of stairs leading to a door that enters into the residence.
36. A young woman is standing at the base of the stairs.
37. Allard says ”Hello” to the woman, and she responds “Hello.” Allard says “Have
a safe night” and she responds “Thank you.”
38. As Allard approaches the base of the stairs a couple of people are descending the
stairs.
39. Allard says “Have a safe night guys,” and one of them responds “You too.”
40. Another woman descends the stairs and Allard says again “Have a safe night,”
and the woman responds “You too.”
41. Upon information and belief, Bechtold can be heard in the background wishing
the party goers a safe night as well.
42. One of the party goers tells Allard “I like your hat,” and Allard responds “Thank
you.”
ILLEGAL ENTRY
43. Allard climbs the stairs leading to the entrance to the residence.
44. The door at the top of the stairs is open.
45. Several other people are seen leaving and again Allard wishes them “a safe
night.”

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46. Allard arrives at the front door and a young woman is seen standing there.
47. Allard says “Okay guys, who lives here?”, but the young woman just looks at her
cell phone then responds, upon information and belief saying, “I don’t know.”
48. Allard enters the residence and starts yelling “Let’s go, everybody out,” and
gestures with his thumb towards the door.
49. Allard starts waving his flashlight back and forth presumably to get attention,
and continues to yell “Everybody out, let’s go.”
50. People are seen starting to leave.
51. Officer Bechtold is seen, also standing inside the residence, with a flashlight in
his hand.
52. Many people continue to leave.
53. Allard continues wishing the departing party goers to “have a safe night.”
54. Allard moves farther into the residence and yells “Alright, let’s go, everybody
out, let’s go.” At this point Kyle Goldstein is seen standing with another man. The
other man, unidentified, is looking at Allard and gesturing as if to inquire what the
officers want. Both this man and Goldstein are acting peacefully.
55. More people start to leave and Allard continues yelling “Out. Party’s over.”
56. Bechtold is seen moving farther into the residence and reaching for Goldstein
and shaking his head.

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57. People continue to leave and Allard says again “Have a safe night, guys.”
Someone responds “You too,” and Allard says “Thank you.”
ILLEGAL DETENTION
58. The people leaving momentarily obscure Bechtold and Goldstein, but when they
come back into view Bechtold appears to be holding Goldstein’s right arm with his left
hand and is gesturing for Goldstein to stand against a wall.
59. Goldstein complies peacefully. He is not resisting arrest, trying to leave, being
otherwise uncooperative, or even speaking to Bechtold.
60. People continue to leave.

Goldstein, with Bechtold standing to his right, is

watching people leave, then turns to his left apparently to respond to someone speaking
to him.
61. Bechtold looks at Allard and points to Goldstein presumably to indicate to
Allard Goldstein is a resident of the residence.
62. Goldstein continues to speak with someone to his left, and he moves toward the
person with whom he is speaking.
63. Bechtold is heard yelling “Whoa, whoa…” and it appears, although both
Bechtold and Goldstein are obscured by the departing party goers, that Bechtold
forcefully pulls Goldstein back toward him.

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64. Bechtold is seen speaking to Goldstein, holding Goldstein’s right arm, and
pointing at Goldstein’s face with his flashlight, then gesturing in an up and down
motion with the flashlight ordering Goldstein to remain standing where he is.
65. Goldstein is seen speaking with Bechtold and, at one point, Goldstein raises his
right arm while Bechtold is still holding it, but otherwise makes no motion to flee.
ILLEGAL ARREST
66. Allard moves toward Goldstein, grabs Goldstein’s left arm, twisting it around
behind him, and tells Goldstein to “put your hands behind your back,” and Goldstein is
handcuffed and pushed face first against the wall.
67. Bechtold holds Goldstein’s right arm behind his back and is seen talking to
another male wearing a white hat over his right shoulder.
68. Allard is heard saying “Get these people out of here now. Get ‘em going. Talk to
them. Get them out.” Allard is seen pointing at a group of people in the residence. It is
unclear if Allard is speaking to Goldstein or a male wearing a white baseball hat at this
point.
69. In any event, Goldstein responds saying “if you [inaudible], I’d be happy to do
so.”
70. Allard is heard requesting more units come to the residence.

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71. Some people continue to leave, but a crowd of people, approximately 30 in
number, is seen still standing in what appears to be the residence’s living room, some
are watching the officers, but none seem too concerned.
72. No one is acting unruly, shouting, or exhibiting any aggressive behavior, and no
one is out of control.
73. Allard shines and waves his flashlight in the direction of the crowd and yells
“Hey, let’s go, let’s go.”
74. Bechtold is seen moving toward the crowd.
75. Allard is standing with Goldstein to his left.
76. Goldstein and Allard have a conversation but the audio is unclear.
77. The din of the surrounding noise makes it very difficult to hear what is being
said and by whom exactly.
78. At some point it appears a young woman is seen moving close to Goldstein and
speaking to Allard. It is unclear what she says. This young woman is later identified as
Julia Judge (“Judge”).
79. It appears she is then restrained by one of the officers, but the actual incident is
just off camera.
80. Goldstein starts to yell “Madison” at another young woman, and, upon
information and belief, it appears he is asking her to get a video camera.

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81. The young woman, Madison, moves into the kitchen area, and Goldstein turns
his body towards her and is yelling something at her.
82. Allard grabs Goldstein’s arm and Goldstein turns back toward Allard.
83. Allard pushes Goldstein to the ground, placing his left hand on Goldstein’s left
arm, and his right hand behind Goldstein’s head, forcing Goldstein to lie on his belly.
Bechtold is seen moving toward Goldstein, moving past the white male with the white
hat, later identified as Alexander Leone (“Leone”).
84. While Goldstein is laying on the ground, a young lady, later identified as
Madison Wahler (“Wahler”), squats down beside Goldstein and asks Allard something
indiscernible.
85. It appears a crowd of people are watching this happen to Goldstein and
protesting.
86. Bechtold is seen on the other side of Goldstein holding him down.
87. There is a male wearing a white sports jersey standing near to Goldstein his arms
outspread.
88. Allard is heard yelling “Get back,” and the man in the white jersey, his arms still
outspread backs away.
89. Bechtold pulls out a taser and turns to face the crowd behind him brandishing
the taser.

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90. The man in the white jersey starts gesturing for other people to leave and is seen
cupping his hands around his mouth to yell, but what he yells is indiscernible.
91. The young woman is seen again crouching down by Goldstein’s head, and is
heard saying, upon information and belief, “I’m not going to leave, I’m not going to
leave. You… [inaudible]. In the fucking face. Are you kidding me?”
92. Allard yells “Leave,” and the woman says no.
93. Allard then pushes her and she falls backward onto the floor.
94. The woman yells. “Stop. Stop.”
EXCESSIVE FORCE
95. Allard yells something inaudible and Goldstein turns to look over his shoulder,
still in a prostrate position, and yells something inaudible to Allard.
96. A young woman is, handcuffed, on the ground next to Goldstein, lying prostrate
on her belly. Bechtold is seen kneeling on her back.
97. The picture becomes very shaky as Allard appears to turn Goldstein over to
spray him in the face.
98. Goldstein rolls over onto his back, or is rolled over onto his back. It is unclear
from the body cam whether Goldstein rolls over on his own volition, or whether Allard
rolls Goldstein over forcibly.
99. Allard grabs Goldstein with his left hand, holding it against Goldstein’s face and
neck.

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100.

Allard is then seen pepper spraying Goldstein in the eyes and face.

101.

Allard’s hand is approximately six to eight inches away from Goldstein’s

face, and the burst of pepper spray lasts approximately two seconds.

102.

As Allard pepper sprays Goldstein, Bechtold jerks his head away.

Apparently, some of the pepper spray got in Bechtold’s face and eyes.
103.

Bechtold gets up, releasing the young woman he had been restraining, still

holding his taser, and pressing his left hand against his eyes.
104.

The young woman is still on the ground, apparently in distress, and the

male in the while jersey and Leone come over her to comfort her.

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105.

Other party goers are seen watching these events. One young woman

comes over with a camera apparently taking pictures of Allard and Goldstein.
106.

Allard starts yelling for them to “Get back,” and “You are under arrest if

you do not get back.”
107.

Bechtold is seen moving toward the group of party goers who are

standing watching these events.
108.

Bechtold places his right hand on the chest of Leone, and Leone brushes

his hand away.
109.

It is unclear from the camera angle what happens, but it appears Leone is

pushed backwards by Bechtold, and a couple of other men move in to keep Leone away
from Bechtold.
110.

Allard is heard yelling “He’s under arrest. That guy is under arrest.”

111.

Bechtold is seen moving in the direction where Leone went, farther into

the residence.
112.

It appears another police officer has arrived.

113.

Leone is seen moving in the background and Bechtold moves toward him

and he, along with two or three officers who now appear on video to restrain him and
throw him to the ground.
114.

As Allard’s camera pans, Wahler, the young woman Allard had pushed is

seen on her knees being cuffed behind her back.

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115.

Goldstein is heard yelling “Wipe it out of my eyes,” or words to that

effect.
116.

Several people remain, and Bechtold is seen standing next to one still

rubbing his eyes in apparent discomfort.
117.

Goldstein is heard yelling again “Wipe it off, please.”

118.

Another officer is seen speaking to Bechtold, who is still rubbing his eyes

in apparent discomfort.
119.

Goldstein is brought to his feet, and he is seen squinting his eyes.

120.

A woman is heard yelling to the officers saying “You guys are fucking

assholes.”
121.

As Goldstein is led down the hallway, it appears his eyes are still closed,

and he says “I can’t see.”
122.

As the officers exit with Goldstein, a man and a woman, are seen entering

the house, and someone, possibly Allard, says to them “Guys, we need to leave.”
123.

The male, responds “Her coat is inside.”

124.

Goldstein, is heard saying “Officer, I’m begging you, please…” The rest is

indiscernible.
125.

The officers lead Goldstein down the stairs, and Goldstein can be heard

moaning in pain.

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126.

Goldstein is heard, “Officer, I’m begging you, please wipe this out of my

eyes.”
127.

The officer, who is not identified, responds “You’ll be alright. I got some

in mine too.” This latter statement, suggests it is Bechtold speaking.
128.

Goldstein says again, “Please, I’m begging you. Please wipe it off of my

face. Please. Officer, please. Just wipe it off of my face. Please. It keeps seeping into
my eyes.”
129.

A young female is heard yelling “…. Fucking, fuck you.”

130.

Goldstein says, “Don’t listen to them.”

131.

The officer, possibly Allard, says “Excuse me?” to the woman who spoke.

132.

Goldstein says, “Please wipe it off my eyes.”

133.

The officer, possibly Allard, says to the woman “Do you want to be

arrested as well? I suggest you leave.”
134.

Goldstein continues, “Officers, please just wipe this off of my eyes.

Please. Anything. Just wipe it off my eyes.”
135.

A young woman is heard yelling “You guys are the most fucked up

people ever.”
136.

The officers bring Goldstein to a cruiser and place him against the rear of

it to be searched.

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137.

Bechtold comes into view, next to Goldstein, blinking his eyes and

shaking his hands.
138.

Upon information and belief, Allard says to Bechtold, laughing “You were

like… [indiscernible] feet from me. I don’t know how you got it.”
139.

Allard asks Goldstein whether he has anything illegal on him, and

Goldstein responds “No.”
140.

Allard frisks Goldstein, but finds nothing illegal on him.

141.

Allard asks Goldstein “Do you have any ID on you whatsoever?”

Goldstein says “No.”
142.

Allard asks Goldstein “Do you have anything in the house that is your

property?” Goldstein says “No.”
143.

Goldstein asks “Can I spit,” and Allard says “Go ahead.” Goldstein spits

on the ground.
144.

Goldstein asks “Can I please beg one of you to wash some of this out of

my eyes?”
145.

Allard says “I don’t have anything to wipe it with. What we’re going to

do is we’re going to have a seat and I’m going to get your information.”
146.

Goldstein asks “Can I wipe my shirt against my eyes?”

“Sure.”

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Allard says

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147.

Goldstein, who is still handcuffed behind his back, bends and twists to

bring the shirt to his eye. Goldstein then says, groaning in pain, “Oh, it burns more.”
Allard says “Yep. Alright. C’mon let’s have a seat bud.”
148.

Allard brings Goldstein around to the passenger side of the cruiser.

Bechtold comes back into view, still rubbing his eye.
149.

Goldstein says, “Oh, it stings so bad boys.”

150.

Someone is heard yelling in the background “How many times did I tell

you to get back?”
151.

Allard opens the rear passenger seat and says to Goldstein “Have a seat in

there.” Goldstein gets into the cruiser. Goldstein’s eyes are still closed, and he appears
to be in great pain.
152.

Allard asks pedigree information of Goldstein. Allard asks Goldstein for

his local address and Goldstein tells him it is 702 Hudson Street. Allard says “So you
do live here.” Goldstein answers “Yes, I do.”
153.

Allard then says “Okay. So that’s why you’re under arrest, because you

weren’t cooperating when you said you lived here. Okay?”
154.

Goldstein asks again, “Can I get something to wipe my face off?”

155.

Allard says “When we get downtown we actually have a sprayer that goes

right in your eyes. It’s the best thing for you.”
156.

Goldstein asks, groaning in pain, “Oh, can I get that now?”

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157.

Allard responds “Soon as we get down there.” Goldstein asks “Can we go

now?” Allard says “Yes.”
158.

Allard closes the cruiser door and turns to his left, his camera panning

over. Leone is seen sitting on the curb of the street, next to two standing officers, one of
whom is Bechtold.
159.

But they do not leave right away, instead the camera continues.

160.

It is unclear who Allard is speaking to, and it is unclear if he is speaking

about Leone or Goldstein, but he says “So this is the resident. He wasn’t being very
cooperative in there. So he got arrested… [indiscernible]. He got arrested as I said...
[indiscernible].

…His girlfriend.

There’s another female too that came up and

interfered and had to get pushed away. She was taken down. Dan had her down. I
don’t know where she went to…” Another officer asks “Blond hair?” Allard says, “No,
she had dark hair…” The officer responds, but his voice is too low to make out what he
is saying.
161.

Leone says “You guys like took her down earlier, and like she was crying

on the floor is what happened. And then, I mean, she might…” The rest of what he
says is unclear, as Allard is heard saying, “Hey, Dan? What happened to that girl that
you had down next to him?”
162.

Bechtold comes close to Allard, and someone says “I don’t know.”

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163.

The camera pans back to Leone. People who are out of the camera’s scope

are apparently saying things to him. At one point, Leone says “I can’t talk shit right
now, I’ve got handcuffs on me.”
164.

Someone yells “Keep your mouth shut. Stay quiet,” but it is unclear

whether an officer says that, or one of the people off camera.
165.

Leone responds, saying… “Yo, he was pointing a taser at me. He says I

was coming at him. I’m not going to walk at someone pointing a taser at me.”
166.

Allard points to Leone and says “If we have a car, yeah, we can put him

in. He’s going to be an obstruction, and then a resisting probably I’d imagine.”
167.

Leone is being led away as Allard says this, and Leone turns to Allard and

says “A resisting? I wasn’t resisting shit.”
168.

Someone yells “Quiet, Leone.”

169.

Allard asks Bechtold, who is seen walking past him, “You alright, Dan?”

Bechtold responds “Yep.”
170.

Bechtold is seen walking to his car, opening his driver’s side door, pulling

a plastic bottle of water out, then closing the door and walking towards Allard.
171.

Allard asks Bechtold “Are you red?” Bechtold says “Yep,” and Allard

says “I’ll go green.”
172.

At that point the recording ends.

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173.

The time of the arrest is noted on the initial accusatory instruments as

23:45 hrs, including a NYS CPL 710.30-1a notice; a noticeable inconsistency is found on
the appearance ticket for a noise violation, which states the time of offense being
“2330.”
174.

An amended accusatory instrument alleged resisting arrest at 23:19.

175.

Allard’s body camera begins again at the police station where the clock on

the wall reads 01:15.
176.

Allard’s video begins as he is being asked by his superior officer whether

“he was handcuffed before.” Allard says: “yes, handcuffed before”, and points into a
holding room, saying: “yes him”, referring to Goldstein.
177.

The rest of that video shows Allard interviewing Leone, who is

handcuffed to the bench.
178.

The video shows the same clock on the wall, and approximately 10

minutes has elapsed at this point.
179.

Allard takes Goldstein into the back of the station so that Goldstein can

use the restroom in a cell. He is not handcuffed.
180.

Goldstein is printed. Approximately twenty-four minutes into this video

Goldstein is allowed to rinse his eyes again. He is clearly in pain and distress, nearly
two hours after he was pepper sprayed in the eye by Allard while handcuffed on the
floor.

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181.

Bechtold also recorded the entire incident.

182.

The recording was delivered by the prosecutor in connection with

discovery in the underlying criminal case against Goldstein on a CD. The particular file
containing the footage is labeled “AXON_Body_Video_2016-11-17_2334.” Exhibit 2.2
BECHTOLD BODY CAM VIDEO
183.

When Bechtold first approaches Goldstein he asks Goldstein “Alright,

buddy you live here?” Goldstein responds “Yes, I do.”
184.

Bechtold asks Goldstein “Oh you do live here? You got any ID on you

please?” Goldstein responds “I do not.”
185.

Goldstein is lingering in the vicinity of Bechtold as a small crowd passes

to exit.
186.

Bechtold walks over to Allard.

Allard asks Bechtold “Was that a

resident?” and Bechtold points with his flashlight in the general direction Goldstein
went, “Yeah, with the orange…” and Bechtold walks farther into the residence where
Goldstein went.
ILLEGAL DETENTION
187.

Bechtold goes over to Goldstein, who has moved about three feet, and

tells him “I need you to come back over here.” It appears Bechtold grabs Goldstein’s

2

The DVD containing the footage of Defendant Bechtold’s body cam was sent to the Clerk of the United States District
Court for the Northern District of New York for filing.

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right arm and pulls Goldstein toward him, stands him against a wall and tells him to
“stay right here please.”
188.

Numerous people are seen leaving.

189.

Bechtold turns and Goldstein can be seen being pulled back towards

Bechthold.
190.

Bechtold brandishes his flashlight in Goldstein’s face and yells “Stay here.

Do not leave.” Goldstein asks “For what reason?”, and Bechtold responds “I’m not
going to tell you again.” Goldstein repeatedly asks “Am I being detained? Are you
detaining me?” Bechtold says “You are being detained,” and Goldstein asks “For what
reason? What reason am I being detained?” Bechtold answers “I told you not to
move.” Goldstein still asks repeatedly “For what reason am I being detained? Why am
I being detained?”
191.

By this time, Allard has come up behind Goldstein and has grabbed one of

Goldstein’s arms, placing it and holding it behind his back. Goldstein is handcuffed.
192.

Allard is yelling “Get these people out,” or words to that effect.

193.

Leone comes up and says something to Goldstein.

Goldstein yells

“Leone” several times, and shakes his head.
194.

Bechtold approaches the crowd farther back in the residence, standing in

the living room area, yelling “Leave, leave…”
195.

At this time Julia Judge is thrown on the floor by Bechtold.

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196.

Bechtold’s camera becomes obscured, blocking what is, based on Allard’s

body cam, the moment Goldstein is thrown to the floor by Allard.
197.

Bechtold is yelling to “Get back, get back,” and the images partially show

some other people backing away, and one of them appears to be arguing.
198.

Bechtold’s body cam pans over, and Allard is seen straddling and

restraining Golstein. Allard reaches behind him and pulls a small canister from his belt
and begins shaking it.
199.

Allard yells, “Get back now, or you’re getting sprayed.” Someone keeps

yelling “Get back, get back” and the crowd of students is seen backing away.
200.

One of the officers is heard yelling, “If you don’t live here, leave.”

201.

A man wearing a white jersey starts instructing the students to leave.

202.

Bechtold is seen with a taser in his hand, and that he is brandishing it to

the other people, particularly the man in the white jersey.
203.

The man in the white jersey reaches down and across to comfort Wahler,

the young woman who is seen pushed by Allard in Allard’s body cam.
204.

Goldstein is heard screaming in pain, upon information and belief, in

response to being pepper sprayed by Allard.
205.

Bechtold’s camera catches Leone and another man comforting Judge who

had been thrown to the ground by Bechtold, but who is now lying on the floor.

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206.

Allard can be seen pointing up, and a young woman is screaming at him,

although her words are unclear.
207.

Bechtold appears to be standing and his body camera captures a number

of people standing around watching these events unfold. Several young men appear to
be arguing with the officers, but none are displaying aggressive behaviors, making
threats, or yelling.
208.

Someone, possibly Bechtold, is repeatedly yelling “Get back. Stay back.”

209.

Bechtold’s body camera becomes very erratic, but it appears that he and

other police officers have restrained Leone, forcing him to the ground with his hands
behind his back.
210.

Goldstein is seen being led out of the residence. A young woman is

yelling in the background, but her words are not clear.
211.

Goldstein can be seen wincing in pain, and he can be heard saying the

same things already described above, and captured on Allard’s body camera.
212.

Goldstein is led outside and to one of the cruisers. Bechtold’s camera

captures Goldstein wincing in severe pain before being placed into the cruiser.
213.

Bechtold then turns to Leone, and asks Leone “How many times did I tell

you to get back? How many times?” Leone responds “I was back.” Bechtold says “No,
you weren’t,” Leone says “Yes I was,” and Bechtold says “No, you weren’t.” Leone says
“I was back. You literally just kept saying ‘Get back, get back, get back.’ I was going

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back.

…[inaudible].

I don’t why you had to come in and tackle me.”

Bechtold

responds, “Good thing it’s all on camera, so that’ll be good.”
214.

Bechtold can be heard sighing and moaning, and sniffling in apparent

discomfort for having been pepper sprayed. He walks away from the cruisers, and
down the road, then back again.
215.

Bechtold can be heard saying “I have some water,” apparently to himself.

216.

Notably, Goldstein is not offered any water at this time.

217.

Bechtold goes to the cruiser, opens the door, and pulls out a water bottle,

and walks down the road again, away from the cruisers. Bechtold can be seen using the
water in the water bottle to clean out his eyes. He can be heard, sniffling, and sighing.
218.

Leone can be seen placed into the squad car. Bechtold walks around to

the front of the vehicle, and Allard can be heard asking Bechtold “You alright, Dan?”
219.

Bechtold asks Allard “Are you red?”, at which point the tape ends.

220.

Goldstein was charged by two separate informations: the first contained

charges for Obstruction of Governmental Administration (“OGA”) and Resisting
Arrest, the second Amended Information charged him with Resisting Arrest only.
221.

The original Information for Resisting Arrest, dated November 19, 2016,

states that Goldstein was being arrested for OGA alleging that he had pulled his arm
away numerous times as he was going to be cited for a local noise ordinance as they
believed he was a resident at the house party, and that this behavior prevented the

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officers from clearing out the house. Exhibit 3.
222.

The People refused to state ready on said charge because it was facially

insufficient.
223.

The Police filed an amended information on the charge of Resisting

Arrest, presumably acknowledging that there were no grounds to arrest Goldstein for
OGA; the People acknowledged the facial insufficiency of the original OGA information
at arraignment. Exhibit 4.
224.

Allard changed the sworn to facts in an attempt to tailor the facts in the

amended information to make a viable charge where none existed. Specifically, Allard
changed the language from Goldstein was going to be cited for a noise violation, to
Goldstein was going to be arrested for resisting arrest. The time of the arrest and
alleged violations changed as well. The amended information claimed that the charge of
Resisting Arrest arose out of Goldstein’s attempt to avoid being arrested for a local
noise ordinance. But in the supplemental report, Allard states that “I then walked over
to and PO Bechtold assisted me in placing Mr. Goldstein under arrest for obstructing
this investigation.”

Bechtold states “[a]t this point PO ALLARD and I placed

GOLDSTEIN in handcuffs and told him he was being detained until the situation could
be resolved.”
225.

Most importantly, Goldstein was never told he was being arrested, he

complied with every command that either officer made, and he posed no threat to the

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arresting officers.
226.

Moreover, Goldstein was handcuffed when he was thrown to the ground

because someone else, Judge, was allegedly interfering with his detention.
227.

No facts are alleged that explain why Goldstein was thrown to the ground

before he was pepper sprayed.
228.

There is no body camera evidence of non-compliant behavior by

Goldstein between the time he is handcuffed and the time he was thrown to the ground.
229.

There is no body camera evidence that shows Goldstein actively resisting

arrest or attempting to injure Allard while on the ground.
230.

Goldstein was handcuffed and prostrate when he was pepper sprayed.

There is no justification for the unreasonable and gratuitous use of pepper spray against
Goldstein.
231.

There are no alleged facts that explain why Goldstein had to be

handcuffed and then thrown on the ground. And the purported reason to pepper spray
Goldstein does not comport with the video evidence.
232.

The vast majority of this incident was captured by the officer’s body

cameras, as well as by several bystander’s cell phone videos.
OFFICERS’ STATEMENTS CONTRADICTED BY VIDEO EVIDENCE
233.

There are specific statements in Allard’s Supplemental Report that are

directly contradicted by the video evidence.

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234.

For example, Allard states: “I could hear the noise from approximately 1

city block in either direction, clearly in violation of local law.”
235.

There is no video evidence Allard was standing at any time at a distance

of one city block (whatever that distance actually is) in any direction from 702 Hudson
Street, Ithaca, to be able to make this statement definitively.
236.

Allard states: “We walked onto the porch landing area and the door to the

apartment was open with a DJ projecting music, beer chugging, a keg being served and
over 100 people (mostly appearing to be under 21 years of age) being very loud and
having a party which did not appear to be in control.”
237.

There is no video evidence showing a DJ, showing anyone chugging beer,

showing a keg, nor does the video evidence show 100 people Allard somehow knows
appear under the age of 21 years, or that the party was out of control.
238.

In fact, the video evidence clearly shows that people leaving the party as

the officers approached were very polite and respectful to the officers, responding to
the officers wishes that they have a safe night with “You too,” and “Thank you,” and
the like. Obviously, the party was not out of control. The only thing out of control at
this party were the officers who illegally entered the residence without a warrant, with
no exigent circumstances, and who illegally detained and arrested Goldstein,
prompting many of the party-goers to protest their actions.
239.

Allard states: “I yelled to the people in the doorway, asking for a resident

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and they turned away from me, retreating inside.”
240.

The video evidence contradicts this statement, because, as shown on the

video, a single female is standing in or about the doorway when the officers approach.
Allard yells “Okay guys, who lives here?”, and the female responds “I don’t know.” At
which point, Allard and Bechtold illegally enter the residence and start yelling
“Everybody out,” and words to that effect.
241.

Allard and Bechtold only asked one person “who lives here?” before

entering the residence, not “people in the doorway,” and the person responded “I don’t
know.” They did not wait, or ask anyone else if they know who lives at the residence.
They did not ask anyone to get a resident to come to the front door to speak to them.
242.

Allard states: “It was clear that I needed to get the attention of the party

goers to get the party to settle down/clear out so I could address residents. We entered
to shut the party down and address the residents.”
243.

These stated facts demonstrate Allard’s and Bechtold’s entry into the

residence was illegal, under no warrant, and under no exigent circumstances.
244.

Allard states: “At this time, I looked over and saw PO Bechtold struggling

with Mr. Goldstein. It appeared that Mr. Goldstein had been ordered numerous times
by PO Bechtold to stay with PO Bechtold and that he not complying.”
245.

The video evidence shows no struggle. There is no video evidence that

supports the contention Allard makes that “[i]t appeared that Mr. Goldstein had been

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ordered numerous times by PO Bechtold to stay with PO Bechtold and that he was not
complying.”
246.

In fact, the video evidence demonstrates there was no way for Allard to

have known, one way or the other, whether Bechtold had ordered Goldstein to stay
with him, much less whether Goldstein was complying.
247.

Allard states that Goldstein was “adamant now that he was not a resident

and that the police could not detain him. I asked him if he told PO Bechtold that he was
a residence and he stated he did not.”
248.

In fact, Bechtold’s body cam shows that Goldstein clearly told Bechtold

Goldstein lived there, and the likely reason for Allard’s confusion on this point was his
failure to ask Bechtold what Goldstein told him.
249.

Allard states: “It was also clear that Mr. Goldstein was highly intoxicated

via alcohol.”
250.

The video evidence does not show whether Goldstein was intoxicated or

not, or whether, if he was, it was secondary to alcohol. Goldstein is standing, without
swaying, he is speaking without slurring his words, nor does he seem to be confused at
all, or even unusually aggressive. He is obviously, and with good reason, irate that the
officers had illegally entered his residence, and were detaining him as evidenced by him
questioning whether he was detained, and if he was detained, for what.
251.

Allard states: “I then had to place my attention back to Mr. Goldstein who

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was struggling more aggressively, putting his whole body weight into pulling away
from me.

Mr. Goldstein was also yelling at party goers in the bathroom to intervene

with my arrest of his person.”
252.

Again, the video evidence contradicts this statement.

At one point,

Goldstein is yelling to a young woman, possibly Judge, possibly Wahler. As the young
woman steps back into a kitchen area, Goldstein leans forward to continue to speak to
her. His actions are clearly directed at communicating with the young woman, not
“struggling more aggressively, putting his whole body weight into pulling away from”
Allard.

Further, Goldstein is apparently yelling to her to get a video camera,

presumably to film his illegal arrest, but Goldstein in no way asked, goaded, or
requested anyone intervene with Allard’s arrest of him.
253.

Allard states: “Other people were running over to attempt to assist Mr.

Goldstein in getting away from me, and I had to pull him off the wall so I could keep an
eye on PO Bechtold’s back. In response, Mr. Goldstein pulled away from me again, and
I used a hip toss technique to place him on the floor of the residence…”
254.

This is clearly false, as the video evidence shows no people running over

to attempt to assist Goldstein get away from Allard, and because Allard threw
Goldstein to the ground immediately after he had leaned forward to continue talking to
the young woman who was backing into the kitchen area.
255.

Allard continues in his report: “Subjects were continuing to surround and

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attempt to interfere with PO Bechtold and I by reaching to the subject in our control and
attempting to place their bodies in our way to shield Mr. Goldstein.”
256.

Again, this is a false statement when compared against the actual video

evidence which shows no one attempting to place their bodies in Allard’s or Bechtold’s
way to shield Goldstein. That statement is pure fiction.
257.

Allard continues with his dramatic and fictional account: “One [white

female], later identified as Madison Wahler, got down on her knees, grabbing the head
of Mr. Goldstein, effectively using her body to shield him from me.”
258.

This statement is untrue, because the video evidence shows that while

Wahler was down on the ground holding or near to Goldstein’s head, she was on the
opposite side of Allard, and her body was not effectively, or ineffectively, or even with
any reasonable interpretation, in any way using her body to shield Goldstein from
Allard.
259.

In fact, it appears Wahler is asking Allard why he pushed Goldstein to the

ground, but the audio is unclear.
260.

At the point in time Wahler kneels down to Goldstein, Goldstein is

handcuffed behind his back, he is lying prostrate on his belly on the floor, and Allard is
on top of them. Allard’s body cam clearly shows Wahler in front of him, and not in
between him and Goldstein.
261.

Allard continues “…after I pushed Ms. Wahler this time, Mr. Goldstein

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began to physically resist, moving his body out from underneath me and threatening to
injure me. I had to push Mr. Goldstein down by his head, however he continued to
maneuver his body out from underneath me and push his head into my body, near my
groin area. It appeared to me that he was trying to either headbutt me or bite me and
he was acting very irrational.”
262.

Once again, the video evidence belies this fantastic narrative. It is clear

and undisputed from the video evidence that Allard pushed Wahler away and she fell
on her butt yelling “Stop, stop.” Goldstein, who is on the floor, on his belly, with his
handcuffs behind his back, and Allard on top of him, twists around and yells at Allard
over his shoulder. There is no video evidence whatsoever that shows Goldstein trying
to maneuver his body out from underneath him, or push his head into Allard’s body, or
groin area. There is nothing in the video that could even be construed as showing
Goldstein trying to headbutt or bite Allard.
263.

Allard writes he “had to gain full compliance from Mr. Goldstein, or risk

injury to myself from others coming towards me. I did then deploy a 1-2 second burst
of pepper spray to the face of Mr. Goldstein, which was immediately effective in
calming him down and stopping his aggressive resistant behavior.”
264.

The video clearly shows that in the seconds before Allard pepper sprayed

Goldstein, no one was coming towards him.
265.

Allard then writes: “I also saw Mr. Leone move up and push PO Bechtold

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towards me with both hands.”
266.

There is no video evidence to support this from either Allard’s or

Bechtold’s body cam, and it appears that it was Bechtold that pushed Leone away.
267.

Allard write: “PO Bechtold was not able to keep custody of Ms. Judge and

she fled from the area.”
268.

Allard conveniently leaves out the fact that when he pepper sprayed

Goldstein, some of the pepper spray got into Bechtold’s eyes. The video evidence
clearly shows Bechtold releasing his grip on Judge, standing, and walking away from
her prone body, rubbing his eyes.
269.

Two young men, one of them Leone, approach Judge who is still on the

floor to comfort her, and it appears one of the them, the male in the white jersey, picks
her up to take her into the kitchen.
270.

There is no video evidence Judge fled the scene.

271.

Allard writes “It should be further noted that I was able to see Mr. Leone

attempting to intervene during the entire call from the time Mr. Goldstein was placed
into handcuffs, making it clear he was lying about his involvement.”
272.

The only thing the video makes clear is that Allard is lying about Leone’s

involvement “during the entire call” since the video does not show Leone attempting to
intervene, but rather resisting Bechtold’s illegal assault of him.
273.

Bechtold’s Supplemental Report contains several similar distortions of the

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facts like Allard’s.
274.

Bechtold writes “A few very intoxicated people walked out of the upstairs

door and down the stairs in our direction.”
275.

The video shows people leaving, but nothing in their behavior gives any

indication that they are “very intoxicated,” and, in fact, by the way they respond to the
officers’ greetings they do not appear “very intoxicated.”
276.

Bechtold writes: “We walked up the stairs and found the door to the

residence wide open. There was a female standing near the doorway, just inside the
house. PO ALLARD asked the female if she lived there and she turned and walked
back into the home without answering.”
277.

The video evidence shows this statement is false, as the video evidence

clearly shows the woman answering “I don’t know” to Allard’s question.
278.

Of note, Bechtold’s report indicates that Goldstein told Bechtold he was a

resident.
INJURIES TO GOLDSTEIN
279.

On November 19, 2016 Goldstein sought emergency medical attention

and was diagnosed with Chemical conjunctivitis in both eyes, and Scleral abrasion in
the left eye, Goldstein was referred to an ophthalmologist.
280.

On November 22, 2016, Goldstein was treated for a 2-day follow up to

injury, and was diagnosed with severe abrasion/chemosis with almost complete

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epithelial loss. A Prokera lens was inserted due to a non-healing corneal abrasion and
epithelial loss. Goldstein’s eye was noted to be quite painful and blurry.
281.

During that follow up visit it was further noted that Goldstein’s limbal

stem cells were 75% destroyed. To treat this serious injury, an amniotic membrane graft
was attempted.
282.

On November 28, 2016 Goldstein went for 5-day follow-up. He could not

see out of the Prokera lens, and his eyes were very light sensitive. Although the lens
was scheduled to be removed at this visit, the Physician found that it needed more time
to heal.
283.

The lens were removed on December 2, 2016 and the eye was bandaged

for three days.
284.

On December 5, 2016 the bandage was removed, but light sensitive,

blurry vision persisted and there was chronic tearing in the left eye.
285.

Goldstein is a student at Ithaca College and this injury occurred during

his final exam period, which adversely affected his academic performance because he
was unable to see well. This violation of his civil rights has left him with permanent
damage to his vision, and pain and suffering.
286.

Allard acted maliciously and wantonly, with the intent to injure

Goldstein, in committing the acts described in this complaint, warranting the
imposition of punitive damages.

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287.

On January 9, 2017, after reviewing all relevant video and reports, upon

application of the Tompkins County District Attorney, and with the consent of
Goldstein and his Attorney, John A. Fitzgerald Esq., all charges related to this incident
against Goldstein were Ordered Dismissed with prejudice by the Ithaca City Court.
Exhibit 5.
COUNT ONE
GOLDSTEIN v. ALLARD
42 U.S.C. § 1983 – EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

288.

All of the allegations of the complaint are incorporated.

289.

42 U.S.C. § 1983 provides that:

Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia
subjects or causes to be subjected any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the constitution and law shall be
liable to the party injured in an action at law, suit in equity, or other
appropriate proceeding for redress…
290.

Goldstein is a citizen of the United States and Allard is a “person” for

purposes of 42 U.S.C. § 1983.
291.

Allard, at all times relevant, was acting under the color of state law in his

capacity as an Ithaca City Police Officer and his accts or omissions were conduct within
the scope of his official duties or employment.

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292.

Goldstein has a clearly established right under the Fourth Amendment to

be secure in his person from unreasonably seizure through excessive force. Graham v.
Connor, 490 U.S. 386, 397 (1989).
293.

Goldstein also had the clearly established Constitutional right under the

Fourteenth Amendment to bodily integrity and to be free from excessive force by law
enforcement.
294.

Any reasonable police officer knew or should have known of these rights

at the time of the complained of conduct as they were clearly established at that time.
295.

A police officer's application of force is excessive in violation of the Fourth

Amendment, "if it is objectively unreasonable `in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.'" Graham,
490 U.S. 386, 397 (1989)).
296.

More specifically, "[d]etermining whether the force used to effect a

particular seizure is `reasonable' under the Fourth Amendment requires 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, 490 U.S. at 396 (citations and quotation marks omitted).
297.

Allard’s actions and use of force, as described in this Complaint, were

objectively unreasonable in light of the facts and circumstances confronting him and
violated Goldstein’s Fourth Amendment rights.

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298.

Allard’s actions and use of force, as described in this Complaint, were also

malicious and/or involved reckless, callous, and deliberate indifference to Goldstein’s
federally protected rights. The force used by Allard shocks the conscience and violated
Goldstein’s Fourteenth Amendment rights.
299.

Allard unlawfully seized Goldstein by means of objectively unreasonable,

excessive and conscious-shocking physical force, thereby unreasonably restraining
Goldstein of his freedom.
300.

Allard’s use of physical force against Goldstein was objectively

unreasonably gratuitous, and excessive in light of the facts and circumstances
confronting Allard in that:
i.

Goldstein had a legitimate reason to inquire whether he was being detained and

whether he was free to leave;
ii.

Allard assigned his fear of the crowd’s reaction to his violence against Goldstein

as an excuse to further injure Goldstein;
iii.

Goldstein never engaged in criminal behavior in the presence of Allard;

iv.

Allard exacerbated the facts and circumstances by throwing Goldstein on the

ground when he was handcuffed, and then pepper spraying him directly in the eyes
when the remaining attendees expressed concern;
v.

Allard assigned the criminal behavior of others to Goldstein in an attempt to

collectively punish the disbelieving onlookers;

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vi.

Allard had no authority to arrest Goldstein;

vii.

Allard had no authority to throw Goldstein onto the ground while handcuffed;

viii.

Allard exacerbated the facts and circumstances by grabbing Goldstein’s arm and

tossing him onto the ground, without
ix.

Goldstein made no attempt to flee; and

x.

Allard illegally pepper sprayed Goldstein while he was handcuffed and not

resisting arrest or detention with the intent and for the purpose of summarily punishing
Goldstein.
301.

The force used caused serious and permanent bodily injury to Goldstein.

302.

Allard engaged in the conduct described in this Complaint willfully,

maliciously, in bad-faith, and in reckless disregard of Goldstein’s federally protected
constitutional rights.
303.

Allard did so with shocking and willful indifference to Goldstein’s rights

and with conscious awareness that he would cause Goldstein severe physical and
emotional injuries.
304.

The acts or omissions of Allard were moving forces behind Goldstein’s

injuries.
305.

The acts of omissions of Allard, as described in this Complaint,

intentionally deprived Goldstein of his constitutional rights and caused him other
damages.

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306.

Allard is not entitled to qualified immunity for the complained of

conduct.
307.

Allard, at all times relevant, was acting pursuant to municipal custom,

policy, decision, ordinance, regulation, widespread habit, usage, or practice in his
actions pertaining to Goldstein.
308.

As a proximate result of Allard’s unlawful conduct, Goldstein has

suffered actual physical and emotional injuries, and other damages and losses as
described in this Complaint entitling him to compensatory and special damages, in
amounts to be determined at trial. As a further result of Allard’s unlawful conduct,
Goldstein has incurred special damages, including medical related expenses and may
continue to incur further medical and other special damages, in amounts to be
established at trial.
309.

Upon information and belief, Goldstein may suffer lost future earnings

and impaired earnings capacities from the not yet fully ascertained sequelae of the
injuries to his eyes, in amounts to be ascertained at trial. Goldstein is further entitled to
attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, pre-judgment interest and costs
as allowable by federal law. There may also be special damages for lien interests.
310.

Upon information and belief, Allard will continue in his unlawful

conduct, unless and until restrained by this court.

If Allard is not restrained as

specified below, Goldstein will suffer immediate and irreparable injury, loss, and

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damage in that Goldstein will continue to suffer from the fear of additional unlawful
excessive force, and will continue to suffer humiliation and indignity, as well as great
physical and mental pain and suffering resulting from Allard’s ongoing deprivation of
his rights. Therefore, Goldstein requests the following injunctive relief: Permanently
enjoin Allard from using, or deploying pepper spray in arresting or detaining suspects.
311.

In addition to compensatory, economic, consequential, and special

damages, Goldstein is entitled to punitive damages against Allard under 42 U.S.C. §
1983, in that the actions of Allard were taken maliciously, willfully, or with a reckless or
wanton disregard of the constitutional rights of Goldstein.
COUNT TWO
GOLDSTEIN v. CITY OF ITHACA, ALLARD and BECHTOLD
42 U.S.C. § 1983 – DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW
IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION
312.

All of the allegations are incorporated.

313.

On November 17, 2016, the Ithaca City Police Department, by Allard and

Bechtold, without a search warrant, without an arrest warrant, and without any further
substantiating evidence, probable cause, or evidence that a crime was being committed,
unlawfully entered and searched the home of Plaintiff, Goldstein.
314.

On November 17, 2016, Allard and Bechtold were not in possession of

facts to give them exigent circumstances to allow them to enter and search Goldstein’s
residence.

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315.

On November 17, 2016, Goldstein did not give, nor did any other resident

at 702 Hudson Street, Ithaca, New York, give consent to Allard and Bechtold to enter
and search the residence.
316.

Nevertheless, on November 17, 2016, Allard and Bechtold entered and

searched Goldstein’s residence at 702 Hudson Street, Ithaca, New York and detained,
and arrested, and Allard used excessive force on Goldstein.
317.

Goldstein was charged with resisting arrest and obstruction of

governmental administration, and both charges were dismissed.
318.

Goldstein’s residence was entered and searched by Allard and Bechtold

on November 17, 2016 without consent, without a warrant, without probable cause or
exigent circumstances in violation of Goldstein’s rights as protected by the Fourth and
Fourteenth Amendments to the United States Constitution.
319.

During the November 17, 2016 entry and search of Goldstein’s residence

by Allard and Bechtold, Goldstein was detained in violation of Goldstein’s rights as
protected by the Fourth and Fourteenth Amendments to the United States Constitution.
320.

Allard and Bechtold failed to obtain a valid search warrant or arrest

warrant before the detention and/or search of Goldstein’s residence on November 17,
2016.
321.

Allard and Bechtold acted with malice, deliberate indifference for the

constitutional rights of Goldstein, and acted with a conscious disregard for the

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constitutional rights of Goldstein, resulting in injuries and damages to Goldstein as
alleged in this Complaint.
322.

Under the Fourth Amendment of the United States Constitution and

Article 1, § 12 of the New York Constitution, warrantless entries into an individual’s
home are presumptively unreasonable, subject to certain carefully circumscribed
exceptions (see United States v. Karo, 468 U.S. 705, 717 (1984); People v. McBride, 14 NY3d
440, 445 (2010), cert denied 562 US 931 (2010); People v. Molnar, 98 NY2d 328, 331 (2002);
People v. Knapp, 52 NY2d 689, 694 (1981)). Under the New York Constitution, the
emergency exception to the warrant requirement permits “the police [to] make a
warrantless entry into a protected area if three prerequisites are met: ‘(1) The police
must have reasonable grounds to believe that there is an emergency at hand and an
immediate need for their assistance for the protection of life or property. (2) The search
must not be primarily motivated by intent to arrest and seize evidence. (3) There must
be some reasonable basis, approximating probable cause, to associate the emergency
with the area or place to be searched.’” (People v. Gibson, 117 AD3d 1317, 1318 (2014),
affd 24 NY3d 1125 (2015), quoting People v. Mitchell, 39 NY2d 173, 177-78 (1976), cert
denied 426 US 853 (1976); see People v. Molnar, 98 NY2d at 332.) The Supreme Court of
the United States has eliminated any consideration of subjective intent – i.e., the second
prong of the New York test – from the emergency exception under the Fourth
Amendment (see Brigham City v. Stuart, 547 US 398, 404-05 (2006)), and the Court of

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Appeal has yet to address whether the second prong of the New York test remains
viable in the wake of that Supreme Court determination (see People v. Doll, 21 NY3d 665,
671 n (2013), cert denied ___ US ___, 134 S Ct 1552 (2014); People v. Dallas, 8 NY3d 890,
891 (2007)).
323.

With respect to the three prongs of the emergency exception test:
a. Under the first prong, the police must have reasonable grounds to believe
that there is an emergency at hand and an immediate need for their
assistance for the protection of life or property.
i. There were no reasonable grounds here for the police to believe
that there was an emergency as the police were responding to a
noise complaint call.
b. Under the second prong, the search must not be primarily motivated by
intent to arrest and seize evidence.
i. Here, the search was primarily motivated by the intent to issue a
citation or make an arrest for an alleged local law violation.
c. Under the third prong, there must be some reasonable basis,
approximating probable cause, to associate the emergency with the area
or place to be searched.
i. Here, since there was no emergency, no reasonable basis existed to
make such an association with the area or place to be searched.

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324.

Accordingly, the City, Allard, and Bechtold, cannot justify the illegal

search and seizure under the emergency exception to the warrant requirement.
325.

In being deprived of his personal freedom and liberty, the harm suffered

by Goldstein was continuous in nature. The acts and omissions of Allard and Bechtold,
and each of them, were all part of Allard’s and Bechtold’s continuous acts of
maliciously prosecuting and continuously prosecuting Goldstein for crimes which he
did not commit. The continuous deprivation of Goldstein’s civil rights was manifested
in numerous acts and omissions of Allard and Bechtold, and these unlawful,
discriminatory and unconstitutional acts continued until such time as the charges
against Goldstein were dismissed.
326.

Goldstein is informed and believes and alleges that Allard and Bechtold

engaged in a scheme and a conspiracy to commit all of the acts and omissions alleged in
this complaint, surrounding Goldstein’s unconstitutional deprivations of liberty
without due process of law, and to conceal, distort and obstruct the true facts of the
incident to those who investigated the circumstances of Goldstein’s unconstitutional
detention and search, and Goldstein’s subjection to excessive force by Allard.

In

pursuit of this conspiracy, Allard and Bechtold made false statements, or distorted the
truth, regarding their conduct and that of Goldstein’s during this incident, and
committed other overt acts in furtherance of this conspiracy.

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327.

As a proximate result of the described acts, Goldstein was deprived of

rights and immunities secured to him under the Constitution and laws of the United
States including, but not limited to rights under the Fourth and Fourteenth
Amendments to be secure in their person, to be free from punishment without due
process and to equal protection of the laws. The search and seizure of Goldstein
amounted to an arbitrary intrusion by Allard and Bechtold into the security of
Goldstein’s privacy and person, and were not authorized by law, and in that the
contacts on Goldstein’s person, and restrictions of his movements deprived Goldstein of
liberty and property without due process of law.
328.

At all times mentioned in this Complaint, and prior, the City and the

Ithaca City Police Department had a duty:
a. To investigate the background and suitability of applicants to become police
officers and to screen out applicants who have demonstrated a propensity to make
illegal arrests and detentions, propensity to falsify evidence, and a propensity to
withhold exculpatory evidence;
b. To notify the Tompkins County District Attorney’s Office of allegations of
criminal misconduct by the Ithaca City Police Department;
c. To impose disciplinary sanctions, including, where appropriate, reprimand,
suspension, or firing of Ithaca City Police Officers found to have made illegal searches,
detentions, and arrests, and who have falsified evidence;

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d. To train Ithaca City Police Officers to respect and protect the federal
constitutional and New York constitutional and statutory rights of citizens, homes,
detainees, and arrestees;
e. To supervise Ithaca City Police Officers to assure that they do not make illegal
detentions, searches, and arrests, falsify arrests, and withhold exculpatory evidence;
f. To supervise Ithaca City Police Officers to assure that they respect and protect
the federal constitutional and New York constitutional and statutory rights of citizens,
detainees, and arrestees;
g. Not to retain Ithaca City Police Officers who demonstrate a propensity to make
illegal arrests and detentions, propensity to falsify evidence and a propensity to
withhold exculpatory evidence; and
h. To refrain from making illegal arrests and detentions, falsification of evidence
and to refrain from withholding exculpatory evidence.
329.

The City, Allard, and Bechtold, and each of them, negligently and

carelessly breached the above described duties.
330.

As a proximate result of the foregoing, Goldstein suffered intense physical

and emotional pain, anguish, distress, and despair, and was deprived of his rights
under the Fourth and Fourteenth Amendments to the United States Constitution.
331.

As a direct and proximate result of the unlawful and malicious acts of

Allard and Bechtold, all committed under color of their authority as Ithaca City Police

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Officers, Goldstein suffered grievous bodily harm and deprivation of liberty, all of
which is in violation of his rights under the laws and Constitution of the United States,
in particular the Fourth and Fourteenth Amendments thereof, and 42 U.S.C. §§ 1981,
1983, 1985, 1986, and 1988.
332.

Upon information and belief, after being employed and appointed as

police officers for the City, and prior to commission of the acts complained of in this
complaint, Allard and Bechtold, acting under the color of their authority as police
officers, in the course and scope of their employment, committed similar acts and
inflicted similar injuries and damages upon other persons without reasonable cause or
justification.
333.

Upon information and belief, the City knew, or in the exercise of

reasonable care, should have known of these prior acts and that Allard and/or Bechtold
were unfit and prone to commit them but negligently failed to take stops to properly
train, supervise, discipline and/or terminate Allard and/or Bechtold.
334.

In doing the acts and in failing and omitting to act, Allard and/or Bechtold

acted with the implied and actual permission and consent of the City.
335.

As a proximate result of the negligence of the City, Goldstein was

damaged and injured.
336.

The aforesaid neglect, failure, and refusal to instruct and train constituted

execution of the patterns, practices, policies, and customs of the City.

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337.

The aforesaid neglect, failure, and refusal to instruct and train, and

promulgation and enforcement of policies, practices, and customs constituted an
execution of the patterns, policies, practices, and customs of the City.
338.

As a direct and proximate result of the foregoing, Goldstein was deprived

of his civil rights under the Fourth and Fourteenth Amendments of the United States
Constitution.
339.

As a direct and proximate result of the foregoing, Goldstein has been

harmed in that Goldstein was wrongfully incarcerated, searched, and detained,
subjected to humiliation and indignity, and suffered great physical and emotional pain
and suffering, all to his damage in an amount according to proof at trial.
340.

Upon information and belief, Allard and Bechtold, and each of them, will

continue in their unlawful conduct, unless and until restrained by this court. If Allard
and Bechtold are not restrained, as specified below, Goldstein will suffer immediate
and irreparable injury, loss, and damage in that Goldstein will continue to suffer from
the fear of additional unlawful searches, seizures, illegal arrests, and will continue to
suffer humiliation and indignity, as well as great physical and mental pain and
suffering resulting from Allard’s and Bechtold’s ongoing deprivation of his rights.
Therefore, Goldstein requests the following injunctive relief: Permanently enjoin the
City, and the Ithaca City Police Department, and their agents, employees, and

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successors, and all persons in active conduct or participation with Allard and Bechtold,
from engaging in unlawful searches, detentions, and arrests.
341.

The injury and damages suffered by Goldstein, and for which recovery is

sought, includes general damages for injuries for emotional distress, and injuries to the
body and loss of enjoyment of life in an amount in excess of $75,000.00; medical
expenses and medical care and treatment for his injuries in an amount not yet fully
ascertained; and loss of earnings and loss of capacity to earn a living in an amount not
yet fully ascertained.
342.

The City, Allard, and Bechtold acted willfully, maliciously, intentionally,

oppressively, and in reckless disregard of the possible consequences of their conduct
and accordingly, Goldstein is entitled to and hereby demands punitive and exemplary
damages in an amount to be proven at trial.
343.

Goldstein is entitled to and hereby demands costs, attorneys’ fees, and

expenses pursuant to 42 U.S.C. § 1988.
COUNT THREE
GOLDSTEIN v. BECHTOLD
42 U.S.C. § 1983 – FAILURE TO INTERVENE
DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION
OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION
344.

All of the allegations are incorporated.

345.

Bechtold knew or should have known, or deliberately ignored that

Allard’s entry into Goldstein’s residence was a constitutional violation against
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Goldstein, as Allard entered Goldstein’s residence without a search warrant, without an
arrest warrant, and without any further substantiating evidence, probable cause, or
evidence that a crime was being committed, and in the absence of any exigent
circumstances allowing Allard to enter Goldstein’s residence.
346.

Bechtold had a reasonable opportunity to intervene and prevent the

violation of Goldstein’s constitutional rights by Allard, but failed to act.
347.

Bechtold failed to take any affirmative steps to intervene with Allard’s

violations of Goldstein’s constitutional rights.
348.

Bechtold had an affirmative duty to intervene on behalf of Goldstein,

whose constitutional rights were being violated in the presence of Bechtold.
349.

As a result of Bechtold’s failure to intervene, Goldstein’s constitutional

rights were violated.
350.

As a result of the foregoing, Goldstein is entitled to compensatory

damages in an amount to be fixed by a jury, and is further entitled to punitive damages
against Allard in an amount to be fixed by a jury, plus reasonable attorney’s fees, costs,
and disbursements of this action.

351.

COUNT FOUR
GOLDSTEIN v. BECHTOLD
42 U.S.C. § 1983 – FAILURE TO INTERVENE
EXCESSIVE FORCE
All of the allegations are incorporated.

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352.

Bechtold knew or should have known, or deliberately ignored that

Allard’s use of paper spray against Goldstein was excessive force in violation of
Goldstein’s constitutional rights.
353.

Bechtold had a reasonable opportunity to intervene and prevent the

violation of Goldstein’s constitutional rights by Allard, but failed to act.
354.

Bechtold failed to take any affirmative steps to intervene with Allard’s

violations of Goldstein’s constitutional rights.
355.

Bechtold had an affirmative duty to intervene on behalf of Goldstein,

whose constitutional rights were being violated in the presence of Bechtold.
356.

As a result of Bechtold’s failure to intervene, Goldstein’s constitutional

rights were violated.
357.

As a result of the foregoing, Goldstein is entitled to compensatory

damages in an amount to be fixed by a jury, and is further entitled to punitive damages
against Allard in an amount to be fixed by a jury, plus reasonable attorney’s fees, costs,
and disbursements of this action.
COUNT FIVE
GOLDSTEIN v. ALLARD and BECHTOLD
42 U.S.C. § 1983 – MALICIOUS PROSECUTION IN VIOLATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION
358.

All of the allegations of this Complaint are incorporated.

359.

42 U.S.C. § 1983 provides that:

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Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia
subjects or causes to be subjected any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the constitution and law shall be
liable to the party injured in an action at law, suit in equity, or other
appropriate proceeding for redress…
360.

Goldstein is a citizen of the United States and Allard and Bechtold are

each a “person” for purposes of 42 U.S.C. § 1983.
361.

Allard and Bechtold, at all relevant times, were acting under color of state

law in their capacity as Ithaca City Police Officers and their acts or omissions were
conducted within the scope of their official duties or employment.
362.

At the time of the complained of events, Goldstein had a clearly

established constitutional right to be free from malicious prosecution without probable
cause under the Fourth Amendment and in violation of due process under the
Fourteenth Amendment.
363.

Any reasonable police officer knew or should have known of these rights

at the time of the complained of conduct as they were clearly established at that time.
364.

Allard and Bechtold violated Goldstein’s Fourth and Fourteenth

Amendment rights to be free from malicious prosecution without probable cause and
without due process when they worked in concert to secure false charges against him,
resulting in his unlawful confinement and prosecution.

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365.

Allard and Bechtold conspired or acted in concert to institute, procure and

continue a criminal proceeding for OGA and Resisting Arrest against Goldstein without
probable cause.
366.

Allard and Bechtold engaged in the conduct described in this Complaint

willfully, maliciously, in bad-faith, and in reckless disregard of Goldstein’s federally
protected constitutional rights.
367.

The procurement of prosecution against Goldstein for the known to be

false allegation of OGA and Resisting Arrest were malicious, shocking, and objectively
unreasonably in light of the circumstances.
368.

Those criminal proceedings terminated in Goldstein’s favor.

The

prosecutor dropped the charges without any compromise by Goldstein, reflecting a
prosecutorial judgment that the case could not have been proven beyond a reasonable
doubt.
369.

The acts or omissions of Allard and Bechtold were moving forces behind

Goldstein’s injuries.
370.

Allard and Bechtold acted in concert and joint action with each other.

371.

The acts or omission of Allard and Bechtold as described herein

intentionally deprived Goldstein of his constitutional and statutory rights and caused
him other damages.

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372.

Allard and Bechtold are not entitled to qualified immunity for the

complained of conduct.
373.

Allard and Bechtold, at all times relevant, were acting pursuant to

municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or
practice in its actions pertaining to Goldstein.
374.

As a proximate result of Allard’s and Bechtold’s unlawful conduct,

Goldstein has suffered actual physical and emotional injuries, and other damages and
losses as described in this Complaint entitling him to compensatory and special
damages, in amounts to be determined at trial. As a further result of Allard’s and
Bechtold’s unlawful conduct, Goldstein has incurred special damages, including
medical related expenses and may continue to incur further medical or other special
damages related expenses, in amounts to be established at trial.
375.

Upon information and belief, Goldstein may suffer lost future earnings

and impaired earnings capacities from the not yet fully ascertained sequelae of the
injuries to his eyes, in amounts to be ascertained in trial. Goldstein is further entitled to
attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, pre-judgment interest and costs
as allowable by federal law. There may also be special damages for lien interests.
376.

In addition to compensatory, economic, consequential, and economic

damages, Goldstein is entitled to punitive damages against Allard and Bechtold under
42 U.S.C. § 1983, in that the actions of Allard and Bechtold were taken maliciously,

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willfully, or with a reckless or wanton disregard of the constitutional rights of
Goldstein.
COUNT SIX
GOLDSTEIN v. CITY OF ITHACA and JOHN BARBER
42 U.S.C. § 1983 – DELIBERATELY INDIFFERENT POLICIES, PRACTICES,
CUSTOMS, TRAINING, AND SUPERVISION IN VIOLATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS AND IN VIOLATION OF 42 U.S.C. § 1981

377.

All of the allegations of this Complaint are incorporated.

378.

42 U.S.C. § 1983 provides that:

Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia
subjects or causes to be subjected any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the constitution and law shall be
liable to the party injured in an action at law, suit in equity, or other
appropriate proceeding for redress…

379.

Goldstein is a citizen of the United States and Allard and Bechtold are

each a “person” for purposes of 42 U.S.C. § 1983.
380.

Defendant City and Barber at all relevant times were acting under color of

state law.
381.

Goldstein had the following clearly established rights at the time of the

complained of conduct:
a. The right to be secure in his person and property from unreasonable search and
seizure through excessive force under the Fourth Amendment;

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b. The right to bodily integrity and to be free from excessive force by law
enforcement under the Fourteenth Amendment;
c. The right to exercise his constitutional rights of free speech under the First
Amendment without retaliation;
d. The right to be free from malicious prosecution under the Fourth and Fourteenth
Amendments
382.

The City and Barber knew or should have known of these rights at the

time of the complained of conduct as they were clearly established at that time.
383.

The acts or omissions of the City and Barber, as described in this

Complaint, deprived Goldstein of his constitutional and statutory rights and caused
him other damages.
384.

The acts or omissions of the City and Barber, as described in this

Complaint, intentionally deprived Goldstein of his constitutional and statutory rights
and caused him other damages.
385.

The City and Barber are not entitled to qualified immunity for the

complained of conduct.
386.

The City and Barber were, at all relevant times, policy makers for the City

and the Ithaca City Police Department, and in that capacity established policies,
procedures, customs, and/or practices for the City and the Ithaca City Police
Department.

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387.

The City and Barber maintained policies, procedures, customs, and/or

practices exhibiting deliberate indifference to the constitutional rights of citizens,
including Goldstein, which were moving forces behind and proximately caused the
violations of Goldstein’s constitutional rights as set forth in this Complaint, and
resulted from a conscious or deliberate choice to follow a course of action from among
various available alternatives.
388.

The City and Barber have created an atmosphere of lawlessness, and have

developed and maintained long-standing, department-wide customs, law enforcement
related policies, procedures, customs, practices, and/or failed to properly train and/or
supervise its officers in a manner amounting to deliberate indifference to the
constitutional rights of Goldstein and of the public.
389.

In light of the duties and responsibilities of those police officers that

participate in arrests and preparation of police reports on alleged crimes, the need for
specialized training is so obvious, and the inadequacy of training and/or supervision is
so likely to result in the violation of constitutional and federal rights, such as those
described in this Complaint, that the failure to provide such specialized training and
supervision evidences a deliberate indifference to those rights.
390.

The deliberately indifferent training and supervision provided by the City

and Barber resulted from a conscious or deliberate choice to follow a course of action

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from among various alternatives available to the City and Barber and were moving
forces in the constitutional and federal violation injuries complained of by Goldstein.
391.

As a direct result of the City’s and Barber’s unlawful conduct, Goldstein

has suffered actual physical and emotional injuries, and other damages and losses as
described in this Complaint entitling him to compensatory and special damages, in
amounts to be determined at trial.

As a further result of the City’s and Barber’s

unlawful conduct, Goldstein has incurred special damages, including medical related
expenses and may continue to incur further medical or other special damages related
expenses, in amounts to be established at trial.
392.

Upon information and belief, Goldstein may suffer lost future earnings

and impaired earnings capacities from the not yet fully ascertained sequelae of the
injuries to his eyes, in amounts to be ascertained in trial. Goldstein is further entitled to
attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, pre-judgment interest and costs
as allowable by federal law. There may also be special damages for lien interests.
393.

Goldstein also seeks appropriate declaratory and injunctive relief

pursuant to 42 U.S.C. § 1983 to redress the City’s and Barber’s above described ongoing
deliberate indifference in policies, practices, habits, customs, usages, training, and
supervision with respect to the rights described in this Complaint.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiff, Kyle Goldstein, prays that this Court enter judgment for
Plaintiff and against each of the Defendants and grant:
A. Compensatory and consequential damages, including damages for emotional
distress, humiliation, loss of enjoyment of life, and other pain and suffering on all
claims allowed by law in an amount to be determined at trial;
B. Economic losses on all claims allowed by law;
C. Special damages in an amount to be determined at trial;
D. Punitive damages on all claims allowed by law against individual Defendant and
in an amount to be determined at trial;
E. An injunction against Allard enjoining him from using, or deploying pepper
spray in the detention or arrest of suspects;
F. A permanent injunction against the City, and the Ithaca City Police Department,
and their agents, employees, and successors, and all persons in active conduct or
participation with Allard and Bechtold, from engaging in unlawful searches,
detentions, and arrests;
G. Attorneys’ fees and the costs associated with this action under 42 U.S.C. § 1988,
including expert witness fees, on all claims allowed by law;
H. Pre- and post-judgment interest at the lawful rate; and

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I. Any further relief that this court deems just and proper, and any other
appropriate relief at law and equity.
PLAINTIFF REQUESTS A TRIAL BY JURY.

_____________________________________________________
Edward E. Kopko, Esq.
NDNY Bar Roll No. 510874
Edward E. Kopko, Lawyer, P.C.
Attorney for Plaintiff, Kyle Goldstein
308 N. Tioga St., 2nd Floor
Ithaca, NY 14850
T: 607.269.1301; F: 607.269.1301
ekopko@ithaca.law
Wednesday, October 10, 2018

_____________________________________________________
John A. Fitzgerald, Esq.
NDNY Bar Roll No. 303022
Attorney for Plaintiff, Kyle Goldstein
308 N. Tioga St.
Ithaca, NY 14850
T: 607.269.7125
jftizgerald@ithaca.law
Wednesday, October 10, 2018

65