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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL PREMO,
COMPLAINT AND DEMAND
FOR JURY TRIAL

Plaintiff,
-v-

13 CV 8141 (WHP)
THE CITY OF NEW YORK, New York City Police
Department (“NYPD”) SERGEANT RICHARD
JONES (Shield No. 4142), NYPD DETECTIVE
TREVOR BOSCO in their individual and official
capacities,
Defendants.

MICHAEL PREMO, by his attorneys REBECCA HEINEGG of the Law Office of
Maurus and Heinegg, as and for his complaint, does hereby state and allege:
PRELIMINARY STATEMENT
1.

This is a civil rights action brought to vindicate plaintiff’s rights under the First, Fourth, and
Fourteenth Amendments of the Constitution of the United States, through the Civil Rights
Act of 1871, as amended, codified as 42 U.S.C. § 1983; and pendant claims under the
Constitution of the State of New York, Article I, §§ 6, 11, and 12, and the laws of the State
of New York.

2.

Plaintiff MICHAEL PREMO’s rights were violated when officers of the New York City
Police Department (“NYPD”) unconstitutionally and without any legal basis seized,
detained, and arrested him. Plaintiff’s rights were further violated when he was subjected to
excessive force and excessively and unreasonably prolonged, unnecessary, and punitive
detention.

3.

By reason of defendants’ actions, Mr. PREMO was deprived of his constitutional rights.

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4.

Mr. PREMO seeks an award of compensatory and punitive damages and attorneys’ fees.
JURISDICTION AND VENUE

5.

This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988 for violations of the First,
Fourth, and Fourteenth Amendments of the Constitution of the United States.

6.

This Court has subject matter jurisdiction over federal claims pursuant to 28 U.S.C. §§ 1331,
1343(a)(3-4).

7.

This Court has supplemental jurisdiction over plaintiff’s claims against defendants under the
Constitution and laws of the State of New York because they are so related to the within
federal claims that they form part of the same case or controversy pursuant to 28 U.S.C. §
1367(a).

8.

Pursuant to New York State General Municipal Law § 50-E, plaintiff filed a timely Notice
of Claim with the New York City Comptroller on or about March 8, 2013. Plaintiff’s claim
was not adjusted by the New York City Comptroller’s Office within the period of time
provided by statute.

9.

Venue is proper pursuant to 28 U.S.C. §1391(b) in that plaintiff’s claims arose in the
Southern District of New York.

10. An award of costs and attorneys’ fees is authorized pursuant to 42 U.S.C. § 1988.
PARTIES
11. Plaintiff MICHAEL PREMO is an African-American male, and at all times relevant to this
action was a resident of Kings County, New York.
12. Defendant THE CITY OF NEW YORK (“CITY”) is a municipal entity created and
authorized under the laws of the State of New York. It is authorized by law to maintain a
police department, which acts as its agent in the area of law enforcement and for which it is

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ultimately responsible. Defendant CITY assumes the risks incidental to the maintenance of a
police force and the employment of police officers.
13. Defendants NYPD SERGEANT RICHARD JONES and DETECTIVE TREVOR BOSCO
(“individual defendants”) were at all times relevant herein officers, employees and agents of
the NYPD. At all times relevant to this action, the individual defendants were acting under
color of state law as agents, servants, employees and officers of the NYPD. They were
acting for and on behalf of the NYPD at all times relevant herein, with the power and
authority vested in them as officers, agents and employees of the NYPD.
14. The individual defendants are being sued in their individual and official capacities.
15. Defendants’ acts herein complained of were carried out intentionally, recklessly, and with
malice and gross disregard for plaintiff’s rights.
STATEMENT OF FACTS
16. The incident alleged herein occurred at approximately 6:00 p.m. on December 17, 2011 in
the vicinity of 29th Street and 7th Avenue in New York County, and continued thereafter as
set forth below.
17. At the time set forth in paragraph 16, Mr. PREMO was lawfully participating in an Occupy
Wall Street demonstration.
18. Mr. PREMO was proceeding north-bound up 7th Avenue, on the sidewalk, when a number of
NYPD officers blocked the street with orange netting.
19. As Mr. PREMO stood behind the netting, a number of protesters ran through an opening in
the netting to one side of Mr. PREMO.
20. In response, members of the NYPD began pushing on the netting and the people behind it,
knocking Mr. PREMO over.

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21. As Mr. PREMO attempted to get to his feet, defendant RICHARD JONES tackled Mr.
PREMO to the ground.
22. Defendant JONES then placed Mr. PREMO under arrest on charges of felony assault.
23. At the time and place set out in the paragraphs above, defendant Detective BOSCO was
videotaping the events described herein as part of his assignment to the Technical Assistance
and Response Unit (TARU).
24. Mr. PREMO was held at in custody for approximately thirty hours before he was eventually
arraigned on felony assault charges and released on $3,500 bail.
25. Mr. PREMO was charged with violations of New York Penal Law § 120.00, Assault in the
Third Degree, New York Penal Law § 204.30, Resisting Arrest, and New York Penal Law §
240.20, Disorderly Conduct.
26. In a sworn information, Sergeant RICHARD JONES made the following factual allegations
against Mr. PREMO:
Deponent states that deponent observed the defendant obstructing vehicular traffic by
walking in the street at the above-stated-location, and did so while disregarding police
orders to stay within a barricaded area. Defendant’s conduct created a public
disturbance/inconvenience in that it caused disruption of the normal flow of traffic.
Deponent further states that when deponent was attempting to place defendant under
arrest, defendant twisted defendant’s body, refused to place defendant’s hands behind
defendant’s back, and pushed deponent with defendant’s hands and body, causing
deponent to fall twice and causing deponent to suffer a sprained right hand and
substantial pain.
27. Defendant JONES made the sworn statement quoted above, on the basis of which Mr.
PREMO was arrested and charged, with full knowledge that the statement was false.
28. Although Defendant BOSCO had taken video of the events described herein, he did not turn
over this exculpatory evidence to the District Attorney of New York or to Mr. PREMO.

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29. During the period between December 17, 2011 and February 28 2013, Mr. PREMO was
required to make approximately 13 court appearances, including four days of trial, to defend
himself in the criminal proceedings that defendants had initiated against him.
30. On February 25, 2013, Defendant JONES testified at trial, in sum and substance, that he had
observed Mr. PREMO lift up the orange netting, tackle an NYPD Lieutenant, and then
attempt to flee, knocking over two officers three times before he could be restrained.
31. Defendant JONES made the sworn statement referred to above with full knowledge that it
was false.
32. On or about February 27, 2013, Defendant BOSCO represented to an Assistant District
Attorney and defense counsel for Mr. PREMO that he had not taken any video of Mr.
PREMO's arrest.
33. Defendant BOSCO made this representation with full knowledge that it was false.
34. On February 28, 2013, Mr. PREMO was acquitted of all charges at a trial by jury.
35. As a result of this incident, Mr. PREMO suffered physical, psychological and emotional
injuries, mental anguish, suffering, lost wages, humiliation and embarrassment.
FIRST CAUSE OF ACTION
DEPRIVATION OF RIGHTS UNDER THE UNITED STATES CONSTITUTION
THROUGH 42 U.S.C. § 1983
36. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if
fully set forth herein.
37. Defendant RICHARD JONES, under color of state law, unlawfully seized and arrested
plaintiff.
38. Defendant did not have probable cause to arrest plaintiff, nor was it objectively reasonable
for defendant to believe that he did have probable cause to arrest plaintiff.

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39. Defendant's decision to arrest plaintiff was not based upon plaintiff's violation of any
provision of the penal law.
40. Defendant JONES, acting willfully and maliciously, commenced and continued a false
prosecution against plaintiff, and caused him to be prosecuted.
41. Defendant did not have probable cause to commence and continue a criminal proceeding
against plaintiff.
42. Plaintiff was unjustifiably deprived of his liberty for at least 30 hours as a result of the false
arrest.
43. Plaintiff was also required to make approximately 13 court appearances, including four days
of trial, to defend himself against the proceedings initiated against him by defendant JONES.
44. The criminal proceedings were terminated in plaintiff’s favor.
45. By the conduct described above, defendant, under color of state law, subjected plaintiff to the
foregoing acts and omissions without due process of law and in violation of the First, Fourth
and Fourteenth Amendments to the United States Constitution, through 42 U.S.C. § 1983,
thereby depriving plaintiff of his rights, privileges and immunities, including, without
limitation, deprivation of the following constitutional rights:
a. Freedom to engage in protected speech, expression and association;
b. Freedom from unreasonable seizures of his person, including but not limited to
excessive pre-arraignment detention;
c. Freedom from arrest without probable cause;
d. Freedom from false imprisonment, meaning wrongful detention without good faith,
reasonable suspicion or legal justification, and of which plaintiff was aware and did
not consent;
e. Freedom from the lodging of false charges against him by police officers;

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f. Freedom from malicious prosecution by police, that being prosecution without
probable cause that is instituted with malice and that ultimately terminated in
plaintiff’s favor;
g. The enjoyment of equal protection, privileges and immunities under the laws.
46. As a result of defendant’s deprivation of plaintiff’s constitutional rights, plaintiff was
deprived of his liberty, suffered bodily injury, pain and suffering, psychological and
emotional injury, mental anguish, lost wages, humiliation and embarrassment, costs and
expenses, and was otherwise damaged and injured.
SECOND CAUSE OF ACTION
FAILURE TO INTERVENE TO PREVENT VIOLATIONS OF THE FIRST AND
FOURTH AMENDMENTS THROUGH 42 U.S.C. § 1983
47. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if
fully set forth herein.
48. Members of the NYPD have an affirmative duty to assess the constitutionality of
interactions between their fellow members of service and civilians and to intervene where
they observe another member of the Police Department or other law enforcement agency
employing unjustified and excessive force against a civilian or falsely arresting a civilian.
49. Defendant BOSCO was present for the above-described incident and witnessed defendant
JONES unlawfully arrest the plaintiff.
50. Defendant’s arrest and use of force against plaintiff was obviously excessive and unjustified
under the circumstances yet defendant BOSCO failed to take any action or make any effort
to intervene, halt or protect the plaintiff from being subjected to false arrest and excessive
force by defendant JONES.
51. The arrest of plaintiff and the initiation of criminal charges against him was clearly without
probable cause or other legal justification, and was based on facts alleged by defendant

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JONES which defendant BOSCO knew to be false, yet defendant BOSCO failed to take any
action or make any effort to intervene, halt or protect plaintiff from being unlawfully and
wrongfully arrested and prosecuted.
52. Defendant BOSCO’s violations of plaintiff’s constitutional rights by failing to intervene in
another defendant's clearly unconstitutional use of force and plaintiff’s unconstitutional
arrest and prosecution resulted in the injuries and damages set forth above.
THIRD CAUSE OF ACTION
MONELL CLAIM AGAINST DEFENDANT CITY – 42 U.S.C. § 1983
53. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if
fully set forth herein.
54. All of the acts and omissions by the individual police officer defendants described above
were carried out pursuant to overlapping policies and practices of the CITY which were in
existence at the time of the conduct alleged herein and were engaged in with the full
knowledge, consent, and cooperation and under the supervisory authority of the defendant
CITY and its agency, the NYPD.
55. Defendant CITY and the NYPD, by their policy-making agents, servants and employees,
authorized, sanctioned and/or ratified the individual police defendants’ wrongful acts; and/or
failed to prevent or stop those acts; and/or allowed or encouraged those acts to continue.
56. The acts complained of were carried out by the aforementioned individual defendants in
their capacities as police officers and officials pursuant to customs, policies, usages,
practices, procedures and rules of the CITY and the NYPD, all under the supervision of
ranking officers of the NYPD.
57. The aforementioned customs, practices, procedures and rules of the CITY and the NYPD
include, but are not limited to, the following unconstitutional practices:
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a. Unlawful detention of civilians engaged in activity protected by the First
Amendment;
b. Arresting persons known to be innocent in order to meet “productivity goals” (i.e.,
arrest quotas), particularly where such persons are engaged in activity protected by
the First Amendment and/or the consent decree in Black v. Codd;
c. Falsely swearing out criminal complaints, and/or lying and committing perjury during
sworn testimony,
i. in order to protect themselves or other officers; and/or
ii. in order to meet said productivity goals; and/or
iii. in order to chill or obstruct persons from engaging in activity protected by the
First Amendment;
d. Failing to supervise, train, instruct and discipline police officers and encouraging
their misconduct;
e. Discouraging police officers from reporting the corrupt or unlawful acts of other
police officers;
f. Retaliating against officers who report police misconduct; and
g. Failing to intervene to prevent the above-mentioned practices when they reasonably
could have been prevented by a supervisor or other agent or employee of the NYPD.
58. The existence of aforesaid unconstitutional customs and policies may be inferred from
repeated occurrences of similar wrongful conduct, as documented in the following civil
rights actions filed against the CITY and analogous prosecutions of police officers:
a. Berg v. Kelly, 12-CV-3391, (TPG) (S.D.N.Y.) (NYPD officers detain approximately
100 “Occupy” demonstrators for two hours against their will on November 30, 2011
inside a pen built of interlocking metal barricades and then release them without
charges);
b. Garcia v. Bloomberg, 11-CV-6957 (JSR) (S.D.N.Y.) (NYPD arrest 700 “Occupy”
demonstrators on the Brooklyn Bridge on October 1, 2011, for the simple act of
walking on the bridge in what appeared to participants to be an action sanctioned by
police present at the time);
c. Treffs v. City of New York, 12-CV-3030 (HB) (S.D.N.Y.) (legal observer arrested
while observing Occupy Wall Street march on January 1, 2012, without probable
cause and false complaint sworn out against him);
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d. Lambert v. City of New York, 153046-2011 (Sup. Ct., N.Y. Co.) (officers use
excessive force against OWS protestor by affixing plastic handcuffs so tightly that it
caused nerve damage, despite her repeated requests to the officers that the cuffs be
loosened but were not);
e. People v. Alicea, 00012-2013 (Sup. Ct., N.Y. Co.) (NYPD sergeant indicted for
falsely swearing he observed two men engaged in a drug transaction, when video
evidence clearly shows that the two arrestees had no contact);
f. People v. Arbeedy, 06314-2008 (Sup. Ct., Kings Co.) (NYPD narcotics detective
found guilty of planting drugs on two innocent civilians; former undercover NYPD
narcotics officer, Steve Anderson, testifies that fellow narcotics officers routinely
maintained a stash of narcotics to plant on innocent civilians in order to help those
officers meet their arrest quotas; Mr. Anderson testified concerning the NYPD’s
practice of “attaching bodies” to the narcotics to make baseless arrests, stating: “It
was something I was seeing a lot of, whether it was from supervisors or undercovers
and even investigators. Seeing it so much, it’s almost like you have no emotion with
it. The mentality was that they attach the bodies to it, they’re going to be out of jail
tomorrow anyway, nothing is going to happen to them anyway. That kind of came on
to me and I accepted it — being around that so long, and being an undercover”; the
presiding judge, Justice Reichbach, stated: “Having been a judge for 20 years, I
thought I was not naïve regarding the realities of narcotics enforcement. But even the
court was shocked, not only by the seeming pervasive scope of the misconduct, but
even more distressingly by the seeming casualness by which such conduct is
employed”);
g. Schoolcraft v. City of New York, 10-CV-6005 (RWS) (S.D.N.Y.) (police officer who
exposed a precinct’s policies and practices of illegal quotas for the issuance of
summonses and arrests, falsifying evidence and suborning perjury alleges he was
arrested and committed to a psychiatric facility in retaliation for exposing said
policies and practices to the press);
h. Lotorto v. City of New York, 10-CV-1223 (ILG) (JMA) (E.D.N.Y.) (police officers
beat, arrest and destroy a video recording of a bystander who was recording an arrest
occurring in public);
i. Long v. City of New York, 09-CV-6099 (AKH) (S.D.N.Y.); People v. Pogan, 064162008 (Sup. Ct., N.Y. Co.) (officer who purposefully swore out a false complaint and
used excessive force is convicted of falsifying police records and was prosecuted for
recklessly using physical force; the plaintiff was engaged in expressive conduct, to
wit, riding in a Critical Mass bicycle ride, when he was assaulted by the officer);
j. Taylor-Mickens v. City of New York, 09-CV-7923 (RWS) (S.D.N.Y.) (police officers
at the 24th Precinct issued four summonses to a woman in retaliation for her lodging a
complaint with the Civilian Complaint Review Board at the precinct);

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k. Lin v. City of New York, 09-CV-1936 (PGG) (S.D.N.Y.) (officers arrest person
lawfully photographing an arrest of a bicyclist in Times Square and swear out a
criminal complaint whose facts are contradicted by video evidence; officers also
arrest a bystander after refusing an unlawful order to produce identification);1
l. Colon v. City of New York, 09-CV-0008 (E.D.N.Y.) In an Order dated November 25,
2009, which denied the CITY’s motion to dismiss on Iqbal/Twombly grounds,
wherein the police officers at issue were fired and prosecuted for falsifying evidence
in a purported buy-and-bust operation, the Honorable District Court Judge Weinstein
wrote:
Informal inquiry by the court and among the judges of this court, as well as
knowledge of cases in other federal and state courts, has revealed anecdotal
evidence of repeated, widespread falsification by arresting police officers of
the New York City Police Department. Despite numerous inquiries by
commissions and strong reported efforts by the present administration –
through selection of candidates for the police force stressing academic and
other qualifications, serious training to avoid constitutional violations, and
strong disciplinary action within the department – there is some evidence of
an attitude among officers that is sufficiently widespread to constitute a
custom or policy by the city approving illegal conduct of the kind now
charged.
m. Bryant v. City of New York, 22011/2007 (Sup. Ct., Kings Co.) (jury declares that
NYPD officers acted pursuant to a City policy regarding the number of arrests
officers were expected to make that violated plaintiff's constitutional rights and
contributed to her arrest);2
n. Callaghan v. City of New York, 07-CV-9611 (PKC) (S.D.N.Y.) (officers accused of
falsifying evidence and retaliatory arrests of bicyclists engaged in expressive conduct,
to wit, riding in Critical Mass bicycle rides after the 2004 Republican National
Convention);3
o. Williams v. City of New York, 06-CV-6601 (NGG), 2009 U.S. Dist. LEXIS 94418
(E.D.N.Y.) (officers arrest plaintiff during a “vertical patrol” of a public housing
project despite evidence that he had a legitimate reason to be on the premises);
1

For a description of this case and settlement, see, Anahad O’Connor, City Pays $98,000 to Critical Mass Cyclists,
N.Y. Times, March 30, 2010, available at http://cityroom.blogs.nytimes.com/2010/03/30/city-pays-98000-tocritical-mass-cyclists/.
2

For a description of this case and ultimate settlement, see Oren Yaniv, Court rules that cops do use quotas, woman
injured in 2006 arrest settles for $75,000, N.Y. Daily News, Feb. 19, 2011, available at
http://www.nydailynews.com/news/ny_crime/2011/02/19/2011-02-19_court_rules_that_cops_do_use_
quotas_woman_injured_in_2006_arrest_settles_for_750.html.
3

For a description of this case and the nearly $1 million settlement, see Cate Doty, Bike Riders in New York Win
Settlement, N.Y. Times, October 18, 2010, available at http://www.nytimes.com/2010/10/19/nyregion/
19critical.html?_r=1.

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p. Dunlop v. City of New York, 06-CV-0433 (RJS), 2008 U.S. Dist. LEXIS 38250
(S.D.N.Y.) (bystander arrested outside the 2004 Republican National Convention
while observing arrests occurring in public; alleges that police destroyed exculpatory
evidence by deleting portions of a video which contradict sworn criminal complaint);
q. Kyne et al v. Wolfowitz et al, 06-CV-02041 (S.D.N.Y.) (RJS) (protester arrested
during the 2004 Republican National Convention; alleges that police destroyed
exculpatory evidence by deleting portions of a video which contradict sworn criminal
complaint);
r. Carmody v. City of New York, 05-CV-8084 (HB), 2006 U.S. Dist. LEXIS 83207
(S.D.N.Y.) (police officer alleges that he was terminated for cooperating with another
officer’s claims of a hostile work environment);
s. MacNamara v. City of New York, 04-CV-9216 (RJS) (JCF) (S.D.N.Y.) (evidence of
perjured sworn statements systematically provided by officers to attempt to cover-up
or justify unlawful mass arrests of approximately 1800 people has been and continues
to be developed in the consolidated litigation arising out of the 2004 Republican
National Convention);
t. McMillan v. City of New York, 04-CV-3990 (FB) (RML) (E.D.N.Y.) (officers
fabricated evidence and used excessive force against an African-American man in
Kings County and initiated drug charges against him, despite an absence of any
quantum of suspicion);
u. Avent v. City of New York, 04-CV-2451 (CBA) (CLP) (E.D.N.Y.) (same);
v. Smith v. City of New York, 04-CV-1045 (RRM) (JMA) (E.D.N.Y.) (same);
w. Powers v. City of New York, 04-CV-2246 (NGG), 2007 U.S. Dist. LEXIS 27704
(E.D.N.Y.) (police officer alleges unlawful retaliation by other police officers after
testifying about corruption within the NYPD);
x. Kunstler v. City of New York, 04-CV-1145 (RWS) (MHD) (S.D.N.Y.) (group of
peaceful anti-war protestors arrested without probable cause and questioned by
NYPD about their political beliefs; photographic and video surveillance of the
protestors taken due to plaintiffs’ political beliefs);
y. Dotson v. City of New York, 03-CV-2136 (RMB) (S.D.N.Y.) (officers arrest and use
excessive force against a candidate for City Council for trespassing in his own
residential building);
z. Nonnemann v. City of New York, 02-CV-10131 (JSR) (AJP), 2004 U.S. Dist. LEXIS
8966 (S.D.N.Y.) (former NYPD lieutenant alleging retaliatory demotion and early
retirement after reporting a fellow officer to IAB and CCRB for the officer’s
suspicionless, racially-motivated stop-and-frisk of a group of Hispanic youth);

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aa. Richardson v. City of New York, 02-CV-3651 (JG) (CLP) (E.D.N.Y.) (officers
fabricated evidence, including knowingly false sworn complaints, and used excessive
force against an African-American man in Kings County and initiated drug charges
against him, despite an absence of any quantum of suspicion);
bb. Barry v. New York City Police Department, 01-CV-10627 *2 (CBM), 2004 U.S.
LEXIS 5951 (S.D.N.Y.) (triable issue of fact where NYPD sergeant alleged
retaliatory demotion and disciplinary charges in response to sergeant’s allegations of
corruption within her unit and alleged that the NYPD had an “unwritten but pervasive
custom of punishing officers who speak out about police misconduct and
encouraging, if not facilitating, silence among officers”);
cc. Taylor v. City of New York, 01-CV-5750 (ILG) (MDG) (E.D.N.Y.) (same as
Richardson, except without the excessive force; judge at the criminal trial acquitting
Mr. Taylor noted, on the record, that he had “significant doubt” about the truthfulness
of the officers who testified);
dd. Walton v. Safir, 99-CV-4430 (AKH), 122 F.Supp.2d 466 (S.D.N.Y. 2000) (factual
findings after trial that a 12-year veteran of NYPD was terminated in retaliation for
criticizing the racially-motivated policies of the NYPD’s Street Crime Unit and for
alleging that such policies led to the NYPD shooting death of Amadou Diallo);
ee. Carin v. City of New York, 95-CV-3472 (JFK), 1998 U.S. Dist. LEXIS 1533
(S.D.N.Y.) (bystander arrested while observing the arrest of a street vendor in a
public place);
ff. White-Ruiz v. City of New York, 93-CV-7233 (DLC) (MHD), 983 F.Supp. 365, 380
(S.D.N.Y. 1997) (holding that the NYPD had an “unwritten policy or practice of
encouraging or at least tolerating a pattern of harassment directed at officers who
exposed instances of police corruption”);
gg. Ariza v. City of New York, 93-CV-5287 (CPS), 1996 U.S. Dist. LEXIS 20250 at*14
(E.D.N.Y.) (police officer alleges retaliatory duty assignments and harassment in
response to his allegations about a racially-discriminatory workplace; on motion for
summary judgment, the Court held that the police officer had established proof of
both a widespread usage of a policy to retaliate against police officers who expose
police misconduct and a failure to train in the police department);
hh. Sorlucco v. New York City Police Department, 89-CV-7225 (CCH), 888 F.2d 4 (2d
Cir. 1989) (former officer entitled to trial on issue of whether she was re-assigned and
then terminated after reporting that a fellow officer had raped her); and
ii. Kaufman v. City of New York, 87-CV-4492 (RO), 1992 U.S. Dist. LEXIS 14049
(S.D.N.Y.) (bystander arrested for observing an unlawful arrest in public, requesting
the officer’s badge number, and telling the officer that he planned to file a report
about the arrest).

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59. The existence of the aforesaid unconstitutional customs and practices, specifically with
regard to the failure to supervise, train, instruct and discipline police officers and
encouraging their misconduct, are further evidenced, inter alia, by the following:
a. In 1990, the Office of the Special Prosecutor, which investigated charges of police
corruption, was abolished.
b. The Report of the Commission to Investigate Allegations of Police Corruption and
the Anti-Corruption Procedures of the Police Department (“Mollen Commission
Report”), is the report of a panel led by Hon. J. Milton Mollen of its nearly two-year
investigation into allegations of NYPD corruption, undertaken in 1992 at the behest
of then-Mayor David Dinkins.
c. The Mollen Commission report states:
In the face of this problem [of corruption], the [NYPD] allowed its systems for
fighting corruption virtually to collapse. It has become more concerned about the
bad publicity that corruption disclosures generate that the devastating
consequences of corruption itself. As a result, its corruption control minimized,
ignored and at times concealed corruption rather than root it out. Such an
institutional reluctance to uncover corruption is not surprising. No institution
wants its reputations tainted – especially a Department that needs the public’s
confidence and partnership to be effective. A weak and poorly resources anticorruption apparatus minimizes the likelihood of such taint, embarrassment and
potential harm to careers. Thus there is a strong institutional incentive to allow
corruption efforts to fray and lose priority – which is exactly what the
Commission uncovered. This reluctance manifested itself in every component of
the Department’s corruption controls from command accountability and
supervision, to investigations, police culture, training and recruitment. For at least
the past decade, the system designed to protect the Department from corruption
minimized the likelihood of uncovering it.4
d. Upon information and belief, Defendant CITY did not take meaningful steps to
eliminate the customs and practices exposed by the Mollen Commission Report.
e. In response to the Honorable Judge Weinstein’s ruling of November 25, 2009 in
Colon v. City of New York, 09-CV-00008 (E.D.N.Y.), in which he noted a
“widespread… custom or policy by the city approving illegal conduct” such as lying

4

Mollen Commission Report, pp. 2-3, available at http://www.parc.info/client_files/Special%20Reports/
4%20-%20Mollen%20Commission%20-%20NYPD.pdf.

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under oath and false swearing, Commissioner KELLY acknowledged, “When it
happens, it’s not for personal gain. It’s more for convenience.”5
f. Regarding defendant CITY’s tacit condonement and failure to supervise, discipline or
provide remedial training when officers engage in excessive force, the Civilian
Complaint Review Board is a CITY agency, allegedly independent of the NYPD, that
is responsible for investigating and issuing findings on complaints of police abuse and
misconduct.6 When it does, however, Police Commissioner KELLY controls whether
the NYPD pursues the matter and he alone has the authority to impose discipline on
the subject officer(s). From 2002 through 2010, in 92 percent of the substantiated
cases referred to the NYPD by the CCRB, the NYPD did not follow the CCRB’s
recommendation that officers with substantiated claims of misconduct be disciplined
with the most serious penalty of charges and specifications.7 In 2012, the NYPD
issued only verbal or written “instructions” to the subject officer in 62 percent of the
substantiated complaints referred to them by the CCRB, and declined to take any
action whatsoever in 21 percent of such cases.8
60. The existence of the aforesaid unconstitutional customs and practices, specifically with
regard to the practice or custom of officers lying under oath, falsely swearing out
criminal complaints, or otherwise falsifying or fabricating evidence, are further
evidenced, inter alia, by the following:
a. The Mollen Commission concluded that police perjury and falsification of official
records is probably the most common form of police corruption facing the criminal
justice system. It concluded:

5

Oren Yaniv and John Marzulli, Kelly Shrugs Off Judge Who Slammed Cops, New York Daily News, December 2,
2009, available at http://www.nydailynews.com/news/ny_crime/2009/12/02/2009-1202_kelly_shrugs_off_judge_who_rips_lying_cops.html.
6

In 2012, out 5,760 complaints taken up by the CCRB, the CCRB substantiated only 967 (about 9%). See, CCRB
annual appendix 2012, available at http://www.nyc.gov/html/ccrb/downloads/pdf/ccrb_annual_appendix_2012.pdf.
Upon information and belief, the low rate of substantiated complaints is due in part to the above-noted de facto
policy and/or well-settled and widespread custom and practice in the NYPD whereby officers refuse to report other
officers’ misconduct or tell false and/or incomplete stories, inter alia, in sworn testimony and statements given to
the CCRB, to cover-up civil rights violations perpetrated by themselves or fellow officers, supervisors and/or
subordinates. In addition, a former employee of the CCRB has reported that there is strong and explicit institutional
pressure within the CCRB to keep the number of unsubstantiated cases to a minimum. See David Noriega, The Thin
Blue Lie, The New Inquiry, available at http://thenewinquiry.com/essays/the-thin-blue-lie/.
7

“Diminished Accountability: How Discipline for Police Misconduct is Downgraded by the NYPD,” Citizens
Union of the City of New York, March 2012, available at
http://www.citizensunion.org/www/cu/site/hosting/Reports/CUReport_AccountabilityPoliceMisconduct.pdf.
8

CCRB Annual Report 2012, available at http://www.nyc.gov/html/ccrb/downloads/pdf/ccrb_annual_2012.pdf.

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Regardless of the motives behind police falsifications, what is particularly
troublesome about this practice is that it is widely tolerated by corrupt and honest
officers alike, as well as their supervisors. Corrupt and honest officers told us that
their supervisors knew or should have known about falsified versions of searches
and arrests and never questioned them.9
[…]
What breeds this tolerance is a deep-rooted perception among many officers of all
ranks within the Department that nothing is really wrong with compromising facts
to fight crime in the real world. Simply put, despite the devastating consequences
of police falsifications, there is a persistent belief among many officers that it is
necessary and justifies, even if unlawful. As one dedicated officer put it, police
officers often view falsification as, to use his words, “doing God’s work” – doing
whatever it takes to get a suspected criminal off the streets. This attitude is so
entrenched, especially in high-crime precincts, that when investigators confronted
one recently arrested officer with evidence of perjury, he asked in disbelief,
“What’s wrong with that? They’re guilty.”10
b. In June of 2011, in the case in New York County Supreme Court entitled People v.
William Eiseman (Ind. No. 2999-2010), NYPD Sergeant William Eiseman pled guilty
to perjury and falsifying police records, “admit[ing] to faking a marijuana case
against one man and cocaine-related charges against another – and training young
[officers] to falsify paperwork to sidestep legal safeguards.” Supreme Court Justice
Juan Merchan commented that Sgt. Eiseman’s admissions “paint a picture of a police
officer who has challenged and undermined the integrity of the entire system we have
here.”11
c. In late 2009, a former NYPD officer in the Bronx, Pedro Corniel, was charged with
perjury for claiming to have caught a burglar “red-handed,” when, in fact, two other
officers had made the arrest and handed the arrest off to Mr. Corniel. The suspect was
released.12 Moreover,
Prosecutors and NYPD Internal Affairs probers have identified as many as two
dozen cases in the past year in which cops allegedly made false statements
involving routine arrests when the truth would have served them just as well.

9

Mollen Commission Report, p. 36.

10

Mollen Commission Report, pp. 40-41.
Melissa Grace, NYPD Sgt. William Eiseman pleads guilty to lying under oath in plea deal, N.Y. Daily News, June
27, 2011, available at http://www.nydailynews.com/news/ny_crime/2011/06/27/2011-06-27_nypd_
sgt_william_eiseman_pleads_guilty_to_lying_under_oath_in_plea_deal.html.
11

12

Murray Weiss, NYPD in a Liar Storm, N.Y. Post, Oct. 26, 2009, available at
http://www.nypost.com/p/news/local/nypd_in_liar_storm_qazMBEm3UNJVogv4NdeqcI.

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That’s a significant increase over previous years, sources said. “In the past, we’d
find this happening once or twice a year, and now there are a bunch of them,”
said one law-enforcement official.
What has the authorities particularly troubled is that officers historically have
lied to cover up more serious corruption, such as the cadre of Brooklyn narcotics
cops caught last year stealing drugs from dealers and masking their thievery by
filing false reports about what they had seized.
But internal probers are now finding that officers appear willing to take
insidious shortcuts and lie on arrest reports when they are processing even
routine collars, such as grand larceny, burglaries and robberies, sources told The
Post.
Their reasons could range from trying to cut down on paperwork to being lazy
when filling out arrest and incident reports.13
d. In 2007, former NYPD Officer Dennis Kim admitted to accepting money and sexual
favors from the proprietor of a brothel in Queens County in exchange for protecting
that brothel. Mr. Kim was convicted of those offenses. The 109th Precinct of the
NYPD, which used to be Mr. Kim’s command, is also under investigation by the
United States Attorney’s Office for “plant[ing] drugs on suspects and steal[ing] cash
during gambling raids.” The 109th Precinct is believed to be involved in a practice
known as “flaking” wherein police officers plant drugs on suspects in order to bring
legitimacy to an arrest. According to Assistant United States Attorney Monica Ryan,
members of the 109th Precinct “maintained a small stash of drugs in an Altoids tin for
this purpose.”14
e. In December of 2009, two (2) officers from the 81st Precinct in Brooklyn arrested and
falsely swore out charges against an undercover officer from the Internal Affairs
Bureau. As explained in an article in the New York Post:
The officers were snared in a sting by Internal Affairs in December when they
were told to keep an eye out for people selling untaxed cigarettes in their precinct.
Some time later, they saw a man hanging out on a corner in the neighborhood and
found that he was carrying packs of knock-off smokes.
[Sgt. Raymond] Stukes, 45, and [Officer Hector] Tirado, 30, cuffed him, but then
claimed that they had seen him selling the bogus butts to two people, according to
sources.
Little did the hapless cops know that the man in their custody was an undercover
corruption investigator and that the whole incident was caught on video.
13

Id.

14

John Marzulli, Claims of Corruption at Queens Precinct Put Crooked Cop’s Sentencing on Hold, New York Daily
News, June 20, 2008, available at http://www.nydailynews.com/news/ny_crime/2008/06/20/
2008-06-20_claims_of_corruption_at_queens_precinct_.html.

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To complete the ruse, the undercover cop was processed at the station house so as
to not tip off Stukes and Tirado about the sting…
[P]olice sources said [this action] stem[s] from precinct commanders caving to the
pressure of top brass to make themselves look better.
“There’s pressure on the cops from the bosses and they’re getting pressured from
headquarters,” a police source told The Post. 15
The officers were indicted for felony perjury, filing a false report and filing a false
instrument.16
f. In early 2010, the CITY settled a civil rights lawsuit wherein one Officer Sean
Spencer17 falsely arrested and accused a 41-year old grandmother of prostitution,
promising to pay the woman $35,000. In court documents, Caroline Chen, the
attorney representing the CITY in the case, admitted: “Officer Spencer falsely
reported to the assistant district attorney that he saw [the plaintiff] beckon to three
male passersby and that he was aware that plaintiff was previously arrested for
[prostitution] when the plaintiff had never been arrested for this offense.”18
g. Separate grand jury investigations into drug-related police corruption in the Bronx
and Manhattan revealed that more than a dozen officers had been breaking into drug
dealers’ apartments, stealing and then selling their drugs and perjuring themselves by
filing false arrest reports. District attorneys and their assistants interviewed during a
four-month investigation by New York Newsday said they believe those two grand
jury investigations - in the 46th Precinct in the University Heights section of the
Bronx and the 34th Precinct - are not isolated instances. They say the investigations
reflect a larger, broader problem within the NYPD that its top officials seem unable
or unwilling to acknowledge.19
61. The existence of the aforesaid unconstitutional customs and practices, specifically with
regard to the practice or custom of discouraging police officers from reporting the

15

Larry Celona and Tim Perone, Cops Sting Cops, N.Y. Post, July 30, 2010, available at
http://www.nypost.com/p/news/local/brooklyn/cops_sting_cops_lyItuTeLedhKWtruJZYsdL.
16

John Marzulli, Brooklyn cops charged with barding into sting operation, arresting a fellow officer on bogus
charges, N.Y. Daily News, July 30, 2010, available at http://www.nydailynews.com/ny_local/2010/07/30/
2010-07-30_brooklyn_cops_charged_with_barging_into_sting_operation_arresting_a_fellow_offic.html.
17

In sum, the CITY has paid out $80,000 to settle four (4) federal lawsuits against Officer Sean Spencer. John
Marzulli, City shells out $35G to grandmother, Monica Gonzalez, busted as hooker, New York Daily News, January
7, 2010, available at http://www.nydailynews.com/ny_local/2010/01/08/2010-01-08_city_shells_
out_35g_to_granny_busted_as_hooker.html.
18

Id.

19

David Kocieniewski and Leonard Levitt, When the Finest Go Bad: DAs, others say department overlooks
corruption, New York Newsday, November 18, 1991, at 6.

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corrupt or unlawful practices of other police officers and of retaliating against officers
who report misconduct, are further evidenced, inter alia, by the following:
a. Former New York County District Attorney Robert Morgenthau has been quoted as
acknowledging that, in the NYPD, there is a “code of silence,” or a “code of
protection” that exists among officers and that is followed carefully;
b. In 1985, former NYPD Commissioner Benjamin Ward, testifying before a State
Senate Committee, acknowledged the existence of the “code of silence” in the
NYPD;
c. Former NYPD Commissioner Robert Daly wrote in 1991 that the “blue wall of
solidarity with its macho mores and prejudices, its cover-ups and silence, is
reinforced every day in every way.”
d. Barry v. New York City Police Dep't, 2004 U.S. Dist. LEXIS 5951, 40-41 (S.D.N.Y.
April 7, 2004) (“[P]laintiff's witnesses speak from firsthand experience about the blue
wall of silence…. Plaintiff complains of acts that are of the precise nature as the
customs and practices described in the [Mollen Commission] Report.”);
e. United States v. Rosario, 237 F. Supp. 2d 242, 248 (E.D.N.Y. 2002) (“[Assistant U.S.
Attorney] Palmer testified that while supervising the federal investigation into the
Louima assault, she routinely confronted a ‘blue wall of silence’ erected by police
officers and PBA officials intent on obstructing efforts to uncover the full truth about
what had happened at the 70th precinct on August 9, 1997.”)
62. The existence of the above-described unlawful de facto policies and/or well-settled and
widespread customs and practices is known, encouraged and/or condoned by supervisory
and policy-making officer and officials of the NYPD and the CITY, including, without
limitation, Commissioner Kelly.
63. The actions of the individual police defendants resulted from and were taken pursuant to the
above-mentioned de facto policies and/or well-settled and widespread customs and practices
of the CITY, which are implemented by members of the NYPD, of engaging in systematic
and ubiquitous perjury, both oral and written, to cover-up federal law violations committed
against civilians by either themselves of their fellow officers, supervisors and/or
subordinates. They do so with the knowledge and approval of their supervisors, commanders

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and Commissioner Kelly who all: (i) tacitly accept and encourage a code of silence wherein
police officers refuse to report other officers’ misconduct or tell false and/or incomplete
stories, inter alia, in sworn testimony, official reports, in statements to the CCRB and the
Internal Affairs Bureau (“IAB”), and in public statements designed to cover for and/or
falsely exonerate accused police officers; and (ii) encourage and, in the absence of video
evidence blatantly exposing the officers’ perjury, fail to discipline officers for “testilying”
and/or fabricating false evidence to initiate and continue the malicious prosecution of
civilians in order to cover-up civil rights violations perpetrated by themselves of fellow
offices, supervisors and/or subordinates against those civilians.
64. All of the foregoing acts by defendants deprived the plaintiff of federally protected rights,
including, but limited to, the constitutional rights enumerated in paragraphs 45, above.
65. Defendant CITY knew or should have known that the acts alleged herein would deprive the
plaintiff of his rights, in violation of the First, Fourth, and Fourteenth Amendments to the
United States Constitution.
66. Defendant CITY is directly liable and responsible for the acts of the individual police
defendants because it repeatedly and knowingly failed to properly supervise, train, instruct,
and discipline them and because it repeatedly and knowingly failed to enforce the rules and
regulation of the CITY and NYPD, and to require compliance with the Constitution and
laws of the United States.
67. Despite knowledge of such unlawful de facto policies, practices and/or customs, these
supervisory and policy-making officers and officials of the NYPD and the CITY, including
Commissioner KELLY, have not taken steps to terminate these policies, practices and/or
customs, do not discipline individuals who engage in such polices, practices and/or customs,

20

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or otherwise properly train police officers with regard to the constitutional and statutory
limits on the exercise of their authority, and instead sanction and ratify these policies,
practices and/or customs through their active encouragement of, deliberate indifference to
and/or reckless disregard of the effect of said policies, practices and/or customs upon the
constitutional rights of persons in the City of New York.
68. The aforementioned CITY policies, practices and/or customs of failing to supervise, train,
instruct and discipline police officers and encouraging their misconduct are evidenced by the
police misconduct detailed herein. Specifically, pursuant to the aforementioned CITY
policies, practices and/or customs, the individual defendants felt empowered to exercise
unreasonable and wholly unprovoked force against plaintiff, arrest plaintiff without probable
cause and then fabricate and swear to a false story to cover up their blatant violations of
plaintiff’s constitutional rights. Pursuant to the aforementioned CITY policies, practices
and/or customs, defendants failed to intervene in or report other defendants’ violation of
plaintiff’s rights or subsequent perjury.
69. Plaintiff’s injuries were a direct and proximate result of the defendant CITY and the
NYPD’s wrongful de facto policies and/or well-settled and widespread customs and
practices and of the knowing and repeated failure of the defendant CITY and the NYPD to
properly supervise, train and discipline their police officers.
70. The actions of the individual police defendants resulted from and were taken pursuant to the
following de facto policies and/or well-settled and widespread customs and practices of the
CITY, implemented by agents or employees of the NYPD, of employing wholly unprovoked
and excessive force.

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71. Defendants, collectively and individually, while acting under color of state law, acquiesced
in a pattern of unconstitutional conduct by subordinate police officers and were directly
responsible for the violation of the plaintiff’s constitutional rights.
FOURTH CAUSE OF ACTION
MALICIOUS PROSECUTION
UNDER THE LAWS OF THE STATE OF NEW YORK
72. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if
fully set forth herein.
73. Defendant JONES misrepresented and falsified evidence before the District Attorney of
New York County (“DANY”).
74. Defendant did not make a complete and full statement of facts to DANY.
75. Defendant was directly and actively involved in the initiation of criminal proceedings
against plaintiff.
76. Defendant lacked probable cause to initiate criminal proceedings against plaintiff.
77. Defendant acted with malice in initiating criminal proceedings against plaintiff.
78. Defendant was directly and actively involved in the continuation of criminal proceedings
against plaintiff.
79. Defendant lacked probable cause to continue criminal proceedings against plaintiff.
80. Defendant acted with malice in continuing criminal proceedings against plaintiff.
81. Defendant misrepresented and falsified evidence throughout all phases of the criminal
proceedings.
82. Notwithstanding defendant’s misconduct, the criminal proceedings against plaintiff were
favorably terminated on the merits.
83. As a result of the foregoing, plaintiff suffered injuries and damages as set forth above.

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FIFTH CAUSE OF ACTION
RESPONDEAT SUPERIOR LIABILITY OF THE CITY OF NEW YORK
FOR VIOLATIONS OF THE LAWS OF THE STATE OF NEW YORK
84. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if
fully set forth herein.
85. The conduct of the individual defendants alleged herein occurred while they were on duty
and in uniform, and/or in and during the course and scope of their duties and functions as
NYPD officers, and/or while they were acting as agents and employees of defendant CITY,
clothed with and/or invoking state power and/or authority, and, as a result, defendant CITY
is liable to Plaintiff pursuant to the state common law doctrine of respondeat superior.
86. As a result of the foregoing, plaintiff suffered injuries and damages as set forth above.
SIXTH CAUSE OF ACTION
NEGLIGENT HIRING, SCREENING, RETENTION, SUPERVISION, AND TRAINING
UNDER THE LAWS OF THE STATE OF NEW YORK
87. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if
fully set forth herein.
88. Defendant CITY negligently hired, screened, retained, supervised, and trained defendants.
The acts and conduct of the defendants were the direct and proximate cause of injury and
damage to plaintiff and violated his statutory and common law rights as guaranteed by the
laws and Constitution of the State of New York.
89. As a result of the foregoing, plaintiff suffered injuries and damages as set forth above.
JURY DEMAND
90. Plaintiff demands a trial by jury in this action on each and every one of his damage claims.
WHEREFORE, plaintiff demands judgment against the defendants individually and
jointly and prays for relief as follows:

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a. That he be compensated for violations of his constitutional rights, pain,
suffering, mental anguish, and humiliation; and
b. That he be awarded punitive damages against the individual defendants; and
c. That he be compensated for attorneys’ fees and the costs and disbursements of
this action; and
d. For such other further and different relief as to the Court may seem just and
proper.
Dated:

New York, New York
November 14, 2013
Respectfully submitted,

By:
Rebecca Heinegg
Maurus & Heinegg
Attorneys for the Plaintiff
48 Wall Street, 11th Floor
New York, New York 10005
t: (212) 227-2303
f: (212) 320-0230

24