Lee v. City of Troy

559 F.Supp.3d 73

Lamont LEE, Plaintiff,

v.The CITY OF TROY; Patrolman Christopher Parker; Patrolman Louis Perfetti; Patrolman Justin Ashe; and Patrolman Kyle Jones, Defendants.

1:19-CV-473

United States District Court, N.D. New York.

Signed September 8, 2021

OF COUNSEL: DAVID ROCHE, ESQ., EDWARD SIVIN, ESQ., CLYDE RASTETTER, ESQ., GLENN D. MILLER, ESQ., SIVIN, MILLER & ROCHE LLP, Attorneys for Plaintiff, 20 Vesey Street Suite 1400, New York, New York 10007.

OF COUNSEL: MICHAEL E. GINSBERG, ESQ., RHIANNON INEVA, SPENCER, ESQ., PATTISON, SAMPSON LAW FIRM, Attorneys for Defendants, 22 First Street, P.O. Box 208, Troy, New York 12181.

OF COUNSEL: RICHARD T. MORRISSEY, ESQ., OFFICE OF RICHARD T. MORRISSEY, Attorneys for Defendants, 64 Second Street, Troy, New York 12180.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On May 12, 2021, a jury returned a verdict finding no cause of action for plaintiff Lamont Lee ("Lee" or "plaintiff")’s claims of excessive force in the course of an arrest against defendants the City of Troy, Christopher Parker, Louis Perfetti, Justin Ashe, and Kyle Jones (together "defendants"). After the jury left the courtroom but before the parties were cleared to leave, defendants’ lead attorney, Michael E. Ginsberg, Esq. ("Mr. Ginsberg") approached plaintiff and his attorneys. Mr. Ginsberg then told "them" to "choke on their manufactured evidence." Predictably, this comment drew an explosive response from plaintiff.

The Court was promptly informed about the incident and made a record. After expressing its displeasure with Mr. Ginsberg's conduct in the courtroom, the Court suggested that sanctions should follow. On May 19, 2021, the Court issued an order to show cause why they should not. On June 3, 2021, Mr. Ginsberg responded in opposition to the order and moved for the Court's recusal. The order and motion, having been fully briefed, will now be decided on the submissions and without oral argument.

II. BACKGROUND

From May 10 through May 12, 2021, this Court presided over a jury trial in this case. Text Minute Entries dated 5/10/2021, 5/11/2021, and 5/12/2021. Essentially, Lee claimed that defendants subjected him to excessive force in arresting him on the night of March 3, 2018. See Dkt. 72, pp. 3-7.¹ Of central importance to the parties’ claims was a video captured on the night of the arrest. Dkt. 85, pp. 3-4. As it turned out, though, each party presented a different version of that footage. See Dkt. 91-5, p. 15. Mr. Ginsberg's explanation for the two versions was that plaintiff deceptively altered his. This claim became a recurring theme throughout the trial. See generally Dkts. 91-2, pp. 5, 11; 91-3, pp. 45-47; 91-4, pp. 24, 197; 91-5, pp. 10, 15-16, 21, 24.

The jury deliberated on May 12, 2021 and returned a verdict for defendants that same day. Text Minute Entry dated 5/12/2021, Dkt. 72. The jury was excused, but the parties were ordered to remain in the courtroom to give the jury time to leave the building. See Dkt. 78-2 ("Ellis Report"), p. 1. According to Mr. Ginsberg, he approached the Court Security Officer on duty, Christopher Ellis ("Officer Ellis"), to ask when the parties would be permitted to leave. Dkt. 90-1 ("Ginsberg Aff."), ¶ 3. Officer Ellis was standing by the door, where Lee was waiting with his attorneys, David Roche,² Esq. ("Mr. Roche") and Clyde Rastetter ("Mr. Rastetter").³ Id. ¶ 3; See Dkt. 78-3 ("Roche Aff."), ¶ 2.

However, when Mr. Ginsberg walked up to the courtroom rail, several feet from Lee, Roche, and Rastetter, a "comment, to [his] surprise, came blurting out of [his] mouth." Ginsberg Aff. ¶ 3. Mr. Ginsberg claims that he did not direct the comment at plaintiff. Id. ¶ 4.

Though there is agreement in broad strokes as to what that comment was, every witness remembers it differently. According to Mr. Ginsberg, he told "them" to "choke on the manufactured evidence," and he does not remember using language stronger than that. Dkt. 78-1 ("Tr."), p. 3.

According to Mr. Roche, Mr. Ginsberg said something to the effect of "[t]ake your fake fucking evidence and ... go back to New York." Tr. 2. Mr. Rastetter heard Mr. Ginsberg say "[w]hy don't you go back to New York and choke on that fucking manufactured evidence[?]" Tr. 2-3. Lee heard "[g]o back down to New York and choke on that fucking manufactured tape you got." Tr. 3. According to Officer Ellis, Mr. Ginsberg said "I would like to congratulate you on the verdict and you can take that back to New York with you, you and your fucking fabricated evidence." Ellis Report 1 (cleaned up).

Apparently, Lee had a powerful emotional reaction to Mr. Ginsberg's comment that he had difficulty controlling. Dkt. 87-1 ("Lee Aff."), ¶ 4. According to Mr. Ginsberg's co-counsel, Rhiannon Ineva Spencer, Esq. ("Ms. Spencer"), Lee responded by yelling profanities and offensive remarks at Mr. Ginsberg. Dkt. 90-2 ("Spencer Aff."), ¶ 28. However, Mr. Ginsberg did not register any reaction from anyone except for Officer Ellis. Ginsberg Aff. ¶ 4.

At this point, Mr. Ginsberg affirms that he turned and walked away without further comment. Ginsberg Aff. ¶ 3. But both he and Ms. Spencer acknowledge that Officer Ellis admonished Mr. Ginsberg that his comment was inappropriate and that, for security's sake, he was in charge of the courtroom when the bench was empty. Id. ¶ 4; Spencer Aff. ¶ 29.

Apparently, Mr. Roche then asked Officer Ellis if there was a way to alert the Court as to what Mr. Ginsberg had said. Roche Aff., ¶ 4. Officer Ellis directed plaintiff's attorneys to the Courtroom Deputy. Id. ¶ 4. Mr. Rastetter spoke with the Courtroom Deputy, Phillip T. McBrearty ("McBrearty"), who instructed him to write a contemporaneous note concerning the encounter and use it to produce an affidavit at a later date. Dkt. 78-4 ("Rastetter Aff."), ¶ 5. Officer Ellis then reported the courtroom disturbance to the Court.

Meanwhile, Mr. Ginsberg and Ms. Spencer were preparing to leave the courthouse. See Spencer Aff. ¶ 31. On their way out, a Court Security Officer, perhaps Officer Ellis, told defense counsel not to leave and directed them instead into an adjoining room. See Ginsberg Aff. ¶ 7; Spencer Aff. ¶ 31. Nevertheless, a few minutes later defense counsel tried to leave again. Ginsberg Aff. ¶ 8; Spencer Aff. ¶ 31. At that point, Ms. Spencer was told that the Court may wish to speak to the attorneys. Id. ¶ 31.

Lee and the attorneys for both sides were summoned into the courtroom shortly afterward. Spencer Aff. ¶ 31. The court reporter was brought in and a short record was made concerning Mr. Ginsberg's comment. See generally Tr. 2-4. Each witness said their piece as related above. The Court also gave Mr. Ginsberg a chance to deny making the comment, or at least to explain it. Tr. 3. Ginsberg replied that he was simply "exercising [his] First Amendment right" and claimed not to remember having cursed at plaintiff's coterie. Id. But he did not deny that he made the comment. Id.

In the absence of any denial by Mr. Ginsberg as to the fact of having taunted Lee and his counsel, the Court concluded the brief hearing, saying:

Okay. I am going to direct that a transcript of this proceeding right now be made and sent to the Disciplinary Committee of the Northern District of New York. The remarks were completely a hundred percent inappropriate and right in this courtroom and will not be tolerated. I am going to recommend that Mr. Ginsberg be disciplined and I hope that the discipline is firm. Unbelievable, Mr. Ginsberg. I hope you are disciplined and maybe you may even learn a lesson.

Tr. 4.

To get an impartial perspective on the May 12, 2021 altercation, the Court asked Officer Ellis the next morning if he could submit an affidavit providing his account. Ellis Report 1. The Court then broached the issue of sanctions at the next meeting for the Board of Judges for the Northern District of New York. The judges of the district left the matter to this Court to resolve. On May 19, 2021, the Court issued an order to show cause why Mr. Ginsberg should not be sanctioned. Dkt. 78. On June 3, 2021, Mr. Ginsberg responded in opposition and moved for the Court to recuse itself. Dkt. 90. This decision now follows.

III. DISCUSSION

Of course, before the Court decides whether to sanction Mr. Ginsberg, it must determine whether it can do so dispassionately and impartially. The Court will consider defendants’ recusal motion first, and only turn to the issue of sanctions if its decision-making withstands scrutiny.

A. Recusal

If a party before a district court "makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, ... another judge shall be assigned to hear [that] proceeding."⁴ 28 U.S.C. § 144 (" § 144"). An affidavit under § 144 is only sufficient if it "show[s] the objectionable inclination or disposition of the judge and give[s] fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Sibley v. Geraci , 858 F. App'x 415, 416 (2d Cir. June 2, 2021) (summary order) (cleaned up) (citing Rosen v. Sugarman , 357 F.2d 794, 798 (2d Cir. 1966) ).

Along similar lines, a judge must voluntarily recuse himself "in any proceeding in which his partiality might reasonably be questioned." 28 U.S.C. § 455 (" § 455")(a). This includes when a judge holds "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." § 455(b)(1).

Under either statute, recusal motions are trusted to the district court's discretion. LoCascio v. United States , 473 F.3d 493, 495, 498 (2d Cir. 2007) (affirming denial of recusal motion under both §§ 144 and 455 ). In exercising that discretion, courts should note that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior...