Rech v. City of Batavia

MICHAEL RECH, Plaintiff v. THE CITY OF BATAVIA, THE CITY OF BATAVIA POLICE DEPARTMENT,SGT. THAD MART, DET. CZORA, OFFICER DeFREZE and OFFICER LAWRENCE, Defendants

15-CV-6732 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

February 3, 2020

DECISION AND ORDER

INTRODUCTION

In this action Plaintiff asserts claims for false arrest and excessive force under 42 U.S.C. § 1983 ("Section 1983"). Now before the Court is Defendants' motion for summary judgment (Docket No. [#24]). The application is granted and this action is dismissed.

BACKGROUND

The reader is presumed to be familiar with the record on summary judgment, therefore the Court will summarize the facts relevant to Defendants' summary judgment motion.

On September 30, 2013, Sergeant David Marcucci ("Marcucci") of the Town of Ogden Police Department filed criminal charges in the Town of Ogden Court against Plaintiff Michael Rech. The accusatory instrument is not contained in the record, but it is undisputed that it accused Plaintiff of Criminal Mischief in the Third Degree in violation of Penal Law § 145.05[2] (Class E Felony), Menacing in the Second Degree in violation of Penal Law § 120.14, and (Class A Misdemeanor), and two counts of Attempted Assault in the Second Degree in violation of Penal Law § § 110.00 & 120.05[2] (Class E Felonies). The charges stemmed from an incident in which Plaintiff was alleged to have used an axe handle to poke and threaten a process server who was attempting to serve papers on him concerning a matrimonial action,¹ though Plaintiff maintains that the allegations by the process server were false.² That same day, Marcucci spoke with Plaintiff by telephone, advised him that the charges had been filed, and asked him to come to the Ogden Police Department to discuss the matter. Plaintiff told Marcucci that he would not speak to police without an attorney present. Marcucci told Plaintiff that if Plaintiff did not voluntarily come to the Ogden Police Department, Marcucci would obtain a warrant for Plaintiff's arrest.

The following day, October 1, 2013, Marcucci applied for and obtained a warrant for Plaintiff's arrest from Ogden Town Court. Additionally, Marcucci learned that Plaintiff would be at the Batavia Police Department the following day, October 2, 2013, at 7:00 p.m., to deliver custody of Plaintiff's child to the child's mother, as part of a pre-arranged procedure established between Plaintiff and the mother. Marcucci then contacted the Batavia Police Department and arranged to have the Batavia Police Department arrest Plaintiff pursuant to the warrant while Plaintiff was at the Batavia Police Department for the custody exchange. In this regard, Marcucci spoke with defendant Sergeant Thad Mart ("Mart") of the Batavia Police Department, and provided Mart with a copy of the criminal complaint against Plaintiff, a copy of the arrest warrant, a photograph of Plaintiffand a description of Plaintiff's car.³ Additionally, Marcucci advised Mart that Plaintiff had a pistol license, that Plaintiff was known to own pistols, shotguns and rifles, and that Plaintiff was "known to keep weapons in his vehicle."⁴

The following day, October 2, 2013, at approximately 7:00 p.m., Plaintiff arrived at the Batavia Police Department as planned and transferred custody of his son to the child's mother in the parking lot of the Police Department. Specifically, Plaintiff got out of his car, removed his son from the child's car seat, walked the child the child's mother, and then got back into his car.⁵ As the custody exchanged transpired, officers of the Batavia Police Department, consisting of Mart, Detective Kevin Czora ("Czora"), Officer Mark Lawrence ("Lawrence") and Officer James DeFreze ("DeFreze") were in patrol cars, observing the exchange at a distance.⁶ Once the custody exchange was completed, the officers immediately drove up to Plaintiff's car in three police cars with their emergency lights activated, and boxed Plaintiff's car into its parking spot.⁷

What happened subsequently was fortuitously recorded by a dashboard camera ("dashcam") in Plaintiff's car.⁸ As the patrol cars approached with their emergency lights activated, Plaintiff, who was seated in the driver's seat of his car, stated aloud to himself, "Here we go." Officers outside Plaintiff's car then repeatedly shouted commands to Plaintiff, including "Get out of the car," "Step out of the vehicle with your hands up, now! You're under arrest," and "Sir, you are under arrest." The dashcam recording indicates that the officers' commands were clearly audible inside Plaintiff's car, even though the cardoors were shut and the windows were raised. Plaintiff admits that the officers yelled at him but contends that he cannot recall exactly what they were saying because he was "concentrated on making phone calls."⁹ Plaintiff acknowledges, though, that the officers may have indicated that he was being arrested pursuant to a warrant. See, Docket No. [#24-8] at p. 13 ("I think they just said there was a warrant. I don't remember the details.").

It is undisputed that after the four officers surrounded Plaintiff's car with their patrol cars, they each drew their pistols and pointed them at Plaintiff, while Mart and Czora continued issuing verbal commands for Plaintiff to get out of the car.¹⁰ As the officers were issuing these commands, Plaintiff remained seated in the driver's seat of his car, with the windows raised and the doors locked.¹¹ Mart has testified that as he approached Plaintiff's car, he "observed [Plaintiff] reach with his right hand over to his left side with his hands out of view."¹² Mart testified that as the incident progressed, he saw Plaintiff holding a cell phone in front of his face¹³ with one hand, but could not see Plaintiff's other hand.¹⁴ Czora has similarly testified that he was unable to see Plaintiff's hands at all times as Plaintiff sat in his car, and that Plaintiff refused to comply with demands that heshow his hands.¹⁵ The testimony by the officers on this point is uncontroverted.¹⁶ However, the officers never observed Plaintiff with a weapon.

The defendant officers continued issuing verbal commands to Plaintiff for approximately 42 seconds, after which Plaintiff made a cellular telephone call to his mother.¹⁷ (The conversation was recorded by the dashcam, as Plaintiff's phone was on the "speaker" setting). Plaintiff told his mother that he needed her to come to the Batavia Police Department, because he was being arrested. In that regard, Plaintiff stated, "They're gonna arrest me" and "They say I'm under arrest." That call ended approximately one minute and forty-two seconds into the standoff between Plaintiff and the Police. Approximately ten seconds later, Plaintiff made a second telephone call, in which he attempted to reach his attorney.¹⁸ As the phone was dialing, Plaintiff stated aloud, "Gimme one second." (The officers deny that they heard Plaintiff say anything, but they acknowledge that Plaintiff made a gesture with his finger as if to say, "Give me one second."). Approximately twenty seconds after Plaintiff said "Gimme one second," he was still on the telephone, at which time an officer again yelled, "Out of the vehicle."

Almost immediately thereafter, Detective Czora broke the driver's window of Plaintiff's car using a collapsible baton.¹⁹ According to the audio of the dashcam recording, Czora broke the window approximately two minutes and thirty-two secondsafter the Officers first ordered Plaintiff out of his car. When asked at deposition why he broke the car window, Czora responded: "Well, you've got four officers with firearms drawn. You've got a noncompliant subject who's wanted for violent felony offenses who may be in possession of weapons. You've got public in the area. And with all that considered, I felt it was necessary to end the situation as quickly as possible." Docket No. [#24-9] at p. 7.

After Czora broke the car window, he and DeFreze unlocked and opened Plaintiff's door, pulled Plaintiff from the car,²⁰ placed Plaintiff in a prone position face down on the pavement and handcuffed Plaintiff. The officers then observed that Plaintiff had sustained abrasions and a laceration to the left side of his neck, evidently caused by flying window glass. The officers summoned an ambulance, and Plaintiff was taken to the hospital, where he received treatment. The doctor who treated Plaintiff reported that Plaintiff sustained "abrasions" and a "small laceration" to the left side of his neck that required two sutures.²¹ After Plaintiff received treatment, Marcucci transported him back to the Town of Ogden.

Subsequently, on October 9, 2013, Mart charged and arrested Plaintiff with having resisted arrest during the incident on October 2, 2013, in violation of New York Penal Law § 205.30.²² That same day, Plaintiff was arraigned in Batavia City Court and released on his own recognizance. Plaintiff moved to have the accusatory instrument dismissed as defective, pursuant to New York Criminal Procedure Law § § 170.30 &170.35. In that regard, Plaintiff asserted that, "[i]n merely delaying the inevitable by allegedly remaining seated during the arrest process, [he] did not 'attempt to prevent' [his] arrest within the meaning of the resisting arrest statute."²³ However, Batavia City Court denied that application. Plaintiff was subsequently acquitted of resisting arrest, following a jury trial in Batavia City Court.

On December 9, 2015, Plaintiff commenced this action. On June 14, 2019, Defendants filed the subject motion [#24] for summary judgment. On October 21, 2019, Plaintiff filed a response [#28]. On November 20, 2019, Defendants filed their reply [#29]. On December 29, 2020, counsel for the parties appeared before the undersigned for oral argument.

DISCUSSION

Rule 56

Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56. Summary judgment may not be granted unless "the movant shows that there is no genuine dispute as to...