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Gay Man Arrested in Spurious Prostitution Bust Entitled to Trial Against New York City for Constitutional Torts

Posted on: October 17th, 2013 by Art Leonard No Comments

U.S. District Judge Shira Scheindlin has ruled that Robert Pinter, a gay man who claims to have been wrongly arrested on October 10, 2008, and wrongly prosecuted in a scheme by New York City officials to go after adult businesses by accumulating lots of prostitution arrests, is entitled to his day in court against the City.  Denying a motion for summary judgment on most of Pinter’s federal claims in Pinter v. City of New York, 2013 U.S. Dist. LEXIS 147459 (S.D.N.Y., Oct. 10, 2013), Scheindlin scheduled a conference on October 31 with counsel to plan for the rest of the case.

This is a case that has already been to the 2nd Circuit, which ruled a year ago that the individual defendants (police officers, prosecutors, city officials) were entitled to qualified immunity, based on that court’s conclusion that Pinter’s factual allegations would support a finding that the arresting officers had “arguable probable cause” to make their arrest.  Pinter v. City of New York, 448 Fed. App’x 99 (2nd Cir. 2011), cert. denied, 133 S.Ct. 191 (2012).  The 2nd Circuit also said in that opinion that Pinter’s claims against the City “are derivative of his claims against the individual defendants, and therefore any claims dismissed as against the individual defendants must also be dismissed as against the City.”  Relying on this, the City moved to dismiss all of his remaining claims.

But Judge Scheindlin found that the 2nd Circuit has recently issued another decision on municipal liability that contradicts its statement in the Pinter case, Askins v. Doe No. 1, 2013 WL 4488698 (2nd Cir., Aug. 23, 2013), and she decided it would be appropriate to follow the newer decision, rather than the earlier Pinter decision, as a more recent and authoritative statement by the 2nd Circuit of the circumstances under which a  municipality can be held liable for constitutional torts committed by its employees, even though the employees themselves enjoy qualified immunity.  She based her decision, in part, on a distinction between “arguable probable cause,” as found by the 2nd Circuit, and actual probable cause, concluding that if a jury believed Pinter’s account of what happened, it could conclude that there was not actual probable cause for his arrest.

According to Pinter, a gay man who was then 52, he was browsing in the pornography section of an adult establishment called “The Blue Door” when a young undercover police officer made eye contact with him and initiated conversation about what Pinter “liked to do.”  Oral sex came up.  Although there was a part of the store where gay men engaged in sexual activity, Pinter said he was nervous about doing anything in the store.  The undercover indicated his car was nearby, implying they could go and “do it” there.  Pinter started to walk to the exit, followed by the undercover.  “At the door but before leaving the store,” the undercover said to Pinter, “I want to pay you $50 to suck your dick.”  Pinter says he was caught off guard by this, quickly decided that there was no possibility that he was going to have sex with this man, but said nothing at first, just continuing to walk toward his apartment, which happened to be in the same direction as the undercover’s car.  Pinter and the undercover continued to engage in “playful banter” as they walked, with no statement by Pinter that he would accept money for sex and no further mention of money by the undercover.  Suddenly some other officers appeared, pushed Pinter against a fence, and arrested him.  He was tightly handcuffed and placed in a police van, which drove around for several hours until depositing him at a police station.  Although he complained about the tightness of the cuffs, the officers refused to loosen them, even though no other arrestees were in the van and Pinter was unarmed.  Pinter subsequently required medical treatment for injuries sustained from this experience.

Pinter initially pleaded guilty to a reduced charge of disorderly conduct, but when he found out that other men were being arrested under similar circumstances he filed a motion to vacate his conviction, which was not opposed by the District Attorney’s Office.  The Assistant D.A. submitted a statement to the court, stating that it was unlikely Pinter went to the Blue Door intending to solicit money for sex, and that the D.A.’s office had already dismissed three pending cases with similar circumstances after concluding that “it would be difficult to prove the guilt of defendants in those cases beyond a reasonable doubt at trial.”

Pinter’s federal lawsuit charged the officers, prosecutors and city officials (including Police Commissioner Ray Kelly and Mike Bloomberg) with violations of his constitutional rights, contending that he was subjected to false arrest, malicious prosecution and malicious abuse of process, sexual orientation discrimination, violation of freedom of association, unreasonable detention and excessive force.  The individual defendants sought to dismiss the claims against them based on a qualified immunity theory, which Judge Scheindlin rejected but the 2nd Circuit accepted on appeal, with the Supreme Court refusing Pinter’s petition to review that ruling.

In this new opinion, Scheindlin dealt with the City’s argument that all the remaining claims should be dismissed.  She found, as noted above, that the City could still be held liable for many — but not all — of Pinter’s claims.  She found that his allegations were not sufficient to support a sexual orientation discrimination claim, because he did not provide any evidence that there was selective prosecution of prostitution cases based on the sexual orientation of those arrested, noting that police records showed that heterosexual women were also being arrested for soliciting at adult businesses.  She also found that federal precedents do not recognize a constitutional freedom of association claim based on interference with somebody’s ability to shop at a particular commercial establishment.

But Judge Scheindlin found that a reasonable jury could conclude, based on Pinter’s allegations in support of his claims, that there was no actual probable cause for his arrest, making it wrongful, that under the circumstances the District Attorney’s decision to prosecute him could also be wrongful, and, if he proved the scheme that he was alleging about using spurious prostitution arrests to support nuisance claims against adult businesses, he would have proven abuse of process (the misuse of legal procedures for ulterior purposes).   Furthermore, she found that his allegations were sufficient to support claims for excessive force and detention arising from his treatment in the police van, noting that some of the deposition evidence of city officials would support a claim that the City failed to train police officers about their obligations concerning treatment of arrestees.

In other words, the City may still be subject to significant liability in Pinter’s case, and it would not be surprising if a new City administration sees this as one of the pending lawsuits that should be settled without a trial.  Pinter is represented by attorneys James I. Meyerson and Jeffrey A. Rothman.  One hopes they would push for a settlement that would include an agreement by the City to desist from these sorts of spurious arrests and to train police officers about appropriate treatment of  arrestees.