Plaintiff, Defendant. Plaintiff, Defendant. MEMORANDUM-DECISION AND ORDER -v- 5:07-CV-225 (NAM/GHL) (NAM/GHL) -v- 5:07-CV-225 -v- 5:07-CV-226 Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 1 of 11 1 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case Norman A. Mordue, Chief U.S. District Judge: gggggggggggggggggggggggggggggggggggggggggggggggggggggggg APPEARANCES: Wiggins, Kopko & Crane, LLP Edward E. Kopko, Esq., of counsel 308 North Tioga Street Ithaca, New York 14850 and & Wallace Guttman Richard M. Wallace, Esq., of counsel 411 North Tioga Street Ithaca, New York 14850 AttorneysPlaintiffs for Office of University Counsel, Nelson E. Roth, Esq., of counsel Weatherly Schwab, Esq., of counsel Norma Valerie L. Dorn, Esq., of counsel Wendy E. Tarlow, Esq., of counsel 300 CCC Building Garden Avenue Ithaca, New York 14853 AttorneysDefendant for gggggggggggggggggggggggggggggggggggggggggggggggggggggggg Gregory D. Reynolds, Daniel Gonzales, Daniel Gonzales, UNITED STATES DISTRICT COURT STATES DISTRICT UNITED NEW YORK DISTRICT OF NORTHERN gggggggggggggggggggggggggggggggggggggggggggggggggggggggg Anthony N. Potenza, NAM , Reynolds v. Gonzales t, tumultuous or threatening behavior; or threatening t, tumultuous aintiffs for disorderly conduct outside Lynah aintiffs for disorderly conduct outside abuse of process. As explained below, the abuse of process. tenza and Gregory D. Reynolds cross-move for D. Reynolds cross-move tenza and Gregory instruments filed by Gonzalez charged Potenza filed by Gonzalez charged instruments -2- me is Gonzalez, not Gonzales as it is spelled in the is Gonzalez, not Gonzales me m that Gonzalez, a police officer employed by a police officer employed that Gonzalez, m , 5:07-CV-225, Dkt. Nos. 47, 50; , 5:07-CV-225, Dkt. BACKGROUND INTRODUCTION defendant in these two actions under 42 U.S.C. § 1983, moves for moves U.S.C. § 1983, under 42 in these two actions defendant 1 Potenza v. Gonzales A person is guilty of disorderly conduct when, with intent to cause public A person is guilty of disorderly conduct a risk thereof: or recklessly creating inconvenience, annoyance or alarm, 1. He engages in fighting or in violen or *** an 3. In a public place, he uses abusive or obscene language, or makes obscene gesture[.] Daniel Gonzalez, The actions stem from Gonzalez’ arrest of pl from The actions stem On June 3, 2004, Ithaca City Judge Judith A. Rossiter held a joint bench trial on the On June 3, 2004, Ithaca City Judge Judith A. Rossiter held a joint 1 Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 2 of 11 2 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case

captions of the complaints. Defendant affirms that the correct spelling of his na Defendant affirms summary judgment ( judgment summary summary judgment, and plaintiffs Anthony N. Po and plaintiffs judgment, summary Nos. 47, 50). Plaintiffs clai 5:07-CV-226, Dkt.

Cornell University (“Cornell”), violated their rights under the United States Constitution to be under the United States Constitution (“Cornell”), violated their rights Cornell University prosecution, and malicious false arrest, free from Court denies the motions. on January 16, 2004, and the ensuing of an game Rink at Cornell at the beginning The accusatory prosecution in Ithaca City Court. of subdivisions (1) and (3) of section 240.20 of the New with disorderly conduct in violation and Reynolds with disorderly conduct in violation of York Penal Law (“section 240.20”), The applicable provisions read: subdivision (3) of section 240.20. NAM (50 NY2d Practice People v. Munafo -3- viduals to leave Lynah Rink and ). The lead case on this point is On January 16, 2004, the defendants entered Lynah Rink on the Cornell the defendants entered Lynah On January 16, 2004, of the Cornell University Police Department Officer Gonzalez campus. to intoxicated and that they attempted appeared testified that both men the one denoted on their tickets. enter a section of the rink other than Officer Gonzalez directed both indi Mr. Reynolds and Mr. Potenza complied outside. Both him accompany the officer requested identification from with that directive. Once outside, officer testified that, during the Mr. Reynolds and Mr. Potenza. The outside the rink, each used abusive or exchange with the two defendants with intent to cause public manner obscene language and acted in a or recklessly created the risk of same. inconvenience, annoyance, or alarm, in did the officer testify that anyone else was present However, at no time In other words, and himself. the parking lot besides the two defendants nor any evidence accusatory instrument there was no allegation in either the public were of any other members presented by the Prosecution that inappropriate behavior of the defendants. present or inconvenienced by the statute is to proscribe that type of The intent of the Disorderly Conduct to provoke public disorder ( conduct that has a real tendency York Commentary, PL §240.20, McKinney’s Consolidated Laws of New Annotated 326), which requires that the behavior proscribed by the statute be of a 326), which requires that the behavior proscribed by the statute be if the behavior To determine public rather than an individual dimension. findings make within the Disorderly Conduct statute, the Court must comes by the conduct, taking into account of people attracted about the number and place of the event. including the time the surrounding circumstances, any In this instance, as indicated above, no evidence was presented that were attracted by the conduct that occurred outside of the public members the rink, which is the only unlawful conduct charged within the accusatory his There is no question that the officer was perfectly within instruments. they right to direct the defendants to leave Cornell property, given that they did not to enter a section for which were intoxicated and attempted Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 3 of 11 3 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case charges. Gonzalez was the sole witness. He was not questioned about the number of other number about the He was not questioned sole witness. Gonzalez was the charges. acted plaintiffs relevant to whether or other factors of the arrests time the area at the people in creat[ed] a risk or recklessly or alarm, public inconvenience, annoyance “with intent to cause decision acquitting on the issue. In her written he volunteer any testimony thereof”, nor did the following charged”, Judge Rossiter made of “Disorderly conduct as Potenza and Reynolds conclusions of law: findings of fact and NAM , 477 , 101 , , 5:07-CV-226, Dkt. See Weyant v. Okst . If, as to the issue on Id Potenza v. Gonzales see Celotex Corp. v. Catrett Reynolds v. Gonzales a plaintiff must prove that the defendant a plaintiff must , 5:07-CV-226, Dkt. No. 49). , 5:07-CV-226, Dkt. -4- to the nonmovant to proffer evidence demonstrating to the nonmovant DISCUSSION , 46 F.3d 196, 203 (2d Cir. 1995). Reynolds v. Gonzales , 5:07-CV-225, Dkt. No. 47; , 5:07-CV-225, Dkt. have tickets. However, the Court must find the defendants not guilty of not the defendants find the Court must However, have tickets. evidence of of lack of on the grounds Conduct as charged, Disorderly private, disturbance. as opposed to any public, To prove false arrest under 42 U.S.C. § 1983, The present actions, commenced in New York State Supreme Court on January 16, 2007, State Supreme in New York commenced The present actions, Summary judgment is appropriate if, viewing the evidence in the light most favorable to if, viewing the evidence in the light most is appropriate judgment Summary Potenza v. Gonzales Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 4 of 11 4 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case U.S. 317, 323 (1986). If the movant satisfies the burden of establishing that there is no genuine satisfies U.S. 317, 323 (1986). If the movant shifts fact, then the burden issue of material fact exists. disputed issue of material that a trial is required because a which any source from record from is sought, there is evidence in the judgment which summary be denied. must judgment party, summary an inference could be drawn in favor of the nonmoving See Cronin v. Aetna Life Ins. Co. False arrest without his consent and without justification. intentionally confined him were removed to this Court on March 2, 2007. Gonzalez moves for summary judgment in both in judgment for summary 2007. Gonzalez moves to this Court on March 2, were removed cases ( No. 47). Plaintiffs cross-move for summary judgment in both cases ( in both cases judgment for summary cross-move No. 47). Plaintiffs No. 50; 5:07-CV-225, Dkt. Summary judgment fact and the movant material that there is no genuine issue of the court determines the nonmovant, of law. Fed. R. Civ. P. 56 (c); a matter as is entitled to judgment F.3d 845, 852 (2d Cir. 1996). The existence of probable cause to arrest constitutes justification; F.3d 845, 852 (2d Cir. 1996). The existence of probable cause to NAM , 50 People v. Munafo : “The clear aim was to : “The clear aim , 89 N.Y.2d 769, 775 (1997). Munafo directed at words and utterances coupled with actual and practical considerations of actual and practical considerations -5- public rather than individual dimension.’ ” public rather than individual dimension.’ People v. Tichenor t, tumultuous or threatening behavior” (subdivision t, tumultuous , 63 F.3d 110, 118 (2d Cir. 1995). Probable cause to 1995). Probable 110, 118 (2d Cir. , 63 F.3d . at 119 (citation and internal quote omitted). The and internal quote omitted). . at 119 (citation Id , 262 F.3d 146, 157 (2d Cir. 2001) (quoting Singer v. Fulton Co. Sheriff Singer v. While probable cause requires more than a mere suspicion of wrongdoing, suspicion than a mere cause requires more probable While certainties. In assessing probabilities, is on probabilities, not hard its focus look to the f a judicial officer must not legal technicians, and prudent men, everyday life on which reasonable any showing that a demand probable cause does not act.... In sum, likely true than false. It requires only good-faith belief be correct or more wrongdoing or the discovery of evidence thereof such facts as make probable. , 496 F.3d 139, 156-57 (2d Cir. 2007) (citations and internal quotes omitted). (citations and internal quotes omitted). , 496 F.3d 139, 156-57 (2d Cir. 2007) As noted, section 240.20 provides that a person is guilty of disorderly conduct when, As noted, section 240.20 provides Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 5 of 11 5 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case “[t]here can be no federal civil rights claim for false arrest where the arresting officer had where the arresting for false arrest civil rights claim can be no federal “[t]here cause.” probable arrest exists where “the arresting officer has knowledge or reasonably trustworthy information or reasonably trustworthy “the arresting officer has knowledge arrest exists where been in the belief that an offense has a person of reasonable caution sufficient to warrant to be arrested.” by the person committed Second Circuit explains: Walczyk v. Rio “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk annoyance or alarm, “with intent to cause public inconvenience, or in violen thereof[,]” he “engages in fighting 1), or he “uses abusive or obscene language, or makes an obscene gesture” in a public place an obscene language, or makes 1), or he “uses abusive or obscene (subdivision 3). The disorderly conduct statute “is an intent to create a risk of public disorder[.]” Provost v. City of Newburgh The statute “punishes ‘disruptive behavior ... of N.Y.2d 326, 331 (1980). As New York’s high court stated in the concern of individual reserve the disorderly conduct statute for situations that carried beyond 50 public problem.” a potential or immediate disputants to a point where they had become NAM ,

2 Reynolds v. Gonzales t. On the questions of whether plaintiffs used t. On the questions an adverse inference instruction in his favor, based walk straight.” Gonzalez also relies on the walk straight.” Gonzalez also relies by an Cornell police at approximately ountered plaintiffs inside the rink, both “had the ountered plaintiffs inside the rink, , 5:07-CV-225, Dkt. No. 46; ez’ description of plaintiffs’ conduct; his -6- ffs appeared highly intoxicated and used “extreme” ffs appeared highly intoxicated and He described in some detail plaintiffs’ some He described in fficer Ronald Rogers, who transported plaintiffs fficer Ronald Rogers, who transported Potenza v. Gonzales

See The record presents questions of fact material to whether Gonzalez could reasonably have could reasonably to whether Gonzalez of fact material presents questions The record In further support of his motions, Gonzalez points to evidence supporting his contention In further support of his motions, 2 Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 6 of 11 6 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case 5:07-CV-226, Dkt. No. 46). on the disappearance of a videotape taken of Reynolds hour after Reynolds’ arrest. This Court has already to ruled that Gonzalez is entitled believed that plaintiffs engaged in disorderly conduc believed that plaintiffs N.Y.2d at 331. N.Y.2d at abusive or obscene language and whether Potenza behaved in a tumultuous or threatening behaved in a tumultuous language and whether Potenza abusive or obscene appeared intoxicated, were that plaintiffs relies on his City Court testimony Gonzalez manner, strongly of alcohol. staggering, and smelled uncooperative, abusive, disruptive and threatening conduct. Gonzalez submits an affirmation conduct. Gonzalez submits disruptive and threatening uncooperative, abusive, an usher, that when he enc Earl Westbrook, from and could not odor of alcohol, speech was slurred Charles E. Howard, who arrived on the scene during the affidavit of Cornell Police Sergeant that plainti altercation outside the rink, stating papers toward Gonzalez. The motion movement a “menacing” profanity, and that Potenza made Police O also contain the affidavit of Cornell Barton Hall after the arrests. Rogers stated Lynah Rink to Cornell police headquarters at from agitated, using profanity, and speaking very loudly.” they were “obviously intoxicated, that he reasonably believed that plaintiffs intended to cause public inconvenience, annoyance or that he reasonably believed that plaintiffs intended to cause public and location, created a risk thereof. Such evidence includes the time, or recklessly alarm, surrounding the incident; Gonzal circumstances NAM People v.

See , 828 N.Y.S.2d later. Clearly, the parties’ differing versions later. Clearly, the parties’ differing ffs further contend that no reasonable officer ffs further contend that no reasonable outside the rink when he escorted plaintiffs rink when he outside the re not performing a lawful duty in making the a lawful duty in making re not performing -7- did not know whether there were people outside did not know whether there were onzalez decided to remove plaintiffs from the from plaintiffs decided to remove onzalez see also Whyte v. City of Yonkers did not remember anyone outside when Gonzalez did not remember disturbance to support the disorderly conduct In opposition and in their cross motions for summary judgment, plaintiffs submit evidence plaintiffs submit judgment, for summary in their cross motions In opposition and on the disorderly conduct charges is not conclusive The fact that plaintiffs were acquitted , 445 N.Y.S.2d 252, 254 (3d Dep’t 1981) (holding that although the trial evidence “lacked , 445 N.Y.S.2d 252, 254 (3d Dep’t 1981) (holding that although Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 7 of 11 7 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case testimony that approximately a dozen people were a dozen people were that approximately testimony outside; and Howard’s statement that he and G that he and and Howard’s statement outside; seconds out, 20 or 30 when Gonzalez escorted them scene “to prevent the disruption of other spectators.” the disruption of other spectators.” scene “to prevent disorderly conduct. for cause to arrest them that there was no probable argument supporting their Their events leading up to the arrests. about the testimony on their own They rely primarily each other’s). respects, from Gonzalez’ (and, in some differs substantially from version of events of the conduct described by and deny engaging in most They state they were not intoxicated and Rogers. Plainti Howard, Gonzalez, Westbrook, or to cause public inconvenience, annoyance or alarm, could have believed they intended Reynolds recklessly created a risk thereof. he saw other people entering the building as out of the rink. Potenza testified that escorted them but that he he and Reynolds arrived at the rink, questions of fact. of events present material for disorderly conduct. on whether Gonzalez had probable cause to arrest them Early of ‘public’ proof of the necessary element convictions ... it does not follow that the police we disorderly conduct arrest.” (citation omitted)); that Judge Rossiter’s to plaintiffs’ argument 218 (2d Dep’t 2007). Further, there is no merit NAM , 373 , 580 F.3d Droz v. McCadden , 478 F.3d 76, 85-86 (2d Cir. , 478 F.3d 76, 85-86 See Washington v. County of Rockland , 510 U.S. 266 (1994)). Plaintiffs argue tiffs must prove that a Fourth Amendment tiffs must inal proceeding against [the plaintiff]; (2) that inal proceeding against [the plaintiff]; whether Gonzalez had probable cause to arrest whether Gonzalez -8- Jenkins v. City of New York Jenkins v. City of Albright v. Oliver

See The elements of a malicious prosecution claim under New York common law are: “(1) York common under New prosecution claim of a malicious The elements Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 8 of 11 8 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case 2007). Having found questions of fact regarding questions of fact regarding 2007). Having found to plaintiffs’ false arrest addressed cross motions and denies the motions plaintiffs, the Court under section 1983. claims Malicious prosecution or continued a crim that the defendant commenced dismissal of the criminal charges collaterally estops Gonzalez from proving in this Court that he proving in this from estops Gonzalez charges collaterally of the criminal dismissal or or alarm, annoyance cause public inconvenience, intended to believed plaintiffs reasonably in the City cause to arrest was not decided a risk thereof. The issue of probable recklessly created fair City Court case – have a full and Gonzalez – a non-party to the Court case, nor did the issue. opportunity to litigate the proceeding was terminated in the plaintiff’s favor; (3) that there was no probable cause for the in the plaintiff’s favor; the proceeding was terminated was instituted with malice.” proceeding; and (4) that the proceeding 106, 109 (2d Cir. 2009) (citation omitted). The first two elements are met here; Gonzalez filed met are two elements The first omitted). 106, 109 (2d Cir. 2009) (citation in plaintiffs’ were terminated and the ensuing City Court proceedings the accusatory instruments, had probable cause to file the accusatory – whether Gonzalez favor. As to the third element also bar on the false arrest claims judgment fact that bar summary – the questions of instruments of fact also bear on These questions prosecution claims. on the malicious judgment summary out a In addition, to make so as to satisfy the fourth element. whether Gonzalez acted with malice under section 1983, plain prosecution claim malicious the legal process. deprivation of liberty resulted from F.3d 310, 316 (2d Cir. 2004) (citing NAM See Anderson v. , 41 F.3d 73, 80 (2d Cook v. Sheldon denial of procedural due process, and thus is denial of procedural due process, al questions of fact on the issue of probable al questions of fact on the issue of -9- orming discretionary functions enjoy a qualified orming ble cause existed, or (b) officers of reasonable summary judgment on the motions and cross motions on the motions judgment summary . Gonzalez argues that, because he had probable cause to file . Gonzalez argues that, because Id , 483 U.S. 635, 638 (1987). Finally, Gonzalez argues that he is entitled to summary judgment on the ground of judgment is entitled to summary Finally, Gonzalez argues that he “if either (a) it was objectively a false arrest claim from A police officer is immune Under New York common law, an abuse of process claim lies against a defendant who lies against a defendant of process claim law, an abuse common Under New York Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 9 of 11 9 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case the accusatory instruments against plaintiffs, as a matter of law he did not use the legal process against plaintiffs, as a matter the accusatory instruments there are materi for a wrongful purpose. Because Cir. 1994). Abuse of criminal process constitutes a Cir. 1994). Abuse of criminal actionable under section 1983. on this issue are denied. judgment for summary cause, the motions Qualified immunity officials perf Government qualified immunity. liability as long as their actions could reasonably civil damages from shielding them immunity violated. have been thought consistent with the rights they are alleged to have Creighton reasonable for the officer to believe that proba on plaintiffs’ section 1983 malicious prosecution claims. claims. prosecution 1983 malicious on plaintiffs’ section Abuse of process act (2) or forbearance of some performance process to compel regularly issued legal “(1) employs excuse or justification, and (3) in order to obtain a collateral without with intent to do harm the process.” ends of objective that is outside the legitimate that this element is met by the post-arraignment travel restrictions imposed on them and the and on them imposed travel restrictions by the post-arraignment met is element that this to be in does not appear this element trial; for the criminal appear in court that they requirement questions of fact preclude dispute. Material NAM , , , Potenza v. Gonzales Posr v. Court Officer Posr v. Court Potenza v. Gonzales Reynolds v. Gonzales -10- CONCLUSION have reasonably believed that probable cause existed in the believed that probable cause existed have reasonably could , 246 F.3d 194, 203 (2d Cir. 2001) (quotations and citations omitted, emphasis (quotations and citations omitted, , 246 F.3d 194, 203 (2d Cir. 2001) Arguable probable cause exists when a reasonable police officer in the cause exists when a reasonable Arguable probable officer in knowledge as the possessing the same and circumstances same question officials enforcement law. It is inevitable that law well established light of conclude that probable cause reasonably but mistakenly cases will in some those officials – like have indicated that in such cases is present, and we to be lawful – act in ways they reasonably believe other officials who should not be held personally liable. , 180 F.3d 409, 416 (2d Cir. 1999) (citation and internal quote omitted). The quote omitted). and internal 1999) (citation 409, 416 (2d Cir. , 180 F.3d It is therefore in judgment for summary ORDERED that defendant’s motion in judgment for summary ORDERED that plaintiff’s cross motion As discussed above, the record presents material factual disputes. These factual disputes factual disputes. material As discussed above, the record presents ORDERED that defendant’s motion for summary judgment in judgment for summary ORDERED that defendant’s motion Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 10 of 11 10 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case Shield No. 207 Shield No. probable cause” as follows: explained this concept of “arguable Second Circuit has 5:07-CV-225 (Dkt. No. 47) is denied; and it is further competence could disagree on whether the probable cause test was met.” test was met.” probable cause on whether the could disagree competence Cerrone v. Brown in original). and circumstances a reasonable police officer in the same on whether preclude a determination could have reasonably believed that he had probable knowledge as Gonzalez possessing the same on the ground of judgment Summary the accusatory instruments. cause to arrest plaintiffs and file is denied. qualified immunity 5:07-CV-226 (Dkt. No. 47) is denied; and it is further 5:07-CV-225 (Dkt. No. 50) is denied; and it is further NAM , Reynolds v. Gonzales Reynolds -11- Syracuse, New York Syracuse, New York ORDERED that plaintiff’s cross motion for summary judgment in judgment summary for cross motion that plaintiff’s ORDERED ORDERED that this case is Deemed Trial Ready as of September 30, 2010. The Jury 30, 2010. as of September Trial Ready this case is Deemed ORDERED that IT IS SO ORDERED. Date: July 1, 2010 Case 5:07-cv-00225-TJM -GHL Document 53 Filed 07/01/10 Page 11 of 11 11 of Page 07/01/10 Filed 53 Document -GHL 5:07-cv-00225-TJM Case 5:07-CV-226 (Dkt. No. 49) is denied; and it is further is denied; and (Dkt. No. 49) 5:07-CV-226 York. in Syracuse, New 2, 2010, at 9:00 a.m., for December Trial is scheduled NAM