Berbick v. Precinct 42
977 F. Supp. 2d 268
S.D.N.Y.2013Background
- Plaintiffs, pro se, live in a Bronx homeless shelter; van towed from street where they stored belongings.
- Plaintiffs learned van was towed for unpaid tickets; Gonz lez and other officers investigated but did not personally seize the van.
- Plaintiffs called 9-1-1 about van and Clive’s illness; EMT advised BP check and hospital visit.
- Police arrived; one officer conducted a search of Clive’s person (frisk) before he entered an ambulance.
- Ambulance transported Clive to hospital; Clive’s high blood pressure was treated; Yolanda waited at hospital.
- Court later dismissed Yolanda as a plaintiff; Frisk of Clive implicated two officers (Jordan and Bragg) versus Gonzalez and Hall.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deprivation of property without due process | Berbicks contend van seizure violated due process | Defendants claim legal process via NYC towing/ticketing procedures | Grant summary judgment for Defendants on deprivation claim |
| Unlawful seizure of Plaintiffs | Berbicks claim entering ambulance constituted seizure | No seizure; EMT brought them to ambulance; they were free to leave | Grant summary judgment for Defendants on seizure claim |
| Unlawful frisk of Clive | Frisk by two officers was unlawful; not supported by reasonable suspicion | Defendants argue reasonable safety concerns; possible McCargo policy applicability | Gonzalez and Hall granted summary judgment; Jordan and Bragg denied summary judgment on frisk claim |
| Qualified immunity | Officers violated clearly established rights; no justification | Defendants claim reasonable belief in unlawfulness/under McCargo | Jordan and Bragg not entitled to summary judgment; Gonzalez and Hall entitled to summary judgment on frisk claim but overall denial not granted for all |
Key Cases Cited
- In re Murphy, 482 Fed.Appx. 624 (2d Cir. 2012) (personal involvement prerequisite to §1983 claims)
- Kaupp v. Texas, 538 U.S. 626 (2003) (seizure assessed by objective circumstances)
- Brendlin v. California, 551 U.S. 249 (2007) (being seized is objective; subjective belief irrelevant)
- Terry v. Ohio, 392 U.S. 1 (1968) (frisks are searches; must be reasonable)
- McCargo, 464 F.3d 192 (2d Cir. 2006) (policy-based frisk; generally applicable policy supports reasonableness)