996 F.2d 522 (2nd Cir. 1993), 947, Ying Jing Gan v. City of New York

Docket Nº:947, 1043, Dockets 92-7971, 92-7993.
Citation:996 F.2d 522
Party Name:YING JING GAN, as administratrix of the Estate of Sen Van Ta, deceased, Ying Jing Gan, for herself as the wife and widow of the deceased, and, Jason Ta, child of the union of Ying Jing Gan and Sen Van Ta, Plaintiffs-Appellees-Cross-Appellants, v. The CITY OF NEW YORK, a municipal entity, State of New York, County of New York, governmental entities,
Case Date:June 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 522

996 F.2d 522 (2nd Cir. 1993)

YING JING GAN, as administratrix of the Estate of Sen Van

Ta, deceased, Ying Jing Gan, for herself as the wife and

widow of the deceased, and, Jason Ta, child of the union of

Ying Jing Gan and Sen Van Ta, Plaintiffs-Appellees-Cross-Appellants,

v.

The CITY OF NEW YORK, a municipal entity, State of New York,

County of New York, governmental entities, Deputy Chief

Joseph N. DeMartino, Detective Henry Murray, New York City

Police Officers, Defendants,

Luke Rettler, Assistant District Attorney, County of New

York, Defendant-Appellant,

Robert M. Morgenthau, District Attorney, New York County,

Defendant-Cross-Appellee.

Nos. 947, 1043, Dockets 92-7971, 92-7993.

United States Court of Appeals, Second Circuit

June 1, 1993

Argued Feb. 10, 1993.

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James I. Meyerson, New York City (Adele Graham, New York City, on the brief), for plaintiffs-appellees-cross-appellants.

David J. Mudd, Asst. Dist. Atty., New York County, New York City (Robert M. Morgenthau, Dist. Atty., New York County, James M. McGuire, Asst. Dist. Atty., on the brief), for defendant-appellant and defendant-cross-appellee.

Before: VAN GRAAFEILAND, KEARSE, and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Luke Rettler, an Assistant District Attorney in New York County, appeals from so much of an order of the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, as denied his motion for dismissal, on grounds of immunity or failure to state a claim, of plaintiffs' claims that Rettler failed to provide adequate protection to a complaining witness and that that failure resulted in the witness's death. Plaintiffs cross-appeal from so much of the order as dismissed their similar claims against defendant Robert M. Morgenthau, District Attorney for New York County, for failure to state a claim on which relief can be granted. We conclude that for various reasons Rettler was entitled to dismissal of the claims against him. We also affirm so much of the district court order as dismissed the claims against Morgenthau.

I. BACKGROUND

Plaintiffs Ying Jing Gan and Jason Ta are, respectively, the widow and son of Sen Van Ta ("Ta") who, until his death in March 1991, was the manager and part owner of the Golden Star Jewelry Store on Canal Street in the Chinatown section of New York City. Most of the events are undisputed.

  1. The Events

    On January 21, 1991, the Golden Star Jewelry Store was robbed by a group of young men. After the police were contacted, store employees identified the robbers, who were members of an organized crime gang known as Born To Kill ("BTK"). Thereafter, on February 7, 1991, Ta received an envelope addressed to the store, containing broken glass and a newspaper clipping describing the arrests. Ta viewed the contents as a serious threat and contacted the police.

    On February 11, Ta was visited at the store by a man who told him to go to court and say that the men arrested were not the ones who had robbed the store. Ta reported this incident to the police, and on February 18 he identified the man from photographs as David Thai; Thai was reputedly the leader of BTK. In the meantime, on February 13, several members of BTK visited the store and unsuccessfully attempted to extort money from Ta. Ta promptly contacted the police, and he accompanied officers to a shopping center in Chinatown, where he made face-to-face identifications of two of the men who had just visited his store.

    On March 10, 1991, Ta went with his pregnant wife to a store on Broadway. He was there shot and killed by an alleged member of BTK. Some six months later, Thai and several other alleged BTK members were indicted for numerous crimes, including the murder of Ta.

  2. The Present Lawsuit and the Decision Below

    In July 1991, plaintiffs commenced the present action asserting claims principally under 42 U.S.C. § 1983 (1988) against Rettler, Morgenthau, New York City police officers Henry Murray and Joseph N. DeMartino, and the City, County, and State of New York, alleging chiefly that defendants had failed to provide Ta with adequate protection, in violation of Ta's due process rights under the Fourteenth Amendment to the Constitution. The complaint requests a total of $20 million in compensatory and punitive damages, as well as declaratory and injunctive relief "if ... appropriate," and costs and attorneys' fees.

    Plaintiffs allege that Ta had a special relationship with defendants; that the compulsion of Ta by defendants "or some thereof" (Complaint p 24) to make the February 13 face-to-face identifications of men who had

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    just threatened Ta exposed him to an unreasonable risk of retaliation; and that compulsion and defendants' failure to protect Ta constituted a deliberate and reckless disregard of his constitutional rights. As it relates to Morgenthau and Rettler, the complaint alleges that the prosecutors violated Ta's constitutional rights by advising the police officers not to arrest Thai following Ta's identification of him:

    It is believed that personnel in the District Attorney's Office of New York County, pursuant to the practice, custom, policy and particular direction of Robert Morganthau [sic ], counseled the New York City Police Department and employees thereof, for the City of New York, not to make an arrest of Thai although Ta had specifically identified him as having made a threat to him because of Ta's prior cooperation with law enforcement personnel about the robbery. Said threat, as described, was a felony crime subjecting the individual--Thai, to arrest for the commission of a crime: threat and intimidation of a witness to a crime....

    (Complaint p 31.) It alleges that defendants' actions were

    per a policy, practice and custom of the New York City Police Department and/or in consultation with Defendant District Attorney and the Defendant Assistant[ ] District Attorney and per the policy, practice and custom of the Office of the District Attorney which elevated on going [sic ] investigations to a higher concern and level than to the protection of the rights and life of persons with whom law enforcement was working in the context of the investigations and without whom the investigations, to which the highest concern attached, could not take place and would not be effective.

    (Complaint p 34.)

    All defendants moved for dismissal of the complaint pursuant to, inter alia, Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief could be granted or, in the alternative, for summary judgment in their favor pursuant to Fed.R.Civ.P. 56(b) on grounds of absolute, qualified, or Eleventh Amendment immunity. The court eventually granted the motions of Morgenthau and the State and denied the motions of the municipal and other individual defendants; only the motions of Morgenthau and Rettler are pertinent to the present appeals.

    In support of his motion for summary judgment, Rettler, who was a Bureau Chief in charge of the Asian Gang Unit, submitted an affidavit stating that he had not participated in any pretrial identification procedures involving Ta. He also stated that he had "never 'counselled' the police not to arrest Thai." (Affidavit of Assistant District Attorney Luke Rettler, dated September 10, 1991 ("Rettler Affidavit"), p 7.) Rather, he informed the officers that with respect to Ta's report that Thai told him to testify that the men arrested were not the ones who had robbed the store, Thai could be charged only with witness tampering in violation of N.Y. Penal Law § 215.10, a misdemeanor charge that would not support his prolonged detention pending its disposition. Rettler also stated that he personally explained this to Ta and asked whether in the circumstances Ta wanted Thai arrested, and that Ta responded that he did not:

    5. On or about February 19, 1991, I informed Detective Henry Murray of the New York Police Department that probable cause existed to arrest Thai for, at best, the crime of Tampering With a Witness in the Fourth Degree (New York Penal Law § 215.10). However, I informed Detective Murray that, given that that crime was a misdemeanor, our office would not be able to obtain pretrial bail conditions sufficient to keep Thai incarcerated pending his criminal prosecution. I also informed Detective Murray that Thai, if he were arrested, might retaliate against Ta in some way. I therefore suggested to Detective Murray that he apprise Ta of this information and then ask Ta if he wanted the police to arrest Thai.

    6. On or about February 19-20, 1991, I personally spoke with Mr. Ta at the Golden Star Jewelry Store. During my conversation with Mr. Ta, I told him that the police would attempt to arrest Thai if Mr. Ta so desired, but that our office would not be able to obtain pretrial bail conditions

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    that would be sufficient to keep Thai incarcerated pending his criminal prosecution. I asked Mr. Ta if he was satisfied with the police protection that he was receiving; Mr. Ta answered that he was. I also asked Mr. Ta if he wanted the police to arrest Thai; Mr. Ta answered that he did not.

    (Rettler Affidavit pp 5, 6.) Rettler also submitted a March 2, 1991 police report filed by Murray that supported the Rettler Affidavit's account of these events:

    I have informed Mr. Ta of my conversations with ADA Rettler of the Asian Gang Unit who has stated that allthough [sic ] probable cause exist[s] to arrest David Thai[ ], the District Attorneys [sic ] office will be unable to keep David Thai incarcerated and that this situation may exasperate gang members. I have advised Mr. Ta that the decision to have David Thai arrested...

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