Malave v. NYPD Sergeant Trevor Austin

• Decision Date: 31 July 2021
• Docket Number: 19-cv-5534 (ENV) (SJB)
• Parties: NATALIA MALAVE, Plaintiff, v. NYPD SERGEANT TREVOR AUSTIN, Defendant.
• Court: U.S. District Court — Eastern District of New York

NATALIA MALAVE, Plaintiff, v. NYPD SERGEANT TREVOR AUSTIN, Defendant.

No. 19-cv-5534 (ENV) (SJB)

United States District Court, E.D. New York

July 31, 2021

ORDER

ERIC N. VITALIANO United States District Judge

Plaintiff Natalia Malave commenced this action against Sergeant Trevor Austin of the New York City Police Department (“NYPD”), who was assigned to the school safety unit patrolling New York City's public schools, alleging pursuant to 42 U.S.C. § 1983, that defendant violated her constitutional rights under the Fourth and Fourteenth Amendments by using excessive force against her when trying to stop her from fighting with another student.^[1]Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted.

Background^[2]

On or about February 28, 2019, Malave was punched several times without reason, she says, by a fellow student at the Performing Arts and Technology High School in Brooklyn. See Third Am. Compl., Dkt. 12, ¶ 7. Others stood around watching the fight. See Video, Dkt. 30-2, at 0:00-0:03. Sergeant Austin, who was on duty as the school's safety officer, responded to the scene. Third Am. Compl. ¶ 8. When he arrived, he saw Malave charging at the other student with her arms flailing in the air. Id. ¶ 9; Video at 0:02-0:04. Attempting to break up the fight Sergeant Austin pushed Malave aside. Third Am. Compl. ¶ 10. Undeterred, Malave tried to push past Sergeant Austin to reach the other combatant, whom she labels the “attacker.” Id. ¶¶ 9-11. Sergeant Austin stood between the two students and, placing both hands on Malave's midriff, pushed her back a second time, sending her flying backward onto the ground. Id.; Video at 0:04-0:05. She placed her hands out behind her to break her fall and landed in a seated position with her feet in the air. Id. at 0:05. While Malave was on the ground, Sergeant Austin pointed at her and yelled something inaudible. Id. at 0:05-0:06. A young male bystander, presumably a student, then pushed Sergeant Austin causing the officer to fall onto his hands and knees, though he stood back up within a second. Id. at 0:07-0:10. Sergeant Austin and a second officer on the scene then began handcuffing that person. Id. at 0:13-0:26. Meanwhile, Malave had also gotten back up and resumed fighting with the other student. Id. at 0:06-0:17. She then approached the person in handcuffs and the officers, who were repeatedly yelling “back up.” Id. at 0:36-0:42. The incident was captured on a 42-second-long cell phone video, which ends at that point. See Third Am. Compl. ¶ 14; Video at 0:42. Malave does not allege that she was handcuffed, summonsed or arrested. See generally Third Am. Compl.

It is Sergeant Austin's second, harder push of Malave that is the subject of her excessive force claim. Malave contends that push, and her resulting fall, caused severe pain to her neck, back, chest, arms and left wrist. Id. ¶ 12. She sought orthopedic treatment and physical therapy. Id. ¶ 13.

Legal Standard

To overcome a Rule 12(b)(6) challenge, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). This “plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). The district court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). The district court may consider documents that are attached to or referenced in the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).

Discussion

The federal civil rights law, at 42 U.S.C. § 1983, creates a cause of action against “any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or laws of the United States.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Malave contends that, by pushing her to the ground, Sergeant Austin violated her Fourth Amendment right to be free from unreasonable seizures and, simultaneously violated her Fourteenth Amendment due process rights. Where a plaintiff brings an excessive force claim under both Amendments arising from the same conduct, the Court first determines whether the Fourth Amendment's explicit constitutional guarantees apply; if they do not, the Court looks to the Fourteenth Amendment's substantive due process protections. See Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000); Harrell v. Cty. of Nassau, No. 10-CV-5894 (MKB), 2013 WL 5439137, at *4 (E.D.N.Y. Sept. 27, 2013).

I. Fourth Amendment Seizure

Because the Fourth Amendment protects against “unreasonable searches and seizures, ” not all forms of unreasonable conduct, it only governs Malave's claim if Sergeant Austin's actions toward her constituted a seizure-a matter the parties dispute. See U.S. Const. amend. IV; Medeiros v. O'Connell, 150 F.3d 164, 167 (2d Cir. 1998) (“[T]he first step in any . . . section 1983 claim predicated on the Fourth Amendment[] is to determine whether there has been a constitutionally cognizable seizure.”); Bogart v. City of New York, No. 13-CV-1017 (NRB), 2016 WL 4939075, at *7 (S.D.N.Y. Sept. 6, 2016). Of course, “[n]ot every encounter between a police officer and an individual is a seizure implicating the Fourth Amendment's protections.” United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990). A seizure occurs when an officer, either “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see also Brower v. Cty. of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) (seizure requires “a governmental termination of freedom of movement through means intentionally applied”).

As a threshold issue, operational control of school safety officers in New York City has migrated from time to time over the course of several decades. Throughout all of those incarnations, these officers were considered “peace officers” and they were not, at any time, considered “police officers.” See, e.g., In re Victoria W., 953 N.Y.S.2d 554 (Fam. Ct. 2012) (“School safety agents are unarmed employees of the New York City Police Department School Safety Division, designated as peace officers.” (citing N.Y. Crim. Proc. Law § 2.10(27)). Importantly, though they are of different status, these constitutional protections and the availability of a remedy under § 1983 apply to peace officers with equal vigor. See, e.g., Concepcion v. New York City Dep't of Educ., 836 Fed.Appx. 27, 31 (2d Cir. 2020) (finding school safety agents may have used excessive force against student).

The core test for determining whether a seizure has occurred is “if, under the totality of circumstances, a reasonable person would have believed that he was not free to leave” or “‘to ignore the police presence and go about his business.'” Mara v. Rilling, 921 F.3d 48, 70 (2d Cir. 2019) (first citing Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988); then quoting Kaupp v. Texas, 538 U.S. 626, 629, 123 S.Ct. 1843, 1845, 155 L.Ed.2d 814 (2003)). The test is objective, looking to the “reasonable person” instead of the individual's impressions or the officer's intent (except insofar as it is conveyed to the individual). Chesternut, 486 U.S. at 574, 575 n.7. In making this determination, courts “take into account all of the circumstances surrounding the incident in each individual case, ” including the setting and police conduct. Id. at 572-73 (internal citations and quotation marks omitted). “Essentially, this inquiry is an objective assessment of the overall coercive effect of the police conduct.” Lee, 916 F.2d at 819.

Malave contends that Sergeant Austin seized her when he pushed her backward onto the sidewalk, away from the fight. See Pl.'s Opp'n Mem., Dkt. 32, at 4-7; Video at 0:04-0:05. The video footage of the incident shows that Malave stayed on the ground for under four seconds. Video at 0:05-0:09. During that time, Sergeant Austin pointed at her and yelled something inaudible.^[3] Id. at 0:04-0:05. As soon as Malave was back on her feet, she resumed fighting with the other student. Id. at 0:05-0:07, 0:14-0:17. Sergeant Austin turned his attention to handcuffing the bystander who had pushed him. Id. at 0:08-0:36. Malave's only other interaction with Sergeant Austin occurred when she voluntarily reapproached him after she had stopped fighting with the other student, and he directed her to stay back. Id. at 0:14-0:17, 0:36- 0:42.

Although the Court, of course, analyzes Malave's claim based on the unique facts of her case, it notes that courts addressing similar claims have held that an officer's push was not a Fourth Amendment seizure, even where the individual was knocked over. Some similar cases arise in the context of protests. In one, an officer struck a protester from across a police barricade, causing her to fall to the ground, though she got back up within 25 seconds. Bogart, 2016 WL 4939075, at *4. The court held that the protester was not seized, noting that she was “free to stay or leave the demonstration both before and after she was struck.” Id. at *8. The court observed that “[a]lthough being struck and knocked down by a police officer may be a ‘restraint on liberty' in the...