Roe v. City of New York
| Decision Date | 19 November 2002 |
| Docket Number | No. 00 Civ. 9062(RWS).,00 Civ. 9062(RWS). |
| Parties | James ROE, Hilton Perez, John B. and Jim Moes # 1-# 3, on behalf of themselves and a class of persons similarly situated, Plaintiffs, v. THE CITY OF NEW YORK, New York City Police Commissioner Raymond W. Kelly, and New York City Police Officers Lance Ho, Thomas Hickey, Paul Demorato, and John Does # 1-9, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Urban Justice Center, New York, NY, By: Corinne A. Carey, Doug Lasdon, Debevoise & Plimpton, New York, NY, By: Dennis H. Hranitzky, Helen Y. Kim, Swidler, Berlin, Shereff, Friedman, New York, NY, By: Adam J. Wasserman, for Plaintiffs, of counsel.
Honorable Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, By: Lisa J. Black, Assistant Corporation Counsel, for Defendants, of counsel.
Plaintiffs James Roe ("Roe"), Hilton Perez ("Perez"), John B., and the putative class of registered participants in authorized needle exchange programs, collectively the "Plaintiffs," have moved for partial summary judgment on Count XII of their Second Amended Class Action Complaint ("SACAC") seeking declaratory relief pursuant to 28 U.S.C. § 2201. Defendants, the City of New York (the "City"), the New York City Police Department Commissioner Raymond W. Kelly ("Commissioner Kelly"), New York Police Department Detectives Lance Ho ("Detective Ho") and Paul A. Demorato ("Detective Demorato") and New York Police Department Officer Thomas Hickey ("Officer Hickey"), collectively the "Defendants," have cross-moved to dismiss pursuant to Rule 56 on grounds of qualified immunity. Fed.R.Civ.P. 56.
For the reasons stated below, the Plaintiffs' motion for declaratory judgement is granted, and the Defendants' motion to dismiss is denied.
The initial complaint, filed on November 28, 2000, sought damages for Roe arising out of an illegal search, false arrest, malicious prosecution, forced participation in a "buy and bust," conspiracy to violate civil rights, the failure to train police officers, a pattern and practice of violating civil rights, and violation of state rights.
On August 3, 2001, this Court granted Plaintiffs' motions to amend the complaint pursuant to Fed.R.Civ.P. 15(a). Roe v. City of New York, 151 F.Supp.2d 495 (S.D.N.Y.2001). The SACAC asserted claims for declaratory and injunctive relief protecting the Plaintiffs' right to legally possess used hypodermic needles or syringes ("needles" and "syringes" have the same meaning herein) containing a drug residue in the course of participating in a state-authorized needle exchange program. It added Perez and John B. as representatives of the putative class, provided additional facts relating to their claims for injunctive relief, and added Detective Demorato, who arrested Perez, as a defendant.
The SACAC set forth detailed factual allegations pertaining to the link between the use of used needles and the spread of human immunodeficiency virus/acquired immune deficiency virus ("HIV/AIDS") and other blood-borne diseases, the role of needle exchange programs in saving lives by preventing further transmission of disease, and New York City's needle exchange program. The Defendants' cross-motion to strike all references to HIV/AIDS in the SACAC was denied as discussion of HIV/AIDS was deemed central to the case. Roe, 151 F.Supp.2d at 510.
The SACAC alleged that the Defendants have a practice of unlawfully harassing, arresting and prosecuting injection drug users such as Plaintiffs, who are registered participants in state-authorized needle exchange programs. They contend that this practice violates their rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and the laws of New York. The Plaintiffs allege further that this practice threatens public health by eviscerating the effectiveness of lawful needle exchange programs, which save lives by reducing the spread of HIV/AIDS and other blood-borne diseases.
Another case involving the arrest of a registered participant in a needle exchange program for the possession of hypodermic needles was accepted as related on April 23, 2001. L.B. Town of Chester, 01 Civ. 3204. A motion to dismiss in that case is decided concurrently with the instant action.
Discovery has taken place with respect to Roe and Detective Ho. Discovery has not yet been undertaken with respect to Plaintiffs John B. and Perez.
The instant motions were heard on June 12, 2002, and marked submitted on that date.
As required, the facts are construed in favor of the non-moving party.1
The parties agree to the following facts. At all relevant times Roe was a participant in the Lower East Side Needle Exchange Program ("LESNEP") and a homeless 21-year old heroin addict and injection drug user who used heroin several times a day. According to the NYPD Tactical Plan, Defendants Detective Ho and Officer Hickey were generally assigned to target areas in the West Village for "buy and bust" operations in the confines of the 6th Precinct. Detective Ho has several years experience on the street with the NYPD narcotics unit, which he has been with since 1992. He has received training in identifying narcotics and other drugs, drug paraphernalia and in dealing with needle exchange program participants. (Def. Amend. Rule 56.1 St. ¶ 21-24.) The parties further agree that on April 19, 1999, during the late afternoon or early evening Roe was in the West Village, in the area around West 10th Street by the Hudson River.
According to Plaintiffs, as provided in the SACAC and in an affidavit of Roe, Roe was walking alone when, without provocation and for no apparent reason, Detective Ho approached Roe, ordered Roe to stand "spread eagle" against a wall and pulled out his badge. (Roe 50-H Test.) Roe complied and at about the same time, approximately five more officers, John Does # 1-#5, arrived at the scene. Next, frightened by Ho's threat that "you better tell me now [if you have anything sharp on you] because if I get pricked you'll die," Roe revealed that he had a syringe in his pocket. Roe also identified himself as an authorized participant in the LESNEP and explained that Detective Ho could confirm that fact by examining his membership card, which was in Roe's pocket. Even though Detective Ho had been trained to inquire into the matter further before arresting Roe for syringe possession, he ignored the card. Instead, Detective Ho criticized needle exchange programs and mocked the government officials responsible for their creation. (Pl. Counter St. Local Rule 56.1 ¶ 6.) The syringe was removed from Roe's right-hand pants pocket. (Id. at ¶ 3.) Three bottle caps removed from Roe were found inside a Ziploc bag in his pocket. (Id. at ¶ 4). Roe further submits that injecting heroin requires the use of alcohol swabs, cotton balls, water, a tourniquet, and a flame to melt the heroin, and that Detective Ho did not recover this equipment.
According to Roe, Detective Ho did not look to see if there was drug residue in either the syringe or the bottle caps, conducted no field tests to confirm the presence of drug residue in either, found no plastic bags or glassine envelopes (the packaging typically used for heroin). Nonetheless, Detective Ho placed Roe under arrest for unlawful possession of heroin based on what Ho assumed was residue in the needle. And even though Roe had identified himself as a needle exchange program participant and explained to Detective Ho where he could find his participant card, he also arrested Roe for unlawful possession of a hypodermic instrument.
According to both parties, Roe was then taken to the 6th Precinct. According to Roe, he was placed in a holding cell and a while later an officer, believed to be Officer Hickey, went back to the holding area to inform Roe that he was being arrested for possession of drug paraphernalia. Roe alleges that Officer Hickey mutilated Roe's needle exchange card by clipping it in half. (Roe 50-H Test. at 13.)
Roe claims that he complained until a supervising officer (John Doe # 6) arrived. Because on other occasions Roe has known New York City police officers to destroy or discard the registration cards of other needle exchange participants, he carried an extra copy of the participant card in his sock. He informed the officer who he believed was a supervising officer that he was authorized to possess hypodermic syringes. This supervisor said he had to talk to the arresting officer, left Roe, and did not return. (SACAC ¶ 90.) Since his arrest, Roe no longer feels safe returning used needles to the LESNEP.
According to Defendants, the officers observed Roe in the West Village in a known drug area. Roe was crouching or squatting in a corner, holding what appeared to be a hypodermic needle to his arm, injecting himself. Officer Hickey and Detective Ho got out of their vehicle and stopped Roe and recovered the hypodermic syringe as well as three metal bottle caps. They observed residue in the hypodermic instrument and on the caps that they believed to be an illegal narcotic (likely heroin). Roe also informed Detective Ho that he was on the corner for the purpose of prostituting himself at a known prostitute location. The officers did not obtain any identification or information from Roe that would have identified Roe as a member of LESNEP or any other needle exchange program. Detective Ho and Officer Hickey arrested Roe on West 10th Street at about 6:30 p.m. and charged him with possession of a controlled substance under N.Y. Penal Law Section 220.03 (McKinney 2000) and possession of a hypodermic instrument under Penal Law Section 220.45 (McKinney 2000). (Def. Local Rule 56.1 Amend. St. ¶ 27-34.)
According to Plaintiffs, the controlled substance charge was based on the residue that Officer Ho...
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