Vasicka v. Kerwin

Decision Date30 September 2022
Docket Number18-CV-6858 (RPK) (SJB)
PartiesVERONICA VASICKA, individually and as mother and natural guardian of infant V.V., Plaintiffs, v. Police Officer LYNN KERWIN and Police Officer JUSTIN LAVALLEY, Defendants.
CourtU.S. District Court — Eastern District of New York

VERONICA VASICKA, individually and as mother and natural guardian of infant V.V., Plaintiffs,
Police Officer LYNN KERWIN and Police Officer JUSTIN LAVALLEY, Defendants.

No. 18-CV-6858 (RPK) (SJB)

United States District Court, E.D. New York

September 30, 2022



On behalf of herself and her minor daughter, plaintiff Veronica Vasicka sues Police Officer Lynn Kerwin and Sgt. Justin LaValley, raising various claims based on an altercation that occurred when Officer Kerwin ticketed Ms. Vasicka for taking her dog into a Brooklyn park. Officer Kerwin and Sgt. LaValley move for summary judgment. For the reasons that follow, defendants' motions are granted in full.


The following facts, taken from the parties' Rule 56.1 statements, depositions, and evidentiary filings, are uncontradicted by other evidence unless noted. Where available, this narrative also draws on undisputed, unambiguous video footage. See Scott v. Harris, 550 U.S. 372, 380-81 (2007) (video footage may be used to resolve dispute of fact at summary judgment); Barrows v. Brinker Rest. Corp., 36 F.4th 45, 51 (2d Cir. 2022) (“[A] party's declaration will not create a material issue of fact in those rare cases where it is ‘blatantly contradicted by the record, so that no reasonable jury could believe it' (as when a plaintiff's declaration statements are directly refuted by undisputed video evidence).”) (quoting Scott, 550 U.S. at 380); Pratt v. Nat'l R.R. Passenger Corp.,


709 Fed.Appx. 33, 34 (2d Cir. 2017) (affirming grant of summary judgment on the basis of “objective video . . . evidence”).

On June 9, 2018, Ms. Vasicka arrived at East River State Park[1] in Williamsburg with her minor daughter, V.V., and their beagle, Hicks. Pls.' R. 56.1 Statement ¶¶ 24, 28, 30 (Dkt. #51). Although the trio was ultimately heading to the park's dog run, they did not enter the park via the dog-run entrance. Id. at ¶¶ 11-12, 28. Rather, Ms. Vasicka took Hicks and her daughter through the park's main entrance about a block away. Ibid.; Decl. of Gabriel P. Harvis, Ex. 17, at 76:2-4 (Dkt. #50-17) (“Vasicka Tr.”). Once inside, Ms. Vasicka tied Hicks to a pole and left him unattended for about five or six minutes. Pls.' R. 56.1 Statement ¶¶ 30-32; Vasicka Tr. 80:8-11. The park was hosting the “Smorgasburg” food fair, and Ms. Vasicka and her daughter had decided to purchase a lemonade from a food truck. Pl.'s R. 56.1 Statement ¶¶ 21-22, 30.

While the two were away buying lemonade, Officer Kerwin and Sgt. LaValley discovered Hicks tied to the pole. Id. at ¶ 33. Section 375.1(n) of title 9 of New York's codes, rules, and regulations prohibits dogs in the park outside of the dog run, so the officers returned to their patrol car to retrieve a summons book. Id. at ¶¶ 15, 35-36; see N.Y. Comp. Codes R. & Regs. tit. 9, § 375.1(n). The parties dispute whether Hicks was barking or pulling on the leash when the officers found him. Pl.'s R. 56.1 Statement ¶¶ 33-34. While Sgt. LaValley remained at the patrol car, Officer Kerwin went back to find Hicks's owner. Id. at ¶ 36.

By that time, Ms. Vasicka and V.V. had returned with their lemonade. Id. at ¶ 37. Officer Kerwin arrived just as Ms. Vasicka was untying Hicks. Ibid. What happened next is disputed. According to Officer Kerwin, before she could say anything, Ms. Vasicka apologized and said that she had needed to get a drink for her daughter. Aff. of Lynn Kerwin ¶ 21 (Dkt. #47). Ms. Vasicka


then refused to speak with Officer Kerwin and attempted to walk away. Id. at ¶¶ 24-25. Officer Kerwin told Ms. Vasicka to identify herself and stated that Ms. Vasicka was temporarily detained until she did. Id. at ¶¶ 23-25. Ms. Vasicka replied that she was not carrying identification and gave her name as “Veronica Estrella.” Id. at ¶ 26. During the interaction, Ms. Vasicka became louder and more resistant, so Officer Kerwin began to handcuff her. Id. at ¶¶ 31-32. Ms. Vasicka said she would cooperate, so Officer Kerwin removed the cuff. Id. at ¶ 32. When Ms. Vasicka again refused to comply, Officer Kerwin called Sgt. LaValley for assistance and began to handcuff Ms. Vasicka again. Id. at ¶¶ 33-36. Ms. Vasicka began resisting and jerked away toward a park bench. Id. at ¶¶ 36-38. To prevent Ms. Vasicka from using the handcuffs as a weapon, Officer Kerwin controlled Ms. Vasicka's arm and used her “body to maintain a close position . . . to secure [Ms. Vasicka] to the bench.” Id. at ¶ 39.

Ms. Vasicka tells a slightly different version of events, which I assume to be true for purposes of this order, except when contradicted by the video evidence. According to her, Officer Kerwin approached and asked whether she was aware that dogs were not allowed in the park. Vasicka Tr. 80:13-18. Ms. Vasicka said no, that she, V.V., and Hicks did not intend to stay in the park, and that they were heading to the dog run. Ibid. Officer Kerwin replied “[d]on't think I'm not going to arrest you because you have a child,” and handcuffed one of Ms. Vasicka's hands. Id. at 80:19-22. After Ms. Vasicka agreed to comply, Officer Kerwin removed the cuff. Id. at 81:1-6. But even though Ms. Vasicka continued to cooperate, Officer Kerwin began handcuffing her again. Id. at 81:7-21. Officer Kerwin then pushed Ms. Vasicka onto a park bench, putting her knee on Ms. Vasicka and injuring her back and shoulder. Id. at 81:22-82:1, 143:18-144:6.

Video of the incident establishes that when Officer Kerwin tried to handcuff Ms. Vasicka a second time, Ms. Vasicka pulled her wrist out of Officer Kerwin's hand, began arguing, and


backed away from Officer Kerwin until Ms. Vasicka either fell or was pushed onto the park bench. Aff. of Justin LaValley, Ex. 1, at 1:38-1:49 (Dkt. #57-1) (“Bystander Video”). Officer Kerwin can be seen leaning on Ms. Vasicka and attempting to handcuff her, although Officer Kerwin did not place her knee on Ms. Vasicka. Ibid.; Decl. of Gabriel P. Harvis, Ex. 20, at 0:00-0:30 (Dkt. #50-20) (“Video 2”). Officer Kerwin was able to handcuff one of Ms. Vasicka's wrists. Video 2 at 0:13-0:30.

During the altercation, another woman took V.V. aside and comforted her. Pls.' R. 56.1 Statement ¶ 59. Sgt. LaValley then arrived with the patrol car, which can be clearly seen in video just several meters away from both the bench and V.V. Video 2 at 0:25-0:32. Sgt. LaValley asked the woman to continue to watch V.V. until the situation on the bench was resolved. Decl. of Gabriel P. Harvis, Ex. 9, at 57:5-18 (Dkt. #50-9). He then walked over to Officer Kerwin and Ms. Vasicka, holding out his hands saying “relax, relax.” Video 2 at 0:25-0:28. Ms. Vasicka sat up. Id. at 0:25-0:30. According to Officer Kerwin, Sgt. LaValley also told Ms. Vasicka that if she cooperated, she would be issued a ticket and released. Pls.' R. 56.1 Statement ¶ 69. The officers then directed Ms. Vasicka to stand up and accompany them to the patrol car. Video 2 at 0:400:52. Ms. Vasicka refused to stand up, insisting that she would not leave without her daughter. Id. at 0:52-1:00. Officer Kerwin told Ms. Vasicka that her daughter would accompany them, and again directed her to stand up. Id. at 1:00-1:04. When Ms. Vasicka continued to refuse, the officers pulled her to her feet and attempted to finish handcuffing her. Id. at 1:04-1:22.

Ms. Vasicka began resisting, twisting and attempting to push away from the officers. Id. at 1:09-1:19. Rather than continue to try to handcuff her, the officers simply held Ms. Vasicka's arms as they brought her to the patrol car. Id. at 1:19-1:34. At the car, the officers attempted to put Ms. Vasicka in the back seat, but she again resisted. Id. at 1:34-1:40. Eventually, the officers


gave up trying to place Ms. Vasicka in the patrol car. Pls.' R. 56.1 Statement ¶¶ 74-75, 77. They instead issued her a “prohibited animal” summons for violating Section 375.1(n), and released her. Id. at ¶¶ 75, 77; Decl. of Lisa F. Joslin, Ex. K (Dkt. #46-11). Ms. Vasicka then retrieved V.V. Vasicka Tr. 83:15-19.

Later, Officer Kerwin filed an incident report stating that she had issued Ms. Vasicka a summons for having a dog in the park but omitting that she had had an altercation with Ms. Vasicka or attempted to arrest her. Decl. of Gabriel P. Harvis, Ex. 23 (Dkt. #50-23) (“Incident Report”). She also failed to file other required paperwork, and Sgt. LaValley failed to correct her omissions. Decl. of Gabriel P. Harvis, Ex. 5, at 2 (Dkt. #50-5) (“Kerwin Disciplinary Letter”); Decl. of Gabriel P. Harvis, Ex. 16, at 2 (Dkt. #50-16) (“LaValley Disciplinary Letter”). For these failures and others, New York State Park Police threatened both officers with termination.[2] See Kerwin Disciplinary Letter; LaValley Disciplinary Letter.


For her part, Ms. Vasicka retained counsel. Pls.' R. 56.1 Statement ¶ 85. She never personally appeared in court in connection with the summons-although her counsel appeared on her behalf-or paid any ticket or fine. Decl. of Lisa F. Joslin, Ex. K 110:7-19 (Dkt. #46-5). Instead, the summons was adjourned in contemplation of dismissal. Pls.' R. 56.1 Statement ¶ 85.

Ms. Vasicka and V.V. then sued Officer Kerwin and Sgt. LaValley under 42 U.S.C. § 1983. Compl. (Dkt. #1). The operative amended complaint brings claims for (i) an unlawful stop, (ii) false arrest, (iii) the unreasonable use of force, (iv) the deprivation of substantive due process by separating Ms. Vasicka and V.V., (v) the denial of Ms. Vasicka's fair-trial right, (vi) malicious abuse of process, (vii) deliberate indifference, and (viii) failure to intervene. Am. Compl. ¶¶ 2352 (Dkt. #22).

Officer Kerwin and Sgt. LaValley now move for summary judgment on all claims. See Mot. for Summ. J. by Lynn Kerwin (Dkt. #45); Mot. for Summ. J. by Justin LaValley (Dkt. #56).


Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the...

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