Case 1:11-cv-01786-KAM-JO Document 1 Filed 04/12/11 Page 1 of 20 PageID #: 1

FILED
IN CLERK'S OFFICE
u.s. DISTRICT COURT E.D.NY

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

* APR 12 2011 *'

------------------------------------------------------------------------J{
TZVI HASENFELD,

Index No.
Plaintiff,

BROOKLYN OFFICE

COMPLAINT AND JURY

DEMAND

-againstCITY OF NEW YORK and POLICE OFFICERS A, B

andC,

CVl1-

Defendants.

------------------------------------------------------------------------J{

1786

M~rSUMOTO
.. '
, J.
~.~.~

J ORENSTEIN, ~JIJ.

PlaintiffTzvi Hasenfe1d by his lawyer Marshall C. Berger for his complaint alleges:
THE PARTIES

1.

Plaintiff Tzvi Hasenfeld is an American citizen and a resident of Brooklyn, New

2.

Defendant City of New York (the "City") is a municipal corporation organized

York.

and existing under the laws of the State of New York.

3.

Defendant Police Officers A, B and C are members of the Police Department of

the City. Their names are not now known to Plaintiff.

JURISDICTION AND VENUE
4.

This action is for violation of Plaintiff's Constitutional rights by the City and the

Police Office Defendants pursuant to 42 USC 1983 and related tort claims under New York
State common law.
5.

As a result of the foregoing, this Court has jurisdiction over this action pursuant to

28 USC 1331 and 1367 (a) and 42 USC 1983.

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6.

The events giving rise to the claims alleged herein occurred in Brooklyn, New

York in the Eastern District of New York.

7.

As a result of,6 herein, this Court is the proper venue for this action.

THE EVENTS
8.

Plaintiff is an observant Jew and as such has a beard and habitually wears a

yamika including during the events alleged below.

9.

The events alleged below took place in the Borough Park section of Brooklyn, a

neighborhood noted for its large number of observant Jewish residents.

10.

Around 7:30 pm on June 21, 2010, Plaintiff was in his car at the comer of 58 th

Street and 21 st Avenue in Brooklyn where he stopped for the stop sign at such comer and then
proceeded cautiously across 21 st Avenue intending to tum at that comer heading for 57th Street.
11.

Plaintiff then saw an unmarked car containing Police Officer Defendants A and B

in plain clothes heading across 21 st Avenue at an excessively fast speed and then that car cut

around the front of Plaintiff's car, preventing Plaintiff from passing through 21 st Avenue.
12.

At their location, the Police Officers could not have seen whether or not Plaintiff

had obeyed the stop sign at that comer.

13.

At that time, there was no person at the comer other than the two Police Officers

and Plaintiff.
14.

Thereafter, Plaintiff expressed his disapproval of the driving of the Police Officer

Defendants' car by extending his hand with the middle finger raised (the "Gesture").
15.

Plaintiff then drove to his home at 2054 57th Street.

16.

Plaintiff then left his car and was walking up the exterior steps of his home when

he observed the Police Officer Defendants' car heading down 57 th Street at an excessively fast

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speed with its lights flashing and sirens sounding and one of the officers calling on the car's loud
speaker for Plaintiff to get back into his car which he did.
17.

The Police Officers then told Plaintiff to produce his driver's license and vehicle

registration and get out of his car.

18.

Bearing in mind recent incidents reported in the media where persons falsely

posing as police officers used that guise to victimize persons, Plaintiff asked the officers to
identify themselves.
19.

The Police Officers refused to do so whereupon Plaintiff stated he would call the

local police precinct to detenrune whether or not they were police officers. As will be alleged
below, Plaintiff first learned their identity as police officers when sometime later a marked police
car arrived.
20.

After Plaintiff got out of his car, Police Officer A tried to grab Plaintiff's

telephone. He also tired to punch Plaintiff by lifting his fist and swinging it towards Plaintiff but
was stopped by Police Officer B grabbing his arm.
21.

Plaintiff then reluctantly handed the Police Officers his license and registration

and was told to get back into his car.

22.

Some ten minutes later, as was previously alleged, a marked police squad car

arrived. Then Plaintiff was ordered out of his car. When he did so, he was told to put his hands
behind his back. He was then handcuffed and frisked by Police Officer A. As he did so, Police
Officer A intentional squeezed Plaintiffs testicles.
23.

Plaintiff then was taken in Police Officers A and B' s car to the 66th Precinct

Station House where he was placed in a holding cell.

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24.

All of the events in front of Plaintiff's house alleged above were witnessed by

Plaintiff's wife and four minor children as well as a number of passersby. The Police Officers
denied Plaintiffs request to talk to his wife.
25.

About an hour or so later, Police Officer C entered Plaintiff's cell. He said he was

the chief of detectives for the precinct. Police Officer C said plaintiff was in trouble for starting
up with the two arresting police officers. He threatened Plaintiff if he would "do anything that
would fuck him up for the rest of his life." He highly praised the arresting officers and refused to
listen to Plaintiff
26.

Police Officer C also repeatedly told Plaintiff "Because of you people, we are

having problems".
27.

Using the phrase "you people" to a bearded man wearing a yamika in Borough

Park obviously referred to all Jews or at least all observant Jews, indicating Police Officer C was
motivated by an anti-Semitic bias.
28.

A number of hours later, another Police Officer told Plaintiff to leave his cell. He

then received and signed for three summonses (annexed as Exhibit A) and allowed to leave.
29.

The three summonses were for violation of 1) Vehicle and Traffic Law 1172 (a),

failure to comply with a stop sign; 2) Penal Law 240.20.1, "with intent to cause public
inconvenience annoyance or alarm or recklessly creating a risk thereof he engages in fighting or
in violent, tumultuous or threatening behavior" (emphasis supplied) and 3) Penal Law 240.20.3
"With intent to cause public inconvenience, allowance or alarm or recklessly creating a risk
thereof in a public. place, he uses abusive or obscene language or makes an obscene gesture"
(emphasis supplied).

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30.

There was no cause for issuing the Vehicle and Traffic Law summons since

Police Officers A and B could not have seen whether or not Plaintiff complied with the stop sign.
31.

There was no cause for issuing the two Disorderly Conduct Summonses since the

only persons at the comer at which plaintiff made the Gesture were Police Officers A and B and
Plaintiff precluding any public effect of the Gesture, a requ~ement for a Disorderly Conduct
violation both by the explicit terms of the Penal Law as quoted above and by a number of
Federal and State Decisions. Moreover, in determining whether the Gesture constituted "fighting
words," it was directed at and only visible to two police officers who as professionals are held to
a higher standard when determining whether or not there was a criminal violation for "fighting
words".
32.

Thereafter at about 11 :00 pm, Plaintiff returned home where he found his wife

and three oldest children awake and all of them crying uncontrollably.

While Plaintiffs

youngest child was asleep when Plaintiff returned home, the next day that child was intensely
disturbed when he saw his father's bed empty since he thought his father was still injail.
33.

Under New York criminal procedure, a person receiving a summons in the form

of the summonses issued to Plaintiff has the right to request a more detailed statement under oath
from the arresting officer within 30 days of the request.
34.

Plaintiff by his lawyer requested the more detailed statement described in

~33

(such request is annexed as Exhibit B).

35.

No sworn statement was furnished to Plaintiff pursuant to his request.

36.

On August 19,2010, Plaintiff went to court pursuant to the summonses and there

a court clerk handed him three pieces of paper, one for each summons, informing him the three

Case 1:11-cv-01786-KAM-JO Document 1 Filed 04/12/11 Page 6 of 20 PageID #: 6

cases had been dismissed because of the failure of the police to submit the sworn statements
(copies are annexed as Exhibit C).
As a result of the foregoing, Plaintiff has suffered and is continuing to suffer

37.

damages from emotional anguish, anxiety about his family's reaction and public and family
humiliation as well as the pain from his squeezed testicles and legal fees in defending the
summonses.
AS AND FOR A FIRST CLAIM AGAINST THE
POLICE OFFICER DEFENDANTS

38.

The Police Officer Defendants acting under color of New York State and New

York City law violated Plaintiff's Federal Constitutional Rights under the Fourteenth
Amendment to Due Process of Law and Equal Protection of the Law and as incorporated thereby
to his First Amendment Rights to Freedom of Speech, and Free Exercise of Religion, his Fourth
Amendment Right to be Secure in his Person and his Eight Amendment Right to be free from
Cruel and Unusual Punishment.
AS AND FOR A SECOND CLAIM AGAINST THE CITY

39.

The City is responsible for the Constitutional violations of the Police Officer

Defendants set forth in ,38 by virtue of its failure to properly train, supervise and instruct such
officers with respect to:
A.

Proper procedure for identifYing themselves as police officers when they

are involved with members of the public in their capacity as police officers and especially when
they are in plain clothes.

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B.

Standards for determining whether or not there was a violation of the

Vehicle and Traffic Law when there was no third party witness and they were not in a position to
see whether or not there was a violation.
C.

Standards for determining whether or not there was a Disorderly Conduct

violation 1) when the only persons seeing the incident were police officers and the alleged
perpetrator and 2) when the alleged violation is an alleged obscene gesture or words directed at
police officers.
D.

Proper procedures for taking a person into custody especially the use of

only the minimal force necessary to effect such custody and the avoidance of inflicting any
unnecessary physical pain.
E.

The necessity for all American police officers to avoid the expression of

any ethnic or religious bias, especially in a city as diverse as New York and especially when such
police officer is a supervisor of other police officers.
AS AND FOR A THIRD CLAIM AGAINST ALL DEFENDANTS

40.

Plaintiff has complied with every requirement of the New York General

Municipal Law for maintaining a common law action against the City and some of its employees
including a) sending a Notice of Claim to the City Comptroller within 90 days of August 19,
2010, the date of the dismissal of the charges against Plaintiff, b) submitting himself for
deposition by the Comptroller's lawyer on February 16,2011 and c) promptly returning a signed
and notarized transcript to the Comptroller.
41.

The acts of the Police Officer Defendants alleged above constitute 1) false arrest

and imprisonment; 2) assault; 3) battery and 4) malicious prosecution under New York common
law.

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42.

The City is liable for the torts set forth in ,41 under the doctrine of respondeat

superior.
Wherefore, Plaintiff demands judgment against all Defendants for $1 million in
compensatory damages and $3 million in punitive damages, attorneys' fees pursuant to 42 USC

1988 and the costs and disbursements of this action.

Dated: New York, New York

APril_L;h2011

!frv~/h/
Mar~
"~
Attorney for Plaintiff
111 West 57th Street, Suite 410
New York, NY 10019
212-247-4844

Plaintiff Demands Trial by Jury

C1/'NMM(3~
MarshaIl C. Berge

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EXHIBIT A

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EXHIBITB

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CRlMlNAL COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

THE PEOPLE OF THE STATE OF NEW YORK.

Plaintiffs,

REQUEST FOR
SUPPORTING DEPOSITION

-against-

TZVI MEIR HASENFELD

Defendant.

Please take notice that the attorney noted below hereby appears in this action now schedule for
arraignment at 346 Broadway, New York, NY 10013 on August 19, 2010 and represents the above
defendant, and pursuant to CPL 100.25 requests a supporting deposition of the police officer or public
servant as to each simplified traffic information or Penal Law violations charged against the defendant,
containing allegations of fact based upon personal knowledge or upon infonnation and ?elief, providing
reasonable cause to belief that the defendant committed the offense or offenses charged, be served upon
the undersigned within 30 days of the date this request is received by the court or at least five days
before trial, whichever is earlier, and to file a supporting deposition with the court, together with proof
of service thereof.
Date of charge offense: June 21, 2010
Unifonn Traffic Ticket number: 432186436-7
432186427-9
432186438-0

Date:

New York, New York

July 15, 2010

j~~
Marshall C. Berger
Attorney for Defendant
111 West 57th Street, Suite 410
New York, NY 10019
212-247-4844

Case 1:11-cv-01786-KAM-JO Document 1 Filed 04/12/11 Page 15 of 20 PageID #: 15

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK

Index No.

AFFIDAVIT OF SERVICE
Plaintiff,
-against-

TZVI MEIR HASENFELD

Defendant(s )
State of New York

)
)
County of New York )

ss:

I, Anesta Hamilton being duly sworn, deposes and says, that I am not party to this action, I am over
the age of twenty-one and reside in .the State of New York; that on July 15, 2010, I served
Defendant's Request for Supporting Deposition via U.S. Mail with the appropriate postage to
Criminal Court, located at 46 Broadway, NYC, NY 10002; District A Attorney, New York County, 1
Hogan Place, NYC, NY 10013; District Attorney, Kings County, 350 Jay Street, Brooklyn, NY 11201;
and New York City Police Department, 1 Police Plaza, NYC, NY 10038

Sworn to before me
this 15 day of July, 2010

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EXHIBITC

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