Rothman v. City of New York

Background

The case arose from a December 13, 2017 incident in the lobby of One Police Plaza. Rothman was attempting to serve a subpoena and was writing down Detective Andrew Wunsch’s name and shield number after Wunsch said he could not accept service. Wunsch then grabbed the pen from Rothman’s hand and returned it shortly afterward.

The parties disputed what happened immediately before the seizure. Rothman said he was using the pen to write while Wunsch became loud and irate. Defendants said Rothman became irate, raised and waved his arms, and brought the pen and his hand extremely close to Wunsch’s face. Wunsch stated that he felt threatened because patrons had previously hit him with objects and that Rothman was disturbing the peace.

Rothman reported the incident to the New York City Civilian Complaint Review Board. The Board substantiated a claim that Wunsch acted discourteously and recommended command training. Rothman then sued Wunsch, the City of New York, Vincent Flores, Lawrence Byrne, and James O’Neill, asserting constitutional and New York-law claims, including unlawful seizure, conversion, assault and battery, and respondeat superior liability for the City.

Earlier Proceedings and Motion

The court previously granted the defendants’ motion to dismiss in part and denied it in part. The claims for unlawful seizure, conversion, assault and battery, and respondeat superior liability against the City for the common-law tort claims survived. The court also previously declined to resolve qualified immunity at the pleading stage because it had to accept Rothman’s allegations as true at that stage.

Rothman moved for summary judgment on his remaining claims against Wunsch and the related claims against the City. Summary judgment is a decision without a trial available only when there is no genuine dispute about a material fact and the moving party is entitled to judgment under the law. Rothman argued that the record, including the Civilian Complaint Review Board investigation, showed no legitimate law-enforcement justification for Wunsch’s conduct. He also argued that the defendants were barred from disputing the reasonableness of the seizure through collateral estoppel, a rule that can prevent relitigation of an issue already fully and fairly decided in an earlier proceeding.

Court’s Analysis

The court rejected the collateral-estoppel argument. The Civilian Complaint Review Board decided whether Wunsch was discourteous under the New York Police Department Patrol Guide; it did not decide whether he violated the Fourth Amendment or whether the seizure was reasonably justified. The court also explained that its earlier decision denying dismissal on qualified-immunity grounds had not decided that Wunsch lacked a reasonable justification. That earlier decision had merely accepted Rothman’s allegations as true for purposes of the motion to dismiss.

The court held that a genuine dispute existed about the reasonableness of Wunsch’s conduct. Whether the seizure was unlawful depended on the totality of the circumstances. The parties disputed whether Rothman’s movements appeared threatening, whether the pen came near Wunsch’s face, who initiated the confrontation, and whether Wunsch had a reasonable basis for taking the pen. Those questions required a factfinder to hear live testimony and assess credibility. The court also stated that reasonable justification could provide a defense to the constitutional and state-law claims discussed in the opinion.

Disposition and Scheduling

Judge McMahon denied Rothman’s motion for summary judgment. The case therefore remained for resolution at trial rather than judgment as a matter of law on the existing record. The court ordered the parties to exchange their intended witness and exhibit lists by June 15, 2020, and placed the parties on 72 hours’ notice for trial after civil jury trials resumed in the courthouse. The conclusion states that Rothman’s motion was denied and directs the clerk to close docket numbers 77 and 78.