Chepilko v. Police Officer Scott Henry

Background

Sergei Chepilko sued Lieutenant Scott Henry and Sergeant Tarakur Chowdhury of the New York City Police Department under 42 U.S.C. § 1983, a federal law allowing claims against state officials for violations of constitutional rights. The case arose from an incident in Times Square on March 11, 2017. Four claims remained for trial: malicious prosecution, excessive force, First Amendment retaliation, and failure to intervene. The court held a bench trial on February 26 and 27, 2024, meaning the judge rather than a jury decided the facts and law.

Chepilko also moved for sanctions under Federal Rule of Civil Procedure 37(e), arguing that the defendants should face an adverse inference because video footage from NYPD cameras had been destroyed. The parties agreed that any footage still on the cameras was deleted around April 11, 2017, under the NYPD’s 30-day retention policy.

Motion for sanctions

The court denied Chepilko’s motion for sanctions. Rule 37(e) can apply when electronically stored information that should have been preserved for anticipated litigation is lost because a party failed to take reasonable preservation steps. The court found that Chepilko did not meet his threshold burden to show that the defendants should have anticipated litigation on or before April 11, 2017, when the footage was deleted.

The court rejected Chepilko’s arguments that the incident itself, his March 12, 2017 911 call, his March 13, 2017 Freedom of Information Law requests, or the Civilian Complaint Review Board’s investigation should have triggered a duty to preserve the footage. The court also stated that, even if a preservation duty had existed, the record did not show that Henry or Chowdhury intended to deprive Chepilko of the footage for purposes of litigation.

Section 1983 claims

The court found that Chepilko did not prove by a preponderance of the evidence—a showing that a fact was more likely true than not—that either defendant deprived him of a constitutional right.

Malicious prosecution. The court found in favor of Henry. It concluded that Henry had probable cause to issue Chepilko a summons for disorderly conduct under New York Penal Law § 240.20(5), because Chepilko was blocking traffic and Henry reasonably believed the conduct created more than a minor inconvenience or risk in Times Square. The court also found that Henry was protected by qualified immunity, which can shield an official from damages when the official’s conduct did not violate a clearly established legal right. The court did not decide whether Chepilko had shown the required post-arraignment restraint on his liberty.

Excessive force. The court found in favor of Henry. It concluded that some force was warranted to move Chepilko from the street, that Henry acted in good faith to address traffic and safety concerns, and that Henry used reasonable force. The court did not credit Henry’s statement that he applied no pressure, but it also did not credit Chepilko’s account that Henry shoved him four to six times. The court did not address qualified immunity for this claim.

First Amendment retaliation. The court found in favor of Henry. It held that probable cause to issue the summons defeated Chepilko’s retaliation claim based on the summons. It also found that Chepilko had not shown that Henry knew Chepilko was trying to obtain Henry’s name and shield number or that the summons was motivated by that conduct.

Failure to intervene. The court found in favor of Chowdhury. A failure-to-intervene claim depends on an underlying constitutional violation and requires a realistic opportunity to stop the violation. Because the court found no excessive-force violation by Henry, it concluded that Chepilko could not establish Chowdhury’s derivative failure-to-intervene claim.

Disposition

The court denied Chepilko’s motion for sanctions and ordered judgment in favor of the defendants. It directed the Clerk of Court to enter judgment and close the case.