Police, The Fourth Amendment, Qualified Immunity

ESU Lt. Michael McGuiness may have made a bad arrest

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Case: TSESARSKAYA v. CITY OF NEW YORK, No. 11 Civ. 4897 (AJP) (S.D. New York, February 14, 2012)

What happened:

On November 12, 2010, real estate agent Artis Minor contacted Tsesarskaya to see if two Italian women could rent her apartmentfor three days. While the parties dispute exactly what happened after the Italian women arrived, they agree that the women had a disagreement with Tsesarskaya and left the apartment. Tsesarskaya noticed that the women had left two large shopping bags in the apartment, and she told Minor to tell the two women to wait in the lobby and that she would bring them their bags. The two women, however, returned directly to Tsesarskaya’s apartment, banging on the apartment door and yelling. Tsesarskaya refused to open the door because the women had been told to wait in the lobby for Tsesarskaya to bring the bags down.

The two women called the police for assistance in recovering their property, and Officers Adriana DeLeon and Lazaros Asters responded. Officers Asters and DeLeon knocked (or, according to Tsesarskaya, banged) on Tsesarskaya’s door and identified themselves as police, but Tsesarskaya refused to open the door. Officer Asters recalled that Tsesarskaya may have stated that she did not believe that they were real police officers. Officer Asters thought that Tsesarskaya was irrational because she would not open the door, and Officer DeLeon thought that Tsesarskaya had some psychological issues because she would not open the door and was not responding to them. Officer Asters called the Emergency Services Unit (“ESU”) in order to gain access to the apartment.

ESU Detectives Coll and Mulcahy arrived, as well as ESU Sergeant (now Lieutenant) Michael McGuiness, who was informed that Tsesarskaya was acting crazy, threw the women out of the apartment and was unresponsive to the officers at the door. Dets. Coll and Mulcahy and Sgt. McGuiness attempted to communicate with Tsesarskaya for approximately thirty minutes.

During the time the police were trying to get Tsesarskaya to open her apartment door, Tsesarskaya made and received calls, including two calls to 911 and one call from 911, and looked out her window and saw police officers, police vehicles, ambulances and fire trucks filling the street. After her first call to 911, Tsesarskaya called her friend Svetlana Sky, sounding scared but rational, and said that her door was being broken by people claiming to be the police. Sky called 911, and the 911 operator said: “`if you were her friend, you should advise her so they don’t break the door down, for her to open the door'” and “`[f]or the certain call that this job was put in there, yes, they will break that door down.'”

Tsesarskaya eventually spoke with the officers at the door and told them that she was okay and did not want to open the door. While Tsesarskaya told the 911 operator that she would leave the bags outside her apartment, Tsesarskaya did not communicate this to the officers outside her door. When Tsesarskaya opened her door to avoid it being broken down, the officers rushed inside. Dets. Coll and Mulcahy and Lt. McGuiness handcuffed Tsesarskaya and transferred her to officers from the 17th Precinct. At approximately 8:30 p.m., Tsesarskaya was taken without her consent by ambulance to Bellevue Hospital Center for a psychiatric evaluation; she was released around 2:30 a.m.

Decision: No qi for Lt. Michael McGuiness. The facts show that he may not have had probable cause to arrest plaintiff for being an “emotionally disturbed person” and/or for stealing.

Written by Burgers Allday

September 29, 2012 at 4:04 pm

Posted in Uncategorized

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