You're viewing Docket Item 111 from the case Velez v. City Of New York et al. View the full docket and case details.

Download this document:




Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 1 of 64 PageID #: 624

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Towanda Velez, as personal representative of the estate
of Anthony Velez, deceased,

Plaintiff,

- against -

04 CV 1775 (ENV)(MDG)



City of New York, Rudolph Hall, Michael Ruggiero,
and J. Does 1-8,

Defendants.

Plaintiff's Objections to Defendants'

Application for Costs

Of Counsel:

Michael G. O’Neill
Theresa B. Wade

1

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 2 of 64 PageID #: 625

Table of Contents

Table of Contents.....................................................................................................2

Authorities Cited......................................................................................................3

Procedural Background............................................................................................4

Plaintiff's Objections................................................................................................5

The Law Applicable To A Rule 54 Request for Fees And Costs ............................6

Argument.................................................................................................................7
Point 1: The Daily Trial Transcripts Were Not “Necessarily Obtained” for Use By
Defendants In This Court ............................................................................7

Point 2: Defendants Are Not Entitled to Costs for Second Copies of the

Deposition Transcripts...............................................................................10

Point 3: Defendants Are Not Entitled to Costs for Court Reporter “Appearance

Fee” ...........................................................................................................10

Conclusion.............................................................................................................11

2

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 3 of 64 PageID #: 626

Authorities Cited

Cases
Bilezikjian v. Baxter Healthcare Corp., 1999 WL 945522, at *3 (S.D.N.Y., 1999)..............8
Bucalo v. East Hampton Union Free School Dist., 238 F.R.D. 126, 129 (E.D.N.Y. 2006)..7
Carmody v. City of New York, 2008 WL 3925196, at *2 (S.D.N.Y. 2008).........................10
Cohen v. Stephen Wise Free Synagogue, 1999 WL 672903, at *2 (S.D.N.Y. 1999).............7
Dehoust v. Baxter Healthcare Corp., 1999 WL 280243 (S.D.N.Y. 1999)............................9
Farberware Licensing Co. LLC v. Meyer Marketing Co., Ltd., 2009 WL 5173787, at *5

(S.D.N.Y. 2009)...........................................................................................11
Galella v. Onassis, 487 F.2d 986, 999 (2d Cir. 1973)..........................................................6
Hamptons Locations, Inc. v. Rubens, 2010 WL 3522808 (E.D.N.Y. 2010)..........................6
im v. New York Mailers' Union Number 6, 1999 WL 674447, at *2 (S.D.N.Y. 1999)........11
John & Kathryn v. Bd. of Educ. of Mount Vernon Pub. Sch., 891 F.Supp 122, 123

(S.D.N.Y., 1995)...........................................................................................6
Karmel v. City of New York, 2008 WL 216929, at *3 (S.D.N.Y., 2008)...............................8
Natural Organics, Inc. v. Nutraceutifcal Corp., 2009 WL 2424188, at *3 (S.D.N.Y. 2009)6
Williams v. Cablevision Systems Corp., 2000 WL 620215, at *2, (S.D.N.Y. 2000)............11

3

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 4 of 64 PageID #: 627

Procedural Background

A verdict was rendered in defendants' favor and judgment was entered by the Clerk of

the Court on September 30, 2011. On October 28, 2011, defendants filed, inter alia, a Bill of

Costs along with a Notice of Application for Costs. According to defendants' Notice of

Application for Costs, defendants intend to move this Court before the Judgement Clerk on

November 23, 2011 at 10:00 a.m. for an order pursuant to Rule 54 of the Federal Rules of Civil

Procedure and 28 U.S.C. §1921 granting fees and costs. Plaintiff objects to defendants'

application.

4

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 5 of 64 PageID #: 628

Plaintiff's Objections

1)

Defendants' application for costs, including the Bill of Costs, is

improper in that it identifies Towanda Velez in her individual capacity as the

plaintiff and the party against whom defendants seek costs. The plaintiff in

this matter, however, as identified in the caption, is Towanda Velez, as personal

representative of the estate of Anthony Velez, deceased. Defendants'

application should, therefore, should be amended to seek costs from plaintiff in

her capacity as personal representative of the estate of Anthony Velez only and

not in her individual capacity.

2)

Defendants have not and cannot demonstrate that the expedited, daily

trial transcripts were “necessarily obtained” as required by Local Civil Rule

54.1. See Argument below.

3)

Defendants are not entitled to costs for a second copy of the deposition

transcripts of witnesses Towanda Velez, Yolanda Young, and Cynthia Lindsey

because Local Civil Rule 54.1 only provides costs for, where appropriate, the

original deposition transcript, plus one copy. See Argument below.

4)

Defendants are not entitled to costs for court reporter “appearance fees”

that were incurred in connection with the depositions of witnesses Towanda

Velez, Yolanda Young, and Cynthia Lindsey. See Argument below.

5

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 6 of 64 PageID #: 629

The Law Applicable To A Rule 54 Request for Fees And Costs

A party may file a request to tax costs within thirty days after the entry of final

judgment pursuant to Local Civil Rule 54.1(a). The party requesting costs is required to

submit an affidavit that the costs claimed are allowable by law, are correctly stated and were

necessarily incurred. Local Civil Rule 54.1(a). “Initially, 'the burden is on the prevailing party

to establish to the court's satisfaction that the taxation of costs is justified'.” Natural

Organics, Inc. v. Nutraceutifcal Corp., 2009 WL 2424188, at *3 (S.D.N.Y. 2009)(quoting John &

Kathryn v. Bd. of Educ. of Mount Vernon Pub. Sch., 891 F.Supp 122, 123 (S.D.N.Y., 1995).

Included among the items that are taxable as costs are transcripts and depositions. Local Civil

Rule 54.1(c). Specifically, the cost of a trial transcript that was “necessarily obtained for use in

the court” is taxable, and the cost of an original deposition transcript, plus one copy, is taxable

“if the deposition was used or received in evidence at trial, whether or not it was read in its

entirety.” Id.

“To assess the losing party with the premium cost of daily transcripts, necessity-beyond

the mere convenience of counsel-must be shown.” Galella v. Onassis, 487 F.2d 986, 999 (2d Cir.

1973); see also Hamptons Locations, Inc. v. Rubens, 2010 WL 3522808 (E.D.N.Y. 2010);

Natural Organics, Inc. v. Nutraceutifcal Corp., 2009 WL 2424188, at *3 (S.D.N.Y. 2009). Use of

daily transcripts by the prevailing party during trial “does not per se establish that they were

necessary...and mere convenience to counsel is insufficient to justify taxing the cost.”

Hamptons Locations, Inc., 2010 WL 3522808 at *4 (quoting Natural Organics, Inc. , 2009 WL

2424188, at *3). In other words, the mere fact that trial transcripts were used during trial does

6

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 7 of 64 PageID #: 630

not mean they were “necessarily obtained.” Bucalo v. East Hampton Union Free School Dist.,

238 F.R.D. 126, 129 (E.D.N.Y. 2006).

Argument

Point 1: The Daily Trial Transcripts Were Not “Necessarily Obtained” for Use

By Defendants In This Court

Defendants claim that they used the trial transcript at the close of plaintiff's case in

favor of defendants' Rule 50 motion and that the cost of the daily trial transcripts were

necessarily incurred pursuant to Local Civil Rule 54.1 Savino Dec. ¶¶13,16. Defendants,

however, have not and cannot demonstrate that the expedited trial transcripts were “necessarily

obtained” for use by them in this Court as required by Local Civil Rule 54.1.

The relevant inquiry in determining whether defendants are entitled to premium costs

for daily trial transcripts under Local Civil Rule 54.1 is whether the trial transcripts were

necessary for defendants' use in the case. Id. (citing Cohen v. Stephen Wise Free Synagogue,

1999 WL 672903, at *2 (S.D.N.Y. 1999). “Determining whether daily trial transcripts were

necessarily obtained is a factual inquiry, and such daily transcripts are not customary.”

Natural Organics, Inc. , 2009 WL 2424188, at *3 (emphasis added). “Awarding the cost of an

expedited transcript requires a heightened showing of the unique circumstances that demanded

it.” Id. In determining whether daily trial transcripts were necessary under Local Civil Rule

54.1, courts have considered the following factors: 1) amount of representation, 2) whether the

attorneys could have taken notes throughout the trial to prepare for cross examination,

summation, and the jury charge, 3) the length of the trial, and 4) whether the complexity of

7

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 8 of 64 PageID #: 631

the case justified daily expedited trial transcripts. See Id; Bucalo, 238 F.R.D. at 129.

First, there are no facts here to suggest that defendants' counsel could not take notes

throughout the trial. On the contrary, there is substantial reason to believe that defendants'

counsel were more than capable of taking extensive notes during the trial. Defendants were

represented at trial by four attorneys. Wade Dec., ¶2. All four attorneys were present for each

day of trial. Id. Defendants' counsel alternated conducting direct examination and cross

examination. Id. Thus, at all times there were a minimum of three attorneys who were able to

take notes during the proceedings. Wade Dec., ¶3. See Natural Organics, Inc. , 2009 WL

2424188, at *3-4(court determined that the expedited trial transcript was not necessary where

prevailing party was represented by three attorneys); see also Karmel v. City of New York,

2008 WL 216929, at *3 (S.D.N.Y., 2008)(court determined that where at least two attorneys

were present at trial representing defendants, sufficient notes could be taken to obviate the

need for daily trial transcripts); see also Bilezikjian v. Baxter Healthcare Corp., 1999 WL

945522, at *3 (S.D.N.Y., 1999)(court found daily trial transcript not necessary where prevailing

party was represented by three attorneys at trial).

Moreover, the transcript of defendants' Rule 50 motion, the motion that defendants

claim they used the trial transcript for, shows that defendants' counsel did not once make

specific reference to the trial transcript in support of their Rule 50 motion. September 26, 2011

Trial Transcript, pages 1011-1059 (Wade Dec., Exhibit A). Defendants' counsel merely made

reference to the trial testimony generally, without any citations to the transcript. By way of

example, defendants' counsel made the following reference to the trial testimony during

defendants' Rule 50 motion: “I mean, you know, the facts, it's come out from everybody, you

8

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 9 of 64 PageID #: 632

know, the two defendants, all six of the officers testified that Anthony Velez was released and

he was injured when he was no longer in custody. That's the same story you've heard from the

family.” September 26, 2011 Trial Transcript, page 1015 (Wade Dec., Exhibit A). The other

five or so references to the trial testimony made by defendants' counsel during their Rule 50

motion were similar in nature to the foregoing reference in that they were very general

recitations of witnesses' testimony regarding certain subject matters. Id. As the Court can see,

the references that defendants' counsel made to the trial trial testimony during their Rule 50

motion were of the sort that could have easily been obtained from notes taken by any one (or

more) of defendants' four attorneys during the trial. Indeed, the general references to the trial

testimony could have easily been made simply from memory of the trial proceedings, which at

that point had only been five days long.

The length of the trial is another factor to be considered in determining defendants'

entitlement to costs for the expedited trial transcript. See Bucalo, 238 F.R.D. at 129. Here, the

trial lasted for a total of seven days, with witness testimony comprising only five of the seven

days. Wade Dec., ¶4. The fact that the trial was only seven days and comprised of only five

days of testimony is further reason why the trial transcript was not “necessary” under Rule

54.1. See Id(court held that trial transcript was not necessarily obtained where the trial lasted

for eleven days and testimony was only taken on eight days); see also Dehoust v. Baxter

Healthcare Corp., 1999 WL 280243 (S.D.N.Y. 1999)(court held that trial transcript was not

necessary where the trial lasted less than two weeks).

Finally, the complexity of the claims must also be considered in determining whether

defendants are entitled to costs for the trial transcript. Although this case involved several state

9

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 10 of 64 PageID #: 633

and federal claims, some of which may be considered complex from a legal standpoint, there is

no indication that defendants' counsel used the trial transcript in their Rule 50 motion to

clarify or assist in demonstrating legal points with respect to those claims. September 26, 2011

Trial Transcript, page 1015 (Wade Dec., Exhibit A). Rather, defendants' counsel relied heavily

on case law in their Rule 50 motion. Id. Obviously, the trial transcript was not necessary for

defendants to present applicable case law in their Rule 50 motion.

Point 2: Defendants Are Not Entitled to Costs for Second Copies of the

Deposition Transcripts

Defendants seek costs for the original, plus two copies of the deposition transcripts of

witnesses Towanda Velez, Yolanda Young, and Cynthia Lindsey. Local Civil Rule 54.1,

however, provides for costs, where appropriate, for only the original deposition transcript, plus

one copy. Defendants, therefore, should not be awarded costs for obtaining second copies of

the deposition transcripts of witnesses Towanda Velez, Yolanda Young, and Cynthia Lindsey.

See Karmel v. City of New York, 2008 WL 216929, at *4 (S.D.N.Y. 2008)(court reduced by one-

third the cost of deposition transcripts where two copies were made); see also Carmody v. City

of New York, 2008 WL 3925196, at *2 (S.D.N.Y. 2008).

Point 3: Defendants Are Not Entitled to Costs for Court Reporter

“Appearance Fee”

Defendants include in their Bill of Costs court reporter “appearance fees” that were

incurred in connection with the depositions of witnesses Towanda Velez, Yolanda Young, and

10

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 11 of 64 PageID #: 634

Cynthia Lindsey. Savino Dec., Exhibits 1-3. Local Civil Rule 54.1, however, limits recovery for

the cost of depositions to “the original transcript of the deposition, plus one copy.” Williams

v. Cablevision Systems Corp., 2000 WL 620215, at *2, (S.D.N.Y. 2000). “Even where the cost of

a deposition transcript itself will be taxable under these standards, certain associated fees that

are not necessary generally may not be taxed- for example,....appearance fees...” Farberware

Licensing Co. LLC v. Meyer Marketing Co., Ltd., 2009 WL 5173787, at *5 (S.D.N.Y. 2009); see

also Sim v. New York Mailers' Union Number 6, 1999 WL 674447, at *2 (S.D.N.Y. 1999).

Defendants' application for recovery of “appearance fees” costs should, therefore, be denied.

Conclusion

For the reasons stated above, defendants' application for costs should be denied and any

award of costs granted to defendants should be reduced accordingly.

Dated: New York, New York

November 21, 2011

MICHAEL G. O’NEILL

__________________________
By: Theresa B. Wade (TW0522)
Attorneys for Plaintiff
30 Vesey Street, Third Floor
New York, New York 10007
(212) 581-0990

11

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 12 of 64 PageID #: 635

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Towanda Velez, as personal representative of the estate
of Anthony Velez, deceased,

Plaintiff,

- against -

City of New York, Rudolph Hall, Michael Ruggiero,
and J. Does 1-8,

04 CV 1775 (ENV)(MDG)

Declaration of Theresa B. Wade



Defendants.

Theresa B. Wade, declares under penalties of perjury as follows:

1.

Annexed hereto as Exhibit A is a copy of the relevant portions (pages 1011-1059)

of the fifth day of trial, held September 26, 2011.

2.

Defendants were represented at trial by four attorneys. All four attorneys were

present for each day of trial, and defendants' counsel alternated conducting direct examination

and cross examination.

3.

Thus, at all times there were a minimum of three attorneys who were able to

take notes during the proceedings.

4.

Trial in this matter lasted for a total of seven days, with witness testimony

comprising only five of the seven days.

Dated: New York, New York

November 21, 2011

MICHAEL G. O’NEILL

__________________________
By: Theresa B. Wade (TW0522)
Attorneys for Plaintiff

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 13 of 64 PageID #: 636

30 Vesey Street, Third Floor
New York, New York 10007
(212) 581-0990

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 14 of 64 PageID #: 637

Exhibit A

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 15 of 64 PageID #: 638

846

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------x
TOWANDA VELEZ, as Personal : 04-CV-1775
representative of the estate
of Anthony Velez, deceased, :

United States Courthouse

Plaintiff, : 225 Cadman Plaza East
Brooklyn, N.Y. 11201

versus :

CITY OF NEW YORK, RUDOLPH HALL,: September 26, 2011
MICHAEL RUGGIERO, and
John Does 1-8,

10:00 a.m.
:

Defendants.

-------------------------------x



TRANSCRIPT OF TRIAL

BEFORE THE HON. ERIC N. VITALIANO

UNITED STATES DISTRICT COURT JUDGE, and a jury.



APPEARANCES

For the Plaintiff:



For the Defendant:

MICHAEL G. O'NEILL
THERESA BUI WADE
Law Office of Michael G. O'Neill
30 Vesey Street - Suite 301
New York, New York 10007

MORGAN DAVID KUNZ
KIMBERLY MARIE SAVINO
MARY O'FLYNN
WESLEY BAUMAN
New York City Law Department
100 Church Street
New York, New York 10007



Court Reporter:




Proceedings recorded by mechanical stenography, transcription
by computer-aided transcription.


Charleane M. Heading
225 Cadman Plaza East Rm N357
Brooklyn, New York 11201
Tel: (718) 613-2643

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 16 of 64 PageID #: 639

1011

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

THE COURT: Agreed?

MR. KUNZ: Agreed.

THE COURT: See you at 3:45.

(Recess taken.)

(In open court; outside the presence of the jury.)

THE CLERK: Court is back in session.

THE COURT: Okay. So we can set, set the scene, we

are now at the close of the plaintiff's case for purposes of,

of where we are.

We haven't heard the defendants' case yet.

Go ahead. Motions?

MR. KUNZ: Well, just to start out, your Honor, we

just wanted to make it official because Rule 50 is rather

specific in its requirements, but plaintiff's case, having

been fully heard, we do believe that a reasonable jury would

not have a legally sufficient evidentiary basis to find for

the plaintiff on, and we intend to move on all claims and

we're going to go through one by one and present the legal and

factual basis for those arguments.

THE COURT: Yes. And the way we'll, we'll do that,

Mike, we'll have you respond after Marty finishes on each

claim.

MR. O'NEILL: That's fine.

THE COURT: Just so we can get it, you know, and you

can be seated if it's easier for you.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 17 of 64 PageID #: 640

1012

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

Who's going to go first?

MS. SAVINO: I'm going to take the first one, your

Honor.

THE COURT: Okay.

MS. SAVINO: Your Honor, at this point, the

defendants are going to renew the motion in limine point one.

Your Honor, at this time the defendants are going --

THE COURT: You mean the argument that was made

there?

context?

MS. SAVINO: Yes, the argument that was made there.

THE COURT: You're now making it in a Rule 50

MS. SAVINO: Yes, your Honor.

And the plaintiff, as I understand it, is making a

claim against the City under the theory that it failed to

adequately train and supervise its police officers --

THE COURT: Is that -- refresh me.

I had assumed -- what cause of action, is that all

part of the first cause of action?

MR. KUNZ: Yes.

The first cause of action is listed on the joint

pretrial order and plaintiff's section is a Section 1983 claim

for failure to train.

THE COURT: Okay.

MR. KUNZ: And that's also what's made out in the

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 18 of 64 PageID #: 641

1013

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

averments in the complaint.

Proceedings

THE COURT: And that's not part of the -- is there a

separate state claim for that?

MR. O'NEILL: Yes, your Honor.

MR. KUNZ: Yes. Plaintiff does purport to make a

separate state law claim.

THE COURT: For training.

Okay. And, but these are, these are all, in the

1983 claim, are these separate standing or are they all

together items that point to the alleged reckless,

recklessness of the defendant, Defendants Hall -- This is

against Defendants Hall and --

MR. KUNZ: Well, the failure to train --

THE COURT: -- and Ruggiero?

MR. KUNZ: -- claim against the City of New York is,

in some ways, incumbent upon a finding of liability against

the individual defendants.

THE COURT: Right.

MR. KUNZ: But if --

THE COURT: This is the Monell claim?

MR. KUNZ: Yes.

THE COURT: That's the first claim, is the Monell

claim?

MR. KUNZ: The first claim that's listed on the

joint pretrial order by plaintiffs, yes.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 19 of 64 PageID #: 642

1014

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

THE COURT: I think it makes for sense to take --

let's take the claim against Hall and Ruggiero first.

MR. KUNZ: Okay. So the Section 1983 claim against

Hall and Ruggiero is based on the --

THE COURT: It's -- obviously, if I were to grant

that, right, the Monell claim would go bye-bye?

MR. KUNZ: That's true, your Honor, yes.

Except if you granted on qualified immunity grounds,

there's some --

THE COURT: Right. Exactly, yes, yes, yes.

MR. KUNZ: So the substantive due process claim is

under the 14th Amendment.

You know, before we begin, we note that, you know,

under Second Circuit Supreme Court precedent, this is a very

difficult claim to make out. It's only for exceptional

circumstances and we do not believe this case presents such

exceptional circumstances. So the two subspecies of the

Fourteenth Amendment claim is the state-created danger and the

special relationship exceptions.

Pena versus the City, sorry, versus Deprisco, 432

F3d 98, makes very clear that these are separate and distinct

theories of liability. They're separate claims.

Some other circuits have sort of mixed them together

and do a hybrid. The Second Circuit does not do that. They

are separate claims.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 20 of 64 PageID #: 643

1015

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

The special relationship claim typically arises in,

in situations of involuntary custody. So where an individual

is detained, say, in a correctional facility, you might have a

special relationship, or in the case of a foster child, you

may have a special relationship requiring the state actors to

take some action to protect that individual from harm by third

parties.

In this case, there's simply no evidence whatsoever

of a special relationship. The, as Matican, as Ying Jing Gan

and as DeShaney all make it clear, involuntary restraint is a

necessary prerequisite for a special relationship.

So the analogy in this case is had we taken Anthony

Velez into custody and he was at the police precinct when

Michael Smith hurt him, then, yes, there may be a special

relationship. But in a situation where we did not take him

into custody and he was free to fend for himself as the case

law says, there's just simply no basis to support a special

relationship claim.

THE COURT: Okay.

MR. KUNZ: And we can cite to the record here. I

mean, you know, the facts, it's come out from everybody, you

know, the two defendants, all six of the officers testified

that Anthony Velez was released and he was injured when he was

no longer in custody.

That's the same story you've heard from the family.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 21 of 64 PageID #: 644

1016

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Those are the facts. Plaintiff was not in custody when he was

injured.

THE COURT: Anything further on the --

MR. KUNZ: Well, that's just the special

relationship. I could let Mr. O'Neill respond to that before

we go into the state-created danger.

MR. O'NEILL: Well, he was in custody, your Honor.

He was in custody when he was held outside in the

hall and it was his release that created the danger that

caused him to be killed.

So the --

THE COURT: Factually, though, you don't contest

that at the moment the shots were fired, he was not in

custody?

MR. O'NEILL: I do not contest that fact.

THE COURT: I think that's the point that Mr. Kunz

is making, correct?

MR. KUNZ: Yes.

MR. O'NEILL: Well, that, yes, but that's, that's

the only view of the evidence.

However, I --

THE COURT: Right. After a week here, I agree.

MR. KUNZ: We can agree on something.

Okay. We're getting there.

MR. O'NEILL: But I don't, I don't agree with the

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 22 of 64 PageID #: 645

1017

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

consequences, the legal consequences of that fact. I mean, he

had been in custody, and at that point, because of the fact

that they put him in custody in these circumstances, they,

they, a duty arose not to take any action that's going to

cause him harm.

The whole point of the special relationship or

state-created danger --

THE COURT: He's doing one at a time.

MR. O'NEILL: Right, I mean, but the underlying

reason for these isn't -- there is no white line rule under

the case law that a person must be in protective custody. The

rule is that there must be a special relationship which

frequently the fact pattern that gives rise to this is that

the person's in custody.

The, the reason that you -- the role that special

relationship plays is to give rise to a duty. That's, that's

the whole point of this.

And I just think that under the circumstances of

this case, which isn't a very unusual case, to say the least,

that the fact that they had him in custody and under the

circumstances by which they had him in custody, under the

foreseeability that releasing him is going to cause him some

harm, that that's sufficient to give rise to the duty and that

that, that, at the time that they had him in custody, there

was a special relationship and the duty arose at that point.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 23 of 64 PageID #: 646

1018

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

So that's our argument on special relationship.

THE COURT: Okay. Let's go to the next one.

MR. KUNZ: Okay. So the state-created danger, as we

laid out on page 11 of our motions in limine, we believe would

be the more applicable of the two, the two exceptions to the

general rule that the Fourteenth Amendment does not require

the police to protect people from harm by third parties.

We believe that that, if a claim does go to the

jury, it should be under the state-created danger, and I think

that even this claim, the argument is pretty weak.

The chief, the chief case in point in this circuit

is Dwares, D-W-A-R-E-S, it is 985 F2d. I've got a pen cite

here to 98, but the original site is 985 F2d 94, Second

Circuit, 1993.

In that case, some skinheads, sorry, some protesters

were burning flags in Washington Square Park and some

skinheads were counter-protesting, and they went up, the

skinheads went up to the police officers and said we're going

to beat the crap out of a couple of these flag burners over

here and the cops said something to the effect of, go ahead,

just don't get too out of control. Just don't get too bad and

we won't stop you.

And the Second Circuit held that that action could

give rise to a Fourteenth Amendment claim that we deprived

these individuals of their life and liberty because the

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 24 of 64 PageID #: 647

1019

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

officers "assisted in creating or increasing the danger to the

victims."

The affirmative statements on the part of the police

officers that, that these individuals would be allowed to

assault the flag burners created this active participation,

almost a conspiracy between the state actors and the private

actors to deprive these third parties of their rights.

Now, I think that that is a, there's a very

different situation going on in this case.

The allegation from plaintiff is not that the

officers assisted in creating this danger. He essentially

says that they were negligent, that they were reckless, that

their conduct, you know, somehow failed to, to match with what

he believes the purported correct action should have been.

But that is, that is not something that the case law

recognizes as a valid claim.

Plaintiff needs to show that the police officers

assisted in or increased the danger of, so the analogous

situation here would be is if the police officers said to the

people in the apartment, he's the confidential informant, you

can beat him up. We won't, you know, we won't stop you if

it's not that bad, and then they, you know, went along their

merry way.

Again, there's, when you look at the facts of this

case, at worst, plaintiff is alleging that the officers made

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 25 of 64 PageID #: 648

1020

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

the wrong choice. Essentially he says that when they, before

they left, they should have reached out and they should have

called Anthony Velez and told him to stay clear. Right?

That's not a reckless act. That's, it's a failure, it's a

negligence, that sort of argument.

They say that the police made the wrong decision at

the scene when they encountered Anthony Velez there. They

should have arrested him instead of stopped questioning,

frisking him.

Again, I mean, this is a judgment call. This is a

discretionary call. This is not something that is an active

participation on the part of the police officers in creating a

danger to Anthony Velez.

So we frankly think that plaintiff does not make out

the state-created danger argument.

THE COURT: Mr. O'Neill?

MR. O'NEILL: Your Honor, the defendants here are

conflating the danger that's created with the injuries that

are suffered.

The Second Circuit in Matican versus the City of New

York held that when the police take action, when they plan an

operation based on information provided by a confidential

informant, that that is the state-created danger. It's

exactly what happened here. The police took action based on

information provided by Anthony Velez, who was a confidential

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 26 of 64 PageID #: 649

1021

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

informant.

Proceedings

So the danger that was created is the state, is the

action that was taken. You know, you want to call it a raid,

a search, whatever you call what they did in apartment 5C,

that's what created the danger, because if the police hadn't

come to the apartment, Mr. Velez would never have been

identified as an informant.

So it was them coming there and taking police action

in his presence. That's the state-created danger.

Now, the Matican holding is right on point, they

said, yes, this is a state-created danger, and they found for

the defendant on other grounds, but by planning and carrying

out this operation, they created the danger that his identity

would be given up, which of course is what happened and he got

killed.

So we're squarely within state-created danger. I

don't know if that's even a close call, but I think you can

give us Rule 50 judgment on that particular issue.

MR. KUNZ: I think, I'm not sure what part of

Matican plaintiff is talking about, but I don't think that is

at all the fact pattern or the holding of Matican.

Matican was a former confidential informant who,

who, not even a confidential informant, I think he did a

direct eyewitness seen, eyewitness identification, and then

the person was arrested based on that identification and was

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 27 of 64 PageID #: 650

1022

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

later released and the police never warned Matican that this

guy had been released.

MS. SAVINO: I believe the police actually made

promises to him that he would not be released given the amount

of weight of the drugs that had been recovered, so on that

reliance, that individual did not believe this person would be

getting out and then this person is released and a few, a

period of time later comes and slashes --

MR. KUNZ: Three months later, I believe, in

Matican.

So, again, that's just -- Matican is not, does not

hold what the plaintiff just said it held and, you know, quite

frankly, you know, when you think about the state-created

danger case law, when you think about what it's trying to get

at, it's trying to get, it's trying to create a cause of

action for individuals who are hurt by affirmative actions of

the police.

When the police somehow increase or create the

danger to the individual through their actions, that's when

the state-created danger theory can apply and that's not what

happens here. Plaintiff is essentially saying an act or

omission of some kind is what led to this chain of events.

THE COURT: I know omission is a kind of action,

right?

MR. KUNZ: Well, it's a failure to take action.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 28 of 64 PageID #: 651

1023

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

And, again, you know, the state-created danger is

it's, it's, you know, I think it's Pena using this language of

active versus passive as making a distinction here between the

different types of conduct.

And to rise to the level of a substantive due

process claim, the police have to have basically become part

of the testimony. And, you know, when you look at the

complaint and the testimony in this case, it shows that the

plaintiff, sorry, that Anthony Velez himself went up to the

apartment that night.

Now, I know there's been some speculation based on

what Cynthia Lindsey says, that the police somehow brought

Anthony Velez to the apartment, but I think we can all agree

that that simply did not play itself out with testimony.

Cynthia Lindsey, in fact, was in the same room with

Sergeants Ruggiero and Hall, and she did not identify them as

the, as the officers that she saw talking with Anthony Velez

outside the apartment an hour and a half before the incident.

So if that happened, or who they were, you know, it

was not answered, but what we do know is that for some reason,

Anthony Velez himself made the choice to go up to that

apartment that night. He placed himself there. And then the

officers dealt with that situation. They made a discretionary

call. They thought the best decision to protect him was to

treat him like any other person who stopped, question and

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 29 of 64 PageID #: 652

1024

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

frisk, which is to let him go, and, you know, the rest of the

incident played out from there but, you know, and there's

other choices that Anthony Velez made that, that bear on this

situation.

It was Anthony Velez who decided after he got home

safely and he was comfortably at home, you heard Yolanda Young

testify that he did not seem scared, that he did not ask for

protection.

Anthony Velez decided to go back out onto the street

that night --

THE COURT: Well, as an aside, based on the requests

that I've seen, there's no, there's been no suggestion that,

that negligence on the part of the plaintiff's decedent had

anything to do with his demise, is that correct?

MR. KUNZ: Well, no.

Yes, we do have, we do have some special

interrogatories in on that, and, frankly, you know --

THE COURT: You do? Where?

MR. KUNZ: We submitted special interrogatories on

Friday.

MS. SAVINO: I e-mailed them to Mr. Snell and

uploaded them on ECF.

MR. KUNZ: And we filed them on the -- yes, I think

the --

THE COURT: Well, did you request any charges with

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 30 of 64 PageID #: 653

1025

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

respect to those interrogatories?

Proceedings

MR. KUNZ: Do we have charges on whether -- I mean,

I think this would deal with the state law claims. The

contributory negligence, I don't think, would come into play

for the federal.

THE COURT: That's why I said as an aside, with

respect to any claim?

MR. KUNZ: Yes. But, you know --

THE COURT: Did you request a comparative, because

we're not talking about charge, now, we're talking just popped

into my mind when you mentioned that.

I don't recall seeing any requests with respect to a

charge in that area on the state law claim or any claim,

unless I missed it.

MR. KUNZ: I'm not sure if we did put that in there,

your Honor. But we could obviously submit some expeditiously.

THE COURT: Everything will be expeditious.

MR. KUNZ: At this point, yes.

THE COURT: They're all post-haste at this point.

MR. KUNZ: No, but I think the, I think the point

that we're trying to get at, your Honor, is that --

THE COURT: But I understand your point on this.

Let me just ask you with respect to the 1983 against

Hall and Ruggiero, is there anything else that you're --

MR. KUNZ: Yes, there's one overarching issue and

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 31 of 64 PageID #: 654

1026

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

that regardless of which or both claims go to the jury, the

second, the Second Circuit of the Supreme Court, everyone is

very clear that the officers' actions have to shock the

conscience and this comes from Tomme v. Sacramento which is

the Supreme Court --

THE COURT: And your argument is there's nothing

here at the Rule 50 stage that should go to the jury because

of the absence of a shock to the conscience?

MR. KUNZ: Right. When you look at the actual

specific things our officers are accused of doing -- and it's

important to say for shock the conscience, that shock the

conscience goes beyond recklessness, it goes beyond

negligence. It has to be intentional conduct that shocks the

conscience.

And when you look at the specific acts that these

defendants are accused of doing, failure to notify Anthony

Velez, failure to arrest Anthony Velez, those actions do not

shock the conscience. And we don't think --

THE COURT: Well, Mr. O'Neill's conscience.

MR. O'NEILL: I think it would shock any citizen's

conscience to take actions of this nature that leads to

somebody's death.

MR. KUNZ: Well --

THE COURT: I don't want you to -- I understand your

argument there.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 32 of 64 PageID #: 655

1027

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

Anything beyond that?

MR. KUNZ: Well, no. I think this is an important

distinction here because -- and Mr. O'Neill accused us of

conflating the issues, but quite frankly, it's the other way

around, that obviously the untimely death of Anthony Velez,

you know, is shocking. No one wanted him to die, but our

officers, that's not what our officers did. The officers did

not kill him.

You have to look at the actions --

THE COURT: All I want at this point is, is I think

we all agree that that is an element. Your argument, in sum

and substance, is that there, that the proof is so

overwhelming on that issue that there is nothing that I should

direct a verdict on.

MR. KUNZ: Yes, that's exactly, your Honor. That

plaintiff has not carried his case --

THE COURT: Right. I got it.

MR. KUNZ: -- in showing that --

THE COURT: Let's see what Mr. O'Neill says in

response.

MR. O'NEILL: Mr. O'Neill disagrees.

THE COURT: I hope. Otherwise, this will be a very

short afternoon, Mr. O'Neill.

I expect you to just sort of just flesh out at this

stage what, why your disagreement is based on the record.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 33 of 64 PageID #: 656

1028

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

MR. O'NEILL: This is on the, shocks the conscience.

THE COURT: Yes, and the other point as well.

MR. O'NEILL: Well, I mean, the other point on the

state-created danger, you know, there are all sorts of things

said.

I, and --

THE COURT: Let me see if I understand your argument

and maybe we can cut, I don't want you to repeat things that I

think I understand you making.

That in, essentially is that you believe that the

police officers, Hall and Ruggiero, made a decision when they

were out in front of apartment 5C not to take certain action

and as a result of that distinction the danger to Anthony

Velez was increased.

MR. O'NEILL: That is, that is correct.

There would be a bunch of other things, but we do

understand that.

THE COURT: And that that was under the

circumstances such a shocking act, decision on their part, the

decision not to take action raises itself to the level of

shocking to the conscience.

MR. O'NEILL: Yes.

THE COURT: All right. I, here's where I am on, on

that claim, because I assume the City has no further argument

on that.

CHARLEANE M. HEADING, RMR, CRR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 34 of 64 PageID #: 657

1029

Proceedings

MR. KUNZ: Well, we, yes, I think we have, we have a

lot more to say and it's laid in our limine points on this,

but the last thing that I would point out is that Pena, the

Second Circuit case that's sort of put all this down, came

down in 2005.

THE COURT: Okay.

MR. KUNZ: Okin, Hemphill, a lot of these other

decisions that flush this out have come down after the

incident so, and Matican is another example.

So at the very least we believe there's a qualified

immunity argument here because it was not clear.

(Continued on next page.)

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:04-cv-01775-ENV-MDG Document 111 Filed 11/21/11 Page 35 of 64 PageID #: 658

1030

Proceedings

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

THE COURT: Here's -- this is my preliminary -- my

preliminary thinking on qualified immunity. And we'll talk

about this more at the charge conference. My preliminary

thinking here is to -- is to charge on a bifurcated basis so

that on the -- I would submit the case to the jury without

reference to qualified immunity on this claim. If in fact the

jury were to return a verdict for the Plaintiff on this claim,

then I would submit the qualified -- I would --

MR. KUNZ: Submit the special.

THE COURT: And submit a special further instruction

and a special interrogatory with respect to qualified

immunity.

MR. KUNZ: Yeah, I think that's what we would

prefer.

THE COURT: Overall, with respect to this claim, I

am going to reserve on the motion. I'm going to let it go to

the jury and we'll see what happens. Though I will say to

you, Mr. O'Neill, that the ice here is thin.

MR. O'NEILL: Yes, it's a difficult case.

THE COURT: I think Mr. Kunz is correct in his

commentary that this is meant to be a difficult case to win

from the legal on what the -- what the standard is. And I'm

inclined, because I always err -- when it's close I always err

to send the claim in because I can always take care of it

later if I'm ultimately convinced.

CHARISSE KITT, CRI, CSR, RPR, FCRR

Official Court Reporter

Case 1:04-cv-01775-ENV-MDG