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ECBA Files Article 78 Petition Against NYPD for Failure to Comply with City Law

On September 19, 2018, ECBA filed a Petition pursuant to Article 78 of the CPLR on behalf of New York City Council Member Rory I. Lancman, MTA Board Member David R. Jones, and the Community Service Society of New York (“CSSNY”) seeking an order to compel the New York City Police Department to comply with a New York City Law which requires it to post reports on its website regarding arrests made and civil summonses issued to individuals for fare evasion at each of the 472 subway stations in New York City.

After CSSNY issued a detailed report reflecting that the vast majority of arrests and summonses for subway fare evasion occur in poor African-American communities, Council Member Lancman introduced legislation requiring the Police Department to release quarterly reports detailing the number of arrests under New York Penal Law § 165.15 and summonses under MTA Rule of Conduct § 1050.4 that were issued for fare evasion at each subway station throughout New York City and to break down the data by various demographic criteria, such as the race, gender, and age range of each person arrested or summonsed.  Council Member’s Lancman’s proposed bill was unanimously approved by the City Council and went into law as New York City Administrative Code § 14-172 in January 2018.  Three required reporting periods have passed since the law’s enactment and the Police Department has brazenly refused to comply with its statutory obligation.

The Petitioners are represented by ECBA attorneys Richard D. Emery and David Berman.  A copy of the Petition is available here, and coverage of this lawsuit in the New York Times, New York Post and New York Daily News is available here, here, and here.

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ECBA Sues Suburban Landlord Alleging Race Discrimination

ECBA filed suit in federal district court alleging racially discriminatory rental practices at a 53-unit Eastchester apartment building in Westchester County, New York.  The Fair Housing Justice Center sent similarly qualified White and African-American testers posing as potential renters to the building to inquire about the availability of apartments for rent and the application process. The 2018 tests revealed that the building superintendent treated African-Americans less favorably than Whites, including refusing to give them applications, showing them fewer apartments, and/or falsely claiming there was a waiting list or contracts pending on vacant apartments.  The building is in a census tract that is less than 3% African American but is adjacent to communities with a 20% or higher African American population.

The plaintiffs are represented by Diane L. Houk. Read the complaint here.

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Exoneree Sues New Haven Police for 17 Years of Wrongful Imprisonment

FOR IMMEDIATE RELEASE

 

CONTACT:

Ilann M. Maazel, ECBA, 212.763.5000, imaazel@ecbalaw.com

Sean McElligott, Koskoff, 203.336.4421 smcelligott@koskoff.com

 

 

September 7, 2018 ­­– Vernon Horn, who was exonerated in April 2018 after spending 17 years in prison for a murder he did not commit, today filed a federal civil rights lawsuit against the City of New Haven, three New Haven detectives, and a state firearms examiner.  The New Haven Police Department (NHPD) hid 137 pages of exculpatory phone records in a detective’s home basement, failed to investigate evidence that would have proven Mr. Horn’s innocence, and coerced witnesses against him.  Mr. Horn is represented by the law firms of Emery Celli Brinckerhoff & Abady LLP and Koskoff, Koskoff & Bieder, P.C.

 

Mr. Horn was convicted of murder for a shooting at the Dixwell Deli in New Haven on January 24, 1999. A cell phone stolen from the murder scene was a key piece of evidence at trial.  The state claimed that Mr. Horn had taken the phone to Bridgeport, given it to his accomplice, brought it back to New Haven the next day, and lent it to a friend to make a call.

 

In fact, the stolen cell phone never left Bridgeport, and Mr. Horn never touched it.  Evidence proving as much was readily available to the NHPD all along, but detectives never bothered to ask for it.  Phone records showed that every call from the stolen cell phone was linked to the same crew of Bridgeport drug dealers.  But instead of turning those records over to Mr. Horn, as the Constitution requires, the NHPD buried them in a basement.

 

This and other new evidence was discovered only because the Federal Public Defender for the District of Connecticut doggedly reinvestigated the case.  In April 2018, in response to the new evidence uncovered by the investigation, the State’s Attorney’s Office moved to vacate Mr. Horn’s conviction and dismiss the charges.  Mr. Horn’s co-defendant, Marquis Jackson, was also exonerated and released.

 

Today’s lawsuit, filed in United States District Court for the District of Connecticut, seeks damages for the 17 dehumanizing years that Mr. Horn spent in prison as an innocent man.  While in prison, Mr. Horn was assaulted by inmates, strip-searched by guards, held in solitary confinement, and denied essential medical care for serious injuries suffered in a car accident.  His young daughter began to grow up without him.

Mr. Horn said:

First and foremost, I would like to thank the Most High for allowing me to make it through this injustice.  I would like to thank my attorneys David Keenan and Terence Ward of the Connecticut Federal Public Defender Office for securing my freedom.

What happened to me was not only a crime against me, but it was a crime against humanity.  I was falsely prosecuted and lied about by people who are supposed to be public servants.  I suffered emotionally, and I was physically and mentally abused in prison.  I was not able to go to college and learn the things a man should know.  I was taken away from my first child when she was only 10 months old.

After being released, I was put back into the world without any help and without an apology.  The thing that hurts the most is that my daughter does not know me.  After what happened, I cannot trust anyone or hold on to relationships because I think everyone is trying to hurt me.

I hope that people who are a part of the criminal justice system learn from what was done to me.  They need to know that there are more innocent men and women who have been framed and falsely accused.  It is real, and it needs to end.

 

Ilann M. Maazel, partner at Emery Celli Brinckerhoff & Abady LLP, and counsel for Mr. Horn, said:

The New Haven Police Department stole the prime of Vernon Horn’s life.  This was a complete breakdown in the criminal justice system.  We intend to hold the police and everyone responsible for this travesty of justice accountable.

 

Sean McElligott, a lawyer at Koskoff, Koskoff & Bieder, P.C., and counsel for Mr. Horn, said:

After seventeen years of lies and betrayal, Vernon Horn will finally have the opportunity to speak the truth through this lawsuit.  We look forward to helping him gain some measure of peace after decades of wrongful incarceration and suffering.   

Matt Blumenthal, a lawyer at Koskoff, Koskoff & Bieder, P.C., and counsel for Mr. Horn, said:

We all depend on law enforcement to act with competence and integrity. Vernon Horn suffered a spectacular betrayal of this trust. We are proud to stand with him in his fight for justice and accountability.

 

The complaint is available here.

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ECBA, Avaaz Defeat “Chilling,” “Overbroad,” “Utterly Irrelevant” Monsanto Subpoena

 

In a victory for the First Amendment, a New York judge granted ECBA’s motion on behalf of the Avaaz Foundation, a global civic movement, to quash a sweeping document subpoena issued by the Monsanto Company, the multi-billion-dollar agricultural and biotech giant.  The subpoena sought access to three-and-a-half years’ worth of Avaaz’s confidential political communications, internal strategy memos, and campaign plans – its political “playbook,” in the judge’s words — for its ongoing, worldwide effort to persuade governments around the world to ban the chemical agent glyphosate, the active ingredient in Monsanto’s Roundup® products.  The International Agency for Research on Cancer has concluded that glyphosate is “probably carcinogenic to humans,” and a California jury recently found that Roundup® caused a school groundskeeper’s non-Hodgkin’s lymphoma.

In quashing the subpoena, Justice Shlomo Hagler of the New York County Supreme Court ruled that Monsanto’s request would have a “tremendous chilling effect” on the protected First Amendment activities of Avaaz and other civic organizations.  Giving Monsanto access to Avaaz’s internal communications, Justice Hagler explained, would discourage Avaaz and its members from participating in “a movement they feel is just and right.”  Justice Hagler also ruled that the documents Monsanto sought were “utterly irrelevant” to a Missouri lawsuit for which it purportedly sought them.  If enforced, the subpoena would have required Avaaz to produce its campaign plans, strategy deliberations, and research to Monsanto.

Law360 and other media outlets have reported on yesterday’s ruling, and many publications have been following the case. Click here for Law360, The Guardian, DownToEarth magazine, and EcoWatch.

ECBA attorneys Andrew G. Celli, Jr. and Doug Lieb represent Avaaz in this matter.

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ECBA Files Brief For Public Defenders and Civil Rights Groups Urging Appeals Court to Reconsider Approach to False Evidence Claims

ECBA has filed a “friend of the court” brief in the federal appeals court in Manhattan urging the full court to reconsider a recent decision that affects how much time victims of police misconduct have to file civil rights claims in court.  The amici curiae brief was filed on behalf of a coalition of organizations that defend indigent people accused of crimes, work to correct wrongful convictions, and protect civil rights.  It argues that when someone alleges that police fabricated evidence used to charge him with a crime, the statute of limitations on his civil claim should not start running until the criminal case against him is resolved in his favor.  As the brief explains, the recent decision, if not corrected by the full court, could hurt criminal defendants’ ability to defend themselves against charges and lead to the dismissal of valid civil rights claims for technical reasons, even if the plaintiff is the victim of egregious misconduct or has served years in prison for a crime he did not commit.

The groups represented by ECBA in the case are the American Civil Liberties Union, Bronx Defenders, Brooklyn Defender Services, Center for Appellate Litigation, Connecticut Innocence Project, The Innocence Project, The Legal Aid Society, National Association of Criminal Defense Lawyers, Neighborhood Defender Service of Harlem, New York County Defender Services, New York State Association of Criminal Defense Lawyers, Office of the Appellate Defender, and Vermont Office of the Defender General.  ECBA attorneys Sam Shapiro, David Lebowitz, Doug Lieb and Ashok Chandran worked on the brief.

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Harlem Black Business Owner Arrested for Being a Business Owner While Black

The law firm of Emery Celli Brinkerhoff & Abady LLP (ECBA) yesterday evening filed a federal lawsuit on behalf of three black men who are among the many black New Yorkers and black Americans arrested for simply doing the normal things that normal people do—driving a car down the street, having a barbecue, or, in this case, doing one’s job.

Plaintiff Dr. Clyde Pemberton is the CEO of the corporation that owns MIST Harlem (https://mistharlem.com/), a restaurant and entertainment venue. The complaint alleges that Dr. Pemberton and two MIST employees were arrested on June 1, 2017 simply because they are black. Dr. Pemberton went to aid a white woman who was unconscious and being dragged through MIST by her two white friends. The ill woman’s friends screamed racial epithets at him and attacked him. MIST employees called 911 for an ambulance. When the paramedics and the police arrived, Dr. Pemberton and two MIST employees were arrested for allegedly falsely imprisoning the ill woman. The police never interviewed them before arresting them.

Plaintiff’s attorney, Elizabeth S. Saylor said, “It is time for the NYPD to be held accountable. The NYPD must stop reflexively defending its officers without even conducting an investigation. The NYPD must take real action to stamp out discrimination by holding accountable those officers who violate citizens’ constitutional rights.”

Despite having done nothing but express concern for a patron in danger, suffer an unprovoked racist attack, and try to deescalate a volatile situation, Dr. Pemberton and two other MIST employees were arrested, held at a police station overnight, and forced to go to court to fight charges for several months, before the district attorney finally dismissed the charges.

“This is exactly the kind of interaction that destroys trust in law enforcement in minority communities,” said Ms. Saylor. This incident has left Plaintiffs deeply shaken. They had not previously known the fear, the disrespect, or the pain of being the victims of arbitrary and heavy-handed conduct by the police. Dr. Pemberton had even previously worked with the police. He ran a Harlem-based community mental health center, performed psychological evaluations for the NYPD, and served as a psychiatric consultant to the Newark Police Department.

“This lawsuit seeks to remedy the injustice perpetrated by the NYPD,” said Ms. Saylor. The complaint is available here. The three plaintiffs are represented by Elizabeth Saylor and Doug Lieb. Read coverage of the case in the New York TimesNY Daily News, NY Post, New York Law Journal, Hip Hop Wired, and The Grio.

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ECBA Partner Zoe Salzman Named one of City & State’s 40 Under 40 Rising Stars

ECBA partner Zoe Salzman was named as one of City & State’s 2018 40 Under 40 Rising Stars.

Each year, City & State identifies 40 members of the next generation – all under the age of 40 – who are already leaders in elected office and in state offices, in labor and in business, in advocacy and in academia, in government affairs and in journalism.

Ms. Salzman told City & State, saying the “diverse docket” she has at Emery Celli Brinckerhoff & Abady “is ideal for her skill set.” “‘It keeps you sharp,’ she says. ‘It’s thinking really creatively about legal problems.”

Read Ms. Salzman’s profile in City & State here.

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Settlement Reached in Challenge to Bronx Court Delays

ECBA, The Bronx Defenders, and Morrison & Foerster, LLP announced a settlement of a lawsuit challenging widespread delays in misdemeanor cases in Bronx Criminal Court.

The settlement agreement allows the plaintiffs to monitor the court system for the next four years and to re-open the case if not enough progress is made. It also creates a new mechanism for people charged with misdemeanors to request a speedy trial, at which point the court system will be required to track the progress of their case.

Since the May 2016 filing of the lawsuit, Trowbridge v. DiFiore, the number of misdemeanor cases pending for more than a year in the Bronx dropped from 2,378 to 513.  The number of misdemeanor cases pending for more than two years dropped from 538 to 64.  But more work remains to be done: the proportion of misdemeanor cases that are more than a year old in the Bronx is still twice as high as in any other borough.

“This settlement is only the beginning,” ECBA partner Ilann M. Maazel told the press. “We will be watching the Bronx court system very carefully to make sure that they live up to their promises, achieve parity with the other boroughs, and make speedy trials a reality for everyone in the Bronx.”

Matthew D. Brinckerhoff, Ilann M. Maazel, and Doug Lieb represented the plaintiffs.

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ECBA Wins Landmark Ruling in Rape and Gender Motivated Violence Case

ECBA won a landmark ruling allowing a case for rape to proceed under New York City’s Victims of Gender Motivated Violence Protection Act. Justice Robert R. Reed denied the defendant’s motion to dismiss the case, holding that the complaint properly alleged all the elements of the claim.

The New York City Council passed the Act in 2000 to create a private right of action for victims of “gender motivated crimes of violence” like sexual assault and rape to sue their abusers in civil court. The Act also extends the statute of limitations to bring such cases to 7 years. Justice Reed’s ruling gives real meaning to the City’s Act and makes it a powerful and much needed tool for victims of sexual misconduct to seek justice in the courts.

The case is Breest v. Haggis, No. 161137/2017 (N.Y. Sup. Ct.).

ECBA attorneys Jonathan S. Abady, Ilann M. Maazel, and Zoe Salzman represent the plaintiff.

Read more about the case herehere, here, and here.

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