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Foreign nationals denied the right under international law to contact their consulate following an arrest can sue for money damages under a federal civil rights statute, a federal judge has ruled. In a case of first impression, Senior Judge Robert W. Sweet of the U.S. District Court for the Southern District of New York said that, even though the Vienna Convention on Consular Relations (VCCR) does not address the issue of civil recovery, an action for damages can still be supported under 42 USC Section 1983. In Standt v. City of New York, 99 Civ. 110008, a German national claimed he was abused by police officers and held without being allowed to contact the German Consulate following his arrest for drunk driving. Frank Standt was stopped at a sobriety checkpoint at Mount Morris Park and West 123rd St. in New York City at about 1:05 a.m. on Jan. 27, 1999. Believing that Standt was glassy-eyed, and that he had failed the so-called “heel-to-toe” sobriety test, the arresting officer placed Standt in custody. A sergeant at the scene claimed that Standt became abusive, yelling in German and saying, “Heil Hitler,” allegations Standt denied. Standt was transported to the 28th Precinct, where a breathalyzer test showed no signs of intoxication. At the station house, Standt, who had a “gay pride” rainbow flag hanging from his rear-view mirror and gay magazines inside the car, claimed he was subjected to several homophobic remarks by officers. He also said he was rebuffed several times when he asked to contact the German Consulate, and that several officers assaulted him. But police officers who were sued individually in the case counter that it was Standt who was abusive, and that his bizarre behavior prompted his transfer to St. Luke’s Hospital as an “Emotionally Disturbed Person.” An admitting nurse found that Standt was not emotionally disturbed, and assisted him in contacting the German Consulate. Standt was then returned to the station house, where he claims that officers again attacked him before issuing him two summonses for driving without a valid driver’s license and for failing to wear a seatbelt. He was finally released at 4:39 a.m. Before Judge Sweet, the city moved to dismiss Standt’s claims under the Vienna Convention and Section 1983, arguing first that the treaty does not provide for a private right of action in and of itself, and that a claim for money damages can not be brought under Section 1983 predicated on a denial of rights under the Vienna Convention. Sweet first rejected the city’s argument as to Article 36 of Vienna Convention standing alone. Although courts have yet to reach a consensus on whether Article 36 creates an individually enforceable right, Sweet said, “in sum, the language of the VCCR, coupled with its legislative history and subsequent operation, suggest Article 36 of the Vienna Convention was intended to provide a private right of action to individuals detained by foreign officials.” The city’s move for summary judgment on Standt’s claim for Section 1983 damages predicated on the Convention was based, in part, on the 2nd U.S. Circuit Court of Appeals’ decision in Waldron v. INS, 17 F.3d 511 (2d Cir. 1994). There the 2nd Circuit said that “aliens shall have the freedom to communicate with consular authorities of their native country,” under the treaty, and that “compliance with our treaty obligations is clearly required.” However, the Waldron court denied an alien’s bid to reverse an immigration board decision to deport him, saying that it “decline[s] to equate such a provision with fundamental rights, such as the right to counsel, which traces its origins to concepts of due process.” Sweet said that the “[d]efendants cite Waldron for the proposition that a Section 1983 action is not available to Standt because the VCCR did not establish a fundamental or Constitutional right.” But Judge Sweet noted that the U.S. Supreme Court, in Blessing v. Freestone, 520 U.S. 329 (1997), recognized that “Section 1983 provides a cause of action to redress deprivation of ‘any rights … secured by the Constitution and laws’ of the United States, not only fundamental or Constitutional rights.” “Therefore, whether the rights established by the VCCR are ‘fundamental’ or not is a question that has no bearing here, and Waldron does not bar this court from holding that Standt may pursue a Section 1983 claim for violation of his right to consular notification under the VCCR,” he said. And, addressing the issue of money damages based on the VCCR, Sweet said the absence of a provision for civil recovery in the treaty does not preclude such a recovery under Section 1983. The Vienna Convention, he said, states that the right of notification “shall be exercised in conformity with the laws and regulations of the receiving state . … That a cause of action for civil damages similar to 42 USC Section 1983 is not available in other countries does not change the fact that such an action is part of the ‘laws and regulations’ of the United States,” he said. Ilann M. Maazel, John R. Cuti and Matthew D. Brickerhoff of Emery Cuti Brinckerhoff & Abady represented Standt. Assistant Corporation Counsel Seth M. Rosen represented New York City.

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