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Despite new evidence clearly establishing that the police officers who viciously attacked a Long Beach, N.Y., man 35 years ago lied about the incident, a reluctant federal appeals court Monday said the statute of limitations barred resurrection of the man’s claim. Acknowledging that the result “seems harsh,” the 2nd U.S. Circuit Court of Appeals said that David Pearl’s suit against Long Beach officers must be dismissed, even though one of the four officers involved in the assault told prosecutors in 1999 that the underlying criminal case against Pearl was a complete fabrication. The court’s ruling in Pearl v. City of Long Beach, 01-7914, upholds the dismissal of Pearl’s civil rights and racketeering action by Senior U.S. District Judge Leonard D. Wexler, of the Eastern District of New York. Pearl was only 16 years old in 1967 when he was called over to a police car by Officer Leo J. Nolan, allegedly for swearing at another officer, and ordered into the back seat. In the police car and later at the police station, Pearl alleged, he was assaulted by Officer Nolan and three others. Pearl lost consciousness at the police station and was hospitalized for 10 days with injuries that included permanent blindness in one eye. Pearl was charged with assaulting a police officer, resisting arrest and disorderly conduct. His convictions in the first trial were overturned, and his second trial ended with a deadlocked jury. Before his third trial began in 1972, Pearl and his mother reached a settlement in their civil action against the city of Long Beach and the individual officers for $30,000. Twenty-seven years later, Officer Vincent Milo submitted an affidavit admitting to Nassau County prosecutors that Pearl never punched or kicked any of the officers, and that “Nolan laid out the story as to what the reports should say.” And in a second affidavit, Milo said there was a “pattern of brutality” in the department and beatings “by senior officers, especially the detectives to extract confessions were commonplace.” After learning of the admissions, Pearl filed suit in 2000 to revive claims covered by the 1972 settlement and add new claims based on the police cover-up. He charged that the statute of limitations should not bar the new action because the fraudulent concealment by the officers prevented him from learning the truth. Pearl’s argument was based, in part, on the contention that he never would have settled the case in 1972 but for the conspiracy and lies of the officers. UNUSUAL CONTEXT In upholding Wexler’s decision, the 2nd Circuit said the issue of equitable tolling of the statute of limitations “arises in this case in an unusual context.” Writing for the court, Senior Judge Jon O. Newman said: “Even if the fraud against [Pearl] or a fraud upon the state court warranted ignoring the prior litigation … Pearl would still have to demonstrate that the circumstances permit him to sue the officers and the City 32 years after the episode.” Although there was no New York case on point, Newman said 2nd Circuit case law holds that the equitable tolling doctrine will be used where as “a matter of fairness,” the plaintiff was “prevented in some extraordinary way from exercising his rights” such that the fraud rendered it “impossible” for a reasonable person to learn about their cause of action. Newman said Pearl had not met that standard. “Although the police officers’ allegedly false testimony in Pearl’s two criminal trials and in depositions for his state court suit undoubtedly induced Pearl and his mother to settle that suit for a modest sum, the facts of the episode, as he now alleges them to be, were fully known to Pearl in 1967,” he said. “What he has now … is more persuasive evidence, not newly developed awareness of a previously concealed cause of action.” RULING CONTRASTED Judge Newman contrasted the case with a 7th Circuit ruling that allowed equitable tolling in Bell v. City of Milwaukee, 746 F.2d 1205 (1984). In Bell, the critical factor was that the victim died at the hands of police, Newman said, and that, while the family was aware of the death, they were not aware “of the facts that made the death actionable.” “In the face of the unusual circumstances of a former police officer coming forward to recant his own prior testimony and to admit that he and other officers lied … we take no pleasure in ruling that the statute of limitations remains an insuperable obstacle to his effort to obtain adequate compensation for the brutality inflicted upon him 35 years ago,” Newman said. Chief Judge John M. Walker Jr. and Senior Judge Amalya Kearse joined in the opinion. Representing Pearl were Stephen H. Peskin of Tolmage, Peskin, Harris & Falick; Jonathan C. Moore; and William H. Goodman of the Center for Constitutional Rights. Corey E. Klein, acting corporation counsel, represented Long Beach. Orrit Hershkovitz and Paul Millus of Snitow Kanfer Holtzer & Millus represented Leo Nolan. Michael T. Hopkins of Hopkins & Kopilow represented former Officer Arthur Whitman. Christine McInerney of Ruskin Moscou Faltischek represented Vincent Milo.

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