A case that touches on the credibility of New York City Police Department officers and how well New York City is supervising them will be heard by a jury in January, Senior U.S. Eastern District Judge Jack B. Weinstein ordered Tuesday.
In Cordero v. The City of New York, 15-CV-3436, plaintiff Hector Cordero alleges that he was arrested by NYPD officers on Oct. 24, 2014 on drug charges because the officers wanted to make an arrest near the end of their shift so that they would be paid overtime. Cordero denies involvement in the drug transaction.
“A NYPD official took the position that the problem of perjury is not pervasive within the department, and that the tendency of police officers to fabricate testimony is no greater than that of non-police witnesses,” Weinstein wrote. “The statement misses the point. Police officers, unlike civilians, have the power to terminate constitutionally protected liberty; with this power comes great responsibility; as well as the need for appropriate oversight.”
The judge allowed Cordero to proceed against the city on grounds that the city failed “to take reasonable steps to control lying by police officers,” citing Monell v. Department of Social Services, 436 U.S. 658. The NYPD didn’t immediately respond to requests for comment about the decision.
“Judge Weinstein’s decision touches on police credibility—the subject of an increasing number of court decisions over the last few years,” said retired Judge Barry Kamins, who was not involved in the case. “The issue is one that has been percolating within the criminal justice community and Judge Weinstein’s hearing would be an ideal vehicle by which the courts can examine police officer testimony in greater detail.”
“The theory is that the overtime policy and the policy of incentivizing perjury caused the city to arrest Hector Cordero,” said Gabriel Paul Harvis of Harvis & Fett, the plaintiff’s attorney.
The jury will decide the liability of the police officers and if they find them liable on any of the claims, the case will proceed to another phase. In the second phase, the judge will determine whether there is a systemic problem in the police department, Harvis said.
The four officers who are defendants in the suit received more than 20 hours of overtime pay for processing two arrests including the alleged street drug sale. The officer who observed the purported sale, Hugo Hugasian, has a disciplinary record for falsification of overtime as well as prior lawsuits against him claiming false arrest, the judge noted.
The officers are being sued for unlawful stop and search, false arrest, malicious prosecution, denial of right to a fair trial, unlawful strip-search, failure to intervene and supervisory liability.
The city is being sued on the theory that its overtime policy and policy on lying by its officers encouraged their unlawful action, the judge said, citing City of Canton v. Harris, 489 U.S. 378, 388, which says “a municipality can be liable when its policies are moving force (behind) the constitutional violation.”
The judge said the city, at a hearing on the defendants’ motion for summary judgment, effectively admitted liability on the Monell claim when its counsel said that if an individual defendant is found liable, “You can throw the City in the judgement and we will throw a dollar to it and we will avoid the second trial.”
“The dollar damages suggested somewhat contemptuously by the city’s counsel is not a convincing argument for rejecting a trial in the Monell phase,” Weinstein wrote. “A finding by a petty jury that a municipal policy encouraged widespread police officer misconduct can be significant. It may indicate the need for more careful tracking of individual police officer’s litigation history and a more effective disciplinary policy to avoid repeated lying by a number of officers.”
Cordero, 58, is employed as a cashier at J&C Mini-Market in Brooklyn. Cordero has no criminal record and served as a police officer in the Dominican Republic before immigrating to the United States, according to court documents.
Hugasian, Peter Rubin and John Essig were part of a NYPD Street Narcotics Enforcement Unit stationed at the 83rd precinct and supervised by Lt. Christopher Moran, all defendants in the case.
On Oct. 24, 2014, Hugasian was alone conducting undercover narcotics observations near Irving Avenue and Jefferson Street in Brooklyn when he observed Matthew Ninos approach J&C Mini-Market holding his cellphone. Hugasian said in his deposition that he saw an individual leave Mini-Market and hand Ninos “what appeared to be two little zips or bags” in exchange for money.
Cordero testified that he never left the store that day until he was asked to step outside and was arrested.
The judge noted in his decision that in 2010 Hugasian was suspended from duty for 60 days, docked 30 days vacation time, stripped of his gun and his badge, required to$1,203.74 in restitution and place on one-year probation requesting overtime compensation for tours he did not perform. Hugasian has been sued for false arrest at least three other times in federal court in the Eastern District, the judge said.
The defendants moved for summary judgment. On the Monell claim against the city, the judge denied summary judgment, prompting the January jury trial.
“There is sufficient evidence for plaintiff to proceed on the grounds that (1) New York city’s overtime policy incentivizes officers to make false arrests and (2) police malfeasance in general and as related to the overtime policy is inadequately monitored to prevent abuse,” Weinstein said. “A reasonable jury may find that this practice is not isolated to a few bad police officers, but is endemic, that NYPD officials are aware this pattern exists and that they have failed to intervene and properly supervise.”