Price v. City of N.Y.
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
not amount to a deprivation of her liberty interest."
(Def. Br. 16 (relying exclusively on Burg v.
Gosselin, 591 F.3d 95 (2d Cir. 2010)).6 The Court
pending long after she believed it to have been
dismissed — she again appeared in court, where
the charge was dismissed. (FAC ¶¶ 59-61).7
disagrees.
During the entire pendency of the prosecution, she
remained subject to New York Criminal Procedure
Law § 510.40, which states that "[u]pon ordering
that a principal be released on [her] own
recognizance, the court must direct [her] to appear
in the criminal action or proceeding involved
whenever [her] attendance may be required and to
render [herself] at all times amenable to the orders
and processes of the court." N.Y. Crim. Proc. Law
§ 510.40.
6 The City Defendants' reliance on Burg is
puzzling, as "there was no claim for
malicious prosecution in Burg," Swartz v.
Insogna, 704 F.3d 105, 112 (2d Cir. 2013)
— an important fact that they fail to
mention.
19
The Second Circuit has "consistently held," most
recently in Swartz v. Insogna, "that a postarraignment defendant who is 'obligated to appear
in court in connection with [criminal] charges
whenever [her] attendance [i]s required' suffers a
Fourth Amendment deprivation of liberty." 704
F.3d at 112 (quoting Murphy v. Lynn, 118 F.3d
938, 947 (2d Cir. 1997) (finding that postarraignment requirements that plaintiff appear for
court appearances and not leave the state were
sufficient to implicate the Fourth Amendment)).
Thus, "the requirement that a plaintiff appear in
court, post-arraignment, in connection with
criminal proceedings, does constitute [a
deprivation of liberty]." MacPherson v. Town of
Southampton, No. 07 Civ. 3497 (DRH) (AKT),
2013 WL 6058202, at *5 (E.D.N.Y. Nov. 14,
2013). Courts have found a liberty deprivation, for
example, where arrestees were arraigned and were
subsequently required to make one other court
appearance. See Willis v. City of New York, No. 12
Civ. 5259 (RA), 2015 WL 556884, at *8 n.9
(S.D.N.Y. Feb. 9, 2015) (finding liberty
depravation in context of § 1983 malicious
prosecution claim); see also Gogol v. City of New
York, No. 15 Civ. 5703 (ER), *19 2017 WL
3449352, at *11 (S.D.N.Y. Aug. 10, 2017)
(finding liberty interest in context of § 1983 fair
trial claim).
In this case, Plaintiff alleges that after she received
the desk appearance ticket, she was released from
custody, appeared in court about a month after the
ticket was issued, and about six years later —
when she learned that the prosecution remained
7 The
City Defendants repeatedly, and
erroneously,
state
that
Plaintiff
only
appeared in court once. (See Def. Br. 1617; Def. Reply 6-7). The FAC makes clear
that Plaintiff appeared in court twice.
20
In Rohman, the Second Circuit recognized that
under § 510.40, an arrestee released on her own
recognizance "must ordinarily remain in the state."
215 F.3d at 216; see also Perez v. Duran, 962 F.
Supp. 2d 533, 542 (S.D.N.Y. 2013) ("[T]he
plaintiff's release on his own recognizance
necessarily required the plaintiff to comply with
travel restrictions."). The restrictions on Plaintiff's
travel, which operated as a de facto confinement
within the state and remained in place as long as
Plaintiff was released on her own recognizance,
*20 are therefore sufficient to implicate the Fourth
Amendment and constitute a seizure. See Rohman,
215 F.3d at 216; Murphy, 118 F.3d at 947; Gogol,
2017 WL 3449352, at *11. Accordingly, the Court
denies the motion to dismiss the individualcapacity claims against Simmons.8
8 Simmons did not argue that she was
entitled to qualified immunity, and that
argument is therefore waived. Even if she
did, the argument would fail. Reasonably
competent officers understand that it is
unlawful to initiate a prosecution against a
domestic violence victim for allegedly
filing a false report when there was no
reason to believe the report was false and
9
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