First Serve First Come Criminal Complaint Policies-Deny Equal Protection
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Concluding as “firmly grounded in New York law,” the conclusion from Gentile, Walker, and Myers that “where prosecutors, pursuant to policy or custom, conceal exculpatory evidence and commit other wrongs in order to secure a conviction, liability rests with the county(or for New York City’s constituent counties, the City)” Citing Ramos v. City of New York 729 N.Y.S.2d 678 (N.Y. App. Div. 2001) continued in the Second Circuit (see, e.g., Myers v. County of Orange, 157 F.3d 66 cert denied 525 U.S. 1146), subsequent to the United States Supreme Court’s McMillian,(supra) ruling, (regarding Alabama counties), upon which the City relies to argue that the District Attorney is a State actor only.
Hence, following Second Circuit precedents, where prosecutors, pursuant to policy or custom, conceal exculpatory evidence and commit other wrongs in order to secure a conviction, liability rests with the county (or for New York City’s constituent counties, the City [Walker, supra, at 301]) rather than with the State (Gentile, supra;Walker, supra; Myers, supra) and may be asserted under § 1983 (Baba-Ali, supra). This conclusion is also firmly grounded in New York law. After all, a District Attorney historically has been categorized as a local, rather than a State, officer (see, Public Officers Law § 2), which is unremarkable in that the District Attorney is elected and compensated by the county’s voters and enjoys no extra-county jurisdiction (Fisher v. State, 10 N.Y.2d 60) as a result of which a District Attorney’s torts are the torts of the county rather than of the State (id.; Claude H. v. County of Oneida, 214 A.D.2d 964; Morris v. City of New York, 198 A.D.2d 35; Whitmore v. State of New York, 55 A.D.2d 745 lv denied 42 N.Y.2d 810; Fonfa v. State of New York, 88 Misc.2d 343). New York City law identifies the District Attorney as a city official (N.Y.C. Admin. Code § 3-601[b]).
Recognizing police officers’ testimony as sufficient to establish a county “policy” causing a constitutional violation https://casetext.com/case/myers-v-county-orange-city-port-jervis
McCrary v. County of Nassau 493 F. Supp. 2d 581 (E.D.N.Y. 2007) See Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). However, in Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998), the Second Circuit held that where a district attorney enacts a policy which acts as a blanket proscription against criminal cross-complaints, the cross-complainant’s constitutional rights are violated. The court stated that “a policy by a police department or district attorney’s . . . office favoring an initial complainant over a later one without giving primary regard to the particular facts involved in the case violates the Equal Protection Clause of the Fourteenth Amendment.”
Fox v. City of New York 03 Civ. 2268 (FM) (S.D.N.Y. Apr. 19, 2004) For that reason, the Second Circuit has held that a blanket no cross-complaint policy “bears no rational relationship to the legitimate governmental interest in impartial law enforcement and thus violate[s] . . . equal protection.” Myers v. County of Orange, 157 F.3d 66, 76 (2d Cir. 1998).
Benitez v. City of N.Y. 17 CV 3827 (SJ) (SJB) (E.D.N.Y. Jun. 13, 2018) But in determining whether a municipality is liable under section 1983, a court “ask[s] whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue, an inquiry that will necessarily be dependent on the definition of the official’s functions under relevant state law.” Myers v. County of Orange, 157 F.3d 66, 76 (2d Cir. 1998) (quoting McMillian v. Monroe County, 520 U.S. 781, 785 (1997)) (quotation marks omitted). Thus, the relevant inquiry in determining whether a municipality is subject to section 1983 liability is not whether the DA is acting in an administrative or prosecutorial role as is required in determining whether absolute immunity attaches, but whether the DA is functioning as a local or state actor under state law.
Inocencio v. Arroyo 08-CV-4898 (RJD) (E.D.N.Y. Apr. 30, 2009) See Leeke v. Timmerman, 454 U.S. 83, 86 (1981) (per curiam) (“a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)); Yashaahla v. M.H.A.N.Y., No. 05 CV 4963, 2006 WL 845586, at *1 (E.D.N.Y. Mar. 29, 2006). However, plaintiff may have a claim under the Equal Protection Clause of the Fourteenth Amendment, as enumerated in Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998).
“The Second Circuit held that where a district attorney enacts a policy which acts as a blanket proscription against criminal cross-complaints, the cross-complainant’s constitutional rights are violated.” Galgano v. Cnty. of Putnam Case No. 16-CV-3572 (KMK) (S.D.N.Y. Sep. 28, 2018) This “inquiry is dependent on an analysis of state law.” McMillian v. Monroe Cty., 520 U.S. 781, 786 (1997); see alsoMyers v. Cty. of Orange, 157 F.3d 66, 76 (2d Cir. 1998) (“We first ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue, an inquiry that will necessarily be dependent on the definition of the official’s functions under relevant state law.” (internal quotation marks omitted)). Staley v. Grady 371 F. Supp. 2d 411 (S.D.N.Y. 2005)
However, where a governmental entity enacts a policy which acts as a blanket proscription against cross-complaints, the cross-complainant’s constitutional rights are violated. See Myers v. County of Orange, 157 F.3d 66, 76 (2d Cir. 1998) (noting that a blanket no cross-complaint policy “bears no rational relationship to the legitimate governmental interest in impartial law enforcement and thus violate[s] . . . equal protection”). In Myers, the Second Circuit held that “a policy by a police department or district attorney’s . . . office favoring an initial complainant over a later one without giving primary regard to the particular facts involved in the case violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 69. Staley v. Grady 371 F. Supp. 2d 411 (S.D.N.Y. 2005)
However, where a governmental entity enacts a policy which acts as a blanket proscription against cross-complaints, the cross-complainant’s constitutional rights are violated. See Myers v. County of Orange, 157 F.3d 66, 76 (2d Cir. 1998) (noting that a blanket no cross-complaint policy “bears no rational relationship to the legitimate governmental interest in impartial law enforcement and thus violate[s] . . . equal protection”). In Myers, the Second Circuit held that “a policy by a police department or district attorney’s . . . office favoring an initial complainant over a later one without giving primary regard to the particular facts involved in the case violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 69.
A private citizen has the right to institute criminal proceedings against a wrongdoer, and, at times, to arrest without a warrant. He may be called upon to perform certain duties in connection with the enforcement of the law and the preservation of peace and order. In most communities, duties and functions in respect to the preservation of peace and order have been conferred upon public officers to supplement, and under ordinary circumstances, to supplant, action by private citizens. People v. Lafaro 165 N.E. 518 (N.Y. 1929)
The Supreme Court Reporter, Volume 27 states: As we have seen, this court has held that the 13th Amendment, by its own force, without aid of legislation,…conferred freedom upon every person…,..the right and privilege of being free from the badges or incidents of slavery…….I have already said that the liberty protected by the 14th Amendment against state action inconsistent with due process of law is neither more nor less than the freedom established by the 13th Amendment. This I think, cannot be doubted. In Allgeyer v. Louisiana, 165 U.S. 578, 589, 41 L. ed.832, 835, 17 Sup. Ct. Rep. 427, 431, we [Supreme Court] said that such liberty..is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them all lawful ways; to live and work when he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. All these rights, as this court adjudged in the Allgeyer Case are embraced in the liberty which the 14th Amendment protects against hostile state action when such state action is wanting in due process of law. They are rights essential in the freedom conferred by the 13th Amendment. Page 1627 Supreme Court Reporter Oct. Term.
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