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Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Civil Rights

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Two New York police officers have been charged for assault and police misconduct after they were caught on tape beating Kahreem Tribble, a 16 year old teenager with their fists and a gun (see video below). David Afanador and Tyrane Isaac were caught on a video chasing and catching the teenager on a Crown Heights street. After the boy surrendered, one of the cops is seen throwing a punch at the boy’s face before his colleague joined in, whipping his head with a drawn pistol.

Brooklyn DA Kenneth Thompson said the video was troubling and “if any police officer has crossed the line – we have to hold him accountable”.

Afanador was charged with felony assault and misdemeanor counts of criminal possession of a weapon and official misconduct. He faces up to seven years in prison.

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New York personal injury lawyer Anthony Gair discusses the Amadou Diallo Criminal Prosecution.
Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz represented the Estate in the wrongful death action brought pursuant to 42 U.S.C. §1983 of The Civil Rights Act. The Diallo case was settled for $3 Million. This amount is the largest amount ever paid by the City of New York in a wrongful-death action for the death of a single individual with no dependents.

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Barney’s which is being investigated by the New York Attorney general’s office over accusations of racial profiling has cancelled tonight’s launch party for its promotional partnership with Jay Z.

Jay Z announced this week-end that he would keep his deal with Barney’s but that the terms of the deal had changed. Barney’s agreed that all proceeds would go to charity and that Jay’Z would be taking a leadership role in helping to solve the issue of racial profiling.

Read more in the New York Times

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The New York Civil Liberties Union (NYCLU), the Bronx Defenders and the LatinoJustice PRLDEF filed a federal class-action lawsuit against the NYPD last week over a stop-and-frisk-type of program that allows officers to patrol private apartment buildings. The lawsuit claims that the officers are violating residents’ rights and the rights of their guests.

This is reminiscent of the rampant stop and frisks conducted by the NYPD Street Crimes Unit which lead to the shooting of Amadou Diallo. The following is from an interview with Anthony Gair, Fernando Ferrer and Murray Richman in 2001 regarding the stop and frisk policy and the inherit violation of Civil Rights.

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By Anthony Gair;

Resolution of whether a plaintiff has a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988. New York’s wrongful death law which limits damages to pecuniary loss is clearly inconsistent with the Constitution and laws of the United States.

In Sinkov v. AmeriCor, Inc., 419 Fed. Appx. 86,(2d Circ.,2011) an action for wrongful death of a decedent with no dependents The Court held;

“AmeriCor correctly points out that under New York law, post-death lost-earnings damages are not recoverable in wrongful death cases where a decedent leaves behind no dependents and no persons who reasonably expect to receive future support from him. See Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his testimony was irrelevant and should have been excluded. But that is not what the district court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983 claim.

The New York authority on which AmeriCor relies does not address the extent of damages permitted in an action for violation of constitutional rights. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have concluded in the past, for example, that New York’s survival statute was inconsistent with § 1983 because (at the time) the New York statute “prevent[ed] the survival of claims for punitive damages after the death of the plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In McFadden, we stated that we have no doubt that limitations in a state survival statute have no application to a [§] 1983 suit brought to redress a denial of right that caused the decedent’s death. To whatever extent [§] 1988 makes state law applicable to [§] 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under [§] 1983 for unconstitutional conduct that causes death.”

In the oft-cited case Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.

In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.
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To prevail in a civil rights action under 42 USC §1983, plaintiff must establish that defendants deprived decedent of a right secured by the constitution or laws of the United States and that such deprivation was committed by person(s) acting under color of state law (see, Spell v. McDaniel, 591 F.Supp. 1090 [1984]). Officially promulgated ordinances, regulations and departmental directives give rise to municipal liability under section 1983 if such policies and decisions lead to a deprivation of constitutional rights (Id.). Municipalities are liable under section 1983 for de facto policies or practices which engender constitutional deprivation; informal actions, if they reflect general policy, custom, practice or pattern of official conduct which even tacitly encourage conduct depriving individuals of their constitutional rights, satisfies section 1983 standards (Id.).

Legal Standard For Discovery

Federal, and not State law, governs questions of discoverability, confidentiality and privilege in federal civil rights actions (see, King v. Conde, 121 F.R.D. 180 [EDNY 1988]; Fed. R. Civ. P. 26[b][1]). Under Rule 26 (b)(1) of the Federal Rules of Civil Procedure, any information that is not privileged is discoverable if it is relevant to the action or reasonably calculated to lead to the discovery of admissible evidence.