Tuesday, September 29, 2009

The police thought the clown was a bomber

Some people are afraid of clowns. The New York Police Department was afraid, but the officers didn't know he was a clown. They thought he was a bomber. The clown brought a lawsuit. He proceeds to trial on an excessive force claim.

The case is Alhovsky v. Ryan, 2009 WL 2432688 (S.D.N.Y. Aug 7, 2009). Alhovsky is a professional clown. Let Judge McMahon introduce the case:

Alexander Alhovsky is a professional clown and magician. He spends his days in central Park, entertaining children; he commutes to work on his bicycle. One of Alhovsky's specialties is creating balloon animals. In this line of work, one needs either an extremely powerful set of lungs or a mechanical device that can blow up lots of balloons. Alhovsky uses the latter: a Majiloon battery-powered balloon inflation pump. He carries the pump in a Majiloon-issued fanny pack; the air hose, which was painted with the colors of the rainbow, protrudes from the pack and hangs alongside it.
One day after entertaining the kids the clown rode his bicycle to Starbucks and accidentally left behind the inflation pump, which has wires sticking from it and looks like a bomb to the uninitiated. It certainly looked that way to the Starbucks manager. Again, Judge McMahon: "
At closing time, the shift manager for Starbucks noticed the fanny pack and opened it. Inside, she saw a mechanical device with wires protruding from it, Thinking it might be a bomb, the manager showed it to a co-worker, who immediately (1) threw the fanny pack out of the store onto the sidewalk (!) and (2) called 911. The Bomb Squad arrived shortly thereafter."

Of course, the Bomb Squad does not play games. New York City does not need another explosion. If you deliberately place a false bomb in public, you could be arrested for a Class D felony. While the police were trying to figure out who left this potential hoax in Starbucks, the clown went about his life, figuring that someone stole the inflation pump. He used a spare pump. The surveillance tapes showed that Alhovsky was a regular customer; the police wanted to ask him questions. One day, he whizzed by on his bicycle, and the police surrounded him. Judge McMahon colorfully describes what happened next:

Alhovsky did not get off his bike voluntarily, although he may have been ordered to do so. He was knocked off or grabbed off the bike. He was punched in the kidney and fell to the ground, landing on his shoulder. One officer screamed that he was going to “blow his fucking head off” while another officer put a knee in his face. He was handcuffed and kicked. His pants fell down, exposing his genitals to children playing across the street, some of whom he recognized as “clients.”

Alhovsky was “in shock” and wanted the officers to “stop hurting me.” He was afraid that he “might not even survive this.”

Alhovsky was pulled up by his hair and slammed against the window of a Chirping Chicken store. The owner of the store, Maria Psaris, who knew Alhovsky as a customer, saw plaintiff's face being slammed against the 66th Street window while his hands were cuffed and he was on his knees. Psaris also saw one officer with his weapon drawn.

When [officer] Alfonso arrived at the site, Alhovsky was on the ground surrounded by police officers. Alfonso removed the fanny pack from Alhovsky's waist and called Emergency Services. The NYPD cordoned off the area around the fanny pack and forced everyone in nearby stores to evacuate while the Bomb Squad investigated the package.

Next thing Alhovsky knows, he's at the police station, being questioned by the police. Alhovsky has no idea what's going on. He asks if he's being questioned for murder or rape. No, an officer said, "you're in far deeper shit than this, buddy, and you're going in for life." Eventually, Alhovsky convinced the police that it was not a bomb, but a balloon pump. They let him go. He sued for false arrest and excessive force in violation of the Constitution.

What happened to the clown may seem outrageous, in that the police thought the balloon device was a bomb and they treated him like a bomber, taking him to the police station for questioning. But the fact that Alhovsky was innocent does not mean the police did not have probable cause. Judge McMahon finds the police did have probable cause to believe that the clown had left behind a hoax bomb in violation of the penal law. The police did nothing wrong in taking him to the station for questioning, and they were not required under the law to ask him questions at the scene and clear up the matter right then and there. What is more, when the police ran into Alhovsky on his bike, he was carrying the same device; the police reasonably thought this guy was planting hoaxes around Manhattan. This gives the police probable cause to stop and question him at the station. Vindicating the officers on the false arrest claim is a somewhat clunky ride; the judge does cut apart some of the legal arguments of both sides, stating that "plaintiff's argument makes no sense" and defendants raised a "red herring."

The clown does have a case for excessive force. The police smacked him around when they saw him riding his bike. While plaintiff did not suffer serious injuries, and the police may have been justified in using some force in getting him to stop biking past them, Judge McMahon concludes:

the coup de grace is that a disinterested witness -- the owner of the small business outside of which the encounter happened -- has submitted sworn testimony about seeing a police officer slam plaintiff's head against her store window while an officer holding a gun looked on. She further testified that plaintiff (whom she knew and recognized) was on his knees and in handcuffs when this assault occurred. If this be true, then there was no need for any officer to slam plaintiff's head into a plate glass window in order to subdue him or to effect his arrest. The act of slamming plaintiff's head into the against the glass pane, without more, constitutes excessive force if it occurred as the disinterested witness said. It is of no moment that plaintiff did not suffer any serious physical injury as a result; it is not objectively reasonable to slam a man's head into a glass window if he is already subdued.


Michael Chermside said...

It is interesting that the court suggests the police had probable cause for the felony of planting false bombs, yet the evidence (the behavior of the police) suggests that they may have been questioning him about a different felony (that of planting REAL bombs) -- both the excessive force and the suggestion that it's something worse than murder or rape lead toward this.

I suppose it doesn't make any difference, but it's an interesting distinction.

LawyerTrue said...

The use of excessive force trial was the least significant aspect of the case. The police knew the balloon pump was not an explosive device. Thus, they were only seeking to find Alhovsky and question about it (and therefor did not themselves believe that they had probable cause for arresting him for leaving a false bomb). Arresting, detaining Alhovsky in a car for 45 minutes, and psychologically abusing him for two hours before any detective or police officer asked him the question that they wanted to ask to begin with - "what is this device?" -- clearly exceeded the time for a reasonable investigation. It is our opinion that Judge McMahon misread the statute which "provided" the probable cause and as no reasonable police officer could have had more than a suspicion that Alhovsky had committed two of the four (or five) elements of the alleged crime, there can be no qualified immunity defense. This will be a fascinating appeal.