Sixth Precinct Police Beating Case Sent to Trial
By Arthur Z. Schwartz
Note: the author is the attorney for the mother of Benjamin DeVincenzi, now deceased.
In a ruling which was published on June 1st, United States District Court Judge Vernon Broderick ordered that a claim brought by Benjamin DeVincenzi, alleging the use of excessive force by 6th Precinct Police Officer Paul Rivera on July 8, 2016, had to go to trial. This will enable a jury to sort out what happened and, if excessive use of force is found, to assess damages. DeVincenzi, who was born and raised in the Village, died from a severe asthma attack in January 2018. The lawsuit is being pressed by his mother, Sara DeVincenzi, a Village resident.
The Judge describes the facts as follows (additional clarifying allegations appear in brackets). On July 8, 2016, Benjamin DeVincenzi was with an acquaintance who was a suspect being pursued by Rivera. Defendants [the City is also a defendant] allege that after DeVincenzi’s acquaintance fled, DeVincenzi stood in Rivera’s way [in the lobby of his friend’s building] and refused to move for 10 to 15 seconds. [DeVincenzi left the building and was proceeding down Houston Street towards 6th Avenue]. Rivera [ran after DeVincenzi and ]arrested DeVincenzi for obstructing governmental administration. After DeVincenzi was arrested, he was surrounded by a group of at least five police officers [all from the 6th Precinct] who arrived on the scene.
The parties agree that DeVincenzi ended up on the ground, but dispute whether Rivera (or any officer) used force against him or if he just fell. Eventually, one or more of the police officers (which may or may not have included Rivera) handcuffed DeVincenzi and Rivera put DeVincenzi in a police vehicle. Plaintiff [Sara DeVincenzi], the mother of DeVincenzi, testified that DeVincenzi called her and told her that “Officer Rivera had punched him in his face” while he was in the police car after his arrest. Defendants dispute whether DeVincenzi made this statement. Plaintiff did not personally observe her son’s arrest and arrived on the scene to find him already in a police vehicle.
After the arrest, Rivera took Plaintiff to the 6th precinct where she told the officers that DeVincenzi needed medical attention because he was on medication, including antibiotics for a gum infection. DeVincenzi, accompanied by Rivera, was then taken to a nearby hospital by ambulance. Plaintiff testified that when DeVincenzi saw Officer Rivera get into the ambulance with him he yelled out “that’s the officer who punched me in my face.” Defendants also dispute whether DeVincenzi made this statement.
While at the hospital, DeVincenzi told the medical providers that he needed medication because without it he would go into withdrawal and have seizures. DeVincenzi’s medical providers noted that he reported that “he was walking with a friend who was wanted by the police and that the police assaulted him” and that he “has various abrasions and contusions.” At the hospital, DeVincenzi was given antibiotics and painkillers then escorted back to the precinct by Rivera.
Once back at the precinct, DeVincenzi was charged with obstructing governmental administration in the second degree. On July 9, 2016, DeVincenzi was arraigned and released on his own recognizance. On December 14, 2016, DeVincenzi “accepted an adjournment in contemplation of dismissal with respect to the [obstructing governmental administration] charge,” and on June 13, 2017, this charge against DeVincenzi was dismissed.
The question Judge Broderick had to answer was whether the statements Benjamin shouted to his mother, and whether the hospital records were admissible in a trial, and whether they contained enough to support a finding of use of excessive force, which would be a violation of Benjamin’s rights under the Fourth Amendment to the U.S. Constitution. The Judge ruled that the statements and the medical records, along with photographs of Benjamin’s puffy face and abrasions all over his body, could be used to prove a case. It will be up to the jury to decide whether they believe Sara DeVincenzi and the photographer. They could then find excessive use of force since the arresting officer, Rivera, testified that Benjamin didn’t resist, and that he somehow fell down while surrounded by officers, and bruised his face and suffered abrasions and bruises from the fall.
Rivera, who has been the subject of many claims of excessive force, and has been found to have used excessive force in at least two other cases (according to NYPD records which are now public), continues to work out of the 6th Precinct.
The trial will be held at an as of yet undecided date in the fall, unless the City settles.