On January 11, Raefski arrived at the courthouse at about 9:30 or 10 a.m. He
approached the clerk, explained what had happened in December and presented the
outstanding tickets, expecting a quick resolution. Claimant waited for two
hours, recalling that there were no seats so he had to stand using his crutches,
at which point “I got kind of upset and I demanded to see” a
supervisor. Raefski said that just before 1 p.m., he spoke to a supervisor who
informed him that he should return after lunch. Even though claimant said he
was told “these tickets are warrants, we will have to arrest you,”
Raefski responded that he could not wait that long - - he was in pain and was
going to see his doctor.
Then as Raefski was walking up the stairs to leave the building, he slipped and
fell; this accident is not a part of his claim. Claimant was helped up by two
court officers, and declined a call for an ambulance. What he did want was a
report of this latest injury for his doctor, and came back for such report
after lunch at about 2:30. Raefski said he went to the office where he was
supposed to pick up the report, but was told by a court officer that no one was
in the room and he should sit down. Raefski replied that he did not want to
stay too long, recalling that the officer then said that he would have to wait
until “we’re ready to give you the thing.”
The foregoing is not disputed or is, at least, not material to the legal issues
obtaining here: (i) was claimant’s subsequent arrest for disorderly
conduct valid (cl exhs 1 & 2); and (ii) in any event, was excessive force
used? The parties’ versions of the facts on these two issues differ
Raefski testified that moments after being told he would have to wait for the
report, “I started getting poked in the chest and pushed [by the officer]
. . . and within a flash, I was on the floor.” Claimant added that
“I was pushed and my crutches were kicked out from under me,”
explaining “that’s how I [wound] up on the floor” and that
there was an officer in front of him and one behind. Raefski asserted that he
was then “dragged into the back” by four to six officers.
Court Officer Raphael Nieves denied at trial that he or any other officer
poked, kicked, hit or made any physical contact with claimant. In fact,
according to the officer, claimant “threw himself on the floor . . . but
while he was there on the floor he said that I threw him on the floor and that
he was going to sue me.”
Mr. Nieves had been a court officer for over five years at the time of the
incident, and has been assigned to the Bronx Criminal Courthouse his entire
career, including up to the time of trial. On January 11, 2000, Nieves was
working a 9 a.m. to 5 p.m. shift, assigned to voucher items like cameras and
cell phones that were temporarily taken from persons at one of the two public
entrances to the courthouse.
Nieves testified that he was in the voucher room and “heard someone being
very loud and asking for a supervisor” coming from the area of the
magnetometers, or metal detectors. As the senior officer on duty, Nieves was
the supervisor of the other officers at the six magnetometers by the 161st
Street entrance. The officer came out and saw Mr. Raefski, whom he had never
seen or been involved with before. Nieves approached claimant, who by the
officer’s recollection was yelling, asking for an aided report, and
standing in front of one of the magnetometers, preventing persons from entering
Nieves testified that for an incident that occurred by the magnetometers, the
paperwork would be available on the first floor; but for a fall on the stairs
for example, the aided report would be at the captain’s office on the
third floor of the court building - - and that is just what he told Raefski.
But, Nieves recalled, claimant would not move, insisting that the officer was
just covering for the “people in AR9.” The officer stated that he
warned claimant several times to move away from the metal detector or be issued
a summons, but Raefski did not budge, instead exclaiming, “so arrest me
For his part, Raefski testified that he never told an officer he would not
leave the area, and did not say “arrest me.” Claimant recalled that
he was always 20 to 30 feet away from the magnetometer and was never asked to
step aside. There is no doubt that claimant was loud, but Officer Nieves
testified that even so, had Raefski moved away from the metal detectors, he
would not have been arrested.
Nieves recalled that claimant was sat down on a bench and one hand cuffed to a
plastic “flexcuff,” which was in turn attached to a metal bar.
Nieves added that such was how an individual would normally be handcuffed,
except that usually, both hands would be cuffed; in this instance, the officer
felt that one hand was sufficient inasmuch as Raefski was on crutches.
The duration of the restraint was disputed; Raefski testified he was
handcuffed for about three hours, and Nieves, that claimant was released after
15 or 20 minutes.
The basic factual determinations to be made are thus: Was Mr. Raefski blocking
the magnetometer and was there improper physical contact on the part of an
officer or officers? The burden is on the claimant to prove his case
(PJI §1:23) or an issue thereof (PJI §1:60) by a fair
preponderance of the credible evidence. Only Mr. Raefski and Officer Nieves took
the stand at trial. That Raefski freely and matter-of-factly admitted to being
loud added to his credibility, although there were inconsistencies and
uncertainties in his testimony. On the stand, at some points, Officer Nieves
came across as uncomfortable with his own testimony.
To this trier of fact, I conclude that what is more likely than not was that
Mr. Raefski was standing in front of the magnetometer interfering with access by
the public. He was loud, by his own admission in pain most of the day, angry
and frustrated and had fallen down the stairs. Claimant may not have been
sufficiently aware of his precise physical situation, and some of his
testimony, covering the location of the magnetometers and whether there was
ongoing construction, was more tentative and less persuasive than the
officer’s testimony on those subjects.
However, as noted, given the officer’s discomfort with some of his
testimony and claimant’s directness about his own behavior, what best fits
the evidence is that having to leave his post to see what was happening and
coming upon an individual who was insistently loud, Nieves overreacted and poked
claimant which caused him to fall. In sort, excessive force was used.
Defendant did not offer any other witness to refute this logical, although
fairly close, conclusion. When Raefski fell, his crutches of course went with
him; there is insufficient proof that they were kicked out from under claimant
or that any other improper force or restraint was thereafter resorted to.
As to the arrest, my finding that claimant was blocking the entrance in full
view of Officer Nieves supports claimant’s arrest for disorderly conduct.
Penal Law §240.20 provides, in part, that a “ person is guilty of
disorderly conduct when, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof,” he or she, inter
, ‘‘obstructs vehicular or pedestrian traffic
The Court of Appeals has emphasized that the offense of disorderly conduct
focuses on the public dimension. People v Munafo, 50 NY2d 326, 428 NYS2d
924 (1980). Raefski was interfering with ingress to a courthouse; that there
were other magnetometers at the entrance and that his interference may have
been of short duration does not relieve his offense. Cf. People v
Blair, 185 Misc 2d 398, 713 NYS2d 657 (Montgomery Co Ct 2000), lv denied
95 NY2d 904, 716 NYS2d 644 (2000).