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ECBAWM Obtains Class Certification for MDC Blackout Plaintiffs

In a ruling on May 25, 2021, U.S. District Judge Edward Korman of the Eastern District of New York granted class certification to a federal lawsuit filed on behalf of people incarcerated in the west building of the Metropolitan Detention Center in Brooklyn (“MDC”) during the eight-day blackout in winter of 2019. To date almost 1,700 people have been identified as class members.

“Taken together, this evidence paints a harrowing picture of prison conditions in the wake of the fire and power outage,” Judge Korman wrote in the Memorandum and Order. “In particular, the evidence describes a series of inhumane and potentially dangerous conditions that affected residents throughout the West Building during the week without power.”

ECBAWM partner Katherine Rosenfeld praised the decision. “Although the BOP treated the people confined in the MDC during the blackout as though they were less than human – leaving almost 2,000 locked in dark, freezing conditions for a week without adequate food, medicine, clothing, blankets, or any way to communicate with their families – the Court’s decision affirms that everyone who experienced this crisis can bring their claim to the federal court with the benefit of counsel,” said Rosenfeld.

The class will be represented by Rosenfeld, ECBAWM partner O. Andrew F. Wilson, ECBAWM associate Scout Katovich, and ECBAWM Justice Catalyst Fellow Sonya Levitova, along with Benjamin N. Cardozo School of Law Professors Alexander Reinert and Betsy Ginsberg.

For information about the class action, including case updates, please visit MDCBlackout.com.

Press
“Inmates Jailed at Brooklyn Federal Lockup During 2019 Freeze, Blackout Certified as Class,” New York Law Journal
“Judge says nearly 1,700 inmates can sue Brooklyn’s MDC jail as a group over freezing conditions in 2019,” New York Daily News
“Class certified over 2019 winter power outage at Brooklyn jail,” Reuters

Article

ECBAWM Files Police Brutality Lawsuit Against NYPD Officers and the City of New York

Emery Celli Brinckerhoff Abady Ward & Maazel LLP has filed a complaint in the Eastern District of New York against the City of New York and New York Police Department Officers for excessive force. The complaint alleges that plaintiff Ernesto Lopez, a respiratory therapist who was working temporarily in New York City helping COVID-19 patients amid the height of the pandemic, was violently assaulted by several NYPD officers while he was peacefully protesting racial injustice and police brutality in Brooklyn on June 3, 2020.

The complaint further alleges that during the protest, unprovoked and without warning, NYPD officers violently assaulted and indiscriminately arrested several protestors, including Mr. Lopez. Though Mr. Lopez did not pose any threat to the officers, they arrested him, struck his head with a baton, and tackled him to the ground.

Police then forcefully restrained Mr. Lopez’s hands, typing zip ties so tight that he lost feeling in his fingers. He spent the next six hours in NYPD detention, where his repeated requests for medical treatment for his head injuries were denied. Additionally, Mr. Lopez’s face mask fell off during the assault and while he was detained, police refused his request to replace his mask despite the risk of COVID-19.

“This is an egregious incident of excessive force and violence committed by the NYPD against a peaceful protestor. It is even more shocking that this assault was carried out against a medical worker who had traveled to New York to help the city and its residents during a time of dire need,” said ECBAWM partner Ilann M. Maazel. “We are confident that these officers will be held accountable for the indiscriminate and unjustified violence committed against Mr. Lopez.”

“This case has key implications for the broader issue of unwarranted violence and excessive force used by the police against civilians exercising their right to peacefully protest,” added ECBAWM attorney Scout Katovich. “We are committed to seeking justice for Mr. Lopez.”

“Though I traveled to New York with the intent to help the sickest New Yorkers at the height of the COVID-19 pandemic, my experience unfortunately resulted in a shocking incident of violence at the hands of those sworn to protect the city and its residents,” said Mr. Lopez. “I’m optimistic that the resolution of this suit will bring justice and peace for myself, as well as for others who have been similarly brutalized by the police.”

Mr. Lopez is represented by ECBAWM attorneys Ilann M. Maazel and Scout Katovich.

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ECBAWM, as Independent Investigator, Releases Report on the City of Rochester’s Response to the Death of Daniel Prude

On September 16, 2020, the Rochester City Council, by Ordinance No. 2020-283, appointed our law firm, Emery Celli Brinckerhoff Abady Ward & Maazel, LLP (“ECBAWM”), to serve as Special Council Investigator to investigate the City’s response to the arrest and death of Daniel Prude. On March 12, 2021, we released our final Report of the Investigation.

The Report reflects six months’ worth of work by ECBAWM lawyers and staff; it is over 50 pages in length, and it contains dozens of factual findings, as well as an analysis of the facts as found. No brief public statement can summarize those findings, that analysis, or the Report as a whole. We urge any interested person to take the time to read the Report in full. That said, when our firm was appointed, we committed that our work would answer the fundamental question that many people in the Rochester community were urgently asking, and that many continue to demand an answer to today:

Did officials of City government suppress information about the arrest and death of Daniel Prude between March 23, 2020, when the arrest occurred, and September 2, 2020, when the Prude family publicly released body-worn camera footage of the incident?
The straightforward answer is yes. The Investigation revealed no explanation that fully accounts for the more than four-month delay between the death of an unarmed man at the hands of Rochester police, and public disclosure of the facts and circumstances under which the death occurred — other than a decision or series of decisions not to make such disclosure.
The Investigation uncovered a great deal of evidence and reached specific, sometimes nuanced, conclusions. Understanding that evidence and those conclusions require consideration of the full Report, with time and attention to detail.

The Investigation was conducted by ECBAWM attorneys Andrew G. Celli, Jr.Katherine Rosenfeld, and Scout Katovich; and was supported by paralegals Kathryn Ravey and Jocelyn Rodriguez.

Supporting documentation for the Report can be found at RochesterInvestigation.com.

Media coverage of this Report has been reported by the Associated Press, the Democrat & Chronicle, and NBC New York.

Article

Celli to Lead Independent Investigation of Rochester City Government in the Wake of the Death of Daniel Prude

The Council of the City of Rochester, New York, has selected ECBAWM’S Andrew G. Celli, Jr. to lead an independent investigation of Rochester city government in the wake of the death of Daniel Prude, a mentally ill man who died in police custody last Spring. The death had been attributed to a drug overdose, but police body camera footage and the report of the Monroe County Medical Examiner released in September show that Mr. Prude died of asphyxia while being restrained by Rochester police. The investigation will focus on whether there was an attempt by any city official or employee to suppress the truth about the circumstances of Mr. Prude’s death. In addition to Mr. Celli, ECBAWM partner Katherine Rosenfeld and associate Scout Katovitch will conduct the investigation. Stories about ECBAWM’s investigation can be found in Spectrum News, the Democrat and Chronicle, and in WXXI News: “City Council to hold listening session about recent events” and “Warren, Singletary, Lupien to testify in independent Prude investigation.”

To see the documents made public, pertinent to this investigation, click here.

ECBAWM also represents the Rochester City Council in defending a case brought by the local police union to invalidate a charter amendment that created an all-civilian Police Accountability Board with the power to discipline officers found to have committed misconduct. You can read about ECBAWM’s work in Rochester in the Democrat and Chronicle.

 

Article

$3.2 Million Settlement Reached in Illegal Wiretap Class Action

A federal class action brought on behalf of individuals whose communications were illegally intercepted through a scheme orchestrated by a former Brooklyn Assistant District Attorney has been settled with New York City and employees of the Kings County District Attorney’s Office for $3.2 million.

ECBAWM attorneys Richard D. Emery, Samuel Shapiro, and Scout Katovich, along with co-counsel Wiggin & Dana LLP, represent the class, whose communications were intercepted as the result of former Brooklyn ADA Tara Lenich creating fake court orders to fraudulently obtain wiretaps for the phones of a detective with whom Lenich had an affair and a woman Lenich believed to be in a romantic relationship with the detective.

Filed in the United States District Court for the Eastern District of New York, the agreement settles Federal Wiretap Act allegations against the City of New York and employees of the Kings County District Attorney’s Office. Ms. Lenich did not participate in the settlement.

You can read more about this case in Law360. The case is Rosenfeld et al. v. Lenich et al. (1:18-cv-06720, E.D.N.Y.).

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Federal Judge Sanctions MDC for Spoliation of Evidence in COVID-19 Class Action Lawsuit

On Tuesday, June 10, U.S. District Judge Rachel Kovner issued her ruling on the motion filed by ECBAWM and co-counsel the Cardozo Civil Rights Clinic, Alexander A. Reinert, and Debevoise & Plimpton LLP, for preliminary injunction in Chunn v. Edge, 20 Civ. 1590 (E.D.N.Y.), a class-action lawsuit challenging the response of the Metropolitan Detention Center (MDC) to the COVID-19 pandemic. While denying the request for immediate relief, which would have released medically vulnerable inmates from the MDC, Judge Kovner also found that responses to requests for medical care had been slow at times and the facility had not isolated all inmates who exhibited COVID-like symptoms. Significantly, Judge Kovner drew an adverse inference against the MDC based on its spoliation of paper records of requests for medical care after the lawsuit was filed and imposed sanctions against MDC. “The court’s sanction of the MDC for spoliating evidence during the litigation is a reminder that prison officials are not above the rules,” said ECBAWM attorney Katherine Rosenfeld, who, along with fellow ECBAWM attorneys Andrew Wilson, Sam Shapiro, and Scout Katovich, represents petitioners and the putative class. You can read the full Law.com article here.

Article

ECBAWM and Co-Counsel File Medical Expert’s Report Finding Serious Failures in Jail’s Coronavirus Response

On April 30, 2020, ECBAWM along with co-counsel the Cardozo Civil Rights Clinic, Alexander A. Reinert, and Debevoise & Plimpton LLP, filed a motion for preliminary injunction in Chunn v. Edge, 20 Civ. 1590 (E.D.N.Y.), a class-action lawsuit challenging the response of the Metropolitan Detention Center (MDC) to the COVID-19 pandemic. The motion seeks relief for medically vulnerable people incarcerated in the MDC and improved conditions. The report submitted in support of the motion by Dr. Homer Venters, a leading expert in health services for incarcerated people, describes the failures of the MDC to appropriately respond to protect the health and safety of people confined in the MDC and staff. After Respondent moved to strike the report, U.S. Magistrate Judge Roanne Mann denied the Respondent’s motion less than 24 hours later.

ECBAWM attorneys Katie Rosenfeld, Andrew Wilson, Sam Shapiro, and Scout Katovich represent petitioners and the putative class.

“Medical Expert: Federal Jail Intentionally Destroying Medical Records and Hiding Extent of Coronavirus Behind Bars,” The Intercept
“Doctor issues damning report on Brooklyn federal jail’s handling of coronavirus outbreak, calling out botched medical response and inadequate protective gear,” New York Daily News
“Brooklyn Judge Finds ‘Cautious Optimism’ in Federal Jail’s Response to COVID-19,” New York Law Journal
“Doctor Sounds Alarm: Conditions Inside Federal Jail In Brooklyn Are Promoting Spread Of COVID-19,” Gothamist

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Class Action Seeks Release of 540 People and Changes to Protect Others Confined at Brooklyn MDC from the Novel COVID-19 Virus

Petitioners Hassan Chunn, Nehemiah McBride, Ayman Rabadi, and Justin Rodriguez filed a class-action lawsuit today against Warden Derek Edge in federal court. The case seeks the immediate release of approximately 540 people most vulnerable to succumbing to COVID-19 and a special master to oversee improvements in the conditions of confinement at Brooklyn’s federal jail, Metropolitan Detention Center (“MDC”), to combat the spread of the virus.

New York City is the epicenter of the Country’s struggle with COVID-19. The risks posed by COVID-19 to people confined in jails and prisons—in terms of transmission, exposure, and harm—are stark and alarming. For reasons beyond their control, people in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain specific products for cleaning or laundry, avoid high-touch surfaces, or sanitize their own environment. People in jails and prisons are more vulnerable and susceptible to the risks of coronavirus because they are more likely to have chronic underlying health conditions, such as diabetes, heart disease, chronic lung and liver diseases, asthma, and lower immune systems from HIV. People have limited opportunities to access medical care under normal circumstances in jails; medical facilities are limited, and as staff become sick, fewer people are present to care for those who remain confined.

The outbreak of a highly infectious, deadly virus in a closed detention setting is a disaster, calling for urgent and decisive action to protect the health of those confined in the jail, those who work there, and the medical professionals who will treat those who become infected.

The lawsuit alleges that Respondent Warden Derek Edge has not taken steps to protect Petitioners from the substantial risk of harm posed by COVID-19, nor could he under the MDC’s current conditions. It seeks immediate relief on the grounds that every hour that Petitioners are held under these circumstances, they are exposed to the substantial risk of a COVID-19 infection, with a substantial risk of death to follow and that continuing to hold vulnerable people under these circumstances violates their Constitutional rights.

ECBAWM attorneys Katie Rosenfeld, Andrew Wilson, Sam Shapiro, and Scout Katovich, together with the Cardozo Civil Rights Clinic, and Alexander A. Reinert, represent petitioners and the putative class.

“Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars,” New York Times

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ECBAWM Attorneys Reach Settlement in Midwood, Brooklyn Housing Discrimination Case

On behalf of their clients Fair Housing Justice Center (FHJC) and five African American testers, ECBAWM attorneys Diane L. Houk and Scout Katovich negotiated a $300,000 settlement of a race and religion housing discrimination case. The federal lawsuit alleged that Defendants ZP Realty Capital, Zev Pollak, and others were discriminating when renting apartments at a building located in the predominantly white Midwood neighborhood. The plaintiffs alleged that none of them were shown apartments even though Defendants showed white testers vacant apartments. They also alleged that Mr. Pollak referred to the apartments as being in a “Jewish building.” The settlement requires the defendants to institute fair housing practices, including to publicly advertise when apartments are available to rent.

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ECBAWM Files Suit Against US Immigration and Customs Enforcement Officer on Behalf of Erick Diaz Cruz, an Unarmed 26-Year-Old Man from Mexico Shot in the Face by an ICE Officer

On February 19, 2020, ECBAWM filed suit on behalf of Erick Diaz Cruz, an unarmed 26-year-old Mexican man, who was shot in the left hand and cheek by a U.S. Immigration and Customs Enforcement officer in Gravesend, Brooklyn. As detailed in the complaint, the shooting occurred on the morning of Thursday, February 6, 2020, while Mr. Diaz Cruz was on vacation with his girlfriend visiting his mother on a valid tourist visa.

“Along with millions of New Yorkers, we are heartbroken and sickened by ICE’s senseless and unjustified shooting of Erick,” said ECBAWM partner Katie Rosenfeld. “A young, hard-working and law-abiding man was gunned down on the streets of Brooklyn in broad daylight in front of his family, shot in the face at point-blank range, by an agent of the United States government. Erick posed no threat to anyone, at any time. Erick’s face is shattered, and he and his family are traumatized. We are a nation of laws, equality, and justice; Erick’s case demands that we live up to those values.”

“Erick was the victim of a horrific and life-threatening attack,” Scout Katovich, an ECBAWM associate working on the case, added. “We hope this lawsuit will send a message that ICE cannot violate the U.S. Constitution with impunity.”

ECBAWM’s Katherine Rosenfeld and Scout Katovich represent Mr. Diaz Cruz in the suit.

Press Release
“Tourist shot in the face by ICE agent during family friend’s arrest files lawsuit,” ABC News
“NYC man shot in the face during ICE immigration raid sues agency,” New York Daily News

 

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