Articles Posted in Assaults and Excessive Force

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Passed in January 2019, the New York Child Victims Act extends the statute of limitations to prosecute sexual abuse against children. Under the new provisions, individuals who experienced sexual violence as children can seek justice from their attackers as adults. Before the passage of this act, the time frame expired before many child victims were able to come to terms with and report the sex crimes against them.

Updated Statute of Limitations

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Under the Child Victims Act, New York residents can file civil lawsuits against their childhood abusers any time before age 55. They can also seek criminal prosecution up to age 28. Victims previously lost their right to sue at age 22. This act also introduced a one-year grace period during which New York would accept childhood sex abuse claims from victims of any age, including those who previously failed to file a claim before the statute of limitations. In June 2020, the state legislature voted to extend this grace period until August 14, 2021, further opening opportunities for adult victims to have their voices heard.

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Well-maintained security systems and adequate lighting are only a few examples of safety measures property owners are required to implement to provide a safe environment for customers, visitors, and/or residents. If they neglect to maintain a secure environment and these conditions result in rape or sexual assault, victims can build a premise liability case against the property owner. Sexual assault is a traumatic experience, often resulting in both physical and emotional injuries. Victims can build a case to receive possible compensation for medical bills, pain and suffering, lost wages, and other damages resulting from their assault.

Common Locations Involving Assault Cases

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While sexual assault and other criminal activity can occur almost anywhere, there are certain types of locations that may be more prone to these cases. Property owners in certain locations should be aware of the possibility of assault and other illegal activities that are more likely to occur on their property. Typical locations may include:

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Unfortunately, police misconduct does happen—and it can result in serious consequences, not least of all wrongful arrests, for those who are victimized. However, victims aren’t sentenced to silence; reports can be submitted and used to protect civilians and their communities from further aggression. Learn how you can file a report in the event you experience or witness misconduct.

Prerequisites

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One of your greatest aids in filing a report will be recording the details of the event as accurately and as soon after the misconduct as possible. Be exact, and know how to contact other witnesses if you need them. It pays to be calm and collected when chronicling this information, so also take care to sort the facts from your feelings as well as you can. Prepare to make copies of your account and the actual complaint later.

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Depending on the nature of the crime and the circumstances of the arrest, it’s not uncommon for police officers to use some amount of force during the process. However, there are stringent laws concerning the amount of force officers may use, and the use of excessive force may be grounds for legal action.

Use of Force SpectrumPolice car flashing its lights while parked on the street in a busy area

The U.S. Supreme Court recognizes that police have the right to use “some degree of physical coercion or threat” during arrests or investigative stops. However, police can only use an amount of force that is in proportion to the threat that is present. Police officers are meant to abide by the use of force spectrum, with level one being officer presence, level two being verbal commands, and level three being empty-handed control. If the threat is escalated, police officers may use level four, which is pepper spray, batons, or Tasers. Only the highest of threats should be addressed with lethal force like firearms.

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As I read the recent stories across the county of police officers using excessive force and taking the life of two men; I was reminded of the events of August 12th, 2012 right here in the Bronx.  28 year old, Eddie Fernandez, enjoying a day in his neighborhood was run down by a NYPD Police officer who decided to use his vehicle as a dangerous weapon and take the life of this young man.

Whether it was the shooting death of Alton Sterling in Baton Rouge, Louisiana, or the killing of Philandro Castile in St. Paul, Minnesota, the ongoing debate rages around the country.  When should or can a police officer use a level of force they know will or likely to cause serious injury.   Under the general definition an officer may use deadly force when he or she is threatened with the same force or the perpetrator is acting in a way that causes a likelihood of serious injury to others.

When my firm was retained by Eusebia Ramirez to represent her on behalf of her son, Eddie Fernandez for the unlawful and excessive force used, I immediately hoped that some video would exist that would show what happened that day.  Luckily, video surveillance does exist and the story it tells, rivals those recently shown around the country in the recent shootings.

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On May 25th, 2016 famed rapper TI was set to perform at Irving Plaza in NYC.  From early reports one person was shot and several others injured when an argument escalated into a fight which then turned into a shooting and chaos.  TI was not involved directly in the argument or fight.

The fight, CNN reported, erupted outside a green room, reserved for rappers scheduled to perform.  After at least 5 minutes of fisticuffs the fight turned deadly when a gun was pulled and people scrambled to escape harm.

Leav & Steinberg, with a solid reputation in representing victims of similar incidents in and around NYC, was recently retained by several  victims injured at Irving Plaza.  Just this year, the firm resolved a matter involving another rap concert billed as a gangster party in New York City.  Several were shot and others injured in the stampede.  We recently reported about this problem in New York and around the country.  See this link.

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New York’s Dram Shop law is found in Section 11-101 of the General Obligations Law. Dram Shop laws are strict liability statutes that allow for alcohol vendors to be held liable for their violations in serving people alcohol who are visibly intoxicated or are actually or apparently under 21 years of age. Courts allow for people who are injured as a result of the vendor’s violation of these laws to bring suit for their damages. New York’s law is distinctive in that it allows for a third-party who may never have had any contact with the bar themselves to sue for injuries caused to them by the bar’s intoxicated patrons.

A case brought pursuant to the Dram Shop law is difficult to prove; it requires a showing that the injured person was harmed by an intoxicated person, that there was an unlawful sale of alcohol by the vendor, and the sale of alcohol contributed to the person’s intoxication.

In our most recent Dram Shop case, the plaintiff was sitting at a bar in Brooklyn, when he observed a visibly intoxicated patron continuing to order and be served drinks by the bartender. The patron became more and more intoxicated, and eventually assaulted the plaintiff with a glass. The glass broke and caused the Plaintiff to subsequently lose his eye. Leav & Steinberg presented this evidence to the Court who agreed that the Plaintiff was entitled to a recovery. A judgment was obtained for $1,200,000.

 

 

 

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Recently, Leav & Steinberg, LLP were successful in resolving a case involving a shooting and stampede at a New York City Dinner Club.  The event was advertised to the general public as a hip hop/rap concert.  The advertisement and public ads showed “hip hop gang bangers”; certainly a vision of what the night would be like.  Sadly the club security was lacking any appropriate steps to ensure that weapons were not brought in.  In fact, there were no female security guards and anyone entering would be free to give a female guest a weapon and she would be able to walk right in.

A fight broke out, several people were shot and a resulting stampede resulted in several people being seriously injured while trying to flee for their safety.

Similarly, in Galveston Texas club owners didn’t beef up security for a show featuring two rival rap groups and an aspiring emcee was shot in the head in a fight that could have been expected, his mother claims in court.

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It was with great anger that I read the article from the NY Times discussing a South Carolina man who was fatally shot by a police officer after being pulled over for a broken taillight on his vehicle. As Walter Scott the driver was outside the vehicle, a scuffle ensued. Certainly we would expect the officer to use that force necessary. However, due to video captured by a bystander, Mr. Scott is seen running away, when Officer William Slager fires multiple shots at him when he is at least 15-20 feet away. What is captured on video next is terrible.

The officer approaches Mr. Scott see that he has been wounded, handcuffs him, but then walks back to where the vehicle was, picks up his Taser gun and drops it right at the foot of a dying Mr. Scott. This, he hoped, would be his alibi that he feared for his safety and that Mr. Scott had used the Taser on him and fled with it.

Officer Slager is being charged with murder.

The brazen acts of this officer are both shocking and upsetting. It reminded me of the matter in which my firm, Leav & Steinberg, LLP is representing the Estate of Eddie Fernandez who was killed by NYPD Office McClain in August 2012. At that moment, Eddie was riding away on his dirt bike, when officer McClain, who had already used his police vehicle to strike one dirt bike rider, makes a U-turn and crosses into oncoming traffic and strikes the back of Eddie’s dirt bike with his vehicle. Clearly using his vehicle as a deadly weapon. Eddie died as a result of the very serious injuries sustained. A young man, who had taken care of his mother was gone. The distraught family has sought criminal and civil charges against Officer McClain and also Federal Civil Rights violations against the officer and the NYPD.

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Regardless of where one sits on the issue of rights to domestic partners, there have been some current legislative activities in the New York state legislature that people should give some attention. The New York State Assembly Bill # A04024 is a bill intended to amend the executive law, “in relation to eligibility of domestic partners for compensation from the crime victims’ board, introduced in January 2014.”

This bill allows for domestic partners to be eligible to receive awards under the crime victims compensation allocation. On April 24, 2013, this bill passed the New York State Assembly and was delivered to the New York State Senate for consideration.

The New York State Office of Victim Services is the state entity involved with providing legal recourse and compensation for victims. There is a laundry list of eligibility requirements as well as a list of what a victim may be entitled to. That list includes:

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