The New York Law Journal by Mark Fass - July 24, 2009
A lawyer who was arrested in a Queens courtroom after calling a court officer an obscene name has successfully sued New York state for false arrest. The underlying incident took place in the courtroom of now-retired Queens Civil Court Judge Steven Gottlieb on Sept. 30, 2005. Joseph A. DePaula, an East Norwich solo practitioner, had arrived in the courtroom, the Civil Court's calendar part, shortly after 10 a.m. Mr. DePaula sat in the last row of benches on the aisle seat, waiting to be called. His phone rang and he answered it. Mr. DePaula and the court officer who soon thereafter arrested him, Charles Rey, provided differing accounts at trial regarding what happened next. Both agreed that Officer Rey confiscated Mr. DePaula's phone. And both agreed that Mr. DePaula used an expletive in referring to Officer Rey. Officer Rey testified that he twice asked Mr. DePaula to step out of the courtroom, that Mr. DePaula twice refused and that Officer Rey therefore placed him under arrest.
The 16-year veteran of courtroom security said he handcuffed Mr. DePaula, escorted him out of the courtroom and held him in a security room for 15 minutes, during which he gave Mr. DePaula a summons charging him with disorderly conduct. Officer Rey testified that he asked Mr. DePaula to leave the courtroom not because of the name-calling but because the attorney was causing a disturbance. For his part, Mr. DePaula denied the court officer asked him to leave the courtroom before handcuffing him and placing him under arrest. He also denied attempting to provoke Officer Rey by calling him a name. Rather, as he explained to the court, he was merely using the epithet in an attempt to convey that the officer was a "contemptible, disagreeable, obnoxious person." A judicial hearing officer acquitted Mr. DePaula of disorderly conduct. His present action against the state for false arrest and malicious prosecution ensued. In a decision handed down earlier this month, Court of Claims Judge S. Michael Nadel found the state liable for false arrest. The judge, however, threw out the malicious prosecution charge, citing a lack of malice. Judge Nadel ruled that, under People v. Tarka, 75 NY2d 996, a mere slur did not constitute sufficient probable cause for Officer Rey to arrest Mr. DePaula. "While the requisite intent might be established by the Court officer's version of the [events], upon consideration of the conflicting testimony, the defendant has not established that the arrest was based upon anything more than the words spoken by [DePaula]," Judge Nadel wrote in DePaula v. State of New York, 11765.
"The preponderance of the credible evidence establishes that Mr. DePaula's utterance was spoken in a conversational tone, and that he did not refuse the Officer's request to leave the courtroom before he was placed under arrest." Mr. DePaula did not return a call for comment. His attorney, Laurence Jacobson, said a hearing has been set for Aug. 3 to determine damages, which he said could be significant. "It's damn embarrassing," Mr. Jacobson said of the arrest, "and it's frightening, also." Assistant Attorney General Robert Schwerdt represented the state. A spokeswoman for the attorney general's office declined to comment. Dennis Quirk, the president of the New York State Court Officers Association, said Judge Nadel's decision, like Mr. DePaula's earlier acquittal, demonstrated the way the scales of justice inequitably balance in favor of attorneys. "The officer was doing his job appropriately," Mr. Quirk said. "Because [DePaula] was an attorney, he received preferential treatment. Attorneys are no better than anybody else. They're not supposed to use their phones in the courtroom. We did what we were supposed to do." Mark.Fass@incisivemedia.com