USDC SDNY ARES DOCUMENT a See BB eens: ELECTRONICALLY FILED © eee DATE FILED: 7/17/2023 —
—————————— JAMES R. MURRAY Corporation Counsel THE CITY OF NEw YORK Assistant Corporation Counsel LAW DEPARTMENT Phone: (212) 356-2372 100 CHURCH STREET iamunavale □□ □ °° NEW YORK, NY 10007 May 10, 2023 VIA ECF Honorable Lewis A. Kaplan United States District Judge United States District Court Application GRANTED. Permission to file these documents under se Southern District of New York was previously granted per ECF No. 27. SO ORDERED. 500 Pearl Street Dated: 7/17/2023 fh New York, NY 10007 fart A. Re: Jose Joseph v. City of New York, et al. 22 Civ. 9670 (LAK) (SDA) Your Honor: I am an Assistant Corporation Counsel in the Office of the Honorable Sylvia O. Hinds- Radix, Corporation Counsel of the City of New York, and the attorney for Defendants City of New York, Alexander L. Shopiro, Saher Y. Abumalouh, Michael J. McDermott, Michel T. Brosnan, and Marlon O. Larin in the above-referenced matter. Defendants respectfully write, with Plaintiff's consent, to request permission to file certain documents under seal and in redacted form in connection with their Rule 12(c) motion, which will be filed on May 12, 2023. A) Background By way of background, Plaintiff—who was a New York City Police Department officer at the time of the incident—alleges that the defendants, among other things, falsely arrested and maliciously prosecuted him after a complaining witness accused him of committing strangulation in the second degree. ECF No. 1. Defendants answered the Complaint on March 6, 2023 and incorporated into their Answer, among other things, a bodycam video captured by Officer Amanda DiFrancesco—an officer who spoke to the victim on the date of the incident—and a domestic incident report (“DIR”) signed by the victim. ECF No. 19. Defendants moved to file the bodycam video under seal annexed as an exhibit to their answer and to redact the victim’s address and name, except for her initials, from the DIR on March 6, 2023. ECF No. 20. The Honorable Stewart D. Aaron granted Defendants’ request on March 13, 2023. ECF No. 27. On April 4, 2023, Defendants filed a proposed briefing schedule for their anticipated judgment for a motion on the pleadings. ECF No. 28. That briefing schedule was endorsed the following day and Defendants’ current deadline to file their Rule 12(c) motion is May 12, 2023. ECF No. 30. Defendants intend to submit two exhibits to their Rule 12(c) motion—Officer DiFrancesco’s bodycam and the DIR, both of which are currently filed under seal before Judge
Aaron as exhibits to Defendants’ Answer.1 Because those exhibits have been incorporated into Defendants’ Answer, the Court may consider them when ruling on Defendants motion for a judgment on the pleadings. Adams v. City of New York, 2003 U.S. Dist. LEXIS 5012, at *3-4 (S.D.N.Y. Mar. 31, 2003) (considering on a Rule 12(c) motion two NYPD Internal Affairs Bureau reports attached to the City of New York’s answer, but not to the plaintiff’s complaint). Accordingly, Defendants now seek permission to file Officer DiFrancesco’s bodycam video under seal and to file the DIR in redacted form as exhibits to their Rule 12(c) motion. B) Governing Law In Lugosch v. Pyramid Co., 435 F3d 110, 118-120 (2d Cir. 2006), the Second Circuit established a three-part framework for determining when a party may file a document under seal. First, a Court must consider whether the document at issue is a “judicial document.” Id. at 115. “[A] document filed with the court is a judicial document if it would reasonably have the tendency to influence a district court's ruling on a motion….” Olson v. Major League Baseball, 29 F.4th 59, 89 (2d Cir. 2022) (italics in original) (citations and internal quotations omitted). If a document is judicial, then it is entitled to a presumption of access under federal common law and the First Amendment. Lugosch, 435 F3d 110 at 113. Once a court determines that a document is entitled to a presumption of access, it must consider what weight to afford that presumption. Id. at 119. The presumption is weightiest when the document at issue “can fairly be assumed to play a role in the court's deliberations” on a dispositive motion. Id. at 123. “Finally, after determining the weight of the presumption of access, the court must balance competing considerations against it.” Lugosch, 435 F3d 110 at 120. A court will seal a record if doing so “is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim.” Id. at 124. The Second Circuit has “previously held that ‘the privacy interests of innocent third parties . . . should weigh heavily in a court's balancing equation.’” United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (quoting Gardner v. Newsday, Inc. (In re Newsday, Inc.), 895 F.2d 74, 79-80 (2d Cir. 1990). C) Argument Here, the Court should grant Defendants leave to file Officer DiFrancesco’s bodycam under seal and to redact the victim’s address and name, except for her initials, from the DIR because the proposed remedies are narrowly tailored to protect the third party victims’ privacy interests. The body camera footage shows the victim’s interaction with officers who responded to her 911 call and depicts injuries to her neck and chin, shows the inside of her mother’s home, and captures her statements about a past instance of domestic abuse committed by a non-party. Defendants have a strong interest in withholding the complaining witness’s full name and filing the bodycam video under seal because the public disclosure of such sensitive information could disincentivize others from reporting domestic violence. This is especially true given that the victim is a non-party and has therefore not put her identity at issue in this matter. 1 In accordance with the Court’s individual rules, Defendants have submitted the proposed redacted version of the DIR as an exhibit to this letter and will submit Officer DiFrancesco’s bodycam to chambers under separate cover. The proposed remedy—redacting the victim’s address and name, except for her initials, from the DIR and filing the bodycam videos under seal—is narrowly tailored to protect the victim’s privacy. Redacting the DIR in the proposed manner would protect the victim’s identity while allowing the public to view her allegations. This comports with the rationale behind the presumption of public disclosure, as it would allow members of the public to “assess the correctness” of a judge’s decision made based on the DIR. Lugosch, 435 F.3d 110 at 123 (explaining that “[i]f the rationale behind access is to allow the public an opportunity to assess the correctness of the judge's decision . . . documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge's decision.). Though the public would not be able to view any part of the bodycam footage if it were filed under seal, there is no expedient way to remove only the sensitive information from the footage. Even if the Defendants could remove only the sensitive information, the remaining portions of the videos would be virtually useless to any member of the public seeking to assess the merits of this case. Accordingly, Defendants respectfully request leave to file Officer DiFrancesco’s bodycam video under seal and to redact the victim’s address and name, except for her initials, from the DIR. Thank you for your consideration herein. Respectfully submitted, James R. Murray_ s/____ James R.
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USDC SDNY ARES DOCUMENT a See BB eens: ELECTRONICALLY FILED © eee DATE FILED: 7/17/2023 —
—————————— JAMES R. MURRAY Corporation Counsel THE CITY OF NEw YORK Assistant Corporation Counsel LAW DEPARTMENT Phone: (212) 356-2372 100 CHURCH STREET iamunavale □□ □ °° NEW YORK, NY 10007 May 10, 2023 VIA ECF Honorable Lewis A. Kaplan United States District Judge United States District Court Application GRANTED. Permission to file these documents under se Southern District of New York was previously granted per ECF No. 27. SO ORDERED. 500 Pearl Street Dated: 7/17/2023 fh New York, NY 10007 fart A. Re: Jose Joseph v. City of New York, et al. 22 Civ. 9670 (LAK) (SDA) Your Honor: I am an Assistant Corporation Counsel in the Office of the Honorable Sylvia O. Hinds- Radix, Corporation Counsel of the City of New York, and the attorney for Defendants City of New York, Alexander L. Shopiro, Saher Y. Abumalouh, Michael J. McDermott, Michel T. Brosnan, and Marlon O. Larin in the above-referenced matter. Defendants respectfully write, with Plaintiff's consent, to request permission to file certain documents under seal and in redacted form in connection with their Rule 12(c) motion, which will be filed on May 12, 2023. A) Background By way of background, Plaintiff—who was a New York City Police Department officer at the time of the incident—alleges that the defendants, among other things, falsely arrested and maliciously prosecuted him after a complaining witness accused him of committing strangulation in the second degree. ECF No. 1. Defendants answered the Complaint on March 6, 2023 and incorporated into their Answer, among other things, a bodycam video captured by Officer Amanda DiFrancesco—an officer who spoke to the victim on the date of the incident—and a domestic incident report (“DIR”) signed by the victim. ECF No. 19. Defendants moved to file the bodycam video under seal annexed as an exhibit to their answer and to redact the victim’s address and name, except for her initials, from the DIR on March 6, 2023. ECF No. 20. The Honorable Stewart D. Aaron granted Defendants’ request on March 13, 2023. ECF No. 27. On April 4, 2023, Defendants filed a proposed briefing schedule for their anticipated judgment for a motion on the pleadings. ECF No. 28. That briefing schedule was endorsed the following day and Defendants’ current deadline to file their Rule 12(c) motion is May 12, 2023. ECF No. 30. Defendants intend to submit two exhibits to their Rule 12(c) motion—Officer DiFrancesco’s bodycam and the DIR, both of which are currently filed under seal before Judge
Aaron as exhibits to Defendants’ Answer.1 Because those exhibits have been incorporated into Defendants’ Answer, the Court may consider them when ruling on Defendants motion for a judgment on the pleadings. Adams v. City of New York, 2003 U.S. Dist. LEXIS 5012, at *3-4 (S.D.N.Y. Mar. 31, 2003) (considering on a Rule 12(c) motion two NYPD Internal Affairs Bureau reports attached to the City of New York’s answer, but not to the plaintiff’s complaint). Accordingly, Defendants now seek permission to file Officer DiFrancesco’s bodycam video under seal and to file the DIR in redacted form as exhibits to their Rule 12(c) motion. B) Governing Law In Lugosch v. Pyramid Co., 435 F3d 110, 118-120 (2d Cir. 2006), the Second Circuit established a three-part framework for determining when a party may file a document under seal. First, a Court must consider whether the document at issue is a “judicial document.” Id. at 115. “[A] document filed with the court is a judicial document if it would reasonably have the tendency to influence a district court's ruling on a motion….” Olson v. Major League Baseball, 29 F.4th 59, 89 (2d Cir. 2022) (italics in original) (citations and internal quotations omitted). If a document is judicial, then it is entitled to a presumption of access under federal common law and the First Amendment. Lugosch, 435 F3d 110 at 113. Once a court determines that a document is entitled to a presumption of access, it must consider what weight to afford that presumption. Id. at 119. The presumption is weightiest when the document at issue “can fairly be assumed to play a role in the court's deliberations” on a dispositive motion. Id. at 123. “Finally, after determining the weight of the presumption of access, the court must balance competing considerations against it.” Lugosch, 435 F3d 110 at 120. A court will seal a record if doing so “is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim.” Id. at 124. The Second Circuit has “previously held that ‘the privacy interests of innocent third parties . . . should weigh heavily in a court's balancing equation.’” United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (quoting Gardner v. Newsday, Inc. (In re Newsday, Inc.), 895 F.2d 74, 79-80 (2d Cir. 1990). C) Argument Here, the Court should grant Defendants leave to file Officer DiFrancesco’s bodycam under seal and to redact the victim’s address and name, except for her initials, from the DIR because the proposed remedies are narrowly tailored to protect the third party victims’ privacy interests. The body camera footage shows the victim’s interaction with officers who responded to her 911 call and depicts injuries to her neck and chin, shows the inside of her mother’s home, and captures her statements about a past instance of domestic abuse committed by a non-party. Defendants have a strong interest in withholding the complaining witness’s full name and filing the bodycam video under seal because the public disclosure of such sensitive information could disincentivize others from reporting domestic violence. This is especially true given that the victim is a non-party and has therefore not put her identity at issue in this matter. 1 In accordance with the Court’s individual rules, Defendants have submitted the proposed redacted version of the DIR as an exhibit to this letter and will submit Officer DiFrancesco’s bodycam to chambers under separate cover. The proposed remedy—redacting the victim’s address and name, except for her initials, from the DIR and filing the bodycam videos under seal—is narrowly tailored to protect the victim’s privacy. Redacting the DIR in the proposed manner would protect the victim’s identity while allowing the public to view her allegations. This comports with the rationale behind the presumption of public disclosure, as it would allow members of the public to “assess the correctness” of a judge’s decision made based on the DIR. Lugosch, 435 F.3d 110 at 123 (explaining that “[i]f the rationale behind access is to allow the public an opportunity to assess the correctness of the judge's decision . . . documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge's decision.). Though the public would not be able to view any part of the bodycam footage if it were filed under seal, there is no expedient way to remove only the sensitive information from the footage. Even if the Defendants could remove only the sensitive information, the remaining portions of the videos would be virtually useless to any member of the public seeking to assess the merits of this case. Accordingly, Defendants respectfully request leave to file Officer DiFrancesco’s bodycam video under seal and to redact the victim’s address and name, except for her initials, from the DIR. Thank you for your consideration herein. Respectfully submitted, James R. Murray_ s/____ James R. Murray Assistant Corporation Counsel New York City Law Department 100 Church Street, Room 3-183 New York, New York 10007 (212)356-2372 jamurray@law.nyc.gov CC: BY ECF All counsel of record i NAAPO |A DOMESTIC INCIDENT REPORT | SG ee YO AOAOO Nd 9 AAS awe OIOLYIOVOLAUO ——__ ) TACT enact =H i LA al STE
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Sind □□□ ek vate 60) Ch wart Jeivimate Partner Dating C Fonesty Mamed F ormer intimate P _— | ete are) vi we Emotional condition of VICTIM? □□□ Upset Nervous Crying C1 Angry £1 Other What were the first words ff a VICTIM said to the en fing om ers atthe scans clea aa fod TM) FRE CLE pO CALLCD Q\\ Did suspect make wictim feartu > Fves ON > yes describe Weapon Used? Yes Tie Gur Yea C] No Other. describe: == Suspect Tiresia? Yeu Yes 1h pia 10 Access to Guns7y-Yes Cl No tee ae vino □□ = □ Pea foment Suacich Yes No ifyes, describe ie Stranguiation? Fe SU No GL Loss pf Consciousness Ci UrmationDetecation ery = _ | Ret evew/Petechia CO) Sore Throat YK ereathing haregend Datheutty Swallowing No if yes, descrite Visible si 37 au No MW yes, describe What did the SUSPECT say (i nd After Acres ener ROOT, PRESEM' 710.30 completed: Yes L WN
describe the circumstances of ts incident FT T Tr! Sinnott PMO 7) {UO 5 POrrRTENO, GOT IN PREMMONT AGOO tim BEINGS FRITH COLD NOT OVE: P\ OZO@tD. AN LOE AT WAR.) THE BARAK me PROVE, BEGIN PULCIENS He w COSMO FIST TD 2rQS ano BACK, PLDC HONEO rfho2 a Ne _BoTH WES. ANA > PPOLND Hod NECK CAUSING TiO ID LOSE COLSCICUSNESS PROP | SaStee ThOLEEES. Pl STARS. 02 CHORD THe □□□ □□□ □ OF Wok PADS. P\ Po. We Nite Pe Se = Percee. PL RM AC DIS 20S1 136 Sree # v\Om| NISSAN SN CLUBS IN Ate Bans. | □□ \ Chit □ D) cerpecrx 1G, Seca NPD hex: i Yes Fl No Onder of Protechon Registry checked? Cl Yes i No —— Ree —— a i: 1h ot injur ar Evidence: ) Dama ed Property J Videos Destruction of Property? © Yes □□□□□ ene poe _ taken victim injury Suspect injury ec 7 oe ini: toiaerioe Yea = oO ver a Wino ‘onse 1 Law PL | Offense 2 | Law jog □□ ‘Commuted? Was suspect arrested? | Ye! No cones □ acy) : - if xo, eauphaniry Se WAT 1 \ ’ i i cae yer at. ; =) HOH? 6 32721.02016 C56 C = ‘s if appropriate) vs DOMESTIC AND SEXUAL VIOLENCE HOTLINE ’ 56 Copyright © 2016 by NYS DCIS COPY (Piaase mane 0 copy for DAS SASS
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hee. Ae. ene ee pripr domestic incidants with this suspect (ea Werst, First)
eee ee Has Suspect evar: ear ee eel you? eX po Cl Mo Threatened to kil! you or your children? C] Yes [ ric Is a ee — in frequency ot severity over the past 6 months? Strangled or “choked” you? Yrres No Has the physical violence inc Tt Beaten you while you were pregnant? () Yes No □□ there cause to suspect a chikd may be the victim of abuse, neglect, maltreatment or endangerment? (J Yes WANo the Officer must contact the NYS Child Abuse Hotline Registry # 1-800-635-1522. DIR given to the Victin at the scene? ewes O No if NO, Why Was Victim Rights Notice given to the Victini? Yves D1 No if NO, Why
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STATEMENT OF ALLEGATIONS/SUPPORTING DEPOSITION are encouraged to assist the Victim in completing this section of the form Name cos ini ni said (Victim/Deponent Name) state that on |“) /O | | LG , (Date) (Location of incident) in the □□□□□□□□□□□□□□□□□□□□□□□□□ NOVY ite, (VL of the State of New York, the following did occur: | VUICIS Ar anc tC y Rot, JOSS, CVeM Hint Me wes ANS ugh Wwe qaclh wo CONT Ora ro, Orc an Uo|er CE.COUSt WOS, uncer cay MTtIUENE . LENO Here k bx COS Stavece| +S Fd eee mt Ort \AIOFR, we Owed WATCIM Cl AYA Bicone OUT m+ cunel □ Cee cloc| 10 Sleyo cinkl Chore. MOA. | \VaSt 'cCOoNcicubness | \. WON \WUO0Ke tye JKC VAR OO, mr AW Se roa ge \\) SRePereHROS Oi SO an CY Muy Poort JES tO\C Fn Aytty 2 Cancel AAT IAL □□□□□ PUORWAL an ARS arg\ proacee clecl tO KR SY Ane | AC iS NewS inte mi SEAT) AIA Me vag yer Fd Gre On viety Al OWN) MA) ny nin: ) eae €¢ hin, Mm rWoUe TL fuse eccitionst page 28 needed) made herein a able as a A rt pursuant to section 210.45 of the Penal Law. aa Signature a — a ee ——— “ i ad. this DIR Form | □□ i a | □□□□ |