by Nathan Tempey in News on Sep 3, 2016 11:00 am
A surveillance video still that purportedly shows the police officer, right, who cold-cocked a man at Tonic East in September 2013. (James Mattone)
Two men are suing the city after they say a group of belligerent, homophobic drunk people attacked them at a Kips Bay bar; a police officer who was with the group broke one of their jaws, and the NYPD failed to investigate the attack.The attack took place early one Saturday morning in September 2013 at a sports bar called Tonic East on Third Avenue, according to lawsuits filed by the victims, Carlos Hurtado and Andrew Melendez, then 24 and 25, respectively. At about 3 a.m., 15 minutes prior to the bar closing, a group confronted the pair and shoved them, shouting anti-gay slurs, according to the suits. The two then left the bar and again found themselves face-to-face with the unruly group, who court papers say continued to attack Melendez and yell anti-gay vitriol at him.
Hurtado says he tried to come to the aid of his friend, but was stopped by a man who identified himself as a cop. The man then allegedly punched him so hard that his jaw broke in four places.
The two escaped and managed to make it to Jacobi Hospital for treatment. There, they say police interviewed them, and one of the officers purportedly said he believed one of the assailants could have been a cop. Thus began an internal NYPD probe that the victims’ lawyer says in a federal suit was clearly not a “true comprehensive investigation.”
Despite police having surveillance footage immediately following the attack, “No photos were ever posted to my knowledge in any type of newspaper,” lawyer James Mattone said. “I had called and requested that be done. I called Crime Stoppers and asked them if they would post the photo. They said, ‘We’re a police organization. We don’t do that.'”
When he called the NYPD Internal Affairs office, he said, “It was always, ‘The detective on that is not in,’ or, ‘The detective has a family member who is sick,’ or, ‘The case has been reassigned.’ I never had someone to call who had been with the case from the beginning and was familiar with all the facts.”
The video allegedly shows the officer flashing his badge to a bouncer after the attack, then leaving the scene. (James Mattone)
Mattone sued for personal injury damages on behalf of the men in Manhattan state court back in early 2014, after the NYPD denied his public records request for the investigation documents. That lawsuit names the bar as well as the MTA, Port Authority police, and the NYPD. The NYPD has continued to fight turning over its investigation files even though, Mattone said, the investigation is now closed after having been reassigned five times.”I worked as an assistant district attorney, so I understand that information can’t be provided when an investigation is ongoing,” he said, “but this is different.”
The state case is still dragging on—in June Judge James D’Auguste ordered the NYPD to turn over the investigation documents for him to review in private—and, facing the statute of limitations running out, Mattone filed a federal civil rights suit on Thursday.
The case is important, he said, because:
[Hurtado’s] jaw was broken. He had to have surgery. The individual identified himself as a police officer. My client, after being told that he was a police officer, felt that he was in a secure situation. After that [the cop] cold-cocked him. I have this on video: after he cold-cocked him, he flashed his badge to the bouncer and left. This is extremely important given the fact that the officer, after stating that he was an officer, violated his duties and violated my clients’ constitutional rights. And also given the fact that there were anti-gay slurs going on at this time.
Mattone had accused Tonic East of serving the group of attackers after they were visibly intoxicated, in violation of the Dram Shop Act, and failing to properly restrain them. The bar has settled with the men on terms that Mattone declined to disclose. The MTA has successfully gotten taken off the case. Both cases are proceeding against the NYPD and the as-yet-unidentified assailants.
In the civil rights case, Mattone says the NYPD “failed to properly investigate,” and failed in its management duties by allowing such a loose cannon in its ranks and failing to identify and discipline him after the assault. In the city’s response to the state case, city lawyers wrote that the victims’ “culpable conduct caused or contributed, in whole or in part, to [their] injuries,” that they, “knew or should have known…of the risks and dangers incident to engaging in the activity” (of drinking at a bar, apparently), and besides, that the NYPD is immune from liability because it has a right to discretion in its investigations.
The Law Department says it’s reviewing the latest lawsuit.