FILED: NEWID: EA2641A8-FC69-4426-BC5F-EE54D1D95D42

YORK COUNTY CLERK 05/14/2021 01:12 AM INDEX NO. 154715/2021

DocuSign Envelope
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
----------------------------------------------------------------x
In the Matter of

Benjamin Lawrence Dubin

Petitioner,
VERIFIED PETITION
For Judgment Pursuant to Article 78
Of the Civil Practice Law and Rules

-against-

New York City Police Department (“NYCPD”)

-and-
The City of New York

Respondents,

----------------------------------------------------------------x

PRELIMINARY STATEMENT

1. This Article 78 proceeding pursuant to the Civil Practice Law and Rules, seeks judicial review of

the “Disciplinary System Penalty Guidelines” (also known as the “Disciplinary Matrix”), a policy

document released by the Respondent with an effective date of January 15, 2021, which is one part of

so-called police reform, which ostensibly seeks to assuage public concern of police misconduct by

setting fixed punishments for various forms of police misconduct.

2. Petitioner alleges that the penalties specified in the policy document, specifically pertaining to

misconduct which violates citizens’ constitutional rights, are arbitrarily and capriciously lenient and

therefore unconstitutional, irrational and an abuse of authority. Penalties for some of these violations

1 of 7
FILED: NEWID: EA2641A8-FC69-4426-BC5F-EE54D1D95D42
YORK COUNTY CLERK 05/14/2021 01:12 AM INDEX NO. 154715/2021
DocuSign Envelope
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2021

amount to a proverbial slap on the wrist, specifically, ‘retraining’ and loss of several days of paid time off

(denominated as ‘penalty days’ in the document.) Petitioner holds that substantiated misconduct

reports involving constitutional violations should result in the termination of the responsible officer(s),

as well as a referral to a district or US attorney.

3. The Constitution of the United States is the “Supreme Law of the Land”; therefore, the

respondents should be compelled to treat it as such, and not merely as a collection of hopes and

suggestions, as the penalties imply.

VENUE AND JURISDICTION

4. Venue is New York County, as that is the location of the respondents’ headquarters.

5. This Court has jurisdiction over the matter because the final policy document cannot be further

reviewed by appeal to another court or to some other body or officer. [N.Y. C.P.L.R. § 7801(1)].

PARTIES

6. Petitioner Benjamin Lawrence Dubin is over the age of eighteen years and is a resident of the

City and State of New York.

7. Respondent New York City Police Department is a city agency administered under the New York

City Administrative Code, Title 14.

2 of 7
FILED: NEWID: EA2641A8-FC69-4426-BC5F-EE54D1D95D42
YORK COUNTY CLERK 05/14/2021 01:12 AM INDEX NO. 154715/2021
DocuSign Envelope
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2021

BACKGROUND & DISCUSSION

8. The growing ubiquity of compact digital video cameras within the last ten to fifteen years,

particularly smartphone and fixed surveillance/security cameras, has brought to light many cases of

police misconduct, nationwide, which in the past would not have been properly documented nor

publicized. Videos depicting various forms of misconduct, including murder, are released on a regular

basis.

9. The result of this constant stream of misconduct has been an ongoing public backlash, resulting

in protests, rallies, riots, and various political movements.

10. The 2020 police killings of Brionna Taylor and George Floyd in particular led to massive protests

in this country and around the world beginning in late May, 2020. In response to these protests, on June

12th, 2020, New York Governor Andrew Cuomo signed Executive Order 203 requiring each local

government in the State to adopt a policing reform plan by April 1, 2021.

11. On or around August 31st, 2020, the NYCPD released a draft version of the Disciplinary System

Penalty Guidelines for public comment, attached hereto as Exhibit A.

12. On or about September 3rd, 2020, Petitioner submitted comments via the designated website

during the comment period. Comments are attached hereto as Exhibit B.

13. On January 15th, 2021, the NYCPD released the final version of the Disciplinary System Penalty

Guidelines, attached hereto as Exhibit C, as well as a second document denominated “Process of

3 of 7
FILED: NEWID: EA2641A8-FC69-4426-BC5F-EE54D1D95D42
YORK COUNTY CLERK 05/14/2021 01:12 AM INDEX NO. 154715/2021
DocuSign Envelope
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2021

Developing the NYPD Disciplinary System Penalty Guidelines and Response to Public Comments”, affixed

hereto as Exhibit D.

14. The specific content of the final “Disciplinary System Penalty Guidelines” in controversy are:

a. Page 22: Excessive Force, a violation of the Fourth Amendment, could result in as few as five
‘penalty days’ as ‘punishment’, depending on injury sustained by the victim.

b. Page 24: Intentionally or Recklessly Failing or Refusing to Obtain Medical Assistance, a potential
violation of the Eighth Amendment, could result in a ‘punishment’ of 20 ‘penalty days’ only.

c. Page 26: Improper/Wrongful “Stop of Person”, “Frisk of Person”, “Stop of Vehicle”, “Search of
Vehicle”, “Search/Seizure of Person/Property”, and “Strip Search”, all violations of the Fourth
Amendment, could result in a ‘punishment’ of “Training” only.

d. Page 27: Improper/Wrongful “Unlawful Search/Entry Premises”, “Removal to Hospital -without

Justification”, “Removal to a Medical Facility without Consent or Public Health Need”, all violations of
the Fourth Amendment, could result in a ‘punishment’ of “Training” only.

e. Page 27: Improper/Wrongful “Deletion of Information from a Recording Device” and “Interfere
with a Recording/Recording Device” (preventing a citizen from recording police activity or deleting the
video thereafter), a violation of the First Amendment per Fields v. City of Philadelphia (Third Circuit
Court of Appeals), could result in a ‘punishment’ of 20 penalty days and 10 penalty days, respectively.

15. In addition to the lack of appropriate discipline, and despite the assurances in the “Intersection
with the Criminal Justice System” section of the Matrix, upon information and belief, the NYCPD rarely
refers its members to a District Attorney or US Attorney for incidents involving constitutional violations.
A Freedom of Information Law request for more information regarding how many cases they do refer to
or for external prosecution was denied and the matter is currently pending in this court (Index No.
153191/2021.)

16. An additional concern is that even if the NYCPD were to agree to change their policy to
terminate officers found to violate the Constitution, they would work around the restrictions by simply
not substantiating many complaints or reports. As mentioned on Page 4 of the New York Civil Liberties
Union’s comments on the Matrix, attached hereto as Exhibit E, the NYCPD has a pattern or practice of

4 of 7
FILED: NEWID: EA2641A8-FC69-4426-BC5F-EE54D1D95D42
YORK COUNTY CLERK 05/14/2021 01:12 AM INDEX NO. 154715/2021
DocuSign Envelope
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/14/2021

failing to substantiate large numbers of complaints and routinely downgrades charges that are filed
against their members.

CAUSE OF ACTION: ARTICLE 78 REVIEW OF A FINAL AGENCY POLICY THAT IS UNCONSTITUTIONAL,

ARBIRARY, CAPRICIOUS, IRRATIONAL, AND AN ABUSE OF AUTHORITY

17. Petitioner repeats and realleges every allegation in the preceding paragraphs as if fully set forth
herein.

18. Petitioner has not made a prior application for the relief requested herein.

19. Article 78 is the appropriate method for review of final agency determinations and policies.

20. This Petition is timely under CPLR § 217 as it is filed within four months of the effective date of

the policy document in question.

REQUEST RELIEF

WHEREFORE, Petitioner seeks judgement:

a. Directing Respondent to synchronize the “Disciplinary System Penalty Guidelines” with

the United States Constitution and set a zero-tolerance policy towards any constitutional violation.

b. Directing respondents to take whatever steps necessary to ensure that investigations

regarding constitutional violations are not subverted or obstructed in any way, perhaps by designating

an outside body, such as the Civilian Complaint Review Board, to handle such complaints/reports.

c. Awarding litigation costs (reimbursement of court and process server fees) as per NY

CPLR § 8601 (2012) if this case is decided in the Petitioner’s favor; and

5 of 7