Every village has a gadfly. This gadfly sued his village on Long Island. He claimed the village retaliated against him for speaking out on public matters, in part, by driving a truck into him and arresting him for trespass. But the case is dismissed.
The case is Bartels v. Incorporated Village of Lloyd Harbor, a summary order decided on March 17. Who knows what Bartels spoke out about in the town; the decision does not tell us. But he claims that one day he was on the side of the road taking pictures of a dangerous hanging wire "when a Village dump truck accelerated and veered toward him, causing him to leap over the guardrail" and down an embankment. He also says that on another occasion that two Village police officers retaliated against him for trying to document environmental harm in the Village.
On the truck incident, plaintiff said at deposition that he photographed the truck coming at him. But, the Second Circuit (Hall, Chin and Carney) says, "contrary to that testimony, the first photo clearly reveals the truck veering away from him, rather than toward him." The photographic evidence is conclusive enough that it does not matter what plaintiff said at deposition. Under the Supreme Court's ruling in Scott v. Harris, 550 U.S. 372 (2007), conclusive photos and videos can entitle the defendant to summary judgment even if the plaintiff's testimony would otherwise create a factual dispute for trial.
This is a summary order, so we don't know all the facts, but the first thing that comes to mind here is that if the truck is coming at plaintiff on the side of the road, he would not able to protect himself and take a picture at the same time. He would only be able to take the picture when the truck is veering away from him. I know that people use their cell phones all the time these days and will risk death in order to get a good picture for Instagram, but some people still value life over good photographs. I could be wrong on this. The district court ruling, at 97 F. Supp. 2d 198 (EDNY 2015), does show the full color photographs with the judge's reasoning why the photos kill the claim. The moral of the story is that photographic evidence can entitle the defendant to summary judgment even if the plaintiff's deposition testimony might otherwise entitle him to a trial.
The other claim is that plaintiff was traversing his neighbor's property in a bathrobe and slippers when two Village officers told him he was trespassing. They pursued him, and plaintiff sought refuge in the neighbor's house. On appeal, plaintiff says the officer got out his taser, but in deposition, he saw the officer "screwing around" with something on his belt, maybe a cellphone. No officer touched plaintiff. The Court of Appeals says the gadfly has no case for substantive due process, which requires proof that a government actor did something that shocked the conscience.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.