Thursday, November 8, 2007

The Court Report
By Richard Blassberg


“His Immunity Is Not Going To Shield Him From This Claim.”
United States Federal District Court, White Plains Judge Charles L. Brieant, Presiding

White Plains, N.Y., October 26 – Last Friday morning, Jonathan Lovett, counsel to Plaintiffs, numerous readers of The Westchester Guardian newspaper, publisher Sam Zherka, and several employees, appeared in Federal District Court, together with attorneys for Defendants Phil Amicone and several members of his Administration,
Kevin Plunkett and his associate, Darius Chafizadeh, for a pre-trial hearing in the first of seven lawsuits lodged, charging numerous First Amendment violations. Three of those actions specifically name Lawrence Porcari, Yonkers Assistant Corporate Counsel.

Opening the hearing, attorney Chafizadeh stepped up to the podium, advising the Court, “Our motion is based upon absolute and complete immunity, Your Honor.” Judge Charles Brieant responded, “Your client was pretending to be a police officer, showing a badge, and threatening to arrest.” He continued, “I have a complaint here, filed under stricture of Rule 11.” The judge was making reference to the Federal Rule of Civil Procedure
subjecting counsel to sanction and severe fine for bringing any action in Federal Court that is not predicated upon truthful allegations.

Mr. Chafizadeh remarked, “It’s impossible to believe that his activities (Yonkers Corporate Counsel Porcari) would limit others’ ability to read the paper.” Brieant shot right back, “If you’re talking standing, you’re
right up against the Spargo case.

Chafizadeh began, “We believe,...” when Brieant cut him off with, “His immunity is not going to shield him against this claim. These claims are not being made for money, but to prevent it from happening again.” At that point, Chafizadeh again attempted to proffer the theory that Porcari was acting in his capacity as a prosecutor and was therefore immune from the actions being brought against him. Brieant then demanded, “What is his job?”

Jonathan Lovett then interjected, “He committed three New York State crimes. He had led my clients to believe he was a cop. He flashed a badge. And, he threatened to arrest them.” Defense Counsel then made a formal motion to dismiss the charges against Mr. Porcari. Judge Brieant immediately came back with, “The Court has concluded that the Plaintiffs have standing. The Plaintiffs are recipients of speech, and the paper has a right to issue that speech.”

Then Brieant reminded Chafizadeh, “Defendant Porcari is not being charged with prosecutorial misconduct.” Turning somewhat more stern, he went on, “The Court finds that there is no absolute immunity, no qualified immunity, no immunity under any theory.” He then explained to Defense Counsel, “Qualified immunity is only for engaging in the initial phase of the judicial process.”

Reviewing the allegations, Brieant reminded Defense Counsel, “He pretended to be a member of the Police Department; displayed a badge, and threatened to arrest them.” Once again, clarifying for the benefit of Defense Counsel, he then stated, “These are not activities contemplated as part of the ordinary functions of a prosecutor in the judicial process. There is a factual dispute that must be resolved at trial. Brieant then held, “The Defense motion for dismissal, based upon absolute, or qualified, immunity is denied.”

Analysis:

The Court’s holding is all the more significant in that Yonkers Corporate Counsel, Lawrence A. Porcari, is named in three separate actions, of seven, that comprise The Westchester Guardian’s case against Mayor Phil Amicone and the City of Yonkers. Having defeated Defense arguments for prosecutorial immunity in fully three of those cases, the defendants, as a result, have been rendered very vulnerable at trial.

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