ITHACA, N.Y.—The City of Ithaca has filed a motion to dismiss the lawsuit against four Ithaca Police Department (IPD) officers accusing them of brutality and wrongful arrests stemming from the infamous arrests of two people on the Commons in April 2019.

The lawsuit was officially filed in July, alleging that IPD officers Benjamin Buck, Zachary Dorn, George DuPay and Gregory Herz used excessive force when arresting Rose DeGroat and Cadji Ferguson, who are both Black, after a brief fight on the Commons involving Ferguson. Ferguson was tased and taken to the ground, while DeGroat was also thrown to the ground and a knee was forced on her head to subdue her when she tried to intervene in Ferguson’s arrest. The other person involved in the fight was not taken into custody.

The case ignited a firestorm locally, generating several protests months over police reform months before the world was taken by similar sentiments after George Floyd’s murder in Minneapolis. Ferguson was eventually acquitted, and DeGroat’s charges were dropped.

The city’s dismissal motion uses two main prongs: that the force used by the police officers when they arrested DeGroat and Ferguson was not excessive, and that, regardless, the officers are protected by qualified immunity—a blanket protection offered to public officials, most commonly police officers, that exempts them from civil lawsuits regarding conduct while they are doing their job unless a violation of established law is clear. The officers are named individually in the lawsuit, and the City of Ithaca and the Ithaca Police Department are not named as co-defendants (though the city is handling their defense).

The qualified immunity point is fairly self-explanatory and somewhat controversial because of the latitude it inherently allows police officers in their conduct with the public, but it has often been used as a shield from litigation, highlighted by a 1980s Supreme Court decision that involved aides to former President Richard Nixon. It also hinges on whether the use and level of force is deemed “objectively reasonable.”

But further, the motion to dismiss argues that none of the officer’s conduct rises to the level of “excessive force,” largely because of DeGroat’s attempt to intervene in Ferguson’s arrest, which amount to her striking one of the officers and trying to pull him off of Ferguson before she is taken down, and a contention that she was resisting arrest, which caused the force to escalate to the point that one officer uses his knee to hold her head to the pavement.

“Defendants move to dismiss on the grounds that their use of force was justified, reasonable, necessary, and not excessive; there was no failure to intervene; and they are protected by qualified immunity,” reads the motion. For what it’s worth, an internal IPD investigation at the time determined that none of the officers had violated department policies, even though Judge John Rowley blasted the officers’ actions in his decision dismissing charges against DeGroat.

Currently, it appears there won’t be another development until a hearing is held on the motion to dismiss, scheduled now for December in U.S. District Court.

Ed Kopko, the Ithaca-based attorney representing DeGroat and Ferguson in their separate lawsuits, remained resolute, though he lamented the limitation that qualified immunity can be for civil lawsuits against police officers.

“I have taken hundreds of thousands of dollars from the City of Ithaca because of the conduct of a few rare, rogue police officers,” Kopko said, referring to several cases that he has been involved in against the City of Ithaca because of police misconduct, such as one case that featured a $250,000 payout after an Ithaca College student’s arrest in 2016. “Yet, these same officers never paid a single dime out of their own pocket for the harm they caused. Strangely, IPD promotes them. The glaring flaw in the Reimagining Police effort is the failure to address the individual responsibility of police officers who violate the rights of citizens in our community.”

Kopko deemed the idea of allowing officers to investigate themselves as “the mouse [guarding] the cheese,” further decrying shortcomings he perceives in the Reimagining process. But he said he was confident the federal court hearing the case will deny the motion and that the case will proceed.

“Until individual police officers have some skin in the game, and while the City of Ithaca is willing to pay for their folly, no incentive exists for police officers to change their behavior,” Kopko said.

Matt Butler

Matt Butler is the Managing Editor at the Ithaca Voice. He can be reached by email at mbutler@ithacavoice.com