ITHACA, N.Y.—A federal judge decided July 26 that Rose DeGroat and Cadji Ferguson can continue to pursue allegations of excessive force against three Ithaca police officers involved in their arrests on the Ithaca Commons on April 6, 2019.
United States District Court Judge Lawrence E. Khan denied the City of Ithaca’s motion to dismiss the lawsuits, filed in October 2022 on the grounds that the police’s use of force during the arrest was justified. His determination will allow DeGroat and Ferguson’s suit to proceed in court.
The officers could be protected by qualified immunity, Khan determined, but he would not dismiss the suit on those grounds yet, saying it would be “premature.” He said DeGroat and Ferguson have “plausible” claims on four of their charges, while he agreed to dismiss three other charges brought in their suits.
DeGroat and Ferguson’s 2019 arrests stirred anti-police brutality protests in Ithaca once details of the incident became public knowledge.
DeGroat and Ferguson, both of whom are Black, were each taken to the ground by officers around 1 a.m. on a Saturday morning on the Commons after they had a verbal altercation with another person who DeGroat and Ferguson said was sexually harassing DeGroat. The person who had allegedly harassed DeGroat was not taken into custody by police—officers testified he was too inebriated to make a statement.
DeGroat and Ferguson were both initially charged in the incident, though Ferguson was acquitted after a bench trial and DeGroat’s charges were eventually dropped. The City of Ithaca published body camera footage and surveillance videos of the arrests after videos from witnesses began to circulate on social media.
Those videos showed that 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 by attempting to pull an officer off of his back.
Khan’s decision will allow DeGroat and Ferguson’s lawsuit to continue based on the plausibility of DeGroat and Ferguson’s claims, but does not render a final ruling on the claims’ validity or award any penalties. The judge’s decision was delayed several times by extensions granted to DeGroat and Ferguson’s legal representation, Ithaca lawyer Ed Kopko, for filing answers to the motion to dismiss.
In his decision, Khan allowed DeGroat’s claims of excessive force against officers Benjamin Buck and Zachary Dorn and a failure to intervene claim against officer Gregory Herz to continue, and allowed Ferguson’s claim of excessive force against Herz to continue as well.
Khan also denied the city’s attempt to have the claims dismissed based on qualified immunity, writing that it is too early in the proceedings to do so. For a qualified immunity defense, Khan wrote in his ruling, a “fact-specific inquiry” must be conducted, which has not taken place yet in the case.
Khan ruled in favor of the city on portions of the suit, dismissing DeGroat’s claims of excessive force against Herz, noting that videos show Herz never tased DeGroat, as her suit had claimed. He also dismissed Ferguson’s claims of excessive force against Dorn and Buck, noting that Ferguson’s suit never cited any specific allegations of excessive force against them as part of his arrest, as well as Ferguson’s claim against officer George DuPay for failure to intervene.
Ithaca Mayor Laura Lewis and City Attorney Ari Lavine did not respond to a request for comment on the decision. Ithaca Police Benevolent Association President Thomas Condzella also did not respond to a request for comment.
Responding to the city’s claim that the officers’ use of force was justified, Khan broke his answer down into three parts: the severity of the crimes being committed; the immediacy of the threat presented; and whether or not the subject was actively resisting arrest.
Khan found that all three of these factors favored Ferguson, and two of the three favored DeGroat. Khan ruled, as DeGroat acknowledged in her suit, that she was actively resisting arrest.
But contrary to the claims in the city’s motion to dismiss, Khan found that Ferguson did not pose a threat to the officers and didn’t actually resist the arrest in any meaningful way—the only form of resistance Khan gleaned from the video footage is Ferguson stepping away when officers initially grab him. Khan highlighted that while officers told Ferguson to “get on the ground” several times, they never warned him that a taser would be used if he didn’t.
“An unarmed Ferguson was grabbed and tased without being given an opportunity to comply,” Khan determined.
Further, Khan wrote that he found that officers Buck and Dorn both used excessive force in their treatment of DeGroat during her arrest.
“[DeGroat] thus posed a minimal threat to Defendants,” Khan wrote. “Despite these facts, Buck ‘slamm[ed] DeGroat to the ground, ben[t] her over a flowerbed, and . . . wrestle[d] with her on the ground in order to place handcuffs on her.’ Likewise, Dorn ‘assisted Officer Buck in tackling her to the ground and eventually handcuffing her.’ As alleged in the complaint and reflected in the videos, this level of force from Buck and Dorn was objectively unreasonable.”
While Khan acknowledged that officer DuPay couldn’t have prevented Buck’s initial slam of DeGroat, he ruled that DuPay should have stopped the excessive force at that point and thus maintained DeGroat’s charge that Buck had failed to intervene.
But, in response to Ferguson’s claim that DuPay should have stopped Herz from tasing him, Khan ruled that DuPay could not be held culpable for that action.
“The City of Ithaca and the residents of the City of Ithaca are going to pay for the misconduct of these officers,” Kopko, DeGroat and Ferguson’s attorney in the combined suit, wrote in a statement.
“Until rogue officers have some skin in the game and are required to pay for their misconduct, any attempt at police reform will be an utter failure,” Kopko wrote. “The overwhelming majority of police officers are brave, fearless, devoted public servants, instantly willing to risk their lives to protect the public. The rogue police officers need a new career, without authority to abuse the public.”