WHITE PLAINS, NY (May 23, 2022) –Malik Fogg, the Mount Vernon assaulted by New Rochelle Police Detective Michael Vaccaro this past winter, has filed a Civil Rights Lawsuit in White Plains Courthouse of the U.S. District Court for the Southern District.
On May 14, 2022, Fogg filed a Complaint against The City of New Rochelle, New Rochelle Police Department, Joseph Schaller, Michael Vaccaro, Matthew Velasco, Scott Wallach and Melvin Molina.
Judge Kenneth M. Karas is presiding.
A City of New Rochelle spokesperson declined to comment on pending litigation while noting Vaccaro is on administrative leave, suspended with pay.
Fogg’s attorney, Christopher Weddle of Timko & Moses, LLP, declined to comment, citing pending criminal proceedings.
The Complaint alleges that on February 15, 2021 members of the City of New Rochelle Police Department subjected Fogg to excessive force, false arrest, false imprisonment, unlawful retaliation and battery:
Vaccaro intentionally and with malice and aforethought punched and kicked Fogg while he was being restrained by Velasco and Molina. Vaccaro further grabbed Fogg’s head and pushed Fogg’s face into a concrete sidewalk and continued to hold Fogg’s head pressed into the sidewalk.
Velasco and Molina assisted, aided and abetted Vaccaro in his assault upon Fogg by also grabbing and restraining Fogg in a prone position on the sidewalk.
Fogg was not resisting or otherwise struggling or fighting with Vaccaro or any of the Defendants at the time of their actions. In punching, kicking, and pushing Fogg’s face into a concrete sidewalk, Vaccaro, with the aid of Velasco and Molina, either intended to cause Fogg pain and a loss of personal dignity and humiliation or he should have reasonably known that his actions would have that effect.
As a result of the deprivation of Fogg’s rights, privileges and immunities, he suffered serious physical harm and injuries, pain and suffering, emotional distress, psychological injury, humiliation, embarrassment, and anxiety.
On February 15, 2021, at approximately 12:40 p.m., Fogg was lawfully standing outside of his mother’s car at a gas station located at 720 Main Street in the City of New Rochelle. He was having a conversation with his mother who was seated in her car when Fogg noticed Michael Vaccaro sitting in his own vehicle, a white Acura, holding up his phone and videotaping Fogg’s discussion with his mother.
Vaccaro, at all times, was dressed in civilian clothing and did not, at any time, identify himself as a member of law enforcement. Fogg, concerned with what he considered to be an unwarranted intrusion into a private matter, asked Vaccaro why he was videotaping him and his mother. Vaccaro did not respond and continued to videotape Fogg and his mother, at which point Fogg began to approach Vaccaro’s car, again demanding to know why Vaccaro was videotaping him. Vaccaro did not respond but began driving out of the gas station and away. Fogg got into his own vehicle and began to follow Vaccaro.
When Vaccaro stopped his car in the vicinity of 635 Main Street, Fogg exited his own car and approached the driver’s side window of Vaccaro’s car, again demanding to know why Vaccaro had been videotaping him.
As Fogg questioned Vaccaro, New Rochelle Police Officer Matthew Velasco arrived on the scene, in a marked radio motor patrol and in full uniform, and began pushing Fogg away from Vaccaro’s car and towards the sidewalk. Fogg complied with Velasco’s instructions to retreat from Vaccaro’s car.
As Fogg was complying with Velasco’s instruction, Vaccaro exited his vehicle and approached Fogg aggressively, whereupon Fogg began shouting that he would beat Vaccaro up. At this point, Vaccaro had still not been identified as a New Rochelle police officer,
Fogg did not raise his hands from his sides or otherwise physically menace Vaccaro.
As Velasco was pushing Plaintiff to the rear of Fogg’s own vehicle, Vaccaro, who at no time had identified himself as a Police Officer, reached out and grabbed Fogg’s left wrist and repeatedly punched Fogg in the head.
As Vaccaro was punching Fogg, New Rochelle Police Officers Scott Wallach and Melvin Molina arrived on the scene.
Neither Velasco, Wallach nor Molina attempted to stop Vaccaro from assaulting Fogg, though they were in extremely close proximity to
Fogg and all had an opportunity to do so. Instead, Velasco, Wallach, and Molina continued to restrain Fogg so that he could neither protect himself nor escape from Vaccaro’s assault.
When Vaccaro finally moved away from Fogg, Velasco, Wallach, and Molina told Fogg to get down on the ground as Wallach threatened Fogg with a Taser.
As Fogg was complying with Wallach’s instruction to get down on the ground, Vaccaro returned and grabbed Fogg’s head and forced it into the pavement, whereupon Vaccaro continued to push Fogg’s face into the cement.
As Vaccaro was pushing Fogg’s face into the cement, Velasco, Wallach, and Molina took no action to stop Vaccaro from assaulting Fogg.
Fogg was handcuffed and placed into a New Rochelle Police Department vehicle and transported to the New Rochelle Police Department and placed in a jail cell.
Velasco prepared charges against Fogg charging the following: Reckless Endangerment, Stalking, Criminal Mischief, Disorderly Conduct, Resisting Arrest, Reckless Driving and three traffic violations
Vaccaro had a history and reputation within the New Rochelle Police Department for aggressive and abusive behavior towards citizens and had been the subject of multiple complaints and disciplinary proceedings within the New Rochelle Police Department.
The Complaint alleges that then-Police Commissioner Joe Schaller and the other Defendants knew, or should have known, that Vaccaro posed a risk to the general public and failed to discipline, supervise, train or otherwise address Vaccaro as a known risk to the community.
The Complaint alleges that then-Police Commissioner Joe Schaller and the other Defendants were aware that one or more members of the New Rochelle Police Department including one or more of the Defendant officers named in the Complaint have been the subject of excessive force claims and exercised deliberate indifference by failing to take remedial actions, investigate, train, retrain, supervise, discipline or monitor the officers; acted with a callous and deliberate indifference to Fogg’s rights under the Constitution and laws of the United States, in that they failed to adequately investigate, discipline, sanction, train, supervise or otherwise direct police officers concerning the rights of citizens thereby causing and enabling the Defendant Police Officers to engage in the aforementioned conduct; they failed to establish fair and adequate procedures to identify, investigate and discipline acts of misconduct by New Rochelle Police Department police officers; and that Schaller as supervisor of the New Rochelle Police Department had the obligation to create and implement policies, practices, and customs that would prevent or deter the use of excessive force by New Rochelle Police Department police officers.
The Defendants have 21 days to reply to the Complaint.
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