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SUPREME COURT, APPELLATE DIVISION FIRST DEPARTMENT SEPTEMBER 27, 2011, THE COURT ANNOUNCES THE FOLLOWING DECISIONS: Andreas, J.P., Sweeney, Moskovitz, Richter, Rom n, JJ. 5568 The People of the State

The People of the State of New York, Respondent, Ind. 4147/08 -against Jeffrey Capers, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. CABRAL, J.P.: The People of the State of New York, appellant, cross-appellant, cross-respondent, cross-appellees, v. Jeffrey L. Capers of the Police Department, Respondent-Appellant. Court of Appeals, First Department, September 27, 2011. 5.1 On March 20, 2009, the court heard oral argument in this appeal. In it, Capers argued that although the facts in his case were not unique -- the “New York City Police Department has a long and dark history of excessive force and misconduct,” the department “[maintains] a culture of tolerating and enabling excessive police force,” and “[t]he Police Department has done little over the past two centuries to rein in its brutality problem,” 579579 the evidence showed that the Department “is capable of, and takes measures to avoid, violating the constitutional rights of its citizens.” Capers, 579579 Reply Brief for Appellant at 20. The district court denied Capers' motion and dismissed the complaint. The trial court concluded that since any individual violation of the department's policies could be excused if the department would show that the defendant would not otherwise have taken the plaintiff's specific action or had acted similarly but a different way absent that particular enforcement policy violation, there was no justification for dismissing the complaint altogether. I'd. at 25. Because some allegations were already resolved in the district court when the court concluded that there was no basis for dismissing the complaint, the Court of Appeals concluded that the court in Capers should not have reached that conclusion. Capers, 578 F.3d at 595. 5.2 On February 26, 2011, the court dismissed the charges against Capers based on the court's finding that the facts established sufficient cause to move for summary judgment on the issue of the defendants' liability to Capers. Capers, 578 F.3d at 593.

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