Jose Alba, a Bodega employee who fatally stabbed a customer in the neck in 2022, is seeking to revive claims of malicious prosecution and false arrest.
MANHATTAN (CN) – What was scheduled to be a 20-minute hearing turned into a nearly two-hour trial in the Second Circuit on Thursday as a three-judge panel of appeals fiercely debated New York City’s self-defense law in the context of Jose Alba, a bodega worker who stabbed a customer in the neck on 202.
Alba, who was initially arrested and charged with second-degree murder after the incident, is seeking to revive claims of malicious prosecution and false arrest against the city and Manhattan District Attorney Alvin Bragg, who dropped the murder charge amid an outpouring of public support — including from then-Mayor Eric Adams, who was rumored to be filming Albina.
These images, according to Alba’s lawyer, Richard Cardinale, is precisely why his client’s case has legs. The now-infamous clip shows 35-year-old Austin Simon coming up behind the counter of a Harlem bodega and pushing Alba, 61, at the time, who then plunged a knife into Simon’s neck and chest.
“They had the video,” Cardinale explained in court when he arrested Alba.
Cardinale argued that the footage clearly showed his client acted in self-defense, and yet he was arrested and charged anyway. Alba, a Hispanic man, claimed in his lawsuit against the city that this was an act of racial discrimination. A federal judge disagreed, recommending that his civil suit be dismissed in 2024 on the grounds that the city had probable cause to arrest and charge him with the crime.
U.S. District Judge Maria Kahn echoed the same notion Thursday. She told Cardinale that self-defense “does not negate probable cause” and is an argument that should be made before a jury, not at the time of arrest.
“The defense of justification is so complex that I don’t understand how you avoid the fact that there is probable cause for the crime,” said nominee Joe Biden. “So I don’t think you can rely on the lack of probable cause with the video.”
New York allows the use of reasonable physical force as a defense against unavoidable unlawful force, as long as the person using it is not the original aggressor. But it is not a “Stand Your Ground” condition, meaning that an individual should de-escalate or flee to safety, if possible, provided they are not inside their home.
A key question before the justices Thursday was when a police officer should make the call that the use of force is justified — if ever. City attorney Geoffrey Curfman said that’s not the officer’s job, prompting some debate from the judges.
“I’m sorry, so is it your position that officers can just arrest everyone involved in a fight and then let someone else figure out who actually committed a crime?” asked US District Judge Steven Menashi, an appointee of Donald Trump. “Are you saying that Alba should understand that he is forced to take the beating?”
“It’s not like he’s forced to bat,” Kahn said. “It’s the level of force you’re allowed to use that would justify your actions. … It’s not that you have to be a punching bag, but the level of force you use has to be commensurate with the level of force you’re facing.”
Menash later added that he is “somewhat confused” by the theory that an officer could conclude that Alba was not acting in self-defense in this scenario, where a “much bigger, younger person” is physically confronting him.
“That would suggest he’ll at least have a broken bone, wouldn’t it?” he asked. “Exactly, if you break someone’s bones, that’s grievous bodily harm, right?”
Curfman admitted it was, but reiterated that the justification of force is a question for a jury, not the arresting officers.
A third judge on Thursday’s panel, U.S. District Judge Gerald Lynch, added that there must be “subjective fear” to justify the use of that force. He, too, agreed that this is a matter for a jury.
“I’m not going to beat the defense down the road, but frankly it seems to me that this case has played out exactly as I would have expected it to,” said nominee Barack Obama. “I find it hard to believe that any district attorney, in my experience, would have said, ‘Well, just go home.’
The three judges did not immediately issue a decision after the arguments.
Alba is seeking damages related to his arrest, prosecution and five days in jail at Rikers Island. He is also seeking compensation for his injuries – he claims he was hit by Simon’s girlfriend during the deadly fight.
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