As he exited the Long Island Expressway looking for a pay phone to return a page (in the “dark” days before cell phones), Police Officer Augusto (Gus) Tavernier could not have imagined that he was about to embark on a 13-year journey involving a civil lawsuit and judgment against him, garnishment of his salary, lien on his residence, appeal, new trial and, ultimately, complete vindication by a federal court jury.

The saga began on October 11, 1994, when, while driving home from work, Officer Tavernier, received that page. It was from a family friend, and, thinking it might be important, he got off the highway and located a pay phone in the Mobil gas station at the LIE service road & Round Swamp Road in Nassau County.

While Officer Tavernier was sitting in his car and using the phone, an individual (later identified as Thomas Jocks) approached him and rudely demanded to use the phone. Tavernier indicated that he would be on the phone a few more minutes and that there were other phones in the vicinity. Jocks began cursing and a short time later, by his own admission, lost his temper and hung up the receiver of the phone. Since the phone was blocking his exit, Tavernier moved his car and got out. It was Tavernier’s intention to find out what was going on. A verbal argument ensued and Jocks, without provocation, struck Tavernier in the mouth with the receiver, causing contusions to his face and jaw, lacerations to his lip and pain to his teeth.

After being struck, Tavernier stepped back, identified himself as a police officer verbally and with his police shield, and drew his firearm. Tavernier told Jocks that he was under arrest and escorted him at gunpoint to the convenience store located in the middle of the gas station. Nassau County Police Department units responded to the location and Jocks was arrested. During the processing of the arrest, Jocks made a spontaneous admission to the investigating detective, Michael Oggeri, that he had lost his temper and struck Tavernier with the phone. Officer Tavernier received medical treatment at the scene and was transported by ambulance to the hospital for further treatment.

Officer Tavernier promptly reported the incident and the responding duty captain determined that he had complied in all respects with department procedures for off-duty arrests and, most importantly, was granted line-of-duty status.

In October 1995, despite the strong evidence against him, Jocks was acquitted of the crimes of assault third degree and criminal possession of a weapon in the fourth degree after a misdemeanor jury trial in Nassau County District Court. For Officer Tavernier, however, the worst was yet to come.

The acquittal enabled Jocks to bring a civil lawsuit seeking monetary damages in U.S. District Court, Eastern District of New York, claiming under federal civil rights law that he had been falsely arrested and maliciously prosecuted. He claimed that, as a result of the arrest, he lost his $52,000-a-year job as a truck driver, lost custody of his daughter and incurred over $20,000 in legal fees. The investigating detective, the City of New York and Nassau County were also named as defendants. Adding insult to injury, the complaint was served againstOfficer Tavernier while he was overseas on active military duty in the service of our country.

Despite the officer’s line-of-duty designation and his full compliance with departmental procedures for off-duty encounters and arrests, the City of New York refused to represent or indemnify Officer Tavernier, claiming that the incident was personal in nature.

Although the trial judge had demonstrated strong bias against Officer Tavernier, the case proceeded to trial in federal court. At trial, Tavernier presented a limited defense, failing to sufficiently challenge Jocks’ version of the incident or to present any evidence disputing his claims for damages. The judge dismissed the claims against all parties except Tavernier at the close of Jocks’ case, leaving Tavernier “out on a limb” all by himself. The jury returned a verdict against Tavernier, awarding $622,000 in damages. Adding another insult to more injury, the judge awarded in excess of $300,000 in attorneys fees and denied Tavernier’s indemnification claim against the City. Consequently, Tavernier was held personally liable for the approximately million-dollar judgment and had his pay garnisheed while the appeal was pending.

Fortunately, the U.S. Court of Appeals for the Second Circuit reversed the judgment against Officer Tavernier, finding that numerous errors by the trial judge had deprived him of a fair trial. Since the dismissal against the City of New York & Nassau County had not been appealed by former counsel, the re-trial involved only Officer Tavernier and Detective Oggeri.

Entering into the matter when the case was restored to the trial calendar, our current law firm received clear and unequivocal direction from me, as chairman of the Law Committee, to take all necessary measures to right this terrible wrong. Prior to retrial, we moved the case to an impartial judge, stopped the garnishment of pay, filed motions convincing the court to limit the evidence to the issue of probable cause for Jocks’ arrest and served subpoenas for family court and employment records that convincingly demonstrated that Jocks was a liar.

On September 4, 2007, new proceedings began before U.S. District Court Judge Arthur D. Spatt. Following a 12-day trial, the jury rendered a defense verdict on all counts, determining that probable cause existed for plaintiff’s arrest and that plaintiff was not maliciously prosecuted.

Contrary to what happened at the first trial, Jocks’ testimony was relentlessly challenged, demonstrating that he, not Officer Tavernier, was the instigator of the dispute and aggressor, giving probable cause for the arrest. Through subpoenaed family court records and the testimony of Jocks’ former employer, Jocks’ credibility was destroyed. Our law firm proved that the custody proceeding against Jocks began before his arrest and that the change in custody was his daughter’s decision because of his lack of proper parenting. Using a subpoenaed police accident report, it was shown that Jocks had lost his job because of a serious accident caused by reckless driving.

Based on our firm’s submission, the judge gave the jury an innovative and expansive charge defining probable cause for arrest, which will greatly assist us in defending the rights of all police officers. The court instructed the jury that there can be no liability for false arrest as long as the arrest is supported by probable cause regardless of whether probable cause supported any individual charge by the arresting officer at the time of arrest. This decision is particularly important in protecting our members against falsearrest claims in cases, for example, where an arrest is made on felony charges only to have the District Attorney reduce the charges to lesser charges (misdemeanor or violation). So long as there is probable cause to arrest for any crime or violation, a false arrest claim will be defeated.

The jury deliberated approximately five hours before returning the verdict that completely vindicated Officer Tavernier. The majority of the jury spoke to him after the verdict, expressing their sense of outrage at the ordeal he had been forced to endure. While ultimately for Officer Tavernier, justice delayed was not justice denied, the lesson to be learned is that all members must be particularly careful in dealing with off-duty incidents. While personal safety must remain the first priority, on-duty police personnel should be called when possible. If an arrest is made, the off-duty member should not be the “arresting officer.” While engaged off-duty in the investigation and processing of an arrest, the member should be “put on the clock” and submit an overtime slip and line-ofduty paperwork, if appropriate. The member seeking legal guidance in offduty arrest situations should contact our outside law firm’s office at 212-964-8038 to consult with one of our attorneys. By the way, we owe a great vote of thanks to PBA Attorneys Greg Longworth and Mitch Garber for their diligent work in this case.