Second Circuit debates NYC self-defense law in case of 2022 fatal stabbing by bodega clerk

MANHATTAN (CN) — What was scheduled to be a 20-minute hearing turned into a nearly two-hour ordeal in the Second Circuit Thursday, as a panel of three appellate judges hotly debated New York City’s self-defense law in the context of Jose Alba, a bodega employee who fatally stabbed a customer in the neck in 2022.

Alba, who was initially arrested and charged with second-degree murder following the incident, is looking 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 — for Alba as footage of the stabbing circulated.

That footage, according to Alba’s attorney Richard Cardinale, is precisely why his client’s case has legs. The now-infamous clip shows 35-year-old Austin Simon coming behind the Harlem bodega counter and shoving then-61-year-old Alba, who then plunged a knife into Simon’s neck and chest.

“They had the video,” when arresting Alba, Cardinale explained to the court.

Cardinale argued the footage clearly showed his client had 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 magistrate judge disagreed, recommending the dismissal of his civil suit in 2024 on the basis that the city had probable cause to arrest and charge him with the crime.

U.S. Circuit Judge Maria Kahn expressed the same notion Thursday. She told Cardinale that self-defense “does not negate probable cause” and is an argument to be made in front of a jury, not at the time of arrest.

“The defense of justification is so complex that I don’t understand how you get around the fact that probable cause exists for the crime,” said the Joe Biden appointee. “So I don’t think you can rely on a lack of probable cause with the video.”

New York allows the use of reasonable physical force as protection against imminent unlawful force, so long as the person using it is not the initial aggressor. But it’s not a “Stand Your Ground” state, meaning an individual is required to de-escalate or safely flee, if possible, provided that they’re not inside their own home.

A key question before the judges Thursday was when a police officer has to make the call that a use of force is justified — if ever. City attorney Geoffrey Curfman said that’s not the officer’s job, prompting some debate by the judges.

“I’m sorry, so is your position that the officers can just arrest everybody involved in an altercation and then let somebody else figure out who actually committed a crime?” U.S. Circuit Judge Steven Menashi, a Donald Trump appointee, asked. “You’re saying Alba should understand that he’s obligated to take the beating?”

“It’s not that he’s obligated to take a beating,” Kahn cut in. “It’s the level of force that you’re allowed to use that would justify your actions. … It’s not that you have to be a punching bag, it’s that the level of force that you use has to be commensurate with the level of force you’re facing.”

Menashi later added that he’s “kind of bewildered” at the theory that an officer could conclude Alba was not acting in self-defense in this scenario, where a “much larger, younger person” is confronting him physically.

“That would suggest he’s at least going to have a broken bone, right?” he asked. “Like, if you break somebody’s bones, that’s a serious bodily injury, right?”

Curfman agreed it was, but reiterated that the justification of force is a question for a jury, not for the arresting officers.

A third judge on Thursday’s panel, U.S. Circuit Judge Gerald Lynch, added that there needs to be “subjective fear” to justify the use of that force. He, too, agreed that’s an issue for a jury.

“I’m not staying this defeats the defense down the road, but it seems to me frankly that this case played out exactly how I’d expect it to,” the Barack Obama appointee said. “I find it hard to believe that any district attorney, in my experience, would have said, ‘Well, just go home.’”

The three judges didn’t immediately issue a ruling following the arguments.

Alba is seeking damages related to his arrest, prosecution and five days incarcerated on Rikers Island. He also seeks compensation for his injuries — he claims he was slashed by Simon’s girlfriend during the deadly scuffle.

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