He says he found several guns pointed at him when he opened the door: "I was wearing nothing but my underwear and my undershirt," Cunningham recalls
Benjamin Cunningham’s world was turned upside down seven years ago when about a dozen agents from the United States Marshals Service raided his Bronx, New York, home without a warrant or his consent, he says.
On the early morning hours of November 29, 2005 the agents first raided the home of his mother, Theresa Cunningham, in search of his fugitive brother Terrence Cunningham. Within about 10 minutes after his mother called him around 5AM to inform him of the raid, the agents, who had no warrant to were knocking on his door.
“Open up the door! Open up the door,” Cunningham says he heard the shouts. He says he found several guns pointed at him when he opened the door; a hand then yanked open the screen door and he was grabbed and thrown outside. “I was wearing nothing but my underwear and my undershirt,” Cunningham recalls in one of several interviews with The Black Star News. 
Cunningham says the agents, including one female, didn’t announce who they were; didn’t produce a warrant; and, didn’t ask permission to enter his three-story house. One agent stayed outside and restrained him while the others entered and searched the home he shared with his wife Reena, who had then traveled to her native India; they had tenants on the top two floors. Thirty minutes later, the agent restraining him took him inside and told him they were searching for the brother, Terrence, who had jumped bail in North Carolina, on a drug-related matter. “I couldn’t believe what I saw when I went back inside,” Cunningham recalls. “They were tearing my place down. They were pulling out drawers, they were going through the closets and drawers, searching through even my wife’s panties. They were also logged on my computer going through my documents. Why would they be searching drawers if they were looking for a fugitive?”
Cunningham says he wasn’t convinced the raiders were federal agents. When he protested, an agent whose name he later learned was Nicholas Ricigliano, punched him in his stomach, threw him on a chair and placed handcuffs with his hands behind his back.
Thirty minutes later, handcuffs and all, Cunningham made a wild dash out the door, fearing for his life, he says. He didn’t get far; as he ran between two parked cars, he was struck by a bus, he says. It was a Metropolitan Transportation Authority (MTA) vehicle with dozens of uniformed cadets from the New York Police Department academy. “I yelled out that there was a bunch of men with guns tearing up my house and holding me against my will and that I needed help,” he recalls.
The NYPD cadets helped him into the bus while a few went to his house. Curiously, he says, when he’d fled from his house, the agents hadn’t pursued him. “This means they were up to no good and didn’t want anyone to see them,” he says.
The cadets returned with some of the U.S. Marshals who then forcefully carried him back, he says. “The U.S. Marshals ordered the driver of the bus not to file a bus accident report,” he recalls. “Then they carried me, like I was a piece of hog tied to a pole, and took me back.” 
Cunningham’s eyes still well with tears as he recalls the incident. He says it threw his life on a downward spiral, disrupting his employment as a nurse, and causing intense emotional pain and marital woes. After the agents returned him to his house, one of the men removed the handcuffs. “They just said ‘go get medical treatment,’ and jumped into their unmarked cars and sped off like they were leaving the scene of a crime,” Cunningham says. “Just like that, they disappeared.” Cunningham says he immediately dialed 911, as did neighbors who had earlier been ordered by the Marshals not to call police during the raid. Police officers came from the 48th precinct as did EMS personnel. He was taken to St. Barnabas Hospital in the Bronx where he was treated and released. Cunningham then went to the New York office of the Federal Marshal Services and told a Supervising officer, John Svinos, about the incident. Svinos’s computer system only showed records for an authorized search on Theresa Cunningham’s home based on a North Carolina warrant for Terrence; there was no record authorizing a search on Benjamin Cunningham’s home. “He did not believe me when I said there had been a raid on my own house and ordered me to leave,” Cunningham says.
Back at the 48th precinct, Cunningham was told to return with an inventory the next day. “When I searched my house, I found that there was $4,600 in cash missing,” he says. “My two months mortgage payment. I was also missing a gold bracelet, my social security card, my passport, my birth certificate, and my wife’s immigration documents.” Cunningham filed a police report about the missing items the next day.
Cunningham hired an attorney, Gary S. Fish, who filed a $20 million federal lawsuit against the agents and the U.S. Marshals Service, in the Southern District of New York, on December 5, 2005. He alleged that his fourth amendment rights against unlawful search and seizure had been violated. (Such cases are covered under a Bivens action, based on a ground-setting case; it allows a plaintiff to state a cause of action for money damages against federal officers for violating certain constitutional provisions). Cunningham also included the bus incident, which he said caused him injuries, on the lawsuit.
The case was eventually assigned to Justice Deborah A. Batts, an African American who was nominated to the bench by President Bill Clinton, in 1994.
Judge Batts had numerous clashes with Cunningham’s attorney, Fish, regarding procedural matters. She ultimately dismissed the case, with prejudice, because she ruled that Fish had failed to properly serve the government.
Cunningham hired an appellate attorney, Daniel A. Eigerman. While the case was still on appeal, in July 2007, he learned some critical information during discovery on his wife’s own separate case. Reena Cunningham had filed a lawsuit on account of her missing immigration documents. Cunningham now learned that the U.S. Marshals Service had obtained his confidential medical records from St. Barnabas Hospital, without his knowledge or permission, on November 29, 2005, the same day as the raid.
Cunningham also learned that his medical records had been used in an Internal Affairs hearing at the Marshals Service headquarters, in Washington, D.C., on February 26, 2006 and March 6, 2006. Neither Cunningham, nor Fish, who was still his attorney at the time of the Internal Affairs hearing, had been informed. Records show that Cunningham was portrayed as “emotionally disturbed” at the hearing. All the officers were cleared of wrongdoing.
“That’s when I was convinced we live in a police state,” Cunningham recalls. “For someone not to be informed of an administrative proceeding that has impact on his life? Is this the old Soviet Union?”
Separate from the lawsuit itself, records show that Bruce M. Goodman, a senior inspector with the Marshal Service’s Office of Internal Investigations, in Arlington, Va., handled a complaint by Cunningham against the agents. Goodman wrote a report dated March 15, 2006, clearing all the officers. The investigation, records show, was based on interviews with the agents themselves. “According to USMS Task Force personnel,” Goodman wrote, in part, referring to the U.S. Marshals Service, “Cunningham granted them access to his home, but immediately became uncooperative.” He concluded: “None of the sworn interviews corroborated injury or loss of property claims contained in Cunningham’s lawsuit.”
It’s interesting to note that at no stage during the trial or in any of their court papers did the agents claim that Cunningham actually “granted them access to his home.”
Goodman is now an Assistant Chief. A call to his office in Arlington, Virginia, was referred to a spokesperson, who declined to comment on the case by publication deadline.
Meanwhile, before there was a decision on Cunningham’s appeal, Judge Batts herself wrote a letter to the appellate judges. She now claimed she had not grasped the full facts of the case and that she had erred in dismissing it; she asked that the case be returned to her.
Judge Batts’ order dismissing the case with prejudice was reversed; however, the case was returned to Judge Batts. “I didn’t understand why my case was returned to this same judge who had dismissed my case with prejudice. It was like I was being set up,” Cunningham now recalls. He asked for the judge to recuse herself; his motion was denied.
Cunningham says his request for a copy of the letter written but Judge Batts was denied.
A call to Judge Batts’ chamber seeking comment by The Black Star News was referred to a spokesperson for the court. A voicemail message was not returned by the spokesperson.
Before she had dismissed the case, Judge Batts had removed Cunningham’s claims against the U.S. Marshals Service agency itself and claims against one agent, Timothy O’Callaghan, who insisted he had remained with Theresa Cunningham, while the other agents had raided Benjamin’s home. Judge Batts allowed the claims against six individual marshals to remain.
After the case was restored to Judge Batts following his appeal, Cunningham moved for the Marshals Service to be restored as a defendant because, he alleged, the agency had wrongfully used his medical records. The motion was denied.
At this point, Cunningham had run out of money and was representing himself. He filed a motion to the appeals court, asking that the Marshals agency be restored as a defendant; and that New York City, ,and St. Barnabas Hospital, be added as defendants. The court ruled that the appeal was premature; he would have to wait for a final decision on the case by Judge Batts.
After Judge Batts declined to recuse herself, she then assigned the case to Magistrate Judge Kevin Nathaniel Fox, who handled the discovery deposition.
Judge Fox scheduled a settlement hearing during which the U.S. government offered $30,000, Cunningham says. “I rejected the offer,” he says. “Judge Fox himself said ‘why don’t you start at a six figure offer? The government’s lawyer said ‘your honor, the government feels that this case is worth $30,000.”
A spokesperson for the U.S. Attorney for the Southern District declined to comment on the case for The Black Star News.
The government then filed a motion to dismiss the case arguing that the agents had raided Cunningham’s home based on information from a reliable confidential informant in North Carolina and that the agent placed Terrence, the fugitive, either at the home of his mother, or with his brother.
Judge Fox asked that the government produce the information from the confidential informant on five separate occasions and the government failed to comply, Cunningham says.
The government asked for summary judgment based on a qualified immunity claim.
Judge Fox later wrote a Report and Recommendation dated June 22, 2011 to Judge Batts.
On the matter relating to the bus incident and the allegations of excessive force use, Judge Fox recommended that the government’s motion for summary judgment be granted. With respect to 5th amendment violations related to invasion of Cunningham’s privacy and deprivation of property, the judge recommended that the government’s motion for summarily judgment be granted; he wrote that Cunningham had failed to avail himself of post-deprivation relief under the Federal Tort Claims Act (FTCA).
However, on Cunningham’s 4th amendment violation claims, it’s clear that Judge Fox had trouble with the credibility of the Marshals because of the inconsistent and even conflicting evidence provided. The judge noted that the government initially said it received a tip from a confidential informant in North Carolina on November 16, 2005, that Terrence, the brother, spent “most of his time” at the mother’s home at 2420 Hunter Avenue in the Bronx and basically lived with her and was mostly inside.
“Although the CI advised the USMS that Cunningham also lived in the Bronx area,” Fox wrote in his report and recommendation, referring to the informant by the initials and the U.S. Marshals Service, “nothing in the November 16, 2005 investigation report indicated that the CI told the USMS that Terrence resided with Cunningham.”
Judge Fox also noted that, according to an investigation report dated December 1, 2005, three days after the raid itself, and authored by Ricigliano, the U.S. Marshals Service in North Carolina “received information, from a CI that Terrence was in the Bronx and ‘staying with his mother or his brother.'”
Because of the conflicting reason for the basis of the Marshals’ raid, provided by the U.S. Marshals Service itself, Magistrate Judge Fox recommended that a jury should determine whether Cunningham’s 4th amendment rights against unreasonable search and seizure had been violated.
Meanwhile, Cunningham, acting as his own researcher, reviewed other cases in which the Marshals had been involved, including Ricigliano. It turns out that Judge Fox’s skepticism wasn’t without foundation.
Ricigliano was involved in another case where a judge threw out evidence he gathered during a warrantless search, while searching for another fugitive, records in that case, United States v. Thomas Luckey, show.
In that case, unrelated to Cunningham’s, Ricigliano and other marshals entered a Harlem apartment building on September 3, 2009, in search of DuRon Perry Lee, a fugitive from Georgia.
Ricigliano later told a federal judge at a suppression of evidence hearing that the fugitive had been traced to the building through an IP address and that the building’s super had directed him and other law enforcement agents to a specific apartment, which they entered at 6.20 AM. The super denied that he had directed Ricigliano to a specific apartment.
The fugitive wasn’t in the apartment that, to borrow the words of the judge on that case, Ricigliano “barged” into, without a warrant. Ricigliano said he recovered drugs and weapons from the apartment. Two males, who were not subjects of the fugitive search, were found asleep in the apartment. One of them, Thomas Luckey, moved to suppress the evidence through his attorney.
The judge on the case, Shira A. Scheindlin, also of the Southern District, didn’t seem to find Ricigliano’s testimony credible at the November 9, 2009, hearing, and even sounded incredulous as one exchange, according to the transcript, shows:
“Why did you enter the apartment?” Judge Scheindlin asked.
“Well, your honor, we believed that there was going to be a chance that DeRon Lee was going to be in the apartment,” Ricigliano had responded.
“Did you think that gave you the right to enter the apartment?” the judge asked.
“It was my belief, acting in good faith, to try to arrest this guy, your honor,” Ricigliano responded. Ricigliano claimed the doors of the apartment had been unlocked and that he and another officer simply walked in.
“There wasn’t a reason in the world to believe that man was in that apartment at that time,” Judge Scheindlin, said, at one point. She said there had been no consent and called it a “warrantless, nonexigent entry.” She even asked why the Marshals had not posted officers to monitor the apartment they “barged” into while others had gone to secure a warrant.
Judge Scheindlin suppressed the evidence recovered by Ricigliano and the U.S. Attorney moved to dismiss that case. The ruling became a part of case law.
“The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which which chooses to dwell in reasonable security and freedom of surveillance,” Judge Scheindlin later wrote, in her order granting Luckey’s motion to suppress. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a police [officer] of Government enforcement agent.”
When Judge Fox wrote in his Report and Recommendation that Cunningham’s 4th amendment claims be determined by a jury, Judge Batts issued her own order.
Summary judgment on qualified immunity was appropriate, Judge Batts wrote, citing a case, Cerrone v. Brown, when “a jury, viewing all the facts in the light most favorable to the plaintiff, could conclude that offices of reasonable competence could disagree on the legality of the defendant’s actions.”
Judge Batts adapted Judge Fox’s recommendations on the other issues at stake, and on her own, granted qualified immunity on the 4th amendment matter. So, in an order dated August 8, 2011, Judge Batts granted the government immunity in its entirety, despite the recommendation of Judge Fox.
With respect to Cunningham’s claims of being injured as a result of being hit by the bus when he fled from his home, Judge Batts ruled that it was basically his own fault. She wrote that Cunningham’s complaint had not contained any claim for relief based “on the alleged accident.”
“Accordingly,” Judge Batts wrote, “Plaintiff’s objection based on the alleged bus accident is without merit and appears to have been raised in bad faith, to harass, or with a purpose to delay resolution of this action.”
“Moreover, were the Court to reach the merits of Plaintiff’s claim for damages based on having run into a bus while fleeing custody,” Judge Batts continued, “it would find the claim to be without merit, since Plaintiff’s unprovoked, independent, and unforeseeable decision to run into the road while handcuffed was a superceding cause of his injuries, if any.”
“It was all like a knife into my heart five years after my life was ruined,” Cunningham says. “But I could have predicted it, since Judge Batts had dismissed my case with prejudice in 2007. She did not want my case to be decided by a jury so they found another way.”
After trying to handle the appeal himself, Cunningham, who is now heavily indebted and fears his house will soon be foreclosed on, again hired Eigerman, the attorney who handled the initial appeal.
When Eigerman put down his name as attorney of record and paid the fees the Second Circuit Appellate Court responded with a one page decision saying the appeal was frivolous and dismissed.
“We file for reconsideration, saying it cannot be frivolous if the appellant is taking the same position as the magistrate judge,” Eigerman says, referring to Judge Fox’s Report and Recommendation to Judge Batts. “And a fourth amendment case is a serious case. So the court should reconsider and read the briefs. They responded and said they have reconsidered and restate that this matter is frivolous and dismiss it.”
Eigerman filed a petition to the U.S. Supreme Court to review Cunningham’s case. He hopes the Court will review the case when the new calendar year starts in September., “Generally the Supreme Court rejects 19 out of 20 cases,” he says. “They don’t just accept because a case is wrongly decided. It is not for correcting errors. It is for declaring the law of the land.”
“If law enforcement has qualified immunity where there have been violation of the 4th amendment, the basis has to be clear,” Eigerman continues. “And the standard for summary judgment has to be strong. You have to wipe out any contested facts. The Supreme Court should sort this out.”
Additional to the U.S. Supreme Court, Cunningham has been pursuing other strategies. Since federal employees, including judges, are mandated under the federal crime reporting statutes to report all crimes that are brought to their attention, Cunningham says Judge Fox and Judge Batts should have reported the bus accident when he fled from the marshals.
“This is called misprision of felony, or concealing knowledge of a crime from federal law enforcement agencies,” he says. He filed a complaint to Chief Judge Dennis Jacobs against both judges; it was dismissed as harassment.
Cunningham is certainly persistent and dedicated.
Since Congress is responsible for judges’ salaries, he contacted the offices of Rep. Jose Serrano (D-NY) and Sen. Chuck Schumer (D-NY), the judiciary committees in both houses of Congress, and the ethics committee in Congress. Cunningham also prepared packages about his case and has traveled so many times to Washington, D.C., to deliver them to aides of Congressional Representatives, that some of the Capital police officers now know him by name.
Meanwhile, the case has taken a tremendous personal, emotional, and financial toll. Cunningham says he’s visibly aged; from black hair seven years ago, to fully gray. All his savings are depleted. He survives on welfare benefits. He says his marriage is on its last legs and that he and his wife, who have a three-year-old daughter, have basically become roommates.
Ironically, Terrence, the fugitive brother, was arrested on January 12, 2006, not in New York, but in Maryland. He later provided an affirmation dated November 29, 2010, from federal prison stating that he had never resided with Benjamin Cunningham. He also said he had never informed anybody that he resided with his mother in the Bronx.
“No one should be victimized in such a cruel way by a government that is not restrained or bound by the laws of the United States of America,” Cunningham says. “I have to finish this journey. I have to finish it on behalf of my parents, who have now both died since that 2005 raid. And on behalf of many other people who may have been, or who will be, similarly victimized by the government.”
“If a man and his family can’t be safe in his home, then what?” he says.
NOTE: Cunnningham says he plans an online fund-raising campaign to try and climb out of debt, pay his legal expenses and try to keep his home and family. He can be reached at [email protected]
