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ANGEL v. KASSON

December 29, 1983

Wayne ANGEL and Kaylin Angel, Plaintiffs,
v.
Leonard C. KASSON, Investigator, New York State Police, in his individual and official capacity, Robert C. Schanck, Peace Officer, New York State Police, in his individual and official capacity, and James Horan, Lieutenant, New York State Police, in his individual and official capacity, and his (predecessors) and (successors) in office, Defendants.



The opinion of the court was delivered by: MINER

MEMORANDUM - DECISION and ORDER

MINER, District Judge.

 I

 Plaintiffs commenced this action to redress violations of their civil rights "arising from their questioning, arrest and prosecution by defendants" Leonard C. Kasson and Robert C. Schanck, New York State Police Investigators and James Horan, New York State Police Lieutenant. The action was brought pursuant to 42 U.S.C. § 1983, and jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. The cause was tried by the Court without a jury on August 1st and 2nd, 1983. *fn1" The final submissions of counsel were filed in the Clerks' office on September 6, 1983. There follow the findings of fact and conclusions of law mandated by Fed.R.Civ.P. 52(a).

 II

 Ari-El Angel, a male child, was born to the plaintiffs on September 23, 1981 at the plaintiffs' residence, 57 Tinker Street, Woodstock, Ulster County, New York. The residence consisted of two rooms divided by a blanket or curtain. One room was used by plaintiff Kaylin Angel, the child's mother, to conduct an astrology business, and the other was occupied by the plaintiffs and their other child, Ju-El Angel, aged two, as a dwelling. Assisting in the delivery of Ari-El were plaintiff Wayne Angel, the child's father, and Annelisa Angel, a sister of plaintiff Kaylin Angel. Kaylin had consulted a physician on one occasion when she felt anemic after three months of pregnancy, but she sought no further medical assistance relating to Ari-El's birth, which occurred approximately seven weeks prior to term.

 After the birth of Ari-El, the plaintiffs continued to sleep together on a rollaway couch bed, with the baby sleeping on Kaylin's stomach. The other child had a separate bed in the same room. Approximately three days after he was born, Ari-El was taken to a local delicatessen, where his father weighed him on a scale and found his weight to be three pounds eleven ounces. When he was approximately one week old, Wayne Angel took his son along with him when he went to be treated by a plastic surgeon in Albany for an injury to his finger. The surgeon looked at the child, remarked on his appearance, but was not asked to examine him in any professional way. In fact, Ari-El never was examined by any physician during his brief lifetime. On October 7, 1981, Wayne Angel again weighed his newborn son on the delicatessen scale, which then registered just under five pounds. Plaintiffs are members of the American Vegan Society. As such, they eat no animal products and do not use any substance derived from animal products. Their beliefs do not prohibit the seeking of medical treatment when needed, but they are constrained to "do every thing in [their] power" *fn2" before seeking medical assistance.

 For several days prior to October 11, 1981, Ari-El developed congestion and had a runny nose, which his mother cleaned with an aspirator. The infant was afforded no professional medical treatment of any kind for these conditions. At about 8:00 o'clock A.M. on October 11th, Kayline Angel awoke to find the baby's skin cold to the touch and discolored. The baby was not breathing, and she handed him to her husband, who attempted mouth-to-mouth resuscitation while she called an ambulance. The child was pronounced dead on arrival at the Kingston Hospital shortly thereafter. An autopsy was performed on October 12, 1981. The microscopic description contained in the autopsy report included findings of marked congestion and focal edema of the lungs and congestion of the liver. The pathologist made the following final anatomic diagnoses: "1. Prematurity. 2. partial pulmonary atelectasis, focal." *fn3" The medical examiner noted in his report that the "autopsy revealed a 3 lb. 10 oz. infant with positive findings of pneumonitis." (Report of death by H. C. McNamara, Medical Examiner, Comments section). He listed broncho-pneumonia as the immediate cause of death on the death certificate and "premature infant" as a condition contributing to death.

 III

 On October 11, 1981, the Ulster County Medical Examiner requested the Woodstock Police Department to investigate the circumstances surrounding the death of Ari-El Angel. On October 12, the Woodstock Police Chief requested the state police to take over the investigation. Acceding to this request, Senior Investigator Wayne Beyea, Supervisor of the Bureau of Criminal Investigation at the Hurley Barracks, assigned Investigator Leonard C. Kasson to conduct the inquiry. He also assigned Investigator Robert C. Schanck to assist in the investigation. Investigator Kasson was directed to report his findings for evaluation by his supervisor.

 After speaking with Senior Investigator Beyea, Medical Examiner McNamara and members of the Woodstock Police Department, Kasson attended the autopsy conducted by the pathologist, Dr. Cheema, at the Ulster County Morgue. Dr. McNamara, the medical examiner, also was present and the findings of the pathologist were discussed. Later that day, Kasson spoke by telephone with Kaylin Angel, who had just returned from her son's funeral, and asked her to come to the state police station to give a statement. When he was advised that the plaintiffs had no transportation, Kasson departed for the plaintiffs' residence, accompanied by Investigator Schanck, arriving there at about 5:00 o'clock P.M. on October 12th. Although plaintiffs indicated that they preferred not to go to the station and asked whether their written statements could be prepared and brought to them at home, they eventually did agree to go with the investigators. At no time were they advised that they were under arrest or that they were required to go with the investigators.

 At the Hurley Station, plaintiff Kaylin Angel was interviewed by defendant Kasson, and plaintiff Wayne Angel was interviewed by defendant Schanck. During the interview, each plaintiff gave answers to questions posed by the respective investigators. Each question and answer was typed by the investigators, and the statements ultimately were signed by the plaintiffs. *fn4" Although plaintiff Kaylin Angel was visibly upset over the death of her son and cried during the interview, her statement was lucid and her answers were responsive to the questions asked by Kasson. Both plaintiffs signed their statements without hesitation and testified at trial that the statements were true and correct. During the time plaintiffs were at the station, defendants Kasson and Schanck had a brief conversation with defendant Horan, the Commander of the Hurley Barracks. Although Horan had no responsibility for the Angel case, had no dealings with the plaintiffs, and furnished no assistance to the investigators, he was furnished a brief oral summary regarding the status of the investigation. The plaintiffs' interviews were completed at about 6:00 o'clock P.M. and they were transported to their home by uniformed members of the state police.

 After he acquired the signed statements of plaintiffs, defendant Kasson reported the results of his entire investigation to his superior, Investigator Beyea, who then consulted with the Ulster County District Attorney regarding possible charges to be brought against the plaintiffs. Prior to that consultation, Beyea had advised the District Attorney of the status of the pending investigation. Based on all the information supplied by defendant Kasson and then available to them, Senior Investigator Beyea and the District Attorney determined that there was sufficient evidence to charge the plaintiffs with endangering the welfare of a child, in violation of subdivision 1 of § 260.10 of the New York Penal Law *fn5" and defendant Kasson was so advised. Kasson testified that he was influenced by the opinions of the District Attorney and his superior, but made an independent judgment that probable cause existed to charge the plaintiffs with the crime.

 On October 13, 1981, at about 5:00 o'clock P.M., defendant Kasson, accompanied by Woodstock Police Chief Ostrander, presented himself at the plaintiffs' house and served the plaintiffs with appearance tickets *fn6" directing them to appear at the Woodstock Town Court on October 29, 1981 at 7:00 o'clock P.M. to answer charges of endangering the welfare of a child. Plaintiffs appeared at the town court with their attorney at the appointed date and time and were served with a copy of an Information/Complaint, signed by defendant Kasson, detailing the charges against them. Plaintiffs were arraigned and released on their own recognizance for a later court appearance. Immediately thereafter, they were photographed, fingerprinted and otherwise "processed" at the Woodstock Police Station located next door to the town court. *fn7" They never returned to court because the charges against them were dismissed "in the interest of justice" *fn8" by Town Justice Slayton on March 11, 1982. The dismissal was ordered on the ...


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