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Krause v. Bennett

decided: September 20, 1989.


Appeal from a judgment of the United States District Court for the Northern District of New York, Cholakis, J. The district court denied in part defendant-appellant Bennett's motions for a new trial, judgment notwithstanding the verdict and alteration or amendment of judgment. In his suit, plaintiff-appellee Krause alleged, inter alia, that State Trooper Bennett arrested him without probable cause and in retaliation for a suit Krause had filed against another state trooper. Bennett contends that he is entitled to qualified immunity, and that the jury improperly was allowed to consider whether a reasonable police officer would have believed that probable cause existed to arrest Krause.

Oakes, Chief Judge, Timbers and Meskill, Circuit Judges. Oakes, Chief Judge (dissenting).

Author: Meskill

MESKILL, Circuit Judge,

This is an appeal from a judgment of the United States District Court for the Northern District of New York, Cholakis, J. Plaintiff-appellee Krause filed this action under 42 U.S.C. § 1983 (1982), alleging that defendant-appellant Bennett, a New York state trooper, had violated his constitutional rights during the course of events leading up to, and including, Bennett's arrest of Krause on a charge of possession of stolen property. Krause contended that Bennett's arrest of him was in retaliation for a suit that Krause had previously brought against another state trooper. See Krause v. Penny, 837 F.2d 595 (2d Cir. 1988). The jury found against Bennett, and awarded Krause $1,800 compensatory and $25,000 punitive damages on his claim. The district court entered judgment in favor of Krause. Bennett moved for judgment notwithstanding the verdict, Fed.R.Civ.P. 50(b), a new trial, Fed.R.Civ.P. 59(a)(1), and alteration or amendment of the judgment, Fed.R.Civ.P. 59(e). The district court denied these post-trial motions, except that it ordered a new trial if Krause did not accept a reduction in the punitive damages award to $2,500. Krause accepted the reduction. Bennett appeals.

On appeal, Bennett contends that the district court erred in allowing the jury to consider whether a reasonable police officer would have believed probable cause existed to arrest Krause, the decisive factor in the analysis of qualified immunity in this case. According to Bennett, the district court should have held, as a matter of law, that he was entitled to qualified immunity.

We agree, and therefore we vacate the judgment and remand to the district court with instructions to dismiss the action.


This suit was instituted in 1985 by Krause, and is based solely on alleged violations of 42 U.S.C. § 1983. For the purposes of this appeal, we view the facts in the light most favorable to Krause, the opponent of the motions denied by the district court.

In 1982, Krause was arrested by State Trooper Penny and Deputy Sheriff Rooney, on a charge of harassment. This arrest resulted in Krause suing both officers; Krause's suit, Krause v. Penny, was pending at the time of the events at issue in the current suit.

In 1984, Krause owned and resided in a home on Vosburg Road in Halfmoon, New York. This home had its main entryway through a kitchen door located inside a garage attached to the house. On March 4, 1984, Krause, who was in his kitchen with a friend, heard his dog barking and looked out the window. He saw Bennett in his garage approaching his kitchen door.

Upon seeing Bennett, Krause opened the kitchen door and asked Bennett why he was there. Bennett replied that he was investigating the sign that Krause had hung in his garage, indicating the stop sign on the garage's back wall. According to Bennett, his attention had been directed to the sign when he saw a reflection from it as he travelled down Vosburg Road, 80 feet from Krause's home. Bennett proceeded to question Krause about the sign, and Krause told Bennett that he had obtained it from a friend for whom he had done some plumbing work. Krause also told Bennett that this friend was named Bing Miller, and that Miller had found the sign in his own house when he bought it.

Because Krause was concerned about Bennett's questioning, he invited the trooper into his home while he looked for Miller's phone number, so that Bennett could verify Krause's story. Miller's name was not listed in the phone book under his nickname "Bing," however, and so Krause gave Bennett no further information. Krause and Bennett returned to the garage, where Bennett asked permission to examine the sign. Krause removed it from the wall for Bennett. The examination showed numbers and letters on the back of the sign, apparently painted on with a finger. The complete inscription was "90 M 11/14/66."

At this point, Bennett told Krause that the sign was stolen property. Krause disavowed knowledge of any prior theft of the sign and assured Bennett that he would obtain Miller's phone number so that Bennett could check out his story. That evening, Krause did find Miller's phone number and the next day he telephoned Bennett and gave him Miller's phone number and address. Nevertheless, when Krause called Bennett two days later, Bennett told Krause that he had not contacted Miller. At this time, Bennett informed Krause that he could be prosecuted for possession of the stop sign.

Although Bennett had not contacted Miller, he had ascertained that the stop sign was owned by Saratoga County and had been missing since at least May 15, 1967. Upon receiving this information, Bennett telephoned a New York State Assistant District Attorney (A.D.A.), Robert Chauvin. He told Chauvin that he had discovered a stolen traffic sign in Krause's garage and that Krause had acknowledged that it was in his possession. Nevertheless, A.D.A. Chauvin did not recall whether Bennett had told him that Krause claimed he had been given the sign by Bing Miller. Based on the information presented to him, Chauvin advised Bennett that he should proceed with the prosecution of Krause.

Bennett obtained a deposition from a Saratoga County employee stating that the sign had been stolen from Saratoga County, and with that and an information he had prepared and signed himself, Bennett applied for a warrant to arrest Krause on a charge of possession of stolen property.

The information filed by Bennett read, in pertinent part:

Defendant[] did . . . knowingly . . . and unlawfully, . . . commit the misdemeanor of criminal possession of stolen property 3rd . . . To Wit: the said defendant on the above date and time was in possession of a traffic STOP sign located hanging inside of the garage area of the defendant's residence located on Vosburg[] Rd. The sign being visible from Vosburg[] Rd. The STOP sign had an ID number of 90 M 11/14/66 and was identified as the property of the Saratoga Co. Hwy. Dept. and was also listed as vandalized (stolen)[.] The defendant made an oral statement that he had this sign for about three or four years and did not attempt to notify the owner.[] The defendant also stated he received this sign from a friend.

On the basis of this information and the accompanying deposition, a town justice of Halfmoon executed a warrant for the arrest of Krause. On Saturday, March 17, 1984, Bennett returned to Krause's home and arrested him.

The charges against Krause were dismissed in August 1984 for insufficiency of the evidence; documents included in the record of this appeal indicate that this assessment was based on a statute of limitations argument.*fn1 In January 1985, Krause filed the instant action in the Northern District of New York, alleging that Bennett was liable for damages under 42 U.S.C. § 1983 for violations of Krause's constitutional rights.

Krause's amended complaint stated five counts against Bennett. First, Krause alleged that Bennett entered his house without probable cause and without consent and then conducted an unconstitutional, warrantless search of the house, from which he seized the stop sign. Second, Krause alleged that Bennett deprived Krause of his constitutional right to liberty by procuring an arrest warrant and then arresting Krause when probable cause did not exist to arrest him. Krause's third claim was that Bennett's prosecution of him was malicious and without probable cause, thereby depriving him of his constitutional rights. The fourth claim was that Bennett arrested Krause in retaliation for Krause's suit against Penny, and that this was also a violation of Krause's constitutional rights. Finally, Krause alleged that Bennett negligently deprived Krause of his constitutional rights by submitting factually deficient depositions to the town ...

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