United States District Court, Eastern District of New York
October 1, 1990
ANTHONY URYEVICK, PLAINTIFF,
SAMUEL J. ROZZI, COMMISSIONER OF POLICE OF THE COUNTY OF NASSAU, THE NASSAU COUNTY POLICE DEPARTMENT, AND THE COUNTY OF NASSAU, DEFENDANTS. ARTHUR WICKERS, PLAINTIFF, V. SAMUEL J. ROZZI, COMMISSIONER OF POLICE OF THE COUNTY OF NASSAU, THE NASSAU COUNTY POLICE DEPARTMENT, AND THE COUNTY OF NASSAU, DEFENDANTS.
The opinion of the court was delivered by: Mishler, District Judge.
MEMORANDUM OF DECISION AND ORDER
Plaintiffs, Anthony Uryevick and Arthur Wickers, former police officers
of the Nassau County Police Department, bring these consolidated actions
pursuant to 42 U.S.C. § 1983, 1985 and 1988 against the Police
Department, the Commissioner thereof (the "Commissioner") and Nassau
County, seeking compensatory and punitive damages for the alleged
deprivation of their federal constitutional rights. Plaintiffs attack the
constitutionality and application of the Rules and Regulations of the
Police Department and Collective Bargaining Agreement which required an
officer on sick leave to remain in his residence between the hours of
9:00 am. and 5:00 p.m. except when permission to leave home was granted
by the Desk Officer, and, which required an officer, upon his designation
by the Commissioner as a "sick leave abuser," to remain in his residence
for 24 hours a day.
Defendants have moved for judgment on the pleadings, pursuant to
Fed.R.Civ.P. 12(c), and/or summary judgment, pursuant to Fed.R.Civ.P. 56
(b). Plaintiffs have cross-moved for partial summary judgment.
The following facts are either conceded or not in dispute. Plaintiff
Uryevick was employed as a police officer with the Nassau County Police
Department (the "Police Department") from May 5, 1972 to July 3, 1986. In
May 1982, he allegedly injured his back while on duty at, the Police
Department, and he was thereafter placed on sick leave. Plaintiff Wickers
was employed as a police officer from April 16, 1965 to February 21,
1987. In April 1986, he allegedly was injured while on duty, and he was
thereafter placed on sick leave.
As officers on sick leave, plaintiffs were subject to Section 8.11-4
(E) of the Collective Bargaining Agreement between the defendant County
of Nassau and the Patrolmen's Benevolent Association of the Police
Department of the County of Nassau, as well as the Police Department's
Rule and Regulation Article 7, Rule 6, Subdivision 7(a), 7(b).
Section 8.11-4(E) of the Collective Bargaining Agreement provided:
An employee on sick leave is only required to remain
in his/her residence between the hours 9:00 am. and
5:00 p.m. on a day he/she was regularly scheduled to
have a tour of duty. The employee may be visited by a
supervising officer at any time during the hours of
9:00 am. and 5:00 p.m. In any event, however, if the
Commissioner of Police in his discretion identifies an
employee as a sick leave abuser, the employee, upon
direction of the Commissioner of Police, may be
required to remain in his/her residence and be
visited beyond the hours prescribed above.
In addition, Section 8.11-1 of the Collective Bargaining Agreement
provided that "[v]acations, sick leave, and personal leave days shall be
granted utilizing the administrative procedures provided in Rules and
Regulations of the Police Department." One of these Police Department
Regulations was Police Department Rule and Regulation Article 7, Rule 6,
Subdivision 7(a), 7(b) ("Regulation 7(a)" and "Regulation 7(b)")
7. Confinement While on Sick Leave
a. Members of the Department, while on sick leave,
shall not leave their place of residence or
confinement during the hours of 0900 to 1700 on a
regularly scheduled work day, except when permission
is granted. Whenever a member who is on sick leave
requests permission to leave the place of residence
or confinement, either to report to the Surgeon or
to report to the Command for the purpose of
returning to duty or for a personal emergency, the
member shall contact the Desk Officer of the
Precinct of residence who, after ascertaining the
identity and present location of the member, the
place the member wishes to visit, the reason why it
is necessary for the member to leave the place of
residence or confinement, and the estimated time the
member will be away from the place of residence or
confinement, shall determine whether the request is
for a reasonable purpose and time. If and when
approval is granted, the Desk Officer shall cause an
appropriate entry to be made in the Blotter and on
PDCN Form 200. Upon the member's return to the place
of residence or confinement, the member shall notify
the Desk Officer of the Precinct of residence, who
again shall cause an appropriate entry to be made in
the Blotter and on PDCN Form 200. All other requests
by a member to leave the place of residence or
confinement shall be submitted, in writing, to the
Police Surgeon. When such approval is given by the
Police Surgeon, the Chief Surgeon's Office shall
promptly notify the Desk Officer of the member's
Precinct of residence of this fact, and said Desk
Officer shall cause appropriate entries to be made
in the Blotter and on PDCN Form 200.
b. A member of the Department identified by the
Commissioner of Police as a sick leave abuser, upon
the personal direction of the Commissioner of
Police, shall be required to remain in his residence
and be visited beyond the hours prescribed in
Article 7, Rule 6, subdivision 7a.
There were no written guidelines for the application of these
The Commissioner designated Uryevick a "sick leave abuser" on February
1, 1982, and so designated Wickers on February 25, 1983, such
designations remaining in effect until plaintiffs were approved for
Accident Disability Retirement and retired as such. Because of the
Commissioner's designation of plaintiffs as sick leave abusers,
plaintiffs were required to remain in their residences for 24 hours a day
on their regularly scheduled tour of duty days, absent permission from
the Police Department's to leave, were visited by members of the Police
Department up to four times a day during those days, and were visited on
their days off as well.*fn1
Plaintiffs allege that, as a result of Section 8.11-4(E), Regulations
7(a) and 7(b), and the Commissioner's designation of plaintiffs as sick
leave abusers, each plaintiff was
made a virtual prisoner in his home, deprived of his
personal, individual liberty by the defendants in that
he has been
subjected to frequent harassing and threatening
telephone calls, surveillance by police department
personnel both inside and outside his home,
unannounced visits by representatives of the police
department so that he was virtually unable to leave
his home without permission of the representatives
of the police department.
(Uryevick Verified Complaint, ¶ 32; Wickers Verified Complaint,
The rules and regulations of the Police Department, plaintiffs
allege in their first cause of action, prevented each from
practicing his religion, exercising his right to
vote, associating with family and friends; limited his
right to attend political meetings, to consult with
his attorneys, and to travel. Such abridgements are in
direct violation of the Constitution of the United
States, the First Amendment thereof, and the Civil
Rights Statutes of the United States and the State of
(Wickers Verified Complaint, ¶ Twenty-fourth. See Uryevick Verified
Complaint, ¶ 34).
Their second cause of action alleges the illegal deprivation of
plaintiffs' right to be employed and lost benefits associated with
employment, resulting from lack of overtime pay compensating for the
additional time plaintiffs were required to remain at home pursuant to
the Police Department's Regulations. Their third cause of action alleges
defendants' harassment and intentional infliction of emotional distress.
In this complaint, plaintiffs seek compensatory and punitive damages.
Defendants assert that they have not violated plaintiffs'
constitutionally protected rights and that punitive damages are not
available against the Police Department or Nassau County.
We set out the general principles governing summary judgment motions.
Summary judgment is proper when no material questions of fact remain to
be decided by the factfinder; the movant bears the initial burden of
establishing the absence of any genuine issues of material fact. Fed.R.
Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720
(2d Cir. 1990). The nonmovant's evidence is to be believed, and all
ambiguities and justifiable inferences to be drawn from the underlying
facts should be resolved in favor of the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202
(1986); Thompson, 896 F.2d at 720.
When the nonmovant bears the burden of proof on an issue, the movant
can discharge the burden imposed by Rule 56(c) by showing that there is
no proof to support the nonmovant's case. Celote, 477 U.S. at 325, 106
S.Ct. at 2554. If the movant is able to do this, the burden shifts to the
nonmovant, who must produce some evidence which shows that a genuine
issue of material fact remains to be decided. Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986).
Cross motions for summary judgment, such as the ones before the court,
will not, in themselves, require that the court grant judgment as a
matter of law for one side or the other. Eastman Mach. Co. v. United
States, 841 F.2d 469, 473 (2d Cir. 1988). "[N]either motion may be
granted unless one party is entitled to it as a matter of law upon
genuinely undisputed facts." Rhoads v. McFerran, 517 F.2d 66, 67 (2d
Generally, cases involving constitutional and civil rights questions do
not lend themselves to summary disposition. Voorhees v. Shull,
686 F. Supp. 389, 393 (E.D.N.Y. 1987). See also C. Wright, A. Miller &
M.K. Kane, Federal Practice & Procedure: Civil 2d § 2732.2 (1983). In
this case, however, the question whether the Police Department
regulations are facially unconstitutional does not present issues that
would preclude summary disposition. That question presents the court with
a question of law. IDK, Inc. v. Clark County, 836 F.2d 1185, 1189 (9th
Cir. 1988) (challenge to statute that it is facially unconstitutional
involves questions on which summary judgment is often appropriate)
v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 101 S.Ct.
2559, 69 L.Ed.2d 298 (1981)); Voorhees, 686 F. Supp. at 393.
Facial Constitutionality of the Rules
The threshold question in determining the constitutionality of a state
or municipal rule or regulation governing the conduct of its employees is
what standard of judicial scrutiny to apply. Usually, when rights
specifically protected by the Bill of Rights are curtailed by municipal
regulations, "strict scrutiny" applies, and the municipality must
demonstrate a compelling interest to justify their existence, and that
the regulation is narrowly tailored to meet that interest. Elrod v.
Burns, 427 U.S. 347, 362-63, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976).
However, the Supreme Court has indicated that the state as employer has
an interest which differs significantly from its interests in regulating
the citizenry in general, and that when the state acts as an employer the
courts should evaluate its actions under the more deferential "rational
relationship" standard. Kelley v. Johnson, 425 U.S. 238, 245, 96 S.Ct.
1440, 1444-45, 47 L.Ed.2d 708 (1976); Pickering v. Bd. of Educ.,
391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). See
also Philadelphia Lodge No. 5 v. City of Philadelphia, 599 F. Supp. 254,
257 (E.D.Pa. 1984), aff'd, 779 F.2d 43 (3d Cir. 1985); Voorhees, 686 F.
Supp. at 393.
Courts that have addressed the constitutionality of regulations similar
to the one in the instant case have applied the rational relationship
standard. Hambsch v. Dep't of Treasury, 796 F.2d 430, 434 (Fed.Cir. 1986)
(regulation limiting right of secret service members to travel outside
Washington); Philadelphia Lodge No. 5 v. City of Philadelphia,
599 F. Supp. 254, 257-58 (E.D.Pa. 1984) (police officer sick leave
regulations), aff'd, 779 F.2d 43 (3d Cir. 1985); Voorhees v. Skull,
686 F. Supp. 389, 393-94 (E.D.N.Y. 1987) (same); Korenyi v. Dep't of
Sanitation of City of New York, 699 F. Supp. 388, 395 (E.D.N.Y. 1988)
(sanitation worker sick leave regulations); Serge v. City of Scranton,
610 F. Supp. 1086, 1087-88 (M.D.Pa. 1985) (same).*fn2 Under the rational
relationship test, the regulation, to be constitutional, "must be
rationally connected in a non-arbitrary fashion to the [Police
Department's] interest in fostering public safety by contributing to the
efficient operations of the [Police Department]." Hambsch, 796 F.2d at
434 (citing Kelley, 425 U.S. at 247-48, 96 S.Ct. at 1445-46); Voorhees,
686 F. Supp. at 394.
In Voorhees, a case almost identical to the instant case, a police
officer alleged that the city's sick leave regulation requiring that an
officer on sick leave remain at his residence between 9:00 a.m. and 5:00
p.m., absent permission to leave from the Police Commissioner or another
authorized individual, was facially unconstitutional and
unconstitutionally deprived the officer, inter alia, of his
constitutional rights to travel, religious worship and free association.
Applying the rational relationship test, the court in Voorhees
the police department has an important interest in
preventing malingering or "goldbricking" and in
expediting the officer's return to work. Some scheme
whereby the police department can monttor an officer's
activities is necessary and desirable . . .
However, even assuming a rational connection to the
government's interest, [the regulation] does not
automatically pass constitutional muster. It is not
enough that there be a rational connection; the
restrictive regulation must be rationally connected in
a non-arbitrary fashion to the state interest. See
Hambsch, 796 F.2d at 434 (citing Kelley, 425 U.S. at
247-48, 96 S.Ct. at 1445-46).
Voorhees, 686 F. Supp. at 394 (emphasis in original). Because there were
no guidelines for the application of the regulation, the court concluded
that the regulation was
not rationally related in a non-arbitrary way to the government's
Defendants conceded that there are no guidelines for
the application of the [regulation]. Presumably, the
determination to grant or deny permission to [leave
home] rests solely within the discretion of the Police
Commissioner, Police Surgeon, supervisory officer or
duty officer. Thus, the potential for wholly arbitrary
denial of an officer's constitutionally protected
rights to vote, go to church, freely associate, etc.
exists. The court in Philadelphia Lodge found that
where no guidelines existed for the issuance of passes
for injured officers to leave home, "their issuance
ha[d] no rational basis." 599 F. Supp. at 258. In
light of the potentially arbitrary application of [the
regulation], we hold that it is facially
unconstitutional, and we grant partial summary
judgment on this claim to the plaintiff.
Id. at 394-95 (footnote omitted).
Similarly, in the instant case, Regulation 7(a) did not contain any
written guidelines governing the Desk Officer's determination of whether
a request to leave home is for a "reasonable purpose and time."
Regulation 7(a). Although the regulation specifies the information the
officer on sick leave must furnish to the Desk Officer for the latter to
make his determination, there were no guidelines for the Desk Officer's
determination of what is "reasonable." Defendants concede there were no
written guidelines for this determination, but essentially assert that
"reasonable purpose" is itself a "promulgated standard." (Defendants'
Memorandum of Law, at 10). According to defendants, a "rule of reason"
was to apply to requests to leave residence. (Affidavit of Detective
Kiesel in Opposition to Plaintiffs' Cross-Motion, ¶ Seventh).
However, a "rule of reason, without clear guidelines, allows "the
potential for wholly arbitrary denial of an officer's constitutionally
protected rights to vote, go to church, freely associate, etc." Voorhees,
686 F. Supp. at 395. Indeed, defendants concede that the Police
Department subsequently enacted a set of guidelines "to clarify the
circumstances under which permission was to be given to leave residence
*fn3 (Kiesel Affidavit, ¶ Seventh).
Although defendants attempt to distinguish Voorhees, the instant case
presents an even more compelling case for finding
the Regulation to be unconstitutional. First, in Voorhees, officers on
sick leave were confined to their residence from 9:00 am. to 5:00 p.m. on
their regularly scheduled tour of duty days, unless permission to leave
home was granted. In the instant case, as a consequence of the Police
Commissioner's designation of plaintiffs as "sick leave abusers,"
plaintiffs were confined to their residences for twenty-four hours a day
on their regularly scheduled tour of duty days, unless the Desk Officer
granted a "reasonable purpose" to leave home. Thus, the period of
confinement over which the Desk Officer exercised his discretion to grant
leave, and the potential for wholly arbitrary denial of the sick leave
officer's constitutionally protected rights, is substantially greater in
the instant case.
Second, the Police Commissioner's subsidiary determination, pursuant to
Regulation 7(b), that an officer on sick leave is a "sick leave abuser,"
is also devoid of any guidelines. During deposition testimony of
defendants, Detective Kiesel conceded that the Police Commissioner had no
clear guidelines in his designation that an officer is a "sick leave
abuser" and must be confined to his home twenty-four hours a day on
regularly scheduled tour of duty days:
Q. I believe in that Notice, I requested whoever was
coming down here helping Nassau County Police
Department to have some sort of documentation that
would define what a sick leave abuser is.
A. There is no such documentation, nothing in
Q. Is that to the best of your knowledge, or have you
spoken to other individuals in the Nassau County
Police Department regarding this?
A. I also spoke with the Commissioner. I know there is
nothing in writing as to specifically what
constitutes a sick leave abuser. There is no
absolute formula that you can say it fits in this
Q. Has the Nassau County Police Department ever
defined what a sick leave abuser is, and the
description of what a sick leave abuser is?
Ms. Capitolo: In written form? Mr. Dubinsky: Yes.
A. Not to my knowledge, no.
(Kiesel Deposition, at 25-26) (quoted from Plaintiff's Memorandum of
Law, at 8-9).*fn4 Thus, not only is the Desk Officer's "reasonable
purpose" determination, pursuant to Regulation 7(a), devoid of any
guidelines, but the Police Commissioner's "sick leave abuser"
designation, pursuant to Regulation 7(b), is as well.
The thrust of defendants' position is that they did not deprive
plaintiffs of their constitutional rights, and that Voorhees is
distinguishable, because Regulations 7(a) and 7(b) are incorporated
into plaintiffs' Collective Bargaining Agreement through Section 8.11-1
of that agreement,*fn5 the complaints are framed in terms of contract
(rather than tort), and therefore the sick leave requirements are merely
part of the quid pro quo of plaintiffs' contract.
In Voorhees, the court declined to address the issue of the
constitutionality of the sick leave provision in the Collective
Bargaining Agreement, for it was both unnecessary and undesirable;
Voorhees' claim was against the Police Department, not his union.
Voorhees, 686 F. Supp. at 393. Similarly, in the instant case,
plaintiffs' claim is not against the union, so we need not address the
constitutionality of Section 8.11-4(E) of the Collective Bargaining
Agreement. Furthermore, that Regulations 7(a) and 7(b) are incorporated
into the Collective Bargaining Agreement by Section 8.11-1 of that
agreement, and are therefore part of plaintiffs' "bargain" in
working for the County, is already accounted for by the lowered level of
judicial scrutiny with which we examine the constitutionality of the
Regulations. As discussed above, if plaintiffs were suing as ordinary
citizens being subject to the Regulations, and not as (former) employees
of the Police Department, the Regulations would be subject to strict
scrutiny and would almost certainly fail. However, since plaintiffs were
subject to the Regulations by virtue of their status as county
employees, the much more deferential "rationally related" standard of
scrutiny applies. That the state Regulation governed the conduct of state
employees already weighs the scale in favor of upholding the
constitutionality of the Regulation; incorporation of the Regulation into
the employee's contract does not change the analysis or the result. An
otherwise facially unconstitutional state regulation is not saved by the
incorporation of that regulation into the employee's formal contract with
Because Regulations 7(a) and 7(b) did not contain guidelines for the
application of the procedures therein (specifically, the determination of
"reasonable purpose" and the designation of a "sick leave abuser"), we
hold that the Regulations were facially unconstitutional.
The court wishes to stress, as we did in Voorhees, 686 F. Supp. at
395, that it is the lack of guidelines which prompts our decision in this
matter, and not a belief that the Police Department's interest in
monitoring injured officers' activities is in any way trivial. Such
interest is far from trivial. As the court noted in Loughran v. Codd,
432 F. Supp. 259, 263 (E.D.N Y 1976):
Department official should rightly have available an
effective means by which to verify the legitimacy of
an officer's disability claim and the necessity for
his absence from duty . . . . [T]he purpose . . . is
to ensure that a disabled member performing no duty
does not partake in activity that is inconsistent with
his status and which might undermine his expeditious
return to service.
The County of Nassau, through the Police Commissioner and the Police
Department, should develop a set of regulations rationally connected to
the County's legitimate goal of monitoring its sick and injured
officers, including guidelines to ensure their non-arbitrary
Unconstitutionality as Applied to Plaintiffs
Although we have found Regulations 7(a) and 7(b) to be facially
unconstitutional, plaintiffs allege a deprivation of their constitutional
rights, and damages, as a result of the application of the regulations to
them. Plaintiffs' affidavits state not a single specific instance of
deprivation and defendants deny any such deprivation. Issues of material
fact obviously exist as to the question of unconstitutional application
of the Regulations to plaintiffs. Where "the party against whom summary
judgment is sought comes forth with affidavits or other material . . .
that generates uncertainty as to the true state of any material fact, the
procedural weapon of summary judgment is inappropriate." Quinn v. Syracuse
Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). Here, both
parties' affidavits generate uncertainty as to material facts and
defendants' motion and plaintiffs' cross-motion for summary judgment are
therefore denied in regard to the issue of the unconstitutionality of the
Regulations as applied to plaintiffs.
Punitive Damages Claim
Plaintiffs have demanded punitive damages from defendants Police
Commissioner, Police Department, and the County. Punitive damages are
permissible under Section 1983 "when the defendant's conduct is shown to
be motivated by evil nature of intent, or when it involves reckless or
indifference to the federally protected rights of others." Smith v.
Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983).
Punitive damages may be awarded even in the absence of compensatory
damages. Baltezore v. Concordia Parish Sheriff's Dep't, 767 F.2d 202, 208
(5th Cir. 1985), cert. denied, 474 U.S. 1065, 106 S.Ct. 817, 88 L.Ed.2d
790 (1986); Dykes v. Hosemann, 743 F.2d 1488, 1500 (11th Cir. 1984),
cert. denied, 479 U.S. 983, 107 S.Ct. 569, 93 L.Ed.2d 574 (1986). See
Smith v. Wade, 461 U.S. 30, 55 n. 21, 103 S.Ct. 1625, 1639 n. 21, 75
L.Ed.2d 632 (1983) ("punitive damages may be the only significant remedy
available in some § 1983 actions where constitutional rights are
maliciously violated but the victim cannot prove compensable injury").
However, only individual defendants are liable for punitive damages
under Section 1983; municipalities are immune from such liability. City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748,
2762, 69 L.Ed.2d 616 (1981). Accordingly, plaintiffs' claim for punitive
damages against defendants Nassau County Police Department and County of
Nassau are dismissed.*fn7 Plaintiffs' punitive damages claim against the
individual defendant, Samuel J. Rozzi (the Police Commissioner),
however, is not dismissed because issues of material fact exist.
The awarding of punitive damages in a Section 1983 action involves
several questions of fact:
The allowance of such damages involves an evaluation
of the nature of the conduct in question, the wisdom
of some form of pecuniary punishment, and the
advisability of a deterrent. Therefore, the infliction
of such damages, and the amount thereof when
inflicted, are of necessity within the discretion of
the trier of fact.
Gordon v. Norman, 788 F.2d 1194
, 1199 (6th Cir. 1986). See Smith, 461
U.S. at 56, 103 S.Ct. at 1640; Dillon v. Coles, 746 F.2d 998
, 1002 (3d
Cir. 1984). Plaintiffs claim that defendants' (including Rozzi) actions
were "malicious," "intentional," and "intended to embarrass and disrupt"
plaintiffs' lives. (Uryevick Verified Complaint, ¶ 44; Wickers
Verified Complaint, ¶ Thirty-fourth). However, plaintiffs allege no
specific instances of such conduct. Defendant Rozzi denies that any such
conduct occurred, and that plaintiffs' constitutional rights were
deprived of whatsoever. We conclude that a clear dispute exists as to
genuine issues of material fact which would preclude summary judgment of
this issue as a matter of law.
In addition, the issue of proximate cause regarding injury plaintiffs
may have suffered must also be submitted to the jury. A finding of facial
unconstitutionality does not establish these plaintiffs' damages. The
injury must not be "too remote a consequence of the [state] action to
hold [it] responsible under the federal civil rights laws." Martinez v.
Cal., 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980). This
imposes a proximate cause requirement as a prerequisite for Section 1983
liability. Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378,
1382-83, 103 L.Ed.2d 628 (1989). Proximate cause normally presents an
issue of fact to be determined at trial rather than on summary
disposition. Estate of Bailey v. County of York, 768 F.2d 503, 511 (3d
Cir. 1985); Voorhees, 686 F. Supp. at 396. Nothing in plaintiffs' and
defendants' pleadings and moving papers changes this general rule, and
plaintiffs will be required to prove proximate cause at trial.
Summary judgment on the single issue of the facial unconstitutionality
of Regulations 7(a) and 7(b) is granted to plaintiffs. Summary judgment
for plaintiffs is in all other respects denied. Plaintiffs' claims for
punitive damages against defendants Nassau County Police Department and
County of Nassau are dismissed. Defendants'
summary judgment motion is in all other respects denied.