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October 29, 1990


The opinion of the court was delivered by: Larimer, District Judge.


Plaintiffs Edward Murtagh Dempsey and Mark S. Curenton brought these two actions pursuant to 42 U.S.C. § 1981, 1983, 1985 and 1988 to recover damages allegedly suffered when defendant officers of the Brighton, New York, Police Department mistakenly detained them upon suspicion of bank robbery.

Plaintiffs move for partial summary judgment on their claims of false arrest and excessive force. Defendants cross-move for partial summary judgment on the issues of negligent training and supervision. For the reasons that follow, I find that this incident was an investigatory stop made upon appropriate reasonable suspicion, and consequently grant summary judgment in favor of the defendants and dismiss the complaint.


The facts material to this motion are not disputed. This is a case of mistaken identity. It arises out of the June 12, 1987 detention of plaintiffs by members of the Brighton, New York, Police Department on suspicion of bank robbery.

A. The Facts

On June 12, 1987, at approximately 1:30 in the afternoon, a man entered the Monroe Savings Bank on Monroe Avenue in Brighton and handed the teller a note. The note, written on a brown paper bag, directed the teller to hand over all of her one, five and ten dollar bills. Although the bank robber made reference to a gun during the course of the hold-up, no weapon was actually seen. Eyewitnesses agreed that the robber placed the cash in a paper bag and fled the bank on foot heading toward the City of Rochester.

Immediately after the robbery, the branch manager of the bank notified the Brighton Police Department of the incident and gave the police dispatcher a description of the robber. The initial information broadcast to the Brighton police units on patrol described the robber as "a young black male wearing a blue jacket, unknown if a weapon was shown. Last seen heading towards the city on foot on Monroe Avenue." Radio Transmission Tape for June 12, 1987, Side A, Tape 2, at 2.

Several minutes later, the police dispatcher broadcast the following description of the robber:

  You are looking for a male black, 6 foot, slim
  built, wearing a long-sleeved purple shirt, blue
  jeans, tan hat with a chin strap, sunglasses. Do
  not have a description on any vehicle. Last seen
  on foot towards the city on Monroe Avenue. A gun
  was threatened but none displayed.

Radio Transmission Tape, Side A, Tape 2, at 11.

It is undisputed, however, that as Sleep looked on with mounting interest a compact blue Toyota driven by a white man stopped to pick up Curenton. The driver and owner of the car was plaintiff Edward Murtagh Dempsey ("Dempsey"), a friend and college classmate of Curenton's. It was apparently the two men's custom to meet each day at an appointed time near the Monroe-Highland intersection in question. Dempsey would then pick up Curenton and the two would drive together to the local lumberyard where they both worked.

Officer Sleep, mistakenly suspecting that he had picked up the trail of robbery suspects, followed Dempsey and Curenton for a short distance in his police cruiser. Before long, Sleep determined to stop the two.

Defendants acknowledge that two New York State Police troopers in separate cruisers were also patrolling the vicinity of Monroe and Highland at this time. The troopers apparently spotted Curenton, but concluded that he did not fit their description of the bank robber. However, it appears that their description of the robber may have been different than the one Sleep had because the state troopers did not receive the Brighton police radio frequency.

After a call to Brighton Police headquarters confirming the bank robber's description and requesting help, Sleep turned on his flashers and pulled over Dempsey's Toyota.

Sleep acted under so-called "felony-stop" procedures, which the Brighton police are trained to employ in potentially violent encounters. Under these procedures Sleep, without leaving his cruiser's side, unholstered his gun and over the cruiser's public address system ordered Dempsey to throw his car keys out of the driver's window. Dempsey did so. Sleep then ordered both Dempsey and Curenton to put their hands on the car's windshield where he could see them. They did so. Lastly, the policeman ordered Curenton, and then Dempsey, to crawl out of the passenger's side of the Toyota and lay face down on the grass. Still at gunpoint, plaintiffs complied.

While all this was occurring, backup arrived in the form of defendant Officers Robert E. Hickey and Frederick J. Mellini. More officers may have come onto the scene shortly thereafter. These officers approached plaintiffs with weapons drawn, in order to search them. During this time the police maintain that they kept their guns trained on plaintiffs for no more than a couple of minutes, until plaintiffs were handcuffed and searched. Plaintiffs say it was longer.

Though the plaintiffs apparently put up no resistance, it is undisputed that Dempsey was yelling and thrashing about. Dempsey Deposition at 307; Deposition of Frederick Mellini, November 27, 1989, at 584; Deposition of Robert Hickey, November 27, 1989, at 796. Dempsey also demanded that the Brighton Town Supervisor, a friend of Dempsey's, be contacted. Dempsey Deposition at 307.

Dempsey claims that one of the officers deliberately stepped on his hand while he was on the ground; for their part, each officer involved in this incident denies the charge. It is also a fact, however, that plaintiff did not seek, or require, medical treatment after this incident.

Sergeant William LaRonde, another member of the Brighton police force, arrived as the plaintiffs were being handcuffed. Sergeant LaRonde ordered Officer Mellini to take Curenton to the Monroe Savings Bank for a show-up identification. LaRonde gave this order based on information he received from a police investigator at the bank that a blue compact car, driven by a white man, may have been involved and based on his belief that Curenton matched the general description of the bank robber. Deposition of William LaRonde, November 27, 1989, at 645. A witness told the investigator that she saw a blue compact car, driven by a white man, speed away from the bank's vicinity immediately after the robbery.*fn1

At Sergeant LaRonde's direction, Officer Mellini placed Curenton in a police cruiser and took him to the bank for a show-up identification. It is unclear whether the officers told Dempsey that he was free to leave at this time. In any event, Dempsey remained at the stop site to wait for his friend. Curenton was not taken to the bank in handcuffs. Curenton Deposition at 30; Hickey Deposition at 792. In fact, he was completely cooperative with the police. At the bank, eyewitnesses advised Mellini that Curenton was not the robber.

Mellini then returned Curenton to the point where the stop occurred. Dempsey was waiting with several officers. The officers claim that they apologized, and that Dempsey shrugged the whole thing off, joking that he had received harsher treatment from his mother. Mellini Deposition at 582, 587-88. Plaintiffs now deny this. Dempsey Deposition at 308, 316-18. In the end, plaintiffs drove off to work.

It is undisputed that the entire incident lasted approximately twenty minutes. It is similarly undisputed that at no time did the officers tell plaintiffs that they were under arrest or give any Miranda warnings. It also appears undisputed that plaintiffs were not physically injured in any way. No medical treatment was requested or sought by plaintiffs. Finally, though a television news crew with a camera appeared briefly on the scene, it is uncertain whether it shot any footage. If it did, any resulting film was apparently never aired. It is undisputed that no one who personally knew either of the plaintiffs witnessed this incident.

About two months later, Franklin Charles Leonard confessed to the Monroe Savings Bank robbery. He is now in jail.

B. The Lawsuit

Plaintiff Dempsey initiated this action on July 7, 1988, claiming violations of his Constitutional rights by the defendants, the Town of Brighton, its chief of police and certain of the Town's police officers. Plaintiff Curenton commenced a parallel action on August 31, 1988. By order dated January 11, 1989, this court consolidated these actions.

Plaintiffs claim that the individual police defendants violated their civil rights by mistakenly subjecting them to a full arrest without underlying probable cause and by employing excessive force. Plaintiffs also claim that their civil rights were violated by the town, its police department and its police chief, in that these parties engaged in a policy of failing to train or supervise the Brighton police officers involved in the incident, which failure resulted in discrimination against plaintiffs on the basis of race. Defendants deny all this, and claim that the incident was merely an investigative detention made upon the appropriate level of reasonable suspicion.

Plaintiffs move for partial summary judgment, praying in essence that I find that this incident was an arrest, and that the police must consequently demonstrate the higher standard of probable cause to justify the seizure. Defendants cross-move for partial summary judgment on the issues of negligent training and supervision.


A. Summary Judgment: The Legal Standard

The purpose of a summary judgment motion "is to isolate and dispose of factually unsupported claims. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Federal Rule of Civil Procedure 56(c) requires the court to grant summary judgment if the evidence offered demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden of demonstrating the lack of any genuine issue of material fact rests on the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Ambiguities or inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment motion. Id. However, a non-moving party may not rely on mere conclusory allegations but must set forth "concrete particulars" to defeat summary judgment. Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir. 1983).

It is well settled that "summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56." 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2720, pp. 29-30 (2d ed. 1983). See also Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir. 1975) (sua sponte award of summary judgment in favor of non-moving party appropriate); Local 33, Intl. Hod Carriers Bldg. & Common Laborers' Union of America v. Mason Tenders Dist. Council of Greater New York, 291 F.2d 496, 505 (2d Cir. 1961) ("[I]t is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had defendant made a cross-motion for summary judgment.")

A motion for summary judgment searches the record. American Camping Ass'n, Inc. v. Whalen, 554 F. Supp. 396, 399 (S.D.N.Y. 1983); McGovern v. Blaha, 496 F. Supp. 964, 965 (W.D.N.Y. 1980); In re AP Industries, Inc., 117 B.R. 789, 796 (Bankr. S.D.N.Y. 1990). If undisputed facts are found which, when applied to the law, indicate that judgment against the moving party is appropriate, Rule 56(c) will operate to grant summary judgment in favor of the non-moving party. See Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir. 1983) (a district judge may grant summary judgment to a nonmoving party, if no genuine issues of material fact have been shown.) "The making of a motion for summary judgment exposes the moving party to the risk that summary judgment will ...

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