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.
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.
Brighton Police Officer Thomas Sleep, a seventeen year
veteran with the force, was assigned to patrol the area near
the bank. About an hour after the robbery, as police combed
the area for a suspect, Officer Sleep spotted plaintiff Mark
("Curenton"), a black man, at the corner of Highland and
Monroe Avenues. This location is about four-tenths of a mile
"towards the city" of Rochester from the bank. According to
Officer Sleep, Curenton — who stands about six feet tall and
was wearing blue clothing and sunglasses — emerged from some
shrubbery near the street corner carrying a bag and jumped into
a waiting car. Deposition of Thomas Sleep, November 27, 1989,
at 438-40, 460-63; Radio Transmission Tape, Side A, Tape 2, at
17-18. Curenton strongly denies that he came out from behind
bushes. Rather, Curenton claims that he was standing on the
curb or sidewalk when Officer Sleep first saw him. Deposition
of Mark S. Curenton, February 17, 1988, at 13-14; deposition of
Edward M. Dempsey, November 22, 1989, at 283-84.
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
About two months later, Franklin Charles Leonard confessed
to the Monroe Savings Bank robbery. He is now in jail.
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.
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
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
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 ...