stopping and seizure of Dempsey and Curenton for a period of
about twenty minutes while Curenton was taken to the bank for
viewing was reasonable.
1. The Stop
Under the first part of the analysis, I must determine if
the initial stop was reasonable and justified. On the facts
presented here, I find as a matter of law that the stop was
reasonable. The officers were investigating a serious crime
— armed bank robbery — that had occurred less than
an hour earlier, about four blocks from where plaintiffs were
initially spotted. The fact that a known crime had occurred is
very important and distinguishes this case from others where
the police had no independent evidence that a crime had
occurred before they confronted a suspect.
The contact took place just a few blocks from the crime
scene in the direction that the robber reportedly had fled.
The undisputed evidence is that a black man robbed the bank.
Plaintiffs' papers suggest some type of racial animus was
present in singling out Curenton because he was black. I fail
to see how race was a factor here. The police knew that the
perpetrator was black. It would have been folly for them to
look for anyone other than a person fitting the general
description of the robber. If there had been no description of
the robber as black, it might well have been impermissible to
single out black men but that is certainly not what occurred in
Based on the descriptions of the robbery suspect given over
the police radio, it was reasonable for Officer Sleep to
believe that he had a basis to stop and investigative
Curenton. Radio broadcasts after a robbery are not always
models of precision and clarity. In the often frenzied and
fast developing circumstances immediately following a robbery,
police officers often must rely upon sketchy information in an
attempt to apprehend the perpetrators.
The description broadcast over the police radio described
the robber as a young black male, about six feet tall with a
slim build wearing a long-sleeved purple shirt, or possibly a
blue jacket, a hat and sunglasses. The suspect was also
described as having threatened a gun, although one was not
displayed. Officer Sleep saw Curenton and believed he matched
the general description of the robber. He described Curenton
as a black male, about six feet tall, wearing blue clothing
and sunglasses. He also saw that Curenton was carrying a bag.
Sleep's interest was further aroused when he saw Curenton jump
into a waiting car. It is also important to keep in mind that
all of this transpired within four tenths of a mile from the
Sleep made a decision to stop Curenton and investigate
further, but only after first confirming the suspect's
description with the dispatcher. Considering all the
information available to Sleep, his decision to stop the
plaintiffs and investigate was justified. The only other
choice that Sleep had at the moment was simply to let the car
drive away and perhaps be lost forever.
Having made the decision to stop Dempsey's vehicle, Sleep
then had two choices: He could saunter up to the car window
and confront the two unknown men or he could take reasonable
precautions for his safety and the safety of bystanders before
he investigated further. I cannot fault Sleep under the facts
here for choosing the latter course. Sleep had articulable
facts amounting to a suspicion that one of these men had just
committed armed robbery. Based on these facts, it was not
unreasonable for Sleep to suspect that the other man was a
cohort, driving the get away vehicle. In my view, it would
have been unreasonable for Sleep not to take precautions to
protect himself and bystanders. See Harley, 682 F.2d at 402
("In weighing the conduct of the officers involved, we must
give due consideration to their experienced judgment.")
Further, the Brighton Police Department's felony-stop
procedures are designed to guard against the special dangers
faced by police when attempting to approach suspects in
automobiles. Terry recognized that it is unreasonable for
courts to require police officers to take "unnecessary risks in
the performance of their duties." Id. at 23, 88 S.Ct. at 1881.
legion that support that principle. See Harley, 682 F.2d at 402
("We would be heartless if we did not share the officers'
concern for their own safety. . . . [W]e cannot impose on law
enforcement personnel the hobson's choice of keeping their guns
holstered when to do so `increases the risk that they will be
The Second Circuit recently noted in Alexander that it was
not unreasonable for investigating officers to protect
themselves by unholstering their guns especially in a car-stop
situation which is "especially hazardous and supports the need
for added safeguards." Alexander, 907 F.2d at 273. In
Alexander, the officers stopped the suspect's car, approached
him with guns drawn, removed him from the car and frisked him.
The Court of Appeals stated:
There are no hard and fast rules for evaluating
the conduct of law enforcement officers
conducting investigative stops. [Citations
omitted.] A law enforcement agent, faced with the
possibility of danger, has a right to take
reasonable steps to protect himself and an
obligation to ensure the safety of innocent
bystanders, regardless of whether probable cause
to arrest exists. [Citations omitted.] The
officer need not be absolutely certain that the
individual is armed; the issue is whether a
reasonably prudent man in the circumstances would
be warranted in the belief that his safety or
that of others was in danger. [Citation omitted.]
Alexander, 907 F.2d at 272.
In the case before me, I do not find that the amount of
force used by these officers to freeze the situation upon
their first contact with plaintiffs was excessive as a matter
2. The Show-up
The next issue is whether the police were reasonable in
transporting Curenton to the bank and in detaining Dempsey
during that process. The parties agree that the entire stop,
detention and show-up took no more than twenty minutes.
Based on the circumstances facing the officers at the time
and based on 20/20 hindsight, the officers' transportation of
Curenton to the scene is precisely what should have been done
under the circumstances . The quickest, least intrusive way of
determining if Curenton was in fact the robber was to take him
to the bank for a viewing by the tellers who witnessed the
robbery. Courts have time and again approved on-the-scene
showups, occurring reasonably soon after the crime, as one of
the best ways not only to catch the criminal but also to
exonerate the innocent. People v. Hicks, 68 N.Y.2d 234, 242-43,
508 N.Y.S.2d 163, 500 N.E.2d 861 (1986); United States v.
Bennefield, 741 F. Supp. 1002, 1006 (D.Mass. 1990) ("[w]here the
innocent may have been mistakenly apprehended, prompt
identification allows the police to realize their error and to
continue their search while the criminal is still within easy
Within a matter of minutes, Curenton was taken a few blocks
back to the bank, viewed by the victim teller and exonerated.
The justification for taking Curenton back to the bank is
strengthened by the fact that Sergeant LaRonde, who ordered
that Curenton be transported to the bank for the show-up, was
aware that a blue "get-away" car may have been involved.
Deposition at 645. Sergeant LaRonde ordered the show-up based
on his belief that Curenton matched the general description of
the bank robber and his knowledge that a blue compact car,
driven by a white man, may have been involved in the robbery.
LaRonde Deposition at 645.
Curenton was not taken to the bank in handcuffs and, in
fact, accompanied the officer without objection. He was
completely cooperative with the police. Immediately after the
show-up exonerated Curenton, the police returned him to
Dempsey's vehicle and both men departed for work.
The police acted reasonably here. The scope of the detention
was limited. Curenton was not interrogated for long periods of
time; he was given a prompt explanation as to why he was taken
to the bank and he was never taken to a police station or
other location for questioning.
People v. Hicks, supra, decided by New York's highest court
about a year before the stop of Dempsey and Curenton, is
squarely on point. In that case, the New York Court of Appeals
conceded, that probable cause was lacking to arrest Hicks. But,
based on the description of the robber, the court held that it
was reasonable to stop the defendant and return him to the
scene for viewing by the robbery victims. Hicks discussed the
same issue presented here, that is, what are the bounds of
"prolonged" Terry stop. Hicks, 68 N.Y.2d at 241, 508 N.Y.S.2d
163, 500 N.E.2d 861. The Court of Appeals upheld the show-up
procedure not only because its purpose was to confirm or dispel
reasonable suspicion quickly, but also because the authorities
knew that a crime had actually been committed, the period of
detention was brief, the crime scene to which defendant was
taken was very close, and eye witnesses were there. Hicks, 68
N Y2d at 243, 508 N.Y.S.2d 163, 500 N.E.2d 861.
The court in Hicks relied principally on the guide posts set
up by the Supreme Court in Sharpe and held that the
transportation of the defendant was reasonable. The language
from Hicks, 68 N.Y.2d at 242, 508 N.Y.S.2d 163, 500 N.E.2d 861
Nor does the fact that the detention included
transporting defendant to the crime scene render
the seizure unreasonable. There were witnesses
within a quarter mile of the place of inquiry
— approximately one minute away by car
— who had just seen the perpetrators and
would either identify defendant (in which event
he would be arrested) or not identify him (in
which event he would be released). A speedy
on-the-scene viewing thus was a valuable to law
enforcement authorities and to defendant and was
The factors in Hicks that made the show-up reasonable in that
case are also present here. The police action was aimed at
confirming or dispelling reasonable suspicion quickly. The
Brighton Police officers knew that the crime of armed robbery
had actually been committed; the total period of detention was
about 20 minutes, the crime scene to which Curenton was taken
was very close, and eyewitnesses were there; and finally there
is no proof of significantly less intrusive means available to
accomplish the same purpose.
Finally, I note that neither plaintiff appears to have
alleged any damage — aside from the loss of a few minutes
— other than injury to his dignity. Under the
circumstances, it appears then that the actions taken by the
officers were successful both in minimizing danger to
themselves and harm to plaintiffs. Their conduct also resulted
in the prompt release and exoneration of Curenton.
C. Qualified Immunity
I believe that under applicable precedent, the Brighton
Police were reasonable in stopping plaintiff's vehicle and in
transporting Curenton a few blocks to the bank for viewing by
bank employees. In addition, I believe that summary judgment
for the individual officers is also appropriate because on
these undisputed facts the officers had qualified immunity
from any civil actions relating to their conduct.
Questions of immunity should be resolved at the earliest
possible stage of
the litigation so that an officer who is immune from suit will
not have to proceed through a lengthy trial to establish that
fact. Qualified immunity is not really an affirmative defense
but is more in the nature of a bar to suit. Mitchell v.
Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815-16, 86
L.Ed.2d 411 (1985). "[T]he defense has been construed as an
immunity from suit not a mere defense to liability." Warren v.
Dwyer, 906 F.2d 70, 74 (2d Cir. 1990).
If there are no material disputed facts to be resolved, then
the decision concerning qualified immunity is a question of
law for the court to decide. Finnegan v. Fountain,
915 F.2d 817, 821 (2d Cir. 1990).
The standard for determining qualified immunity in federal
court, "was designed to facilitate resolution of the defense
on a motion for summary judgment." Warren, 906 F.2d at 74. In
Warren, the Second Circuit stated that the "better rule" is for
the Court to decide the issue of qualified immunity as a matter
of law, "preferably on a pretrial motion for summary judgment."
906 F.2d at 76. See also Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (the qualified
immunity test "permits the resolution of many insubstantial
claims on summary judgment").
The standard for determining whether qualified immunity
applies is now well established. In Warren, a recent case
concerning a § 1983 suit for false arrest, the Second Circuit
summarized the applicable principles:
Government officials performing discretionary
functions are shielded from personal liability
"insofar as their conduct does not violate
clearly established statutory or constitutional
rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818
[102 S.Ct. 2727, 2738, 73 L.Ed.2d 396] (1982). Even
where the law is "clearly established" and the
scope of an official's permissible conduct is
"clearly defined," the qualified immunity defense
also protects an official if it was "objectively
reasonable" for him at the time of the challenged
action to believe his acts were lawful. Anderson v.
Creighton, 483 U.S. 635, 641 [107 S.Ct. 3034, 3040,
97 L.Ed.2d 523] (1987) (explaining Harlow v.
Fitzgerald, 457 U.S. at 800 [102 S.Ct. at 2727]);
Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987)
(acknowledging three avenues of relief).
906 F.2d at 74.