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WASHINGTON SQUARE POST #1212, AMERICAN LEGION v. C

AUGUST 31, 1992

WASHINGTON SQUARE POST #1212, AMERICAN LEGION, EDWARD SEMENZA, NICHOLAS COMPIGLIA, PATRICK PETRUCELLI, WILLIAM GENOVESE, STEVEN J. GAMBINO, THOMAS STIO, JOHN DE DOMENICI, JOSEPH CIGLIANO and SALVATORE IANNIELLO, JR., Plaintiffs, against THE CITY OF NEW YORK; BENJAMIN WARD, Police Commissioner, City of New York; JOHN L. HOGAN, Assistant Director of the Federal Bureau of Investigation, DENIS MADURO, PAUL MEYER, SUSAN SCHNITZER, MICHAEL LOZZO, CYNTHIE SUMNER, STANLEY NYE, THOMAS FINN, RICHARD McHENRY, WILLIAM JENKINS, and DAVID STONE, Agents of the Federal Bureau of Investigation; LT. WILLIAM J. SHANNON, SGT. JOSEPH CAIOLA, DET. CARL BARBARA, DET. PATRICK PURCELL, DET. STEVE GILBERT, DET. JOSEPH BLIK, DET. WILLIAM PAVONE, and DET. JOSE FLORES, Police Officers of the City of New York, Defendants.

Leisure


The opinion of the court was delivered by: PETER K. LEISURE

ORDER AND OPINION

LEISURE, District Judge:

 This is a civil rights action arising out of a warrantless entry and search of American Legion Post #1212 (the "Post"), which was conducted in connection with an investigation into the January 1986 shootings of two detectives of the New York City Police Department (the "NYPD"). All of plaintiffs' claims against the City of New York (the "City"); Benjamin Ward, Police Commissioner of the City (the "Commissioner"); John L. Hogan ("Hogan"), Assistant Director of the Federal Bureau of Investigation (the "FBI"); and Denis Maduro, Paul Meyer, Susan Schnitzer, Michael Luzzo, Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry, William Jenkins, and David Stone, Agents of the FBI (collectively, the "individual federal defendants") have been dismissed.

 The remaining claims in this action are plaintiffs' federal civil rights claim and pendent state law tort claims against defendants William J. Shannon, Joseph Caiola, Carl Barbara, Patrick Purcell, Steve Gilbert, Joseph Blik, William Pavone, and Jose Flores (collectively, the "individual City defendants"). The individual City defendants have now moved pursuant to Fed. R. Civ. P. 56 for summary judgment on plaintiffs' remaining claims against them. For the reasons stated below, the individual City defendants' motion is granted in its entirety, and plaintiffs' complaint is dismissed. *fn1"

 Background2

 The individual city defendants were members of the NYPD and were assigned to the organized Crime Investigation Division (the "OCID") in January 1986. Certain squads within the OCID work in joint task forces with the FBI and primarily investigate organized crime and its related activity. Each task force consists of members of the NYPD and agents of the FBI. At the time of the acts alleged by plaintiffs in their complaint, the individual City defendants were members of NYPD-FBI Joint organized Crime Task Force #4 ("JOCTF #4"), which investigates labor racketeering within a criminal enterprise.

 On January 21, 1986, NYPD Detective Anthony J. Venditti ("Venditti") was killed and his partner, Detective Kathleen Burke ("Burke"), was seriously wounded by persons suspected of being members of organized crime. Detectives Venditti and Burke were members of the FBI-NYPD Joint Organized Crime Task Force assigned to the so-called "Genovese crime family." At the time of the shootings, Venditti and Burke were conducting a surveillance of Frederick Giovanelli ("Giovanelli"), said to be a member of the Genovese crime family. After the shooting, Burke identified Giovanelli and Carmine Gaultiere ("Gaultiere"), also said to be a member of the Genovese crime family, as two of the persons involved in the shootings.

 Because Venditti and Burke were shot in the course of a joint task force investigation, the shootings triggered a joint task force search for their assailants. By January 23, 1986, Giovanelli was in custody, but Gaultiere was still at large. It was believed that Gaultiere would be either at his home, which was under surveillance, or at one of the Genovese crime family locations, or moving among such locations. A list of "social clubs" known to be frequented by members of the Genovese crime family, at which it was believed Gaultiere or witnesses to the shooting might be found, was prepared. Various joint task forces were assigned to visit specific locations to find Gaultiere, to obtain information regarding his whereabouts, and/or to locate witnesses to the shootings.

 The Post was included on the list of Genovese social clubs. A former member of the Genovese Task Force had identified the Post as a location from which certain Genovese gambling operations were run and which was frequented by Genovese associates. Early in the evening of January 23, 1986, defendants Shannon and Denis Maduro ("Maduro") (one of the individual federal defendants) held a meeting of JOCTF #4 in order to discuss the search for Gaultiere. By this time, all of the NYPD members of JOCTF #4 were aware of the circumstances surrounding the shootings; the individual City defendants present at this meeting were Caiola, Barbara, Purcell, Gilbert, Pavone, and Flores. At this meeting, the JOCTF #4 members were instructed that they would be going to various organized crime social clubs in an effort to locate and apprehend Gaultiere and to locate witnesses with information concerning the shootings or Gaultiere's whereabouts. Specifically, the JOCTF #4 members were instructed to enter each location and identify themselves as law enforcement personnel and to secure the premises and ascertain that any persons present were not armed. They were to identify other possible witnesses to the shooting and to interview and photograph any patrons present, with their consent. A photograph of Gaultiere was distributed, and the number on the license plate of the car the Gaultiere had been driving on the evening of the shootings was provided. Both Shannon and Maduro warned the JOCTF #4 members that the investigation potentially was dangerous and emphasized that their safety was a paramount consideration. Each JOCTF #4 member was advised to wear his or her bullet-proof vest and "raid" jackets, which had either "FBI" or "POLICE" printed on them in bold yellow letters on the front and back.

 JOCTF #4 was assigned to visit three locations: 229 Sullivan Street, 179 Sullivan Street, and 101 Thompson Street. None of the individual City defendants had any prior investigative experience at any of these locations. The first location that they visited was 229 Sullivan Street. Because this location was so small, only a few of the JOCTF #4 members were instructed to complete their assignments there. The other members were instructed to move on to the second location, at 179 Sullivan Street -- the location of the Post. When the first group of JOCTF #4 members arrived at 179 Sullivan Street, there was some confusion about whether this was the correct address. One of the individual federal defendants radioed the command post to check on this matter, and was informed that it was the location of the Post.

 The JOCTF #4's arrival at the Post caused several persons who were inside the Post to come outside in order to ascertain what was happening. One of the patrons invited the JOCTF #4 members into the Post. Upon their entry into the Post, the JOCTF #4 members identified themselves as law enforcement personnel. The JOCTF #4 members directed the patrons inside the Post to stand facing one wall with their hands on the wall, in order to prevent them from reaching for weapons. Tables and chairs were pushed away from the wall to clear the area; although some chairs were knocked over, none was damaged in any way. Each patron was frisked for weapons and then briefly interviewed and photographed; each patron was allowed to sit while being interviewed. Other JOCTF #4 members were busy securing the premises at this time. Some remained in or by the front door to ensure that no one entered or left the premises and others moved into the back of the location. A short time after the investigation was underway at 179 Sullivan Street, other JOCTF #4 members, having completed their assignments at the first location, arrived.

 The investigation at 179 Sullivan Street was completed at about 6:45 p.m. At that time, the JOCTF #4 members proceeded to the next location. The individual defendants did not use any physical force on any patron at 179 Sullivan Street for any purpose, nor did they physically threaten anyone in anyway while at 179 Sullivan Street, and did not observe anyone else do so. Furthermore, the individual city defendants did not damage, ...


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