of the three prongs of the Walker test. First, while the problem of illegal fireworks in New York City recurs with the predictable frequency of the Fourth of July, the Chinese New Year, and other holiday celebrations, East Coast's claim does not rise to the level of alleging that the District Attorney knew "to a moral certainty" that his employees would confront the unique situation which arose in Newburgh on April 25, 1989. As the Second Circuit noted, "a policymaker does not exhibit deliberate indifference by failing to train employees for rare or unforeseen events," as was the case here. See Walker, 974 F.2d at 297.
Second, East Coast's allegations fail to allege either that the situation at Newburgh constituted the kind of "difficult choice" requiring a specific policy requiring training in the elements of § 270.00, or that there was a history of employees in the District Attorney's office mishandling similar situations. Certainly, the allegations here fall far short of those in Walker, in which the Second Circuit held the district attorney liable for the lack of training and supervision regarding the assistant district attorneys' obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), to avoid the use of perjured evidence.
Finally, while it is indisputable that wrong choices about the enforcement of § 270.00 by the District Attorney's office may cause the deprivation of a citizen's constitutional rights, East Coast's allegations fail to demonstrate that the enforcement of § 270.00 is of such significance that the District Attorney must "concentrate training and supervision resources on [this] situation . . . [because] employee misconduct is likely to deprive citizens of constitutional rights." Again, East Coast's allegations fail to assert that wrong choices about the enforcement of § 270.00 are on a par with an ADA's failure to comply with the obligations imposed by Brady. From East Coast's allegations and the record before the Court, it is not possible to distinguish § 270.00 from any other section of the New York Penal Law about which a wrong enforcement decision could result in the deprivation of a citizen's constitutional rights. Therefore, as was the case with the first two prongs, East Coast has failed to satisfy the third prong of the Walker test.
Finally, for the reasons stated above in finding that ADA Viteretti has qualified immunity for the advice he gave to Inspector Biehler and the Department on East Coast's premises, it is reasonable to conclude that ADA Viteretti was properly trained in the law of § 270.00 by the District Attorney's office.
In the face of East Coast's failure to establish the District Attorney's liability for its § 1983 claims, the District Attorney's motion to dismiss all claims against him is granted.
V. The City is Liable for the Failure to Train the Police
East Coast alleges that "the gross and inadequate training given to police officers involved in fireworks interdiction concerning the legality of selling fireworks in the state of New York" gives rise to municipal liability. Am. Compl. P 23E. According to East Coast, the City should have trained its employees to know that there is nothing unlawful about storing or selling fireworks in the State of New York. As is suggested by the deposition testimony of Inspector Biehler and Lieutenant Walsh, cited by East Coast, those in charge of Operation Skyrocket were unfamiliar with the provisions of § 270.00 regarding the conditions under which a business may lawfully store and sell fireworks in the State of New York. Thus, it is alleged that the raid and seizure were planned at the highest level of the Department, that the operation involved approximately 50 to 75 officers from various precincts, and that the person leading the operation, Inspector Biehler, was responsible for fireworks interdiction in his precinct but was unaware of various critical provisions of § 270.00.
The Defendants respond that the training in question was not such that it amounted to "deliberate indifference to the rights of person with whom the police come into contact," City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989), and that "the sole basis for possible municipal liability which this Court found in [the Opinion] was Chief Johnston's directive concerning fireworks interdiction." Defs.' Mem. 21.
The Defendants' characterization of the scope of the basis for a claim of municipal liability is incorrect. In the Opinion, the Court noted that:
it appears from the events at issue that the [Police] Commissioner delegated the policymaking authority to Chief Johnston. Chief Johnston authored the memorandum that set off the events in question. Inspector Biehler carried out that directive and orchestrated the seizure of the inventory.
East Coast, 781 F. Supp. at 1010-11. From this it was concluded that:
this by no means appears to be a random, unauthorized act by a single police officer. Rather, it appears to have been a large-scale operation, involving numerous high-level officers, operating pursuant to Chief Johnston's directive.
Id. at 1011. While these considerations highlight Chief Johnston's role in defining the policy pursuant to which Operation Skyrocket was executed, they do not necessarily preclude the acts of other "high-level officers" in their capacity of training and supervising those involved in Operation Skyrocket from contributing to a claim for municipal liability.
In light of these considerations on the Defendant's first motion for summary judgment, this Court held there is "a question of fact concerning whether the Police Department's actions should give rise to municipal liability, and the City's motion for summary judgment on this ground is denied," East Coast, 781 F. Supp. at 1011. This holding is equally applicable to the present record.
The additional allegations of municipal liability based on the contention that the Department failed to train and supervise those participating in Operation Skyrocket, and supported by the various factual assertions made regarding Inspector Biehler and Lieutenant Walsh's knowledge and actions, are sufficient to withstand the Defendants' Rule 12(b) and Rule 56 motions. Therefore, those motions are denied.
VI. The Third Cause of Action is Precluded by the Destruction Hearing
In the Opinion, this Court found that East Coast was in privity with Louis for the purposes of the destruction hearing. See East Coast, 781 F. Supp. at 1006-8. East Coast is, then, collaterally estopped from raising any issues against the Defendants that relate to the destruction of its property as a result of the court order that followed the hearing, and that hearing has res judicata effect for any present claims for damages as a result of that hearing.
Specifically, East Coast's Third Cause of Action alleging that "defendants' acts in disposing of plaintiff's inventory were deliberately reckless, negligent and in violation of plaintiff's legal rights and remedies," Am. Compl. P 40, is dismissed as a claim precluded by the destruction hearing under the principle of res judicata, while those parts of East Coast's First and Second Causes of Action which regard the destruction of East Coast's inventory, Am. Compl. PP 21, 27, 36, are dismissed as precluded issues under the principle of collateral estoppel.
VII. East Coast Has Not Stated a Claim for Trespass
Federal courts and the courts of the State of New York have consistently held that an officer who enters premises pursuant to a valid search warrant cannot be held liable for trespass. See Pembaur v. City of Cincinnati, 475 U.S. 469, 489, 89 L. Ed. 2d 452, 106 S. Ct. 1292 n.3 (1986); Calamia v. City of New York, 879 F.2d 1025, 1031 (2d Cir. 1989); Anderson v. WHEC-TV, 92 A.D.2d 747, 748, 461 N.Y.S.2d 607, 608-09 (4th Dep't 1983); Iovinella v. Sheriff of Schenectady County, 67 A.D.2d 1037, 1038, 413 N.Y.S.2d 497, 499 (3rd Dep't 1979), appeal denied, 47 N.Y.2d 707 (1979).
As its Fifth Cause of Action in the Amended Complaint, East Coast alleges that the Defendants, without the consent of East Coast, entered upon its premises and removed its fireworks inventory, that is, the Defendants trespassed on East Coast's property. However, in alleging this cause of action, East Coast has failed to state a claim against any of the Defendants. Detective Kolpan entered East Coast's premises with the consent and authorization of Louis. Thus, the claim of trespass against him necessarily fails and is dismissed.
With respect to Inspector Biehler, Lieutenant Walsh, Officer Pakstis, ADA Viteretti, and the other Department personnel who entered East Coast's Newburgh premises on April 25, 1989, they lawfully entered the premises pursuant to a search warrant that this Court has previously held to have been facially valid. See East Coast, 781 F. Supp. at 1009. Therefore, East Coast has failed to state a claim for trespass against these Defendants, and its Fifth Cause of Action is dismissed.
For the reasons set forth above, East Coast's Third and Fifth Causes of Action are dismissed, as are those parts of East Coast's First and Second Causes of Action, namely PP 21, 27, and 36 of the Amended Complaint, which concern the destruction of East Coast's inventory as a result of the destruction hearing. The Rule 12(b) motions of ADA Viteretti, Officer Pakstis, Lieutenant Walsh, and the District Attorney are granted; the Rule 12(b) motions of Inspector Biehler, Detective Kolpan, and the City of New York are denied; and the Defendants' Rule 56 motions for summary judgment are also denied.
It is so ordered.
New York, N. Y.
December 17, 1992
ROBERT W. SWEET