Common Law in the United States," 50 Harv L Rev 4, 12-18 (1936); Note, 58 Colum L Rev 673 (1958); Note, 82 Yale LJ 258 (1972). Well-developed, traditional principles would readily permit the criminal warrant procedure to be applied to protective or rescue activities if necessary. While the officers involved in the present case did not utilize that option, they will doubtless do so in the future with the benefit of hindsight.
In order for a municipality to be liable for damages under 42 USC 1983, decisionmakers must have acted in an unconstitutional manner, either individually or collectively, and either directly or through failure to provide proper training or other preconditions for avoiding unconstitutional acts. Jett v. Dallas Independent School District, 491 U.S. 701, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986).
Here, there is no evidence that a known pattern has arisen of warrantless break-ins in connection with animal rescues on the part of ASPCA or City personnel. Nor is there any reason to conclude that City officials had been alerted to the risk that such a pattern was were likely. Consequently, the requisites for imposition of monetary relief against the City are absent. Walker v. City of New York, 974 F.2d 293, 299 (2d Cir 1992), cert. denied 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993).
In order for injunctive relief to be granted, there must be a significant risk that the plaintiff may be subjected to further illegal conduct in the future by the party to be enjoined. See Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). Here, in light of the rarity of the event which occurred, and based upon the observations made in the 1993 ruling, I have every confidence that the City will take adequate precautions to avoid similar events in the future without the need for injunctive relief.
Apart from the break-in to the plaintiffs' premises to rescue the cat, damages are sought because of force used to arrest plaintiff Suss once he seized a lead pipe and moved toward the officers. Under such circumstances, reasonable force was justified and does not appear to have been exceeded. The officers could not at the time have known what Suss would do with the pipe. See Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989); Finnegan v. Fountain, 915 F.2d 817, 822 (2d Cir 1990); Davis v. Little, 851 F.2d 605 (2d Cir 1988).
Plaintiff's potential application of the lead pipe created an emergency situation justifying an emergency response not subject to twenty-twenty hindsight. See generally New York v. Quarles, 467 U.S. 649, 657-58, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984).
In light of the Corporation Counsel's description of the weakness of state warrant procedures, a copy of this memorandum order and the 1993 order will be sent to the Governor's Counsel. The clerk is directed to close this case.
Dated: White Plains, New York
June 10, 1994
VINCENT L. BRODERICK, U.S.D.J.
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