The opinion of the court was delivered by: DAVID G. LARIMER
There is a familiar adage that the truth is often stranger than fiction. This case illustrates the accuracy of that maxim.
The events that occurred on April 23, 1992 and which ultimately resulted in the seizure and arrest of plaintiffs Timothy Wagner ("Wagner") and John Payment ("Payment") are indeed strange. The arrest of Wagner and Payment by defendants is the basis for this lawsuit. Plaintiffs contend that they were arrested without probable cause and that their constitutional rights were violated. Plaintiffs filed this civil rights action, pursuant to 42 U.S.C. § 1983, alleging constitutional violations under the Fourth and Fourteenth Amendments as well as pendent state law claims for false arrest and false imprisonment against the County of Cattaraugus and several officers in the Cattaraugus County Sheriff's Department.
Before the Court are the parties' cross-motions for summary judgment. Defendants moved for summary judgment and sought dismissal of the complaint as to all defendants. Defendants concede that the warrantless seizure of plaintiffs was an arrest, but they contend that there was probable cause for the arrest and, in the alternative, that defendants' actions are protected by qualified immunity.
Plaintiffs cross-moved for summary judgment on liability. They contend that probable cause was lacking for the arrest and that the officers' actions were so arbitrary and unreasonable that they are not shielded by qualified immunity.
The essential facts necessary to decide the pending motions are not in dispute. Sometime during the late morning or early afternoon on April 23, 1992, defendant Lieutenant Ernest R. Travis issued an all points bulletin ("APB") to "pick up and hold" two unidentified suspects (Wagner and Payment) who were driving a 1983 van with New York license ILC 596. Travis admitted at his deposition that the intent of the APB was to have the suspects brought back for "questioning." (Plaintiff's Notice of Motion for Summary Judgment, filed September 2, 1994, Ex. G at 37.) The APB contained the warning that the suspects were armed and dangerous.
Sometime after 12:30 p.m., plaintiffs were arrested pursuant to the APR by New York State troopers in the Town of Forestville, Chautauqua County, approximately 30 miles from Randolph, New York in Cattaraugus County where the incidents which caused the APB to issue occurred.
Lieutenant Travis dispatched two deputies, defendants Dale I. Finch ("Finch") and Dennis B. John ("John") to the scene, and at about 11:19 a.m. the deputies reported that they had arrived in Randolph.
The deputies interviewed Lecceadone and she advised them that a customer had come into the bank with her granddaughter and told Lecceadone that they had just seen the "Easter Bunny" outside the bank. According to her statement, (Ex. B to Defendants' Motion for Summary Judgment, filed August 18, 1994), Lecceadone stated that at the same time the customer reported seeing the Easter Bunny, an employee whom she knew from Norstar Bank, Claudia Bemus, came into the Cattaraugus Bank and reported that she had seen a man get out of a blue van wearing a rabbit's mask. She reported that the man "looked in" bank windows, returned to the van and, with another man, went to the Gates Cafe. Apparently, someone then called the Gates Cafe and determined that no one knew the strangers. Lecceadone told the officers that she left the bank and observed the two men leave the cafe and heard them say something about the local police station. She observed them walk up to the unmanned village police station, and she observed them "checking out" Norstar Bank. When asked why their actions were suspicious Lecceadone replied that the men "just kept looking around, checking things out." Id.
By the time the officers arrived in Randolph, the men had left town. There is no indication that the officers interviewed any of the customers at Gates Cafe or that they interviewed the bank customer who had, with her daughter, first spotted the "Easter Bunny."
The mask in question, which was later recovered in the van subsequent to plaintiffs' arrest, was a full-size, 1 1/2-to 2- foot high, paper-mache mask which covers the entire head. It has pipe-cleaner whiskers, large eyelets and enormous pink ears (Ex. C [photograph], to Affidavit of Lawrence J. Andolina, Esq., in support of Cross-Motion for Summary Judgment filed September 2, 1994). By any account, this is a very large, noticeable mask.
The information obtained by deputies Finch and John was passed on to Lieutenant Travis who checked with the Department of Motor Vehicles to determine the owner of the van. Travis learned that Wagner owned the van and he then contacted the FBI office in Jamestown, New York to see if Wagner had a criminal record. The FBI informed Travis that Wagner had a criminal record and were awaiting further information. Based on this information, Travis issued the APB. At his deposition, Lieutenant Travis stated that he ordered the arrest because he believed the men were "bank robbers." When questioned further, he stated that he believed he had probable cause to arrest the men for "attempted bank robbery," but at another point during the deposition he conceded that he did not have probable cause to issue the APB; rather, he issued the APB "to ascertain if a crime had been committed." (Plaintiff's Notice of Motion for Summary Judgment, Ex. G at 36, 38.)
Sometime after issuing the APB, apparently before plaintiffs had been arrested, Travis discovered that the conviction was for "some type of perjury" under Title 26 of the United States Code. Not knowing what Title 26 was, and not being able to locate the District Attorney, Travis checked some law books at the library and determined that Title 26 was the Internal Revenue Code. (Ex. C to Defendant's Notice of Motion for Summary Judgment; Ex. G to Plaintiff's Notice of Motion for Summary Judgment).
Based on the APB, plaintiffs were arrested at gunpoint in Chautauqua County by the New York State troopers, handcuffed and transported in State Police vehicles back to Cattaraugus County. The arresting officers, the State Police troopers, knew nothing about the incident which caused the arrest and were merely complying with the APB. None of the State troopers are named as defendants.
It appears that Wagner, a grade-school vice-principal in Rochester, New York, and his friend, Payment, were travelling on holiday throughout Western New York during the Baster school recess. Wagner had been convicted of a felony relating to income tax evasion charges, and the terms of his probation limited his travel to the Western District of New York that is, the seventeen counties in the western part of the state.
As Wagner and Payment were eating breakfast at the Gates Cafe on that fateful morning, they observed a small girl in the restaurant dressed in her Easter finery. The men decided it would be a treat for the girl if one of them went to the van, put on the "Easter Bunny" mask and walked to the window of the restaurant to surprise the girl. Payment then left the restaurant, went to the van and put on the rabbit's head. He walked to the front of the cafe, waved in the window and once the child saw him, he deposited the mask back in the van and returned to finish his breakfast. Neither Wagner nor Payment recalled "looking in" any bank windows.
During their trip, as plaintiffs passed into each county, they would stop the van, put on the rabbit's mask and take a picture next to the road sign which indicated entry into that particular county. They also had a seven foot stuffed dog in the van which apparently also posed for some of these road-side pictures.
To prove that their travel complied with Wagner's probationary restrictions, plaintiffs asked law enforcement officials in each county to memorialize their visit by signing and dating their visit. Plaintiffs did recall attempting to find a police officer in Randolph that morning for that purpose. In fact, after this entire matter had been concluded, they asked the District Attorney of Cattaraugus County, who had been summoned by that time, to autograph their map.
After both plaintiffs had been interviewed separately and told the same story, they were released and no charges were filed. Plaintiffs were in custody for approximately two and a half hours before they were released. By the time plaintiffs were released, "everyone was kind of laughing and joking" about the day's activities. (Defendants' Motion for Summary Judgment, Ex. I at 62).
As is evident from this lawsuit, it is no longer a laughing matter.
Summary Judgment - Standards
A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All ambiguities and inferences must be resolved in favor of the non-moving party and all doubts as to the existence of a general material issue for trial should be resolved against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).
If, when "viewing the evidence produced in the light most favorable to the non-movant . . . a rational trier could not find for the non-movant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).
No genuine issue of material fact exists if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is genuine issue for trial." Fed. R. Civ. P. 56(c). An argument that there are material factual issues which preclude a grant of summary judgment must be supported by concrete particulars. Dressler v. M.V. Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964). Mere denials or general allegations without evidentiary support will not defeat a summary judgment motion. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943).
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 Cir. 1983).
Finally, the fact that both parties have moved for summary judgment does not mean that the Court must grant summary judgment for one of the parties, and it does not change the burden on the moving party to show the absence of a genuine issue of fact. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). Each party's motion must be evaluated on its own merits and all reasonable inferences must be drawn against the party ...