After plaintiffs had been arrested and returned to Cattaraugus County, they were interviewed by defendants and the District Attorney, and it was determined that plaintiffs' activities were not criminal but were entirely innocent.
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 whose motion is under consideration. Schwabenbauer v. Board of Educ. of Olean, 667 F.2d 305, 314 (2d Cir. 1981).
If no rational jury could find in favor of the non-moving party, because the evidence to support that party's case is so slight, then summary judgment is proper. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994), citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988).
The Arrest Of Plaintiffs
I find as a matter of law that the seizure of plaintiffs constituted a warrantless arrest which was not based on probable cause. I find that no reasonable juror could conclude otherwise. Plaintiffs are entitled to summary judgment on this issue.
In some cases involving questionable police seizures, there may be a legitimate issue as to whether or not the police contact with the citizen constituted an arrest, which must be supported by probable cause, or whether it constituted but a brief detention, such as a Terry stop,
which need not be supported by probable cause. See e.g., Oliveira, 23 F.3d 642 at 646-47.
In this case, however, defendants do not attempt to justify their conduct on the grounds that this was not an arrest. Defendants' have conceded that, based on the admitted facts, both defendants were arrested. Defendants' steadfastly maintain, however, that there was probable cause for the arrests. I disagree.
The Fourth Amendment protects citizens against "unreasonable searches and seizures." The Fourth Amendment requires the police to have probable cause before they may effect a warrantless arrest. Probable cause, of course, is not a rigid formula but an elastic one that depends on the facts and circumstances of each case.
Probable cause has been defined as the "facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) (citations omitted).
The police may only make arrests based on probable cause. Arrests based on mere suspicion, like arrests executed only to investigate a person, are "foreign to our system." Papachristou v. City of Jacksonville, 405 U.S. 156, 169, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); Mallory v. United States, 354 U.S. 449, 454, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957). "'Arrest on mere suspicion collides violently with the basic human right of liberty.'" Henry v. United States, 361 U.S. 98, 101, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959) (citation omitted).
Conjecture, surmise or suspicion are not enough to justify an arrest. Courts have consistently struck down arrests where the Court determined that the citizen was detained, seized and arrested on the guess, suspicion or hunch of a police officer. The basic purpose of the Fourth Amendment is to protect the citizens' right to be free from unreasonable restraints by Government officials. It stands as testament to the value we place on liberty. "It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest." Henry, 361 U.S. at 104.
In this case, I do not believe any reasonable juror could conclude that there was probable cause for an arrest. I do not believe there are any disputed facts at issue here and the issue involves a question of law.
It is clear that no bank robbery had occurred, and it is difficult to imagine how a reasonable police officer could have believed that an attempted robbery had occurred. See Oliveira, 23 F.3d at 648. The only evidence that the police had was hearsay, or double hearsay, that a person wearing an outlandish mask had "looked" into a bank window. It is true that the men were strangers to town and that this activity was not "normal" but it is difficult to see how merely looking through the window of a bank or other commercial establishment could constitute probable cause to arrest. The observations which triggered the arrests were not made by trained police officers, but by citizens who simply reported what they believed to be unusual. Although citizen complaints can certainly be utilized by the police in determining whether or not probable cause exists, the vague, general comments of Ms. Lecceadone hardly justify the drastic action taken by the police here.
It is hard to imagine why a true potential bank robber would don such a bezarre, attention-grabbing mask if he were in fact about to commit a robbery. Generally, stealth is preferred when engaging in such activity. Slipping on the rabbit's head would guarantee widespread attention which is precisely what a scheming robber would want to avoid. There is no evidence that the men fled, possessed weapons, or took any other action which would be consistent with attempted bank robbery.
The police investigation was woefully inadequate. There is no evidence that the police attempted to interview any of the patrons at the Gates Cafe or to interview the bank customer and little girl who first reported seeing the "Easter Bunny."
The fact that Wagner had a criminal record for perjury does not justify the arrest for bank robbery. It may have heightened Travis' suspicion, but it should not have been a significant factor in the decision to arrest.
At their depositions, Lieutenant Travis and Deputies Finch and John had great difficulty elucidating the basis for the arrest. Travis first stated that he had probable cause for "attempted bank robbery." (Plaintiffs' Motion for Summary Judgment, Ex. G at 36). Later in the deposition, Travis conceded that he did not have probable cause for bank robbery, but that he issued the APB "to ascertain if a crime had been committed." (Id. at 38). Travis also admitted, however, that the true purpose of the APB was to bring plaintiffs back to Cattaraugus County for questioning, against their will. He confirmed that the suspects were not free to go and if they had refused to cooperate, he would have charged them with obstruction of justice. (Id. at 37).
Deputies Finch and John believed that the activity was suspicious, but John conceded that he did not believe probable cause existed for the arrest. (Id., Ex. E at 20).
Admittedly, the activity was bizarre enough that, if the plaintiffs had been in Randolph, it may have been permissible for an officer to briefly stop the men and inquire about their conduct. At the time they were arrested, however, plaintiffs were out of town many miles from the bank, and obviously neither man posed a danger to the bank at that time. There was simply no justification at that time to arrest plaintiffs at gunpoint and transport them back to Cattaraugus County in handcuffs.
I also find that defendant Travis is not protected by qualified immunity. Although this issue is slightly closer than the arrest issue, in light of the facts developed here, I believe the officers' conduct to be so unreasonable that no reasonable police officer should have believed that he was acting in accordance with established law and procedure concerning warrantless arrests. See Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994); see also Newkirk v. Sheers, 834 F. Supp. 772, 784 (E.D. Pa. 1993). Plaintiffs are thus entitled to summary judgment as to liability against defendant Travis.
Defendants contend that even if the Court determines that probable cause was lacking, plaintiffs' § 1983 action should be barred by the doctrine of qualified immunity.
The doctrine of qualified immunity shields public officials performing discretionary functions from civil 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, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), or "insofar as it was objectively reasonable for them to believe that their acts did not violate those rights," Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied, 112 S. Ct. 3032 (1992).
Bradway v. Gonzales, 26 F.3d 313, 317-18 (2d Cir. 1994).
A decision on this matter is ripe for adjudication now on summary judgment, especially since there has been complete discovery in the case. It is well-established that issues involving the defense of qualified immunity should ordinarily be decided "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991). The directive from the Supreme Court and from the Second Circuit is that this defense "often can and should be decided on a motion for summary judgment." Castro v. United States, 34 F.3d 106, slip op. 6910, 6914 (2d Cir. 1994).
The Supreme Court has advised that questions of immunity should be resolved "at the earliest possible stage of the litigation." Anderson v. Creighton, 483 U.S. 635, 646 n.6, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). In accordance with this exhortation, the Second Circuit has said:
The better rule, we believe, is for the court to decide the issue of qualified immunity as a matter of law, preferably on a pretrial motion for summary judgment when possible . . . . The ultimate legal determination whether, on the facts found, a reasonable police officer should have known he acted unlawfully is a question of law better left for the court to decide.
Warren v. Dwyer, 906 F.2d 70 (2d Cir. 1990).
It is clear that questions of immunity are ordinarily decided by the Court not the jury. See Oliveira, 23 F.3d at 649 (citing Hunter v. Bryant, 112 S. Ct. at 537). This is true however only where the "facts" concerning the defense are undisputed. See, e.g., Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir.), cert. denied, 115 S. Ct. 604 (1993). But, as with all questions before a jury, if reasonable jurors could reach only one conclusion, then the issue is appropriate for decision by the Court as a matter of law. Oliveira, 23 F.3d at 649.
The constitutional right not to be arrested in the absence of probable cause is clearly established, Soares v. State of Connecticut, 8 F.3d 917, 920 (2d Cir. 1993) (citation omitted), and known to all law enforcement officers. See also Golino, 950 F.2d at 870 ("The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right.")
Therefore, the first part of the qualified immunity consideration, that is, whether the police conduct here violated clearly established constitutional rights is not an issue in this case. The only possible grounds to support the qualified immunity defense is whether it was objectively reasonable for Lieutenant Travis, the defendant who caused the arrest, to believe that his action did not violate the constitutional rights of plaintiffs.
Cases do recognize a distinction between the standard for determining probable cause and the standard, in a false arrest case, for determining whether the officers are shielded by qualified immunity. See Anderson, 483 U.S. at 643. There is a distinction, but it is a subtle one. It is clear that any inquiry under the Fourth Amendment is based on "objective circumstances rather than an officer's subjective motivation." Bradway, 26 F.3d at 319 (citation omitted). I have determined that when viewed objectively, defendants lacked probable cause to arrest plaintiffs.
The question concerning qualified immunity also deals with reasonableness. It must be determined whether it was objectively reasonable for the officers to believe that their acts did not violate constitutional rights, even if they were mistaken in that belief. "Officials are 'entitled to qualified immunity [when] their decision was reasonable, even if mistaken.'" Castro, No. 93-6344 at 6915, (citing Hunter, 112 S. Ct. at 537.
The Second Circuit has recognized the "seeming circularity" involved in determining whether it was objectively unreasonable for officers to believe that their conduct was lawful, after the Court has found as a matter of law that the officers' conduct was unreasonable because there was no probable cause, i.e. that a reasonably prudent police officer would not have believed that plaintiff had committed a crime. See Oliveira, 23 F.3d at 648-49.
Although the distinction is subtle, the Second Circuit has discussed it and framed the proper inquiry:
In effect, the jury was asked to consider the same question, the "reasonableness" of [the officer's] arrest of [the suspect], from two perspectives: from the actual circumstances which it found as a matter of fact; and from any reasonable point of view, including even a factual misperception, the officer may reasonably have harbored at the time the events took place.
Within this framework, the question of immunity remains, as it should, distinct from the question of probable cause. Mitchell v. Forsyth, 472 U.S. 511 at 528, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985).