Summary judgment in Whalen's favor is also denied since Whalen himself entered the Signorile's home, admittedly without consent, after Signorile and the others had been taken outside. Few grounds would justify Whalen entering the home once the suspects had been taken outside. Certainly, entering Signorile's home without Permission simply to use the telephone, as Whalen admitted, cannot be justified on any reading of the qualified immunity doctrine. The obvious question is whether plaintiffs were harmed by this entry; that, however, must await consideration by the jury at trial.
As with Paddock, summary judgment in Whalen's favor may, however, be granted on the issue of Whalen's personal involvement in the search of the house. The basis for granting summary judgment is the same as in Paddock's case.
3. Captain Clarke
The Court also denies Captain Clarke's motion for summary judgment. By his own admission, Clarke concurred in the holding of a show-up and ordered the searching of Signorile's car. Assuming that Signorile did not consent to the show-up or car search, defendant Clarke has not shown an absence of material facts as to his liability with respect to these actions. Captain Clarke arrived at the scene after Signorile, Greg Signorile and Giordano had been frisked. He claims to have been informed only that the Jaguar had been followed to the house and that a man had been seen getting out of the car. The record does not indicate that he inquired as to why three men had to participate in a show-up, nor even as to which of the three was seen entering the house. Moreover, there is no evidence that he was informed that Signorile's car had been in the vicinity of the shooting. Nor did Clarke talk with Signorile, Greg Signorile and Giordano, who were still at the scene. Clarke's testimony also fails to show that he had any other conversations with officers at the scene on which he then could have relied. Based on the limited facts presented to the Court, it is impossible to conclude that officers of reasonable competence would have disagreed concerning the existence of probable cause to support Clarke's concurrence in the show-up and car search. Thus, Clarke is not entitled to summary judgment on the ground of qualified immunity.
Obviously, however, Clarke is not responsible for any of the events occurring prior to his arrival at the scene or of which he was unaware. Therefore, summary judgment is granted in his favor as to the frisking and detention of plaintiffs prior to Clarke's arrival on the scene, any entries made by officers into the Signorile's home and as to the alleged search of the Signorile's home.
4. Billings and Ottino
Billings and Ottino are also not entitled to summary judgment, as there are numerous material factual questions regarding their involvement in the entry and search of Signorile's home. Paddock claims to have told either Billings or Ottino that those involved in the shooting were probably in the house, that Signorile's Jaguar fit the description of the car involved in the shooting, that the car had been speeding as if to allude the police and that Paddock did not know how many occupants were in the car.
This assertion directly contradicts Signorile's claims that he was not speeding and that Paddock saw him enter the house. Although Ottino and Billings were entitled to rely on Paddock's summary, what they were in fact told, and whether that would have made it objectively reasonable for them to believe that they had an exigent basis for entering the house without a warrant, is a material issue for the jury.
Even assuming that there had been exigent circumstances for entering Signorile's home, officers of reasonable competence would have agreed that the police were not entitled to search Greg Signorile's bedroom to the extent claimed by plaintiffs. Once lawfully inside the apartment, an officer is permitted to conduct a protective sweep of the premises if the officer believes "based on 'specific and articulable facts'" that "the area swept harbored an individual posing a danger to the officer or others." Maryland v. Buie, 494 U.S. 325, 327, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990); Medina, 944 F.2d at 69 (citations omitted). Moreover, officers may make a warrantless seizure under the plain view doctrine to the extent they are "'lawfully located in a place from which the object can be plainly seen.'" Bradway v. Gonzales, 26 F.3d 313, 319 (2d Cir. 1994) (quoting Horton v. California, 496 U.S. 128, 136, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990)). Based on plaintiffs' assertions, however, the police exceeded these bounds, searching Greg Signorile's room extensively and even examining the contents of his book bag.
Billings and Ottino have been implicated in the search as they were identified by plaintiffs as being in the house around the time the search was conducted. Defendants deny that a search was conducted. Whether Billings and Ottino were involved in any search, and the scope of any search they conducted, are undetermined issues of fact critical in determining whether they are entitled to qualified immunity. Accordingly, summary judgment is inappropriate as to these defendants' entitlement to qualified immunity with respect to the search.
As plaintiffs have not presented any evidence that Billings and Ottino were involved in the frisking of Signorile, Greg Signorile and Giordano, these defendants are entitled to summary judgment on plaintiffs' claims with respect to the frisking.
5. Detective Di Franco
Detective Di Franco is entitled to qualified immunity, as he did not participate in any of the constitutional violations that plaintiffs allege. Section 1983 liability cannot attach with respect to a particular defendant unless it can be shown that the defendant participated in or was a moving force behind a particular deprivation of federal rights. Jeffries v. Harleston, 21 F.3d 1238, 1247 (2d Cir. 1994) (citations omitted), vacated on other grounds, 115 S. Ct. 502; see also Wagner v. County of Cattaraugus, 866 F. Supp. 709, 718 (W.D.N.Y. 1994) (citing Jeffries, 21 F.3d at 1247). By Whalen's undisputed testimony, Di Franco was not at the scene and was only communicated with briefly by telephone. Although Whalen's testimony that Di Franco merely suggested a show-up is hearsay, it can be used to show that Whalen believed Di Franco's response to be a suggestion, rather than an order. Given Di Franco's limited role, it cannot be said that he was a moving force, or that he even participated, in any of the alleged violation of plaintiffs' Fourth Amendment rights.
6. Officer Strype
Strype is likewise entitled to qualified immunity with respect to all of plaintiffs' claims, as the record before the Court indicates that he merely drove plaintiffs Signorile, Greg Signorile and Giordano to the hospital for the show-up at the instruction of his superior officers. The record does not indicate that Strype had any input in the decision to conduct a show-up. Moreover, Strype stayed in the car while the show-up was conducted. He cannot therefore be found to have been the moving force behind the violation of any of plaintiffs' rights. Jeffries, 21 F.3d at 1247 (citations omitted); see also Wagner, 866 F. Supp. at 718 (citing Jeffries, 21 F.3d at 1247 for same proposition).
Further, it was objectively reasonable for Strype to conclude that there was probable cause to proceed with the show-up. Strype's superior officers, Paddock, Whalen and Clarke, had been involved in varying degrees at the scene. "Absent any evidence tending to show that it was objectively unreasonable for [the officer] to disbelieve his superior officer or to question his good faith, [the officer] was entitled to rely upon the [superior] officer in deciding whether there was probable cause . . ." Beal, 1994 U.S. Dist. LEXIS 5269 at *15; see also Vela v. White, 703 F.2d 147, 152 (5th Cir. 1983) (indicating that the question of whether an officer is liable for arresting a citizen when following the direct orders of his superior is not clear and settled but that where the officer is not familiar with what was happening at the scene, it would be unfair to force the officer to violate a direct order or interrogate a superior officer). Prior to driving the plaintiffs to the show-up, Strype sat in or stood by his patrol car, and his vision was partial blocked for a portion of the time. Given Strype's limited involvement, it would be unfair to have expected him to question his superior officers on their reasons for proceeding with a show-up.
7. Officer Parrilla
Material issues of fact exist with respect to Parrilla's search of Signorile's car, his frisking of Signorile and his involvement in the show-up, rendering summary judgment on the basis of qualified immunity in Parrilla's favor inappropriate. First, contrary to plaintiffs' assertions, Parrilla claims not to have searched the car or frisked Signorile. To the contrary, Parrilla, asserts that he stayed away from the house, as instructed by Paddock, and could not even see what was happening. These basic factual disputes make summary judgment infeasible.
Second, even assuming for purposes of this motion that Parrilla did search the car, his deposition testimony does not reveal his probable cause basis for doing so. Nor does his testimony indicate whether he had probable cause to transport Signorile's car to the show-up, a seizure of the car for Fourth Amendment purposes. Since Clarke directed that a search be conducted and that the car be transported to the show-up, Parrilla was arguably under orders to take these steps. Nonetheless, Signorile asserts that Parrilla was active at the scene and questioned him in detail regarding the shooting. The Court cannot absolve Parrilla of liability on summary judgment merely on the basis of following orders given Parrilla's allegedly extensive involvement in the incident and his failure to assert any probable cause basis for his actions.
8. Other Defendants
Even though discovery is at an end, plaintiffs have yet to establish more than a tangential connection of the remaining named officers, Tallarine, Wilson, Lara, Finnegan, Leshinger, and Gosling, to any of the constitutional violations alleged by plaintiffs. Although Lara and Finnegan accompanied the teenagers into Signorile's house, Paddock testified that they did so at his instruction. Given Lara's and Finnegan's seemingly limited involvement and the absence of any indication, on the record that they did not have a basis for disbelieving Paddock or questioning his good faith, it was objectively reasonable for these officers to believe that they were justified in accompanying the teenagers into the house. See Beal, 1994 U.S. Dist. LEXIS 5269 at *14. Accordingly, Officers Tallarine, Wilson, Lara, Finnegan, Leshinger, and Gosling are entitled to qualified immunity with respect to all of plaintiffs' claims.
B. Liability of Officers with Respect to Plaintiff DeSantis' Claims
Summary judgment on the basis of qualified immunity is granted in favor of all of the defendant officers as to plaintiff DeSantis's claims. Even construing the facts in a light most favorable to the non-moving party, Paddock did not see which apartment Signorile entered after he exited his car. It was objectively reasonable for the officers to conclude that the similarity in the make of the cars and in the license plate numbers gave them reasonable suspicion to knock on the door of the apartments and request information. See Terry, 392 U.S. at 27, 30; Nargi, 732 F.2d at 1105. Moreover, it was objectively reasonable for the officers, knowing that the assailant in the shooting was armed, to arm themselves in approaching the apartments, at least until they knew that they were not in danger. See Terry 392 U.S. at 24; Alexander, 907 F.2d at 272.
Signorile's testimony that he saw guns pointed at the door of his mother-in-law's apartment is not in conflict with Billing's testimony that he averted his gun from the door as soon as soon as he was able to determine that the person at the door was an older woman. Plaintiffs have presented no testimony indicating that the police pointed a gun at DeSantis after they determined her identity. As such, plaintiffs have not met their burden of presentation of material issues of fact on this claim.
C. Excessive Force as to Plaintiffs Signorile, Mrs. Signorile, Greg Signorile and Giordano
Plaintiffs also allege that they were placed in "mortal fear and terror" by the pointing of a loaded shotgun and other firearms at their persons "without justification", that they were verbally mistreated and offered no apology and that their personal property was damaged. (Proposed Second Amended Complaint at PP 40(b), 42(b), 44(b), 46(b), 48(b).) To the extent that these constitute claims of excessive use of force, the claim relating to the use of firearms cannot be decided by the Court on summary judgment, for the appropriateness of that use of force is closely linked to whether it was objectively reasonable for the officers to have believed that their conduct was justified by exigent circumstances and probable cause. The Court has to a large extent deferred this latter question for decision by the jury.
As to plaintiffs' remaining claims of property damage and mistreatment, the Court cannot find a basis for denying summary judgment. While the right of an individual not to be subjected to excessive force has long clearly established, Calamia v. City of New York, 879 F.2d 1025, 1036 (2d Cir. 1989),
not every push or shove by a state officer constitutes a violation of substantive due process. Whether the constitutional line has been crossed depends on 'such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'
Robison, 821 F.2d at 923 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)). None of plaintiffs' claims of property damage or verbal abuse, if true, come near to describing force that would be considered excessive, injurious or malicious for Fourth Amendment purposes. Parrilla, who supposedly searched plaintiffs' car roughly and broke a heating panel, only caused minor property damage. Minor also is the other property damage that plaintiffs allege. Both the property damage claims and Greg Signorile's assertion that a police officer reprimanded him as he walked into the victim's hospital room clearly would not, if true, rise to the level of constitutional violations under Section 1983. See, e.g., Beal, 1994 U.S. Dist. LEXIS 5269 at *22 ("Generally, mere verbal abuse, and even vile language, does not give rise to a cognizable claim under 42 U.S.C. § 1983." (citations omitted)); Samuels v. Smith, 839 F. Supp. 959, 965-6 (D.Conn. 1993). Certainly if the foregoing do not constitute excessive force, the officers' refusal to apologize, while not a wise choice from the public relations perspective, cannot be a basis for liability. The Court therefore concludes, as a matter of law, that the property damage and verbal abuse alleged by plaintiffs are not actionable under Section 1983 and that, accordingly, summary judgment on this issue in defendants' favor is warranted.
Plaintiffs also state that two officers were overheard describing Signorile's neighborhood as one in which "Mafia" lived and that an officer told a neighbor that someone in Signorile's house was a suspect in a shooting. While these comments, if true, are unfortunate, they also do not rise to the level of a constitutional violation. Moreover, the Report indicates that the neighbors that heard the ethnic slur would not be able to identify the officer who made it, rendering this claim unprovable.
II. Municipal Liability
A. Summary Judgment as to the NYPD
Turning to plaintiffs' claims against the municipal defendants, the Court grants defendant NYPD's motion for summary judgment on the ground that the NYPD is not a properly suable entity. As an agency of the City, the NYPD can sue and be sued only in the name of the City. See New York City Charter, Chapter 16, § 396; Stovall v. City of New York, 1988 U.S. Dist. LEXIS 18559 at *7 (S.D.N.Y. Dec. 6, 1988) (citations omitted); Martin v. City of New York, 627 F. Supp. 892, 894 n.2 (E.D.N.Y. 1985).
Defendant NYPD asserts that the City should not be substituted as a defendant. Both the First Amended Complaint and plaintiffs' proposed Second Amended Complaint, however, already include the City as a defendant.
Accordingly, the Court will substitute the City as the party moving for summary judgment in lieu of the NYPD. With this substitution, the Court proceeds in considering the City's and the NYCHA's motions for summary judgment.
B. Municipal Liability for Failure to Promulgate, Implement and Enforce Procedures
Plaintiffs allege that the City and the NYCHA are liable under Section 1983 for failing to develop, implement and enforce procedures intended to "minimize the pursuing, questioning, apprehending, searching, and arresting of innocent members of the public, especially when the police are in hot pursuit of suspects of serious crimes and, more particularly, when the use of drawn firearms, including shotguns are involved, including joint efforts by the NYCHA and NYPD Department personnel from different boroughs." (Proposed Second Amended Complaint at PP 50(a) & (b), 54(a) & (b).) This claim in large part constitutes an allegation that the City and the NYCHA failed to train their employees properly as to the public's constitutional rights. The City and the NYCHA argue that they are not municipally liable since plaintiffs have alleged no more than a single example, the incident in question, to support their claim.
The Court agrees that defendants have failed to adduce evidence sufficient to avoid summary judgment as to this claim.
In order to hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff 'must show that the violation of his constitutional rights resulted from a municipal custom or policy.'. . . The inference that such a policy existed may arise from 'circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.' . . . the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiff's injury.