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BOVE v. KENNEDY

July 25, 1995

FRANCIS BOVE, Plaintiff, against TROOPER BRIAN M. KENNEDY, as an individual and in his official capacity, and JOHN and/or JANE DOE(S), being and intending to be police officer(s), public servant(s), and/or employee(s) of the State of New York, Defendants.


The opinion of the court was delivered by: JOHN GLEESON

 JOHN GLEESON, United States District Judge:

 Plaintiff Francis Bove brought this action under 42 U.S.C. ยง 1983 against the defendant New York State Trooper Brian M. Kennedy, alleging false arrest, malicious prosecution, and conspiracy to violate his constitutional rights, and seeking damages of several million dollars. *fn1" Kennedy had arrested Bove at approximately 4:45 p.m. on March 13, 1992 and charged him with driving while intoxicated ("DWI"). Bove was acquitted of the charge after a non-jury trial in the Suffolk County Supreme Court.

 Kennedy now moves for summary judgment dismissing the complaint on the ground of qualified immunity. In the alternative, he contends that to the extent he has been sued in his official capacity, the claim against him is barred by the Eleventh Amendment. Finally, he argues that because plaintiff has not stated any grounds to support the conspiracy claim, it too should be dismissed.

 For the reasons stated herein, the motion for summary judgment is granted with respect to the claims raised against defendant Kennedy in his official capacity, and with respect to the claim of conspiracy. In all other respects, the motion is denied.

 FACTS

 The undisputed facts are as follows. On March 13, 1992, Trooper Kennedy's unmarked patrol car came to a stop on the southbound shoulder of Mount Avenue in West Babylon, New York. A tan Cadillac rested on the shoulder behind the patrol car. Plaintiff Bove was seated alone in the Cadillac. In front of Kennedy's car, also on the shoulder, was a red Ford Bronco in which sat Bove's son, Richard Bove. Kennedy got out of his car and approached the Bronco, and Bove got out of the Cadillac and approached Kennedy. Bove demanded to know what was going on and Kennedy turned and asked who he was. Bove then saw Kennedy's badge and realized he was a police officer. Bove answered, "I'm his father." Kennedy then told Bove to return to his car, which Bove refused to do. The two argued a little more, as they approached the Bronco. When Bove was between Kennedy and the patrol car, Kennedy suddenly ducked past Bove and entered his car to call for back-up. He stayed there until other police officers arrived. Bove was then asked whether he had been drinking and he replied that he had had one beer. At that point the officers placed him under arrest for DWI. He was taken into police headquarters where he refused to take a Breathalyzer test.

 At the subsequent trial, Trooper Kennedy testified that at approximately 4:45 p.m. on March 13, 1992, he observed a red Ford Bronco travelling south on Mount Avenue, noticed that it had no front plate or registration sticker, and decided to pull it over. Just before he did so, he observed a tan Cadillac pull onto the right shoulder in front of a residence. After he pulled over the Bronco some distance in front of the Cadillac, he noticed that the Cadillac moved closer to the two cars. As he attempted to obtain documentation from the driver of the Bronco, he saw plaintiff Bove get out of the driver's seat of the Cadillac and walk toward him. The confrontation described above ensued, in the course of which Kennedy smelled alcohol on Bove's breath, noticed that he had bloodshot eyes, and concluded that he had been drinking to excess. Finally, Kennedy testified that after arresting Bove he turned off the motor in the Cadillac, took the keys, and handed them to Bove's son, the driver of the Bronco. Significantly, this last allegation conflicts directly with Kennedy's position upon this motion, which is that he "did not observe Bove operate the Cadillac and the keys to the Cadillac were not recovered." (Def.'s R. 3(g) Stmt. P 6 n.1, Def.'s Ex. F.) *fn2" A further assertion in Kennedy's motion papers also appears to be in conflict with the trial testimony:

 
"While proceeding south on Mount Avenue in West Babylon, Kennedy activated his emergency lights in order to effectuate the stop of a red Bronco. The driver of the Bronco, later identified as plaintiff's son, Richard Bove, stopped his vehicle on the shoulder of the road and Kennedy stopped his vehicle behind the Bronco. A beige Cadillac was on the shoulder of the road directly behind the police car."

 (Def.'s R. 3(g) Stmt. P 6) (emphasis added). These two inconsistencies, both of which appear in Kennedy's Rule 3(g) statement, strongly suggest that he intends to abandon the claim that the Cadillac approached the patrol car after it had pulled over the Bronco.

 At the trial on the criminal charges, Bove did not testify about how the three cars came to be parked along the Mount Avenue shoulder. His lawyer appeared to avoid questioning him about it, and successfully objected to the prosecutor's questions about it on cross-examination. The trial transcript is consequently devoid of any explanation. At his deposition in this case, however, Bove stated that the patrol car was at an angle to the side of the road and that its rear was sticking out into traffic. (Bove Dep. at 61, Pl.'s Ex. F.) This description would suggest that the Bronco and the Cadillac were already parked alongside the road when the patrol car arrived, and that it attempted to fit into the space between them. Later in the deposition Bove made the following statement which could support either the above scenario or the one put forth by Kennedy: "You had to be there to see this car pull up behind." (Id. at 63.)

 On the other hand, Bove testified extensively at the criminal trial about events earlier in the day on March 13, 1992. The essence of his defense at the trial was that the car had been inoperable at the time of the arrest and that he could not have been driving it. Bove testified that the Cadillac, which belonged to his wife, Florence Bove, had broken down earlier in the day while she was driving it. The motor failure had allegedly occurred while the car was in precisely the position it occupied at the time of the arrest. Mrs. Bove had locked the disabled car, walked the short distance to Bove's place of business *fn3" and borrowed Bove's car for the day. She took the keys to the Cadillac with her, but allegedly did not tell Bove she had done so. The trial transcript does not indicate how Bove became aware that he did not have these keys.

 Bove testified further at the trial that he sought the assistance of a gas station mechanic by the name of Jimmy Lee, who accompanied him to the Cadillac and pried open the lock. When the door was opened, Bove searched the interior of the car for the keys. Finding none, he left the car unlocked and followed Lee back to the filling station, where Lee called for a tow truck. He then returned to his office and called his son, who had an extra set of keys to the Cadillac, and asked him to bring them over. Then, after consuming pizza and a beer, he returned at about 4:15 p.m. to the car and again searched its interior for the keys. He then waited for the tow truck to arrive. While he was waiting the incident with Trooper Kennedy took place.


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