favorable to Bove, that Kennedy's belief in the existence of probable cause to arrest Bove for DWI was objectively unreasonable.
Bove's submissions opposing the motion do not present this precise issue. Instead he contends that Trooper Kennedy deliberately perjured himself at Bove's criminal trial in order to make out a material element of the crime of DWI -- operating a motor vehicle. According to Bove, this misdeed requires a finding that Kennedy is not entitled to invoke the defense of qualified immunity, as no officer who would perjure himself to obtain a conviction should be protected by the defense.
This representation of the rule is not entirely correct. Rather, when on a motion for summary judgment a false arrest claimant asserts that misrepresentations made by the defendant officer create an issue of fact, the court must determine whether the issue is material. Cartier v. Lussier, 955 F.2d at 845. It does so by setting aside the allegedly false material and examining the remaining undisputed facts to determine whether they contain sufficient indicia of probable cause. Id.
Here, Bove asserts that Kennedy perjured himself when he stated at trial that the Cadillac moved along the shoulder toward the patrol car after the latter had pulled over the Bronco.
Therefore, for purposes of the instant motion, this testimony must be set aside and the remaining facts examined for their impact on the question whether Kennedy was protected by qualified immunity. However, few other facts are available to explain precisely what Kennedy saw before and after he pulled to the shoulder, and why he might have believed that Bove had been driving the Cadillac. Resolution of these factual questions is of course, necessary for a proper consideration of whether Kennedy reasonably believed he had probable cause to arrest Bove for DWI. Bove, who bears the burden of setting forth pertinent facts, has simply failed to do so, aside from pointing the Court's attention to a few vague assertions he made at deposition, see supra at 4-5.
Nevertheless, when all the evidence is viewed and all inferences are drawn in favor of the non-movant, as required on a motion for summary judgment, United States v. Diebold Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990), the following picture presents itself. On March 13, 1992 at approximately 4:45 p.m., Kennedy's car came to a stop on the southbound shoulder of Mount Avenue between Richard Bove's red Bronco, and the tan Cadillac belonging to Francis Bove. Francis Bove was seated inside the Cadillac, which had been at rest for several hours in the precise position it occupied when Kennedy's patrol car pulled over. The events that followed are undisputed and are described supra at 2-3.
Even accepting this scenario, there is no dispute that Kennedy spotted Bove alone on the road either behind the wheel of or next to the Cadillac, and that a confrontation ensued.
These circumstances alone would make it extremely difficult for a jury to conclude that Kennedy's belief that Bove had been operating the car was unreasonable. As defendant points out, a police officer need not actually view a person operating a vehicle before arresting him or her for DWI.
Therefore, a conclusion that Kennedy is protected by qualified immunity from further litigation of Bove's claims would appear to be warranted.
However, the basis for reaching such a conclusion is severely weakened by the inconsistent statements Kennedy made at trial and on this motion, concerning the keys to the Cadillac. A demonstration at trial that Kennedy knew Bove did not have the keys to the Cadillac would establish the unreasonableness of Kennedy's claimed belief that Bove had been driving the car. Therefore, Kennedy's apparent equivocation on this obviously material issue is an important reason not to grant summary judgment in his favor. Once again, Bove has not raised this specific issue in his opposition to the motion. Indeed, he has not stated, in the motion papers or elsewhere, that he specifically informed Kennedy that he was not in possession of the keys. Nevertheless, he has argued strenuously that Kennedy fabricated his testimony at the criminal trial. Accordingly, construing all inferences in his favor requires at the very least that this Court be suspicious of Kennedy's allegations and analyze their effect when they are internally inconsistent. Stated differently, Bove has raised an issue of fact concerning Kennedy's truthfulness at the criminal trial, and this issue is material to a determination of what it was that Kennedy observed on the afternoon of March 13, 1992, that informed his decision to arrest Bove. Specifically, there is a genuine issue of fact with respect to the basis for Kennedy's asserted belief that Bove had been driving the car. The argument that there are no outstanding factual issues that are pertinent to the qualified immunity defense is thus without merit.
There remains an issue of whether Kennedy may be sued in his official capacity. A suit against a state official in his or her official capacity is treated as a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361, 116 L. Ed. 2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Accordingly, the rule that a state is not a "person" who may be held liable for damages under § 1983, applies as well to officials of that state acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Damages may be obtained against such an official under § 1983 only when he is sued in his personal capacity. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Therefore, the parts of Bove's claims that have been raised against Kennedy in his official capacity are dismissed.
Finally, plaintiff's claim of conspiracy to violate his civil rights is without merit. Section 1985(3) of Title 42, United States Code, provides a cause of action for damages to a person who has suffered injuries as a result of a conspiracy between at least two others to deprive him of his civil rights.
Although discovery is complete in this case, plaintiff has offered no information concerning the identities of defendant Bove's alleged co-conspirators. Indeed, he has not even attempted to amend the complaint or modify the caption of the case to name the individuals he claims took part in the alleged conspiracy. Consequently, plaintiff has failed to raise an issue of fact with respect to an essential element of the conspiracy claim, and it is accordingly dismissed.
Defendant Kennedy's motion for summary judgment on the ground of qualified immunity is hereby denied. Plaintiff Bove's conspiracy claim is dismissed, however, as are the rest of his claims to the extent that they are asserted against Kennedy in his official capacity.
JOHN GLEESON, U.S.D.J.
Dated: Brooklyn, New York
September 18, 1995