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PIROZZI v. THE CITY OF NEW YORK

December 2, 1996

JOHN PIROZZI and FRANK ROTUNDI, Plaintiffs, against THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, et al., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 Plaintiffs are police officers who contend that their Fifth and Fourteenth Amendment rights were violated when the New York City Civilian Complaint Review Board ("CCRB") produced records of its investigation of the officers to the Kings County District Attorney pursuant to the District Attorney's subpoena. Plaintiffs seek damages for these alleged violations of their civil rights under 42 U.S.C. ┬ž 1983. Currently before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, Defendants' motion for summary judgment is granted, and Plaintiffs' motion is denied.

 Plaintiffs John Pirozzi ("Pirozzi") and Frank Rotundi ("Rotundi") are employed by the New York City Police Department ("Police Department"). *fn1" In 1992, as a result of a civilian complaint, Plaintiffs were the subject of an investigation by the Police Department's Civilian Complaint Investigative Bureau ("CCIB") *fn2" into Plaintiffs' alleged misconduct prior to and during the course of the arrests of Nicole Marcano and Brian Benjamin-Benn on June 18, 1992.

 Plaintiffs were interviewed by CCIB investigators in September 1992. These interviews were conducted pursuant to Section 118-9 of the Police Department Patrol Guide, entitled "Interrogation of Members of the Service," and were tape recorded. Section 118-9 provides, inter alia, that statements made by a police officer in response to a departmental interrogation ("PG 118-9 statements"), and any information or evidence gained by reason of such statements, cannot be used against that police officer in any subsequent criminal proceedings.

 In October 1992, the CCIB found that the allegations of misconduct against Plaintiffs had been substantiated. As a result, the Police Department Advocate's Office brought departmental charges and specifications against Plaintiffs, which are still pending. In July 1993, the CCIB became an agency independent and separate from the Police Department, and was renamed the CCRB. *fn3"

 During that same month, the Kings County District Attorney's Office, in connection with its own investigation into Plaintiffs' alleged misconduct, served a subpoena on the CCRB seeking production of all records regarding its investigation of Plaintiffs, including Plaintiffs' PG 118-9 statements. Pursuant to its policy of compliance with subpoenas from the District Attorney, CCRB produced the requested documents and copies of the tape recorded PG 118-9 statements. *fn4" The District Attorney's office eventually commenced a criminal action against Plaintiffs in the Supreme Court of the State of New York, County of Kings, based on Plaintiffs' alleged misconduct during the arrests of Marcano and Benjamin-Benn. During pre-trial proceedings, the trial judge rejected Plaintiffs' application to dismiss the indictment based on Plaintiffs' contention that the PG 118-9 statements had been improperly used against them by the District Attorney's office. The jury found Rotundi not guilty of all criminal charges, and found Pirozzi guilty of one criminal charge. The trial judge set aside Pirozzi's guilty verdict, and the criminal action was dismissed. An appeal from the trial judge's order setting aside Pirozzi's guilty verdict is pending.

 II. DISCUSSION

 A party is entitled to summary judgment when there is "no genuine issue of material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. See Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Here, the parties do not dispute the material facts underlying this action. The disposition of these motions therefore turns on whether the production of the PG 118-9 statements violated Plaintiffs' Fifth or Fourteenth Amendment rights as a matter of law.

 The Fifth Amendment to the Constitution of the United States provides that no person "shall be compelled in any criminal case to be a witness against himself." This protection against self-incrimination applies to the states by incorporation into the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964). A person may, however, be compelled to testify against himself if immunity has been conferred upon him. Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). The use of immunized statements in a criminal prosecution, or any evidence derived from those statements, violates the Fifth Amendment rights of the person granted immunity. United States v. Nanni, 59 F.3d 1425, 1431 (2d Cir.) (citing Kastigar, 406 U.S. at 453), cert. denied, 133 L. Ed. 2d 499, 116 S. Ct. 576 (1995).

 Plaintiffs contend that the CCRB's production of their PG 118-9 statements to the District Attorney's office violated their Fifth Amendment right against self-incrimination as a matter of law. They argue that they were compelled to testify during the CCIB investigation under penalty of losing employment with the police force, and therefore that such testimony was necessarily given under a grant of immunity. Plaintiffs claim that CCRB's production of the statements was in derogation of that immunity and in violation of the Fifth Amendment.

 Defendants do not dispute that plaintiffs were entitled to use immunity with respect to their PG 118-9 statements, or that the use of evidence derived from those statements in a criminal prosecution would violate Plaintiffs' Fifth Amendment rights. Rather, Defendants argue that the CCRB's act of producing ...


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