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May 12, 1998


The opinion of the court was delivered by: GLEESON


 JOHN GLEESON, United States District Judge:

 On June 14, 1994, plaintiff Louis Mistretta filed the complaint in this case. His claims arose out of events that occurred on June 15, 1993, when he was arrested at his home. He asserted claims of false arrest, malicious prosecution and unlawful arrest in his home without a warrant, in violation of 42 U.S.C. § 1983 and state law.

 The malicious prosecution claims were dismissed prior to trial. The remaining claims were tried to a jury on January 26 and 27, 1998. The plaintiff's case took less than a day and one-half, which also included jury selection. Plaintiff called five witnesses: himself, the attorney who represented him on the day of the arrest, and the three defendant police officers.

 At the close of the plaintiff's case, the defendant officers and the municipal defendant, Suffolk County, moved for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. After oral argument of the motion, I granted it in its entirety. This memorandum sets forth my reasons.


 Viewed in the light most favorable to the plaintiff, the facts are as follows:

 Beginning in 1991, the 28-year marriage of plaintiff Louis Mistretta and his wife, Marianne Mistretta, began unraveling. By 1993, their matrimonial problems were in full swing. The severity of those problems was evidenced by plaintiff's discovery on the morning of June 15, 1993, upon his return from a business trip, that his wife had changed the locks on his home at 22 Oak Lane in Blue Point, New York.

 At the time, plaintiff was living at that address with his two adult daughters, Lisa and Diana. *fn1" Earlier in 1993, Marianne had moved out of the house, which she owned jointly with plaintiff, and Diana had moved in. When she moved in, Diana stored in the basement some of the furniture she had acquired while living elsewhere.

 No one was home (except for Diana's dog) when plaintiff found himself locked out of his house. Plaintiff found a pay telephone and contacted his lawyer's office, finding out that the lawyer had not received any paperwork authorizing Marianne's tactic. Plaintiff then went back to the house and broke into it by removing a pane of glass from the back door.

 Plaintiff discovered that locks had also been replaced within the house, requiring him to break into the basement, the master bedroom and the garage. He found that his clothes had been removed from the closets and placed in plastic bags or just thrown around the house. He thought Marianne might have moved back in while he was away.

 After breaking into the basement, plaintiff went down the stairs. His "stuff" had been thrown around. He went to check a half-finished basement room where, he said, he kept some of his clothes. However, he could not open the door, not because it was locked, but because a piece of furniture was propped up against it on the other side. Plaintiff forced the door open and damaged the piece of furniture. *fn2"

 Plaintiff used the telephone to find out from Lisa where Diana worked, and then to call Diana. Diana said she had nothing to do with changing the locks and that Marianne had done it. Diana admitted that she had known about it, and then hung up on her father.

 Not long after that, Diana appeared at the house with two police officers. The officers said Diana lived there and wanted to continue living there. Plaintiff, who testified that he was "pissed off," but not "angry," Tr. 237, *fn3" told the officers that "this was a situation where I got locked out and I got to be out of my mind to let her back in right now so she can lock me back out again." Tr. 183. The police officers said to Diana that she should wait for her mother to come, and all three left. Approximately 20 minutes later, Marianne opened the door. She was with defendant Police Officer Christopher Prokesch and Diana.

 Before Marianne came to the house, she had gone to the 5th Precinct of the Suffolk County Police Department to make a complaint. Officer Prokesch, who was on duty in his patrol car, was told by the dispatcher to respond to the precinct to interview her. Before June 15, 1993, he had had no contact with, or knowledge about, any of the Mistrettas. Marianne told Prokesch that (a) her lawyer instructed her to change the locks on the house at 22 Oak Lane, which she owned jointly with plaintiff; (b) plaintiff had moved out of that house two months earlier; (c) he had returned to the house that day and broken into it; and (d) she wanted plaintiff arrested for breaking and entering or burglary. Prokesch, who at the time had been a police officer for six years, could not determine whether the complaint had merit, so he proceeded to the house with Marianne. *fn4"

 After Marianne, Diana and Prokesch entered the house, they went into the kitchen, where plaintiff was going through some papers. Prokesch told plaintiff that he did not belong in the house. Plaintiff challenged him to prove it. Marianne chimed in that plaintiff did not belong there, and immediately called her lawyer. She was overheard saying "you told me he wasn't going to be here" and "my God, he's going to sleep here." Tr. 185. She hung up and began to walk down the hallway away from Prokesch and plaintiff. Plaintiff began to follow her but Prokesch insisted that he stay in the kitchen.

 Prokesch asked plaintiff where he lived. Plaintiff said he lived in that very house. Marianne returned from upstairs and said "My God, he was in the bedroom." Tr. 185. She insisted that she wanted plaintiff out of the house. Then Diana said something plaintiff did not hear and the three Mistrettas began yelling at each other. "All of a sudden," plaintiff testified, "the policeman said 'Diana, Marianne, come over, I want to talk to you.'" Tr. 185. Prokesch told plaintiff to stay in the kitchen, while Prokesch conversed with the two women by the stairway to the basement. Plaintiff heard Marianne say that "there's got to be a way for us to get him out of here. He can't stay in this house." Tr. 186.

 Prokesch told Marianne that he could not arrest plaintiff for breaking and entering or burglary because it was not clear to Prokesch that plaintiff did not have a right to be there. Diana then stated that she wanted her father arrested for breaking her property. She told Prokesch that her father, upset at being locked out, had begun removing her furniture from the basement and putting it outside the house. When Diana argued with her father about it, he threw a bureau belonging to Diana down the basement stairs. Upon hearing this complaint, Prokesch went into the basement and observed the damaged piece of furniture.

 Prokesch came back upstairs and told Diana that she would have to make a sworn, written complaint if she wanted to press charges against her father. They exited the house and went to Prokesch's patrol car, where Diana completed a police department form entitled "Supporting Deposition of Civilian Witness." It charged plaintiff with Criminal Mischief in the Fourth Degree in that he damaged Diana's bedroom furniture by intentionally throwing it down the stairs, causing approximately $ 200 in damages.

 After Diana executed her sworn statement, Prokesch informed plaintiff that he was being arrested on his daughter's complaint for breaking her furniture. Plaintiff testified at trial that Prokesch specifically identified a white piece of furniture as the damaged property, and that he told Prokesch that the damaged piece of furniture belonged to him and he could provide the receipt for its purchase. *fn5" Prokesch did not allow plaintiff to find the receipt.

 At the time of the arrest, plaintiff was near the open front door of his house, in the hallway. Prokesch was outside by his patrol car, where he had taken the written statement from Diana. As plaintiff was walking toward the front door, on his way outside to retrieve something from his vehicle, Prokesch told him he was under arrest. After plaintiff exited the house, Prokesch placed him in handcuffs and brought him to the police station. As he was being handcuffed, plaintiff said to his daughter: "Please, Diana, don't do this to me," and pleaded with her not to pursue a criminal charge against him. Tr. 165, see also Tr. 197.

 Plaintiff was arrested too late in the day to be brought before a judge. While at the police station, he telephoned his attorney, who then came to the station. The attorney asked that Mistretta be released and given a "desk appearance ticket." The sergeant on duty, defendant Anthony Napolitano, asked plaintiff if he had another place to stay, and then declined to release plaintiff from custody unless he agreed not to return to the house at 22 Oak Lane for 24 hours. *fn6" His attorney appealed Napolitano's decision to defendant Lieutenant Robert Hendrickson, the commanding officer at the precinct, who backed the sergeant's decision. Plaintiff refused to agree to the condition. He was thus detained overnight, and he was released by a judge at his arraignment the next day. The charges against him were subsequently dismissed in the interests of justice.

 At the time of plaintiff's arrest, the Suffolk County Police Department had a "pro-arrest" policy in dealing with domestic disputes. Prior to the implementation of that policy, police officers attempted to mediate disputes between spouses. Due to an increase in domestic violence, including "some very bad cases where spouses . . . actually ended up being killed," Tr. 113, the police department adopted a policy of making arrests, rather than attempting to defuse the situation, ...

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