straight line to complete a
field sobriety test. (Tuozzolo Dep. at 572-74, 189-90, 500-02;
Online Booking Sheet at 1. 17; Standt Dep. at 14:11-16.) Tuozzolo
has alternately alleged that Standt failed to complete the test,
and that he completed it but failed to walk "heel to toe" as
required. (Tuozzolo Dep. at 183:4-9, 184:21-22, 188:4-12) Standt
contends that he walked the straight line with no difficulty but
was never instructed in the "heel to toe" method. (Standt Dep. at
After attempting the line walk, Standt was arrested and charged
with driving under the influence of alcohol at approximately 1:10
a.m. (Tuozzolo Dep. at 290; Online Booking Sheet, 1. 9; Rosen
Decl. Ex. D (28th Pct. Command Log); Standt Dep. at 34.) Sgt.
Chu, the supervisor on the scene, alleges that Standt became
agitated, started yelling in German and said "Heil Hitler."
(Rosen Decl. Ex. P (Chu Dep.) at 132). Standt denies having said
this or raised his voice at all, which Tuozzolo confirms. (Stand
Dep. at 34-35; Standt Decl. ¶ 6; Tuozzolo Dep. at 573-74.)
Standt was transported to the 28th Precinct of the NYPD. When
he arrived at the precinct, the desk sergeant, Victor Dempsey,
did not notice Standt to have any signs of intoxication, such as
smelling of alcohol, slurring his speech, being unsteady on his
feet, or having bloodshot eyes. (Maazel Decl. Ex. G (Dempsey
Dep.) at 99-104.) Nonetheless, Dempsey wrote in the command log
that Standt appeared intoxicated. (Dempsey Dep. at 99-104;
Command Log ("App Intox").) Dempsey also searched Standt's bag,
which contained various gay-related magazines and other items.
(Standt Dep. at 59-61, 197-203.)
Officer Parduba administered a breathalyzer test to Standt on
the second floor of the precinct at approximately 2:35 a.m.
Meanwhile, Tuozzolo began to fill out the appropriate paperwork.
In the space for "Physical Condition" in the Online Booking
Sheet, Tuozzolo wrote the code "01" for "Apparently Normal."
(Maazel Decl. Ex. E 1. 17; Tuozzolo Dep. at 500-02.)*fn1 On the
Intoxicated Driver Examination form, Tuozzolo checked boxes
indicating that Standt's eyes were bloodshot and his balance was
"swaying." (Rosen Decl. Ex. E (Intoxicated Driver Examination
form) at 2.) While upstairs, officers including Tuozzolo directed
repeated explicit homophobic remarks at Standt. (Standt Dep. at
86-9.) The breathalyzer test revealed that Standt had a blood
alcohol level of 0.00%. (Rosen Decl. Exs. F (Chemical Test
Analysis), G (Officer's Arrest Report — IDTU).) The DUI arrest
was then voided. (Command Log.)
Still in handcuffs since his arrest, Standt was returned
downstairs. Crying now, he asked repeatedly to contact the German
Consulate. (Standt Dep. at 94-5, 98-100, 104-07.) No officer
either notified him of his right to contact the Consulate or
allowed him to do so at any time. (Standt Dep. at 100-01, 104-07;
Standt Decl. ¶ 9; Tuozzolo Dep. at 404-07.)
When Standt requested that his handcuffs be loosened, an
officer tightened them instead, and Standt alleges that officers
began to assault him by pulling his hair, hitting him in the
shoulders, ribs, and stomach. (Standt. Dep. at 108-17.) The
defendants contest this charge, and specifically contend that
Officer Tuozzolo attempted to remove the cuffs once the DUI
charge was voided, but that Standt "refused
to be released," twisted and moved away, began to scream, and attempted
to bite him. (Tuozzolo Dep. at 378-79; Tuozzolo memo book).
At or about 3:16 a.m., Sgt. Dempsey ordered Standt to be
transported to St. Lukes Hospital as an alleged Emotionally
Disturbed Person ("EDP"). (Dempsey Dep. at 131-34, 140.) Upon
arrival, Nurse Mary Swett ("Swett") determined that Standt was
not emotionally disturbed in any way. (Standt Dep. at 142, 248-49;
Tuozzolo Dep. at 460-62; Maazel Decl. Ex. H (Tuozzolo Memo
Book) at 4 ("ASS[t.] Head Nurse Nary Swett St. Lukes Hosp.
Refused to Do Write up Not EDP").) Standt asked Swett to contact
the German Consulate, which she did. Standt spoke briefly to an
individual at the Consulate by telephone. (Standt Dep. at 236.)
At approximately 4:30 a.m., Standt, who was still handcuffed,
was transported back to a parking lot across from the 28th
Precinct station house, where he alleges that he was again beaten
by several police officers. (Standt Dep. at 273-82.) Tuozzolo
issued Standt two summonses — one for driving without a
seatbelt and the other for driving without a valid license
— before releasing him. (Standt Decl. ¶ 8; Maazel Decl.
Ex. K (summonses).) The summonses had been sworn at approximately
2:45 a.m. — after the breathalyzer test came back negative.
(Maazel Decl. Ex. H (Tuozzolo memo book)), but Standt was not
notified of them until after 4:30 a.m. (Standt Decl. ¶ 8). He
was finally released at approximately 4:39 a.m., more than three
hours after he was stopped at the checkpoint. (Tuozzolo memo
Standt then returned to St. Luke's Hospital in order to seek
treatment for injuries he had received that night. (Standt Dep.
at 293-95; Maazel Decl. Ex. I (St. Luke's Hospital Records)). He
alleges that his treatment by officers brought back memories of
his brutal detention and imprisonment by the East German STASI
police when he lived in East Germany. (Compl. ¶ 57.)
Standt retained an attorney and appeared in traffic court two
or three times before both summonses were dismissed. (Maazel
Decl. ¶ 3; Standt Decl. ¶ 8.)
After duly serving notices of claim pursuant to New York law
and receiving no offer of settlement, Standt filed this action
against the City, Tuozzolo, and John and Jane Does #1-#10 on
November 3, 1999. An amended complaint adding Applewhite, Chu,
Dempsey, Anderson, and McKernan, and reducing number of John
Does, was filed on February 20, 2001. The amended complaint
contains ten claims: (1) a 42 U.S.C. § 1983
cause of action for conspiracy to violate, and actual violations of Standt's
Fourth, Fifth, Sixth, and Fourteenth Amendment rights, by the
individual defendants; (2) violations of the Article I, § 2
of the New York State Constitution; (3) assault and battery; (4)
false arrest and false imprisonment; (5) Intentional Infliction
of Emotional Distress; (6) Malicious Prosecution; (7)
Conversion/Unjust enrichment of a watch and bracelet; (8) Article
36(1) of the Vienna Convention on Consular Relations, (9)
negligence with regard to the watch and bracelet, each against
all defendants; and (10) negligent hiring/training/retention of
employment services by the City.
The defendants filed this partial summary judgment motion on
March 13, 2001. Specifically, the defendants seek summary
judgment on (1) the Vienna Convention claim; (2) the false arrest
and false imprisonment claim due to (a) the existence of probable
cause and (b) qualified immunity;
and (3) the malicious prosecution claim.*fn2 Standt filed
opposing papers on April 9, 2001, and the motion was deemed fully
submitted upon oral argument on May 2, 2001.
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." The Second
Circuit has repeatedly noted that "as a general rule, all
ambiguities and inferences to be drawn from the underlying facts
should be resolved in favor of the party opposing the motion, and
all doubts as to the existence of a genuine issue for trial
should be resolved against the moving party." Brady v. Town
of Colchester, 863 F.2d 205, 210 (2d Cir. 1988)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting));
see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995);
Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995). If, when
viewing the evidence produced in the light most favorable to the
non-movant, there is no genuine issue of material fact, then the
entry of summary judgment is appropriate. See Burrell,
894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co.,
933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). "[T]he mere existence of factual issues — where
those issues are not material to the claims before the court
— will not suffice to defeat a motion for summary
judgment." Quarles v. General Motors Corp.,
758 F.2d 839, 840 (2d Cir. 1985).
While all reasonable ambiguities and inferences should be
resolved against the moving party, those inferences must be
supported by affirmative facts and must be based on relevant,
admissible evidence. See Fed. R. Civ. P. 56. A party
seeking to defeat a summary judgment motion cannot "`rely on mere
speculation or conjecture as to the true nature of facts to
overcome the motion.'" Lipton v. Nature Co.,
71 F.3d 464, 469 (2d Cir. 1995) (citation omitted).
II. The Vienna Convention Claim
Defendants allege that Standt cannot pursue his § 1983
claim for violation of his right to consular notification under
the Vienna Convention on Consular Relations ("VCCR" or "Vienna
Convention"), April 24, 1963, 21 U.S.T. 77, 101 T.I.A.S. No.
6820, 596 U.N.T.S. 261, 1967 WL 18349, because (1) Standt does
not have standing to bring suit for violations of the VCCR, as
that treaty does not provide an individual right of action; (2)
VCCR violations are not actionable pursuant to
42 U.S.C. § 1983; and (3) even if he does have a cognizable claim, he cannot
show the prejudice required to claim damages.
A. The VCCR Provides a Private Cause of Action
That Individuals Such as Standt May Enforce
The VCCR came into force on April 24, 1964, and was ratified by
United States on October 22, 1969. See Cong. Rec.
30997 (1969). Although international treaties, as agreements
among nations, rarely grant rights that may be enforced by an
individual, there are exceptions to this rule. See
United States v. Alvarez-Machain, 504 U.S. 655, 667-68,
112 S.Ct. 2188, 119 L.Ed.2d 441 (1992); Head Money
Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 254, 28 L.Ed. 798
(1884). The Supreme Court has recognized generally that an
individual may assert private rights under a treaty if the treaty
either expressly or impliedly provides for a private right of
action, see Argentine Republic v. Amerada Hess
Ship. Corp., 488 U.S. 428, 442, 109 S.Ct. 683, 102 L.Ed.2d
818 (1989), and has noted that the Vienna Convention in
particular "arguably confers on an individual the right to
consular assistance following arrest," Breard v.
Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 1355 (1998).
However, the Supreme Court has not directly addressed whether the
"right to consul" may be asserted in United States courts, the
mechanism by which it may be raised, or the appropriate remedy
for its violation.
The threshold issue — often subsumed under the doctrines
of "standing" and "self-executing" treaties — is whether
the VCCR confers a private right of action enforceable by
individuals. See, e.g., Carlos Manuel Vazquez,
Treaty-Based Rights and Remedies of Individuals, 92
Colum. L. Rev. 1082, 1135 (June 1992) (hereinafter "Vazquez") (in
treaty cases, the issue of standing and the question "whether the
individual has a `right' under the treaty such that the treaty
may be said to be self-executing . . . in fact address the same
issue and should be collapsed."); cf. National
Railroad Passenger Corp. v. National Assn. of Railroad
Passengers, 414 U.S. 453, 455-56, 94 S.Ct. 690, 692, 38
L.Ed.2d 646 (1974) (although questions of "standing" and whether
statute "can be read to create a private right of action to
enforce compliance with its provisions" are "interrelated," the
"threshold question clearly is whether the [statute] . . .
creates a cause of action whereby a private party such as the
respondent can enforce duties and obligations imposed by the
Lower "[c]ourts have been unable to reach a consensus, and
often even a decision, on the issue of whether Article 36
creates an individually enforceable right." United States v.
Santos, 235 F.3d 1105, 1107 (8th Cir. 2000). Many courts
have avoided "wad[ing] into the morass" by presuming that a
private right of action exists. United States v.
Salameh, 54 F. Supp.2d 236, 279 (S.D.N Y
1999). See, e.g., United States v.
Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000),
cert. denied, 121 S.Ct. 1165 (2001); United States v.
Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000) (per
curiam), cert. denied sub.
nom Zuniga v. United States, ___ U.S. ___,
121 S.Ct. 893, 148 L.Ed.2d 800 (2001); United States v.
Li, 206 F.3d 56, 60 (1st Cir. 2000), cert.
denied, 531 U.S. 956, 121 S.Ct. 378, 148 L.Ed.2d 292
(2000); United States v. Lombera-Camorlinga,
206 F.3d 882, 885 (9th Cir. 2000) (en banc), cert.
denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 455
(2000); United States v. Bin Laden, 132 F. Supp.2d 168,
194 & n. 30 (S.D.N.Y. 2000); Sorenson v. City of New
York, Nos. 98 Civ. 3356(HB), 98 Civ. 6725(HB), 2000 WL
1528282, *3 (S.D.N.Y. Oct. 16, 2000); United States v.
Rodrigues, 68 F. Supp.2d 178, 183 (S.D.N.Y. 1999);
United States v. Kevin, No. 97 CR. 763 JGK, 1999 WL
194749, *3 (S.D.N.Y. Apr. 7, 1999).
Interpretation of treaties is governed by the Vienna Convention
on the Law of Treaties ("Treaty Convention"), May 23, 1969, art.
26, 1155 U.N.T.S. 331, 339,*fn4 which directs courts to look
first to the plain language of a treaty when attempting to
determine its meaning. See Sumitomo Shoji America,
Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72
L.Ed.2d 765 (1982) ("Interpretation of [the Treaty] must, of
course, begin with the language of the Treaty itself[, and] [t]he
clear import of Treaty language controls. . . ."); Croll v.
Croll, 229 F.3d 133, 136 (2d Cir. 2000)
Article 36 of the Vienna Convention enumerates the right of
consular notification as follows:
1. With a view to facilitating the exercise of consular
functions relating to nationals of the sending state: . . .
(b) if [the defendant] so requests, the competent
authorities of the receiving State shall, without delay,
inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to
the consular post by the person arrested, in prison,
custody or detention shall also be forwarded by the said
authorities without delay. The said authorities shall inform
the person concerned without delay of his
rights under this subparagraph;
(c) consular officers shall have the right to visit a
national of the sending State who is in prison, custody or
detention, to converse and correspond with him and to arrange
for his legal representation. . . .
2. The rights referred to in paragraph 1 of this Article shall
be exercised in conformity with the laws and regulations of the
receiving State, subject to the
proviso, however, that the said
laws and regulations must enable full effect to be given to the
purposes for which the rights accorded under this Article are
VCCR, Art. 36 (emphasis added). This "text emphasizes
that the right of consular notice and assistance is the
citizen's. The language is mandatory and unequivocal, evidencing
the signatories' recognition of the importance of consular access
for persons detained by a foreign government." Breard v.
Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J.,
concurring), cert. denied,