United States District Court, Northern District of New York
August 20, 2001
DEBORAH LALONDE, PLAINTIFF, VS. TIMOTHY BATES AND DAVID BRUCE, EACH INDIVIDUALLY, AND AS A POLICE OFFICER OF THE CITY OF ROME, NEW YORK; AND CITY OF ROME, NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Deborah LaLonde ("plaintiff" or "Ms. LaLonde") brought this
action pursuant to 42 U.S.C. § 1983, 1985, 1986, 1988, the First,
Fourth, Fifth and Fourteenth Amendments of the United States
Constitution,*fn1 and New York State law, claiming that Rome City Police
Officers Timothy Bates ("Officer Bates") and David Bruce ("Officer
Bruce") (collectively referred to as "defendants"), and the City of
Rome, New York, violated her civil rights.*fn2 The defendants moved for
summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff opposed.
Oral argument was heard on July 6, 2001, in Utica, New York. Decision
On March 18, 1999, Rome Police Investigator Scott Hall ("Investigator
Hall") obtained a warrant from the Rome City Court authorizing the search
of Apartment # 2 located at 508 East Bloomfield Street in Rome, New
York, a 1986 black
Chevrolet Cavalier automobile with the license plate
number W174JM, and the person of Juan Breton ("Breton"). This warrant
permitted the seizure of crack cocaine and a handgun.
On March 22, 1999, at about 7:30 p.m., Investigator Hall conducted a
briefing at the Rome Police Station at which time he provided a number of
police officers, including Officer Bates and Officer Bruce, with
information regarding the search warrant. He informed the officers that
Breton was suspected of being in possession of crack cocaine and a
handgun, that he might be alone or accompanied by one or two women, and
gave out the license plate number of the black Cavalier covered by the
search warrant. During the briefing, two confidential informants called
the police station and informed police that Breton was on his way to the
apartment named in the search warrant. A number of police officers,
including Investigator Hall, Officer Bates, and Officer Bruce, then
proceeded to the apartment to await Breton's arrival.
On the date of this incident, plaintiff*fn3 resided in Apartment # 4
at 326 East Bloomfield Street in Rome, New York, which is approximately
nine buildings away from the apartment named in the search warrant, and
owned a 1986 blue Chevrolet Celebrity automobile, license plate number
M800BZ. At approximately 8:00 p.m. on March 22, 1999, Ms. LaLonde left
her apartment, went out to her car and started it up. It had been
snowing that day, and plaintiff asserts she allowed the heater and rear
window defroster to run while she brushed the snow off all the windows
and the front and back of the car, including the headlights, taillights,
and license plates. Ms. LaLonde then got into her car and exited the
parking lot of the apartment complex onto East Bloomfield Street, with the
intention of picking her boyfriend up from work.
Almost immediately, plaintiff's car was pulled over by Officers Bates
and Bruce. They had been instructed to stop the vehicle by Investigator
Hall after he observed the plaintiff's dark colored Chevrolet exiting the
parking area of the apartment complex. After pulling her vehicle off to
the side of the road and rolling down the driver's side window, plaintiff
was verbally instructed to turn off the car and throw her keys out the
window. She was then ordered to exit the vehicle, place her hands behind
her head and walk backwards toward the officers. Plaintiff was then told
to get down on her knees and lie face down on the road with her arms
outstretched. Plaintiff complied with all of these demands. Ms. LaLonde
repeatedly asked the officers why she had been stopped and what she had
done wrong, only to be told to be quiet.
As she was lying in the street, Officer Bruce grabbed the back of
plaintiff's jacket as Officer Bates held her right arm behind her back,
and they both pulled her off the ground. At this time, Investigator Hall
arrived at the scene and instructed Officers Bates and Bruce not to
handcuff plaintiff, as she was not a suspect. He then asked plaintiff to
get into her car and drive to a nearby parking lot. While at the parking
lot, Investigator Hall explained to Ms. LaLonde that the police had made
a mistake, apologized to her, and told her she was free to go.
Plaintiff asserts that fifteen to twenty minutes passed between the
time she was pulled over to the time she was told she was free to go, and
that for at least part of the incident, the officers had their guns
drawn. Following this incident, plaintiff was counseled by Certified
Social Worker, John Carroll, who diagnosed her with post-traumatic stress
disorder, with various symptoms including depression, flashbacks,
nightmares, and panic attacks, stemming from the incident.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions, and affidavits show that there is
no genuine issues as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Lang v.
Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving
party carries the initial burden of demonstrating an absence of a genuine
issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d
Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed
in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Project Release v.
Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Co., 475 U.S. at 586. At that point,
the non-moving party "must set forth specific facts showing that there is
a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby Inc., 477
U.S. at 250; Matsushita Elec. Co., 475 U.S. at 587. To withstand a
summary judgment motion, evidence must exist upon which a reasonable jury
could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S.
at 248-49; Matsushita Elec. Co., 475 U.S. at 587. Thus, summary judgment
is proper where there is "little or no evidence . . . in support of the
non-moving party's case." Gallo v. Prudential Residential Servs.,
22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).
B. Unlawful Search and Seizure
The Fourth Amendment of the United States Constitution prohibits
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9
(1968). To determine whether a seizure was reasonable under the Fourth
Amendment, a two-prong test must be applied to the action in question.
Dempsey v. Town of Brighton, 749 F. Supp. 1215, 1222 (W.D.N Y 1990),
aff'd sub nom. Curenton v. Town of Brighton, 940 F.2d 648 (2d Cir. 1991)
(Table). "First, the court must determine whether the officer's action
was justified at its inception." Id. This requires the police officer to
be able "to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant [the]
intrusion." Terry, 392 U.S. at 21. Second, the action must be
"reasonably related `in scope' to the circumstances which justified the
[seizure] in the first place." Dempsey, 749 F. Supp. at 1222.
In the instant case, defendants argue that they acted reasonably in
stopping Ms. LaLonde's vehicle on March 22, 1999, and that enacting
felony-stop procedures which culminated in plaintiff's lying in the
street, terrified, was justified under the circumstances. However,
plaintiff presents a number of facts which call into question the
reasonableness of the
defendants' actions. First, the defendants were in
possession of a detailed description of the vehicle named in the search
warrant, including make, model, year, color, and most importantly,
license plate number. Plaintiff's car, although the same make and year
as the suspect car, was a different model and color, and displayed a
different license plate number than the vehicle named in the warrant.
Second, defendants were told to look for a Hispanic male, who could be
alone or accompanied by one or two women.
Plaintiff, a white female, was alone in her car when defendants stopped
her vehicle.*fn4 Third, defendants were at the apartment complex
awaiting Breton's arrival. Plaintiff was driving away from the apartment
complex on her way to pick up her boyfriend at the time defendants
stopped her vehicle. And fourth, plaintiff was alone, unarmed,
non-confrontational, and cooperated fully with defendants demands,
calling into question the necessity and reasonableness of felony-stop
Defendants argue that they are protected from liability for unlawful
search and seizure by virtue of the fellow officer rule. "Under [this]
rule, arresting officers may rely upon information or direction from
another officer because the directing officer is presumed to possess
probable cause." Mendoza v. City of Rome, 872 F. Supp. 1110, 1116
(N.D.N.Y. 1994). Defendants maintain that they reasonably relied on
Investigator Hall's instructions to stop plaintiff's vehicle, assuming
that Hall had probable cause for the stop. However, when a seizure is
challenged, the government must establish that the officer giving the
instructions actually possessed probable cause, and if they are unable to
do so, the arrest is unlawful, regardless of the arresting officer's good
faith. Id. Investigator Hall merely "observed a dark colored Chevrolet
car matching the general description of the suspect vehicle exiting the
parking lot . . . ." (Hall Aff. ¶ 4.) This is insufficient to hold,
as a matter of law, that Hall had probable cause to stop Ms. LaLonde.
Therefore, the fellow officer rule does not absolve the defendants of
liability under the circumstances of this case.
C. Excessive Force
Allegations of excessive force against police officers effecting a
seizure of the person "must be analyzed under the Fourth Amendment and
its standard of objective reasonableness." Anderson v. Branen,
17 F.3d 552, 558 (2d Cir. 1994) (citing Graham v. Connor, 490 U.S. 386,
396 (1989); Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also Kerman
v. City of New York, 261 F.3d 229, No. 00-9130, 2001 WL 845442 (2d Cir.
July 26, 2001). This standard requires evaluating whether the officers
acted reasonably in light of the totality of facts and circumstances
present at the scene. Anderson, 17 F.3d at 559; Lennon v. Miller,
66 F.3d 416, 425 (2d Cir. 1995). Factors to consider are the "severity
of the crime at issue, whether the suspect possesses an immediate threat
to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight." Graham, 490
U.S. at 396. Additionally, any force used in effecting an unlawful
of the person is considered excessive and unlawful. Atkins v.
New York City, 143 F.3d 100, 103 (2d Cir. 1998).
Because material questions of fact exist with regard to the
reasonableness of the defendants' actions in stopping Ms. LaLonde's
vehicle, it follows that material questions of fact exist as to the
lawfulness of the stop. If the stop itself was unlawful, any force used
by the defendant's in effecting that stop is excessive. Id. Therefore,
the existence of factual questions preclude summary judgment on the issue
of excessive force as the reasonableness determination is more properly
made by a jury.
D. Discrimination and Conspiracy
Plaintiff asserts causes of action against the defendants for
discrimination and conspiracy under 42 U.S.C. § 1985 and 1986.
Defendants move for summary judgment with regard to these claims on the
basis that they are conclusory and unsubstantiated, and thus unsuitable
as a basis for federal civil rights actions. Plaintiff has agreed to
discontinue her conspiracy claim. (Benson Aff. ¶ 14.) Because
plaintiff has failed to oppose defendants' motion for summary judgment
with regard to the discrimination claim, defendants' motion shall be
E. Assault and Battery
New York State law regarding assault and battery parallels the federal
laws regarding excessive force. Specifically, "[i]f an arrest is
determined to be unlawful, any use of force against a plaintiff may
constitute an assault and battery, regardless of whether the force would
be deemed reasonable if applied during a lawful arrest." Sulkowska v.
City of New York, 129 F. Supp.2d 274, 294 (S.D.N.Y. 2001); Johnson v.
Suffolk County Police Dep't, 245 A.D.2d 340, 341 (N.Y.App. Div. 2d Dep't
1997); see also Budgar v. State, 98 Misc.2d 588, 592 (N.Y. Ct. Cl.
1979); Pawloski v. State, 45 Misc.2d 933, 939 (N.Y. Ct. Cl. 1965).
Therefore, summary judgment must be denied with respect to plaintiff's
assault and battery claims for the same reasons discussed in the
excessive force subsection, supra, p. 7-8. The defendant City of Rome
must remain a defendant on the doctrine of respondeat superior.
F. False Arrest and False Imprisonment
"A civil action is commenced by filing a complaint with the court."
Fed. R. Civ. P. 3. This complaint must contain "a short and plain
statement of the claim[s]" upon which the plaintiff seeks relief.
Fed.R.Civ.P. 8. This requirement serves to ensure that the defendants
are aware of each claim upon which the plaintiff seeks to recover. See
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
In the instant case, plaintiff fails to state a claim for false arrest
and/or false imprisonment under New York State law in her complaint, as
required by Rule 8. The first mention of this claim appears in
plaintiff's Attorney's Affidavit in Opposition to Motion for Summary
Judgment. (Benson Aff. ¶ 10). This is insufficient. Further,
plaintiff made no attempt to amend her complaint in order to add a claim
for false arrest and/or false imprisonment pursuant to Fed.R.Civ.P. 15.
Therefore, plaintiff's allusions to a viable claim for false arrest
and/or false imprisonment are invalidated by her failure to properly
address them in her complaint.
G. Negligence and Gross Negligence
New York State law bars a plaintiff from bringing a negligence claim
once "intentional offensive contact has been established." Hansel v.
Sheridan, 991 F. Supp. 69, 75-76 (N.D.N.Y. 1998). In
"[w]hen a plaintiff brings excessive force and assault claims which are
premised upon a defendant's allegedly intentional conduct, a negligence
claim with respect to the same conduct will not lie." Naccarato v.
Scarselli, 124 F. Supp.2d 36, 45 (N.D.N.Y. 2000); see also Oliver v.
Cuttler, 968 F. Supp. 83, 92 (E.D.N.Y. 1997).
Because Ms. LaLonde has asserted claims of unlawful search and
seizure, excessive force, and assault and battery, and pled facts which
lend support to these claims, she cannot additionally argue that the same
facts would give rise to a claim for either negligence or gross
negligence. Therefore, plaintiff's claims with regard to negligence and
gross negligence must be dismissed as inconsistent with the intentional
H. Qualified Immunity
Defendants assert that they are immune to liability under plaintiff's
claims of unlawful search and seizure and excessive force due to the
doctrine of qualified immunity. "The doctrine of qualified immunity
shields police officers acting in their official capacity from suits for
damages under 42 U.S.C. § 1983, unless their actions violate
clearly-established rights of which an objectively reasonable official
would have known." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Ricciuti, 124
F.3d at 127). A decision in favor of a public official based on
qualified immunity is appropriate if (1) the conduct attributed to him is
not prohibited by federal law, or if such conduct is so prohibited; (2)
if the plaintiff's right not to be subjected to such conduct was not
clearly established at the time of the defendant's actions; or (3) if it
was not objectively reasonable for the official to know that his conduct
violated that right. See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66
(2d Cir. 1999); see also Thomas, 165 F.3d at 142-43. "The objective
reasonableness test is met . . . if `officers of reasonable competence
could disagree' on the legality of the defendant's actions." Thomas, 165
F.3d at 143 (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Viewing the facts most favorable to the plaintiff, questions exist as
to whether the defendants' actions were objectively reasonable. The
determination of whether the officers are entitled to qualified immunity
from liability in this civil rights action, is properly left for the time
of trial. See Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999); see
also Lennon, 66 F.3d at 420; Naccarato, 124 F. Supp.2d at 45.
Defendants' request for summary judgment based on the affirmative defense
of qualified immunity must be denied.
Because questions of material fact exist as to the reasonableness of
the defendants' actions, summary judgment is precluded with respect to
plaintiff's claims of unlawful search and seizure and excessive force
under federal law, and assault and battery under state law. These
questions of fact similarly preclude defendants' asserted defenses of
qualified immunity and the fellow officer rule. Accordingly, it is
ORDERED, that the defendants' motion for summary judgment is GRANTED in
part and DENIED in part:
1. Defendants' motion is GRANTED to the extent that following claims are
a. False arrest and false imprisonment;
b. Negligence and gross negligence; and
c. Discrimination and conspiracy;
d. First and Fifth Amendment; and
e. City of Rome (except the assault and battery claim);
2. Defendants' motion is DENIED with respect to the following claims:
a. Unlawful search and seizure;
b. Excessive force; and
c. Assault and battery.
IT IS SO ORDERED.