police headquarters. Further, Police Officer Mazzio testified
that "Plaintiff stated that he had taken too much `Robitussin'
for his cold" and that Police Officer Mazzio believed that "cold
medicine, such as `Robitussin', contains a quantity of alcohol."
(Mazzio Aff. ¶ 11.)
Notwithstanding the fact that Police Officer Mazzio stated
that he did not suspect that Plaintiff was necessarily impaired
by alcohol, he knew that Plaintiff was impaired by something.
(Dep. of Mazzio at 85.) Further, Police Officer Mazzio knew that
Plaintiff consumed Robitussin, a medication that Police Officer
Mazzio suspected to contain a quantity of alcohol. (Mazzio Aff.
As an initial matter, this Court hesitates to conclude that
Section 1192(3) pertains only to alcohol. Section 1192(3) does
not mention alcohol, but rather refers to an "intoxicated
condition." Further, this Court referred to the dictionary for
guidance in this respect. The various definitions of the words
intoxicated, intoxicant, intoxicate and intoxication support
this Court's belief that intoxication is not limited to alcohol
consumption. See OXFORD ENGLISH DICTIONARY (2d ed. 1989).
That being said, this Court acknowledges that some New York
cases support Plaintiffs contention that Section 1192(3)
pertains only to alcohol. See e.g. People v. Cruz, 48 N.Y.2d 419,
423 N.Y.S.2d 625, 399 N.E.2d 513, 517 (1979) (stating that
"intoxication is a greater degree of impairment which is reached
when the driver has voluntarily consumed alcohol to the extent
that he is incapable of employing the physical and mental
abilities which he is expected to possess in order to operate a
vehicle as a reasonable and prudent driver"); People v.
Farmer, 36 N.Y.2d 386, 369 N.Y.S.2d 44, 330 N.E.2d 22, 22-23
(1975) (stating that the subdivisions of Section 1192 "proscribe
separable offenses based upon the degree of impairment caused by
alcohol ingestion"); People v. Bayer, 132 A.D.2d 920,
518 N.Y.S.2d 475 (1987) (finding that, as a matter of law, 1192(3)
"is intended to apply only to intoxication caused by alcohol").
However, it must be noted that, in none of these cases was the
precise issue presented and decided as to whether the statute
covered intoxication from a substance other than alcohol.
Subdivision three (3), unlike one (1), two (2) and four (4),
does not specify the cause of intoxication.
Even accepting the interpretation of Section 1192(3) as
involving only alcohol, Police Officer Mazzio did not, and could
not, conclusively rule out alcohol consumption without the
benefit of laboratory tests. Plaintiff informed Police Officer
Mazzio that he had consumed Robitussin, a medicine that Police
Officer Mazzio believed to contain some quantity of alcohol.
Police Officer Mazzio did not perform field sobriety tests at
the scene of the arrest because he found Plaintiff unsteady
afoot. Later, Plaintiff failed sobriety tests at the police
station. Further, Police Officer Mazzio's fellow officers stated
that, given the circumstances, Section 1192(3) was the proper
charge and that the information could later be amended upon
receipt of lab results. (Dep. of Drinkwater at 24; Dep. of Tanzi
It is this Court's opinion that there existed probable cause
to arrest and charge Plaintiff as Defendants did. It is not
significant that Plaintiffs blood tests returned negative for
alcohol and drugs. At issue is whether there was probable cause
to arrest and charge Plaintiff with the crimes, not whether
there was an actual violation of the same.
Based upon this Court's finding of probable cause to arrest
and charge Plaintiff, the 42 U.S.C. § 1983 claims based upon
false arrest, false imprisonment and
malicious prosecution against all Defendants must and do fail.
II. Plaintiff Failed To Establish His Claim Of Excessive
Excessive force claims arising out of an arrest are analyzed
under the Fourth Amendment's "objective reasonableness"
standard. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989). To determine if the use of force in
effecting an arrest is reasonable, courts balance "the nature
and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental
interests at stake." Id. at 396, 109 S.Ct. 1865 (citations
omitted). Further, "[t]he `reasonableness' of a particular use
of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
It is important to note that "[n]ot every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment." Id (citations
omitted). Indeed, "Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it." Id.
Courts consider the injuries sustained, if any, as relevant to
determining the "reasonableness" of the force applied. See e.g.
Gonzalez v. City of New York, No. 98-CV-3084, 2000 WL 516682,
2000 U.S. Dist. LEXIS 5230, at *12 (E.D.N.Y. March 7, 2000) ("If
a plaintiff sustains an injury during an arrest, this is a
relevant factor for the court in considering whether the force
used was reasonable.") "However, reasonable force does not
become unconstitutional merely because it caused the plaintiff
serious injury." Id.
The use of handcuffs in an arrest situation is not per se
reasonable. Soares v. State of Conn., 8 F.3d 917, 921 (2d Cir.
1993). However, the Second Circuit has noted that "handcuffing
will be the reasonable course in many, if not most arrest
situations ." Id. Further, courts have found that the use of
handcuffing may give rise to a an excessive force claim where
the plaintiff sustains injury; "[h]owever if the application of
handcuffs was merely uncomfortableor caused pain, that is
generally insufficient to constitute excessive force."
Gonzalez, 2000 WL 516682, 2000 U.S. Dist. LEXIS 5230, at *12.
Here, Plaintiffs excessive force claim is based upon Police
Officer Mazzio's use of handcuffs in effecting the arrest.
Plaintiffs claim rests on his contention that Police Officer
Mazzio pulled at the handcuffs one time. (Dep. of Otero at 125.)
Plaintiff never complained that the handcuffs were
uncomfortable. (Mazzio Aff. ¶ 26; Examination of Otero at
56-57.) The single pull did not leave a mark on Plaintiffs
wrist, nor make Plaintiffs wrists bleed. (Dep. of Otero at 125;
Examination of Otero at 56.) Plaintiff did not request to see a
doctor concerning his wrists while in police custody or any time
thereafter. (Examination of Otero at 55-56.)
Further, Southampton Police Department policy calls for the
use of handcuffs in effecting arrests such as that of Plaintiff.
Under the circumstances, it was reasonable to use handcuffs, and
Police Officer's Mazzio use thereof was likewise reasonable.
Plaintiff has not provided sufficient evidence with which to
sustain his excessive force claim, and summary judgment is
granted in favor of Defendants with regard to the same.
III. The Alleged "Perp Walk" Did Not Violate The Fourth
The Second Circuit has held that staged perp walks violate the
Fourth Amendment. Lauro v. Charles, 219 F.3d 202, 213 (2d Cir.
2000). In so holding, the court limited its decision as not
applying to "cases in which there is a legitimate law
enforcement justification for transporting a suspect." Id.
In Lauro, a police officer was told that the media was
interested in the case and that the plaintiff should be taken on
a perp walk. Id. at 204. Accordingly, the officer handcuffed
the plaintiff, walked him out the front door of the station,
placed him in an unmarked police car, drove him around the
block, removed him from the car and then walked him back into
the station. Id. at 204-05. The perp walk was filmed and
broadcast by Fox 5 News. Id. at 205. In Lauro, "the press
and the public were not viewing the actual event of [plaintiff]
being brought to the police station, but rather, were offered a
staged recreation of that event." Id. at 213.
In contrast, in the instant case, Plaintiff was being
transported to his arraignment. (Dep. of Otero at 138; Pl.'s
56.1(b) Stmt. ¶ 11.) There was no staged recreation here.
Further, Plaintiff was not escorted by a uniformed police
officer, nor were handcuffs blatantly visible although one could
assume that Plaintiff was handcuffed given that he held his
hands behind his back. (Clifford Aff. Ex. S.) Also notable is
the fact that an internal police department directive mandated
that officers shall not "[p]ose an arrestee for news
representatives to video tape or take still pictures of him/her"
without first obtaining permission from the Chief of Police.
(Southampton Town Police Department General Order 26-97, Public
Information/Community Relations, dated September 29, 1997 at §
Transporting Plaintiff to his arraignment qualifies as a
legitimate law enforcement purpose. There is no sufficient
evidence that this was a staged "perp walk" in violation of the
Fourth Amendment. Therefore, Defendants' motion for summary
judgment on this ground is granted.*fn13
IV. State Law Claims
Given that this Court has dismissed all claims based upon
federal law, this Court declines to exercise jurisdiction over
the remaining State law claims. See e.g. United Mine Workers of
America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d
218 (1966) ("Certainly, if the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.");
Campbell 2001 WL 91615, 2001 U.S. Dist. LEXIS 609, at *18.
Accordingly, for the foregoing reasons, Defendants' motion for
summary judgment should be and the same is hereby granted.