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BROGDON v. CITY OF NEW ROCHELLE
May 15, 2002
THEODORE BROGDON, PLAINTIFF,
CITY OF NEW ROCHELLE, POLICE OFFICER DANIEL BENGE AND ANTHONY CHIERA AND UNIDENTIFIED NEW ROCHELLE POLICE OFFICERS, DEFENDANTS.
The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
Plaintiff Theodore Brogdon ("Brogdon") asserts claims pursuant
to 42 U.S.C. § 1983 against the City of New Rochelle (the
"City"), Police Officer Daniel Benge ("Benge"), and Police
Officer Anthony Chiera ("Chiera") arising from Brogdon's arrest
on August 8, 1997. (Complaint). In his complaint, Brogdon
alleges that the defendants violated his rights under the Fourth
Amendment by falsely arresting him, falsely imprisoning him and
compelling him to make "forced court appearances" until all
charges were dismissed following a non-jury trial. Id. ¶¶
15-20. He also alleges that the "defendants" failed to
affirmatively intervene while other members of the police
department were allegedly violating his rights. Id. ¶¶ 23-24.
These persons who allegedly failed to affirmatively intervene
are not named and remain unidentified. In addition, he asserts a
Monell claim against the City, alleging that its policies and
customs led to his claimed injuries. Id. ¶¶ 27-34. He has
alleged similar claims against the defendant-officers'
supervisors, who also were not named specifically and remain
unidentified. Id. ¶¶ 37-38.
Plaintiff's claims for false arrest, false imprisonment,
malicious prosecution and failure to intervene must be dismissed
because there was probable cause to arrest and charge Brogdon.
Furthermore, both Benge and Chiera are entitled to qualified
immunity. In addition, there is no basis for a Monell claim
against the City, because plaintiff adduces no evidence that the
alleged violations of Brogdon's right resulted from any City
policy or custom. Finally, Brogdon's claim against the unnamed
supervisors also fails, as there is no showing that these
unnamed persons created any policy or custom which allowed the
commission of any constitutional torts.
At 4:56 a.m. on August 8, 1997, a 911 telephone call was
received by the New Rochelle Police Department. The caller
reported that someone was "trying to break into the store on the
corner of Horton." The caller specified that it was a grocery
store, described the person breaking into the grocery store as a
male black wearing white pants and a black top, and stated that
the perpetrator was using "a stool or something to break the
window." Exh. C (Transcript of 911 call) pp. 2-3. The 911 caller
also reported that there was someone else on the corner "on the
lookout" and described the "lookout" as a black male wearing a
"striped shirt" with a "white back." Id. p. 4
Officer Benge's Observations
On August 8, 1997 Officer Benge was on patrol. At
approximately 5:00 a.m., while in his police car, he was
notified by the police dispatcher of the burglary in progress at
the grocery store on the corner of Horton Avenue and Brook
Street, which is located near the precinct. Benge Aff't ¶ 2,
Exh. P; Exhs. F (p. 6), H (p. 11), K (pp. 13-14), O (pp. 4-5).
The dispatcher described two individuals, both male black, and
said that one of the individuals was standing on the corner
dressed in a striped shirt acting as a lookout. Benge Aff't ¶ 3,
Exhs. P; H (pp. 11-12), K (p. 32).
At the point that he received this transmission, Benge was on
North Avenue near Coligni Avenue which connects to Brook Street.
Benge Aff't ¶ 2; Exhs. H (p. 12), K (p. 14). He proceeded
towards Brook Street with his red overhead lights activated but
with his siren off. As he turned southbound onto Brook Street
and proceeded towards the intersection of Horton Avenue and
Brook Street, he turned off all lights on his vehicle so as to
not alert the perpetrators. Benge Aff't ¶ 4; Exhs. H (p. 13), K
(pp. 15, 35). As he approached the store, which is located at 49
Horton Avenue, he observed a male black (Brogdon) dressed in a
striped shirt standing across the street from the Solutions
Grocery Store. Benge did not have any difficulty seeing Brogdon
since the area was well-lit. Benge Aff't ¶ 5, Exh P; Exhs. F (p.
7), H (p. 15), O (p. 11). When he first spotted Brogdon, Benge
had several moments to observe plaintiff. Benge Aff't ¶ 5. Exhs
F (p 7), H (p. 16). Benge specifically noticed that Brogdon was
looking around in all directions, up and down the streets and
that Brogdon did this several times. Benge Aff't ¶ 5, Exhs. P, Q
(p. 17); Exhs. F (p. 7), H (p. 16), K (pp. 19-20).
When Brogdon spotted Benge, he immediately cupped his hands in
the form of a megaphone and shouted something in the direction
of the grocery store. Benge Aff't ¶ 6, Exhs. P, Q (pp. 18-19);
Exhs. H (pp. 16-17), K (p. 21), O (p. 15). Brogdon then turned
and fled eastbound on Horton Avenue in the direction of North
Avenue, just as Officer Benge approached the grocery store.
Benge saw Brogdon break into a run the moment Brogdon left the
corner of Brook and Horton. Benge Aff't ¶ 6, Exhs.
P, Q (p. 19); Exhs. F (p 8, 13), H (p. 18), K (p. 21), O (p.
Benge immediately radioed police headquarters to advise them
that he had spotted the individual fitting the description
provided by the 911 caller (male black in a striped shirt acting
as a lookout) and that he was running eastbound on Horton Avenue
in the direction of North Avenue. Officer Benge observed other
police units arrive and stop in the area where he saw plaintiff
running. Benge Aff't ¶¶ 7-8, Exhs. P, Q (p. 19); Exhs. H (pp.
18-19, 25-26), 0 (pp. 17, 26-27).
When Benge was directly in front of the store, he saw one of
the perpetrators trying to go through a broken window. He exited
his vehicle and attempted to grab the individual but was unable
to do so. Benge secured the location until other police units
arrived. Benge Afft ¶ 9, Exhs. P, Q (pp. 19-20); Exhs. H (p.
23), K (pp. 21-22), 0 (pp. 18, 22). At this point, Benge
received another radio transmission indicating that Brogdon had
been apprehended by Officer Chiera on Horton Avenue. Benge Afft
¶ 10, Exhs. P, Q (pp. 2223); Exh. H (pp. 27-28).
The Apprehension of Plaintiff
Officer Chiera received a radio call of a burglary in progress
at the Solutions grocery store on the corner of Horton and
Brook. The dispatcher described the perpetrators as two male
blacks, one breaking into the store and the other one standing
on the corner, acting as a lookout. The lookout was described as
wearing a striped shirt. Chiera Aff't ¶¶ 2-3; Exh. J (pp. 20-21),
0 (pp. 39-40). As he was proceeding to the intersection of
Horton and Brook, Chiera received another radio transmission,
this one from Benge, advising that the person described as the
"lookout" was running eastbound on Horton Avenue and that he was
dressed in a striped shirt and dark pants. Exh. J (p. 24);
Chiera Aff't ¶ 4, Exhs. R, S (pp, 3031).
When he got to the intersection of Brook and Horton, Chiera
spotted Brogdon, who was wearing a striped shirt with a
light-colored solid back, running eastbound on Horton. Chiera
Aff't ¶ 5, Exhs. R, S (p. 31); Exhs. J (p. 22), O (p. 41). After
radioing Brogdon's location to police headquarters, Chiera then
chased after Brogdon. Chiera stopped Brogdon approximately half
a block away from the grocery store. Chiera Aff't ¶ 5; Exhs. J
(p. 22), O (p. 45). Although Chiera identified himself as a
police officer, Brogdon ignored Chiera's commands to "stop".
Brogdon turned around and started to proceed westbound on
Horton. Chiera repeated his commands until Brogdon complied and
sat on the ground. Within a short period of time, other back-up
units arrived to assist. Chiera Aff't ¶ 6, Exh. R; Exhs. J (pp.
28-29), O (p. 45). When Chiera first tried to stop Brogdon,
plaintiff volunteered that he had "no knowledge of what [was]
happening at the corner of Horton and Brook." Chiera Aff't ¶ 7,
Identification and Arrest of Plaintiff
Benge received a radio transmission indicating that the
plaintiff had been apprehended by Officer Chiera on Horton
Avenue. Benge Aff't ¶ 10, Exh. P; Exh. H (p. 27). After the
grocery store had been secured, Benge walked to where Officer
Chiera had stopped plaintiff and positively identified Brogdon
as the individual whom he had seen standing on the corner of
Brook and Horton, directly opposite the grocery store, looking
in all directions. Benge Aff't ¶ 10, Exhs. P, Q (pp. 22-23);
Exh. H (pp. 27-28).
Officer Benge then placed Brogdon under arrest. Benge Aff't ¶
Prior Pertinent Proceedings
Officer Benge signed a felony complaint prepared by the Office
of the District Attorney of Westchester County charging both
plaintiff and a co-defendant, Kelvin Wilson, with burglary in
the third degree (N.Y. Penal Law § 140.20).*fn1 Benge Aff't ¶
12; E. Thereafter, he testified at a felony hearing in August
1997. Benge Aff't ¶ 13. While co-defendant Kelvin Wilson
remained in custody, the charges against plaintiff were
dismissed for insufficient evidence pending presentation to a
grand jury. Marion Decl. Exh. E (pp. 37-38).
Both Benge and Chiera testified before the grand jury. Benge.
Aff't ¶ 14. Chiera Aff't ¶ 11. The grand jury voted to indict
Brogdon and his co-defendant on charges of burglary in the third
degree and criminal mischief in the third degree,*fn2 finding
probable cause to believe that each defendant had aided and
abetted and acted in concert with the other in the burglary of
the Solutions grocery store. People v. Wilson and Brogdon,
Indictment Nos. 97-1236-01, 02. Brogdon moved in Westchester
County Court for an inspection of the grand jury minutes and for
dismissal of the indictment. In a decision dated December 1,
1997, the court (LaCava, J) found that
the evidence before the Grand Jury satisfied the
requirements of CPL Sec. 190.65, in that it is
legally sufficient to establish a prima facie case
against the defendant on the charges contained in the
indictment and that such evidence was competent and
admissible such that, if unexplained and
uncontradicted, a conviction after trial would be
warranted. The Court further finds that the
instructions given to the Grand Jury with respect to
the applicable law in this case was proper and
legally sufficient. The defendant's motion to dismiss
the indictment, therefore, is denied.
At a hearing conducted in reference to Brogdon's motion to
suppress identification testimony, he raised the issue of lack
of probable cause for his arrest. In a decision dated, May 18,
1998, the court, (Zambelli, J.), found that there was probable
cause to arrest plaintiff and that there was nothing improper
about the identification procedure employed. Specifically, the
The Court credits the testimony of the People's
witness. In the court's opinion, Brogdon's actions in
looking all around shouting something in the
direction of Wilson upon the witness' approach, his
flight after the Police Officer got closer, the
contents of the 911 call, the fact that he matched
the description reported, and the witness'
observation that the back-up unit apprehended the
same individual he saw on the corner, cumulatively
provided probable cause for
defendant's arrest as an accomplice to Wilson's
burglary of the premises (see, People v. Basch
36 N.Y.2d 154, 365 N.Y.S.2d 836, 325 N.E.2d 156). The
Officer's ensuing positive identification of Brogdon
at the point of apprehension was sufficiently
connected and contemporaneous to the arrest itself as
to constitute the ordinary and proper completion of
an integral police procedure (see, People v.
Wharton, 74 N.Y.2d 921, 923, 550 N.Y.S.2d 260,
549 N.E.2d 462).
Brogdon proceeded to a non-jury trial on the charges of
burglary in the third degree and criminal mischief in the third
degree. While "mindful of the circumstantial evidence which
appears to link the defendant" to the charges, the court
(LaCava, J.) found that "unfortunately" the People had not
proved its case beyond a reasonable doubt. Exh. T. All charges
against Brogdon were dismissed. Id.
Commencement of this Action
On August 8, 2000, Brogdon commenced this action naming the
City and Officers Benge and ...