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United States District Court, Eastern District of New York

March 12, 2003


The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge


I. Introduction

Plaintiff John Quinn asserts a false arrest claim against Detective Serrano of the New York City Police Department. 42 U.S.C. § 1983; Fourth Amendment of the United States Constitution. Defendant moves for summary judgment.

Plaintiff was arrested for having committed the New York State crime of Aggravated Harassment in the Second Degree. N.Y. Penal Law § 240.30(1). He admitted mailing audio tapes, containing conversations between Christine Miceli and plaintiff's son Gregory Quinn, to a member of Ms. Miceli's family and to her fiancé. The issue is whether defendant had probable cause to arrest him.

II. Facts

A. Procedure

All of Mr. John Quinn's claims with the exception of his claim for false arrest against the arresting officer were dismissed after an evidentiary hearing. A second evidentiary hearing on one remaining claim supports a grant of the motion to dismiss the case.

B. Events Leading To Claim

Gregory Quinn, a former police officer, was briefly involved in a romantic relationship with police officer Christine Miceli. Following a volatile end to that affair, Gregory Quinn was discharged from the New York City Police Department. Mr. Lance Faber, her subsequent fiancé. received a package containing audio tapes at his place of work; he then filed a complaint with the New York City Police Department. See Court's Exhibit No. 4 of Jan. 29, 2003. These tapes recorded conversations between Gregory Quinn and Ms. Miceli relating to their relationship. Initially Mr. Faber believed that Gregory Quinn had sent them. See Court's Exhibit No. 4 of Jan. 29, 2003. Subsequently, plaintiff John Quinn, a former New York City Transit Police Officer, voluntarily entered the 62nd Police Precinct and admitted that he had mailed the tapes to Mr. Faber and to a member of Ms. Miceli's family. He was arrested by defendant Detective Serrano and charged with Aggravated Harassment. See Court's Exhibit No. 2 of Jan. 29, 2003.

Plaintiff asserts that his sole motive for sending the tapes was to alert Mr. Faber and Ms. Miceli's family to the truth about her relationship with his son and that he did not intend to harass or annoy anyone.

The District Attorney declined to prosecute Mr. John Quinn. In comments attributed to Detective Serrano in a taped conversation purporting to be between the detective and Gregory Quinn, it was suggested that there was no probable cause for the arrest, but that Detective Serrano's superiors had ordered it.

III. Law

A. Summary Judgment

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To survive summary judgment, a nonmoving party "may not rest upon the mere allegations or denials" of its pleadings, but rather "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Courts are not required to resolve any disputed issues of fact, but only to determine whether there are material factual issues to be tried. Summary judgment is appropriate when, although disputed factual issues remain, their resolution could not affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505. 91 L.Ed.2d 202 (1986).

B. False Arrest

Section 1983 of Title 42 of the United States Code provides a cause of action for plaintiffs who allege conduct under color of state law that deprives a person of rights under the Constitution of the United States. See, e.g., Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1990).

The section reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects. or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
False arrest violates an individual's rights under the Fourth Amendment. See, e.g., Kent v. Katz, 312 F.3d 568 (2d Cir. 2002). A claim for false arrest under section 1983 is substantially the same as one for false arrest under New York Law, requiring that "(1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).

C. Probable Cause

A confinement is privileged if there is probable cause for the arrest. See, e.g., Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003). Where probable cause exists for a challenged arrest a law enforcement officer has at least qualified immunity. Curry v. Syracuse, 316 F.3d at 1335 (2d Cir. 2003); See, e.g., Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997).

A finding of probable cause is warranted when there exists "facts and circumstances sufficient to warrant a prudent [officer] in believing that the [suspect] had committed or was committing an offense." Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (citations omitted).

The officer is not required to undertake a "full investigation into [a suspect's] state of mind prior to taking action." Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997). Courts look to the "totality of the circumstances" in determining whether there was probable cause. Caldarola v. Calabrese, 298 F.3d at 162 (2d Cir. 2002). If there is no dispute as to the "pertinent events and the knowledge of the officers," the issue of whether or not probable cause existed at the time of arrest may be determined as a matter of law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

D. Qualified Immunity

Qualified immunity is an affirmative defense shielding government officials from liability for damages resulting from official performance of discretionary actions. It offers government officials "the benefit of avoiding costly. time-consuming and, ultimately unsuccessful litigation." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). Defendants are entitled to this defense "if either (a) the defendant's actions did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law" Kent v. Katz, 312 F.3d 568, 573 (2d Cir. 2002). A defendant is entitled to summary judgment on qualified immunity grounds when a reasonable jury would have to conclude that it was objectively reasonable for the defendant to believe he was acting in a manner consistent with federally protected rights. See Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).

The test is met if reasonably competent police officers could disagree as to whether probable cause for arrest existed. Kent v. Katz, 312 F.3d 568, 573 (2d Cir. 2002); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995).

Probable cause is a fluid concept. Where an officer may have reasonably but mistakenly concluded that probable cause existed the officer remains entitled to qualified immunity. See Caldarola v. Calabrese, 298 F.3d 153, 162 (2d Cir. 2002).

E. Aggravated Harassment

Under New York law, "a person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she":

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph. mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.
N.Y. Penal Law § 240.30(1). The key elements "are that a defendant, with the intent of harassing, annoying, threatening or alarming someone, sends a communication in a manner likely to cause annoyance." People v. Singh, 187 N.Y.S.2d 368 (N.Y. Crim.Court 2001).

Courts have interpreted the statute broadly. The recipient of the communication and its intended target need not be the same person so long as the act is done with the intent to harass. annoy, threaten or alarm anyone. See e.g. People v. McKay, 532 N.Y.S.2d 343, 344 (Dist.Ct. Nassau County) ("This Court recognizes the broad scope of the statute . . . [and] the present statute does not require that the subject of the communication be the same person to whom the communication is made."); People v. P.S., 731 N.Y.S.2d 341 (N.Y.Just.Ct. 2001) (Defendant unsuccessfully claimed that there was no intent to harass the complainant because defendant did not speak or ask to speak to the victim during the telephone call and did not know the complainant was also listening. The court concluded that complainant could be the subject.); People v. Singh, 187 Misc.2d 465 at 470 ("[I]t need not be alleged that the recipient of a threat and the target of a threat are one and the same person, in order to support a charge of aggravated harassment in the second degree.").

IV. Application of Law to Facts

Plaintiff argues that his conduct did not support a charge of aggravated harassment because he sent the tapes to Ms. Miceli's fiance and to a member of her family and not to Ms. Miceli. He also contends that he did not possess the requisite intent to harass, annoy, threaten or alarm because his purpose in sending the audio tapes was only to inform Ms. Miceli's family and fiancé of her involvement with Mr. Gregory Quinn.

These arguments are without merit. The New York Penal Law allows recipients of the communication to claim harassment, alarm or annoyance even if they are not the subject of the communication. Because plaintiff's son had been embroiled in a particularly complicated affair of the heart with Ms. Miceli, it was reasonable for a police officer to have concluded that plaintiff sent the tapes in support of his son's position. to embarrass and harass Ms. Miceli, and to annoy and alarm her fiancé and her family.

That Mr. John Quinn's only contact with the addressees was in his sending of the audio tapes is not decisive. The requisite "communication" as an element of aggravated harassment does not have to include repetitive or continuous behavior. See People v. Shack, 634 N.Y.S.2d 660, 668 (N.Y. 1995) ("By its terms, Penal Law § 240.30(2) imposes criminal liability for making a single telephone call, if placed with the requisite intent and lack of legitimate purpose."). Plaintiff's single act of sending audio tapes sufficed to support the charge.

Plaintiff's suggestion that probable cause for his arrest could not have existed because Detective Serrano. the arresting officer, stated that it did not, is not decisive. It is based on plaintiff's contention that after plaintiff's arrest, in a taped conversation between his son and Detective Serrano, the latter admitted that he had no probable cause to arrest, that his superiors ordered him to make the arrest, and that plaintiff should sue New York City.

He has proffered a tape that purports to contain a conversation between Gregory Quinn and Detective Serrano on August 25, 1998. The tape is less than clear. Even accepting plaintiff's reading as accurate, it is irrelevant.

Since a reasonable and objective police officer considering the totality of circumstances would find probable cause, Detective Serrano's superiors, who may have ordered the arrest, were justified in determining that probable cause existed. The detective, regardless of his personal feelings, was bound to follow the order under the circumstances of this case.

The District Attorney's failure to prosecute furnishes no support to plaintiff. The validity of an arrest does not depend on a finding of innocence or any other disposition. Haussman v. Fergus, 894 F. Supp. 142, 147 (S.D.N.Y. 1995) (citing Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) A prosecutor's declination provides no indication that plaintiff's arrest was without probable cause.

V. Conclusion

There is no issue of material fact. Because there was probable cause to arrest Mr. John Quinn, no claim for false arrest lies. In any event, defendant Detective Serrano is entitled to qualified immunity.

Detective Serrano's motion for summary judgment is granted. Costs and disbursements to defendants.

So Ordered.


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