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Nicholas M. Auricchio v. David Giocondo

February 26, 2013


The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge:


In this action pursuant to 42 U.S.C. § 1983, plaintiff claims that his Fourth Amendment protection against unreasonable searches and seizures was violated when defendant, a campus peace officer with the Syracuse University Department of Public Safety ("SUDPS"), stopped plaintiff's vehicle and frisked him. Defendant moves (Dkt. No. 11) pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the amended complaint (Dkt. No. 10). The Court denies the motion.


The amended complaint (Dkt. No. 10) alleges that at around 2:50 in the afternoon of May 3, 2009, plaintiff was driving around Walnut Park in the Syracuse University area "preach[ing] his religious message from his vehicle." Plaintiff alleges that the Onondaga County Department of Emergency Communications received two 911 calls regarding plaintiff's conduct. The first call, from a private citizen at Walnut Park, was made at made at 3:05 p.m. The second call, also

from a private citizen, was made at 3:18 p.m. The second caller correctly gave plaintiff's vehicle and license number and complained that plaintiff was "driving in circles around the neighborhood" and "yelling out the window." Plaintiff claims that the first call was not reported to SUDPS or SPD, and that the second call was not reported to SUDPS, although two SPD police units were dispatched. Therefore, according to the amended complaint, defendant was not aware of either of the two 911 call reports when he stopped plaintiff.

Plaintiff further claims that at approximately 3:15 p.m., he stopped his vehicle at a red light in the Syracuse University area, and was preaching out his window, when he noticed a SUDPS (referred to in amended complaint as "DPS") vehicle behind him. The amended complaint alleges:

40. When the DPS peace officer in that vehicle heard Auricchio's Christian preaching (i.e., only while stopped at the aforementioned red light and not while driving), he let Auricchio pass him and then followed him, eventually turning on his emergency lights, it is believed, after passing intersecting Harrison Street within the City of Syracuse.

41. Once the DPS peace officer crossed intersecting Harrison Street while driving North on Ostrum Avenue and then onto Madison Street, he legally (pursuant to CPL, article 3, section 2.10, subdivision 77 and the derivative MOU between SPD and DPS), ceased to be a DPS peace officer and was only considered a DPS private security guard with absolutely no law enforcement authority.

42. While continuing to drive on Ostrum Avenue and after passing intersecting Harrison Street, Auricchio began to slow his vehicle down so he could pull over on the side of the road; however, the DPS private security guard, using his loud speaker (upon information and belief), requested that Auricchio take a right on Madison Street and that he should then stop and park his vehicle on that same street.

43. According to DPS' "Detail Call For Service Report ("DPS Service Report"), dated May 3, 2009, Unit 9715C, assigned to Officer Giocondo, stopped Auricchio at 15:29:32 at 1100 Madison Street.

44. A review of the 911 Second Intake Report for May 3, 2009, reveals SPD Unit 672C, assigned to Officer Kenn Burdick ("Officer Burdick") and another unidentified SPD officer (Employee Number 101431), arrived at the scene on Madison Street at 15:30:42; over one minute after Officer Giocondo had stopped Auricchio on the same street.

45. Officer Giocondo, therefore, on May 3, 2009, stopped Auricchio at 1100 Madison Street before any SPD officers had arrived at that incident.

46. When Auricchio stopped and began to exit his vehicle, Officer Giocondo, now legally only a DPS private security guard, demanded that Auricchio not exit his vehicle.

47. Auricchio disobeyed Officer Giocondo's order not to exit his vehicle.

48. Auricchio was absolutely in his legal right to disobey Officer Giocondo, since he was only, legally, a DPS private security guard and private citizen with absolutely no law enforcement authority.

49. Auricchio asserts that he disobeyed Officer Giocondo['s] command not to exit his vehicle because he believed this DPS officer had no authority to stop his vehicle since he appeared to be only a Syracuse University private security guard.

50. When Officer Giocondo angrily approached, while Auricchio was peacefully standing in front of his vehicle, he told Officer Giocondo he had no right to stop him and that he was violating his right to freedom of religion based on his Christian preaching, as he knew that Auricchio had been preaching from his vehicle at the red light on Ostrum Avenue.

51. Auricchio states that in response to hearing this above assertion, Officer Giocondo swore at his Christian religion and then stated that he had been pulled over based on an alleged complaint about his allegedly swearing out his window while he was driving.

52. However, a review of the 911 First and Second Intake Call Reports and the DPS Service Report indicate that Officer Giocondo unilaterally initiated the pursuit, stop and frisk of Auricchio without having been first dispatched by 911 or DPS.

53. In this respect, the May 3, 2009 DPS Detail Service Report indicates the pursuit of Auricchio was "Officer Initiated," apparently at some time prior to 15:29:32, by ...

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