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Burbar v. Incorporated Village of Garden City

United States District Court, E.D. New York

August 19, 2013

JACOB BURBAR, Plaintiff,
v.
INCORPORATED VILLAGE OF GARDEN CITY, GARDEN CITY POLICE DEPARTMENT, GARDEN CITY POLICE OFFICER ROCCO A. MARCEDA, GARDEN CITY POLICE OFFICERS JOHN DOE #1 AND JOHN DOE #2, THE COUNTY OF NASSAU, and THE NASSAU COUNTY DISTRICT ATTORNEYS OFFICE, Defendants,

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[Copyrighted Material Omitted]

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For the Plaintiff: Robert Klugman, Esq., of counsel, Law Offices of Robert Klugman, Garden City, NY; Daniel Flanzig, Esq., of counsel, Flanzig and Flanzig, LLP, Mineola, NY.

For the Defendants Incorporated Village of Garden City, Garden City Police Department and Garden City Police Officer Rocco A. Marceda: Cynthia A. Augelo, Esq., of counsel, Cullen and Dykman, LLP, Garden City, New York.

For Nassau County: Andrew Kenneth Preston, Deputy County Attorney, Office of the Nassau County Attorney, Mineola, NY.

OPINION

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MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On October 9, 2012, Jacob Burbar (the " Plaintiff" ) filed this action in Supreme Court of the State of New York, Nassau County. On March 14, 2013, the state action was removed by the Defendant Incorporated Village of Garden City on the basis of federal question jurisdiction.

Presently before the Court is a motion to dismiss the amended complaint as against the Defendants Village of Garden City (" the Village" ), the Garden City Police Department, and Garden City Police Officer Rocco A. Marceda. For the following reasons, the motion is denied in part and granted in part.

I. BACKGROUND

A. Factual Background and Procedural History

Unless otherwise stated, the following facts are drawn from the amended complaint and construed in a light most favorable to the Plaintiff.

On October 13, 2011, the Garden City Police Department received a call arising out of a " road rage" incident involving the Plaintiff, who allegedly waved and pointed a gun at a civilian. In a sworn statement, the civilian later stated that he was in " fear for [his] life." The Garden City Police Department was subsequently summoned to the Plaintiff's home. The Plaintiff did not resist and allowed the officers to enter his home. Upon the demand of

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the Police, the Plaintiff produced handguns from locked safes in his home. The Plaintiff also produced a valid Nassau County carry pistol license, which states: " premise license valid only on specified premises." (Brian Ridgway Affid, at Exh C.) The responding Garden City Police Officers, including Police Officer Marceda, confiscated the weapons and issued an appearance ticket to the Plaintiff, charging him with menacing relating to the road rage incident. At that time, the officers did not discuss charges regarding the handguns. Further, no criminal complaints, violations, or charges were issued regarding the possession of the weapons.

Later that day, it was discovered that the Plaintiff had a previous criminal history. (Ridgway Affid, at Exh. D.) It was also discovered that the Plaintiff allegedly improperly stored the aforementioned weapons at his home, as he only possessed a business pistol license. (Id., at Exh C.) The officers then returned to the Plaintiff's home. The officers directed the Plaintiff to get dressed; they handcuffed him; and they brought him back to the Police Department. The officers advised the Plaintiff that he was being charged with five felonies relating to the unlawful possession of a firearm. The Plaintiff told the officers that he had a valid permit and, because they previously took the guns from him, he no longer possessed the guns.

At about 3:00 in the morning, the Plaintiff was taken to the Nassau County Police Headquarters, where he was fingerprinted and placed in a cell. The next morning, the Plaintiff was taken to the Hempstead Courthouse and arraigned for the five felonies relating to unlawful possession of a firearm. The Nassau County District Attorney's Office represented at the arraignment that there were unregistered guns recovered from the Defendant's home. After the arraignment, the Plaintiff was detained at the East Meadow Jail, where he was held until the next day when his bail was posted.

At the first pre-trial conference held on January 6, 2012, the People asked the Court to reduce each charge and then asked the Court to dismiss all the reduced charges, stating " The people cannot prosecute the Defendant for the weapons charges as Defendant is licensed to possess the firearm in question." Thereafter, the court dismissed all the charges and the record was sealed.

The remaining two counts as to the alleged menacing charges were referred to the District Court, Nassau County. There, the People consented to the Defendant's motion to dismiss the charges and the record was sealed.

On or about October 9, 2012, the Plaintiff filed this complaint in Supreme Court of the New York, Nassau County against the Village, the County of Nassau, and Police Officers John Doe # 1 and John Doe # 2. On January 8, 2013, the Plaintiff moved to amend the complaint to add new causes of action based on alleged violations of 42 U.S.C. § § 1981, 1983 and the Fourth, Fifth, and Fourteenth Amendments. The Plaintiff also sought to add as Defendants Police Officer Marceda and the Nassau County District Attorney's Office. On February 1, 2013, the state court granted the motion to amend.

In the amended complaint, the Plaintiff alleges that he has established a prima facie case of wrongful arrest because, at the time of his arrest he no longer " possessed" the handguns in question and he was at all times " lawfully licensed" to possess the fire arms. The Plaintiff further alleges that he has established a prima facie case of wrongful ...


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