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Terebesi v. Torreso

United States Court of Appeals, Second Circuit

August 21, 2014

RONALD TEREBESI, Plaintiff-Appellee,
v.
SERGEANT JAY TORRESO, SERGEANT STEPHEN BRENNAN, OFFICER GREGG PHILLIPSON, CHIEF JOHN F. SOLOMON, LIEUTENANT RONALD KIRBY, SERGEANT KENNETH JONES, OFFICER WILLIAM RUSCOE, OFFICER BRIAN WEIR, OFFICER TODD EDWARDS, OFFICER GREGG LEE, SERGEANT MARK CIRILLO, OFFICER MICHAEL SWEENEY, all individually and in their official capacities as police officers, Defendants-Appellants. [*]

Argued October 10, 2013

Petition for certiorari filed at, 11/19/2014

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[Copyrighted Material Omitted]

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Appeal from an order of the United States District Court for the District of Connecticut (Janet Bond Arterton , Judge) granting in part and denying in part the defendants' motions for summary judgment based on their assertions of qualified immunity. With respect to the claims that are properly before us on this interlocutory appeal, we affirm the decision of the district court, except as to one claim of qualified immunity, which we conclude to be meritorious and as to which we therefore reverse. Because we conclude that many of the defendants' arguments turn on disputed allegations of fact, we dismiss these aspects of the appeal for lack of appellate jurisdiction. To the extent that the appellants maintain on appeal any state-law arguments that do not pertain to federal qualified immunity, they also are dismissed for lack of jurisdiction.

RICHARD J. BURTURLA, Berchem Moses & Devlin, P.C., Milford, CT, for Defendant-Appellant Michael Sweeney.

ARTHUR C. LASKE, III, Laske Law Firm, LLC, Fairfield, CT, for Defendants-Appellants Ronald Kirby, Kenneth Jones, William Ruscoe, Brian Weir, Todd Edwards, and Gregg Lee.

CATHERINE S. NIETZEL, Ryan Ryan Deluca LLP, Stamford, CT, for Defendant-Appellant John Solomon.

ELLIOT B. SPECTOR, Noble, Spector & O'Connor, P.C., Hartford, CT, for Defendant-Appellant Mark Cirillo.

Thomas R. Gerarde, Beatrice S. Jordan, Howd & Ludorf, LLC, Hartford, CT, for Defendants-Appellants Stephen Brennan and Gregg Phillipson.

Scott M. Karsten, Karsten & Tallberg, LLC, West Hartford, CT, for Defendant-Appellant Jay Torreso.

GARY A. MASTRONARDI, Law Firm of Gary A. Mastronardi (John R. Gulash, Gulash & Riccio, on the brief), Bridgeport, CT, for Plaintiff-Appellee Ronald Terebesi.

Before: SACK, CHIN, and DRONEY, Circuit Judges.

OPINION

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SACK, Circuit Judge.

This case arises out of a botched SWAT[1] -style raid in Easton, Connecticut, in 2008. The police obtained a warrant to search the home of the plaintiff, Ronald Terebesi, for a small amount of crack cocaine

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and drug paraphernalia. To execute the search, police planned to smash Terebesi's windows, detonate at least three stun grenades (or " flashbangs" ) inside the home, break down the front door with a battering ram, and storm the house with weapons drawn. In the chaos that accompanied the implementation of this plan, the officers fatally shot Gonzalo Guizan, Terebesi's houseguest, and allegedly injured Terebesi. Both of the occupants were unarmed, and no weapons were found in the house.

In 2009, Terebesi and Guizan's estate brought suit against the officers involved in planning and executing the raid, against the police chiefs of several municipalities whose officers were involved, and against the municipalities themselves, alleging, inter alia, civil rights violations under 42 U.S.C. § 1983 and associated state tort claims. On December 29, 2011, the defendants moved for summary judgment, asserting that the facts of the case and the doctrine of qualified immunity rendered all of the plaintiffs' claims unsustainable. The District of Connecticut (Janet Bond Arterton, Judge ) granted the motions in part and denied them in part. The defendants appeal from the denial of summary judgment. On April 11, 2013, Guizan's estate notified this Court of a settlement with all defendants, and the estate is no longer a party to this appeal.

For the reasons set forth below, we AFFIRM in part the order of the district court, REVERSE in part, and DISMISS the remainder of the claims for lack of appellate jurisdiction.

BACKGROUND

On interlocutory appeal, after the denial of the defendants' motions for summary judgment, " we have jurisdiction to review a denial of qualified immunity to the extent it can be resolved 'on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.'" Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)). We proceed to recite the factual basis of our decision in light of this limitation.

Police Interactions with Terebesi Prior to the Raid

In the weeks leading up to the raid on Ronald Terebesi's house in Easton, Connecticut, local police interacted with him on at least four occasions. Because the defendants assert that these interactions justify the tactics they employed in the raid, we recount them in some detail.

On March 31, 2008, at about 2:00 a.m., Officer Christopher Barton of the Easton Police Department was dispatched to Terebesi's home in response to a 911 call reporting that a man was having a seizure. Incident Report, Ex. C to Defs.' Local Rule 56(a)(1) Stmt., No. 3:09-cv-01436, ECF No. 199 (" Incident Report" ). After knocking on the door several times with no response, Barton and his partner entered the residence, found Terebesi sleeping, and shook him awake. Dep. of Christopher Barton at 18, Ex. B to Defs.' Local Rule 56(a)(1) Stmt., No. 3:09-cv-01436, ECF No. 199 (" Barton Dep. I" ). Easton Emergency Medical Services personnel were also on the scene. Incident Report, at 1. Although Terebesi was surprised and asserted that he had not called 911, he was not confrontational and offered no resistance as the officers and medical personnel lifted him up from his sofa to reveal three glass-stem pipes and a loaded .357 caliber Smith & Wesson pistol. Dep. of Officer Christopher Barton at 21, 26-27, Ex. 1 to Guizan's Local Rule 56(a)(2) Stmt., No.

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3:09-cv-01436, ECF No. 212, (" Barton Dep. II" ); Incident Report, at 1.

Terebesi told the officers that he kept the handgun for his personal safety and protection, and that he had been receiving threatening messages from " a pimp." Guizan's Local Rule 56(a)(2) Stmt., Part I, ¶ 19, J.A. 305 (citing Terebesi's deposition). Barton " seized the gun for safekeeping," and told Terebesi he would have to go to the police station to pick it up. Barton Dep. II, at 30. Nothing of which we are aware in the record suggests that Terebesi retrieved the gun from the police station any time thereafter or, in any event, before the events of May 18, 2008.

As a result of the incident of March 31, Easton Police obtained a warrant for Terebesi's arrest, and Barton and a colleague served the warrant at Terebesi's home. Guizan's Local Rule 56(a)(2) Stmt., Part I, ¶ 22, J.A. 306. Terebesi went with the officers to the Easton police station without incident. See id., ¶ ¶ 22-28, J.A. 306-07. While he was preparing to leave his home, Terebesi asked the officers how long he would be gone, expressing concern about leaving his pet macaw unattended. Aff. of Ronald Terebesi, ¶ 16, J.A. 284-85. Later, in a conversation during the ride to the police station, Terebesi told Barton that he owned a nine-millimeter Beretta pistol, which he considered to be a collector's item and which he kept in a display case at his parents' house in nearby Trumbull, Connecticut. Id. ¶ 19(b), J.A. 286. A subsequent records check revealed that Terebesi had registered such a pistol in 1990. Guizan's Local Rule 56(a)(2) Stmt., Part II, ¶ 4, J.A. 370. After being booked, Terebesi was released without bond on a promise to appear. Id. ¶ 6, J.A. 370. Officers drove him home, unrestrained, in the back of a police car. Id., J.A. 370-71 (citing Barton Dep. II).

On May 7, 2008, at about 4:00 a.m., an unidentified person or persons attacked Terebesi's residence, firing seven blasts from a shotgun through the windows of the house. Guizan's Local Rule 56(a)(2) Stmt., Part I, ¶ 29, J.A. 307. Terebesi, who had been on the couch watching television, crouched down and ran into the bedroom, where he stayed until police arrived. Aff. of Officer David Simpson ¶ ¶ 6-11, J.A. 168. After the shooting, Barton and John Solomon, the Chief of the Easton Police, spoke with Terebesi regarding the incident. Although Terebesi agreed to answer their questions, they found his responses to be unhelpful or, in their view, untruthful. See Dep. of John Solomon at 166-69, Ex. G to Defs.' Local Rule 56(a)(1) Stmt., No. 3:09-cv-01436, ECF No. 199 (" Solomon Dep." ); Barton Dep. I at 178-79, 190. Id. Later that day, Barton convinced Terebesi to return to the police station to give a statement. Barton Dep. II, at 51.

The following day, as police investigated the shotgun attack, an acquaintance of Terebesi told police that Terebesi used crack cocaine daily. Written Stmt. of Tina T. Lamica at 3, May 8, 2008, J.A. 181-83. Then, on May 17, 2008, a neighbor complained to police that she had discovered a bag containing hypodermic needles in the neighborhood, and that she had observed " a steady flow" of traffic in and around Terebesi's house at odd hours. Barton Dep. II at 65-66; Dep. of James Candee at 173-74, J.A. 188.

Barton responded to the neighbor's complaint and proceeded to Terebesi's residence to speak with him. Id. at 66. He found the house " barricaded," with the windows covered. Id. at 72-73; see also Witness Stmt. of Sergeant Mark Cirillo, J.A. 208 (describing the windows as covered with plywood and blankets). After knocking on the door and receiving no

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answer, Barton returned to the police station and telephoned Terebesi instead. Id. at 67. Terebesi denied knowing about the bag of needles. Id. at 68. Chief Solomon later testified that the Easton Police had had no other reports of drug-related activity in the neighborhood. Solomon Dep. 520, J.A. 175.

Planning of the May 18 Raid

The Warrant and Tactical Team Activation

At about 9:00 a.m. on the morning of May 18, a woman named Chandra Pankov told police that she had been at Terebesi's house, and that she had personally witnessed the use of a small quantity of drugs there. Barton Dep. II at 117; Search and Seizure Warrant, in J.A. 417-23. Chief Solomon ordered that a search warrant be prepared and served that day. Solomon Dep. 279. And he requested that the Southwest [Connecticut] Regional Emergency Response Team (" SWERT" )[2] be activated in order to assist in serving the warrant. Id. at 284. At 11:34 a.m., the Superior Court granted a search warrant for two " small clear glass smoking pipes" and " [c]rack cocaine in a tin box." Search and Seizure Warrant, in J.A. 417-23. Witnesses could not remember another time that SWERT had been activated to seize a personal-use quantity of drugs. See Dep. of Michael Sweeney at 61-63, Ex. 26 to Guizan's Local Rule 56(a)(2) Stmt., No. 3:09-cv-01436, ECF No. 212 (" Sweeney Dep." ); Dep. of Thomas Kiely at 23, Ex. 34 to Guizan's Local Rule 56(a)(2) Stmt., No. 3:09-cv-01436, ECF No. 212.

The Briefing

The SWERT team was fully assembled for a briefing on the operation at about 1:00 p.m. See Sweeney Dep. at 224. The officers were informed that the items to be seized were two glass pipes and a tin box containing narcotics. Dep. of Captain James Candee at 140, Ex. 2 to Pl. Rule 56(a)(2) Stmt., No. 3:09-cv-01436, ECF No. 212. Solomon told the team that Terebesi was a habitual user of crack cocaine, and that he had been the target of a shotgun attack on May 7. Guizan's Rule 56(a)(2) Stmt., Part I, ¶ ¶ 106-07, J.A. 325. Barton, who signed the search warrant application but did not participate in the raid, also spoke to the SWERT team about his previous interactions with Terebesi. Id. ¶ ¶ 113-15, J.A. 327.

Throughout the course of this litigation, the SWERT team defendants have emphasized in their defense three statements made in the course of the briefing. First, Terebesi's house was described as having been " fortified" since the May 7 shotgun attack, although these fortifications amounted only to plywood affixed to the shot-out windows and hanging blankets to " catch" any shotgun pellets. Witness Stmt. of Sergeant Mark Cirillo, J.A. 208. Second, Barton told the team about " the unaccounted for Beretta that was out there," referring to the pistol that Terebesi said he kept at his parents' house. Barton Dep. II, at 141-42. The other officers may not have known that the pistol was not kept in Terebesi's home. Finally, several defendants report being told that Terebesi would " use force to protect his pet

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bird," Br. of Ronald Kirby et al., at 10, or that " he would defend this bird to the death," Br. of Mark Cirillo, at 13. Barton testified that he told the assembled SWERT team that Terebesi had expressed an unusual devotion to his bird, but denied saying that Terebesi " would fight to the death or he would attack an intruder over the well-being of his bird." [3] Barton Dep. II, at 141-144.

The Raid Plan

The plan for serving the warrant was developed by Officer William Ruscoe and Sergeant Kenneth Jones of the Trumbull Police Department and by Sergeant Mark Cirillo of the Darien Police Department. Pl. Rule 56(a)(2) Stmt., Part I, ¶ 124, J.A. 329-30. Lieutenant Ronald Kirby, of the Trumbull Police, acted as the commander of the SWERT team and reviewed and approved the plan. Id. The plan also was subject to the ultimate approval of John Solomon, who, as the Easton Chief of Police, was the highest-ranking local law enforcement official involved in the Terebesi matter. Id.; see also SWERT Mutual Aid Compact Addendum, J.A. at 143 (" The Team shall not commence any operation without the authorization of the ranking local law enforcement official at the scene." ).

The plan called for a team of three officers to approach the rear of the house and toss two stun grenades[4] through a rear window. Witness Stmt. of Officer William Ruscoe, J.A. 197-202. This would be the first time SWERT had ever used stun grenades in an operation. Guizan's Rule 56(a)(2) Stmt., Part II, ¶ 88, J.A. 395. Another group of officers would knock loudly at the front door, announce their presence, and then, if necessary, break the door down with a battering ram. Witness Stmt. of Officer William Ruscoe, J.A. 197-202. After the door was breached, one team member would toss in another stun grenade, and a group of officers would rush in and restrain anyone in the house. Id. Police refer to this kind of raid (euphemistically) as a " dynamic entry." See generally Karan R. Singh, Note, Treading the Thin Blue Line: Military Special-Operations Trained Police SWAT Teams and the Constitution, 9 Wm. & Mary Bill of Rts. J. 673, 682-83 (2001).

Not all the team members were satisfied with this plan. Sergeant John Lawlor and Officer Michael Redgate told Mark Cirillo that a dynamic entry was too dangerous for a drug warrant. Dep. of John Lawlor at 32-34, Ex. 9 to Guizan's Local Rule 56(a)(2) Stmt., No. 3:09-cv-01436, ECF Doc. No. 212 (" Lawlor Dep." ); Dep. of Michael Redgate at 33-35, Ex. 8 to Guizan's Local Rule 56(a)(2) Stmt., 3:09-cv-01436, ECF Doc. No. 212; Dep. of Mark Cirillo at 146, Ex. 17 to Guizan's Local Rule 56(a)(2) Stmt., No. 3:09-cv-01436, ECF Doc. No. 212; Witness Stmt. of Sergeant Mark Cirillo, J.A. 209. Lawlor testified that ...


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