United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge.
April 17, 2012, Lieutenant Joseph Buccilli (“Lt.
Buccilli”) of the Orchard Park Police Department
entered the home of Timothy, LuAnn, and Joseph Batt
(“the Batts”) without a warrant or the Batts'
consent to check on the welfare of LuAnn Batt's father,
Fred Puntoriero. The parties differ sharply on the two key
issues in this case: whether Lt. Buccilli's entry into
the Batt's home violated the Fourth Amendment, and
whether Lt. Buccilli is entitled to qualified immunity.
following reasons, the Court declines to resolve the first
question, because even if a violation of the Fourth Amendment
occurred, Lt. Buccilli is indeed shielded by qualified
immunity, and this case must be dismissed.
April 17, 2012, Lt. Buccilli was employed by the Town of
Orchard Park Police Department, and at all times relevant to
this action, was working in his capacity as a police officer.
Puntoriero is the father of LuAnn Batt. Prior to April 17,
2012, Fred Puntoriero had dementia, was wheelchair bound, and
had previously been diagnosed in 2009 with failure to thrive.
On April 17, 2012, Timothy Batt, LuAnn Batt, Joseph Batt, and
Fred Puntoriero all resided at 3122 Bieler Road, Orchard
Park, New York.
April 17, 2012, Donna Locicero, a Senior Case Worker employed
by the Erie County Department of Social Services, Adult
Protective Services, received a call of concern from Annette
Puntoriero, the daughter-in-law of Fred Puntoriero, regarding
Fred Puntoriero. Adult Protective Services had not received
any prior calls of concern regarding Fred Puntoriero.
this call, Annette Puntoriero told Adult Protective
Services that Fred Puntoriero was living in the
home of Timothy and LuAnn Batt; that Joseph Puntoriero and
LuAnn Batt shared a “joint POA [Power of
Attorney]” for Fred Puntoriero; and that LuAnn Batt
“is making all the decisions” regarding Fred
Puntoriero's care because Joseph Puntoriero is “out
of town so often”
Puntoriero also told Adult Protective Services that, at some
point prior to April 17, 2012, her “husband had told
her that [Fred Puntoriero] was very lethargic and could not
stay focused on the conversation. And then Joseph
[Puntoriero] thought that [Fred Puntoriero] could be
dehydrated again, because [Fred Puntoriero] often doesn't
drink enough water.”
Puntoriero further told Adult Protective Services that no one
had seen Fred Puntoriero for two weeks; that Joseph
Puntoriero told her that he went to the Batts' home on
April 16, 2012; that Joseph Puntoriero told her that he was
not permitted to see Fred Puntoriero on April 16; and that
Joseph Puntoriero told her that he suspected Fred Puntoriero
was not doing well and that was why he was not permitted to
see Fred Puntoriero on that day.
Puntoriero stated that she and LuAnn Batt did not see eye to
eye on what was in the best interests of Fred Puntoriero;
that Joseph Puntoriero and LuAnn Batt “did not agree on
there being an issue with [Fred Puntoriero] at this time; and
that there was “some animosity” between her and
Puntoriero further told Adult Protective Services that she
“couldn't possibly know what was going on in LuAnn
and Timothy's home; that she “didn't know what
was going on in the other home;” that she
“couldn't answer . . . questions” about
whether Fred Puntoriero was eating or feeding; that there was
a family dispute between Annette Puntoriero, Joseph
Puntoriero, and LuAnn Batt; that she had not personally been
to the Batts' home on April 16, 2012; that she had not
personally been denied access to the Batts' home on April
16, 2012; and that she did not know what the condition and
interior of the home was like. Adult Protective Services
attempted to get as much information as possible from the
Annette Puntoriero, but they did not ask her if Fred
Puntoriero was under the care of Hospice or an outside
receiving this report from Annette Puntoriero, that same day,
April 17, 2012, Donna Locicero, in consultation with her
supervisor, Francine Amato, called 911 to request that the
Orchard Park Police Department go to the Batts' home to
conduct a welfare check on Fred Puntoriero.
Locicero informed the Orchard Park Police Department that
Adult Protective Services had received “a call today
with some concern about [Fred Puntoriero] who lives with his
daughter and son-in-law in Orchard Park;” that the
reporter expressed “a concern over [Fred
Puntoriero's] well-being;” that “the concern
is that another family member was not allowed to get into the
house when he went to visit yesterday, and they're not
sure if [Fred Puntoriero] is ok;” that the last time
Joseph Puntoriero had seen Fred Puntoriero was “the
second or third of April;” and that LuAnn Batt had
denied Joseph Puntoriero entry to the Batts' home on
April 16, 2012. Based on this 911 call, the Orchard Park
Police Department dispatched Lt. Buccilli to assist Officer
Kadi, who was on his way to the Batts' home to conduct
the requested welfare check on Fred Puntoriero.
afternoon of April 17, 2012, Joseph Batt was in the
Batts' home. At about 4:30 p.m. Joseph looked out the
front window of the Batts' home and saw Lt. Buccilli and
Officer Kadi standing outside their parked cars, talking in
the Batts' driveway. While standing in the Batts'
driveway, Officer Kadi was advising Lt. Buccilli of what the
dispatcher had relayed to Officer Kadi with regard to Annette
Puntoriero's complaint to Adult Protective Services.
Buccilli was aware that somebody had contacted Adult
Protective Services about a potential welfare issue with Fred
Puntoriero, and was aware that Adult Protective Services had
requested that the Orchard Park Police Department conduct a
welfare check on Fred Puntoriero.
Batt walked outside the Batts' home through a side door
and approached Lt. Buccilli and Officer Kadi in the
Batts' driveway. Joseph Batt did not have anything in his
hands. Lt. Buccilli asked for Joseph Batt's name, and
Joseph said his name was “Joe” and that he lived
in the home. Lt. Buccilli asked Joseph Batt if he had a
license or any identification, and Joseph Batt replied that
he did not have it on him.
officers then told Joseph Batt that they were there to
conduct a welfare check at the request of Adult Protective
Services. Joseph Batt told Lt. Buccilli that Fred Puntoriero
was in the Batts' home, and also told Lt. Buccilli that
he did not have permission to enter the Batts' home. Lt.
Buccilli stated that he did not need permission from anyone
to enter the Batts' home, and stated that he did not need
to seek or obtain an access order from a court to enter the
speaking with Lt. Buccilli and Officer Kadi in the Batts'
driveway, Joseph Batt re-entered the Batts' home through
the side door. Lt. Buccilli and Officer Kadi followed Joseph
Batt into the Batts' home through the side door. Joseph
Batt attempted to close the side door through which he had
entered the Batts' home, but Lt. Buccilli was already
partially inside the doorway to the Batts' home. Lt.
Buccilli put his foot in doorway to block the side door
through which Joseph Batt had entered the Batts' home,
and both Lt. Buccilli and Officer Kadi entered the Batts'
home through the side door. Once inside, Joseph Batt again
told Lt. Buccilli and Officer Kadi that they did not have
permission to enter the Batts' home. Officer Kadi removed
himself from the Batts' home.
Lt. Buccilli and Officer Kadi were inside the Batts'
home, Joseph Batt began recording the encounter using his
phone's camera. During that encounter, Lt. Buccilli said
“I'll tell you why we're here. Somebody
contacted -- and keep [the video] rolling, please. Somebody
contacted Adult Protective Services -- Erie County Adult
Protective Services. And they contacted us, a social worker,
requesting that we do a welfare check on you [Fred]. I
don't know the basis or the allegations of what the
welfare concerns are. But as I have been trying to explain to
your grandson, Joe, and the other two individuals out there,
that we do have a right to come in here when an allegation is
made. And ...