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Thompson v. Clark

United States District Court, E.D. New York

June 26, 2018

LARRY THOMPSON, Plaintiff,
v.
Police Officer PAGIEL CLARK, Shield #28742; Police Officer PAUL MONTEFUSCO, Shield #10580; Police Officer GERARD BOUWMANS, Shield # 2102; Police Officer PHILLIP ROMANO, Shield #6295, Defendants.

          Larry Thompson David Zelman Counsel

          Pagiel Clark Paul Montefusco Gerard Bouwmans Phillip Romano Kavin Thadani, Matthew Bridge Counsel

          AMENDED MEMORANDUM & ORDER

          JACK B. WEINSTEIN, SENIOR DISTRICT JUDGE

         Table of Contents

         I. Introduction..........................................................................................................................3

         A. Charges.............................................................................................................................5

         B. Motions for Summary Judgment......................................................................................5

         C. Trial..................................................................................................................................5

         II. Facts......................................................................................................................................6

         III. Law......................................................................................................................................8

         A. Summary Judgment..........................................................................................................8

         B. Unlawful Entry of Home..................................................................................................9

         C. False Arrest....................................................................................................................10

         D. Malicious Prosecution....................................................................................................10

         E. Denial of Right to Fair Trial...........................................................................................11

         F. Spoliation........................................................................................................................12

         G. Personal Involvement.....................................................................................................12

         H. Qualified Immunity........................................................................................................13

         i. Application of Current Law........................................................................................14

         ii. Policy Justifications....................................................................................................17

          iii. Legal Precedent..........................................................................................................19

          iv. Future Reliance on Qualified Immunity.....................................................................21

         IV. Application of Law to Facts...............................................................................................24

         A. Unlawful Entry of a Home.............................................................................................24

         B. Unlawful Arrest..............................................................................................................25

         C. Malicious Prosecution....................................................................................................26

         D. Denial of Right to Fair Trial...........................................................................................27

         E. Spoliation.......................................................................................................................27

         F. Officer Bertram's and Rodney's Personal Involvement.................................................28

         V. Conclusion..........................................................................................................................28

         I. Introduction

         What shall a "good citizen," or a "good police officer," do when the United States Constitution tells them one thing and their common sense another?

         Plaintiff alleges he was beaten by New York City Police Department ("NYPD") officers when he refused them entry into his home without a warrant. Defendant police officers argue that a report of child abuse provided exigent circumstances allowing their warrantless entry.

         Larry Thompson ("Thompson" or "Plaintiff) is a "good citizen." He is a veteran of the United States Navy. He works as a supervisor for the United States Postal Service. He lives with his wife and two children. His reputation in the community is good.

         Plaintiffs claim presents the question: what should a "good citizen," who committed no crime, do when confronted by "good police" trying to force their way into his home without a warrant to investigate a child abuse allegation? As explained by professor Robert Capers, the Supreme Court instructs the "good citizen" to waive his or her constitutional right to avoid invasion:

the good citizen should not hesitate to open his bag, pocket, or home to the police, or to otherwise consent to a search. Such consensual searches, after all, will aid the police in doing their work. It will also enhance the citizen's safety and the safety of those around him. And of course, while even good citizens have a privilege against self-incrimination, and while of course the burden of proof always remains with the government, good citizens, if wrongly accused of a crime, will immediately present themselves to the authorities to prove their innocence. And if in the unusual event a good citizen in fact commits a crime-perhaps it was a malum prohibitum crime-the good citizen will go a step further and admit his wrongdoing and accept his punishment. And lastly, should the good citizen for some reason find it absolutely necessary to assert his rights, such as his right to an attorney, he will assert those rights unambiguously to distinguish himself from other citizens who lack "linguistic skills."

         I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 663-64 (2018) (internal citations omitted); see also Miranda v. Arizona, 384 U.S. 436, 477-78 (1966) ("It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.").

         From a strict constitutional view, however, an occupant has no obligation to answer or even open his door. He has the right to stay inside and remain silent.

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak . . . And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.

Kentucky v. King, 563 U.S. 452, 469-70 (2011).

         Despite this instruction from the Court to protect the constitutional requirement of a warrant, failure to answer or open a door is often viewed by police, society, and sometimes courts, as a reason for suspicion, justifying a finding of exigency. Alexander C. Ellman, The Emergency Aid Doctrine and 911 Hang-Ups: The Modern General Warrant, 68 Vand. L. Rev. 919, 945 (2015) ("Officers now frequently refer to a homeowner's refusal to allow officers into the home as evidence that an emergency exists. Likewise, the police often cite an occupant's refusal to answer the door as evidence of an emergency.").

         Here, defendants claim they were justified in breaking in by the exigency of an ongoing possible threat to a child's safety. See Anthony v. City of New York, 339 F.3d 129, 135 (2d Cir. 2003). Disputed issues of fact remain. A jury determination is necessary to answer the mixed question of fact and law: whether the officers were confronted by a need so urgent as to offset the constitutional mandate of a warrant to enter a home. Payton v. New York, 445 U.S. 573, 586 (1980).

         Qualified immunity is denied. Its grant, in the instant case, would be inconsistent with the purpose of 42 U.S.C. § 1983. "[Section] 1983 was [created] to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action under color of state law." Mitchum v. Foster, 407 U.S. 225, 242 (1972). Courts should be encouraged and "allowed to play their historic role as the guardians of constitutional rights, not prohibited from doing so by a judiciary that elevates its concern for comity above the constitutional rights to which all persons are entitled." Stephen R. Reinhardt (late Judge of the Court of Appeals for the Ninth Circuit), The Demise of Habeas Corpus and the Rise of Qualified Immunity, 113 Mich. L. Rev. 1219, 1253 (2015). The courts, police, and public, will benefit from a clarifying jury decision in this often replicated situation.

         A. Charges

         Plaintiff, in his amended civil complaint, alleges: (1) unlawful entry; (2) false arrest; (3) excessive force; (4) malicious prosecution; (5) denial of right to a fair trial; (6) failure to intervene; and (7) denial of medical treatment.

         He has abandoned his claim of denial of medical treatment and all those against Officer Warren Rodney. He has not waived his claim of excessive force.

         B. Motions for Summary Judgment

         Plaintiff moves for summary judgment on claims for (1) unlawful entry and (2) false arrest. His motion is denied.

         Defendants move for summary judgment on claims for: (1) unlawful entry; (2) false arrest; (3) malicious prosecution; (4) denial of right to a fair trial; and (5) all claims against defendant Bertram. ...


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