noting that “absent more 14 evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy could not ordinarily be inferred from a single incident of illegality”
How later courts described this case
- noting that “absent more 14 evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy could not ordinarily be inferred from a single incident of illegality”
- recognizing that during “frantic efforts to conceal or destroy evidence,” the “risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation”
- holding that a district court need not reach municipal liability claim where underlying constitutional claims were properly dismissed
- “One factor justifying the use of force is the appearance that the suspect is secreting contraband 6 which could be used as evidence in a criminal prosecution.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
COLM MARTIN,
1:21:-cv-597
Plaintiff, (GLS/DJS)
v.
TOWN OF ULSTER et al.,
Defendants.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Office of Russell A. Schindler RUSSELL A. SCHINDLER, ESQ.
245 Wall Street
Kingston, NY 12041
FOR THE DEFENDANTS:
Cook, Tucker Law Firm MICHAEL T. COOK, ESQ.
85 Main Street
P.O. Box 3939
Kingston, NY 12041
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Colm Martin brought this action pursuant to 42 U.S.C.
§ 1983, alleging that defendants Town of Ulster and Ralph Leiter violated
his Fourth Amendment rights. (Am. Compl., Dkt. No. 4.) Martin also
brought assault and battery claims against both defendants under New
York State law. (Id.) Defendants now move for summary judgment on all
claims. (Dkt. No. 27.) For the reasons that follow, defendants’ motion is
granted.
II. Background
Facts1
The Town of Ulster Police Department employed Leiter and Daniel
Odendahl as police officers in 2021. (Defs.’ Statement of Material Facts
(SMF) ¶¶ 1-2, Dkt. No. 27, Attach. 1.2)
On February 20, 2021, Martin rode as a passenger in his friend’s
vehicle. (Id. ¶ 3.) When Officer Odendahl noticed that the vehicle’s
license plate did not match its registration, he pulled the vehicle over.3 (Id.
1 Unless otherwise noted, the facts are not in dispute.
2 Defendants’ Statement of Material Facts did not contain any
citations to the record as required by N.D.N.Y. L.R. 56.1(a). The court
overlooks this careless error because Martin has admitted each fact, (Dkt.
No. 31, Attach. 3 at 1-2), and because the record supports them.
3 Officer Odendahl’s dashboard camera captured the traffic stop in
its entirety. (Dkt. No. 33, Ex. 1.) The court has carefully reviewed this
video.
2
¶ 3; Dkt. No. 27, Attach. 6, Ex. D at 9-11.) Officer Odendahl smelled
marijuana in the vehicle and radioed for assistance. (Defs.’ SMF ¶¶ 5-6.)
Officer Leiter responded to the scene and stood at the vehicle’s rear
while Officer Odendahl spoke to the vehicle’s occupants through the
driver’s side window. (Id. ¶¶ 7-8.) Martin admitted to Officer Odendahl that
he had smoked half of a marijuana cigarette earlier in the day and that he
possessed the other half. (Id. ¶¶ 9-10.) Officer Odendahl directed Martin
to drop the marijuana cigarette outside of the passenger’s side window and
Martin complied. (Id. ¶¶ 10-11.)
Officer Leiter, standing at the vehicle’s rear, did not hear Officer
Odendahl’s instruction and believed Martin was attempting to destroy
evidence. (Id. ¶ 12; Dkt. No. 27, Attach. 5, Ex. C at 16.) Officer Leiter
responded by opening the vehicle’s passenger side door, grabbing Martin
by the right arm, and bringing Martin to the ground. (Pl.’s SMF ¶ 15, Dkt.
No. 31, Attach. 3.) When Martin reached the ground, Officer Leiter
positioned his knee against Martin’s back. (Id. ¶ 21.) Upon learning that
Officer Odendahl had given Martin permission to discard the marijuana
cigarette, Officer Leiter assisted Martin to his feet and back inside the
3
vehicle. (Defs.’ SMF ¶ 13.) Martin alleged that the incident caused an
injury to his left shoulder. (Id. ¶ 14.)
Officer Leiter’s supervisors—Sergeant Seyfarth and Lieutenant
Gramaglia of the Town of Ulster Police Department—conducted an internal
review of Officer Leiter’s use of force. (Pl.’s SMF ¶ 22). Their review
concluded that Officer Leiter’s actions were reasonable and within his
authority under New York State law. (Id.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well settled and
will not be repeated here. For a full discussion of the governing standard,
the court refers the parties to its prior decision in Wagner v. Swarts, 827 F.
Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489
F. App’x 500 (2d Cir. 2012).
IV. Discussion
A. Section 1983 Claim Against Officer Leiter
Defendants argue that summary judgment is appropriate because
Officer Leiter did not use excessive force; and, even if he did, he is entitled
to qualified immunity. (Dkt. No. 27, Attach. 8 at 5-9.) These contentions
are addressed, in turn, below.
4
1. Excessive Force
The right of law enforcement to make an investigatory stop “carries
with it the right to use some degree of physical coercion or threat thereof to
effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). However,
employing excessive force during a traffic stop violates the Fourth
Amendment. See id. at 394.
To establish the use of excessive force, a plaintiff must demonstrate
that the officer’s actions were unreasonable such that “the government
interests at stake were outweighed by ‘the nature and quality of the
intrusion on [the plaintiff’s] Fourth Amendment interests.’” Barlow v. Male
Geneva Police Officer, 434 F. App’x 22, 26 (2d Cir. 2011) (quoting
Graham, 490 U.S. at 396). Though the test for reasonableness is “‘not
capable of precise definition or mechanical application,’” the court must
consider (1) the severity of the crime at issue; (2) whether the plaintiff
posed an immediate threat to the officers or others; and (3) whether the
plaintiff was actively resisting or evading arrest. Cugini v. City of New
York, 941 F.3d 604, 612-13 (2d Cir. 2019) (quoting Graham, 490 U.S. at
396).
The officer’s conduct must be judged from the perspective of a
5
reasonable officer on the scene, without regard to the officer’s underlying
motivation and without the benefit of hindsight. See Graham, 490 U.S. at
396-97. Moreover, the calculus of reasonableness “must embody
allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.” Id. Accordingly, “‘[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.’” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010)
(quoting Graham, 490 U.S. at 396).
Here, Martin argues that his removal from the vehicle was
unreasonable because (1) marijuana possession was a minor offense
under a statute that was later repealed and (2) he posed no immediate
threat to the officers and never attempted to resist arrest. (Dkt. No. 31,
Attach. 4 at 3-4.) However, because Officer Leiter believed that Martin
was attempting to destroy evidence, the police had an interest in
immediately stopping him from doing so. See Singleton v. City of
Newburgh, 1 F. Supp. 2d 306, 313 (S.D.N.Y. 1998) (“One factor justifying
the use of force is the appearance that the suspect is secreting contraband
6
which could be used as evidence in a criminal prosecution.”); cf. Kentucky
v. King, 563 U.S. 452, 460 (2011) (“[T]he need ‘to prevent the imminent
destruction of evidence’ has long been recognized as a sufficient
justification for a warrantless search.”) (quoting Brigham City v. Stuart, 547
U.S. 398, 403 (2006)). Destroying or concealing evidence that is believed
to have use in a prospective prosecution is a felony offense. See N.Y.
Penal L. § 215.40(2).
Officer Leiter faced exigent circumstances—Martin was tossing
marijuana into the snow—and he made a split-second judgment to remove
Martin from the vehicle in order to prevent the further destruction of
evidence. See Michigan v. Summers, 452 U.S. 692, 702-03 (1981)
(recognizing that during “frantic efforts to conceal or destroy evidence,” the
“risk of harm to both the police and the occupants is minimized if the
officers routinely exercise unquestioned command of the situation”).
Although Officer Leiter could have chosen more passive means, his
conduct must be evaluated without “the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. At the time he removed Martin from the vehicle,
Officer Leiter could not have known the total quantity of marijuana in the
vehicle, whether the vehicle’s occupants possessed other drugs, or
7
whether there were weapons in the vehicle. See Pennsylvania v. Mimms,
434 U.S. 106, 110 (1977) (acknowledging that the “inordinate risk
confronting an officer as he approaches a person seated in an automobile”
creates a “legitimate and weighty” interest in officer safety). Moreover,
nothing in the record indicates that Officer Leiter positioned his knee
against Martin’s back with any amount of force more, or for any duration
longer, than was necessary to stop the potential destruction of evidence
and secure the situation: the dashboard video shows that approximately
five seconds after Martin was removed from the vehicle, Officer Odendahl
informed Officer Leiter that Martin was not destroying evidence; Officer
Leiter positioned his knee off of Martin within about eighteen seconds after
beginning to remove Martin from the vehicle; Officer Odendahl announced
“sorry . . . it was a misunderstanding” within approximately twenty-two
seconds after Martin’s removal from the vehicle; and Officer Leiter began
assisting Martin back into the vehicle less than one minute after his
removal from it. (Dkt. No. 33, Ex. 1. at 9:40-10:40.) Therefore, given the
unknown safety variables inherent to the traffic stop and the apparent
destruction of evidence, no reasonable factfinder could conclude that
Officer Leiter responded unreasonably.
8
2. Qualified Immunity
Even if Martin’s Section 1983 claim against Officer Leiter had raised
a genuine issue of material fact, Officer Leiter is entitled to qualified
immunity.
Qualified immunity “‘shields police officers acting in their official
capacity from suits for damages unless their actions violate clearly-
established [statutory or constitutional] rights of which an objectively
reasonable official would have known.’” McKinney v. City of Middletown,
49 F.4th 730, 738 (2d Cir. 2022) (quoting Jones v. Parmley, 465 F.3d 46,
55 (2d Cir. 2006)). Clearly established law cannot be defined at a high
level of generality; instead, the inquiry focuses on the “specific factual
situation the officers confronted, and the defendants will be entitled to
qualified immunity unless existing precedent squarely governs the specific
facts at issue.” Id. at 739 (quoting Kisela v. Hughes, 138 S. Ct. 1148,
1152-53 (2018)) (internal quotation marks omitted).
In the context of excessive force claims, qualified immunity applies if
“a reasonable officer could have believed that the use of force alleged was
objectively reasonable in light of the circumstances.” Lennon v. Miller, 66
F.3d 416, 425 (2d Cir. 1995) (citations omitted). Thus, qualified immunity
9
protects an officer from liability if, on the basis of the facts known to the
officer when they engaged in the conduct at issue, “officers of reasonable
competence could disagree as to the lawfulness of such conduct.”
Manganiello v. City of New York, 612 F.3d 149, 164-65 (2d Cir. 2010)
(citation omitted); see Cugini, 941 F.3d at 615.
In this case, the question is whether there was clearly established
law on February 20, 2021 that it was unlawful to forcibly remove and bring
to the ground a vehicle passenger who is believed to be destroying
evidence, such that no reasonable officer would believe that Officer Leiter’s
conduct was lawful.
Martin cites no then-existing precedent that squarely governs the
situation that Officer Leiter faced. Instead, Martin argues that Officer Leiter
violated clearly established law because under “the three pronged analysis
for determining whether force used is excessive as stated in Tracy v.
Freshwater, 623 F.3d 90, 96 (2d Cir., 2010) . . . none of the factors are in a
[sic] Defendant Leiter’s favor.” (Dkt. No. 31, Attach. 4 at 5.) This argument
fails because it merely recites the factors relevant to determining
reasonableness and makes no attempt to show how the factual context in
Tracy would give a reasonable officer notice that Officer Leiter’s conduct
10
was unlawful given the specific circumstances. See Kisela v. Hughes, 138
S. Ct. 1148, 1153 (2018) (noting that, because “[u]se of excessive force is
an area of the law in which the result depends very much on the facts of
each case,” officials are entitled to qualified immunity unless existing
precedent “squarely governs the specific facts at issue”) (quoting Mullenix
v. Luna, 577 U.S. 7, 13 (2015)) (internal quotation marks omitted); City &
County of San Fransisco v. Sheehan, 575 U.S. 600, 613 (2015) (“Qualified
immunity is no immunity at all if ‘clearly established’ law can simply be
defined as the right to be free from unreasonable searches and seizures.”);
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have repeatedly told
courts . . . not to define clearly established law at a high level of
generality.”).
The court is not aware of any case law, nor has Martin cited any,
which would have made it clear that Officer Leiter’s conduct was unlawful.
See Shakir v. Stankye, 805 F. App’x 35, 37-38 (2d Cir. 2020) (“[A] plaintiff
attempting to overcome an officer’s qualified immunity must generally
‘identify a case where an officer acting under similar circumstances . . .
was held to have violated the Fourth Amendment.’”) (quoting District of
Columbia v. Wesby, 583 U.S. 48, 64 (2018)). Moreover, given the police
11
interest in preserving evidence and wide latitude police are given to
respond to exigent circumstances, a reasonable officer, who was under the
impression that Martin was attempting to destroy evidence, could have
believed that it was lawful to remove Martin from the vehicle, bring him to
the ground, and briefly position their knee against Martin’s back for less
than thirty seconds while Martin’s hands were unrestrained. See, e.g.,
Singleton, 1 F. Supp. 2d at 313 (“One factor justifying the use of force is
the appearance that the suspect is secreting contraband which could be
used as evidence in a criminal prosecution.”); Lennon, 66 F.3d at 426
(rejecting an excessive force claim where police forcibly removed the
plaintiff from a car and injured her wrist in the process, noting that it was
necessary to do so to execute the arrest); Davis v. City of Rochester, No.
14-CV-6562L, 2022 WL 6885334, at *28 (W.D.N.Y. Oct. 12, 2022) (“[T]he
Fourth Amendment does not require officers to use the least possible
degree of force.”). As a result, because not every reasonable officer would
view his actions as unlawful, Officer Leiter is entitled to qualified immunity.
B. Assault and Battery Claims
Except for Section 1983’s state action requirement, “[t]he elements of
New York assault and battery and Section 1983 excessive force claims are
12
‘substantially identical.’” See Tardif v. City of New York, 991 F.3d 394, 410
(2d Cir. 2021) (citing Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)).
The claims travel lockstep. See id. Accordingly, because Officer Leiter is
entitled to summary judgment on Martin’s Section 1983 claim for excessive
force, Officer Leiter and Town of Ulster are entitled to summary judgment
on Martin’s assault and battery claims.
C. Section 1983 Claim Against Town of Ulster
Martin argues that Sergeant Seyfarth and Lieutenant Gramaglia’s
subsequent finding that Officer Leiter’s use of force was reasonable
constitutes a failure by policymakers to provide adequate supervision,
amounting to deliberate indifference to Martin’s constitutional rights. (Dkt.
No. 31, Attach. 4 at 5-6.)
A municipality “may not be sued under § 1983 for an injury inflicted
solely by its employees or agents.” Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436 U.S. 658, 694 (1978). A municipality is not subject to suit under
Section 1983 unless “action pursuant to official municipal policy of some
nature caused a constitutional tort.” See id. at 691. There must be a
“direct casual link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385
13
(1989).
Because Martin cannot establish that Officer Leiter’s conduct
constituted excessive force, Martin did not suffer a constitutional violation
for which Town of Ulster could be liable. See Segal v. City of New York,
459 F.3d 207, 219-20 (2d Cir. 2006) (holding that a district court need not
reach municipal liability claim where underlying constitutional claims were
properly dismissed). Furthermore, Sergeant Seyfarth and Lieutenant
Gramaglia’s subsequent finding that Officer Leiter acted reasonably could
not have caused the alleged constitutional violation because the finding
was made after the incident—a single incident of wrongdoing is insufficient
to establish the systematic and repeated failure necessary for a “policy or
custom” under Monell. See, e.g.,Connick v. Thompson, 563 U.S. 51, 63
n.7 (2011) (“[C]ontemporaneous or subsequent conduct cannot establish a
pattern of violations that would provide ‘notice to the city and the
opportunity to conform to constitutional dictates.’”) (quoting Canton, 489
U.S. at 395); Ngeudi v. Caulfield, 813 F. App’x 1, 3 (2d Cir. 2020) (“While
[the plaintiff] points to his own treatment as evidence of a custom, a single
case is insufficient to establish the existence of such a practice.”); Turpin v.
Mailet, 619 F.2d 196, 202 (2d Cir. 1980) (noting that “absent more
14
evidence of supervisory indifference, such as acquiescence in a prior
pattern of conduct, a policy could not ordinarily be inferred from a single
incident of illegality”). Accordingly, Martin’s Section 1983 claim against
Town of Ulster fails as a matter of law.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment, (Dkt. No.
27), is GRANTED and the amended complaint, (Dkt. No. 4), is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.
October 23, 2023 | 9
Albany, New York
Disinct Judge
15