holding that defendant officers were not required “independently to investigate the basis for the apparently valid order they received” (emphasis added)
How later courts described this case
- holding that defendant officers were not required “independently to investigate the basis for the apparently valid order they received” (emphasis added)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
OMAR MINUS, :
:
Plaintiff, : 17-CV-4623 (JMF)
:
-v- :
: MEMORANDUM OPINION
OFFICER BRIAN BENVENUTO, SHIELD NO. 23866; : AND ORDER
and OFFICER JOSEPH TENNARIELLO, SHIELD NO. :
12821, :
:
Defendants. :
:
---------------------------------------------------------------------- X
JESSE M. FURMAN, United States District Judge:
In this case, familiarity with which is presumed, Plaintiff Omar Minus has one remaining
claim: that, on April 29, 2015, he was subjected to an unlawful strip search by Defendants Brian
Benvenuto and Joseph Tennariello, officers with the New York City Police Department. See
Minus v. Spillane, No. 17-CV-4623 (JMF), 2019 WL 6498258, at *4 (S.D.N.Y. Dec. 3, 2019)
(ECF No. 76). By Order dated April 3, 2020, the Court allowed Benvenuto and Tennariello to
file a second motion for summary judgment based on qualified immunity. See ECF No. 87.
Thereafter, Defendants filed their motion, arguing that they are entitled to qualified immunity
because they conducted the strip search at issue at the direction of a superior officer. See ECF
No. 91, at 7-9. By Memorandum Opinion and Order dated October 28, 2020, the Court
exercised its discretion to reopen discovery for the limited purpose of allowing Minus (who is
now represented by counsel) to depose Defendants, noting that the record relevant to the
qualified immunity analysis was undeveloped. See ECF No. 102. The parties, having completed
the depositions, have now filed supplemental submissions. See ECF Nos. 107-10.
Summary judgment is appropriate where the admissible evidence and the pleadings
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.
2012) (per curiam). The moving parties — here, Defendants — bear the initial burden of
demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). More broadly, they must “come forward with evidence on each material
element of [their] claim or defense, demonstrating that [they are] entitled to relief.” Isaac v. City
of New York, 701 F. Supp. 2d 477, 485 (S.D.N.Y. 2010). They may not “rely on conclusory
allegations or unsubstantiated speculation to support” their motion. Johnson v. City of New York,
No. 11-CV-4435 (AT) (JCF), 2014 WL 3579796, at *2 (S.D.N.Y. July 18, 2014) (internal
quotation marks omitted). Moreover, in evaluating whether the moving parties have carried their
burden and are entitled to summary judgment, the Court must view the evidence “in the light
most favorable to the non-moving party,” Overton v. N.Y. State Div. of Mil. & Naval Affs., 373
F.3d 83, 89 (2d Cir. 2004), and must “resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of
Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
As noted, Defendants move for summary judgment on the ground that they are entitled to
qualified immunity, which shields a law enforcement officer “from liability for damages if his
‘conduct d[id] not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Outlaw v. City of Hartford, 884 F.3d 351, 366 (2d Cir.
2018) (alteration in original) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).
Significantly, “[q]ualified immunity is an affirmative defense on which the defendant has the
burden of proof.” Id. at 367 (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920 (1980)).
Thus, it is Defendants’ “burden [to] demonstrat[e] . . . that it was reasonable, as a matter of law,
for defendants to take the actions that plaintiff alleges they took.” Tellier v. Fields, 280 F.3d 69,
84 (2d Cir. 2000). Here, that means that it is Defendants’ burden to demonstrate that they
received “[p]lausible instructions from a superior or fellow officer” that, when “viewed
objectively in light of the surrounding circumstances, . . . could lead a reasonable officer to
conclude that the necessary legal justification for his actions exist[ed].” Anthony v. City of New
York, 339 F.3d 129, 138 (2d Cir. 2003) (Sotomayor, J.) (internal quotation marks omitted);
accord Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) (holding that defendant officers were
not required “independently to investigate the basis for the apparently valid order they received”
(emphasis added)); Sorensen v. City of New York, 42 F. App’x 507, 511 (2d Cir. 2002) (summary
order) (“Although it is true that low-level employees have been granted qualified immunity
where they followed orders promulgated by their superiors, immunity has been granted only
when the orders were facially valid.”).
Defendants fail to carry their burden for one simple reason: They do not remember
anything about the incident whatsoever. ECF No. 110-2, at 18, 20-21, 24, 30-31; ECF No. 110-
3, at 11, 16, 20.1 Their lack of memory may or may not be noteworthy; after all, the incident at
issue did take place more than five and a half years ago and, to Defendants, it may have simply
been a routine arrest. But whatever the reason, the result is a complete absence of “evidence”
with respect to a “material element” of their defense, Isaac, 701 F. Supp. 2d at 485, namely, that
the order they allegedly received from their superior officer (the fact of which was recorded in
another officer’s memo book, ECF No. 71-4, at 5) was — when viewed objectively in light of
1 For ease of reference, the page references for ECF Nos. 110-2 and 110-3, and for ECF
Nos. 71-4 and 98-2 cited below, are to the pagination in the ECF system.
the surrounding circumstances — “[p]lausible,” Anthony, 339 F.3d at 138, “apparently valid,”
Varrone, 123 F.3d at 81, or “facially valid,” Sorensen, 42 F. App’x at 511. On top of that, there
is at least some evidence in the record from which a jury could conclude — if, in fact, it
concludes that the strip search was unlawful — that a reasonable officer in Defendants’ position
could not have concluded that the necessary legal justification for a strip search existed. Most
notably, Minus testified that Defendants participated in the search of his car after he was stopped
(a search that yielded nothing) and that, when Defendants took him to be strip searched, he
protested because he had been arrested for “a non-felony offense.” ECF No. 98-2, at 8, 16-17.
Accordingly, Defendants’ renewed motion for summary judgment with respect to the
strip search claim is DENIED. The Court remains of the view that this case should settle given,
among other things, that any damages would likely be small and that, due to the COVID-19
situation, it may be many months before trial can be held. But given that the parties tried and
failed to settle the matter after the Court’s ruling on Defendants’ first motion for summary
judgment, the parties shall, in accordance with the Court’s Individual Rules and Practices for
Civil Cases, file their proposed Joint Pretrial Order and other pretrial submissions within two
months of the date of this Memorandum Opinion and Order. After the parties file their
pretrial materials, the Court will issue an order addressing the timing of any trial.
SO ORDERED.
Dated: December 23, 2020 jG —
New York, New York SSE RMAN
nited States District Judge