# Foster v. McCabe

> District Court, W.D. New York · June 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10362369

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10362369

## How later opinions describe it (automated extraction)

- reaffirming ongoing vitality of the Supreme Court’s holding in Jett v. Dallas Independent School District, 491 U.S. 701, 733 (1989
- noting that occupants’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
CORTEZ FOSTER and PAULA
RODGERS, )
)
Plaintiffs, )
)
Vv. ) Case No. 1:19-cy-843
)
CITY OF BUFFALO POLICE OFFICER )
SHAWN MCCABE, CITY OF BUFFALO _ )}
POLICE OFFICER PATRICK )
MCDONALD, CITY OF BUFFALO )
POLICE LIEUTENANT JONATHAN )
PIETRZAK, CITY OF BUFFALO POLICE )
HOMICIDE DETECTIVE JOY JERMAIN, }
NEW YORK STATE PAROLE OFFICER )
JOSE MELENDEZ, NEW YORK STATE )
PAROLE OFFICER SEAN )
MCPARTLAND, NEW YORK STATE )
PAROLE OFFICER THOMAS DEGOL,! )
)
Defendants. )
SUPPLEMENTAL ORDER ON MOTION FOR PARTIAL DISMISSAL
(Doe, 3)
Cortez Foster and his mother Paula Rodgers sue the above-captioned municipal police
officers and state parole officers in their individual capacities under 42 U.S.C. § 1983 and other
provisions of federal and state law. Plaintiffs allege that their home was subjected to an illegal
search by or at the behest of Defendants on January 29, 2018, and that Mr. Foster was subjected
to unlawful arrest, malicious prosecution, wrongful imprisonment, and racial discrimination.

! Per the advice of Defendants (Doc. 3-1 at 2 n.1), the Clerk is respectfully directed to
amend the caption to revise the spelling of “Thomas DeGo!” to “Thomas DeGal.”

(Doc. 1.) Defendants Thomas DeGal and Sean McPartland (the “State Defendants”)” have filed
a Motion for Partial Dismissal under Fed. R. Civ. P. 12(b)(6) seeking dismissal of all claims
against them except for the § 1983 false arrest and malicious prosecution claims and the
conspiracy claim under 42 U.S.C. § 1985. (Doc. 3-1.) In an Order dated November 26, 2019,
the court granted that motion in part, but reserved ruling on the motion to dismiss Plaintiffs’
§ 1983 unlawful-search claims pending additional briefing on qualified immunity. The State
Defendants filed a timely supplemental brief on January 9, 2020. (Doc. 15.) Plaintiffs have not
filed a supplemental response.
Background
Plaintiffs allege the following. Plaintiff Paula Rodgers resides in the upper unit of a
Deerfield Avenue property in Buffalo, New York. (Doc. 1 92.) She resided there during the
events relevant to the Complaint. Plaintiff Cortez Foster is Ms. Rodgers’s son. (See id. { 19.)
Mr. Foster currently resides elsewhere in Buffalo but he resided at the Deerfield Avenue
property’s upper unit during the events referenced in the Complaint. Ud. 4 3.)
Mr. Foster was released on parole on March 6, 2017. Ud. 9.19.) He is a black male with
“numerous tattoos and distinguishing characteristics.” (id. 27.) He was assigned to the
supervision of New York State parole, and upon his release to parole he was living with his
mother at her parole-approved address at the upper unit of the Deerfield Avenue property. (/d.

There was a “shooting incident” at the Checkmate Bar on East Lovejoy Street in Buffalo
on January 27, 2018. Ud. J 20.) Neither Plaintiff was at the Checkmate Bar on that date. (/d.)

? The Complaint names three New York state parole officers as defendants, but the
Motion for Partial Dismissal is brought by only two of those three officers. For present
purposes, the court refers to Officers DeGal and McPartland as the “State Defendants.”

Mr. Foster had not gone to the Checkmate Bar at any time since he was released on parole. (/d.
{ 36.) He was at home abiding by his curfew on January 27, 2018. (id)
At some point between January 27 and January 29, 2018, a number of New York State
parole officers and Buffalo police detectives reviewed a video of the Checkmate Bar incident “to
sec if they could positively identify any of the individuals involved with this incident.” (/d.
21.) Parole officer Sean McPartland was one of the individuals who reviewed the video. □□□□
22,) He later testified that the video “depicted a chaotic scene with numerous individuals
moving about, and the video was of a low quality.” (id. 726.) At the time he reviewed the video
Officer McPartland was Mr. Foster’s newly-assigned parole officer. (fd. § 23.) He had not yet
met Mr, Foster. (fd)
Buffalo police detective Joy Jermain and state parole officer Thomas DeGal also
reviewed the video. (id. § 22.) Officer DeGal was Officer McPartland’s superior. Ud. § 95.)
Detective Jermain “identified” one of the individuals in the video as Mr. Foster. (ld. § 93.)°
Plaintiffs allege upon information and belief that Detective Jermain was the officer who “first
suggested” to Officer DeGal that Mr. Foster was depicted in the video. Ud. | 95.) Upon
reviewing the video, Officer McPartland “came to believe ‘it was possible that the person in the
video was Cortez Foster.’” (Ud. §§ 24, 94.)*

3 Plaintiffs assert that Detective Jermain’s purported identification of Mr. Foster as one of
the individuals in the video was “capricious[] and without good cause.” Ud. { 93.)
4 The quotation regarding what Officer McPartland allegedly came to believe comes from
a transcript—attached as an exhibit to the Compiaint—of an October 11, 2018 hearing before
Buffalo City Court Judge Amy C. Martoche. (Doc. 1-1.) At that hearing Judge Martoche found
that Officer McPartland “looked at the video and he said, and I quote, it was possible that the
person in the video was Cortez Foster.” Cd. at 2-3.)

Plaintiffs allege that Detective Jermain directed parole officers DeGal and McPartland to
raid and search Plaintiffs’ house. Ud. 25.) At approximately 10:00 p.m. on January 29, 2018,
Buffalo police lieutenant Jonathan Pietrzak and officers Shawn McCabe and Patrick McDonald,
together with parole officers Jose Melendez and Mr. McPartland, searched and seized Plaintiffs
and their residence at the upper unit of the Deerfield Avenue property. (/d. | 29.) The search

was conducted without a warrant and over Plaintiffs’ objections, (See id. J] 30, 49.) During the
search both Plaintiffs were ordered to sit at the kitchen table for four hours; Mr. Foster was
handcuffed. Ud 45.)
In the course of the search, Officer Melendez recovered a Norinco AK-47 firearm in the
heating duct of the basement of the Deerfield Avenue property. (/d. 132.) Officer McPartland
recovered ammunition and a revolver from the basement heating duct. (id. 34.) The basement
is a common area shared by both the upper and lower units of the residence. (Ud. § 32.)
Mr. Foster never makes use of the basement area. (/d.) Neither Plaintiff ever possessed the
firearms or the ammunition that were recovered during the search. (/d. J 35.)
Mr. Foster was arrested and taken into custody on January 29, 2018. Ud. 37.) He was
arraigned in Buffalo City Court on January 30, 2018 on multiple state felony and misdemeanor
firearms charges. (Doc. 1-2.) The Buffalo City Court held a suppression hearing and heard
testimony from Officer McPartland and from several members of Mr. Foster’s family. (Doc. 1-1
at 2.) Mr. Foster’s conditions of parole and the video of the Checkmate Bar shooting incident

were not introduced at the suppression hearing. (/d. at 3.) Officer McPartland did not specify
how the individual depicted in the video resembled Mr. Foster, apart from saying that the
individual in question was a “medium sized black male.” (Ud. { 27.)

The Buffalo City Court suppressed the evidence and dismissed the charges on
October 11, 2018. The court reasoned that “a parolee’s status cannot be exploited to allow fora
search which is solely designed to collect contraband or aid in an independent criminal
investigation” and that “failure to provide the conditions of parole and the failure to provide the
video” prevented the court from analyzing whether the warrantless search was rationally and
reasonably related to the parole officer’s duties. (See Doc. 1-1 at 3-4,) Mr. Foster was
incarcerated from January 29, 2018 until “several days” after the dismissal of the charges against
him on October 11, 2018. (Doc. 1 { 40.)
Analysis
Of the eight causes of action in the Complaint, only two are potentially at issue here.°
The first is Plaintiffs’ first cause of action, brought by both Plaintiffs, alleging a § 1983 claim for
unlawful entry into their home in violation of the Fourth Amendment. (Doc. 1 {if 42-58.)° The
court reserved ruling on such unlawful-search claims pending additional briefing on qualified
immunity. (Doc. 12 at 10.) The second is the sixth cause of action brought by Mr. Foster
alleging racial profiling and discrimination in violation of 42 U.S.C. § 1981. In its
November 26, 2019 Order, the court dismissed that claim insofar as it purports to be a § 1981

5 The State Defendants did not seek dismissal of the second, fourth, or seventh causes of
action (a § 1983 malicious-prosecution claim, a § 1983 false-arrest claim, and a § 1985
conspiracy claim, respectively). Plaintiffs conceded that their state-law claims for malicious
prosecution, false arrest and imprisonment, and intentional infliction of emotional distress (the
third, fifth, and eighth causes of action, respectively) should be dismissed in favor of action in a
different jurisdiction, and the court has dismissed those claims without prejudice. (Doc. 12 at 9.)
6 The first cause of action also refers to the Fourteenth Amendment, although in this
context that appears to be a reference to the fact that the Fourth Amendment is enforceable
against the states through the Fourteenth Amendment. Camara v. Mun. Court of City & Cty. of
San Francisco, 387 U.S. 523, 528 (1967).

claim, but without prejudice to a motion to amend to assert the racial discrimination claim under
§ 1983. (Doc. 12 at 9.)
L Rule 12(b)(6) Standard
To survive a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);
see also Fed, R. Civ. P. 8(a)(2). The court must also draw all reasonable inferences in the non-
moving party’s favor. Lanier v. Bats Exch., Inc., 838 F.3d 139, 150 (2d Cir. 2016). Dismissal is
appropriate when “it is clear from the face of the complaint, and matters of which the court may
take judicial notice, that the plaintiff’s claims are barred as a matter of law.” Conopco, Inc. v.
Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000).
I. Alleged Unlawful Entry and Search
A. Fourth Amendment Principles
“The Fourth Amendment protects the right of private citizens to be free from
unreasonable government intrusions into areas where they have a legitimate expectation of
ptivacy.” United States v. Barner, 666 F.3d 79, 82 (2d Cir. 2012) (quoting United States v.
Newton, 369 F.3d 659, 664 (2d Cir. 2004)). Although warrantless searches are “generally
presumed unreasonable,” a state’s operation of a parole system “presents special needs justifying
a departure from the traditional Fourth Amendment warrant requirement.” Newton, 369 F.3d
at 665. New York operates a parole system under which a parolee must “permit his parole
officer to visit him at his residence and/or place of employment” and must “permit the search and
inspection of his person, residence and property.” N.Y. Comp. Codes R. & Regs. tit. 9,
§ 8003.2(d).

Notwithstanding that consent, under New York law, “the determination as to whether a
warrantless parole search ‘was unreasonable and thus prohibited by constitutional proscription
must turn on whether the conduct of the parole officer was rationally and reasonably related to
the performance of the parole officer’s duty.’” Barner, 666 F.3d at 84 (quoting People y.
Huntley, 371 N.E.2d 794, 797 (N.Y. 1977)). Prior to the Supreme Court’s 2006 decision in
Samson v. California, 547 U.S. 843, the Second Circuit had held this New York rule (or
“Huntley standard”) to be coextensive with the requirements of the Fourth Amendment.
See Barner, 666 F.3d at 84 (citing United States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000)
(per curiam)).
But in Samson, the Supreme Court held that the Fourth Amendment was not violated by a
police officer’s suspicionless search of a parolee conducted under the authority of a California
law under which every parolee “shall agree in writing to be subject to search or seizure by a
parole officer or other peace officer at any time of the day or night, with or without a search
warrant and with or without cause.” Samson, 547 U.S. at 846 (quoting Cal. Penal Code Ann.
§ 3067(a)). The Samson Court rejected an argument that the California parole search law
permitted untethered discretion to officers, reasoning that the California law prohibited
“arbitrary, capricious or harassing” searches. /d. at 856. The concluding paragraph of the
Samson opinion states: “[W]e conclude that the Fourth Amendment does not prohibit a police
officer from conducting a suspicionless search of a parolee.” Jd. at 857.
The Second Circuit has since observed that “the law is unclear whether the Huntley |
standard has been superseded by Samson.” Black v. Petitinato, 761 F. App’x 18, 21 (2d Cir.
2019) (summary order). Indeed, the Second Circuit has noted “that it is an open question
whether Samson may justify a parole officer’s suspicionless search of a New York parolee’s

home.” Jd Because of that open question, the court in Black affirmed the grant of summary
judgment to the defendants based on qualified immunity. /d. at 20.
B. Qualified Immunity
In their August 9, 2019 motion to dismiss, the State Defendants sought dismissal of
Plaintiffs’ first cause of action on the basis that the warrantless search was proper under the
Huntley standard. (See Doc. 3-1 at 6.) They did not explicitly invoke or mention qualified
immunity. Noting that the issue of qualified immunity should be decided early, if possible, the
court invited briefing on that issue. (Doc. 12 at 8.) The State Defendants have filed a
supplemental memorandum asserting that they are entitled to qualified immunity on Plaintiffs’
Fourth Amendment unlawful-search claim. (Doc. 15 at 3.) The issue of qualified immunity is
therefore now squarely before the court.
1. The Qualified Immunity Doctrine
The qualified-immunity doctrine shields state officials from civil liability for damages if
their “conduct [did] not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Outlaw v. City of Hartford, 884 ¥.3d 351, 366 (2d Cir.
2018) (alteration in original; quoting Mullenix v. Luna, 136 8. Ct. 305, 308 (2015). “Put simply,
qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the
law.” Mullenix, 136 S. Ct, at 308 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Qualified immunity “shields federal and state officials from money damages unless [the] plaintiff
pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.” Francis y. Fiacco,
942 F.3d 126, 139 (2d Cir. 2019) (alteration in original; quoting Ricciuti v. Gyzenis, 834 F.3d

162, 167 (2d Cir. 2016)). The court has discretion to decide which prong to address first. See id.
at 140.
When the qualified immunity defense is analyzed at the motion-to-dismiss stage, the
applicable standard is “more stringent.” Edrei v. Maguire, 892 F.3d 525, 532 (2d Cir. 2018)
(quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)), The court must “accept the
complaint’s factual allegations as true and draw all reasonable inferences in the plaintiffs’ favor,
including both those that support the claim and ‘those that defeat the immunity defense.’” Jd.
(quoting McKenna, 386 F.3d at 436). □

2. No Clearly Established Law Prohibited the Search
The court elects to begin with the second (“clearly established”) prong of the qualified-
immunity analysis. While the Supreme Court “does not require a case directly on point for a
right to be clearly established, existing precedent must have placed the statutory or constitutional
question beyond debate.” Francis, 942 F.3d at 145 (quoting White v. Pauly, 137 8, Ct. 548, 551
(2017) (per curiam)). Such precedent “must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.” /d. (quoting District of
Columbia y. Wesby, 138 8. Ct. 577, 590 (2018)).
The Supreme Court has instructed courts “not to define clearly established law at a high
level of generality,” id. (quoting City & Cty. of San Francisco, Cal. v. Sheehan, 575 U.S. 600,
135 S. Ct. 1765, 1775-76 (2015)), and has instead emphasized that “clearly established law must
be ‘particularized’ to the facts of the case.” Jd (quoting White, 1378. Ct. at 552). Thus the
court must exercise “particular caution before rejecting an officer’s claim to qualified immunity
in the Fourth Amendment context, in which ‘it is sometimes difficult for an officer to determine
how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.””

Shakir v. Stankye, No. 18-242-cv, 2020 WL 1480141, at *2 (2d Cir. Mar. 24, 2020) (summary
order) (quoting Mullenix, 136 8. Ct. at 308). Indeed, “[t]he general proposition . . . that an
unreasonable search or seizure violates the Fourth Amendment is of little help in determining
whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd,
563 US. 731, 742 (2011).
As the Second Circuit has stated, “the law is unclear whether the Huntley standard has
been superseded by Samson.” Black, 761 F. App’x at 21. Focusing on the particularized factual
allegations in this case, the court concludes that, as in Black, there was no clearly settled law

_ telling the State Defendants that their search of the, upper unit of the Deerfield Avenue property
and the common basement area violated the standards of the Fourth Amendment. Since Mr.
Foster was a parolee and the law is unsettled as to whether Samson superseded the Huntley
standard, no clearly established law told the officers that they could not search the residence.
Even accepting as true that the video on which Detective Jermain relied to make her
purported identification depicted a chaotic scene and was of low quality, that does not constitute

a basis for the State Defendants to disbelieve the purported identification. The State Defendants
could reasonably rely on Detective Jermain’s identification. See Lauderdale v. City of New York,
No. 15-cv-1486 (GK), 2018 WL 1413066, at *5 (8.D.N.Y. Mar. 19, 2018) (officer was entitled
to qualified immunity on false arrest claim because it was objectively reasonable for her to rely
on fellow officer’s identification); see also Husbands ex rel. Forde v. City of New York,
335 F. App’x 124, 127-28 (2d Cir. 2009) (summary order) (police officers making probable
cause determinations are entitled to rely on their fellow officers’ allegations). Moreover, the
unsettled state of the law meant that the State Defendants could not have known whether it was
unlawful to proceed even with a suspicionless search. See Reed v. Sheppard, 321 F. Supp. 3d

10

429, 448 (W.D.N.Y. 2018) (“[Flollowing the Supreme Court’s 2006 decision in Samson, supra,
it is not clearly established that some particularized suspicion is required before searching a
parolee or his residence.”).
3. “Stalking Horse” Theory .
In their Complaint, Plaintiffs argue that “New York State Parole act[ed] as a conduit for
the Buffalo Police Department to engage in a fishing expedition.” (Doc, | 47.) That
atgument—premised on the involvement of police officers in allegedly directing parole officers
DeGal and McPartland to raid and search Plaintiffs’ house and in participating in the search—is
essentially an invocation of the “stalking horse” theory. The theory “disapproves of a parole
officer’s acting as a stalking horse for law enforcement officers by searching a parolee not in the
performance of the P.O.’s own duties but solely in response to a prior request by, and in concert
with, law enforcement officers.” United States v. Lambus, 897 F.3d 368, 387 (2d Cir. 2018).
Although the stalking horse theory has been adopted in some Circuits, the Second Circuit has
rejected it. □□□ (citing Newton, 369 F.3d at 666-67, and United States v. Reyes, 283 F.3d 446,
462-65 (2d Cir, 2002)). The police officers’ involvement therefore does not alter the qualified
immunity analysis.
4, Ms, Rodgers’s Claim; Whether Her Consent Was Necessary
The State Defendants further assert that since parole officers had a right to enter the home
that Mr. Foster shared with his mother, Ms. Rodgers cannot prevail on her Fourth Amendment
claim against them, either. (See Doc. 3-1 at 7.) Plaintiffs fault the State Defendants for failing to
cite any authority to support that proposition, and further maintain that even if the State
Defendants prevailed on their motion against Mr. Foster’s claims, a fury could still find the
actions against Ms. Rodgers to be unlawful. (Doc. 10 at 4.) The State Defendants reply that “Tilt

11

would seem axiomatic that a parolee could not shield himself from the mandate that he consent
to searches of his residence by simply living with a non-parolee, who could object to the search
of their joint residence.” (Doc. 11 at 5.) The State Defendants further assert that the law on this
subject is in flux following the Supreme Court’s decision in Georgia v. Randolph, 547 U.S. 103
(2006), suggesting that they would be entitled to qualified immunity as to Ms. Rodgers’s Fourth
Amendment claim as well.
The court agrees with the State Defendants that there was no clearly established law
requiring Ms. Rodgers’s consent before conducting the warrantless search of the residence she
shared with her parolee-son, and that the State Defendants are accordingly entitled to qualified
immunity on her § 1983 claim. In Randolph, the Supreme Court held that when police seek to
conduct a consent search of a premises, “a physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”
Randolph, 547 U.S. at 106. Randolph, however, did not involve a parole search.
As this court has recently noted, “[t]he courts to have considered the import of Randolph
in the context of individuals who co-habit or reside with a parolee or probationer have reached
differing conclusions.” Reed, 321 F. Supp. 3d at 450 (citing post-Randolph cases, including
Smith v. City of Santa Clara, 876 F.3d 987, 994 (9th Cir. 2017)). Recognizing the law on this
point as unsettled, the Reed court held that a parole officer and police officers were entitled to
qualified immunity on § 1983 claims by the parolee’s father and brother (all co-tenants) arising
out of a warrantless search of a location the officers believed to be the parolee’s residence, which

was conducted over the objection of the parolee’s brother who was physically present. Jd.
at 451. Here, even accepting the Complaint’s factual allegations as true and drawing all
reasonable inferences in Plaintiffs’ favor, the court concludes that the State Defendants are

12

entitled to qualified immunity on Ms. Rodgers’s § 1983 claim for the same reasons. See Prego v.
Kelsick, 690 F. App’x 706, 708-09 (2d Cir. 2017) (summary order) (affirming dismissal of
parolee’s wife’s unreasonable-search claim on qualified-immunity grounds because parole
officers reasonably concluded that they could inspect absconded parolee’s home without a
watrant and despite wife’s presence and objection).
5. Detentions During the Search
The court has also considered the allegations regarding Plaintiffs’ treatment during the
search.’ According to the Complaint, the search lasted for four hours, during which time both
Plaintiffs were required to sit at a table, and Mr. Foster was handcuffed. (Doc. 1 § 45.) For the
reasons below, the court concludes that because the State Defendants are entitled to qualified
immunity as to the search, they are also entitled to qualified immunity—-even drawing ail
reasonable inferences in Plaintiffs’ favor—as to the detentions during the search.
“[O]fficers executing a search warrant for contraband have the authority ‘to detain the
occupants of the premises while a proper search is conducted.’” Muehler v. Mena, 544 U.S. 93,
98 (2005) (quoting Michigan v. Summers, 452 U.S. 692, 705 (1981)). Three law enforcement
interests justified the detention in Summers: preventing flight, minimizing risk of harm to
officers, and the orderly completion of the search. Summers, 452 U.S. at 702-03. The Supreme
Court also considered “the nature of the articulable and individualized suspicion on which the
police base the detention of the occupant of a home subject to a search warrant.” fa’ at 703. And
“fiJnherent in Summers’ authorization to detain an occupant of the place to be searched is the
authority to use reasonable force to effectuate the detention.” Meuhler, 544 U.S. at 98-99. The

7 The State Defendants’ briefing does not explicitly address this issue, but the court
addresses it here because even if the State Defendants are entitled to qualified immunity as to
initiating the search, their conduct during the search must still be scrutinized.

13

Meuhler Court determined that the use of handcuffs to effectuate the detention in that case was
reasonable “because the governmental interests outweigh the marginal intrusion.” /d. at 99.
Justice Kennedy added a concurrence “to help ensure that police handcuffing during searches
becomes neither routine nor unduly prolonged.” Jd. at 102 (Kennedy, J., concurring).
Of course, Summers and Muehler concerned detention in the context of the execution of a
search warrant, whereas in this case the search was performed at a parolee’s residence without a
warrant. But courts have considered the rationales in Summers and Muehler to evaluate the
detention of occupants during warrantless searches. See Frego, 690 F. App’x at 709 (“[G]iven
that Defendants were entitled to qualified immunity as to the [warrantless] search [of absconded
parolee’s residence], they were also, in the circumstances of this case, entitled to qualified
immunity as to the force they used to effectuate it.” (citing Muehler, 544 U.S. at 98-99)); United
States v. Williams, No. 12-CR-6152G, 2015 WL 429087, at *18 (W.D.N.Y. Feb. 2, 2015)
(warrantless search based on emergency aid doctrine), report and recommendation adopted,
2015 WL 3454430 (W.D.N.Y. May 29, 2015).
Here, similar to Frego, the State Defendants are entitled to qualified immunity as to the
force they used to effectuate the parole search. Since the State Defendants are entitled to
qualified immunity as to the search itself, they were also entitled fo detain the occupants using
“reasonable force” until the conclusion of the search. rego, 690 F. App’x at 709, Even
drawing all reasonable inferences in Plaintiffs’ favor, the allegations in the Complaint do not
support a conclusion that the force used to effectuate the search violated any clearly established
statutory or constitutional right.
It is clearly established that the governmental interests must be weighed against the
marginal additional intrusion of the detention during the search. Muehler, 544 U.S. at 99 (citing

i4

Graham v. Connor, 490 U.S, 386, 396-97 (1989)). All of the law enforcement objectives listed
in Summers apply here. The officers had a legitimate interest “in preventing flight in the event
that incriminating evidence is found.” Summers, 452 U.S. at 702. Since the search was arguably
related to a shooting incident, detention served to minimize the risk of harm to officers.
Moreover, “[t]he risk of harm to both the police and the occupants is minimized if the officers
routinely exercise unquestioned command of the situation.” /d, at 702-03. And the officers
could reasonably conclude that the presence of both Plaintiffs could facilitate the orderly
completion of the search. See id. at 703 (noting that occupants’ “self-interest may induce them
to open locked doors or locked containers to avoid the use of force that is not only damaging to
property but may also delay the completion of the task at hand”).
To be sure, the detention of both Plaintiffs was a “significant restraint” on their liberty.
Summers, 452 U.S. at 701. But that restraint was less intrusive than the search itself. See id.
at 701-02 (noting that most citizens would elect to remain to observe the search of their
possessions: that the likelihood of exploitation or unduly long searches is low because the
information the officers seck in a search will be obtained through the search and not through the
detention; and because detention in the occupant’s home during a search adds minimally to
stigma, inconvenience, and indignity compared to a compelled visit to a police station).
According to the Complaint, the search lasted four hours. “The duration of a detention

can, of course, affect the balance of interests under Graham.” Muehler, 544 U.S. at i100. The
four-hour search here is within the range of objective reasonableness, especially considering that
the officers needed to search for weapons in both the upper unit and the common basement area.
Cf id. (two-to-three-hour detention did not outweigh government’s continuing safety interests);
see also Summers, 452 U.S. at 711 n.3 (Stewart, J., dissenting) (record did not clearly reveal

15

length of the search, but noting FBI search of a one-bedroom apartment for burglar tools and a
pair of checks consumed five hours).
Ms. Rodgers was not handcuffed during the detention, but Mr. Foster was and that “was
undoubtedly a separate intrusion in addition to detention” at the kitchen table. Aduehler,
544 U.S. at 99. The Muehler Court found no violation in the use of handcuffs to detain a female
occupant in executing a warrant to search for weapons at the residence of a wanted gang
member. Jd at 100. Here there was no warrant and none of the allegations suggest gang
activity, but the officers were present in connection with an investigation into a shooting and

were searching for weapons. They handcuffed only the male parolee. The safety risk inherent in
searching for weapons, plus the need to detain two occupants, was “sufficient to justify the use of
handcuffs.” Muehler, 544 U.S. at 100,
Ti. Racial Discrimination
The Complaint’s sixth cause of action is a claim of racial discrimination in purported
violation of 42 U.S.C. § 1981. As originally pleaded, Mr. Foster claimed that he was subjected
to the torts of unlawful arrest and imprisonment and that those alleged wrongs were racially
motivated in violation of the full and equal benefit of the laws under § 1981. (See Doc. 1 {fj 88-
102.) Mr. Foster alleges that the “identification” of him from the video of the incident at the
Checkmate Bar and Defendants’ subsequent warrantless search “present an inference that [such
actions] were borne from a stereotype that African American individuals all look alike, and
speak to the Defendants’ beliefs that the freedom and liberty of a person of color is worth
significantly less than the same of a white person.” (/d. J 100.)
The court noted in its November 26, 2019 Order that Mr. Foster had recognized that the
appropriate statute to bring the racial discrimination claim against state actors is 42 U.S.C.

16

§ 1983. (See Doc. 12 at 9.)® The court accordingly dismissed the sixth cause of action insofar as
it purports to be a § 1981 claim, but without prejudice to a motion to amend to assert the racial
discrimination claim under § 1983. The court simultaneously invited the parties to brief the
impact of qualified immunity on any amended racial discrimination claim under 3 1983. Ud.)
The State Defendants assert that they are entitled to qualified immunity on Mr. Foster’s
Fourteenth Amendment racial discrimination claim. (Doc. 15 at 7.) Mr, Foster does not appear
to dispute that his sixth cause of action—recast as a § 1983 claim—-would be a claim that state
actors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. The
court accordingly considers the State Defendants’ qualified immunity defense as to that claim
against them,
A. Equal Protection Principles
“To state a race-based claim under the Equal Protection Clause, a plaintiff must allege
that a government actor intentionally discriminated against him on the basis of his race.” Brown

y. City of Oneonta, New York, 221 F.3d 329, 337 (2d Cir. 2000); see also Jennings v. Decker,
359 F, Supp. 3d 196, 205 n.12 (N.D.N.Y. 2019) (“Constitutional claims alleging racial profiling
are subject to the analysis of the Fourteenth Amendment Equal Protection Clause.” (quoting
Marshall v. Town of Middlefield, No. 3:10-CV-1009 (ICH), 2012 WL 601783, at *6 (D. Conn.
Feb. 23, 2012)). A plaintiff can plead intentional discrimination in violation of the Equal
Protection Clause in several ways, including “by pointing to a law that expressly classifies on the
basis of race, a facially neutral law or policy that has been applied in an unlawfully

8 See Duplan v. City of New York, 888 F.3d 612, 619-20 (2d Cir. 2018) (reaffirming
ongoing vitality of the Supreme Court’s holding in Jett v. Dallas Independent School District,
491 U.S. 701, 733 (1989), that “the express cause of action for damages created by § 1983
constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state
governmental units’).
17

discriminatory manner, or a facially neutral policy that has an adverse effect and that was
motivated by discriminatory animus.” Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009) (per
curiam) (quoting Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001)).
B. Qualified Immunity
Focusing on the “clearly established” prong, the State Defendants concede that the right
not to be subject to racial discrimination is clearly established. (Doc. 15 at 8.) Indeed, “[i}f law
enforcement . . . takes steps to initiate an investigation of a citizen based solely upon that
citizen’s race, without more, then a violation of the Equal Protection Clause has occurred.”
Brown, 221 F.3d at 338 (quoting United States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997)). But
the State Defendants maintain that the clearly established law must not be defined at a high level
of generality, and that they are entitled to qualified immunity because “there is no clearly
established law which prevents a parole officer from relying on the identification of one of his
parolees by a fellow officer, even if that identification may be tinged by racial animosity or
ignorance.” (Doc. 15 at 9-10.) The State Defendants also assert that “there are no facts pled to
indicate that they were aware of such animosity or ignorance.” (/d. at 10.)
Here, as the court concluded above—even accepting as true that the video on which
Detective Jermain relied to make her purported identification depicted a chaotic scene and was of
low quality—that does not constitute a basis for the State Defendants to disbelieve the purported
identification. If Detective Jermain’s purported identification was based on racial animosity or
prejudice, the allegations fall short of plausibly pleading that the State Defendants could have
known of it or that their role in the search was based solely on race.

i8

Conclusion
Defendants Thomas DeGal and Sean McPartland’s Motion for Partial Dismissal (Doc. 3)
is GRANTED insofar as it seeks dismissal of the first and sixth causes of action against those
defendants.
Dated this 29" day of May, 2020.

/s/ Geoffrey W. Crawford
U.S. District Court Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362369. Public record. Not legal advice.