Freeman v. Ellis

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

MISTY FREEMAN, :

:

Plaintiff, :

:

v. : Case No. 1:17-cv-683

:

CITY OF JAMESTOWN POLICE OFFICER :

ELLIS; CITY OF JAMESTOWN POLICE :

SGT. BENDER; CITY OF JAMESTOWN :

POLICE LT. JACKSON; and :

CITY OF JAMETOWN POLICE OFC. :

JOHN DOE(S) :

:

Defendants. :

OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff Misty Freeman of Jamestown, New York (“NY”)

brings this action against several City of Jamestown police

officers for allegedly violating her constitutional rights.

Specifically, Ms. Freeman alleges that Defendant Police Officer

Aaron Ellis unlawfully entered her home in violation of the

Fourth Amendment of the United States Constitution. She also

alleges that Officer Ellis, as well as Sergeant Robert Bender

and Lieutenant Timothy Jackson, engaged in false arrest.

Finally, she brings malicious prosecution and retaliatory action

claims against Sergeant Bender and Lieutenant Jackson. Officer

Ellis denies ever entering Ms. Freeman’s home. The remaining

Defendants argue that Ms. Freeman’s arrest was justified and

that they did not engage in malicious prosecution or retaliatory

conduct.

The Court held a two-day bench trial on May 16 and May 17,

2022. At the conclusion of the evidence, Defendants moved to

dismiss the unlawful entry and the unlawful arrest claims

against Officer Ellis, as well as the malicious prosecution and

retaliatory action claims against Lieutenant Jackson. The Court

granted Defendants’ motion as to the unlawful arrest claim

against Officer Ellis and reserved judgment on all other claims.

Based upon the testimony of witnesses, the evidence

submitted, and arguments made by counsel, the Court makes the

following findings of fact and conclusions of law, as required

by Rule 52 of the Federal Rules of Civil Procedure. In sum, the

Court finds for Defendants on all counts.

I. Findings of Fact

1. Plaintiff Misty Freeman is a resident of Jamestown, NY.

On September 27, 2015, the date giving rise to the causes

of action now before the Court, she resided at 108 Pearl

Avenue, Jamestown, NY 14701 with her three children.

2. Defendant Police Officer Aaron Ellis, Defendant Sergeant

Robert Bender, and Defendant Lieutenant Timothy Jackson

were all employed by the City of Jamestown Police

Department (“Jamestown Police Department”) during the

period in question and were all acting in their

professional capacities during the events that gave rise

to this lawsuit.

3. During the summer of 2015, Ms. Freeman allowed Nicholas

Desnerck, Mr. Desnerck’s girlfriend, and Mr. Desnerck’s

dog to stay at her home in Jamestown, NY.

4. The couple left the residence in the middle of September,

leaving behind some personal items and the dog. Mr.

Desnerck asked Ms. Freeman to care for his dog while he

was away.

5. On September 24, 2015, Mr. Desnerck came to Ms. Freeman’s

home to discuss the return of his dog and property.

6. Ultimately, they could not agree on the return of that

property.

7. On September 27, 2015, Mr. Desnerck went to the Jamestown

Police Department, seeking assistance in obtaining his

property.

8. Mr. Desnerck told Officer Aaron Ellis that he had been a

resident of Ms. Freeman’s home and that his personal

belongings were inside the home.

9. Officer Ellis agreed to act as a peace officer and

accompany Mr. Desnerck to Ms. Freeman’s residence in an

effort to get the items.

10. A peace officer’s sole purpose is to maintain the

peace while helping to facilitate stressful

interactions; it is not to engage in law enforcement

or investigative efforts.

11. Upon arriving at Ms. Freeman’s residence, Mr. Desnerck

entered the mudroom.

12. Officer Ellis walked behind Mr. Desnerck as they

approached the house.

13. Mr. Desnerck testified that he saw Officer Ellis

behind him and on the steps of the residence but did

not see him in the mudroom.

14. Officer Ellis testified that he never entered the

mudroom.

15. Ms. Freeman testified that Officer Ellis walked behind

Mr. Desnerck and entered the mudroom.

16. A shouting match between Ms. Freeman and Mr. Desnerck

ensued.

17. Rebecca Freeman, Ms. Freeman’s daughter, testified

that Officer Ellis was “just kind of standing there”

and Mr. Desnerck testified that Officer Ellis was

“professional” during the encounter. Ms. Freeman

testified that Officer Ellis became threatening

towards her.

18. Ms. Freeman ordered Mr. Desnerck and Officer Ellis to

leave her property and they complied.

19. Ms. Freeman then went to the Jamestown Police

Department to report what had happened.

20. Ms. Freeman was interviewed by Sergeant Robert Bender.

21. According to Sergeant Bender’s deposition, Ms. Freeman

told him that Officer Ellis broke the lock and kicked

the door in.

22. Sergeant Bender then told Lieutenant Jackson about Ms.

Freeman’s report, specifically that she alleged that

Officer Ellis kicked in her door.

23. In her police report and supporting deposition, Ms.

Freeman attested that Officer Ellis and Mr. Desnerck

entered through her front door into the mudroom and

broke a lock on the outer door.

24. After hearing Ms. Freeman’s allegation, Lieutenant

Jackson investigated Ms. Freeman’s residence.

25. Lieutenant Jackson found no evidence of forceable

entry. He also testified that he spoke to Matthew

Freeman, and Matthew told him that nothing had

happened.

26. Sergeant Bender and Lieutenant Jackson together

concluded that there was probable cause to believe

that Ms. Freeman had submitted a false statement.

27. According to Sergeant Bender and Lieutenant Jackson,

the basis for this probable cause finding was Ms.

Freeman’s allegation that Officer Ellis had kicked in

her door, broken the lock, and illegally entered the

residence—an account that differed from the reports

given by Mr. Desnerck, Matthew Freeman, and Officer

Ellis.

28. A City Court Judge in Jamestown, NY found probable

cause that Ms. Freeman had made a false written

statement and issued an arrest warrant.

29. On October 3, 2015, members of the Jamestown Police

Department went to Ms. Freeman’s home to execute the

arrest warrant.

30. While at her home, police officers were told that Ms.

Freeman was at her daughter’s football game.

31. The officers called in for more officers and went to

the football game to arrest Ms. Freeman.

32. Ms. Freeman was then arrested and escorted to the

police station.

33. She was held at the police station until the following

day.

34. The charge against Ms. Freeman was dismissed without

prejudice on April 27, 2016, by Judge Frederick

Larson.

35. Ms. Freeman filed a Notice of Claim against members of

the Jamestown Police Department on June 27, 2016.

36. Assistant District Attorney Bridget Kleinfelder sent

Sergeant Bender a memo on May 6, 2016, notifying him

that he could refile charges against Ms. Freeman.

37. The Jamestown Police Department filed a new criminal

complaint against Ms. Freeman on July 29, 2016.

38. Ms. Freeman was rearrested on August 3, 2016, on the

same charge of making a false written statement.

39. The second charge was dismissed by Judge Frederick

Larson on November 10, 2016, because of a violation of

the speedy trial time limitations set forth in New

York State Criminal Procedure Law § 30.30.

II. Conclusions of Law

A. Fourth Amendment Unlawful Entry Claim

Ms. Freeman claims that Officer Ellis unlawfully entered her

home in violation of the Fourth Amendment. The Fourth Amendment

makes it unlawful for a police officer to subject a person to

“unreasonable searches and seizures.” U.S. Const. amend. IV.

“The home has properly been regarded as among the most highly

protected zones of privacy, and the sanctity of private

dwellings is ordinarily afforded the most stringent Fourth

Amendment Protection.” Ayeni v. Mottola, 35 F.3d 680, 685 (2d

Cir. 1994) (footnotes, brackets, and internal quotation marks

omitted). The Supreme Court has recognized that under Fourth

Amendment law “searches and seizures inside a home without a

warrant are presumptively unreasonable.” Welsh v. Wisconsin, 466

U.S. 740, 749 (1984). Warrantless entry into a home is

considered reasonable only when it meets “an exception to the

warrant requirement.” Anthony v. City of New York, 339 F.3d 129,

135 (2d Cir. 2003). In making this assessment, the “core

question is whether the facts, as they appeared at the moment of

entry, would lead a reasonable, experienced officer, to believe

that there was an urgent need to render aid or take action.”

United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)

(internal citation and quotation marks omitted); see also

Tierney v. Davidson, 133 F.3d 189, 196 (2d. Cir 2001) (holding

that warrantless entry by officers is justified “to render

emergency aid”). This inquiry is “objective” and requires that a

court consider “the totality of the circumstances confronting

law enforcement agents in the particular case.” Klump, 536 F.3d

at 117 (internal quotation marks omitted).

In this case, the Court finds that the “emergency aid”

exception, under which “officers may enter a home without a

warrant to render emergency assistance to an injured occupant or

to protect an occupant from imminent injury,” is applicable. See

Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). Officer

Ellis and Mr. Desnerck both claim that Officer Ellis never

entered the residence, while Ms. Freeman alleges that he did.

The Court finds that Plaintiff has not proven Officer Ellis did

in fact enter her residence. The Court comes to this conclusion

because Plaintiff relies solely on her testimony and her

daughter’s testimony to prove unlawful entry. Both Mr. Desnerck

and Officer Ellis testified that Officer Ellis did not enter the

mudroom. Matthew Freeman testified that he saw the individuals

leaving the property on the stairs but did not see them

physically in the mudroom. Therefore, the extent of Ms.

Freeman’s evidence that Officer Ellis entered unlawfully is her

and her daughter’s testimony from which the Court cannot

conclude that Officer Ellis entered the mudroom.

However, even assuming Officer Ellis did enter the mudroom,

an exception for warrantless entry would apply here. Officer

Ellis was present as a peace officer. Given that multiple

witnesses testified that Mr. Desnerck and Ms. Freeman engaged in

a verbal fight with shouting, it would not have been

unreasonable for Officer Ellis to enter the mudroom to help keep

the peace. Therefore, a limited incursion into the mudroom in

this context does not violate Ms. Freeman’s Fourth Amendment

rights.

Furthermore, even if Officer Ellis’ alleged entry into the

mudroom was determined to be unreasonable, he would be protected

by qualified immunity. Qualified immunity shields government

officials “from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In deciding

whether qualified immunity applies to a government official’s

actions, a court must consider (1) “whether the facts shown

‘make out a violation of a constitutional right’”; and (2)

“‘whether the right at issue was clearly established at the time

of defendant’s alleged misconduct.’” Taravella v. Town of

Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting Pearson, 555

U.S. at 223). A right is considered “clearly established” when

“[t]he contours of the right . . . [are] sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Okin v. Vill. of Cornwall-On-Hudson Police

Dep’t, 577 F.3d 415, 433 (2d Cir. 2004) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

The Court is not aware of any case law which would make it

clear to a reasonable officer that entry under these

circumstances would violate Plaintiff’s clearly established

rights. See D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (internal

quotation marks omitted) (noting “the need to identify a case

where an officer acting under similar circumstances . . . was

held to have violated the Fourth Amendment”). Furthermore,

courts have given officers “great latitude” to justify

warrantless entry in the context of domestic disputes. See

Tierney, 133 F.3d at 197 (“Courts have recognized the

combustible nature of domestic disputes, and have accorded great

latitude to an officer's belief that warrantless entry was

justified by exigent circumstances . . . .”). Given that this

case involves a domestic dispute, the Court cannot conclude that

a reasonable officer would be on notice that entering the

mudroom of a person’s home to help keep the peace would violate

clearly established law. Furthermore, the fact that the

potential for danger or violence in this case was not imminent

is not enough to deny an officer qualified immunity. See Batt v.

Buccilli, 725 F. App’x 23, 27 (2d Cir. 2018) (citing Wesby,

138 S. Ct at 590) (emphasis omitted) (noting that a plaintiff

could not rely on cases “that involved obvious and overt

emergencies” to deny qualified immunity because “[t]he simple

fact that the officers in [those] cases acted properly does not,

by implication, ‘clearly establish’ that [an officer]

acted improperly.”). As such, Officer Ellis is entitled to

qualified immunity.

The Court thus finds for Officer Ellis on the unlawful

entry claim.

B. Fourth Amendment Wrongful Arrest Claim

The Fourth Amendment protects against “unreasonable searches and

seizures” including wrongful arrests. U.S. Const. amend. IV. To

establish a false arrest claim under 42 U.S.C. § 1983, which

provides a vehicle for suing state actors who violate the United

States Constitution, a plaintiff must show that “the defendant

intentionally confined him without his consent and without

justification.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.

1996). Therefore, a false arrest claim will not be successful if

a police officer had probable cause or arguable probable cause

to make the arrest. See Figueroa v. Mazza, 825 F.3d 89, 99 (2d

Cir. 2016) (“The existence of probable cause to arrest—even for

a crime other than the one identified by the arresting officer—

will defeat a claim of false arrest under the Fourth

Amendment.”); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.

2004)(“Even if probable cause to arrest is ultimately found not

to have existed, an arresting officer will still be entitled to

qualified immunity from a suit for damages if he can establish

that there was ‘arguable probable cause’ to arrest.”). Probable

cause to arrest a person exists when the officer has “knowledge

or reasonably trustworthy information of facts and circumstances

that are sufficient to warrant a person of reasonable caution in

the belief that the person to be arrested has committed or is

committing a crime.” Weyant, 101 F.3d at 852. Arguable probable

cause exists “if either (a) it was objectively reasonable for

the officer to believe that probable cause existed, or (b)

officers of reasonable competence could disagree on whether the

probable cause test was met.” Golino v. City of New Haven, 950

F.2d 864, 870 (2d Cir. 1991). This inquiry is based on the

“facts available to the officer at the time of the arrest and

immediately before it” and does not mandate “absolute certainty”

on the officer’s part. See Panetta v. Crowley, 460 F.3d 388, 395

(2d Cir. 2006) (internal quotation marks and emphasis omitted).

“Courts should look to the totality of the circumstances and

must be aware that probable cause is a fluid concept—turning on

the assessment of probabilities in particular factual contexts—

not readily, or even usefully, reduced to a neat set of legal

rules.” Id. (internal quotation marks omitted).

Ms. Freeman alleges false or wrongful arrest claims against

Sergeant Bender and Lieutenant Jackson.

i. Sergeant Bender

As noted above, a plaintiff cannot prevail on a false

arrest claim if the officer had probable or arguable probable

cause to arrest. See Figueroa, 825 F.3d at 99; Escalera, 361

F.3d at 743.

The Court concludes here that probable cause existed for

Ms. Freeman’s arrest. Under New York State law, a person is

guilty of making a punishable false written statement if he or

she “knowingly makes a false statement, which he does not

believe to be true, in a written instrument bearing a legally

authorized form notice to the effect that false statements made

therein are punishable.” New York Penal Code § 210.45.

A full review of the testimony, along with the depositions

submitted into evidence, allows the Court to conclude that there

was probable cause to arrest Ms. Freeman for submitting false

information to law enforcement. Sergeant Bender testified that

Ms. Freeman told him that Officer Ellis broke her lock, kicked

in her door, and entered her mud room unlawfully. However,

investigation of the door by Lieutenant Jackson did not reveal

any signs of the alleged damage. Ms. Freeman also wrote in her

written statement to the Jamestown Police Department that

Officer Ellis had damaged the lock to the outer door of her

house, but Lieutenant Jackson testified that there was no

evidence of that damage. Mr. Desnerck also testified that

Officer Ellis did not enter Ms. Freeman’s home and that he did

not damage her door. The contradictory testimony in this case is

sufficient to be considered “reasonably trustworthy information

. . . to warrant a person of reasonable caution in the belief

that the person to be arrested has committed or is committing a

crime.” Weyant, 101 F.3d at 852

Furthermore, a City Court Judge for the City of Jamestown

issued an arrest warrant for Ms. Freeman. This supports the

conclusion that Ms. Freeman’s arrest was reasonable.

“Ordinarily, an arrest or search pursuant to a warrant issued by

a neutral magistrate is presumed reasonable because such

warrants may issue only upon a showing of probable

cause.” Walczyk v. Rio, 496 F.3d 139, 155–56 (2d Cir. 2007). “A

plaintiff who argues that a warrant was issued on less than

probable cause faces a heavy burden.” Rivera v. United

States, 928 F.2d 592, 602 (2d Cir. 1991). Ms. Freeman has not

met that heavy burden here, as she has not demonstrated that the

information submitted to the City Court Judge who issued the

arrest warrant was faulty or incorrect. Thus, the Court

concludes that Sergeant Bender had probable cause to arrest Ms.

Freeman.

However, even if Ms. Freeman’s arrest were unreasonable,

the Court finds that Sergeant Bender would be entitled to

qualified immunity. The Court is not aware of any case law that

establishes that it would be unreasonable for an officer to

arrest a person for filing a false statement after investigating

and finding no evidence of Plaintiff’s allegations, hearing

conflicting testimony, and securing an arrest warrant based on

probable cause. Under qualified immunity the inquiry is not

“what a lawyer would learn or intuit from researching case law,

but what a reasonable person in a defendant’s position should

know about the constitutionality of the conduct.” Young v.

County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). The Court

cannot conclude that any reasonable officer in these

circumstances would conclude that arresting Ms. Freeman would be

a violation of her Fourth Amendment rights. Furthermore, given

the facts of this case, “a rational jury could not find that the

officer’[s] judgment was so flawed that no reasonable officer

would have made a similar choice.” Lennon v. Miller, 66 F.3d

416, 424-25 (2d Cir. 1995) (emphasis omitted). Therefore,

Sergeant Bender is entitled to qualified immunity.

For the forementioned reasons, the Court finds for Sergeant

Bender.

ii. Lieutenant Jackson

For the reasons outlined above, the Court has found probable

cause for Ms. Freeman’s arrest. The existence of probable cause

also defeats Ms. Freeman’s unlawful arrest claim against

Lieutenant Jackson. Additionally, like Sergeant Bender,

Lieutenant Jackson is also entitled to qualified immunity on

this claim.

D. Fourth Amendment Malicious Prosecution Claim

To prove a malicious prosecution claim, a plaintiff must

demonstrate “(1) that the defendant initiated a prosecution

against the plaintiff, (2) that the defendant lacked probable

cause to believe the proceeding could succeed, (3) that the

defendant acted with malice, and (4) that the prosecution was

terminated in the plaintiff's favor.” Posr v. Court Officer

Shield # 207, 180 F.3d 409, 417 (2d Cir. 1999) (citing Ricciuti

v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)).

Under § 1983, to prevail on a malicious prosecution claim, a

plaintiff must also show “a sufficient post-arraignment liberty

restraint to implicate the plaintiff’s Fourth Amendment rights.”

Rohman v. New York City Transit Authority (NYCTA), 215 F.3d 208,

216 (2d Cir. 2000); see also Singer v. Fulton County Sheriff, 63

F.3d 110, 116-117 (2d Cir. 1995) (“The Fourth Amendment right

implicated in a malicious prosecution action is the right to be

free of unreasonable seizure of the person . . . . A plaintiff

asserting a . . . malicious prosecution claim under § 1983 must

therefore show some deprivation of liberty consistent with the

concept of ‘seizure.’”).

Ms. Freeman alleges malicious prosecution claims against

Sergeant Bender and Lieutenant Jackson.

i. Sergeant Bender

Given that the Court finds that Sergeant Bender had probable

cause to arrest Ms. Freeman, her malicious prosecution claim

cannot survive. Probable cause for an arrest will end the

inquiry into malicious prosecution. See Smith-Hunter v. Harvey,

734 N.E.2d 750, 752 (N.Y. 2000) (internal quotation marks

omitted) (noting that a plaintiff claiming malicious prosecution

must demonstrate a lack of probable cause). Therefore, the Court

finds for Sergeant Bender on this claim.

ii. Lieutenant Jackson

For the same reasons the Court finds for Sergeant Bender on

Ms. Freeman’s malicious prosecution claim, the Court also finds

for Lieutenant Jackson. Specifically, the existence of probable

cause also defeats Ms. Freeman’s malicious prosecution claim

against Lieutenant Jackson.

E. First Amendment Retaliation Claim

Ms. Freeman also claims that the Jamestown Police

Department retaliated against her. To prevail on a First

Amendment retaliation claim, a plaintiff must plausibly allege

that “(1) his [or her] speech or conduct was protected by the

First Amendment; (2) the defendant took an adverse action

against him [or her]; and (3) there was a causal connection

between this adverse action and the protected speech.” Montero

v. City of Yonkers, New York, 890 F.3d 386, 394 (2d Cir. 2018)

(citing Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267,

272 (2d Cir. 2011)). Retaliation claims based on false arrest

will be defeated if probable cause exists at the time of the

arrest. See Fabrikant v. French, 691 F.3d 193, 218 (2d Cir.

2012) (internal quotation marks omitted). (holding that

“[b]because probable cause existed . . . [plaintiff’s] First

Amendment retaliation claims must fail”). “An individual does

not have a right under the First Amendment to be free from

criminal prosecution supported by probable cause. . . .”

Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992). This is

true even when that prosecution “is in reality an unsuccessful

attempt to deter or silence criticism of the government.” Id.

Ms. Freeman alleges that both Sergeant Bender and

Lieutenant Jackson retaliated against her in violation of her

First Amendment rights. Specifically, Ms. Freeman alleges that

the refiling of criminal charges against her after she filed a

claim against the Jamestown Police Department constitutes

retaliation.

i. Sergeant Bender

Retaliation claims based on false arrest will be defeated

if probable cause exists at the time of the arrest. See

Fabrikant, 691 F.3d at 218. Therefore, because the Court has

already found that probable cause existed for Ms. Freeman’s

arrest, her retaliation claim cannot survive. It is also worth

noting that Assistant District Attorney Bridget Kleinfelder sent

Sergeant Bender a memo on May 6, 2016, notifying him that he

could refile charges against Ms. Freeman. Given that the

memorandum encouraging the refiling of charges came from a

neutral body outside of the Jamestown Police Department, this

context further supports the Court’s conclusion that there is no

evidence of retaliation. The Court therefore finds for Sergeant

Bender on Ms. Freeman’s retaliation claim.

ii. Lieutenant Jackson

For the same reasons the Court finds for Sergeant Bender on

Ms. Freeman’s retaliation claim, the Court also finds for

Lieutenant Jackson. Specifically, the existence of probable

cause also defeats Ms. Freeman’s retaliation claim against

Lieutenant Jackson.

F. Damages

Plaintiff has the burden of proving damages. For each claim

she must demonstrate that (1) she has or will have loss or harm

and (2) that loss or harm was caused by the legal fault of the

Defendant. Damages must be proven without speculation. Given

that Ms. Freeman has not prevailed on any of her claims, the

Court need not address damages. The Court notes, however, that

Plaintiff has not adequately proven compensatory damages.

Specifically, she has not demonstrated any actual,

documented loss from which the Court could calculate

compensatory damages.

III. Conclusion

For the foregoing reasons, the Court orders judgment in

favor of Defendants on all counts.

DATED at Burlington, Vermont, this 13th day of June, 2022.

/s/ William K. Sessions III

William K. Sessions III

U.S. District Court Judge