Gursslin v. City of Rochester

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

ERIN GURSSLIN,

Plaintiff,

DECISION AND ORDER

v.

6:20-CV-06508 EAW

CITY OF ROCHESTER, A municipal

entity, JEREMY NELLIST, Police Officer,

JOSHUA P. KELLY, Police Officer,

FABIAN RIVERA, Commander, and

AARON SPRINGER, Lieutenant,

Defendants.

____________________________________

INTRODUCTION

On September 6, 2018, Rochester Police Department (“RPD”) officers Jeremy

Nellist (“Nellist”) and Joshua P. Kelly (“Kelly”) traversed through the backyard of plaintiff

Erin Gursslin’s (“Plaintiff”) property on St. Paul Street, in the City of Rochester (the

“City”), during the course of executing a search warrant at a location three properties north

of Plaintiff’s. On their return trip, Nellist and Kelly encountered Plaintiff’s foster dog,

Nina, whom they shot and killed.

Plaintiff thereafter sued the City, Nellist, Kelly, RPD Commander Fabian Rivera

(“Rivera”), and RPD Lieutenant Aaron Springer (“Springer”) (collectively “Defendants”)

for having unreasonably searched the curtilage of Plaintiff’s property, for having

unlawfully seized Nina, and for having unlawfully seized Plaintiff, all in violation of the

Fourth Amendment. (Dkt. 1). The parties have cross-moved for summary judgment as to

Plaintiff’s claim for unreasonable search of her curtilage. (Dkt. 94; Dkt. 99).1

Plaintiff has also filed a motion to “temporarily” seal portions of the papers in

support of her motion for partial summary judgment. (Dkt. 95). Defendants have opposed

this motion to the extent that they argue the sealing should be permanent. (Dkt. 97).

For the reasons below, the Court finds that all the documents submitted in

connection with the pending cross-motions for summary judgment (Dkt. 94; Dkt. 99) must

be filed on the docket in unredacted form. The Court further denies Plaintiff’s motion for

summary judgment on her unreasonable search claim, and grants Defendants’ motion for

summary judgment as to the same.

BACKGROUND

I. Factual Background

On September 6, 2018, Plaintiff owned a duplex home at 1747 St. Paul Street,

Rochester, New York. (Dkt. 94-2 at ¶ 1; Dkt. 99-22 at ¶ 1).2 Plaintiff lived in the upstairs

apartment with her boyfriend and Nina. (Dkt. 94-2 at ¶ 3; Dkt. 99-22 at ¶ 3).

1 The City has also filed a motion for summary judgment with respect to Plaintiff’s

seizure claims (Dkt. 114) and a motion to preclude Plaintiff’s proposed expert witness

James Crosby (Dkt. 113). Briefing on these motions was only recently concluded, and the

Court will issue a decision on them in due course.

2 Significant portions of Plaintiff’s Local Rule 56 Statement of Undisputed Facts

(Dkt. 94-2) are redacted, pursuant to Plaintiff’s motion for temporary sealing. Because the

Court orders that an unredacted version of this document be filed, for reasons discussed

below, the Court recites information herein included in the unredacted version submitted

to the Court.

Nellist and Kelly were members of the RPD’s Special Weapons and Tactics

(“SWAT”) team, assigned to the Sniper Team. (Dkt. 94-2 at ¶ 16, Dkt. 99-22 at ¶ 16). The

SWAT team was planning to execute a High-Risk Search Warrant (“HRSW”) at 1771 St.

Paul Street, which was located approximately three properties north of 1747 St. Paul Street.

(Dkt. 94-2 at ¶ 13; Dkt. 99-22 at ¶ 13).

In the week prior to executing the HRSW, Nellist and Kelly were responsible for

choosing their “final operating position” as snipers. (Dkt. 94-2 at ¶ 2; Dkt. 99-22 at ¶ 22).

Nellist and Kelly chose a location behind a garage at 1754 St. Paul Street, located one lot

north of Plaintiff’s property. (Dkt. 94-2 at ¶ 23; Dkt. 99-22 at ¶ 23). To access this location,

Nellist and Kelly entered Plaintiff’s driveway and backyard. (Dkt. 94-2 at ¶ 24; Dkt. 99-

22 at ¶ 24). Nellist and Kelly did not have a warrant or consent, nor were there exigent

circumstances. (Dkt. 94-2 at ¶ 25; Dkt. 99-22 at ¶ 25). Nellist and Kelly determined that

they would “infiltrate to and exfiltrate from their final operating position” by walking down

Plaintiff’s driveway, through her backyard, and jumping the fence in the northwest corner

of her backyard. (Dkt. 94-2 at ¶ 26; Dkt. 99-22 at ¶ 26).

On September 6, 2018, the RPD executed the HRSW. (Dkt. 94-2 at ¶ 38; Dkt. 99-

22 at ¶ 38). At approximately 4:45 a.m., Nellist and Kelly infiltrated to their final operating

position by walking down Plaintiff’s driveway and through her backyard, and jumping the

fence in the northwest corner of her backyard. (Dkt. 94-2 at ¶ 39; Dkt. 99-22 at ¶ 39).

They did not have a warrant or consent. (Dkt. 94-2 at ¶¶ 40-41; Dkt. 99-22 at ¶¶ 40-41).

Nellist and Kelly remained in their final operating position until after the HRSW

had been executed. (Dkt. 94-2 at ¶ 50; Dkt. 99-22 at ¶ 50). At approximately 6:00 a.m.,

Nellist and Kelly exfiltrated from their final operation position by taking the same route

they had taken to get there. (Dkt. 94-2 at ¶ 51; Dkt. 99-22 at ¶ 51). On their return trip

through Plaintiff’s backyard, Nellist and Kelly encountered Nina, whom they shot and

killed. (Dkt. 94-2 at ¶¶ 58-66; Dkt. 99-22 at ¶¶ 58-66).

II. Procedural Background

Plaintiff commenced this action on July 15, 2020. (Dkt. 1). Plaintiff filed her

motion for partial summary judgment on her unlawful search claim and her motion for

temporary sealing on September 13, 2023. (Dkt. 94; Dkt. 95). Defendants filed a response

to the motion to seal (Dkt. 97) and Plaintiff filed a reply (Dkt. 98).

On October 13, 2023, Defendants cross-moved for partial summary judgment on

Plaintiff’s unlawful search claim, and opposed Plaintiff’s motion for partial summary

judgment. (Dkt. 99). Plaintiff filed a response to Defendants’ motion and a reply in further

support of her motion (Dkt. 108), and Defendants filed a reply in further support of their

motion (Dkt. 109).

DISCUSSION

I. Motion to Seal

A. Legal Standard

At common law, there is a longstanding “right of public access to judicial

documents.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006); see

also United States v. Erie Cnty., 763 F.3d 235, 238-39 (2d Cir. 2014) (“The notion that the

public should have access to the proceedings and documents of courts is integral to our

system of government.”). “Before any such common law right can attach, however, a court

must first conclude that the documents at issue are indeed ‘judicial documents.’” Lugosch,

435 F.3d at 119. “[T]he mere filing of a paper or document . . . is insufficient to render

that paper a judicial document.” United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)

(“Amodeo I”). Rather, “the item filed must be relevant to the performance of the judicial

function and useful in the judicial process . . . .” Id.

“Once the court has determined that the documents are judicial documents and that

therefore a common law presumption of access attaches, it must determine the weight of

that presumption.” Lugosch, 435 F.3d at 119. “The weight afforded to that presumption

depends upon ‘the role of the material at issue in the exercise of Article III judicial power

and the resultant value of such information to those monitoring the federal courts.’” Mayer

v. Patriot Pickle Inc., No. 23-CV-1299-LJV, 2024 WL 162881, at *2 (W.D.N.Y. Jan. 16,

2024) (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (“Amodeo

II”)). “Generally, the information will fall somewhere on a continuum from matters that

directly affect an adjudication to matters that come within a court’s purview solely to insure

their irrelevance.” Amodeo II, 71 F.3d at 1049.

“Finally, after determining the weight of the presumption of access, the court must

balance competing considerations against it.” Lugosch, 435 F.3d at 120 (internal quotation

marks and citation omitted). “Such countervailing factors include but are not limited to

the danger of impairing law enforcement or judicial efficiency and the privacy interests of

those resisting disclosure.” Id. (internal quotation marks and citation omitted).

B. Application

Plaintiff submitted in connection with her motion for partial summary judgment on

her unreasonable search claim a number of documents that Defendants had marked

confidential pursuant to the stipulated protective order (Dkt. 20) entered by Magistrate

Judge Mark W. Pedersen. Plaintiff asked that the Court only temporarily seal the

documents, explaining that she did not believe that they had properly been marked

confidential, but that the terms of the stipulated protective order required her to seek leave

to file them under seal.

In response to Plaintiff’s motion, Defendants take the position that the documents

at issue should be permanently sealed. (Dkt. 97). Defendants argue that certain

information regarding the SWAT operation should be sealed “in order to preserve the

confidentiality of SWAT and sniper tactics and techniques,” and that other documents

should be sealed because they reveal which apartment at 1771 St. Paul Street was the target

of the HRSW, in derogation of the privacy interests of the residents of that building. (Id.

at 3-7). Defendants also argue that certain of the documents are not judicial documents

because they are not relevant to the pending motions and that the presumption of public

access is low because “the SWAT operation functions solely as a background to the

relevant incident[.]” (Id. at 3).

Initially, the Court rejects Defendants’ contentions that any of the documents at

issue are not judicial documents and that the weight of the presumption is low. The Second

Circuit explicitly held in Lugosch that “documents submitted to a court for its consideration

in a summary judgment motion are—as a matter of law—judicial documents to which a

strong presumption of access attaches.” 453 F.3d at 121. The documents at issue here

explain how the SWAT action underlying this matter was carried out, as well as the RPD’s

policies and practices regarding SWAT actions and entries into the curtilage of citizens’

homes. The Court cannot conclude that any of the documents are irrelevant to the pending

motions, and they do not “receive different weights of presumption based on the extent to

which they were relied upon in resolving the motion.” Id. at 123. There is a strong

presumption of public access to the documents in question.

The Court further finds that Defendants have not demonstrated that the law

enforcement privilege protects the information contained in the documents. “[T]he party

asserting the law enforcement privilege must show that the documents contain information

that the law enforcement privilege is intended to protect,” which includes “information

pertaining to law enforcement techniques and procedures, information that would

undermine the confidentiality of sources, information that would endanger witness and law

enforcement personnel or the privacy of individuals involved in an investigation, and

information that would otherwise interfere with an investigation.” In re The City of New

York, 607 F.3d 923, 944 (2d Cir. 2010) (quotations and alterations omitted). The focus of

the inquiry is whether disclosure of the information at issue would impede “the ability of

the police department to conduct effective law enforcement, presently and in the future.”

Walls v. City of New York, 502 F. Supp. 3d 686, 698 (E.D.N.Y. 2020) (citation omitted).

“In order to sustain the privilege, a party must make a clear and specific evidentiary

showing of the nature and extent of the harm that is likely to be encountered if disclosure

is permitted, and they may not rely simply on generalized reiterations of the policies

underlying the privilege.” Coleman v. Cnty. of Suffolk, 174 F. Supp. 3d 747, 756 (E.D.N.Y.

2016) (citation omitted), aff’d, 685 F. App’x 69 (2d Cir. 2017).

Defendants have fallen short of meeting their burden here. They assert in a vague

and conclusory fashion that “[p]ublic knowledge about sniper and SWAT techniques

undermines law enforcement ability to inconspicuously operate and perform their

functions.” (Dkt. 97 at 4). But Defendants do not seek sealing of Exhibit 15 to Plaintiff’s

motion for partial summary judgment, which is a copy of the RPD’s standard operating

procedures manual (“SOP manual”) for the SWAT team. (Dkt. 94-18). Plaintiff obtained

a copy of this document pursuant to a Freedom of Information Law request. (See Dkt. 98

at 6 n.1). The SOP manual explains that SWAT snipers choose a final operating position,

what a final operating position is, and why it is chosen. (See Dkt. 94-18 at 9, 71-72).

Defendants have offered no explanation for why, given that this information is publicly

available, it would impede effective law enforcement for the public to know how the final

operating position in this case was chosen. Moreover, significant portions of the

documents at issue do not discuss specific SWAT techniques at all, but are about

specifically what happened in this case. Defendants’ cursory arguments are insufficient to

overcome the strong presumption of public access.

As to Defendants’ invocation of the privacy interests of third parties living at 1771

St. Paul Street, it is already public knowledge that 1771 St. Paul Street was the target of

the HRSW, as that information is contained in the complaint. (See Dkt. 1 at ¶ 3).

Defendants do not assert that the residents who resided in the apartment in 2018 continue

to reside there and have not shown that any privacy interests in the specific apartment that

was the target of the HRSW outweigh the strong presumption of public access.

For these reasons, the Court finds that none of the documents submitted in

connection with the parties’ cross-motions for summary judgment should be sealed. The

parties are ordered to publicly file the documents that are the subject of the motion to seal

within 14 days of entry of this Decision and Order.

II. Cross-Motions for Summary Judgment

A. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is 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). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “The moving party

bears the burden of showing the absence of a genuine dispute as to any material fact[.]”

Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the

non-moving party will bear the burden of proof at trial, the party moving for summary

judgment may meet its burden by showing the evidentiary materials of record, if reduced

to admissible evidence, would be insufficient to carry the non-movant’s burden of proof at

trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Once the moving party has met its burden, the opposing party “must do more than

simply show that there is some metaphysical doubt as to the material facts, and may not

rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra

Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654

F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward

with specific evidence demonstrating the existence of a genuine dispute of material fact.”

Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

B. Plaintiff’s Unreasonable Search Claim

The parties each seek summary judgment on Plaintiff’s unreasonable search claim,

which is her second claim for relief. (See Dkt. 1 at ¶¶ 184-96). The parties also seek partial

summary judgment on Plaintiff’s first claim for relief, which is for “municipal liability,”

to the extent such claim is premised on the alleged unreasonable search of Plaintiff’s

curtilage. (See id. at ¶¶ 107-83).

The Court notes as a threshold matter that municipal liability is “an extension of

liability, not an independent cause of action[.]” Soto v. City of New York, 132 F. Supp. 3d

424, 459 (E.D.N.Y. 2015). Accordingly, the issue before the Court is whether either side

is entitled to summary judgment on the unreasonable search claim, including as it is

asserted against the City. The Court determines that Defendants are entitled to summary

judgment on this claim, because no reasonable fact-finder could conclude that Nellist and

Kelly’s entry into Plaintiff’s property on September 6, 2018, constituted a “search” within

the meaning of the Fourth Amendment.3

“The Fourth Amendment prohibits unreasonable searches and seizures.” United

States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007). It is undisputed that when Nellist and

Kelly entered Plaintiff’s property on September 6, 2018, they were using her property as a

pass-through to access the final operating position located behind the garage at 1754 St.

Paul Street. (See Dkt. 94-2 at ¶ 39; Dkt. 99-22 at ¶ 39).4 Plaintiff describes their actions

as “cut[ting] through” her backyard. (Dkt. 94-2 at ¶ 45). She acknowledges that they

“walked through” her property and jumped the fence (id. at ¶ 48), and does not allege or

point to any evidence that they engaged in any information-seeking activities while doing

so. In short, Plaintiff’s theory is that impermissibly entering into the curtilage of her home,

without more, constitutes a search for Fourth Amendment purposes. (See Dkt. 108 at 19

(“[B]y physically intruding into Ms. Gursslin’s fenced-in back yard—the curtilage to her

property—the police ‘searched’ an area where Ms. Gursslin had a reasonable expectation

of privacy, in violation of her Fourth Amendment rights.”)).

The Supreme Court has explicitly rejected the theory advanced by Plaintiff. For

more than forty years, it has been the law that “an actual trespass is neither necessary nor

3 The parties argue at length in their papers about whether the areas of Plaintiff’s

property that Nellist and Kelly entered are properly considered “curtilage.” The Court need

not and does not reach this issue, because it concludes that no search occurred regardless

of whether the property was curtilage.

4 Plaintiff’s unreasonable search claim is based on Kelly’s and Nellist’s entry onto

her property on September 6, 2018, and not on any entry they made on some earlier date

while choosing the final operating position. (See Dkt. 1 at ¶¶ 49-59, 184-94).

sufficient to establish a constitutional violation.” United States v. Karo, 468 U.S. 705, 713

(1984) (emphasis added); see also Georgia v. Randolph, 547 U.S. 103, 118 (2006)

(explaining that “when the police may enter without committing a trespass, and when the

police may enter to search for evidence” are “two different issues”). In United States v.

Jones, 565 U.S. 400 (2012), the Supreme Court reiterated that “[t]respass alone” does not

qualify as a search for Fourth Amendment purposes, but must be “conjoined with . . . an

attempt to find something or to obtain information.” Id. at 408 n.5. “A trespass on ‘houses’

or ‘effects,’ or . . . [an] invasion of privacy, is not alone a search unless it is done to obtain

information.” Id. In Grady v. North Carolina, 575 U.S. 306 (2015), the Supreme Court

explained that Jones stands for the proposition that “a government intrusion is not a search

unless done to obtain information.” Id. at 310 (quotation omitted). “Under Jones, when

governmental invasions are accompanied by physical intrusions, a search occurs when the

government: (1) trespasses upon a constitutionally protected area, (2) to obtain

information.” Taylor v. City of Saginaw, 922 F.3d 328, 332 (6th Cir. 2019).

Plaintiff’s arguments to the contrary are unpersuasive. Plaintiff argues that the

Second Circuit’s decision in United States v. Lewis, 62 F.4th 733 (2d Cir. 2023), stands for

the proposition that any governmental intrusion into a constitutionally protected area is a

Fourth Amendment violation. (See Dkt. 108 at 18-19). But the issue in Lewis was not

whether there had been a search—there indisputably had—but whether the defendant had

a reasonable expectation of privacy in the shared porch where the search occurred. 62

F.4th at 740. The Lewis decision says nothing about whether a Fourth Amendment

“search” occurs where there is no attempt to obtain any information.

To the contrary, the Second Circuit has explicitly held that “[a] ‘search’ occurs for

purposes of the Fourth Amendment if the police seek information by intruding on a

person’s reasonable expectation of privacy or by means of trespassing upon one’s person,

house, papers, or effects.” United States v. Smith, 967 F.3d 198, 205 (2d Cir. 2020)

(emphasis added); see also El-Nahal v. Yassky, 835 F.3d 248, 254 (2d Cir. 2016) (a Fourth

Amendment search occurs “when the Government acts to obtain information by physically

intruding on a constitutionally protected area” (emphasis added and quotation and

alterations omitted)). And in United States v. Hayes, 551 F.3d 138 (2d Cir. 2008), the

Second Circuit held that a “transient trespass” through the protected curtilage of a home

“does not implicate the Fourth Amendment where the incriminating evidence is discovered

outside the curtilage.” Id. at 147. In other words, Hayes indicates that what matters is

where the information gathering—the search—occurred.

Plaintiff also argues that Florida v. Jardines, 569 U.S. 1 (2013), supports her

position. In Jardines, the Supreme Court held that “using a drug-sniffing dog on a

homeowner’s porch to investigate the contents of the home” was a search within the

meaning of the Fourth Amendment. Id. at 3, 11-12. In reaching that conclusion, the

Supreme Court held that while there is an implied license to enter the curtilage of a home

to “approach the home by the front path, knock promptly, wait briefly to be received, and

then (absent invitation to linger longer) leave,” that implied license did not extend to

“introducing a trained police dog to explore the area around the home in hopes of

discovering incriminating evidence[.]” Id. at 8.

Plaintiff argues that Kelly and Nellist did not have an implied license to enter the

curtilage of her home in order to use it as a pass-through to access their final operating

position. (Dkt. 108 at 20-23). This argument misses the point. Kelly and Nellist do not

argue that they had an implied license to enter Plaintiff’s property. (See Dkt. 109 at 11 n.

11 (disclaiming any such argument)). Moreover, the Supreme Court’s consideration of

whether the officers in Jardines had an implied license occurred only after it had concluded

that the officers were “gathering information” in the curtilage of the home. 569 U.S. at 5,

7. The Jardines Court explained that “an officer’s leave to gather information is sharply

circumscribed when he steps off [public] thoroughfares and enters the Fourth

Amendment’s protected areas.” Id. at 7 (emphasis added). The Jardines Court ultimately

concluded that a search occurred because the officers “physically intrud[ed] on Jardines'

property to gather evidence.” Id. at 11. The Jardines Court also cited Jones with approval

Id. Jardines confirms, rather than contradicts, Defendants’ argument that no Fourth

Amendment search of Plaintiff’s property occurred on September 6, 2018. See United

States v. McKenzie, 13 F.4th 223, 231 (2d Cir. 2021) (explaining that Jardines “recognizes

a search when the Government obtains information by physically intruding on persons,

houses, papers, or effects”).

Plaintiff also cites Kyllo v. United States, 533 U.S. 27 (2001), arguing that it stands

for the proposition that “any physical intrusion of the home constitutes a search[.]” (Dkt.

108 at 19). But that is not what Kyllo—which predates Jones in any event—says. Kyllo

involved “the use of a thermal-imaging device aimed at a private home from a public street

to detect relative amounts of heat within the home.” 533 U.S. at 29. The Kyllo Court

concluded that the use of “a device that is not in general public use, to explore details of

the home that would previously have been unknowable without physical intrusion,”

constituted a search for Fourth Amendment purposes. Id. at 40. Thus, in Kyllo, the

gathering of otherwise unknowable details about the home was a key factor in the analysis.

And while the Kyllo Court observed that “[t]he Fourth Amendment’s protection of the

home has never been tied to measurement of the quality or quantity of information

obtained,” id. at 37, it did not suggest that a trespass entirely unrelated to an information

gathering purpose nevertheless would constitute a search.

Because there is nothing in the record before the Court to support the conclusion

that Nellist and Kelly physically intruded on Plaintiff’s property on September 6, 2018, in

order to obtain information, the Court finds as a matter of law that there was no “search”

of Plaintiff’s property for purposes of the Fourth Amendment. See, e.g., Alicea v. Smith,

No. 3:23-CV-528 (VAB), 2024 WL 1704999, at *6 (D. Conn. Apr. 20, 2024) (dismissing

Fourth Amendment claim for unreasonable search because “[a] search must be undertaken

in order to obtain information or otherwise find something” and plaintiff had not alleged

that “the police SUV parked outside of her home in an attempt to obtain information about

her, nor has she alleged that any officers engaged in any type of investigatory activity or

surveillance”); Sutter v. Dibello, No. 18-CV-817(SJF)(AKT), 2021 WL 930459, at *30

(E.D.N.Y. Mar. 10, 2021) (finding that the defendant’s “conduct in accompanying plaintiff

into her home and remaining ‘stationed’ by the stairs with his eyes open until she had

recovered her firearm does not constitute a search for purposes of the Fourth Amendment”

where the defendant did not “attempt to find anything or to obtain information for any

purpose”).

The absence of a Fourth Amendment search is equally fatal to the unreasonable

search claim against Rivera and Springer, who are alleged to have instructed Nellist and

Kelly to enter Plaintiff’s backyard. (Dkt. 1 at ¶ 190); see Acosta v. Thomas, 837 F. App’x

32, 35 (2d Cir. 2020) (“[F]or a supervisor to be liable . . ., there must have been an

underlying constitutional deprivation.” (quotation omitted)). It is also fatal to the

unreasonable search claim against the City, because municipal liability cannot attach where

there was no underlying constitutional violation. See Segal v. City of New York, 459 F.3d

207, 219 (2d Cir. 2006) (“Because the district court properly found no underlying

constitutional violation, its decision not to address the municipal defendants’ liability . . .

was entirely correct.”).

In sum, the Court finds because Kelly’s and Nellist’s physical intrusion onto

Plaintiff’s property on September 6, 2018, was not undertaken to obtain information, it

does not constitute a search for purposes of the Fourth Amendment as a matter of law. This

holding should not be taken to condone the officers’ actions in using Plaintiff’s property to

access their final operating position without her knowledge or consent, nor does the Court

reach any conclusion about whether Defendants’ actions were otherwise unlawful.

CONCLUSION

For the foregoing reasons, the Court resolves Plaintiff’s motion to seal (Dkt. 95) by

concluding that none of the documents submitted in connection with the parties’ cross-

motions for partial summary judgment (Dkt. 94; Dkt. 99) should be maintained under seal.

The parties are ordered to file complete documents on the public docket within 14 days of

entry of this Decision and Order, using the “Continuation of Exhibits” event in CM/ECF.

The Court denies Plaintiff's motion for partial summary judgment on the

unreasonable search claim (Dkt. 94) and grants Defendants’ motion for partial summary

judgment on the unreasonable search claim (Dkt. 99).

The Court will issue a decision on Defendants’ motions to preclude Plaintiffs

expert witness (Dkt. 113) and for partial summary judgment on Plaintiff's unlawful seizure

claims (Dkt. 114) in due course.

SO ORDERED.

ELIZNBEYH A. WOERORD /

jef Judge

United States District Court

Dated: September 16, 2024

Rochester, New York

-17-