Petition for Writ of Certiorari — Dempsey v. Town of Brighton

Supreme Court brief1991

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SVPVviiis Vues wwe

ay FILED

SG].

: 366 AUG 30 1991

No.

; map HE CLERK

In The

Supreme Court of the United States

OCTOBER TERM, 1991

EDWARD MURTAGH DEMPSEY,

Petitioner,

vS.

TOWN OF BRIGHTON,

EUGENE SHAW, CHIEF OF POLICE OF THE TOWN

OF BRIGHTON,

TOWN OF BRIGHTON POLICE DEPARTMENT,

OFFICERS THOMAS SLEEP, ROBERT E. HICKEY,

FRED J. MELLINI, AND SERGEANT WILLIAM

LaRONDE, AND DOES | THROUGH 6.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CHARLES B. KENNING, ESQ.

Counse! of Record

1008 Times Square Building

Rochester, New York 14614

Attorney for Petitioner

EDWARD MURTAGH DEMPSEY

WuI7) PHL 40 FHO

j — a

qgytid

*S‘n ‘nog ewadng

QUESTIONS PRESENTED

1. Did the Respondent Sleep act as a

reasonable and prudent police officer in

stopping, detaining and causing the

petitioner to be handcuffed, injured,

use of excessive force and defacto

arrest, sans reasonable suspicion?

(Terry v. Ohio, 392 U.S. 1)

r Did the District Judge err in

determining ultimate facts without

passing on the credibility of any party,

or the testimony of petitioner's and

respondents’ experts as to probable

Cause, excessive force, inter alia, and

dismissing the Petitioner's Complaint

Sua sponte?

: 2 Is the Brighton Police Dept. and

Chief Shaw accountable as respondeat

superior due to lack of proper training

as to the law of arrest and failure to

maintain "Use of Force" records?

_——

LIST OF ALL PARTIES TO THE PROCEEDING

All parties to the action of

EDWARD MURTAGH DEMPSEY vs. TOWN TOWN OF

BRIGHTON, et al. are identified in the

caption, except John Does 1 through 6,

due to the plaintiff Edward Murtagh

Dempsey's testimony that there were

additional Brighton police officers,

whose identity was not disclosed.

Mark Curenton's action was con-

solidated with the case of Edward

Murtagh Dempsey by Order of the

Honorable David G. Larimer, U.S.

District Judge, dated January 11, 1989

(Docket #12).

Tne plaintiff Mark S. Curenton did

not appeal to the Court of Appeals from

the Decision and Order of the Honorable

David G. Larimer dated October 29, 1990.

iii

TABLE OF CONTENTS

Questions Presented... ccceeeeveel

Dn er Pe WEP EOOs cocceccesoeeshs

eens Oe. COMCOOCRc cccescceesse Peres & & |

Appendix Contents... eeeeeeee ee ee

pe ET A oe a eS vi

Reference of Official Reports of

Opinions, 99 Federal Rules

DE SOSn cesteeecevcece ceanede

Jurisdictional Statement......... 1

Statement of Case....... eeevevens 2

Decision of the Courts Below..... 22

ISSUE #1 - DID THE RESPONDENT SLEEP

ACT AS A REASONABLE AND PRUDENT

POLICE OFFICER IN STOPPING, DETAIN-

ING AND CAUSING THE PETITIONER TO BE

HANDCUFFED, INJURED, USE OF

EXCESSIVE FORCE AND DEFACTO ARREST,

SANS REASONABLE SUSPICION?

(TERRY v. OHIO, 392 U.S. 1).....- 23

ISSUE #2 - DID THE DISTRICT JUDGE

ERR IN DETERMINING ULTIMATE FACTS

WITHOUT PASSING ON THE CREDIBILITY

OF ANY PARTY, OR THE TESTIMONY OF

PETITIONER'S AND RESPONDENTS'

EXPERTS AS TO PROBABLE CAUSE,

ESCESSIVE FORCE, INTER ALIA, AND

DISMISSING THE PETITIONER'S

ie | |

ISSUE #3 - IS THE BRIGHTON POLICE

DEPT. AND CHIEF SHAW ACCOUNTABLE AS

RESPONDENT SUPERIOR DUE TO L CK OF

PROPER TRAINING AS TO THE LAW OF

ARREST AND FAILURE TO MAINTAIN

"USE OF FORCE” RECORDS?..........49

ORCL USO sc ccccecteetseccscess 0 0 065

APPENDIX CONTENTS

APPENDIX A - Court of Appeals

Order (Docket #90-9045)

filed June 3, 1991 affirming

the Decision and Order of

the Hon. David G. Larimer......A-1

APPENDIX B - Decision and

Order of the Hon. David G.

Larimer, United States

District Judge for

Western District of NY

dated October 9, 1990.........-A=5

APPENDIX C - Excerpts of

Brighton Police Radio

Transmission Tapes of

Se ee POT ee eee A-79

APPENDIX D - Excerpts of

deposition testimony of

parties and non-party

WISLDUSSOE sco kee chbcetecveseserus A-83

(Trooper Kim Smith)...... reer

(Trooper Sgt. Frank Murray)....A-87

(Eugene Shaw, Chief of Police).A-90

(Edward Murtagh Dempsey).......A-94

(Officer Thomas Sleep)......... A-102

(Officer Frederich Mellini)....A-119

(Officer William LaRonde)...... A-123

(Officer Robert hickey)........ A-125

(Dorothy Testa)........ seunen tee tae

(Inspector James G. Patterson) .A-136

APPENDIX E - Expert Opinion

of Peter L. Giorgione filed

pursuant to Order of Magistrate

Kennetn R. Fisher datec

November 17, 1989 (Docket #37).A-146

TABLE OF AUTHORITIES

CASES:

Bordanaro v McLeod, 871 F.2d

1151 (1st cat. eee

City of Canton, Ohio v. Harris,

~--- U.S. ---, 109 S.Ct. 1197,

103 L.Ed. 2d 412 (1989).........63

Dunaway v. New York, 442 U.S.

200, 99 S.Ct. 2248, 60 L.Ed.2d

824 yi ee rae,

Florida v. Royer, 460 U.S. 491..24

Milligan v. City of Newport News,

743 F.2d 227, 230

| RE |) a a nee eee 63

Monell v. New York City Dept.

of Social Services, 436 U.S. 658,

98 S.Ct. 2018, 56 L.Ed.2d 611

So 7 veer er Ce Ce Eee 50,

Monroe v. Pape, 365 US 167,

5 L.Ed. 2d 492, 81 S.Ct. 473

2 4S SE Sana veretrt TT Erre re 51

Pembaur v. City of Cincinnati,

475 U.S. 469, 480, 106 S.Ct.

1292, 1298, 89 L.Ed. 2d 45

SE PGRtevecesweees (eegeneneues 63

People v. Henley, 53 N.Y.2d 403,

QR2 N.Y.S.2d 428 (1981)... cece 63

People v. hicks, 68 NY2d 241....24,

vii

Rodreguez v. Avita, 871 F.2d

552, 555 (5th cir. 1989),

cert. denied, 110 S.Ct. 156,

107 L.Ed.2d 114 (1989)..........64

Rogers Hicks v. Walter Kelley

and the Attorney General of the

State of New York, 83C-341

(91-2363) (Hicks federal

habeaS COrpuS)...cceccccccceees 34

Terry v. Ohio, 392 US 1 (1968)..23, 24,

eccccccccceceree Tererrrrr oceodedy 95>

eevee ere eoeeee eoeeeeveever ° eee 59, 63

errr rr rrr Te ree ety Tt aS 64

United States of America v.

7 J .Webe@icbes ERC os 517 F.2d

299 C1OTS) cccccccesctesevcsvcese 54

“U.S. v. Glenna, 878 F.2d 967

(Tth Cir. WED) .cccccevcevsececes 64

United States v. Jackson,

652 F.2d 244 (2d Cir. 1981)....-. 64

Wellington v. Daniels, 717 F.ed

932 (4th Cir. 1983)... ceeeeeeeces 64

STATUTES

28 U.S.C. Section 1254(1)..-eee- 1

42 U.S.C. Sections 1981, 1983,

1985 and 1988... cccccccccccccces 2

vili

Federal Rules of Civil Procedure

Rule 56 Miss e-wvee eee cededeeeee «sue

Article I of the New York State

Constitution

A) en me

ae ee eee

United States Constitution

FPOUFth AMONGRENE 2 cccccccececcees 36,

Fourtheen Amendment......eeeee 30,

REFERENCE OF OFFICIAL

REPORTS OF OPINIONS

WRITTEN OPINIONS OF WILLIAM W.

SCHWARZER, UNITED STATES DISTRICT JUDGE

FOR THE NORTHERN DISTRICT OF

CALIFORNIA.

"SUMMARY JUDGMENT UNDER THE FEDERAL

RULES: DEFINING GENUINE RULES OF

MATERIAL FACT", 99 Federal Rules

Decisions 465.

]

JURISDICTIONAL STATEMENT

The Petitioner Edward Murtagh

Dempsey and Mark S. Curenton, the

plaintiff in the companion action, both

brought these actions pursuant to 42

U.S.C. Sections 1981, 1983, 1985 and

1988 for violation of their civil

rights by respondents, and pendent

state claims for assault, false

imprisonment and damages sustained by

them. The jurisdiction of the court to

review the judgment of the Court of

Appeals is 28 U.S.C. Section 1254(1).

STATEMENT OF THE CASE

The transactions out of which the

Petitioner commenced his action herein

pursuant to 42 U.S.C. Sections 1983,

1985 and 1988, arose after the Monroe

Savings Bank Branch in the Town of

Brighton was robbed by Franklin Charles

Leonard, a black man without an

accomplice, at 1:32 P.M. in the

afternoon on July 12, 1987. The said

Franklin Charles Leonard confessed to

robbing the Monroe Savings Bank and was

sentenced to ten years in a federal

penitentiary by the Honorable Michael

Telesca, United States District Judge

for the Western District of New York,

and is now incarcerated at the Federal

Penitentiary at Lompoc, California.

Franklin Charies Leonard did not

display a weapon at the time of the

Robbery and after taking money from the

bank teller, Lisa Fiordeliso Dunn, he

fled on foot from the scene of the

robbery.

That approximately one hour after

the Monroe Savings Bank branch robbery,

the Petitioner Edward Murtagh Dempsey,

a lifelong resident of the Town of

Brighton, left his home and proceeded

northwesterly on Monroe Avenue in his

dark blue four-door Toyota automobile

in the curb lane, in accordance with

his daily workday custom. He passed

the Monroe Savings Bank branch and at

that point a Brighton police car, now

Known to have been operated by the

Respondent Officer Tnomas Sleep, drove

out from the Monroe Savings Bank branch

and followed Edward Murtagn Dempsey in

a northwesterly direction on Monroe

Avenue in the passing lane (Dempsey

Transcript Pages 341-345) (A-99, A-

100). Officer Thomas Sleep is required

to wear glasses, and this is stamped on

his operator's license (deposition

transcript page 374).

On not less than two occasions

the Respondent Officer Thomas Sleep

pulled astride of Edward Murtagh

Dempsey and examined him very care-

fully. As Edward Murtagh Dempsey

approached the intersection of Monroe

Avenue and Highland Avenue, he noted

that the Plaintiff Marx Curenton was

standing on the corner in accordance

with his daily custom awaiting Edward

Murtagh Dempsey so that they could both

proceed to their summer employment at

the Weyerhaeuser Lumber Company in

Rochester, New York, during the time

when both of them were not attending

college. Mark Curenton had just

returned from the 7-11 Store which was

on Monroe Avenue in the vicinity of

Monroe Savings Bank where he bought a

Sandwich for his lunch. Mark Curenton

noted the police activity at the Monroe

Savings Bank branch. Mark Curenton was

a black man who had a beard and a

‘mustache, was approximately six feet

tall and medium build and was wearing a

white baseball type shirt with short

blue sleeves, and according to the

deposition testimony of the Mark

Curenton, Edward Murtagh Dempsey and

New York State Troopers he was wearing

maroon pants and did not have a hat nor

was he wearing sunglasses, and was

merely standing on the corner awaiting

the arrival of Edward Murtagh Dempsey.

Immediately across Highland Avenue at

the intersection where Mark Curenton

was standing, two New York State Police

Troopers, namely, Sgt. Frank Murray and

Trooper Kim Smith were on roving patrol

and had stopped at the bus turn-around

loop at the intersection, and each of

them observed Mark Curenton for a span

of five to ten minutes while each of

them were at the bus turnaround. Each

of them had radio communications,

including the descriptions from the

Brighton police dispatcher of the bank

robber, Franklin Charles Leonard, who

among other things by the radio

dispatcher descriptions had a thin

face, thin build, was a black man

wearing a hat with chin strap, a jacket

and sunglasses; whereas Mark Curenton

was wearing a white baseball type shirt

with short blue sleeves, maroon pants,

no hat, clear unshaded glasses and

physically he was of medium build,

approximately six foot tall and had a

beard and mustache. Trooper Kim Smith

testified in he. deposition that she

had her "scanner" on and could hear all

the radio transmissions from the

Brighton Police dispatcher if they were

broadcast (Smith deposition page 33)

(A-86). Both Sgt. Frank Murray and

Trooper Kim Smith testified that they

had no reason to stop or question Mark

Curenton who was standing at the

intersection immediately across the

Street from the turnaround at what

appeared to be the place where a bus

stop would be located, but there was no

bus stop there (Smith deposition page

16) (A-85). Trooper Kim Smith stated

that her attention was drawn to Mark

Curenton, because he was wearing

clothing of different colors. The

location of Mark Curenton while he was

awaiting his transportation with the

Petitioner Edward Murtagh Dempsey was

confirmed by Trooper Kim Smith, Sgt.

Frank Murray, Edward Murtagh Dempsey

and Mark Curenton.

Officer Thomas Sleep denies that

he observed the automobile being driven

by Edward Murtagh Dempsey at any time

before Mark Curenton got into Edward

Murtagh Dempsey's car at the inter-

section, and he indicated under oath,

that the first time he observed Edward

Murtagh Dempsey's car was while it was

stopped in the curb lane when Officer

Thomas Sleep was in the passing lane at

approximately 75 feet or three car

lengths back of the Dempsey's car

(Sleep deposition page 427, 433 & 436)

(A-106, A-107). If Officer Thomas

Sleep was testifying truthfully he

would have to look through cars in the

curb lane which limited his view. He

denies that he saw a trooper car at the

bus loop (Sleep deposition Page 400),

and he claims that Mark Curenton

appeared to be coming through some

bushes at the intersection (Sleep

deposition page 438) (A-107, A-108),

and that he only looked at Mark

Curenton for a few seconds, which was

described as a "fleeting glimpse" by

the Respondent Chief of Police Eugene

Shaw (Shaw deposition page 218).

Officer Thomas Sleep acknowledges that

his only source of description was the

Brighton Police Radio Transmission Tape

(Exhibit B - Radio Transmission Tape

Deposition Exhibit 10 - 11/27/89)

(Excerpts APPENDIX C). The accuracy of

the transcript of the Brighton Police

Radio Transmission Tape was stipulated

to by Jane Conrad, Esq., attorney for

the Respondents, and also Jane Conrad,

Esq., has confirmed that the radio

transmission tapes were the sole source

of description information for the

culprit who robbed the Monroe Savings

Bank branch. Officer Thomas Sleep

acknowledges that his only basis for

picking up Mark Curenton was that he

was black, that he had some blue on,

that he did not see the bottom half of

Marx Curenton (Sleep deposition page

442) (&-110), and he never had a

description of a car being involved in

the robbery, nor that the culprit was

carrying a bag, but he claims that Mark

Curenton appeared to be coming through

some bushes, which testimony is neither

plausable and is contrary to the

testimony of the Petitioner and Mark

Curenton, and the two New York State

Troopers. Petitioner's photographic

exhibits 14, 15, and 16, which are part

of the deposition exhibits taken on

. 3/13/90 and are part of the record.

Tne Respondents acknowledge these

exhibits to be fair and reasonable

representations, nad these photographs

show the location of hedges and bushes

described by Respondent Officer Thomas

Sleep. The Petitioner Edward Murtagh

Dempsey employed a Civil Engineer who

was prepared to do an engineering study

of the intersection, inciuding the

height elevations and the distances of

the two foot hedges from the curb,

which engineering study the Petitioner

and Mark Curenton believe would further

butress the Petitioner's conclusions

that Officer Thomas Sleep testified

untruthfully at his deposition that

Mark Curenton appeared to be coming

through the bushes. Officer Thomas

Sleep further testified that he could

Only see the top half of Mark Curenton

and not the bottom half of Mark

Curenton (Sleep deposition page 442)

(A-110).

Immediately after the robbery,

Officer Thomas Sleep observed Greg

Hammer in the City of Rochester, who he

also claimed was coming through bushes

(deposition transcript page 874) (A-

132), who was well Known to the

Brighton Police Department. Greg

Hammer was a 6'4" black man then

wearing combat boots and a woman's

dress. In accordance with the communi-

cation with Officer Thomas Sleep, Lt.

Thomas Voelkl caused Greg Hammer to be

picked up and taken back to the Monroe

Savings Bank branch for a showup, which

was negative. The basis for the pick

up by Lt. Thomas Voelkl, was t..at he

‘was a black man who he thought had the

capability of robbing the bank (Voelkl

deposition page 888) (A-133). There-

after, Officer Thomas Sleep attempted

to locate two other black men ina grey

Crysler K-Car in the City of Rochester,

and without requesting backup from the

Rochester City Police, he went as far

as the intersection of Goodman Street

and Monroe Avenue, which is approxi-

mately 1.10 miles northwesterly on

Monroe Avenue from the intersection of

Monroe Avenue and Highland Avenue.

After being unable to locate these two

black men, he returned to the Monroe

Savings Bank, which he denies, and he

also denies that he talked with anyone

at Monroe Savings Bank branch as to any

involvement of an automobile. The

Petitioner Edward Murtagh Dempsey

clearly describes the activity of

Officer Thomas Sleep before arriving at

the intersection, contrary to the

deposition statements of Officer Thomas

Sleep that he did not notice Edward

Murtagh Dempsey's dark blue four-door

Toyota before he arrived at the

intersection at a point when Mark

Curenton was getting into the auto-

modile of Eaward Murtagh Dempsey (Sleep

deposition pages 427, 433, 436) (A-106,

A-107).

It is reasonable to conclude, in

view of the testimony of the two New

York State Troopers, Sgt. Frank Murray

and Trooper Kim Smith, as well as the

photographic exhibits 14, 15 and 16,

that Officer Sises did not testify

truthfully for the purpose of articu-

lating reasonable suspicion, that Mark

‘Curenton came through the bushes, and

that he never saw Edward Murtagh

Dempsey's blue car before it stopped.

At the scene where the Petitioner

and Mark Curenton were stopped,

approximately one-half mile east of the

intersection of Highland Avenue and

Monroe Avenue, although backup was

called, no backup was in place when

OfficerThnomas Sleep stopped the

Petitioner and Mark Curenton at gun

point, and through his speaker

(hailer), which speaker he claims may

not have been working contrary to the

testimony of Edward Murtagh Dempsey

(Sleep deposition page 517) (Demspey

deposition page 290) (A-290), ordered

both Petitioner and Mark Curenton to

crawl out of the car and lay on the

grass face down. Officer Thomas Sleep

acknowledges that he did not have any

communications with the Petitoner or

Mark Curenton, nor did he tell them of

the reason for his stop. It is also

undisputed that neither the Petitioner

nor Mark Curenton resisted the commands

of the Brighton Police Officers, and

they complied promptly with every order

of Officer Thomas Sleep, and thereafter

tne Respondents Officer Rooert Hickey

and Sgt. William LaRonde arrived at the

scene, and at least four to six 357

magnum guns were pointed at them while

they laid on the ground in following

the commands of Officer Sleep. Both

Petitioner and Mark Curenton were

patted down and Edward Murtagh Dempsey

states that he was patted down before

he was handcuffed (Dempsey deposition

302) (A-97). In the course of hand-

cuffing Edward Murtagh Dempsey, the

Seienbent Officer Robert Hickey (who

weighs approximately 215 lbs.)

deliberately stepped on the left hand

of Edward Murtagh Dempsey (Dempsey

deposition 298) (A-96) and wrenched up

his right arm in an unnatural way,

which caused Edward Murtagh Dempsey

excruitiating pain. Officer Robert

Hickey claims that in a period of 39

months he had handcuffed a thousand

persons (Hickey deposition 761) (A-125,

A-126), and later reduced the number to

five hundred, and it appears that the

Brighton Police Department does not

generally require the filing of "use of

force reports", although the

Respondents’ expert Inspector Patterson

States that handcuffing is a "use of

force" (Patterson deposition 1130-1131)

(A-140, A-141), and Chief of Police

Eugene Shaw states that "use of force

reports" should have been filed (Shaw

deposition 207-208) (A-90).

Discovery was exceedingly arduous

by reason of the Brighton Police

Department's failure to keep "use of

force reports", including handcuffing

and requiring the Petitioner and Mark

Curenton to lie on the ground, are

sell

unquestionably examples of "use of

force" and such actions should be set

forth in use of force reports. This

policy of the Brighton Police in its

failure to keep proper records made it

exceedingly difficult to fully assess

the propensities of the Respondent

Officer Robert Hickey. The apparent

inability or reluctance of the Brig -on

Police Department to maintain and

‘produce important records contributed

to the difficulty of the Petitioner and

Mark Curenton in securing adequate

discovery to demonstrate the policies

of the Brighton Police Department,

particularly the policies of the

Respondent Chief of Police Eugene Shaw,

who has been with the Brighton Police

Department continuously for approxi-

mately 37 years and has been closeiy

a od a

involved in training and hiring of

police officers for the Brighton Police

Department.

The Brighton Police Officers

refused to withdraw their weapons, in

spite of the requests and even begging

by Edward Dempsey (Dempsey deposition

306) who was terrorized by the aiming

of four to six revolvers at him, one of

Which was held approximately four feet

from his head, notwithstanding that the

Petitioner and Mark Curenton were

unarmed, and Petitioner, Edward Murtagh

Dempsey, was patted down before he was

handcuffed (Dempsey deposition 302) (A-

97). The Petitioner and his passenger

Mark Curenton followed every instruc-

tion of the Respondent police officers

promptly and without struggle (Hickey

deposition 774, 785, 786) (A-126, A-

128), and posed no threat to the police

officers since they were unarmed and in

handcuffs. Admittedly Edward Murtagh

Dempsey was yelling, but he denies that

he was thrashing about as claimed by

Sgt. William LaRonde, because he was

terrorized by the excessive force used

by the Brighton Police Officers who

refused to withdraw their guns and

neither the Petitioner nor Mark

Curenton were told as to why they were

stopped, and both were not free to

leave as is generally admitted by the

Respondent police officers . The

Petitoner and Mark Curenton were

Clearly subject to a defacto arrest and

were not released until after Mark

Curenton was taken back to the bank

more than a hour after the robbery for

a showup, by order of the Respondent

}

Sgt. William LaRonde this showup of

Mark Curenton was conducted more than

an hourstafter the bank robbery, albeit

a short time after the expiration of an

hour, contrary to the applicable

general orders with respect to

"showups" after a crime has been

committed (Voelkl deposition 878).

Upon motions pursuant to Rule 56

of the Federal Rules of Civil

Procedure, the Hon. David G. Larimer

dismissed the action of the Petitioner

Edward Murtagh Dempsey and companion

action as to all respondents (A-77),

(749 F. Sup. 1215). Upon appeal to the

U.S. Second Court of Appeals, Judge

Larimer's decision was affirmed by

decision filed June 3, 1991 (90-9045).

(A-1 through A-4)

ISSUE #1 -

DID THE RESPONDENT SLEEP ACT AS A

REASONABLE AND PRUDENT POLICE

OFFICER IN STOPPING, DETAINING

AND CAUSING THE PETITIONER TO BE

HANDCUFFED, INJURED, USE OF

EXCESSIVE FORCE AND DEFACTO

ARREST, SANS REASONABLE

SUSPICION? (TERRY v. OHIO, 392

U.S. 1)

The watershed case of Terry ve

Ohio, 392 U.S. 1, was a departure from

the protection of the Fourth Amendment

to the United States Constitution when

‘the United States Supreme Ccurt

approved an investigative stop based on

reasonable suspicion ond actinaianin

facts by a prudent police officer. It

has been continually asserted by the

Petitioner that he was subjected to an

unlawful arrest and excessive use of

force which caused resulting injuries

to him in defacto arrest and conduct of

the Brighton Police Officers which

a a iain tained

clearly exceeded the permissible limits

in the exception to the general rule

enunciated in Terry v. Ohio that under

the Fourth Amendment a seizure of a

person is invalid unless justified by

probable cause, Florida v. Royer, 460

U.S. 491, and a myriad number of cases

that have been decided since that time.

Tne Hon. David G. Larimer relied

principally on the case of Terry v.

Ohio as well as the New York State

Court of Appeals case of People v.

Hicks, 68 NY 2nd 241. These cases are

easily distinguishable, for in the

Terry v. Ohio case a seasoned detective

had observed three suspicious persons

for a lenghty period of time before

Subjecting them to an investigative

stop and arrests. There appears to be

no case wherein two innocen*: persons

iid pee

were subjected to a defacto arrest

without probable cause or a reasonable

suspicion, which was precipitated by

the unlawful actions of the Respondent

Officer Thomas Sleep in initiating the

arrest of Edward Murtagh Dempsey and

his companion Mark Curenton because a

bank robbery had occurred an hour

before 4/10ths of a mile away from the

intersection of Highland Avenue and

‘Monroe Avenue in the City of Rochester

and that a black man got into the car

of the Petitioner Edward Murtagh

Dempsey at a point where Mark Curenton

had been standing for not less than 10

minutes in full view of two New York

State Troopers. Mark Curenton was

indeed not coming through bushes in

accordance with the sworn deposition

testimony of Mark Curenton, Edward

Murtagh Dempsey, Trooper Kim Smith and

Sgt. Frank Murray of the New York State

Police, who contrary to the specula-

tions of Jane Conrad, counsel for all

tne respondents, that the New York

State Troopers did not have the same

description of the culprit as broad-

casts over the Brighton Radio. It is

admitted by Officer Thomas Sleep and

his counsel, Jane Conrad, Esq., that

the sole source of Officer Thomas

Sleep's description information of the

bank robber was from the Brighton Radio

Transmissions (APPENDIX C - A-79 to A-

82). The physical description of the

bank robber was vastly different than

the description of Mark Curenton, who

had a beard and mustache, whereas the

bank robber was clean Shaven; Mark

Curenton was medium build and the bank

robber was of thin build, and with

respect to clothing, the Respondent

police officers all grudingly admitted

that the clothing of Mark Curenton did

not match up with the clothing of the

bank robber, Franklin Charles Leonard,

and the Respondent Sgt. William Laronde

attempted to excuse this great variance

of clothing by speculating that Mark

Curenton had 45 minutes to change his

Clothing (A-124). Judge Larimer in his

decision stated in his opinion "it is

undisputed, however, that as Sleep

looked on with mounting interest a man

stopped to pick up Curenton," (A-10)

which is consistent with the testimony

of Edward Murtagh Dempsey, but

diametrically opposed to the deposition

testimony of Officer Thomas Sleep, who

consistently asserted that he only saw

(lal

Mark Curenton for a few seconds when he

was looking through a lane of traffic

and could not see the bottom half of

Mark Curenton, and was advised upon

inquiry that the bank robber was

wearing sunglasses, whereas Mark

Curenton was wearing plain glasses, anc

at no time did Officer Thomas Sleep

acknowledge that he was looking for a

thin face, clean shaven black man (A-

105, A-113), whereas Mark Curenton had

a beard and mustache. Although

absolute immunity is granted to police

officers who testify in court, the Hon.

David G. Larimer by his suis sponte

decision deprived the Petitioner of a

jury trial, when in fact there were

ultimate material facts to be decided

by a jury as to whether Officer Thomas

Sleep was testifying truthfully in view

of the more believable testimony of the

two New York State Troopers, as well as

the Petitioner Edward Murtagh Dempsey

and Mark Curenton. The credibility of

the Respondent Officer Thomas Sleep in

i stating that Mark Curenton was coming

through the bushes is the same type of

testimony which he stated when he

precipitated the pick up of Greg Hammer

as the first black man to be picked up

‘within a few minutes after the crime of

bank robbery was committed, who

according to Lt. Thomas Voelkl acknow-

ledged that Officer Thomas Sleep also

asserted that this first black man was

wearing a blue dress and combat boots

was coming through the bushes in the

City of Rochester (A-132). No where in

the decision of the Hon. David G.

Larimer did he set forth the fact that

Officer Thomas Sleep precipitated the

pick up of Greg Hammer shortly after

the bank robbery, or that thereafter h

attempted to chase two other black men

in a Crysler K-Car, one of whom was

wearing a purple turtleneck sweater,

and that indeed the fourth black man,

namely Mark Curenton, who Officer

Thomas Sleep elected to stop was based

solely on the fact that Mark Curenton

had some blue on and got into a car

driven by the Petitioner Edward Murtag

Dempsey in accordance with his daily

custom, and in initiating the stop he

never informed Edward Murtagh Dempsey

or Mark Curenton as to why they were

stopped; the respondent Officer Thomas

Sleep failed to execute the stop with

backup in place, which could have

easily obviated the full blown defacto

arrest and vicious handcuffing by the

Respondent Officer Robert Hickey, which

caused excruciating pain to the

petitioner, and the unholstering of not

less than four 357 Magnums by Officer

Thomas Sleep and other Brighton Police

Officers.

Jane Conrad in oral argument

before the Hon. David G. Larimer

acknowledged that the fact pattern

‘involved mixed questions of fact and

law, and that she was unable to find a

case where all the actions of the

respondents were present which the

Petitioner and Mark Curenton as

plaintiff assert as violations of the

civil rights of the Petitioner and Mark

Curenton, and it is doubtful that there

is any case wherein there was such a

great departure from the limiting

factors in an investigative stop as

enunciated in the Terry v. Ohio case.

The credibility of the Respondents, as

well as the Petitioner and Mark

Curenton were proper questions for a

jury, and this right has been denied to

the Petitioner and Mark Curenton

through the suis sponte decision of the

Hon. David G. Larimer. It is reason-

able to conclude that police officers

such as the Respondent Officer Thomas

Sleep have not complied with the spirit

and intent of an investigative stop by

his failure to articulate facts

truthfully to support "a reasonable

suspicion" or the higher standard of

probable cause for a "full blown

arrest."

Tne case of People v. Hicks (68

NY2d 234) which was heavily relied upon

;

by the respondents' expert Inspector

James G. Patterson and the Honorable

David G. Larimer, is not in point. In

that case Buffalo Police Officers

stopped a car at 4 a.m. coming from the

direction of the robbery which occurred

approximately 10 minutes before. A car

was described as involved in the

robbery, albeit Rogers Hicks was

driving in a grey Buick instead of a

green Pontiac as described; the police

officers did not unholster their guns;

Rogers Hicks was permitted to park his

car and consented to the being taken

back to the scene within minutes after

being stopped, and the claimed reason-

able suspicion was based on articulable

facts, including the answers that were

elicited from Rogers Hicks to approp-

riate questions of the police officers

who had explained the reason for the

stop, and these black men reasonably

matched*the broadcast descriptions.

Upon the decision of the New York State

Court of Appeals, Rogers Hicks was

tnearcerated and commenced a federal

habeas corpus proceeding pursuant to

Title 28 of the U.S. Code in the U.S.

District Court at Buffalo, New York

which was decided by the Honorable John

Curtin of the United States District

Court for the Western District of New

York at Buffalo on July 27, 1991 (Case

83C-341) which decision and order

denied the petition of Rogers Hicks.

The Order of Judge Curtin was appealed

to the United States Circuit Court of

Appeals for the Second Circuit which

appeal was filed on August 9, 1991

(Case #91-2363.) This habeas corpus

whoh aR phaerncimes Chen Sanaa

proceeding is captioned as Rogers Hicks

vs. Walter Kelley and the Attorney

General of the State of New York Robert

Abrams).

The Honorable David G. Larimer

did not consider the opinion testimony

of the Petitioner's expert Peter L.

Giorgione which was filed in accordance

with the Order of Magistrate Kenneth R.

. Fisher in behalf of the Petitioner,

(APPENDIX E), nor did he consider the

admissions of the Respondents expert

James G. Patterson, the excerpts of

which were part of the record with

respect to the question of excessive

force (A-137-142).

Edward Murtagh Dempsey testified

that he was patted down before he was

handcuffed (A-97). The usual procedure

is to handcuff and then to pat down.

In the instance of patting down both

Edward Murtagh Dempsey and Mark

Curenton no weapons were found and it

was totally unneccessary to be required

to lay down with not less than four 357

Magnums pointed at them or to handcuff

them which is a use of force (A-142).

Clearly all of the respondent police

officers could have recognized that

Officer Thomas Sleep had indeed

precipitated defacto arrests of two

innocent persons without probable cause

and that the search of Edward Murtagh

Dempsey's car and Mark Curenton's gym

bag without permission all in violation

of the Fourth Amendment to the United

States Constitution and the Article 1

Sections 11 and 12 of the New York

State Constitution. The Honorable

David G. Larimer also indicates that

neither Mark Curenton nor Edward

Murtagh Dempsey consulted a doctor or a

psychiatrist and therefore infers that

no damages were caused (A-18). Indeed

the record shows that Edward Murtagh

Dempsey had his hand stepped on by

Officer Robert Hickey deliberately (A-

96), and his arm was wrenched back

benind his back causing him excruciat-

ing pain, albeit the injury and pain

only lasted two days, and the

terrorizing experience caused to Edward

Murtagh Dempsey and Mark Curenton will

undoubtely have an adverse effect for

the remainder of their lives. It is

believed that no court has ever ruled

that no injuries were incurred because

a person did not go to the hospital or

consult a doctor or psychiatrist

after an assault or false arrest, which

Edward Murtagh Dempsey and Mark

Curenton were subjected to. The

decision of the Honorable David G.

Larimer also indicates that all the

respondents deny that Edward Murtagh

Dempsy's hand was stepped on among

other things, but indeed to most

eaterial questions the respondent

officers instead of denying the

allegations of Edward Murtagh Dempsey

and Mark Curenton, continually respond-

ed to questions in their deposition

with the words "I don't recall." the

respondent %fficer Thomas Sleep

answered 14 material questions with

respect to clothing of Mark Curenton;

physical stature of Mark Curenton;

plain glasses of Mark Curenton and the

like as "I DON'T RECALL" (A-109 through

A-118). Even the respondent Robert

Hickey answered material questions such

as whether or not he deliberately

stepped on the hand of Edward Murtagh

Dempsey while handcuffing him in the

same manner, "I DON'T RECALL" (A-126-

127). These answers by the respondents

Officer Thomas Sleep and Officer Robert

Hickey are evasive and suggest that

thereare indeed a serious questions

with respect to ultimate material facts

and serious questions as to the

credibility of some of the respondent

police officers. Tne decision of the

Honorable David G. Larimer is at

variance with the deposition statements

of the parties and non-party witnesses,

for example: The facts material to

this motion are not disputed, for

indeed the facts are disputed (A-7);

Mark Curenton was not wearing blue >

clothing, but a white baseball shirt

with short blue sleeves (A-10); Mark

Curenton did not jump into a waiting

car (A-10)3; "Sleep looked on with

mounting interest", this is not

Supported by any of the testimony of

Officer Thomas Sleep (A-10); descrip-

tion may have been different -- there

is no proof of this finding, and is not

consistent with the Testimony of

Trooper Kim Smith (A-12)3; none of the

respondents deny that Officer Robert

Hickey, including Officer Robert

Hickey, deliberately stepped on the

hand of Edward Murtagh Dempsey (A-14

through A-16); Dorothy Testa did not

describe a car leaving the vicinity of

her home as being driven by a white man

(A-134 to A-136); there are indeed

material disputed facts (A-26).

The Honorable David G. Larimer

States in his decision that

"Plaintiff's papers suggest some type

of racial animus was present in

Singling out Curenton because he was

black. I fail to see how race was a

factor here." The Petitioner and Mark

Curenton both dispute this for in

essence Mark Curenton was subjected to

‘a defacto arrest because he was a black

man who did not in any way match the

description of the bank robber,

Franklin Charles Leonard, except that

he was black, and Edward Murtagh

Dempsey was a white man and was

subjected to a defacto arrest because

he picked up a black man, his co-

worker, in spite of the fact that no

auto was broadcast as being involved in

the robbery. (SEE APPENDIX C).

The testmony of the respondent

~Chief of Police Eugene Shaw illustrates

that there are many black persons in

the Town of Brighton (A -93); and the

deposition testimony of Lt. Thomas

Voelkl indicated that the minority

population of the Town of Brighton is

approximately 10% and that no black

person has ever been employed as a

Brighton Police Officer or support

personnel, in spite of the fact that

there are approximately 40 police

officers and approximately an equal

number of support personnel. There is

at the very least an inference that the

Town of Brighton is not an equal

opportunity employer as alleged by Lt.

Thomas Voelkl (A-130, 131).

ISSUE #2

DID THE DISTRICT JUDGE ERR IN

DETERMINING ULTIMATE FACTS

WITHOUT PASSING ON THE CREDI-

BILITY OF ANY PARTY, OR THE

TESTIMONY OF PETITIONER'S AND

RESPONDENTS' EXPERTS AS TO

PROBABLE CAUSE, ESCESSIVE FORCE,

INTER ALIA, AND DISMISSING THE

PETITIONER'S COMPLAINT SUA

SPONTE?

Tne petitioner contends that there

was indeed a defacto arrest without

probable cause, and that the respondent

. Brighton police officers, particularly

Officer Thomas Sleep and Officer Robert

Hickey, used excessive force, all of

which conduct by respondent Brighton

police officers, and this tortious

conduct is chargeable to the respondent

Brighton Police Force and the respondent

Town of Brighton as violaltions of the

pliantiffs' constitutional rights under

the Fourth Amendment and Fourteenth

Amendment of the United States

Constitution. Although the Federal Rule

of Civil Procedure 56 frequently

involves confusion and uncertainty, in

this application the Honorable David G.

Larimer should have granted the

plaintiffs’ motion for summary judgment

on the questions of defacto arrest and

excessive force, and permitted all other

material questions of fact and damages

to be passed upon by the jury.

The following quotes are derived

from the written opinions of William W.

Schwarzer, United States District Judge

for the Northern District of California,

which are set forth in the "SUMMARY

JUDGMENT UNDER THE FEDERAL RULES:

DEFINING GENUINE RULES OF MATERIAL

FACT", 99 Federal Rules Decisions 465:

469

“ # * The courts have, however,

been uniquely ambivalent

toward Rule 56; their attitudes

range from enthusiastic support

for the economy and efficiency of

Summary judgment to hostility

based on the suspicion that

judges, intent on controlling

their dockets, may use summary

judgment as a "catch penny

contrivance to take unwary liti-

gants into its toils and deprive

them of a trial." See Whitaker v.

Coleman, 115 F.2d 305, 307 (5th

Cir.1940), # # *

II.

WHAT IS A MATERIAL FACT ISSUE

* e H

(1) is there an issue of fact

appropriate for trial and

(2) is that issue material? ***

A. What is a Fact Issue in

Jury Cases

Summary judgment under Rule 56

turns on the absence of an

issue of material fact, but the

rule does not define what is a

fact. This is not surprising;

judges have struggled with that

question for over three hundred

years without reaching a defini-

470

tive resolution. As the Supreme

Court states in Pullman-Stand rd

v. Swint. %56 U.S. 273, 02 35.Ct.

1781, 72 L.Ed.2d 6641981).

The Court has previously

noted the vexing nature of

the distinction between

questions of fact and ques-

tions of law * * *®, Nor do

we yet know of any * *® *

rule or principle that will

unerringly distinguish a

factual finding from a legal

conclusion. *® *® *

* # * The major source of

complexity under Rule 56 is the

treatment of issues of ultimate

fact which may also be called

mixed questions of law and fact.

An ultimate fact, to be

distinguished from historical or

circumstantial facts, is an out-

come determinative fact, derived

from historical facts by a process

which “implies the application of

standards of law." See

Baumgartner v. United States 322

U.S. 665, 64 S.Ct. 1240, 1243, 881

L.Ed. 1525 (1944); Cities Service,

supra, 391 U.S. at 2891, 88 S.Ct,

at 1592; Helvering v. Tex-Penn Oil

Co., 300 G.3. SSt, Sol, SF oett.

569, 574, 81 L.Ed. 755 (1937). It

is a mixture of fact and law; fact

because it is derived by inference

or reasoning from the evidence,

476

477

B. What is

and law because the deriviation is

informed by legal principles and

policies, producing a fact of

independent legal significance.*® *

mace Issue in

isa

Court Case

# * ® Clearly, when a dispute

over historical facts or infer-

“ences raises issues going to the

weight or credibility of testi-

mony, the party opposing the

motion is entitled to confront and

cross-examine witnesses at trial

and the judge must consider their

credibility and demeanor in

finding facts. Anthony v.

Petroleum Helicopter, Inc., 692

F.2d 495 (5th Cir.1982); Beckham

v. Safeco Ins. Co. of America, 591

F.2d 898 (9th Cir.1952); Scharf v.

United States, 587 F.2d 1240, 1243

(9th Cir.1979); National Aviation

Underwriters v. Altus Flyin

Service, Inc., 555 F.2d 778, 784

(10th Cir.1977). In that situa-

tion a trial is required.*® # #

# # ® While discovery is not

a substitute for cross-

examination where credibility or

demeanor are material, it is

adequate to enable an opponent to

meet the merits of the motion.

See Lundeen v. Cordner, 354 F.2d

401, 408 (8th Cir. 1966); subseq.

opinion 356 F.2d 169, 170 (8th

Cir.1966). * # *

Summary judgment should have been

granted in favor of the petitioners on

the questions relating to arrest and use

of excessive force, and in all other

respects there were indeed mixed

questions of fact and law as acknow-

ledged by the respondents' counsel, Jane

Conrad, Esq., in oral argument before

the Honorable David G. Larimer. The

Respondent Officer Thomas Sleep respond-

ed to 14 questions relating to material

facts by continually answering the

questions propounded to him by saying "I

DON'T RECALL" (A-104 through A-118). In

like manner, the Respondent Officer

Robert Hickey answered in the same way

saying "I DON'T RECALL" when answering

three material questions of fact (A-126,

A-127). For these reasons alone the

Petitioner Edward Murtagh Dempsey was

wrongfully denied of his right to a jury

trial, since the credibility of the

respondents, particularly Officer Thomas

Sleep and Officer Robert Hickey's

credibility was never tested by a judge

or by a jury, and all of these

questions, among others, should have led

‘the Honorable David G. Larimer to the

conclusion that indeed there were

ultimate questions of fact that could

not be totally resolved by him solely as

a matter of law.

ISSUE #3

IS THE BRIGHTON POLICE DEPT. AND

CHIEF SHAW ACCOUNTABLE AS RESPONDENT

SUPERIOR DUE TO LACK OF PROPER

TRAINING AS TO THE LAW OF ARREST AND

FAILURE TO MAINTAIN "USE OF FORCE"

RECORDS?

Historically a municipal corpora-

tion, such as the Respondent Town of

Brighton and the Respondent Brighton

Police Department, were generally

entitled to immunity when claims were

made, and there was limited immunity for

police officers. This claim of immunity

virtually foreclosed plaintiffs who

suffered grievances from successfully

bringing actions against municipal

corporations such as towns and police

departments on the theory of Respondeat

Superior or as a result of affirmative

participation in improper conduct or

failures to train or to restrain police

involved in improper or unlawful

conduct. The Supreme Court of the

United States in the case of Monell v.

New York City Dept. of Social Services,

436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 2d

611 (1978), indicated that the long

standing rulings in the Monroe v. Pape,

365 US 167, 5 L.Ed. 2d 492, 81 S.Ct. 473

(1961) were incorrect, and the door was

opened rightfully to hold municipalities

such as towns and police departments

Civilly liable, notwithstanding the fact

that the defense of immunity generally

is raised in any case where a town or

Notwithstanding the fact, as illustrated

in this case, that the inadequate

training of some of the Respondent

rignton Police Officers, as well as the

fRilure to keep adequate personnel

records (A-90, A-140, A-142), and the

general failure to enforce the require-

ment of filing "use of force" reports,

including but not limited to handcuffing

and the like, and the erroneous

teachings of the defendant Chief of

Police Eugene Shaw who asserts that a

person js not arrested unless he is

advised that "you are under arrest",

which teaching is improper and incorrect

(A-90 through A-92, A-105, A-125).

Chief Eugene Shaw has continuously been

a member of the Brighton Police =

Department for more than 30 years and

has been the Chief of Police during the

majority of those years to the date

hereof. The Chief of Police Eugene Shaw

has been responsible for hiring and

approval of general ina as well as

training, notwithstanding the fact that

part of these duties are now delegated

in part to Lt. Thomas Voelkl of the

Brighton Police Department. It appears

that Eugene Shaw had almost a

controlling influence on the Brighton

Town Board in the hiring policies of the

town in employing police officers and

Support personnel. Considering the

admitted facts that the Town of Brighton

has tne largest number of minorities of

any town in the County of Monroe (A-93),

exceeded only by the City of Rochester

and that the minority population

including black persons is approximately

10%, and in view of the further fact

‘that the Brighton Police Department has

never hired a black person either as a

police officer or as support personnel

(A-130, A-131), there is an inference of

bias initiated by the Town of Brighton

and Eugene Shaw as Chief of Police in

maintaining an employment policy of

minorities as an "inexorable zero", a

term which appears to nave been used for

the first time by the United States

Court of Appeals for the 5th Circuit in

the case of United States of America

T.I.4.8.<D.€.. Int.» S17 F.2d £99

(1975).

The testimony of one of the

principal Respondent, Officer Thomas

Sleep, illustrates that he also

erroneously believes that a person is

not under arrest unless that person

subjected in a defacto arrest is so

advised (A-105). One would suspect that

this policy of the Brighton Police

Department relating to arrest and

failing to advise persons as to the fact

that they are under arrest may have

something to do in circumventing the

clear mandate of the Supreme Court of

the United States in the Miranda

decision. In the case herein, it is

clear that Respondent Officer Sleep did

not have bonafide articulable facts upon

which he could initiate a lawful

investigative stop as enunciated in the

case of Terry v. Ohio, 392 US 1 (1968),

and Officer Sleep appears to wrongfully

assert that a suspect is "coming through

the bushes" to fabricate an articulable

fact as he had in the stopping of the

first black man Greg Hammer (A-132), as

well as the stopping one hour later of

Mark Curenton (A-107), and Officer Sleep

apparently does not follow the

procedures for a felony stop (A-93),

Since he did not have backup in place

wnen he stopped the Petitioner Edward

Murtagh Dempsey or his companion Mark

Curenton, and this was further

illustrated by his failure to call upon

the City of Rochester Police for

"backup" when he was attempting to stop

two black men in a Crysler K-Car in the

City of Rochester long before the time

that he precipitated the stop of Edward

Murtagh Dempsey and Mark Curenton. If

Officer Thomas Sleep had followed proper

procedures in securing "backup" in place

before forcing the plaintiff Edward

Murtagh Dempsey and Mark Curenton to get

out of Edward Murtagh Dempsey's car and

to lie on the ground at gun point, it is

reasonable to conclude that such

terrorizing procedures would not have

been necessary, and Edward Murtagh

Dempsey would not have been handcuffed

after he was patted down (A-97) in

violation of proper police procedures

under the circumstances, and there would

not have been any danger to the

Respondent Brighton police officers at

the scene of the stop had Officer Thomas

Sleep followed correct Police

procedures, which apparently are also

not enforced by the Brighton Police

Department. In addition, it was clearly

improper for the defendant Sgt. William

LaRonde to require the plaintiff Mark

Curenton to go to the Monroe Savings

Bank for a showup in violation of the 45

minute rule which is a rule in the

County of Monroe (A-117, A-121) and a

part of the training procedure adopted

by the Monroe County Police Academy. In

fact, Mark Curenton was forceably taken

to the Monroe Savings Bank for a

"showup" more than a hour after the bank

robbery occurred, albeit, a short time

in excess of one hour, notwithstanding

that all of the Srighton Officers at the

scene of the defacto arrest transaction

could have and should have seen that in

no way did Mark Curenton match the

description of the bank robber Franklin

Charles. Leonard, including clothing

description which was at great variance

of the description broadcast over the

Brighton Police Radio after the bank

robbery, and it appears as a general

policy that clothing descriptions are

generally ignored by the Brighton Police

Department as is illustrated by the

testimony of Sgt. LaRonde that Mark

Curenton "had 45 minutes to change his

clothes". Notwithstanding the great

variance in clothing, none of the

Brighton Police Officers who partici-

pated in the transaction can ignore the

fact that the bank robber was of thin

build and was clean shaven, whereas Mark

Curenton had a beard and mustache and

was of medium build, which should have

fe a an eae hn IS Nisan Nei tant aes tam We alte Fe

ae te Maal aD chs Wa 0. Nc 2

2s St

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59°

eliminated him as a possible suspect as

illustrated by the testimony of two New

York State Troopers, namely Trooper Kim

Smith and Sgt. Frank Murray. It appears

that the only common demoninator used in

stopping Mark Curenton was that he was

black as was Greg Hammer the first black

person who was picked up at the

Suggestion of Officer Thomas Sleep, and

the two other black men in a Crysler K-

Car, which Officer Thomas Sleep there-

after pursued were black, as was Mark

Curenton.

If the decision of the sénorabie

David G. Larimer is allowed to stand,

then this case will become a leading

case utilized by alli police departments

to excuse actions by individual police

officers which far exceed the limits of

"Terry vs. Ohio" and will subsequently

create an errosion of the 4th Amendment

rights to which citizens operating

automobiles on the highway are entitled

to expect under the Bill of Rights.

Respondent Officer Robert Hickey

acknowledges that he handcuffed 500 to

1000 persons in a 30 month period, but

there is a dearth of "use of force"

reports filed by Officer Thomas Sleep,

Officer Robert Hickey and others, which

illustrates a clear policy of the

Brighton Police Department not to

enforce the requirement of filing use of

force reports or may even be a

deliberate policy not to maintain these

important records as a matter of fact.

Discovery disclosed that the

Petitioner Edward Murtagh Dempsey and

the Plaintiff Mark Curenton, through

their investigation and discovery, would

ilhsetliy Sr Mati: at IR LT bonne e

ee ae

Se Ne eee ee ~

have been able to demonstrate clearly to

a jury that the Town of Brighton and the

Brighton Police Force should be held

accountable for the following reasons:

Failure to maintain use

of force reports and failure

to require the filing of

such reports.

Failure to instruct

police officers as *o the

correct law pertaining to

the law of arrest.

Failure to comply with

the "45 Minute Rule" for

taking a suspect back to the

scene.

Failure to require

police officers to request

"back-up" where a claimed

felony stops are antici-

pated.

A total failure to

employ qualified minority

persons as police officers

or support personnel, in

spite of the fact that the

Town of Brighton has a

minority population of

approximately 10%.

Failure to censure or

discipline police officers

who violate the civil rights

of citizens under the 4th

and 14th Amendments to the

United States Constitition

and Article I Sections 11

and 12 of the New York State

Constitution.

There is an inference

that some of the Brighton

Beat! ~ Sie a debt,

Police Officers fabricate

alleged articulable facts to

erroneously fit within the

frame work of Terry v. Ohio.

Significant cases which have been

decided under the claim of immunity or

qualified immunity are set forth as

follows: People v. Henley, 53 N.Y.2d

403, 442 N.Y.S.2d 428 (1981); City of

Canton, Ohio v. Harris, --- U.S.---, 109

S.Ct. 1197, 103 L.Ed 2d 412 (1989);

Monell v. New York City Dept. of Social

Services, 436 U.S. 658, 98 S.Ct. 2018,

56 L.Ed. 2d 611 (1978); Milligan v. City

of Newport News, 743 F.2d 227, 230 (4th

Cir. 1984); Pembaur v. City of

Cincinnati 475 U.S. 469, 480, 106 S.

Ct. 1292, 1298, 89 L.Ed. 2d 452(1986);

Bordanaro v. McLeod, 871 F.2d 1151 (1st

Cir. 1989); Rodriguez v. Avita, 871 F.2d

552, 555 (5th Cir. 1989), cert. denied,

110 S. Ct. 156, 107 L.Ed. 2d 114 (1989);

Wellington v. Daniels, 717 F.2d 932 (4th

Cir. 1983).

There are a plethora of cases

which have been decided since Terry v.

Ohio, and there appears to be no

uniformity in the decisions. Each case

appears to be decided on its own factual

pattern, but in this case the factual

pattern far exceeds any limitating

factors enunciated by Terry v. Ohio.

See United States v. Jackson, 652 F.2d

244 (2d Cir. 1981), U.S. v. Glenna, 878

F.2d 967 (7th Cir. 1989) and Dunaway v.

New York, 442 U.S. 200, 99 S.Ct. 2248,

60 L.Ed.2d 824 (1979).

The factual pattern which is

material in this case as to whether the

all the respondents should be held

responsible for the tortious acts of its

4 police officers inflicted upon the

; innocent petitioner, the respondents

assert that this incident is a single

act. The Petitioner can demonstrate

otherwise, if ne is accorded his right

hil ntti OH stadt

to a jury trial to determine material

factual questions which are in dispute.

CONCLUSION

For the foregoing reasons, this

Petition for certiori should be granted.

Respectfully submitted,

Charles B. Kenning, Esq.

Counsel for Petitioner

1008 Times Square Building

Rochester, New York 14514

Telephone: (716) 325-4550

Dated: August 26, 1991

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Filed June 3, 1991

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 3rd day of June, one thousand nine

hundred and ninety-one.

Present:

HONORABLE RICHARD J. CARDAMONE

HONORABLE LAWRENCE W. PIERCE

HONORABLE DANIEL M. FRIEDMAN*

Circuit Judges,

MARK S. CURENTON; EDWARD MURTAGH

DEMPSEY,

Plaintiffs,

EDWARD MURTAGH DEMPSEY,

Plaintiff-Appellant,

TOWN OF BRIGHTON; EUGENE SHAW; CHIEF OF

POLICE OF THE TOWN OF BRIGHTON; TOWN OF

BRIGHTON POLICE DEPARTMENT; Officers

THOMAS SLEEP; ROBERT E. HICKEY; FRED J.

MELLINI; Sergeant WILLIAM LARONDE; DOES

1 THROUGH 6,

Defendants-Appellees.

A-2

E R

ORDE

- 90-9045

ORD

Docket No

ene Plaintiff Edward Murtagh Dempsey

appeals from a judgment of the United

States District Court for the Western

District of New York (Larimer, J.),

entered October 29, 1990, granting

Summary judgment sua sponte in favor of

defendants Thomas Sleep, Robert E.

Hickey, Fred J. Mellini, William

LaRonde, and Does 1 through 6, granting

the summary judgment motion of the

above-named defendants and defendants

the Town of Brighton; Eugene Shaw, Chief

of Police of the Town of Brighton; and

the Town of Brighton Police Department,

and dismissing appellant's 42 U.S.C.

Section 1983 claim.

We affirm the judgment of the

A-3

district court substantially for the

reasons stated in Judge Larimer's

thorough opinion dated October 29, 1990,

noting only that whether the detention

of appellant was an investigative stop

Or arrest, the district court correctly

concluded that the individual defendants

-- Thomas Sleep, Robert E. Hickey, Fred

J. Mellini, William LaRonde, and Does 1

through 6, were entitled to qualified

immunity, see Warren v. Dwyer, 906 F.2d

70, 74 (2d Cir. 1990); Robison v. Via,

821 F.2d-913, 921 (2d Cir. 1987). Thus

plaintiff's false arrest claim was

correctly dismissed as to him. We have

considered plaintiff's other arguments

and conclude they are without merit.

The judgment of the district court

is accordingly affirmed.

A-4

s/Richard J. Cardamone

Richard J. Cardamone, U.S.C.J.

s/Lawrence W. Pierce

Lawrence W. Pierce, U.S.C.Jd.

s/Daniel M. Friedman

Daniel M. Friedman, U.S.C.J.

* Daniel M. Friedman, United States

Circuit Judge for the Federal Circuit,

sitting by designation.

A-5

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDWARD MURTAGH DEMPSEY,

Plaintiff,

TOWN OF BRIGHTON, EUGENE SHAW,

Chief of Police of the Town of Brighton,

Officers THOMAS SLEEP, ROBERT E. HICKEY

and FRED J. MELLINI, Sergeant WILLIAM

LA RONDE, and JOHN DOES 1 tnrough 6,

Defendants.

MARK S. CURENTON,

Plaintiff,

TOWN OF BRIGHTON, EUGENE SHAW,

Chief of Police of the Town of Brighton,

Officers THOMAS SLEEP, ROBERT E. HICKEY

and FRED J. MELLINI, Sergeant WILLIAM

LA RONDE, and JOHN DOES 1 through 6,

Defendants.

DECISION AND ORDER

Civ. 88-726L - Civ. 88-930L

| A-6

Plaintiffs Edward Murtagh Dempsey

and Mark S. Curenton brought these two

actions pursuant to 42 U.S.C. Sections

1981, 1983, 1985 and 1988 to recover

damages allegedly suffered when

defendant officers of the Brighton, New

York, Police Department mistakenly

detained them upon suspicion of bank

robbery.

Plaintiffs move for eaetint

Summary judgment on their claims of

false arrest and excessive force.

Defendants cross-move for partial

Summary judgment on the issues of

negligent training and supervision. For

the reasons that follow, I find that

this incident was an investigatory stop

made upon appropriate reasonable sus-

picion, and consequently grant summary

judgment in favor of the defendants and

Mae BS eee

A-7

dismiss the complaint.

I. BACKGROUND

Tne facts material to this motion

are not disputed. This is a case of

mistaken identity. It arises out of the

June 12, 1987 detention of plaintiffs by

members of the Brighton, New York,

Police Department on suspicion of bank

robbery.

A. The Facts

On June 12, 1987, at approximately

1:30 in the afternoon, a man entered the

Monroe Savings Bank on Monroe Avenue in

Brighton and handed the teller a note.

The note, written on a brown paper bag,

directed the teller to hand over all of

her one, five and ten dollar bills.

Although the bank robber made referenced

to a gun during the course of the

hold-up, nO weapon was actually seen.

A-8

Eyewitnesses agreed that the robber

placed the cash in a paper bag and fled

the bank of foot heading toward the City

of Rochester.

Immediately after the robbery, the

branch manager of the bank notified the

Brighton Police Department of the

incident and gave the police dispatcher

a description of the robber. The

initial information broadcast to the

Brighton police units on patrol describ-

ed the robber as "a young black male

wearing a blue jacket, unknown is a

weapon was shown. Last seen heading

towards the city on foot on Monroe

Avenue." Radio Transmission Tape for

June 12, 1987, Tape 2, at 2.

Several minutes later, the police

dispatcher broadcast the following

description of the robber:

APSE ohne

hae asa die

A-9

You are looking for a male

black, 6 foot, slim built,

wearing a long-sleeved purple

shirt, blue jeans, tan hat

with a chin strap, sunglasses.

Do not have a description on

any vehicle. Last seen on

foot towards the city on

Monroe Avenue. A gun was

threatened but none displayed.

Radio Transmission Tape, Side A, Tape 2,

at 11.

Brighton Police Officer Thomas

Sleep, a seventeen year veteran with the

force, was assigned to patrol the area

near the bank. About an hour after the

robbery, as police combed the area for a

suspect, Officer Sleep spotted plaintiff

Mark S. Curenton ("Curenton"), a black

man, at the corner of Highland and

Monroe Avenues. This location is about

four-tenths of a mile "towards the city"

of Rochester from the bank. According

to Officer Sleep, Curenton--who stands

A-10

about six feet tall and was wearing blue

Clothing and su -glasses--emerged from

some shrubbery near the street corner

carrying a bag and jumped into a waiting

car. Deposition of Thomas Sleep,

November 27, 1989, at 438-40, 460-63;

Radio Transmission Tape, Side A, Tape 2,

at 17-18. Curenton strongly denies that

he came out from behind bushes. Rather,

Curenton claims that he was standing on

the curb or sidewalk when Officer Sleep

first saw him. Deposition of Mark S.

Curenton, February 17, 1988, at 13-14;

deposition of Edward M. Dempsey,

November 22, 1989, at 283-84.

It is undisputed, however, that as

Sleep looked on with mounting interest a

compact blue Toyota driven by a white

man stopped to pick up Curenton. The

driver and owner of the car was

A-11

plaintiff Edward Murtagh Dempsey

("Dempsey"), a friend and college

Classmate of Curenton's. It was

apparently the two men's custom to meet

each day at an appointed time near the

Monroe-Highland intersection in

question. Dempsey would then pick up

Curenton and the two would drive

together to the local lumberyard where

they both worked. Officer Sleep, mis-

takenly suspecting that he had picked up

the trail of robbery suspects, followed

Dempsey and Curenton for a short

distance in his police cruiser. Before

long, Sleep determined to stop the two.

Defendants acknowledge that two

New York State Police troopers in

separate cruisers were also patrolling

the vicinity of Monroe and Highland at

this time. The troopers apparently

A-12

spotted Curenton, but concluded that he

did not fit their description of the

bank robber. However, it appears that

their description of the robber may have

been different then the one Sleep had

because the state tresses did not

receive the Brighton police radio

frequency.

After a call to Brighton Police

headquarters confirming the bank

robber's description and requesting

help, Sleep turned on his flashers and

pulled over Dempsey's Toyota.

Sleep acted under so-called

"felony-stop" procedures, which the

Brighton police are trained to employ in

potentially violent encounters. Under

these procedures Sleep, without leaving

his cruiser's side, unholstered his gun

and over the cruiser's pubdlic address

On wa Le eet

A-13

system ordered Dempsey to throw his keys

out of the driver's window. Dempsey did

so. Sleep then ordered both Dempsey and

Curenton to put their hands on the car's

windshield where he could see them.

they did so. Lastly, the policeman

ordered Curenton, and then Dempsey, to

Crawl out of the passenger's side of the

Toyota and lay face down on the grass.

Still at gunpoint, plaintiffs complied.

Wnile all this was occurring,

backup arrived in the form of defendant

Officers Robert E. Hickey and Frederick

J. Mellini. More officers may have come

onto the scene shortly thereafter.

These officers approached plaintiffs

with weapons drawn, in order to search

them. During this time the police

maintained that they kept their guns

trained on plaintiffs for no more than a

A-14

couple of minutes, until plaintiffs were

handcuffed and searched. Plaintiffs say

it was longer.

Though the plaintiffs apparently

put up no resistance, it is undisputed

that Dempsey was yelling ard thrashing

about. Dempsey Deposition at 307;

Deposition of Frederick Mellini,

November 27, 1989, at 584; Deposition of

Robert Hickey, November 27, 1989, at

796. Dempsey also demanded that the

Brighton Town Supervisor, a friend of

Dempsey's, be contacted. Dempsey

Deposition at 307.

Dempsey claims that one of the

officers deliberately stepped on his

nand while he was on the ground; for

their part, each officer involved in

this incident denies the charge. It is

also a fact, however, that plaintiff did

A-15

not seek, or require, medical treatment

after this incident.

The officers then handcuffed the

plaintiffs’ wrists behind their backs

while they conducted a pat-down search

of plaintiffs. The officers claim that

plaintiffs were handcuffed only a minute

or two, until it was determined that

plaintiffs were unarmed. The plaintiffs

allege that they were handcuffed for

approximately ten minutes. In any

event, it seems clear that the officers

uncuffed the two men upon finding no

weapons on then.

Sergeant William LaRonde, another

member of the Brighton police force,

arrived as the plaintiffs were being

handcuffed. Sergeant LaRonde ordered

Officer Mellini to take Curenton to the

Monroe Savings Bank for a shoOw-up

A-16

identification. LaRonde gave this order

based on information he received from a

police investigator at the bank that a

blue compact car, driven by a white man,

may have been involved and based on his

belief that Curenton matched the general

description of the bank robber. Deposi-

tion of William LaRonde, November 27,

1989, at 645. A witness told the

investigator that she saw a blue compact

car, driven by a white man, speed away

from the bank's vicinity immediately

after the robbery.(1)

At Sergeant LaRonde's direction,

Officer Mellini placed Curenton in a

police cruiser and took him to the bank

(1) However, Officer Sleep did not know

about the blue "get-away" car when he

stopped plaintiffs. This information

had not yet been broadcast over the

police radio.

tee al lo erin Kemetic

A-17

for a show-up identification. It is

unclear whether the officers told

Dempsey that he was free to leave at

this time. In any event, Dempsey

remained at the stop site to wait for

his friend. Curenton was not taken to

the bank in handcuffs. Curenton Deposi-

tion at 30; Hickey Deposition at 792.

In fact, he was completely cooperative

with the police. At the bank, eye-

witnesses advised Mellini that Curenton

was not the robber.

Mellini then returned to the point

where the stop occurred. Dempsey was

waiting with several officers. The

officers claim that they apologized, and

that Dempsey shrugged the whole thing

off, joking that he had received harsher

treatment from his mother. Mellini

Deposition at 582, 587-88. Plaintiffs

A-18

now deny this. Dempsey Deposition at

308, 316-18. In the end, plaintiffs

drove off to work.

It is undisputed that the entire

incident lasted approximately twenty

minutes. It is similarly undisputed

that at no time did the officers tell

plaintiffs that they were under arrest

or give any Miranda warnings. It also

appears undisputed that piaintiffs were

not physically injured in any way. No

medical treatment was requested or

sought by plaintiffs. Finally, though a

television news crew with a camera

appeared briefly on the scene, it is

uncertain whether it shot any footage.

If it did, any resulting film was

apparently never aired. It is undisput-

ed that no one who personally know

€ither of the pliantiffs witnessed this

A-19

incident.

About two months later, Franklin

Charles Leonard confessed to the Monroe

Savings Bank robbery. He is now in

jail.

B. The vawsuit

Plaintiff Dempsey initiated this

action on July 7, 1988, claiming

violations of his Constitutional rights

by the defendants, the Town of Brighton,

its chief of police and certain of the

Town's police officers. Plaintiff

Curenton commenced a parallel action on

August 31, 1988. By order dated January

11, 1989, this court consolidated these

actions.

Plaintiffs claim that the

individual police defendants violated

their civil rights by mistakenly

A-20

subjecting them to a full arrest without

underlying probable cause and by

employing excessive force. Plaintiffs

also claim that their civil rights were

violated by the town, its police

department and its police chief, in that

these parties engaged in a policy of

failing to train or supervise the

Brighton police officers involved in the

incident, which failure resulted in

discrimination against plaintiffs on the

basis of race. Defendants deny all

this, and claim that the incident was

merely an investigative detention made

upon the appropriate level of reasonable

suspicion.

Plaintiffs move for partial

Summary judgment, praying in essence

that I find that this incident was an

arrest, and that the police must

A-21

consequently demonstrate the higher

standard of probable cause to justify

the seizure. Defendants cross-move for

partial summary judgment on the issues

of negligent training and supervision.

II. DISCUSSION

A. Summary Judgment: The Legal

Standard

The purpose of a summary judgment

motion "is to isolate and dispose of

factually unsupportable claims...."

Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Federal Rule of Civil

Procedure 56(c) requires the court to

grant summary judgment if the evidence

offered demonstrates "that there is no

genuine issue as to any material fact

and that the moving party is entitled to

judgment as a matter of law." The

A-22

burden of demonstrating the lack of any

genuine issue of material fact rests on

the moving party. Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970).

Ambiguities or inferences to be drawn

from the facts must be viewed in a light

most favorable to the party opposing the

Summary judgment motion. Id. However,

a non-moving party may not rely on mere

conclusory allegations but must set

forth "concrete particulars" to defeat

Summary judgment. Project Release v.

Prevost, 722 F.2d 960, 969 (2d Cir.

1983).

It is well settled that "summary

judgment may be rendered in favor-of the

opposing party even though he has made

no formal cross-motion under Rule 56."

10A C. Wright, A. Miller & M. Kane,

Federal Practice and Procedure, Section

A-23

2720, pp. 29-30 (2d ed.1983). See also

Lowenschuss v. Kane, 520 F.2d 255, 261

(2d Cir.*1975) (sua sponte award of

summary judgment in favor of non-moving

party appropriate); Local 33, Intl. Hod

Carriers Bldg. & Common Laborers' Union

of America v. Mason Tenders Dist.

Council of Greater New York, 291 F.2d

496, 505 (2d Cir. 1961)("(I)t is most

desirable that the court cut through

mere outworn procedural niceties and

made the same decision as would have

been made had defendant made a cross-

motion for summary judgment.")

A motion for summary judgment

searches the record. American Camping

Ass'n, Inc. v. Whalen, 554 F. Supp. 396,

399 (S.D.N.Y. 1983); McGovern v. Blaha,

496 F.Supp. 964, 965 (W.D.N.Y. 1980); In

re AP Industries, Inc., 117 B.R. 789,

A-24

796 (Bankr. S.D.N.Y. 1990). If

undisputed facts are found which, when

applied to the law, indicate that

judgment against the moving party is

appropriate, Rule 56(c) will operate to

grant summary judgment in favor of the

non-moving party. See Project Release

v. Prevost, 722 F.2d 960, 969 (2d Cir.

1983)(a district judge may grant summary

judgment to a nonmoving party, if no

genuine issues of material fact have

been shown.) "The making of a motion

for summary judgment exposes the moving

party to the risk that summary judgment

will be granted against him, if the

submissions make clear that there is 'no

genuine issue as to any material

fact....'" Siderius, Inc. v. M.V. "Ida

Prima", 613 F. Supp. 916, 923 (S.D.N.Y.

1985).

A-25

Tne practice of allowing summary

jugment to be entered for the non-moving

party in the absence of a formal cross-

motion is in keeping with the objective

of Rule 56 to expedite the disposition

of cases. 10A C. Wright, A. Miller & M.

Kane, Federal Practice and Procedure,

Section 2720, p.33 (2d ed. 1983). It is

also in keeping with the mandate of Rule

54(c) requiring the court to grant the

relief to which a party is entitled

"even if the party has not demanded such

relief in his pleadings." id.

A district court also possesses

the power to grant summary judgment sua

sponte when neither party has moved for

such relief. Celotex Corp. v. Catrett,

477 U.S. at 326; 10A C. Wright, A.

Miller & M. Kane, Federal Practice and

Procedure, at 27-29. In Celotex, 477

A-26

U.S. at 3261, Chief Justice Rehnquist

stated that "district courts are widely

acknowledged to possess the power to

enter summary judgments sua sponte, so

long as the losing party was on notice

that she had to come forward with all of

her evidence." The Second Circuit has

said that "(a) court may grant summary

judgment sua sponte when it is clear

that a case does not present an issue of

material fact." Project Release v.

Prevost, 722 F.2d 960, 969 (2d Cir.

1983).

Applying these principles in the

instant case, I conclude that the

undisputed material facts mandate the

entry of summary judgment for defendants

on plaintiffs' federal civil rights

clais. The parties have been given

ample opportunity to discover and

a vit

etn rN ol

A-27

present evidence designed either to

support or refute the respective

requests for summary judgment.(2)

Despite extensive discovery and nearly

one thousand pages of deposition

testimony, memoranda and pleadings

submitted by plaintiffs' counsel,

plaintiffs have failed to raise a

(2) In fact, discovery in this

matter has been exhaustive. Plaintiff

Dempsey submitted five sets of inter-

rogatories, three notices to admit, and

has deposed fourteen individuals.

Additionally, over the course of this

litigation, plaintiffs' counsel has

submitted numerous repetitive and con-

Clusory affidavits concerning his legal

and factual contentions. In particular,

plaintiffs’ counsel filed three

supplemental affidavits in support of

plaintiffs' motion for partial summary

judgment anc in opposition to

defendants' cross-motion.

A-28

genuine issue as to any material

fact.(3)

Moreover, plaintiffs were

certainly on notice that they had to

come forward with all of their evidence

as to the issues concerning false arrest

and excessive force. Plaintiffs were

the ones moving for summary judgment on

these issues. In their view, the

undisputed facts were such that the

Court should rule as a matter of law

that the confrontation between

plaintiffs and the police was tantamount

to an arrest and therefore it could only

be justified if there was probable

(3) In fact, plaintiff Curenton's

counsel acknowledges that there is no

genuine issue of fact concerning the

events of June 12, 1987. Affidavit in

Response to Defendants' Motion for

Summary Judgment, p. 2, paragraph 5.

A-29

cause. Because of plaintiffs' motions,

I have searched the record and, based on

the undisputed material facts, I

conclude that the seizure was reasonable

under the Fourth Amendment as an

investigatory stop. Just because I

disagree with plaintiffs' legal con-

clusion from the undisputed facts does

not mean that I am precluded from

granting summary judgment against the

moving party on this issue. -The record

indicates that all the facts necessary

for the disposition of this case are

beyond dispute. No further refinement

of the factual record or legal argument

could serve to alter the Court's

conclusion that plaintiffs are not

entitled to prevail on this complaint.

A-30

The Police Acted Reasonably

In Stopping Plaintiffs Dempsey

and Curenton

The principal issues framed by the

parties is whether the stopping of

Dempsey and Curenton was an

investigatory stop or an arrest.

Plaintiffs claim that as a matter of law

the stopping and detention was tanta-

mount to an arrest. In plaintiffs' view,

because there was an absence of probable

cause to support the arrest, they are

entitled to a finding in their favor as

to liability. Defendants contend that

the contact between plaintiffs and the

police was not an arrest but merely an

investigatory stop justified by the

peculiar circumstances of the case.

Because this dispute arises by

means of cross-motions for partial

Summary judgment, the court must also

ot ah A

A-31

consider carefully whether these issues

can be resolved by the court as a matter

of law or whether they should be left

for the jury. Plaintiffs claim that

their view of the case warrants a

finding as a matter of law that the

confrontation was an arrest requiring

probable cause. The undisputed material

facts, however, lead to a different

conclusion.

An unfortunate as the events of

June 12, 1987 may have been to

plaintiffs, nevertheless, I believe that

as a matter of law the police conduct

here was reasonable and proper. In my

view, the detention of plaintiffs was an

investigatory stop based on articulable

facts and, as a matter of law, was

reasonable under Fourth Amendment

Standards.

A-32

The Fourth Amendment guarantees

citizens the right to be free from

"unreasonable" searches and seizures.

This case must, of course, be viewed in

the context of the Fourth Amendment.

Accordingly, the Court must determine

whether the stopping of Dempsey's

vehicle by the police, the detention of

the two men for approximately twenty

minutes and the transportation of

Curenton to the bank constituted an

unreasonable seizure.

It is clear that Curenton and

Dempsey were not in fact formally

arrested. They were not taken to the

station house, booked and charged with a

crime. Plaintiffs were free to go after

the questioning and show-up had achieved

their purpose. It is also clear,

however, that the police "seized" them

A-33

as that term is understood under the

Fourth Amendment. "'(W)henever a police

officer accosts an individuai and

restrains his freedom to walk away, he

has "seized" that person.'" Michigan v.

Summers, 452 U.S. 692, 696, n.5

(1981)(citing Terry v. Ohio, 392 U.S. 1,

16 (1968)). But this does not end the

inquiry, rather it is the place to

begin.

The question, therefore, is act-

ually not whether Dempey and Curenton

were under arrest, it is whether their

admitted seizure by the police was

reasonable under the circumstances.

Analysis of this issue must begin

with Terry v. Ohio, 392 U.S. 1 (1968).

The Supreme Court's landmark decision in

Terry recognized that a police officer

has the right to stop and detain

A-34

citizens if the officer's action was

reasonable. The police must be able to

point to “specific and articulable facts

which, taken together with rational

inferences from those facts, reasonably

warrant that intrusion." Id. at 21.

This is not a subjective standard but an

objective one.

In evaluating whether the seizure

was reasonable under the Fourth Amend-

ment, there is a two-part inquiry.

First, the court must determine whether

the officer's action was justified at

its inception and, second, whether the

action was reasonably related "in scope"

to the circumstances which justified the

interference in the first place. Id. at

20; United States v. Alexander, 907 F.2d

269, 272 (2d Cir. 1990).

Terry created an exception to the

A-35

general rule that under the Fourth

Amendment a seizure of a person is

invalid unless justified by probable

cause. As the Supreme Court noted in

Florida v. Royer, 460 U.S. 491, 498

(1983), under Terry, "certain seizures

are justifiable under the Fourth

Amendment if there is articulable

Suspicion that a person has committed or

is about to commit a crime."

Terry involved a brief encounter _

On the street between a police officer

and a suspect. It is clear, however,

that investigatory stops need not be so

Fleeting. See United States v. Sharpe,

470 U.S. 675, 682-86 (1985) (twenty

minute investigative detention without

interrogation was reasonable). More-

over, the "scope" of the intrusion that

is permitted "will vary to some extent

A-36

with the particular facts and circum-

stances of each case." Royer, 460 U.S.

at 500. In Royer, the Supreme Court

Summarized the rule concerning the

length of the detention.

(A)n investigative detention

must be temporary and last no

longer than is necessary to

effectuate the purpose of the

stop. Similarly, the investi-

gative methods employed should

be the least intrusive means

reasonably available to verify

or dispel the officer's

Suspicion in a short period-of

time.

460 U.S. at 500.

Two recent Supreme Court cases,

United States v. Sharpe, supra, and

Graham v. Connor, 109 S.Ct. 1865 (1989),

have further clarified what is permitted

during an investigatory stop.

In Sharpe, the Court made it clear

that the length of the detention alone

does not transform an investigatory stop

A-37

into an arrest. 470 U.S. at 685-86; see

United States v. Place, 462 U.S. 696,

709, n.10 (1983). The Supreme Court

Stated:

If the purpose underlying a

Terry stop -- investigating

possible criminal activity --

is to be served, the police

must under certain circum-

Stances be able to detain the

individual for longer than the

brief period involved in Terry

Sharpe, 470 U.S. at 685-86 (quoting

Michigan v. Summers, 452 U.S. 692, 700,

n.12 (1981)).

In Graham v. Connor, 109 S.Ct.

1865 (1989), the Supreme Court

established the parameters by which all

Section 1983 claims involving excessive

force during the course of an arrest or

an investigatory stop are to be

measured. The Court rejected the "sub-

Stantive due process" analysis of

A-38

Johnson v. Glick, 481 F.2d 1028 (2d

Cir.), cert. denied, 414 U.S. 1033

(1973). Instead, the Court held in

Graham that any analysis concerning

whether the force used was excessive

must begin with traditional Fourth

Amendment principles. 109 S.Ct at 1870.

The Supreme Court concluded that "all

(Section 1983) claims that law

enforcement officers have used excessive

force--deadly or not--in the course of

an arrest, investigatory stop or other

"seizure' of a free citizen should be

analyzed under the Fourth Amendment and

its ‘'reasonableness' standard, rather

than under a ‘substantive due process'

approach." Id. at 1871 (emphasis in

original).

Accordingly, the reasonableness of

the force used must be balanced against

A-39

the circumstances of the case. Whether

the force used to effect a particular

seizure is "reasonable" “requires a

careful balancing of ‘'"the nature and

quality of the intrusion on the

individual's Fourth Amendment

intereste*’ against the countervailing

government interest at stake." Grahan,

109 S.Ct. at 1871 (quoting Tennessee v.

Garner, 471 U.S.1, 8 (1985)).

- The reasonableness standard

employed in such cases is an objective

one and is made without reference to the

officer's underlying intent or motiva-

tion. In other words, this standard

must be judged from the perspective of a

reasonable officer on the scene, "rather

than with a 20/20 vision of hindsight."

Graham, 109 S.Ct. at 1872. The Supreme

Court also noted that ‘'(t)he calculus of

A-40

reasonableness must embody an allowance

for the fact that police officers are

often forced to make split-second

judgments--in circumstances that are

tense, uncertain and rapidly evolving--

about the amount of force that is

necessary ina particular situation."

Id.

Displaying a weapon relates to the

amount of force that may be reasonably

used to effect the stop. The fact that

officers unholstered their weapons in

effecting a Terry stop does not

automatically elevate the stop to an

arrest. United States v. Harley, 682

F.2d 398, 401 (2d Cir. 1982); United

States v. Buffington, 815 F.2d 1292,

1300 (9th Cir. 1987) (no arrest when

defendants "forced from their car and

made to lie on wet pavement at

A-41

gunpoint"); United States v. Jacobs, 715

F.2d 1343, 1345-46 (9th Cir. 1983) (no

arrest ween suspect removed from car at

gunpoint and ordered to "prone out" on

ground).

Whether it is reasonable to

display a weapon depends on the crime

being investigated, the place and time

of the stop as well as the reaction of

the suspect. Id. at 402. As the Second

Circuit noted in Harley, "(w)hat might

be unreasonable when an officer merely

Suspects that a minor offense has been

committed is not unreasonable when, as

here, officers have reason to fear that

a suspected criminal is armed." Id. If

there is sufficient reasonable suspicion

to justify an investigatory stop,

reasonable force may be used to effect

that stop. Id. at 402.

A-42

Likewise, the handcuffing of a

Suspect does not convert a stop into a

arrest. See, e.g., United States v.

Glenna, 878 F.2d 967, 972 (7th Cir.

1989); United States v. Bautista, 684

F.2d 1286, 1289-90 (9th Cir. 1982),

cert. denied, 459 U.S. 1211 (1983). In

addition, a person is not under arrest

simply because he is placed in a police

patrol car. See, e.g., United States v.

Parr, 843 F.2d 1228, 1231 (9th Cir.

1988).

Applying the principles establish-

ed in the cases cited above, it is my

view that under Fourth Amendment

Standards, the stopping and seizure of

Dempsey and Curenton for a period of

about twenty minutes while Curenton was

taken to the bank for viewing was

reasonable.

A-43

1. The Stop

Under the first part of the

analysis, I must determine if the

initial stop was reasonable and justi-

fied. On the facts presented here, I

find as a matter of law that the stop

was reasonable. The officers were

investigating a serious crime -- armed

bank robbery -- that had occurred less

than an hour earlier, about four tlocks

from where the plaintiffs were initially

spotted. The fact that a known crime

had occurred is very important and

distinguishes this case from others

where the police had no independent

evidence that a crime had occurred

before they confronted a suspect.

The contact took place just a few

blocks from the crime scene in the

direction that the robber reportedly had

A-44

fled. The undisputed evidence is that a

black man robbed the bank. Plaintiffs'

papers suggest some type of racial

animus was present in singling out

Curenton because he was black? I fail

to see how race was a factor here. The

police knew that the perpetrator was

black. It would have been folly for

them to look for anyone other than a

person fitting the general description

of the robber. If there had been no

description of the robber as black, it

might well have been impermissible to

Single out black men but that is

certainly not what occurred in this

case.

Based on the descriptions of the

robbery suspect given over the police

radio, it was reasonable for Officer

Sleep to believe that he had a basis to

A-45

stop and investigate Curenton. Radio

broadcasts after a robbery are not

always models of precision and clarity.

In the often frenzied and fast

developing circumstances immediately

following a robbery, police officers

often must rely upon sketchy information

in an attempt to apprehend the

perpetrators.

The description broadcast over the

police radio described the robber as a

young black male, about six feet tall

with a slim build wearing a long-sleeved

purple shirt, or possible a blue jacket,

a hat and sunglasses. The suspect was

also described as having threatened a

gun, although one was not displayed.

Officer Sleep saw Curenton and believed

he matched the general description of

the robber. He described Curenton as a

A-46

black male, about six feet tall, wearing

blue clothing and sunglasses. He also

Saw that Curenton was carrying a bag.

Sleep's interest was further aroused

when he saw Curenton jump into a waiting

car. It is also important to keep in

mind that all of this transpired within

four tenths of a mile from the bank.

Sleep made a decision to stop

Curenton and investigate further, but

Only after first confirming the

Suspect's description with the dis-

patchner. Considering all the informa-

tion available to Sleep, his decision to

stop the plaintiffs and investigate was

justified. The only other choice that

Sleep had at the moment was simply to

let the car drive away and perhaps be

lost forever.

Having made the decision to stop

A-47

Dempsey's vehicle, Sleep then had two

choices: He could saunter up to the car

Window afd confront the two unknown men

or he could take reasonable precautions

for his safety and the safety of

bystanders before he investigated

further. I cannot fault Sleep under the

facts here for choosing the latter

course. Sleep had articulable facts

amounting to a suspicion that one of

these men had just committed armed

robbery. Based on these facts, it was

not unreasonable for Sleep to suspect

that the other man was a cohort, driving

the get away vehicle. In my view, it

would have been unreasonable for Sleep

not to take precautions to protect

himself and bystanders. See Harley, 682

F.2d at 402 ("In weighing the conduct of

the officers involved, we must give due

A-48

consideration to their experienced

judgment.")

Further, the Brighton Police

Department's felony-stop procedures are

designed to guard against the special

dangers faced by police when attempting

to approach suspects in automobiles.

Terry recognized that it is unreasonable

for courts to require police officers to

take "“unneccesary risks in the per-

formance of their duties." Id. at 23.

Cases are legion that support that

principle. See Harley, 682 F.2d at 402

("We would be heartless if we did not

share the officers’ concern for their

own safety.... (W)e cannot impose on law

enforcement personnel the hobson's

choice of keeping their guns holstered

when to do so ‘increases the risk that

they will be shot.'")

he oC ae

A-49

The Second Circuit recently noted

in Alexander that it was not unreason-

able for investigating officers to

protect themselves by unholstering their

guns especially in a car-stop situation

which is “especially hazardous and

Supports the need for added safeguards.”

Alexander, 907 F.2d at 273. In

Alexander, the officers stopped the

Suspect's car, approached him with guns

drawn, removed him from the car and

frisked him. The Court of Appeals

Stated:

There are no hard and fast

rules for evaluating the

conduct of law enforcement

officers conducting investi-

gative stops. (Citations

omitted.) A law enforcement

agent, faced with the -possi-

bility of danger, has a right

to take reasonable steps to

protect himself and an obliga-

tion to ensure the safety of

innocent bystanders, regard-

less of whether probable cause

A-50

to arrest exists. (Citations

omitted.) The officer need

not be absolutely certain that

the individual is armed; the

issue is whether a reasonably

prudent man in the circum-

stances would be warranted in

the belief that his safety or

that of others was in danger.

(Citation omitted.)

Alexander, 907 F.2d at 272.

In the case before me, I do not

find that the amount of force used by

these officers to freeze the situation

upon their first contact with plaintiffs

was excessive as a matter of law.(4).

(4) Plaintiff Dempsey also claims

that the police used excessive force =

when one of the officers allegedly

stepped on his hand as the police were

attempting to handcuff him. The

officers deny intentionallyi stepping on

Dempsey's hand. At best it was

inadvertent.

Accepting plaintiff's facts

are true, this can hardly be called

excessive force. "'Not every push or

shove, even if it may later seem

(continued...)

A-51

2. The Show-up

The next iss.e is whether the

police were reasonable in transporting

Curenton to the bank and in detaining

Dempsey during that process. The

parties agree that the entire stop,

detention and show-up taok no more than

20 minutes.

(4)(...continued)

unnecessary, in the peace of a judge's

chambers,' violates the Fourth Amend-

ment." Graham v. Connor, 109 S.Ct.

1854, 1872 (1989) (quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir.),

cert. denied, 414 U.S. 1033 (1973)).

This alleged use of excessive

force took place while officers were

attempting to handcuff Dempsey, who at

that point was yelling and may have been

thrashing about. The police also

suspected that he might be armed. Since

the officers reasonably suspected that a

gun was involved in the crime, they were

entitled to use reasonable force to

Carry out their lawful duties to prevent

a dangerous confrontation and to

investigate possible criminality.

A-52

Based on the circumstances facing

the officers at the time and based on

20/20 hindsight, the officers'

transportation of Curenton to the scene

is precisely what should have been done

under the circumstances. The quickest,

least intrusive way of determining if

Curenton was in fact the robber was to

take him to the bank for a viewing by

the tellers who witnessed the robbery.

Courts have time and again approved on-

the-scene showups, occurring reasonably

soon after the crime, as one of the best

ways not only to catch the criminal but

also to exonerate the innocent. People

v. Hicks, 68 N.Y.2d 241, 242-43 (1986);

United States v. Bennefield, 741 F.

Supp. 1002, 1006 (D. Mass. 1990)

("(W)here the innocent may have been

mistakenly apprehended, prompt

Lu shore Manbethenetal ls a

A-53

identification allows the police to

realize their error and to continue

their search while the criminal is still

within easy reach.").

Within a matter of minutes,

Curenton was taken a few blocks back to

the bank, viewed by the victim teller

and exonerated. The justification for

taking Curenton back to the bank is

strengthened by the fact that Sergeant

LaRonde, who ordered that Curenton be

transported to the bank for the show-up,

was aware that a blue "get-away" car may

have been involved. LaRonde Deposition

at 645. Sergeant LaRonde ordered the

show-up based on his belief that

Curenton matched the general description

of the bank robber and his knowledge

that a blue compact car, driven by a

white man, may have been involved in the

A-54

robbery. LaRonde Deposition at 645.

Curenton was not taken to the bank

in handcuffs and, in fact, accompanied

the officer without objection. He was

completely cooperative with the police.

Immediately after the show-up exonerated

Curenton, the police returned him to

Dempsey's vehicle and both men departed

for work.

The police acted reasonably here.

The scope of the detention was limited.

Curenton was not interrogated for long

periods of time; he was given a prompt

explanation as to why he was taken to

the bank and he was never taken to a

police station or other location for

questioning.

People v. Hicks, supra, decided by

New York's highest court about a year

before the stop of Dempsey and Curenton,

A-55

is squarely on point. In that case, the

New York Court of Appeals conceded that

probable cause was lacking to arrest

Hicks. But, based on the description of

the robber, che court held then it was

reasonable to stop the defendant and

return him to the scene for viewing by

the robbery victims. Hicks discussed

the same issue presented here, that it,

what are the bounds of a "prolonged"

Terry stop. Hicks, 68 N.Y.2d at 241.

The Court of Appeals upheld the show-up

procedure not only because its purpose

was to confirm or dispel reasonable

suspicion quickly, but also because the

authorities knew that a crime had

actually been committed, the period of

detention was brief, the crime scene to

which defendant was taken was very

Close, and eye witnesses were there.

A-56

Kicks, 68 N.Y.2d at 243.

Nor does the fact that the

detention included transport-

ing defendant to the crime

scene render the seizure

unreasonable. There were

witnesses within a quarter

mile of the place of inquiry -

- approximately one minute

away by car -- who had just

seen the perpetrators and

would either identify

defendant (in which event he

would be arrested) or not

identify him (in which event

he would be released). A

speedy on-the-scene viewing

thus was a valuable to law

enforcement authorities and to

defendant and was appropriate

here.

The factors in Hicks that made the

show-up reasonable in that case are also

present here. The police action was

aimed at confirming or dispelling

reasonable suspicion quickly. The

Brighton Police officers knew that the

crime of armed robbery had actually been

committed; the total period of detention

A-57

was about 20 minutes, the crime scene to

which Curenton was taken was very close,

and eyewitneses were there; and finally

there is no proof of significantly less

intrusive means available to accomplish

the same purpose.

Finally, I note that neither

plaintiff appears to have alleged any

damage--aside from the loss of a few

minutes--other than the injury to his

dignity. Under the circumstances, it

appears then that the actions taken by

the officers were successful both in

minimizing danger to themselves and harm

to plaintiffs. Their conduct also

resulted in the prompt release and

exoneration of Curenton.

A-58

C. Qualified Immunity

I believe that under applicable

precedent, the Brighton Police were

reasonable in stopping pliantiff's

vehicle and in transporting Curenton a

few blocks to the bank for viewing by

bank employees. In addition, I believe

that summary judgment for the individual

officers is also appropriate because on

these undisputed facts the officers had

qualified immunity from any civil

actions relating to their conduct.

Questions of immunity should be

resolved at the earliest possible stage

of the litigation so that an officer who

is immune from suit will not have to

proceed through a lengthy trial to

establish that fact. Qualified immunity

is not really an affirmative defense but

A-59

is more in the nature of a bar to suit.

Mitchell v. Forsyth, 472 U.S. 511, 526-

27 (1985). "“(T)he defense has been

denstree as an immunity from suit not a

mere defense to liability." Warren v.

Dwyer, 906 F.2d 70, 74 (2d Cir. 1990).

If there are no material disputed

facts to be resolved, then the decision

concerning qualified immunity is a

question of law for the court to decide.

Finnegan v. Fountain, No. 89-7832, slip

op. at 6676 (2d Cir. October 1, 1990).

The standard for determining

Qualified immunity in federal court,

"was designed to facilitate resolution

of the defense on a motion for summary

judgment." Warren, 906 F.2d at 74. In

Warren, the Second Circuit stated that

the "better rule" is for the Court to

decide the issue of qualified immunity

A-60

as a matter of law, "preferably ona

pretrial motion for summary judgment."

906 F.2d at 76. See also Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)

(the qualified immunity test "permits

the resolution of many insubstantial

claims on summary judgment").

The standard for determining

whether gualifed immunity applies is now

well established. In Warren, a recent

case concerning a Section 1983 suit for

false arrest, the Second Circuit

Summarized the applicable principles:

Government officials perform-

ing discretionary functions

are shielded from personal

liability "insofar as their

conduct does not violate

clearly established statutory

or constitutional rights of

which a reasonable person

would have known." Harlow v.

Fitzgerald, 567 U.S. B00, 818

(1982). Even where the law is

"clearly established" and the

scope of an official's

A-61

permissible conduct is "clear-

ly defined," the qualified

immunity defense also protects

an official if it was

"objectively reasonable" for

him at the time of the

challenged action to believe

his acts were lawful.

Anderson v. Creighton, 483

U.S 635, but C16 1987) (explain-

ing Harlow v. Fitzgerald, 457

U.S. at 800); Robison v. Via,

821 F.2d 913, 920-21 (2d Cir.

1987) (acknowledging three

avenues of relief).

906 F.2d at 74.

A grant of summary judgment is

appropriate if the defendant official

"adduce(s) sufficient facts (such) that

no reasonable jury, looking at the

evidence in the light most favorable to,

and drawing all inferences most favor-

able tc, the plaintiffs, could conclude

that it was objectively unreasonable for

the defendant to believe that he was

acting in a fashion that did not clearly

violate an established federally

A-62

protected right." Robison, 821 F.2d

921. It is also well established that

an officer is entitled to qualified

immunity as a matter of law if the

undisputed facts and all permissible

inferences show either (a) that it was

objectively reasonable for the officer

to believe that probable cause existed,

or (b) that officers of reasonable

competence could disagree on whether

there was probable cause or, in this

case, whether there was a reasonable

Suspicion under Terry v. Ohio standards.

Robison, 821 F.2d at 921.

In the case, I believe that the

officers acted "reasonably" under the

Fourth Amendment standards in stopping

the plaintiffs to investigate the

robbery. But, even if I had determined

that there was not a sufficient basis

A-63

for the stop or that the stop was too

long, I still believe that the officers

| have qualified immunity because it was

objectively reasonable for Officer Sleep

to believe that his actions were lawful.

Robison made it clear that if officers

of reasonable competence disagree as to :

the propriety of the stop, then an

officer who made the decision to stop

would be protected. 6821 F.2d at 921.

It is, of course, a well

established right that a citizen cannot

be arbitrarily stopped by the police

without some legitimate basis. But it

has been recognized, at least since the

Supreme Court's decision in Terry v.

Ohio, that the police may detain

Suspects, even though there is no

probable cause for arrest, as long as

the officer has a reasonable suspicion

A-64

based on articulable facts that criminal

activity is involved.

In my view, it was objectively

reasonable for Officer Sleep to believe

that under established legal principles

he could stop the plaintiffs to

investigate the bank robbery. As

discussed above, the description of the

robber and the description of Curenton

were similar enough to justify a

reasonable officer in stopping and

detaining the plaintiffs. Frankly,

based on what has occurred and based on

the information that Sleep had, it may

well have been a dereliction of duty for

him to have simply let Curenton drive

away.

t was objectively reasonabie for

the police to believe that a short

detention to investigate a serious crime

A-65

was permissible. In People v. Hicks,

Supra, the New York Court of Appeals,

one year before this incident, specifi-

cally authorized such a detention for

the purpose of a viewing by the victin.

It is hard to imagine how the officers

could believe their conduct to have been

illegal in light of the Hicks case and

in light of the Supreme Court's decision

in Terry. Both cases would seem to

authorize the very police action that

occurred here.

The fact that other competent

officers might have acted differently is

not controlling. Under Robison, if

reasonably competent officers could

differ on the approach, an officer

should not be penalized with potential

civil liability for choosing one of the

posible modes of action. Accordingly,

A-66

summary judgment must be granted in

favor of the defendant officers of the

Brighton Police Department.

D. Municipal Liability Under

Section 1953

Neither a muncipality nor its

Supervisory police personnel may be

vicariously liable for the actions of a

policeman allegedly constituting a

Section 1983 violation, unless the

injured plaintiff can show the existence

of an offical policy or custom that the

municipality sanctioned or ordered.

City of Canton, Ohio v. Harris, 109

S.Ct. 1197, 1203 (1989); Pembauer v.

City of Cincinatti, 475 U.S. 469, 480

(1986); Monell v. Dep't to Social

Services, 436 U.S. 658 (1978); Fiacco v.

City of Rensselaer, 783 F.2d 319 (2d

Cir. 1986), cert. denied, 480 U.S. 922

A-67

(1987).

Plaintiff must also show a "causal

link" between the alleged custom or

policy and the allege Section 1983

violation and concomitant harm. In

short, "a muncipality can be liable

under Section 1983 only where its

policies are the ‘moving force behind

the violation.'" City of Canton, 109

S.Ct. at 1205 (quoting Monell, 436 U.S.

at 694). Vicarious or respondeat

Superior liability will not attach under

Section 1983. Id. at 1203.

Moreover, "(o)nly where a

municipality's failure to train its

employees in a relevant respect

evidences a ‘deliberate indifference' to

the rights of its inhabitants can such a

shortcoming be properly thought of as a

(municipal) 'policy or custom' that is

A-68

actionable under Section 1983." Id. at

1205. The Supreme Court has stated that

it will not suffice "to prove that an

injury or accident could have been

avoided if an officer had had better or

more training.... Such a claim could be

made-about almost any encounter result-

ing in injury." Id. at 1206.

Plaintiffs have alleged a policy

here, but only in very conclusory terms.

They appear to argue that insufficient

training and supervision has caused the

Town of Brighton's police department to

harass black persons, because of their

race, in vivlation of their civil

rights.

Aside from the fact that plaintiff

Dempsey (who is white) most likely has

no cause of action in this regard,

plaintiffs have not pointed to

A-69

sufficient evidence giving rise to an

inference of policy. One statement of

Chief Shaw which is singled out by

plaintiffs--that suspects apprehended by

Brighten police are not "under arrest"

until they are so informed--does not

represent a policy of the Town, nor does

it appear to be a prescription for

constitutional violations.(5)

(5) In support of their motion

for summary judgment, the municipal

defendants submitted the affidavits of

officers involved in this incident, as

well as Thomas M. Voekl, a lieutenant

responsible for staff services, includ-

ing coordination of officer training.

These affidavits set forth at length the

Brighton Police Department's extensive

training program, its procedures for

responding to a bank robbery and its

policies regarding a felong vehicle

pull-overs and approaches, arrests and

detention, and the use of firearms.

Plaintiffs have not proffered any

evidence to dispute the defendants’

Substantial evidence that its officers

are properly training and supervised.

(...Continued)

A-70

In Vippolis v. Village of

Haverstraw, 768 F.2d 40 (2d Cir. 1985),

cert. denied, 480 U.S. 916 (1987), the

Second Circuit reversed a district court

for failing to dismiss a complaint

arising out of a false arrest incident.

The plaintiff in Vippolis made a showing

that the defendant muncipality hired the

offending officer knowing his training

to be insufficient--but nonetheless was

reversed because he made no showing that

such deficient training was a general

municipal policy:

(5) (...-Continued)

Nor have they specifically identified or

offered proof of a custom or policy

which authorizes police officers to

harass blacks or to use excessive force

in confrontations with citizens,

particularly blacks.

A-71

For a victim of police

brutality to establisn the

requisite causal connection

between his injuries anda

municipal policy of inadequate

training, he must make some

showing that the specific

deficiencies in the training

given police officers led the

misbehaving officer to engage

in the alleged misconduct.

The record contains no

evidence concerning the police

procedures covered by the

training program to show, for

example, that the program

would have instructed (the

officer) how to make arrests

and how to subdue an abusive

suspect....Under these circum-

stances, a jury could not

rationaly find that the

municipal defendants' failure

(caused plaintiff's) injuries.

768 F.2d at 44-45.

Powell v. Gardner, 891 F.2d 1039,

1045 (2d Cir. 1989), presents a similar

case. There, "a directed verdict in

favor of the County on (the Section 1983

claim) was proper...because the record

is devoid of evidence...that (plaintiff)

A-72

was injured as the result of a municipal

custom or policy, and because we are

unpersuaded that (plaintiff) was unfair-

ly denied the opportunity to present

such evidence."

I note that in the case at bar, as

far as plaintiff's opportunity to

present such policy evidence goes,

plaintiff has submitted close to one

thousand pages of depositions, memoranda

and pleadings. Despite the voluminous

submission, plaintiffs have failed to

furnish any evidence of a municipal

policy or custom. See Walden v.

Wishengrad, 745 F.2d 149, 153 (2d Cir.

1984) ("(since plaintiff) has not

pleaded or shown by affidavit any facts

which indicate that her allegedly

unconstitutional arrest was the product

of official government policy....the

A-73

district court properly granted summary

judgment"); Rodrigues v. Avita, 871 F.2d

552, 554-(S5th Cir.), cert. denied, 110

S. Ct. 156 (1989) ("In ‘cases invoking

42 U.S.C. Section 1983 we consistently

require the claimant to state specific

facts, not merely conclusory allega-

sions. **)

Finally, the only specifie act

illustrating the policy complained of by

plaintiffs is the incident itself. This

is not enough. A “single incident

alleged in a complaint...especially if

it involved only actors below the

policy-making level, generally will not

suffice to raise an inference of a

custom or policy." Powell, 891 F.2d at

1045; Fiacco, 783 F.2d at 328. See also

Rodriguez v. Avita, 871 F.2d at 555

(claim of inadequate police training

A-74

insufficient because the pleading "does

no more than describe a single incident

of arguably excessive force applied by

one officer--a description decked out

with general claims of inadequate

training and gross negligence, all

concededly stemming from the single

incident and nowhere else."

Plaintiffs have failed to produce

any evidence as to deficient training

and supervision except this single

incident. Therefore, defendants' cross-

motion for summary judgment is granted.

Plaintiff's claims against the Town of

Brighton and the Chief of Police, Eugene

Shaw, are dismissed.

aI =

A-75

E. Pendent State Claims

Plaintiffs also seek compensatory

and punitive damages based on state law

Claims of assault, emotional distress,

false arrest and detention, and

malicious prosecution.(6) Having

determined that plaintiffs' federal

Claims must be dismissed, and there

being no diversity of citizenship

between the parties, the court declines

(6) In a Section 1983 action for

malicious prosecution, as well as in a

New York state tort action for malicious

prosecution, the plaintiffs in order to

prevail must establish four elements:

"(1) that the defendants either commenc-

ed or continued a criminal proceedings

against them; (2) the proceeding

terminated in their favor; (3) there was

no probable cause for the criminal

proceeding; and (4) the criminal

proceeding was initiated out of actual

malice.” Angel v. Kasson, 581 F. Supp.

170, 175 n.9 (N.D.N.Y. 1983)( citing

(Continued...)

A-76

to take jurisdiction of the state law

claims. "It is well settled that ‘if the

federal claim are dismissed before trial

- « the state claims should be

dismissed as well.'" Town of West

Hartford v. Operation Rescue, No. 89-

9051, slip op. at 6893 (2d Cir. October

10, 1990), citing United Mine Workers v.

Gibbs, 383 U.S. 715, 726 (1966). This

decision is in keeping with the

principle that "(n)eedless decisions of

State iaw should be avoided both as a

matter of comity and to promote justice

between the parties, by procuring for

them a surer-footed reading of

(6) (Continued...)

Singleton v. City of New York, 632 F.2d

185, 195 (2d Cir. 1980)). Since no

criminal proceeding was initiated or

continued against plaintiffs, this claim

must fail.

A-77

~ 4 6 wa Naer a carmasibvea!

applicable law." Robison v. Via, 821

F.2d at 925. Accordingly, the

plaintiffs' state law claims are

dismissed.

III. CONCLUSION

Plaintiffs' motion for partial

Summary judgment as to the issues of

false arrest and excessive force is

denied. Defendants' cross-motion for

partial summary judgment on the issues

of negligent training and supervision is

granted. With regard to the plaintiffs'

remaining federal claims, the Court

grants summary judgment in favor of the

defendants dismissing plaintiffs'

federal claims and pendent state claims.

Plaintiffs' action against all

defendants is dismissed in its entirety.

A-78

The above shall be entered in both Civ.

88-726L and Civ. 88-930L.

IT IS SO ORDERED.

s/David G. Larimer

DAVID G. LARIMER

UNITED STATES DISTRICT JUDGE

DATED: Rochester, New York

October 29, 1990

P.5

A-79

APPENDIX C

EXCERPTS OF BRIGHTON POLICE

RADIO TRANSMISSIONS FROM

TAPES ON JUNE 12, 1987

The only description I have

is a young black male wearing a

blue jacket, unknown if a weapon

was shown. Last seen heading

towards the city of foot on Monroe

Avenue.

770 for a description. Got

a male black, he had dark

Sunglasses on, a blue hat, a

burgundy shirt with long sleeves.

Looks like a turtleneck.

What was the physical clothing

description again, 70?

He had dark glasses on, blue

hat, burgundy shirt with long

sleeves and possibly a turtleneck.

P.5

P.6

A-80

I am trying to get some more here.

Uh, just before that

description was put out, there was

a vehicle, uh, a K-car

Silver or gray K-car, went

westbound, came off of Highland

Avenue. Had two male blacks in it

one which had either a maroon or

burgundy style long-sleeve shirt

On westbound on Monroe Avenue. I

didn't see if they went down

Culver Road or went westbound into

the city. I am going down Monroe

Avenue now westbound.

770, he is about 6'1", 6'2",

very thin, blue jeans. He hada

hat on, uh, one -= the other

victim is saying it is tan with a

Strap underneath it, under his

chin. No gun was displayed.

A-81

However, one was threatened.

P.11 You are looking for a male

biack, 6 foot, slim built, wearing

a long-sleeved purple shirt, blue

jeans, tan hat with a chin strap,

Sunglasses. Do not have a

description on a vehicle. Last

seen on foot towards the city on

Monroe Avenue. A gun was

threatened but none displayed.

P.11 Do you have any description

of a vehicle?

P.1i2 Negative. Last seen on foot

going around behind the bank on

St. Regis. That is the last they

saw of him.

P.12 Any facial hair.

P.12 Negative, No facial hair.

P.17 773, would the subject by any

chance we wearing glasses?

P.17

A-82

Say it again.

773 to 70, was that subject

wearing dark glasses by any

chance?

That is affirmative, dark

sunglasses.

Okay. A male black just

jumped into a car. I am going --

he is going on Highland Avenue.

Up by Chadbourne, male black. Had

a blue --something blue on. I

couldn't get a good look at hin.

I will be stopping him on Highland

Avenue east of Chadbourne.

Purple shirt, blue jeans,

tan hat with chin strap. Okay. I

will be stepping out with a black

male at Monroe and Silver. Blue

jeans, blue shirt, tan jacket.

A-83

APPENDIX D

THE FOLLOWING QUESTIONS AND ANSWERS ARE

QUOTED FROM DEPOSITION TRANSCRIPT

TESTIMONY AND REFERENCES ARE TO PAGES

THEREOF

EXCERPTS OF DEPOSITION TESTIMONY

OF TROOPER KIM SMITH TAKEN ON

SEPTEMBER 21, 1989

Q. Can you tell us in your own

words what you observed?

A. I observed a biack male

standing on the corner. I believe

he was holding something in his

hand. I am not positive of that.

He was dressed in -- all I can

recall at this time is that it was

kind of wild clothing, bright.

The pants didn't match the shirt.

They were both colored and printed

in some way. (P.13)

Q And what directed your

attention to this gentleman stand-

ing on the corner?

A-84

A. Just the color of the

clothing; that it was loud

clothing. It caught your atten-

tion. (P.15).

Q. His clothing, did it match

the description over the radio

that you were given of the

Culprit?

A. No, Sir. (P.15).

Q. Can you recall now as to

how the description of the culprit

that you were given over the radio

matched up with the description of

the gentleman who was standing on

the corner?

x No, sir. I recall at the

time making the decision that he

did not fit the description I had

been given. I don't recall what

the description I had been given

A-85

was. (P.15).

With reference to the black

Man that you Saw Standing at the

intersection, can you tell us

whether he was on the grass in

accordance with_ your recollection

or on the sidewalk or on the curb?

I can't recall. I recall it

appeared like he was waiting for a

bus but there was no bus stop at

that location. I don't know if he

was on the paved sidewalk or on

the grass on either side of the

Sidewalk. (P.16).

At any time during your

observation, did you see him come

from behind some bushes?

No, he was standing in plain view

the whole time. (P. 16-17)

Were you able to hear their

£)

A-86

radio communications?

Apparently that says I did --

let me read that again. Yes I had

a scanner in my vehicle and I

overheard Brighton PD had stopped

a suspect vehicle. (P.33)

Would you have been able to

hear, then, the descriptions being

given out by the Brighton police

dispatcher?

MS. CECERO: If they were being

given.

If they were being given out?

Yes. (P.33)

EXCERPTS OF DEPOSITION TESTIMONY

OF LISA ANN FIORDELISO DUNN (Bank

Teller) TAKEN ON NOVEMBER 21, 1989

Now, did you observe what type

of clothing he had on?

Yes. He has on a purple

A-87

Sweater with like black polka dots

in it and it was a long-sleeved

Sweater, and I thought that was

strange because it was warm. It

was a warm day. (P.77-78)

And what was the color,

what was the principal color?

It was a purple with like

black polka dots in the material.

(P.78)

He was clean-shaven, that

is your best recollection?

Yes. (P.85-86)

EXCERPTS OF DEPOSITION TESTIMONY

OF SGT. FRANK MURRAY TAKEN ON

NOVEMBER 22, 1989

Did you observe anybody standing

at the corner?

When?

irae aia

A-88

During the time you were in

the loop.

Yes, I did. (P. 141)

And was he standing by the corner?.

He was standing by the inter-

section. I thought he was stand-

ing at a bus stop. I don't know

if he-- (P.142)

Did you notice whether he had

a beard or not?

I think he may have. (P.143)

Well, did the person standing

on the corner appear to have a

description identical or similar

to the person who they described

as being the bank robber?

In my opinion, no. (P.144)

It isn't necessary to arrest

somebody to say, “You are under

arrest"; am I right?

A-89

No. (P.165)

Okay. So if these men had,

in fact, handcuffs on them, they

were under restraint, they were

not free to go; am I correct?

If they were what you Say,

I would believe that to be

correct, yes. (P.165)

And that would in fact be an

arrest; am I correct?

Yes. (P.165)

Well, the information you

had over the police radio gave you

a description of the culprit who

robbed the bank?

Yes. (P.167)

And so you were able to formulate

an idea as to whether the

description of the culprit who

robbed the bank was different than

A-90

the description of Mark Curenton,

who was standing at the corner?

Yes. (P.167)

EXCERPTS OF DEPOSITION TESTIMONY

OF EUGENE SHAW, CHIEF OF POLICE,

TAKEN ON NOVEMBER 22, 1989

And the Town of Brighton keeps

use of force information in normal

course of business; am I right?

And I am referring to the police

force.

Yes, sir. (P.208)

Does an arrest require the

words that "You are under arrest"?

I would say yes. (P.211)

That is the point. But when

you are pointing a gun at

somebody, is it not a duty of the

A-91

police officer to advise them as

to why they're being stopped?

No, sir. The duty of the police

officer at at that time is, number

one, protect himself. (P.215)

Well, you say you have to use

the word “arest";

That is correct. (P.219)

And if you don't --

Yes, that is my terminology of

arrest; that you must say "arest”".

(P.219)

Well, do you make recommenda-

tions based on your experience?

I believe it is normal practice

to say to anybody you take into

custody that "Your are under

arrest," because at that time you

have to give him the Miranda

rights so that they don't make a

A-92

Statement that incriminates them-

selves. (P.221)

Okay. Now, you have taken

courses as to what constitutes

arrest; am I right?

— a long time, but I

have. (P.223)

And it's your testimony that

you have to use the magic words

"you are under arrest" before

somebody actually is under arrest?

That is my thinking. (P.223)

Okay. And is that the thinking

of the police officers in your

department?

I would hope so. (P.223)

But he didn't tell you where

he was when he first observed

Murtagh Dempsey?

Mr. Dempsey here? (P.235)

A-93

That is right.

I believe it was when the car

Stopped and Mr. Curenton came out

and got in. I believe that was

the first observation. (P.236)

All right. What is the population

of the Town of Brighton, approxi-

mately?

Probably between 35 and 40,000

people. (P.236)

I see. So there are many blacks

in Brighton, am I correct?

Blacks, Orientals, Indians.

(P.236)

And under the procedure, he

would then wait for backup to

arrive before he proceeds?

That would be the wise thing

to do. (P.250)

And that is the correct procedure,

A-94

am I right?

A. I believe it to be so. (P.250)

EXCERPTS OF DEPOSITION TESTIMONY

OF EDWARD MURTAGH DEMPSEY TAKEN

ON NOVEMBER 22, 1989

Q. Where was he standing when you

first saw him? |

A. Sidewalk. (P.284)

Q. The trooper, the State Police

Car that you saw parked in the bus

loop, could you see the trooper

who was sitting behind the wheel

of that car?

A. I could recognize that there

was a person in the car. (P.286)

A. #*#* All of a sudden I hear over

a loudspeaker from his car you

know, "Driver and passenger, raise

A-95

your hands." ®#® (P,290)

HH One of them is like four

feet from my head with a pistol,

eH (P.297)

And while he was holding

on to me, another officer came

around and frisked me, okay. After

he said -- after he yelled.

"farther, farther," then he

approached me and he frisked me

okay. (P.297)

Before you were handcuffed?

Before I am handcuffed. Okay,

so he frisked me, both legs; I

mean everything. (P.297)

HH the heavy-set guy, steps on

my hand while I am on the lawn,

okay. And you know, my hands are

out. I have got no shoes on. My

hands are out. He stepped on my

A-96

hand. And this guy's not a light

guy. I would say over 200 pounds

or over, okay. (P.298)

Are you saying that he purposely

stepped on your hand?

Oh, yes. Intentionally, no

accident, I mean, he stepped on my

hand, so my hand wasn't going

anywhere. Okay. And it hurt,

too. I mean that is 200 pounds I

got on my left hand. (P.298)

He Steps on my hand and then

reaches around with his right hand

and grabs my right hand that is

out to the side and yanks it back

and pushed it flat against my back

so it's in the middle of my spine.

(P.299)

#H* So he is grinding my palm

down into the ground and he grabs,

A-97

then be bends over and all his

weight is on his left foot, grabs

by “other hand and jerks it back.

(P.300)

Q. You are sure that they searched

you before they put the handcuffs

on?

A. Positive. (P.302)

Q. And then after you were

standing up what happened?

p A. eee T am begging them to take

the guns off me, because obviously

they searched us; we had no

weapons on us, OkKay? (P.302)

Q. So your best recollection is

there were approximately how many

officers with guns pointed at you?

A. I said six to eight when I

Started it and it's say six to

eight until today. (P.304)

A-98

Q. How long do you think you

were in handcuffs total?

A. Total period? I was in hand-

cuffs for probably about 10

Minutes. (P.314)

Q. Do you have any physical

injuries which resulted from this

injury?

A. That last us to this day?

I mean -- no. I mean, two days

afterwards my arm, from being

jerked around afterwards, but not

anything that --- (P.332)

uue And my seeing a psychologist

about it at this point no, I am

not, but that is going to be there

for the rest of my life. *#*

(P. 332)

Q. And you were angry that day

when they detained you; is that

A-99

correct?

Oh, yes, I was very angry, but

I maintained myself as a gentleman

the whole time. There is not one

of those police officers that

could tell you that I behaved

other than what I told you and I

was gentleman-like. (P.333)

You testified earlier that

you were yelling at then.

ee## "Please put your guns

away." (P.333)

All right. How many times

betwee.) Monroe Avenue and the

intersection where the bank is and

the Monroe Highland intersection,

how many times did he pull up and

pull back?

I would say like two to three

times he was driving parallel,

A-100

parallel with me, and then

dropping back, and dropping back

again. Okay. So two or three

times before we were at the

intersection where he did it for

the last time, okay. (P.344)

And at that point did you

observe a State Trooper?

Yes, I did. (P.347)

Was it a terrorizing experience?

Extremely. (P.350)

All right. Now, when he stepped

On your left hand, was that

painful?

Yes, I mean, that was

excruciating pain because he was -

- I mean, he is moving around.

The guy's got to move to reach

over to grab my other hand, then

shift his weight back onto where

A-101

by hand was on the ground. He

shifted his weight when he reached

down to grab my hand that he had

his foot on, okay, so he is moving

around. You are moving back and

forth, yes, it was excruciating

pain and it hurt. (P.350)

Q. How about your right arm?

A. That hurt also. That was

excruciating pain because he

jerked it, and I have -- that is

not a position that you are in

every day. I mean I had never

been in it and my muscles are

stiff, I am tense. I mean I am

scared. And he grabbed that arm

and he jerked it around behind my

back. (P.350)

Q. Did you have any difficulty

with your arm thereafter?

A-102

A. It was -- I mean, I could feel

it for you know, a couple days

after that. (P.351)

Q. ##* approximately how may

times did you ask the officers or

beg them to remove the guns?-

A. I had to ask them at least

eight times. (P.353)

Q. Was having those guns on you,

was that one of the most ---

A. That was the most terrifying

part of the whole thing, especial-

ly the one that was four feet from

my head after I was handcuffed.

(P.353)

EXCERPTS OF DEPOSITION TESTIMONY

OF OFFICER THOMAS SLEEP TAKEN ON

NOVEMBER 27, 1989

Q. So in othe’ words, I do have

A-103

the sum total of the dispatcher

tape and the radio tapes for the

date of the bank robbery?

Yes (Jane Conrad). (P.388)

Would you tell me exactly

what the description was on that

radio tape in accordance with your

recollection’?

jacket. (P.391)

Do you know on the day of

bank robbery, did you see

black people other than Marx

Curenton?

Every day. (P.393)

Quite a few, right?

Yes. (P.393)

eH All right. What did you

hear in the second description?

Generally male black, height

A-104

description approximately six

foot. Thin build. I believe he

had a blue hat on. Burgandy long-

Sleeves shirt, turtleneck I

believe. Blue jeans. (P.409)

Q. --- sleeve shirt, blue jeans,

anything else?

A. Dark sunglasses, I believe.

(P.410)

Q. All right. Give any description

as to whether thisS man was shaven

or did he have a beard and

mustache?

A. At that particular point

there was no transmission about

facial nair?

Anything about carrying a

bag or any descriptions?

A. Not that I recall, sir. (P.411)

Q. Did the description -- the

A-105

first or the second -- ever

involve a motor vehicle descrip-

tion?

A. No vehicle. (P.411)

Q. Do you understand the word,

what is your understanding of

arrest?

A. When you tell somebody that

they are under arrest. (P.416)

Q. Oh, you must tell them?

A. That is correct? (P.416)

Q. What was the shirt color

described in the third descrip-

tion?

A. I believe it was purple,

Sir. (P.421)

Now, at any time in the first,

£4)

second, or third description did

you have any information whatever,

from any person whatever, that

A-106

there was an automobile involved

in the robbery at the Monroe

Savings Bank?

No, sir. (P.429)

I am trying to find out when

you first saw Murtagh Dempsey's

car?

Mr. Curenton go into it. (P426)

That is the first time you saw it?

First time I became aware of

it. (P.426)

At any time when you saw that

car did he change lanes?

When I first became aware of

the car it was stopped. (P.427)

Now, is it your testimony that

at no time prior to that time did

you see Murtagh Dempsey's blue

car?

Tnat is correct, sir. 1 May

A-107

have -- (P.433)

Well, at what point did you

believe in your mind that he was

connected with the Monroe Savings

Bank robbery?

My attention was first brought

to Mr. Dempsey's car when Mr.

Curenton got into the car, sir.

(P.436)

Where was Mark Curenton when

you first saw him?

He was walking through some

low bushes near the intersection

of Monroe and Highland generally

in a southeasterly direction,

walked across the sidewalk and got

into the right front of Mr.

Dempsey's car. (P.438)

He was walking through the bushes?

When I observed him. (P.438)

A-108

Q. What was the sole basis for

suspecting Murté 3h Dempsey?

A. The male black that was

entering the car. (P.439)

Q. So it was because of him

being involved with a black man

that created your suspicion, is

‘that right?

A. That is correct, sir. (P.439)

Q. Now, when you saw Mark

Curenton can you describe what you

observed with reference to him

physically and then his clothing?

A, Male black, had some blue on.

(P.439)

Q. Where was his blue?

Rs On his shirt area. (P.439)

Q. The sleeves?

A. When I saw him it was just

-- he was moving. It was just out

A-109

of the corner of my eye I saw him.

(P.439)

Q. Was that sufficient in your

mind to make him a suspect?

A. I believe that the gentleman

had some glasses. (P.440)

Q. What kind of glasses?

A. I don't recall. (P.4490)

Q. And you also confirmed that

he had large sunglasses on, the

Culprit, the real culprit?

A. The description was dark

Sunglasses. (P.440)

Q. Did you ever make an effort

to look at his glasses?

A. No, sir, because the total

Sum that I saw -- the first time

that I saw him was only a few

seconds. (P.441)

Q. Do you recall whether he was

A-110

clean shaven or whether he had a

beard and mustache?

I don't recall, sir. (P.441)

Well, is it not a fact that

he had a white shirt on?

I don't reeall, sir. (P.842)

Do you recall whether he had

long sleeves or short sleeves?

I don't really recall. (P.442)

Do you recall what color his

pants were? (P.442)

I don't really recall because

of the -- as I indicated I just

Saw him briefly, he was walking,

he got into the car, and probably

only at the angle I was looking

and when he got into the car I

could probably only see from the

waist area up. (P.442)

A-11]

Over to your right; is that

correct?

A. That is correct. (P.442)

Q. So in order to see this Suspect

you had to look through a lane of

traffic and see Mark Curenton and

you saw him from the waist up?

A. Basically, yes. (P.443)

Q. Did you note when you arrested

him what color his shirt was?

A. I did not, sir. (P.4y4)

Q. Did you note whether he was

Snaven or had a beard?

A. No, Sir. (P.444)

Q. He came through the bushes.

DO you recall what part of the

bushes he came through?

A. No sir. (P.445)

When he came through the bushes

)

was he crawling, was he

A-112

standing up straight’?

He was walking, sir when I first

observed him. (P.445)

Was he walking, was he walking

fast?

He was walking, not running.

(P.445)

Did you get an impressionas to

what his height was at that time?

No, sir, because I only saw him

for a few seconds. (P.445)

Who was the witness you talked

to at the bank?

I didn't talk to anybody at the

bank, sir, we're going back to the

radio transmissions of the

descriptions. (P.448)

So the sum total of your concept

that you received about the

culprit was from the radio

A-113

transmissions; is that correct?

That is correct. (P.448)

All right. From your description

both these people are lying on the

ground, right, Mark Curenton and

Murtagh Dempsey. Now you had a

very clear view then of all the

clothing that Mark Curenton was

wearing, am I right?

That is correct, yes. (P.498)

Did he have a hat?

Not that I recall. (P.498)

Did he have a beard?

I couldn't see his face. (P.498)

Did he have a mustache?

I don't recall. (P.498)

Do you recall what shirt he

had on?

I believe it was a blue and

white shirt. (P.498)

A-114

All right. What was the color

of that pants, those pants?

Best of my recollection,

I think maroon. (P.499)

Did you evaluate at that time

as to whether Mark Curenton then

matched up with the information

that you received on the police

radio on the first and second or

even the third time as to whether

the clothing that Mark Curenton

had on was the same as the

culprit?

The initial descriptions were

all scattered. So ... (P.499)

Would you just answer the

question, please.

The clothing was not exactly

as described on the radio. (P.500)

You don't know whether they

A-115

were sunglasses or not?

A. I only saw him briefly as he

was getting into the car. (P.501)

Q. When you saw him there at the

scene did he have glasses on?

A. I don't recall, sir. (P.501)

Q. What were the color of his pants?

A. Pants as he was lying on the

ground were maroon, the descrip-

tion was jeans. (P.501)

Q. But in the description, either

one, two or three it was not

maroon; is that correct?

A. That's correct. (P.502)

Q. Well, you came to a conclusion

that what you saw him wearing or

the culprit was described to be

wearing were at variance; is that

correct?

A. Yes, there was a variance. (P.502)

‘

A-116

All right. Now, with a variance

like that, why did you not release

Mark Curenton right at that point?

At this point Sergeant LaRonde

has arrived and at this point he

was in charge.(P.503)

Tell me what happened then.

How were they subdued?

I don't -- they weren't struggling

or anything. (P.504)

But at some point they were

patted down, is that right?

That is correct. (P.506)

And you found no weapons, is

that correct. Nothing whatever?

Yes. That is correct. (P.506)

But they still continued to be

handcuffed, is that right?

I believe so, yes. (P.506)

And they still complied with

A-117

all the requirements you made and

all the requirements of any of the

officers of the Brighton police

force?

To the best of my knowledge.

(P.506)

Now, what time was it when Mark

Curenton was taken back to the

bank for a showup?

Sometime after 2:30.

So that would be over an hour,

am I correct after the bank was

robbed is that correct?

That is correct. (P.510)

Is it not a fact that the rules

promulgated by the Town of

Brighton Police Department and the

CPL require on a showup that

somebody be taken back for a

showup within a_frame of 45

A-118

minutes?

That is correct. (P.510)

Does that facial description,

does that -- does Mark Curenton

appear like that man that you did

the composite of?

I only saw him briefly.

I couldn't tell. (P.515)

Would you answer the question,

please?

I don't really recall, sir.

I never got a very good look

at his face he was getting into

the car. (P.515)

Well, what was wrong with

communicating through the hailer

telling him why they were stopped’?

Quite frankly, I don't know

whether or not it works on that

car at that particular point in

A-119

time. (P.518)

EXCERPTS OF DEPOSITION TESTIMONY

OF OFFICER FREDERICH MELLINI

TAKEN ON NOVEMBER 27, 1989

Q. So if you had your heard

these transmissions there is

nothing on there about a blue car,

am I right?

A. Right. (P.537)

Q. How do you know it only took

13 minutes?

A. Because the time of the stop

was 1429. (P.548)

Q. Both, he physically handcuffed

both parties, is that right?

A. Yes, sir. (P.552)

Q. But in any event wher you

arrived there neither of these

parties were free to go, is that

right?

A-120

Right. (P.554)

They were being held because

they were handcuffed, they were

lying on the ground, and there

were guns pointed at then,

correct?

Correct. (P.555)

All right. Now, when you were

at the scene here, did you observe

Mark Curenton on the ground?

Yes I did. (P.560)

Maroon pants?

Yes sir. (P.560)

All right, would you describe

the shirt that he was wearing?

It was blue with -- I don't

recall if the sleeves were white

or the shirt itself was white with

blue sleeves. But it was a blue

and white shirt. (P.561)

| 2)

A-121

And when you saw Mark Curenton

on the ground you are indicating

that his clothing was considerably

different than the description

that was given to you by the

sergeant; is that correct?

It was different from, yes.

(P.564)

More than an hour?

By minutes, yes, could be.

(P.566)

All right, now, if I put all

those three elements together, a

black man, first, he is a black

man, he is going over some bushes,

and he gets into a car being

operated by a white man; those

three observations, are those

sufficient in your opinion to make

a felony arrest?

A-122

No. (P.572/573)

I am talking to you as an

expert police officer who is well

trained in the requirements of

arrest. You said these individual

elements would-not give sufficient

background to make a felony

arrest?

For a felony stop, no. (P.574)

Did you ever hear Murtagh

Dempsey begging that they remove

the guns?

In the very beginning. (P.582)

What did he say?

He wanted the guns out of

there. (P.582)

A-123

EXCERPTS OF DEPOSITION TESTIMONY

OF OFFICER WILLIAM LARONDE

TAKEN ON NOVEMBER 27, 1989

Q. All right. But those four

people were there at the time, am

I right?

A. - Yes, they were. (P.632)

Q. - And were you the fifth person?

A. or sixth. (P.632)

Q. Fifth or sixth?

A. Yes. (P.632)

Q. Well, did he follow the

instructions?

A. Basically, yes. (P.639)

Q. Was he wearing glasses?

A. Yes, he was, I believe. (P.653)

Q. Were they sunglasses?

A No, they were not. (P.653)

Q. Do you Know what kind of shirt

he had on?

A. It was a light-colored shirt.

| 2)

A-124

(P.654)

White?

Could be. (P.654)

What do you mean by "ball

park description"?

We had a description anywhere

from 5'7" to six foot tall. And I

believe. (P.659)

If the culprit is described as

wearing a polka dot shirt and the

man who's described in wearing a

white shirt and the pants are

maroon and not blue, does that fit

within the ball park?

There was -- well no. (P.659)

Mark Curenton didn't have a

jacket, right?

No, he had 45 minutes to take

it off. (P.659)

Do you have to use the magic

A-125

words of "you are under arrest"

—-

before a person is actually

arrested?

A. No. (P.663)

Q. Do you often see blacks on

Monroe Avenue in the Town of

Brighton?

A. Yes, we do. (P.673)

Q. Seeing a black man getting

into a car, is that sufficient?

A. No. (P.688)

EXCERPTS OF DEPOSITION TESTIMONY

OF OFFICER ROBERT HICKEY

TAKEN ON NOVEMBER 27, 1989

Q. Was he wearing sunglasses?

A. Wo, I don't think so. Clear

glasses, I think. (P.752)

Q. How many people have you hand-

A-126

cuffed since June 12, 1987?

Maybe 1000. (P.761)

Well, it's not unusual to see

a black man in the Town of

Brighton?

Oh, no. (P.765)

All right. Now, we're coming

back to the point of you

handcuffing Mark Curenton and Murt

Dempsey. Can you tell me now who

did you handcuff first?

I don't recall. (P.765)

Well, how much do you weigh?

about 215. (P.772)

They did exactly what they

were told to do, is that right?

Yes.

Did he comply with Officer

Sleep's instructions?

As best I can remember. (P.774)

A-127

Is it not a fact with reference

to Murt Dempsey that you stepped

on his left hand while he was

having it spread out to the side?

I don't recall that. (P.779)

Do you recall whether or not

you stepped on his hand?

I don't recall.

Did you pull his right hand

and arm up over his back while he

was spread eagle lying face first

on the ground, in accordance with

the instructions of Officer Sleep?

Did I pull his -- which hand,

his right hand?

I don't recall. (P.781)

Did both of these parties,

namely Murt Dempsey and Mark

Curenton, comply with your

request?

A-128

Did they comply with my request?

Yes.

In the way they were hand-

cuffed? (P.785)

Whatever you instructed them

to do?

As best I can recall, yes.

(P.786)

Promptly?

Well, yes, as best I can recall

they complied, yes. I didn't have

a physical struggle as I can

recall. (P.786)

I see. Neither from Mark

Curenton nor Murt Dempsey?

No. Not that I can recall.

(P.786)

But when he couldn't leave

he was under arrest. Is that

correct?

A-129

Well, he was being detained.

(P.794)

What is the difference between

being detained and being arrested?

I don't know. I guess that is

a court decision there. He was

being detained. He was being

detained. (P.794)

I am asking you as a police

Officer?

I don't know. (P.794)

But in any event, did Murtagh

Dempsey give you permission to

~ search the car?

Not that I recall. (P.801)

And if you had an illegal

arrest would you have a right to

search the car?

I Don't know. (P.802)

A-130

EXCERPTS OF DEPOSITION TESTIMONY

OF LT. THOMAS M. VOELKL

TAKEN ON NOVEMBER 27, 1989

So that would be in 1987,

as I add these up, 38 persons who

are police officers?

I think we -- our strength

was 39 or 4O but we have a chief,

too. (P.830)

Are there any police officers

today who are black?

No. (P.830)

Are any of those police

officers or any other employees

black?

No. (P.832)

Has the Brighton Police

Department ever employed any

blacks?

A-131

None that I can recall. (P.832)

What is the Brighton Police

Department's policy with reference

to the employment of black people?

Equal opportunity employer.

(P.833)

What was the description of

his clothing?

The person that I stopped.

(P.871)

Yes.

--or that I came across. He

had on a dress, combat boots.

(P.871)

Tell me exactly what you did

and with whom?

I believe Officer Sleep made

an observation of the individual

who was known to me personally.

And -- (P.872)

A-132

Well, how did he get involved

in this person?

He observed the individual

coming out of the bushes or

something by the bus loop. Sleep,

I believe, we just passing by or

had seen him. He stated on the

air that he had observed the

individual. And at that point I

was almost at the intersection of

Monroe and Highland. I just

turned left and I was right on top

of him. (P.874)

Now, you say that the first

alert came from Tnomas Sleep; is

that correct, with reference to

this person?

Yes, he made the observation.

(P.886)

Okay, give me all the reasons

A-133

in your counsel's words, why this

Suspect was stopped?

A. The suspect was a black

person. (P.887)

A. ##*# And my own personal

Knowledge of his personality

characteristics. I would make an

assumption that based on his past

performance he would be very

capable of doing such a thing.

- (P.888)

Q. Isn't it very common to see

black men in the Town of Brighton?

A. Sure. (P.889)

EXCERPTS OF DEPOSITION TESTIMONY

OF DOROTHY TESTA TAKEN ON

NOVEMBER 27, 1989

Q. Facing west. Can you describe

A-134

the car?

It was a medium blue, not a

large car, but not one of those

small ones. An average-size car.

(P.1010)

And it wasn't a dark blue

car; is that correct?

No. (P.1011)

I see. Did you observe

anybody get into the car?

Yes. Somebody came across my

lawn that I observed from the

Window to my right. Going, coming

across my lawn, coming, getting

into the car and taking off.

CP. 1612)

So you have no way of Knowing

whether he was black or white?

No. (P.1013)

Does this exhibit which I

A-135

have given to you which is Exhibit

21, does that refresh your

recollection as to what you said

to the investigating officer at

that time?

A.- I may have forgotten all,

you know. (P.1022)

Q. But I direct your attention

to the third line which says, "On

the date in question Testa

observed a small medium blue two-

door vehicle running"?

A. Yes. (P.1022)

Q. All right. But in essence

what this officer did was take

down your statement?

A. Yes. (P.1023)

Q. So, and at that time did you

tell him that it was a medium two-

door vehicle?

A-136

Yes. (P.1023)

EXCERPTS OF DEPOSITION TESTIMONY

OF INSPECTOR JAMES G. PATTERSON

TAKEN ON APRIL 24, 1990

Are you aware that he made a

Statement that a person is not

under arrest unless the police

officer tells him he is under

arrest?

I am not aware of that.

(P.1069)

Can a person be under arrest

and not be told?

Certainly. (P.1068)

Under what circumstances?

When you deprive him of this

liberty and freedom of movement.

(P.1069)

A-137

In other words, you don't

agree with the statement of Eugene

Shaw when he says that you are not

under arrest unless the police

officer tells you that you're

under arrest?

No, I do not agree with that

statement. (P.1070)

And in that case, Terry

wersus Ohio, the plainclothes man

watched the suspects for a long

period of time, am I right?

That is correct. (P.1081)

and that didn't involve a

flieeting glimpse, did it?

Bo, it didn't. (P.1082)

Okay. In your opinion, as an

expert, is it proper to pick up

somebody merely on the conclusion

that somebody has the capacity to

—O

A-138

rob a bank even though you have no

other objective evidence to that

effect?

No, that would be improper,

sir. (P.1088)

Are you aware that counsel

has stipulated that that trans-

cript is an accurate transcription

of this tape?

I am now. (P.1099)

Can you tell me what is the

meaning of “excessive force"?

Force that is unreasonable.

(P.1127)

»--eAll right do you Know how

much Officer Robert Hickey weighs?

I believe I read that he

weighed 210 pounds. (P.1127)

Mmm-hmm. And do you know

whether or not he stepped with his

A-139

full weight on the left paim of

the hand of Edward Murtagh Dempsey

while he was lying on the ground

without being advised as to why he

was even stopped?

I don't Know that he was

stepped on, no. (P.1128)

And do you Know whether

-- do you Know that his right arm

was vigorously wrenched behind his

back which caused Mr. Dempsey

excruciating pain?

No. I don't Know that.

(P.1128)

Would that be deemed

excessive force?

Maybe. Sometimes. (P.1128)

Sometimes. You're not sure?

I am sure. Because you

A-140

haven't made you know suppose he

was resisting. (P.1128)

Well, he wasn't resisting

and if you read you'll know that

these people complied with the

orders of Thomas Sleep to the

letter. Even though they didn't

know what was -- why they were

stopped.

Well, interestingly you

weren't there either. So you

don't Know what happened other

than what your client told you.

(P.1129)

Well, when do you cross the

line of excessive force? These

people were not resisting, they

were doing exactly what they were

told to do.

Excessive force would be those

A-141

instances when, being shown no

resistance by an individual that

you're handcuffing, you were to do

something that could cause them

pain, serious pain and that it was

uncalled for and unwarranted in a

Situation, yes. (P.1130)

Like stepping on a man's hand

such as Edward Murtagh Dempsey?

Sure, if the individual

wasn't offering any resistance,

was offering no resistance, was

complying with all your commands.

To wantonly step on somebody's

hand to inflict pain, yes, that

would be gross miscarriage of your

Gutieos . « « (P.11390)

What?

Gross miScarriage of your

duties. (P.1130)

A-142

How about pulling up a man's

right arm to cause him excruciat-

ing pain?

Absolutely, that would be

terrible. (P.1130)

That would be terrible?

Tes, sir. CP. 1430)

All right. Now, is handcuff-

ing a use of force?

Absolutely. (P.1131)

Is requiring somebody to lie

on the ground, is that a use of

force?

Sure.

At gunpoint?

Yes. (P.1131)

Were these people free to go?

Under those circumstances,

no, they weren't. (P.1132)

Okay. I understand what you

A-143

Say, but all I am trying to do is

get from you when you said you

relied on defendants' memorandum

you're saying you didn't rely on

that memorandum is that right?

You got it. (P.1180)

So this is false?

That is right. Absolutely. .

(P.1180)

Okay.

That is a false statement.

(P.1180)

MR. KENNING: Counsel, will

you stipulate that I have never

been furnish with a copy of

Exhibit 38.

MS. CONRAD: Yes, of course.

MR. KENNING: Will you furnish

me with a copy of Exhibit 38?

MS. CONRAD: No. (P.1182)

2»)

A-144

MS. CONRAD: Let the record

reflect that I have provided Mr.

Kenning with the fact portion of

Exhibit 38 which is part of the

draft of our brief which was

Submitted to the court in final

version on Wednesday, April 18th.

(P.1185)

Okay. Now, you haven't

viewed this intersection have you.

No, sir. (P.1215)

White hearts or bleeding

hearts are not a defense, is that

rignt? That is stated in case

law, right?

Listen, no matter how well-

intentioned the officer is, right,

he just can't stop everybody that

he feels like stopping. I will be

the first one to agree with that.

A-145

(P.1221)

Q. All right. Assuming for the

purposes of this question that

there was an arrest and the arrest

was not lawful, would it have been

lawful for the police officers to

then search Edward Murtagh

Dempsey's car and his gym bag?

A. No, it would not. (P.1267)

Q. Okay. So we agree. And

would that be a violation of the

Fourth Amendment of the United

States Constitution?

A. 768; Sir. (P.1266) :

A-146

APPENDIX E

OPINION OF PLAINTIFF EDWARD MURTAGH

DEMPSEY'S EXPERT, PETER L. GIORGIONE,

DATED JANUARY 29, 1990 AND FILED IN

ACCORDANCE WITH THE ORDER OF MAGISTRATE

KENNETH R. FISHER DATED NOVEMBER 7,

1989. (DOCKET 51)

PETER L. GIORGIONE

FORMER POLICE OFFICER OF THE CITY OF

ROCHESTER POLICE DEPARTMENT HAS BEEN

CONSULTED IN BEHALF OF THE PLAINTIFF

EDWARD MURTAGH DEMPSEY TO GIVE AN

OPINION AS AN EXPERT AT THE TRIAL OF THE

FIRST ABOVE CAPTIONED LAW SUIT PENDING

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF NEW YORK AT

ROCHESTER, NEW YORK.

QUALIFICATIONS

I, Peter L. Giorgione, was born in

Rochester, New York, and now reside at

100 Glenthorne Road, Rochester, New York

14615. I graduated from the Rochester

Police Academy in September 1968, and

during the period of time from 1968 to

1970 I took courses at Monroe Community

A-147

College and was awarded an Associates

Degree in Police Science. I was

appointed as a police officer by the

City of Rochester Police Department in

September 1968, and was employed as a

full time police officer by the

Rochester City Police Department from

September 1968 until September 1979,

except for a nine month period during

the year of 1979 when I worked as an

Investigator for the Gates Police

Department. During the time I was an

active police officer of the City of

Rochester, in addition to my formal

education at the Monroe Community

College and the Rochester Police

Academy, I took several seminars in the

following categories:

ur Federal Bureau of Investigation

Ze Alcohol, Tobacco and Firearms

A-148

Agency

Se Secret Service Agency

4. Federal Drug Enforcement Agency

During the time I was actively employed

as a police officer, my principal duties

involved patrol, investigation, vice

squad and intelligence work, and during

the time that I was a police officer,

along with education and training, it

was necessary for me to learn the

principles of law set forth in the

Criminal Procedure Law of the State of

New York.

SOURCE OF FACTUAL INFORMATION UPON WHICH

MY OPINION AS -A POLICE OFFICER IS BASED,

AND UPON WHICH I PLAN TO BE CALLED AS AN

EXPERT WITNESS IN BEHALF OF THE

PLAINTIFF EDWARD MURTAGH DEMPSEY AT THE

TRIAL OF THE WITHIN ACTION AT THE UNITED

STATES DISTRICT COURT.

In the first instance, I was

A-149

called by Charles B. Kenning, Attorney,

and conferred with him with respect to

the facts and the circumstances pertain-

ing to the bank robbery of the Monroe

Savings Bank and the arrests of Edward

Murtagh Dempsey and Mark Curenton

thereafter which occurred after the

robbery of the Monroe Savings Bank at

1627 Monroe Avenue at 1:32 p.m. on June

12, 1987. It is my belief that the City

of Rochester Police Department and the

Town of Brighton Police Department and

the New York State Police Department are

generally governed by the same standard

of conduct as are set forth in the New

York State Criminal Procedure Law with

some variations which may be designated

as General Orders, but I have been

trained in my capacity as a police

officer with respect to the law of

A-150

arrest and the limitations on police

officers, of the City of Rochester

Police and the Town of Brighton Police

and the New York State Police, including

the 4th Amendment in the Bill of Rights

of the United States Constitution, and

in particular guarantees to citizens

under the 4th Amendment which protects

the citizens of this country from

unlawful searches and seizures, as well

as the 14th Amendment of the United

States Constitution which I understand

guarantees the right of equal protection

under the law to all persons regardless

of race, aS applicable in this case,

being the rights of Edward Murtagh

Dempsey, a white man, and Mark Curenton,

a black man, whose persons were seized

by Officer Thomas Sleep of the Brighton

Police Department and other Brighton

A-151

Police Officers.

In connection relating to an

opinion herein, a copy of the following

papers were given to me for examination

by Charles B. Kenning to enable me to

understand what happened on June 12,

1987 and to render my opinion in

preparation for being called as an

expert witness at the trial of the

within action in the United States

District Court.

Transcription of Radio Trans-

mission tape (EXHIBIT 10 - dated

11/27/89).

r Transcription of Radio

Dispatcher Tape (EXHIBIT 11 -

dated 11/27/89). The

transcriptions which I was

given for reading and

examination, were certified to by

A-152

Joseph Q. Inquagiato, Court

Reporter.

Copy of proposed Second Amended

Complaint dated December 26, 1989.

Copy of excerpts of deposition

testimony of Mark Curenton taken

on February 17, 1988.

Copy of excerpts of deposition

testimony of Officer Thomas

Sleep, Officer Robert Hickey

and Officer Frederich Mellini

taken on February 17, 1988.

Copy of excerpts of deposi-

tion testimony of Trooper Kim

Smith of the New York State

Police as a non-party witness

taken on September 21, 1989.

Copy of excerpts of deposition

testimony of Sgt. Frank

Murray of the New York State

10.

11.

12.

13.

A-153

Police as a non-party witness

taken on November 22, 1989.

Copy of excerpts of deposition

testimony of Officer Thomas

Sleep taken on November 27, 1989.

Copy of excerpts of deposition

testimony of Officer Frederich

Mellini taken on November 27, :

1989.

Copy of excerpts of deposition

testimony of Officer Robert

Hickey taken on November 27, 1989.

Copy of excerpts of deposition

testimony of Sgt. William LaRonde

taken on November 27, 1989.

Copy of excerpts of deposition

testimony of Chief of Police

Eugene Shaw taken on November 22,

1989.

Copy of excerpts of deposition

A-154

testimony of Lt. Thomas Voelkl

taken on December 15, 1989.

In addition I also examined the

following exhibits from depositions.

1. EXHIBIT 1 - Xerox copy of a

bank camera picture of the person

who robbed the Monroe Savings

Bank.

EXHIBIT 2 - Copy of statement

taken by Investigator C.A.

Galletta of the Brighton Police

Department.

3. EXHIBIT 3 - Copy of Federal

Bureau of Investigation report

dated 6/22/87 containing a

Statement by Lisa A. Fiordeliso

and signed by Steven A. Donaway.

4, EXHIBIT 4 - Composite of the

bank robber dated 6/12/87 complet-

A-155

ed by Officer Thomas Sleep.

EXHIBIT 5 ~- Copy of Federal

Bureau of Investigation report

dated 6/22/87 containing

Statement by Jerilyn Silveri and

Signed by Barry Marsh.

EXHIBIT 7 - Copy of letter

dated June 15, 1987 directed

to Eugene Shaw, Chief of Police of

the Town of Brighton.

EXHIBIT 14- An enlarged color

photograph of the inter-

section of Monroe Avenue and

Highland Avenue in the City

of Rochester showing the

Sidewalk. at the corner and

bushes which appear to be approxi-

mately 2 feet high.

EXHIBIT 15- An enlarged color

photograph showing the side-

10.

11.

12.

A-156

walk and low bushes on the

Highland Avenue side of the

townhouse complex on the corner of

Monroe Avenue and Highland Avenue.

EXHIBIT 16- An enlarged color

photograph showing the corner

of Highland Avenue and Monroe

Avenue in the City of

Rochester with bushes appearing to

be approximately 2 feet high.

EXHIBIT 17- Copy of confession

of Franklin Charles Leonard dated

July 25, 1987.

EXHIBIT 18- List of Brighton

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