# Petition for Writ of Certiorari — Dempsey v. Town of Brighton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2636%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 925 ## Text 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? _—— ii 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 | | iv 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 Vv 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 vi 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, 63 32 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). 2 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 3 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 4 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 7 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 al 8 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 9 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 a 10 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 11 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 12 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 13 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- 14 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 a 15 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 16 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 17 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 18 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 19 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 20 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- 21 128), 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 } | 22 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) 23 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 24 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 25 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 a 26 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 27 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 28 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- y 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 | 29 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 30 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 /e 31 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 32 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 4 ; 33 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 34 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 35 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 36 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 37 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 38 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 39 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); 40 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 41 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 42 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). 43 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 4G 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 45 “ # * 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 46 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 47 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 48 401, 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 49 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? Se 50 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 51 611 (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 52 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 53 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 54 Court of Appeals for the 5th Circuit in the case of United States of America % T.I.4.8. ‘ 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 Cn 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. NM 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 Police cars and Officers assigned to those police cars, from Jane Conrad, Attorney, dated December 4, 1989. EXHIBIT 19- Copy of letter dated December 4, 1989 from A-157 Jane Conrad, Attorney, directed to Charles B. Kenning, Attorney. 13. EXHIBIT 21- Copy of investi- gation report of Gary A. Cuilla dated 6/12/87. Based on the foregoing informa- tion, including the exhibits which I have examined, a copy of the Second Amended Complaint, consultations with Charles B. Kenning, Attorney, and examination of the dispatcher and radio transmission tapes, and excerpts of deposition testimony, I render the following opinion: PROBABLE CAUSE It appears that the bank robber of the Monroe Savings Bank Branch was a clean shaven black man, did not display a weapon at the time of the robbery, A-158 fled alone on foot, and no automobile or other persons were involved in the robbery. Officer Thomas Sleep alerted fellow officers of the Brighton Police Department while he was in the City of Rochester that there was a black man north of the bus loop at the intersection of Monroe Avenue and Highland Avenue in the City of Rochester. At the Suggestion of Officer Thomas Sleep this black man who was wearing women's clothing and did not match any description on the radio transmission tape, which was the sole source of information according to the Statements of Officer Thomas Sleep, was picked up and taken back to the scene of the robbery at the Monroe Savings Bank within ten (10) minutes after the robbery, and identifications by eye A-159 witnesses did not indicate involvement of this first black man to be stopped in the bank robbery. It does not appear that the Brighton Police, based on the radio transmissions, had probable cause to "suspect or to associate the first black man wearing women's clothing as the bank robber, since he was more than one-half mile north of the bank within a short time after the robbery, and Lt. Thomas Voelkl returned this first black man to the scene of the bank robbery based on his belief that this black man was capable of committing such a crime because of his knowledge of other arrests of the first black man, but the evidence, particularly the lack of Similarity between the Brighton Police radio police broadcast of the descrip- tions, and this first black man did not A-160 match the descriptions of the bank robber. Lt. Thomas Voelkl's belief that this black individual would have the capability of committing the crime, would not give probable cause to take him back to the scene of the robbery as a suspect. Officer Thomas Sléep states that he observed two black men in a Crysler K Car, apparently when he was in the City of Rochester, and went as far as the intersection of Monroe Avenue and Goodman Street, which I know is more than one mile from the Brighton Townline Within the City of Rochester, and Officer Thomas Sleep gave up the search when he could not locate these two black men. There is no showing that either of these two black men matched the description of the bank robber as A-161 broadcast by the Brighton Police Radio dispatcher, which was the only source of description information for Officer Thomas Sleep. In accordance with proper police procedures, if Officer Thomas Sleep intended to question, stop, detain Or arrest these two black men in the Crysler K Car as being suspects in the crime, ne should have called for backup in the City of Rochester. It does not appear that he requested any backup, which could have been readily furnished by the Rochester Police Department in accordance with normal procedures followed by other towns adjoining the City of Rochester. It is difficult to understand why Officer Thomas Sleep could not recall the route that he took in returning from Goodman Street and Monroe Avenue in the City of Rochester A-162 to the Town of Brighton after he could not locate the two black men in the City of Rochester. Thereafter, and approximately one hour after the robbery, according to the Statements of Officer Thomas Sleep, he was proceeding in the passing lane going in a northwesterly direction on Monroe Avenue when he saw a black man (Mark Curenton) get into the passenger side of the four-door dark blue Toyota sedan of Edward Murtagh Dempsey at the corner of Monroe Avenue and Highland Avenue in the City of Rochester. He states that he was behind the car of Edward Murtagh Dempsey which was stopped in the curb lane, while Officer Thomas Sleep was in the adjoining passing lane. Officer Thomas Sleep claims that his first notice of the blue four-door Toyota was A-163 at a time when a black man got into the passenger side of the automobile which was operated by Edward Murtagh Dempsey, and that he saw the black man get into the car of Edward Murtagh Dempsey out of the corner of his eye, and this occurrence was described by the Chief of Police Eugene Shaw as a "fleeting glimpse." Officer Thomas Sleep claims that this black man (Mark Curenton), who appeared to be the fourth black man who Officer Thomas Sleep decided to stop or Cause to be stopped as a Suspect, at the instant he saw a black man getting into the dark blue four-door Toyota of Edward Murtagh Dempsey and saw only the top half of the fourth black man, who is Mark Curenton. The radio dispatcher tape containing the descriptions which Officer Thomas Sleep claims to be his A-164 Only source of descriptions of the bank robber, do not reasonably match up in any way with the Brighton Police Department dispatcher tape descriptions of the bank robber and Mark Curenton, except only that both Mark Curenton and the bank robber were black. Officer Thomas Sleep claims that he had probable Cause to stop the black man because the black man (Mark Curenton) appeared to be walking through the bushes which were two feet high; that a white man (Edward Murtagh Dempsey) was operating a dark blue four-door Toyota and stopped at the corner of Monroe Avenue and Highland Avenue in the City of Rochester and picked up his co-worker Mark Curenton who is black, and that a bank robbery had occurred in the vicinity approxi- mately one hour before. The most A-165 credible statements with respect to whether or not there was probable cause to question, stop, detain or arrest’ Mark Curenton and Edward Murtagh Dempsey, would be based on the eye witness statements of Trooper Kim Smith and Sgt. Frank Murray of the New York State Police, each of whom saw Mark Curenton while he was standing on the corner of Highland Avenue and Monroe Avenue, and both of whom apparently heard the same descriptions of the bank robber as given over the Brighton Police Radio. These two State Troopers did not conclude that Mark Curenton was a suspect in spite of their lengthly observations of Mark Curenton while he was standing on the corner, nor do their statements show a claim by Officer Thomas Sleep that Mark Curenton was walking through the bushes A-166 which are approximately two feet high on the townhouse property in the City of Rochester. In view of the testimony of Trooper Kim Smith and Sgt. Frank Murray, there is no support for the statement of Officer Thomas Sleep that the black man appeared to be walking through the bushes when he was seen out of the corner of the eye of Officer Thomas Sleep. It is noted that there was no car or white man included in the description which Officer Thomas Sleep received over the Brighton Police Radio, nor was there any indication that the bank robber was carrying a gym bag, such aS was carried by Mark Curenton. It is my opinion, based on the testimony of Officer Thomas Sleep, Chief of Police Eugene Shaw, Trooper Kim Smith and Sgt. Frank Murray, that a reasonable and A-167 prudent police officer could not have a valid suspicion as a reasonable or prudent police officer that either Mark Curenton or Edward Murtagh Dempsey were involved in the bank robbery, and I believe that there was no probable cause to question, stop, detain or arrest either Mark Curenton or Edward Murtagh Dempsey. ARREST The excerpts of deposition testi- mony of Mark Curenton, Chief of Police Eugene Shaw, Officer Thomas Sleep, Officer Robert Hickey, Officer Frederich Mellini and Sgt. William LaRonde, indicate that Officer Thomas Sleep stopped Edward Murtagh Dempsey and Mark Curenton at gun point and without having A-168 timely or proper backup in place at the time of the initial stop at gun point. Officer Thomas Sleep individually directed Edward Murtagh Dempsey and Mark Curenton to crawl out of the dark blue Toyota and to lie face down on the ground at i795 Highland Avenue in the City of Rochester, and thereafter not less than three additional Brighton Police Officers, being Officer Robert Hickey, Officer Frederich Mellini and Sgt. William LaRonde, appeared on the scene of the stop by Officer Thomas Sleep, and they also pointed their loaded service revolvers at Mark Curenton and Edward Murtagh Dempsey who were lying on the ground without being told why they were stopped. Officer Robert Hickey handcuffed both Mark Curenton and Edward Murtagh Dempsey. It A-169 appears that neither Mark Curenton nor Edward Murtagh Dempsey posed any threat to Officer Thomas Sleep or other officers of the Brighton Police Depart- ment, and that each of them complied promptly and exactly with the orders of Officer Thomas Sleep, and that neither of them were told as to why they were stopped. Again it appears that Mark Curenton did not match up with the radio descriptions broadcast over the Brighton Radio and received by Officer Thomas Sleep as his sole source of descrip- tions. In particular, the bank robber as shown by the composite drawn by Officer Thomas Sleep was clean shaven, and I understand that on June 12, 1987, the time of the robbery, Mark Curenton had a beard and mustache, and his clothing was entirely different than the A-170 P clothing descriptions of the bank robber as broadcast through the Brighton Police Radio. Officer Thomas Sleep should have realized immediately upon his stop that he had the wrong person, but none of the Brighton Police Officers or Officer Thomas Sleep withdrew their service revolvers which were aimed at Mark Curenton and Edward Murtagh Dempsey, and each of these police officers, who I understand had the same descriptions as broadcast over the Brighton Police Radio, should have realized that Officer Thomas Sleep had initiated the arrest of the wrong person without probable cause, but all of the Brighton Police Officers continued to restrain the two innocent persons, who rightfully believed that they were not free to go and were under arrest, without knowing why they were A-171 arrested, although the Brighton Police Officers, including the Chief of Police Eugene Shaw, claims that neither Mark - Curenton or Edward Murtagh Dempsey were under arrest, but in fact Edward Murtagh Dempsey and Mark Curenton were not free to go and their right of locomotion was restricted by the Brighton Police officers, and in my opinion both plaintiffs were in fact arrested and those arrests occurred without probable cause. Tne statements made by Chief of Police Eugene Shaw, that a person is not under arrest unless a police officer advises him that he is under arrest, is incorrect, for this statement by Chief of Police Eugene Shaw, if true, such would enable any police officer to restrain a persons liberty without just A-172 cause, and by merely failing to say “you are under arrest" would make the 4th Amendment of the United States Constitution meaningless. In my opinion, if Chief of Police Eugene Shaw believes what he states in his deposition, he does not have a correct understanding of the law of arrest, for he must know, because of his training and experience as a police officer, that a person can be arrested when his freedom to leave is restricted, particularly in this case when Edward Murtagh Dempsey and Mark Curenton were required and did comply with all orders of Officer Thomas Sleep and were handcuffed and had not less than four loaded service revolvers aimed at then. If Chief of Police Eugene Shaw is instructing the officers who serve under A-173 him that you are not under arrest unless the police officers state that "you are under arrest", is both false and according to my belief is not consistent with the training of police officers as to what constitutes arrest, which indicates that Chief of Police Eugene Shaw should update his own training and should also be required, as a Chief of Police, that his officers be further trained as to the law of what constitutes an arrest. It is my further opinion, that the handcuffing, the holding at gun point by service revolvers, the stopping and detaining, and the arrest of Edward Murtagh Dempsey and Mark Curenton constitutes an excessive use of force, when neither party posed any threat to the police officers, there was no indication that A-174 the bank robber used a weapon, and Officer Thomas Sleep did not follow the correct procedure in securing adequate backup before he executed the stop of Edward Murtagh Dempsey and Mark Curenton at gun point without probable cause. SEARCH & SEIZURE Since both Mark Curenton and Edward Murtagh Dempsey were subjected to the unlawful arrest which was initiated by Officer Thomas Sleep, the Brighton Police Officers, without consent, had no authority to search the car of Edward Murtagh Dempsey or the gym bag of Mark Curenton, and it does not appear that they had consent, all of which would amount in my opinion to an unlawful search and seizure of the property of A-175 Edward Murtagh Dempsey and Mark Curenton. TAKING ARRESTED SUBJECT BACK TO SCENE OF CRIME BY SGT. WILLIAM LARONDE ~ Sgt. William LaRonde initiated the return of Mark Curenton to the scene of the bank robbery at the Monroe Savings Bank. Normal police procedures would require that a person who is suspect should be taken back to the scene of the crime occurred within 45 minutes, but not in excess of 1 hour, and it appears that Mark Curenton was taken beck to the Monroe Savings Bank after the passing of one hour. In accordance with my training and experience as a police officer, a suspect is to be taken to the police station and placed in a line up with other black men of similar height A-176 and build, and that eye witnesses to a crime would then be brought in and given the opportunity to select the person who matched the identity of the bank robber, if the eye witnesses indicated that one of the persons in the line up as being involved in the crime. OBSERVATIONS OF BRIGHTON POLICE OFFICERS OTHER THAN OFFICER THOMAS SLEEP Since the descriptions given over the Brighton Police Radio did not match up with Mark Curenton who was arrested, in my opinion, not only should it have become apparent to Officer Thomas Sleep and other Brighton Police Officers assisting him that they had the wrong persons, and it is believed by me that the other three Brighton Police Officers, identified as Officers Robert A-177 Hickey, Frederich Mellini and Sgt. William LaRonde, should have concluded at the scene upon viewing Mark Curenton, that he could not logically be a suspect because of the descriptions given over the Brighton Police Radio were different than. the appearance and clothing of Mark Curenton, including his size, height, Stature, that Mark Curenton was not clean shaven, and I understand that Mark Curenton had a beard and mustache, and the only similarity between the bank robber and Mark Curenton was the fact that both were black. CONCLUSION My conclusion is that since the Town of Brighton appears to have a large black minority, that black men are often A-178 seen standing, walking and driving in the Town of Brighton which activities are not uncommon; that neither Mark Curenton as a black person nor Edward Murtagh Dempsey as a white person appeared to have engaged in any unlawful activity or activities to create a Suspicion by a reasonable and prudent police officer that either of them were involved in the robbery of the Monroe Savings Bank on June 12, 1987. I believe, based on the facts and papers given to me for examination, that a reasonable and prudent police officer would not have stopped, detained or arrested Mark Curenton or Edward Murtagh Dempsey, who I believe were in fact arrested without probable cause, and it is my opinion that Officer Thomas Sleep did in fact initiate the stop, the A-179 detention, and the arrest in this case, and that probable cause does not appear to exist. It is my further opinion that the drawing of weapons by the Brighton Police Officers, being their service revolvers, which may be six in number, and the handcuffing of the two plaintiffs and requiring them to lie on the ground without explaining to them as to why they were even stopped, constitutes "excessive use of force" in this case, since Edward Murtagh Dempsey and Mark Curenton did not pose a threat to any of the Brighton Police Officers, and Officer Thomas Sleep executed his stop of Edward Murtagh Dempsey and Mark Curenton individually without having proper backup in place. It is my opinion that since there A-180 was an arrest of both Edward Murtagh Dempsey and Mark Curenton based on the facts and the papers which have been given to me for examination to render this opinion, I believe that without the consent of Edward Murtagh Dempsey, police officers having been involved in an unlawful arrest did not have the right, without consent of Edward Murtagh Dempsey, to search the automobile of Edward Murtagh Dempsey or the gym bag of Mark Curenton. I also believe, in accordance with my opinion, that if Officer Thomas Sleep planned to stop, detain Or arrest the two black men who were driving in the City of Rochester in a Crysler K Car, he should have called for backup, and uSually according to my experience, he could have called for backup through the A-181 City of Rochester Police Department, who I believe would have responded promptly to a request of Officer Thomas Sleep for backup. DATED: January 26, 1990 ss/Peter L. Giorgione Peter L. Giorgione --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2636%3A1. Public record. Not legal advice.