Opposition Brief — Dempsey v. Town of Brighton

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Supreme Court of the United States

October Term, 1991

MARK S. CURENTON: EDWARD MURTAGH DEMPSEY,

Plaintiffs,

EDWARD MURTAGH DEMPSEY,

Petitioner,

vs.

TOWN OF BRIGHTON; EUGENE SHAW, CHIEF OF PO-

LICE OF THE TOWN OF BRIGHTON; TOWN OF BRIGH-

TON POLICE DEPARTMENT, Officers THOMAS SLEEP,

ROBERT E. HICKEY, FRED J. MELLINI; SERGEANT

WiLLIAM LARONDE; DOES 1 THROUGH 6,

Respondents.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

HARTER, SECREST & EMERY

Attorneys for Respondents

700 Midtown Tower

Rochester, New York 14604

(716) 232-6500

Kenneth A. Payment, Esq.

Jane A. Conrad, Esq.

Of Counsel

SE ARR AE ELON a TR RS A RUE OS SE RT REN

at bene oy (17774)

QUESTION PRESENTED

Did the court below correctly uphold the District Court’s de-

termination that: respondent’s 13-minute detention of petitioner

was reasonable; the amount of force used in effecting the deten-

tion was reasonable; petitioner failed to establish any basis for

municipal liability; and the individual officers were entitled to

qualified immunity?

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT .....................

ARGUMENT

If.

THE WRIT SHOULD BE DENIED

THERE ARE NO SPECIAL OR IMPORTANT

REASONS FOR GRANTING THE WRIT SINCE

THE SECOND CIRCUIT’S OPINION IS CON-

SISTENT WITH THE PRECEDENTS OF THIS

COURT AND OTHER COURTS OF APPEAL ..

. PETITIONER’S DETENTION FOR INVESTI-

GATIVE PURPOSES WAS REASONABLE .....

RESPONDENTS USED REASONABLE FORCE

NN EPPS FEC) FEGE ONG o cccccresucocvecese

PETITIONER FAILED TO ESTABLISH ANY

BASIS FOR MUNICIPAL LIABILITY..........

THE INDIVIDUAL OFFICER RESPONDENTS

ARE ENTITLED TO QUALIFIED IMMUNITY .

THE DISTRICT COURT PROPERLY

GRANTED SUMMARY JUDGMENT..........

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TABLE OF CASES AND AUTHORITIES

Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed.

ges ap cled oad oe ee vere cess’

Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265

ee eee ea Disa Uecksccesteoscess

City of Canton, Ohio v. Harris, 489 U.S. 378, 103 L. Ed.

EEE

Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990) ......

Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229 (1983). .

Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443

RS a

Harlow vy. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73

Improvement Co. v. Munson, 14 Wall 442, 20 L. Ed. 867

ee vec ence eryeeveeereses

Monell v. New York City Dept. of Social Services, 436

ee)

Oklahoma City v. Tuttle, 471 U.S. 808, 85 L. Ed. 2d 791

Ne peo dace vecesneevseres

Pembaur v. City oy Cincinnati, 475 U.S. 469, 89 L. Ed. 2d

re dda us yeveve tas eee ces

People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163 (1986)

Polk County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509

Robison v. Via, 821 F.2d 913 (2d Cir. 1987)............

Page

ll,

Terry v. Ohio, 392 U.S. i, 20 L. Ed. 2d 889 (1968) ......

United States v. Bautista, 509 F.2d 675 (9th Cir. 1975)

cert. denied sub nom. Monsivais v. United States, 421

Laie SEU, Oe Licked. BU OE CDI cc vcccvcccccececscs

United States v. Glenna, 878 F.2d 967 (7th Cir. 1989). ...

United States v. Harley, 682 F.2d 398 (2d Cir. 1982).....

United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604

PEE S 6 osu ww eed coc Ue on tah aw ee aaes

United States v. Jackson, 652 F.2d 244 (2d Cir. 1981),

cert. denied, 454 U.S. 1057, 70 L. Ed. 2d 594 (1981) ..

United States v. Jackson, 918 F.2d 236 (1st Cir. 1990) ...

United States v. Manbeck, 744 F.2d 360 (4th Cir. 1984),

cert. denied sub nom. O’Hare v. United States, 469

Chee Bed Rp Oe Rr: Bes Se PE CES cb ccawccccavecscs

United States v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605

AAR AERA ONE Ts aya Sis Aas mat nies On

United States v. Taylor, 716 F.2d 701 (9th Cir. 1983). ....

United States v. Trullo, 809 F.2d 108 (1st Cir. 1987), cert.

denied, 482 U.S. 916, 96 L. Ed. 2d 679 (1987)........

Warren v. Dwyer, 906 F.2d 70 (2d Cir. 1990), cert. denied,

US. ee eas ee © SE o's bso 6 evox

Page

10,

IN THE SUPREME COURT OF THE UNITED STATES

MARK S. CURENTON; EDWARD MURTAGH DEMPSEY,

Plaintiffs,

EDWARD MURTAGH DEMPSEY,

Petitioner,

Vv.

TOWN OF BRIGHTON; EUGENE SHAW, CHIEF OF PO-

LICE OF THE TOWN OF BRIGHTON; TOWN OF BRIGH-

TON POLICE DEPARTMENT; OFFICERS THOMAS SLEEP,

ROBERT E. HICKEY, FRED J. MELLINI; SERGEANT WIL-

LIAM LARONDE; DOES | THROUGH 6,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Preliminary Statement

Plaintiffs Mark Curenton and Edward Dempsey commenced

these actions pursuant to 42 U.S.C. §1983 alleging that their 13-

minute detention by respondents, who believed them to have

been involved in a bank robbery, violated their civil rights.

The Detention

At 1:32 p.m. on the afternoon of June 12, 1987, a black man

entered the Monroe Savings Bank on Monroe Avenue, in the

Town of Brighton, and handed the teller a note written on a

brown paper bag telling her that she should place all of her ones,

fives and tens in the bag. While the robber did not display a

weapon, either he or the note stated that he was armed. The teller

then placed money in the bag and the robber left the bank on

foot. When last seen, he was walking out of the bank on foot and

appeared to be headed westerly toward the City of Rochester.

The robbery took place over a brief period of time, approxi-

mately two minutes. The robber was observed primarily by the

teller from wnom he demanded the money. Another teller and the

supervising teller also viewed him briefly. The bank notified the

Brighton Police Department of the incident, and it responded

immediately. The initial description broadcast to Brighton Police

units on patrol described the robber as ‘“‘a young black male

wearing a blue jacket, unknown if a weapon was shown. Last

seen heading towards the city on foot on Monroe Avenue.” (A

79')

Subsequently, another description broadcast over the radio re-

ported that the suspect was wearing a blue hat, dark glasses, a

long-sleeved burgundy shirt and blue jeans. (A 79) A third de-

scription reported that the suspect was six feet tall, of slim build,

wearing a long-sleeved purple shirt, blue jeans, a tan hat with a

chin strap, and sunglasses. The dispatcher noted that a gun was

threatened, but not displayed. (A 80-81)

Brighton Police Officer Thomas Sleep, a seventeen-year vet-

eran with the force, was assigned to patrol the area near the bank

in search of the bank robber. At approximately 2:29 p.m. he was

driving westerly on Monroe Avenue and was stopped in traffic in

the passing lane approximately four car lengths east of the traffic

light at Monroe Avenue and Highland Avenue. This location is a

few blocks from the bank.

' References are to the appendix to the petition.

As he was waiting, Officer Sleep saw a black man, who was

about six feet tall and who was wearing blue clothing and glasses,

cut through low bushes and get into a blue Toyota which was

pulled up to the curb. The man was carrying a bag. The vehicle

then proceeded westerly and turned northeast at the next inter-

section, onto Highland Avenue.

Officer Sleep radioed to the dispatcher that he had just seen a

male subject jump into a car on Highland Avenue, and that the

suspect was wearing blue. He asked whether the robber had been

wearing “dark glasses,’ and was advised that the robber was

wearing sunglasses. Officer Sleep then stated that he intended to

stop the vehicle. (A 81-82)

Officer Sleep turned on his flashing lights, and the vehicle

pulled to a stop. Based on his belief that the suspects might be

armed, Officer Sleep followed felony-stop procedures which the

Brighton police are trained to employ in potentially violent situa-

tions. He exited his vehicle and, crouching behind the driver’s

side door, aimed his service revolver at the vehicle. Shortly there-

after, Officer Robert Hickey arrived and pulled his vehicle in be-

hind Officer Sleep’s vehicle. Officer Hickey then exited his car

and pointed his gun at the suspects’ vehicle.

Officer Sleep ordered the driver to throw his car keys out the

driver’s side window and ordered both men to put their hands on

the windshield, which they did. He then ordered the passenger,

Mark Curenton, to crawl out the passenger door and lie face

down on the grass between the sidewalk and the curb, which he

did. Officer Sleep then directed the driver, Edward Dempsey, to

do the same, which he did.

Officer Hickey holstered his weapon as he approached the sus-

pects, who were lying face down on the grass, arms and legs

spread. During this period, Dempsey was yelling that he knew the

Brighton Town Supervisor personally and wanted to talk to him.

Officer Mellini arrived as Officer Hickey was handcuffing De-

mpsey. Officer Mellini drew his weapon and pointed it at the sus-

pects briefly. He holstered his gun as he approached the suspects

to assist in the handcuffing process. Sergeant LaRonde arrived as

the suspects were being handcuffed.

Officer Hickey followed his usual procedure in handcvffing

the suspects: he directed one hand behind the subject’s back,

placed a handcuff on the wrist, then instructed the subject to

bring his other arm around, then handcuffed the second wrist.

Dempsey claims that Officer Hickey purposely stepped on his

hand during this process. Officer Hickey does not recall any

physical struggle on the part of the suspects and does not recall

stepping on Dempsey’s hand. Nor do the other officers recall him

stepping on Dempsey’s hand. Officer Mellini assisted Officer

Hickey in handcuffing Curenton.

Officers Hickey and Mellini then helped the suspects to their

feet and conducted a pat-down search of each suspect. Once the

search had revealed that the suspects were unarmed, the hand-

cuffs were removed. There were no weapons directed at the sus-

pects at this time.

The officers estimate that the suspects had guns pointed at

them for approximately two to three minutes, and that the sus-

pects were handcuffed for less than one minute. Dempsey ac-

knowledges that the guns were holstered within seconds of his be-

ing handcuffed. He estimates he was handcuffed for about ten

minutes.

Sergeant LaRonde then ordered Officer Mellini to take Curen-

ton back to the bank for a show-up identification. He did so

based on the information provided by a witness to a police inves-

tigator at the bank that a white man had jumped into a small blue

car and sped away quickly from the area of the bank at approxi-

mately the time of the robbery, and the fact that Curenton

matched the general description of the bank robber.

Officer Mellini then transported Curenton to the bank, ap-

proximately two to three blocks away, where the bank te'lers

viewed him through the bank’s plate glass window and advised

the police that he was not the perpetrator of the robbery. Curen-

ton was not handcuffed when he was transported to the bank.

Officer Mellini then drove Curenton back to Dempsey’s vehicle,

and Dempsey and Curenton were released.

Following the negative identification, the officers apologized

and advised the suspects that they had been stcpped because

Curenton matched the description of a bank robber. Further-

more, they explained that they had followed felony-stop proce-

dures for the safety of the officers and the suspects. Officer

Hickey gave Dempsey his card and told petitioner to have his boss

call him if he was late to work. After the defendants apologized,

Dempsey smiled and told the officers that he had been scared at

first, but that he had received rougher treatment from his

mother. Plaintiffs were detained for 13 minutes, from 2:29 p.m.

to 2:42 p.m.

Neither plaintiff was physically injured. No crowd gathered at

the scene of the detention, and Curenton and Dempsey testified

that no one they knew saw them.

Mark Curenton is black, about 6 feet tall and of medium build.

At the time of his detention, he was twenty-one years old and was

wearing clear-lensed glasses, a baseball shirt with a white body

and blue three-quarter length sleeves, burgundy or gray pants

and sneakers. Curenton testified that, at the time of the deten-

tion, he was waiting for Dempsey, who drove him to work. While

* Dempsey is white and drives a four-door blue Toyota compact.

he was waiting, State Police Trooper Kim Smith and State Police

Sergeant Frank Murray observed Curenton at the corner. Each

concluded that he did not match the description he or she had

heard and therefore decided not to question him. They did not

see Curenton get into a blue car.

Sergeant Murray and Trooper Smith received descriptions of

the bank robber over the Monroe County Emergency Communi-

cations frequency. They did not receive the Brighton Police fre-

quency.

Sergeant Murray also observed the defendants’ detention of

Curenton and Dempsey. He did not participate or assist in the

stop because he believed the defendants had the situation under

control.

Approximately two months later, Franklin Leonard confessed

to having committed the June 12, 1987, Monroe Savings Bank

bank robbery. Leonard is now in prison.

Training and Supervision

Plaintiffs also alleged that the Brighton Police Department

negligently trained and supervised the respondent officers. In

support of their cross motion for summary judgment, respon-

dents established that the felony-stop procedures followed by the

defendants were consistent with their departmental training and

the training of the New York State Division of Criminal Justice

Services Bureau of Municipal Police.

Each member of the Brighton Police Department has been

trained at a police academy or the Criminal Justice Training Cen-

ter and instructed on the fundamentals of New York Criminal

Procedure Law, Penal Law, arrest and detention standards and

procedures, use of force, and a wide variety of related topics.

This training is consistent with the training provided by the New

York State Division of Criminal Justice Services Bureau of Mu-

nicipal Police.

Additionally, all Brighton police officers receive ongoing, in-

service training and may attend further intensive training on such

subjects as use of firearms and deadly physical force, use of ra-

dar, criminal investigations, and numerous other subjects. Each

officer is also provided with the general orders of the Brighton

Police Department, which are updated regularly and address a

broad range of topics. The Department has specific policies and

procedures for responding to a bank robbery, arrest and deten-

tion and use of firearms.

Further, each officer is required to maintain a notebook of

training keys which are published by the Bureau of Operations

and Research of the International Association of Chiefs of Po-

lice. The training keys include felony vehicle approaches, felony

vehicle stops and searching prisoners.

The Department also requires each officer to watch video

training tapes produced and distributed by the Criminal Justice

Training Center covering such issues as probable cause, search-

ing subjects, handcuffing suspects, stop and frisk, officer safety

and eyewitness identification.

Petitioner offered no evidence in support of his contention

that respondents’ training and supervision was negligent. (A 72)

Proceedings Below

At the conclusion of lengthy discovery proceedings, plaintiffs

Dempsey and Curenton moved for partial summary judgment on

the issues of false arrest and excessive use of force. Respondents

cross-moved for partial summary judgment on the issue of negli-

gent training and supervision by the police department. The Dis-

trict Court granted respondents’ cross-motion for summary

judgment on the issue of negligent training and supervision and,

sua sponte, granted summary judgment to all respondents on the

issues of false arrest and excessive force and to the individual de-

fendants on the basis of qualified immunity. (A 77-78)

Plaintiff Dempsey (petitioner) appealed Judge Larimer’s grant

of summary judgment. Plaintiff Curenton did not appeal. The

Court of Appeals upheid the District Court decision. (A 2-3)

SUMMARY OF ARGUMENT

This case does not warrant the granting of a writ of certiorari.

Rule 10 of the Rules of the Supreme Court of the United States

enumerates some of the considerations which may prompt the

Court to grant certiorari. Those reasons include conflicting deci-

sions of the Courts of Appeals; state court decisions on federal

questions which conflict with decisions of United States Courts

of Appeals or other state courts of last resort; or United States

Courts of Appeals’ decisions on important federal questions

which conflict with established Supreme Court precedent. Peti-

tioner has not established, or even argued, that this case presents

any such considerations. It does not. Instead, he argues merely

that his case was wrongly decided by the lower courts.

Respondents maintain that the court below properly upheld

the District Court’s summary judgment in favor of respondents,

and there is no reason which would warrant the granting of cer-

tiorari in this case.

—

ARGUMENT

THE WRIT SHOULD BE DENIED

THERE ARE NO SPECIAL OR IMPORTANT

REASONS FOR GRANTING THE WRIT SINCE

THE SECOND CIRCUIT’S OPINION IS

CONSISTENT WITH THE PRECEDENTS OF

THIS COURT AND OTHER COURTS OF APPEALS

PETITIONER’S DETENTION FOR INVESTIGATIVE

PURPOSES WAS REASONABLE

An investigative detention which is limited in scope and in-

cludes the transportation of the suspect to the nearby crime scene

for identification is lawful where the police belie,e the suspect

matches the description of the perpetrator and diligently pursue

investigation in a reasonable manner. United States v. Sharpe,

470 U.S. 675, 84 L. Ed. 2d 605 (1985).

In United States v. Sharpe, this Court explained the policy con-

siderations involving investigative detentions as follows:

{W]e have emphasized the need to consider the law enforce-

ment purposes to be served by the stop as well as the time

reasonably needed to effectuate those purposes. Much as a

“bright line” rule would be desirable, in evaluating whether

an investigative detention is unreasonable, common sense

and ordinary human experience must govern over rigid cri-

teria.

Id. at 685, 84 L. Ed. at 615 (citations omitted). Furthermore, this

Court has admonisked courts not to “indulge in unrealistic sec-

ond guessing” about whether an arrest occurred or should have

occurred when “the police are acting in a swiftly developing situ-

ation.” Jd. at 686, 84 L. Ed. 2d 605, 616 (1979).

The police officers who detained petitioners were entitled to

rely on the description of the suspect which had been broadcast

over the police radio in stopping the suspects for the purpose of

identification. United States v. Hensley, 469 U.S. 221, 83 L. Ed.

2d 604 (1985). The broadcast descriptions of the bank robber in-

cluded a young, black male, approximately six feet in height, of

slim build, wearing a blue jacket or long-sleeved burgundy shirt,

sunglasses, and a blue or tan hat. Curenton is approximately six

feet tall and of medium build, was 21 years old and wearing a

‘ shirt with blue sleeves and glasses, and was carrying a bag. Fur-

thermore, Officer Sleep testified that he observed Curenton em-

erging from bushes within a few blocks of the bank and getting

into a car, which then drove away.

While Curenton did not match any of the descriptions exactly,

he met the general description. Moreover, the descriptions varied

considerably and eyewitness descriptions are known to be of

questionable reliability. Based on his experience that there is fre-

quently an additional individual in a getaway car, Curenton’s

actions and appearance, and his close proximity to the bank

within one hour of the robbery, Officer Sleep’s detention of the

plaintiffs was based on reasonable suspicion.

Moreover, respondents acted quickly to confirm or dispel their

suspicions. An investigative detention ‘“‘must be temporary and

last no longer than is necessary to effectuate the purpose of the

stop.” Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238

(1983). This Court has held that there is no rigid time limitation

which converts an investigative detention, as defined in Jerry v.

Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), into an arrest. United

States v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605 (1985).

Thus, in United States v. Sharpe, the Court concluded that a 20-

minute investigative detention was not unreasonable. The Court

noted that the defendants “‘diligently pursued a means of investi-

gation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the defend-

ant.” Jd. at 686, 84 L. Ed. 2d at 616.

As the courts below held, respondents reasonably detained De-

mpsey and Curenton only as long as was necessary to confirm

that they were not involved in the Monroe Savings Bank robbery,

at which time they were immediately released. These circum-

stances gave rise to no issues of law which merit review by this

Court.

RESPONDENTS USED REASONABLE FORCE IN-

EFFECTING THE STOP

In order to establish a Fourth Amendment excessive force

claim, petitioner must show that the force used by the respondent

officers was, in light of the facts and circumstances confronting

them, objectively unreasonable. Graham v. Connor, 490 U.S.

386, 104 L. Ed. 2d 453 (1989). This Court has held that

the ‘reasonableness’ of a particular use of force must be

judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight. ***

The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-

second judgments — in circumstances that are tense, uncer-

tain, and rapidly evolving — about the amount of force that

is necessary in a particular situation.

Graham v. Connor, 490 U.S. at 396-397, 104 L. Ed. 2d at 455-

456.

The test is an objective one: “whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation.” 490 U.S. at 397, 104 L. Ed. 2d at 456. A proper as-

sessment of whether the force used was excessive

requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.

Graham v. Connor, 490 U.S. at 396, 104 L. Ed. 2d at 455.

The Courts of Appeals have recognized that it is reasonable for

a police officer to draw his gun while approaching a vehicle

whose occupant may be an escaping armed felon. United States v.

Jackson, 652 F.2d 244 (2d Cir. 1981), cert. denied, 454 U.S. 1057,

70 L. Ed. 2d 594 (1981); United States v. Manbeck, 744 F.2d 360,

377 (4th Cir. 1984), cert. denied sub nom. O’Hare v. United

States, 469 U.S. 1217, 84 L. Ed. 2d 342 (1985); United States v.

Trullo, 809 F.2d 108, 113 (1st Cir. 1987), cert. denied, 482 U.S.

916, 96 L. Ed. 2d 679 (1987). As stated by Judge Van Graafeiland

in United States v. Harley, 682 F.2d 398, 402 (2d Cir. 1982):

[T]here is no hard and fast rule concerning the display of

weapons. ... What 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. The nature of the crime

under investigation, the degree of suspicion, the location of

the stop, the time of day, the reaction of the suspect to the

approach of police are all facts which bear on the issue of

reasonableness.

Such a show of force does not raise an investigative detention

to the level of an arrest. In United States v. Jackson, 652 F.2d 244,

249-250 (2d Cir. 1981), the Court of Appeals explained that:

[Tjo allow such protective measures to transform an investi-

gative stop into an arrest would create a dangerous dilemma

for the police officer in those situations, like this one, where

suspicion does not rise to the level of probable cause. If the

officer approaches a suspected robber with his gun still in

his holster, he increases the risk that he will be shot. If, on

the other hand, he protects himself by drawing his gun, he

increases the risk that a court will set the criminal free by

construing his action as an illegal arrest.

The Court concluded that it would be unreasonable to require

police officers to take such unnecessary risks. Furthermore, it

should be noted that, in the present matter, respondents holstered

their guns as soon as the pat-down searches of the suspects were

completed and it was determined that the suspects were not

armed.

Ancillary to the statutory right to detain is an officer’s author-

ity to frisk a suspect if he reasonably suspects that he is in danger

of physical injury. Jerry v. Ohio, 392 U.S. 1,27, 20 L. Ed. 2d 889,

910 (1968); United States v. Jackson, 918 F.2d 236 (Ist Cir. 1990).

Furthermore, the Courts of Appeals have held that the use of

handcuffs does not raise an investigative detention to the level of

an arrest. United States v. Glenna, 878 F.2d 967 (7th Cir. 1989)

(no arrest where the suspect was handcuffed for 10-15 minutes

while the police searched his vehicle); United States v. Bautista,

509 F.2d 675 (9th Cir. 1975) cert. denied sub nom. Monsivais v.

United States, 421 U.S. 976, 44 L.Ed. 2d 467 (1975); United

States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983). Thus, it is clear

that the fact that petitioner was handcuffed only briefly for the

purpose of ensuring officer safety does not mean that he was un-

der arrest.

This incident represents an unfortunate case of mistaken iden-

tity. Respondents stopped Dempsey and Curenton in the reason-

able belief that Curenton matched the eyewitnesses’ descriptions —

broadcast over the police radio, and pursued a minimally intru-

sive investigation intended to confirm or dispel suspicion

quickly, while protecting their own safety. Respondents followed

accepted procedures in conducting the detention, and were thus

able to release Dempsey and Curenton in less than 20 minutes,

having ensured that no one was hurt and that the two were not, in

fact, involved in the bank robbery. The determination of the

lower courts that respondents’ detention of the petitioner was

reasonable did not involve any novel issues of law, and there is no

reason for the matter t~ be considered by this Court.

PETITIONER FAILED TO ESTABLISH ANY BASIS

FOR MUNICIPAL LIABILITY

This Court recently held that:

[T]he inadequacy of police training may serve as the basis

for §1983 liability only where the failure to train amounts to

deliberate indifference to the rights of persons with whom

the police come into contact.

City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d

412, 426 (1989) (emphasis supplied). Furthermore, the Court

held that in any case alleging municipal liability under Section

1983, there must be a direct causal link between the municipal

policy or custom and the alleged constitutional deprivation. /d.

Proof of causation is required because a municipality can be held

liable under Section 1983 on/y when the municipality itself causes

the constitutional violation at issue. “‘Respondeat superior or vi-

carious liability will not attach under §1983.” Jd. at 385, 103 L.

Ed. 2d at 424 (citing Monell v. New York City Dept. of Social

Services, 436 U.S. 658, 56 L. Ed. 2d 611 (1978)).

In other words, “a municipality can be liable under §1983 only

where its policies are the moving force behind the constitutional

violation.” City of Canton, Ohio v. Harris, 489 U.S. at 389, 103

L. Ed. 2d at 427, quoting Monell v. New York City Dept. of So-

cial Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611 (1978), and Polk

County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509 (1981) (empha-

sis supplied). Recovery from a municipality is thus limited to acts

“of the municipality”, that is, acts which the municipality has

officially sanctioned or ordered. Pembaur v. City of Cincinnati,

475 U.S. 469, 480, 89 L. Ed. 2d 452 (1986).

In the course of this litigation petitioner deposed thirteen indi-

viduals and served five sets of interrogatories and three notices to

admit. He also obtained copies of respondents’ relevant person-

nel files. Nevertheless, petitioner was unable to show any depart-

mental custom or policy which would cause or condone civil

rights violations.’ On the contrary, as noted by the District Court,

the department maintains an extensive training program. (A 69-

70n.)

Moreover, :n support of his claim, petitioner cites merely this

single incident. However, single acts or isolated incidents are in-

sufficient as a matter of law to establish the “‘official policy requi-

site to municipal liability under §1983.” Oklahoma City v. Tuttle,

471 U.S. 808, 85 L. Ed. 2d 791 (1985).

Since petiticner failed to furnish any evidence of a municipal

policy or practice of deliberate indifference and causation, the

court below properly upheld the dismissal of petitioner’s claims

of negligent training and supervision. The determinations below

relied on uncontroversial principles established by decisions of

this Court and do not merit review.

Contrary to petitioner’s contention, Use of Force Reports are maintained by

respondents, but none were filed since no force was employed in this deten-

tion other than the display of weapons. The magistrate reviewed petitioner's

contentjon in this regard and reasonably concluded that if no Use of Force

Reports existed regarding this incident, then none needed to be produced

’

IV.

THE INDIVIDUAL OFFICER RESPONDENTS ARE

ENTITLED TO QUALIFIED IMMUNITY

Municipal employees are shielded from personal liability

where the employee’s conduct has not violated established legal

standards:

Government officials performing discretionary functions

are shielded from personal liability “insofar as their con-

duct does not violate clearly established statutory or consti-

tutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L.Ed 2d 396 (1982). Even where the law is

‘clearly established” and the scope of an official’s permissi-

ble conduct is “clearly defined,” the qualified immunity de-

fense also protects an official if it was “objectively reason-

able” for him at the time of the challenged action to believe

his acts were lawful. Anderson v. Creighton, 483 U.S. 635,

641, 107 S. Ct. 3034, 3039-40, 97 L. Ed 2d 523 (1987) (ex-

plaining Harlow vy. Fitzgerald, 457 U.S. at 800, 102 S. Ct. at

2727); Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987).

Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir. 1990), cert. denied,

__U.S.__, 112 L. Ed. 2d 414 (1990). Thus, the individual defend-

ants are entitled to qualified immunity on two grounds: their

conduct was objectively reasonable, and it did not violate

“clearly established”’ rights. Finnegan v. Fountain, 915 F.2d 817

(2d Cir. 1990).

As the District Court held, the respondent officers acted rea-

sonably, and in accordance with Fourth Amendment standards,

in detaining Dempsey to investigate the robbery at the Monroe

Savings Bank.

Officer Sleep stopped the plaintiff in the reasonable belief that

Curenton matched the description broadcast over the police ra-

dio. Respondents then pursued a minimally intrusive investiga-

tion intended to confirm or dispel suspicion quickly, while pro-

tecting their own safety. These actions were objectively

reasonable.

Significantly, a New York Court of Appeals decision rendered

approximately one year before this incident specifically autho-

rized such a detention and a prompt show-up identification for

the purpose of investigating a robbery and a prompt show-up

identification. People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163

(1986). The officers are therefore also entitled to qualified immu-

nity because their conduct did not violate any “‘clearly estab-

lished”’ legal rights.

Accordingly, the court below properly upheld the dismissal of

the claims against the individual officers on the basis of qualified

immunity.

THE DISTRICT COURT PROPERLY GRANTED

SUMMARY JUDGMENT

Summary judgment is properly granted when there is no genu-

ine issue as to any material fact and when, based upon facts not in

dispute, the moving party is entitled to judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d

265, 273 (1986).

This Court has held that a district judge may search the record

and grant summary judgment where appropriate:

[T]he motion may, and should, be granted so long as what-

ever is before the district court demonstrates that the stand-

ard for the entry of summary judgment, as set forth in Rule

56(c), is satisfied. One of the principal purposes of this sum-

mary judgment rule is to isolate and dispose of factually un-

supported claims or defenses ....

Id. at 323-24, 91 L. Ed. 2d at 274. Furthermore, “the 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.”

Id. at 326, 91 L. Ed. 2d at 275.

The rule is also well established that the mere existence of some

factual dispute will not frustrate an otherwise proper summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,

91 L. Ed. 2d 202 (1986). Thus, the “preliminary question for the

judge [is] not whether there is literally no evidence, but whether

there is any upon which a jury could properly proceed to find a

verdict for the party producing it upon whom the onus of proof is

imposed.” /d. at 251, 91 L. Ed. 2d at 202, quoting /mprovement

Co. v. Munson, 14 Wall 442, 448, 20 L. Ed. 867 (1872).

In this case, petitioner himself moved for summary judgment,

arguing that there were no material issues of fact regarding his

detention. Petitioner was aware that he should present all his evi-

dence to the court and, in fact, provided the court with not only

his initial moving papers, but three supplemental affidavits and

numerous exhibits. ,

Petitioner now selectively claims that certain facts are dis-

puted. Petitioner argues that there are no disputed facts as to

whether the detention constituted an arrest without probable

cause, and whether excessive force was used, but maintains that

“in all other respects” there remain issues of fact. (Petition, p.

48). He argues that there are credibility issues (id. pp. 28-29, 55)

and makes various other references to tangential and irrelevant

“disputed” facts such as whether or not Officer Sleep followed

petitioner before detaining him (p. 40) or whether Officer Hickey

deliberately stepped on petitioner’s hand in the process of hand-

cuffing him (p. 37).

Petitioner cannot have it both ways. These allegedly disputed

facts all relate to the issues of the reasonableness of the detention

and the amount of force used, the very issues on which petitioner

moved for summary judgment. Moreover, even if petitioner’s

version of events were accepted, he cannot establish any violation

of his civil rights.

It is undisputed that Dempsey was detained for less than 20

minutes because Mark Curenton matched the general description

of the robber of the Monroe Savings Bank. Furthermore, it is un-

disputed that the officers directed their guns at the suspects

briefly, handcuffed them and searched them for weapons.

Petitioner claimed that one of the officers intentionally

stepped on his hand while handcuffing him. While the officer

does not recall doing so, as the District Court held, even if the

officer inadvertently stepped on petitioner’s hand, ‘uch an act

did not constitute use of excessive force. (See footnote 4 of the

District Court opinion published at 749 F. Supp. 1215, 1225; the

footnote was omitted from petitioner’s appendix.)

Finally, petitioner failed to submit any evidence that his alleg-

edly unconstitutional arrest was the product of a police depart-

ment policy or practice. While he made various claims as to vari-

ances from the Department’s policies and training, they are

immaterial. Such a failure requires the grant of summary judg-

ment on behalf of the municipality.

Based on the undisputed facts, petitioner submitted his motion

for summary judgment, respondents cross moved, and the Dis-

trict Court reasonably held that summary judgment was appro-

priate. The Court of Appeals upheld the District Court’s ruling,

and petitioner’s attempts to create genuine and material issues of

fact at this late date are disingenuous and do not provide this

Court with a basis for granting certiorari.

CONCLUSION

Petitioner has failed to estabiish any basis for the grant of cer-

tiorari. The Court of Appeals properly upheld the District

Court’s grant of summary judgment to respondents.

Rochester, New York Respectfully submitted,

September 30, 1991