Petition for Writ of Certiorari — Greene v. Douglas

EDITOR'S NOTE

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Supreme Court, U.S.

wv FILED

991276 JAN 26 2000

OFFICE OF THE CLERK

No.

In The Supreme Court of the United States

Robert Greene, Petitioner

V.

Douglas David, etal Respondent

On Petition for Writ of Certiorari to the United States Court

Of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

Robert Greene Pro se

Re 4111 State Route 9

gy Warrensburg, NY 12885

7 518-623-9671

Ee a Te ETE OCT Sent ne ae

i

QUESTIONS PRESENTED FOR REVIEW

Does a public official have the authority, without probable

cause, to order a person to leave their property at a time when

it is exposed to many people?

Does a combination of non-illegal acts, when put together,

then constitute an illegal act?

Can probable cause be based upon false information |

conceming events that never happened? |

Can summary judgement be granted when there are genuine

issues as to material facts and without probable cause?

Petitioner was ordered to leave his property until the next

morning, is that a reasonable act?

Did the District Court and the Circuit Court violate their

own rules and regulations?

———————eerr. EAs _ ses=eee_eeeG_5_53O RR

i

Defendants:

Appearing for Douglas David, Warren County Sheriff

Department and Warren County Board of Supervisors

Mario Cometti of Ryan and Smalacombe

102 Hackett Boulevard, Albany, NY 12209

Tel. No. 518-449-5501

Appearing for Brian Engle and Warrensburg Volunteer

Fire Company.

Christopher Dressler of Maynard, O'Connor, Smith and

Catalinotto, 80 State Street, Albany, NY 12207

Tel. No. 518 465 3553

Appearing for Town of Warrensburg (New York)

John S. Hall, Jr. Post Office Box 440

3885 Main Street, Warrensburg, New York 12885

Tel. No. 518 623 2851

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TABLE OF CONTENTS

Questions presented for review

List of defendants

Table of contents

Table of authorities

Petition for Writ

Jurisdiction

Statement of Case

False information

Creditability climinated

Probable cause

Circuit Court erred

Summary Judgement

Pro se

Reasons for granting Writ

Conclusion

Relief sought

Appendix

Decision Court of Appeals 2 Cir.

Recons. Dist Court NNY

Decision 7

Decision

Affidavits of:

Brian Engle

Douglas David

Robert McNally

Jean Hadden

Anthony Sapienza

Jean Hadden

Robert Greene

Timothy N. Taylor

Robert Greene

Laws

”

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Pages App

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iv

TABLE OF AUTHORITIES

Cases: Page

Singleton v City of New York 632 F. 2d 185 3

Anderson v Liberty Lobby Inc. 91 L Ed 2d 208 10

Statutes and Rules:

New York Penal Law 195.15 9

Federal Rules of Civil Procedure G¢ (¢ ) 11

PETITION FOR WRIT OF CERTIORARI

Petitioner preys for a Wnt of Certiorari to be issued to

review the decisions of The United States Court of Appeals

for the Second Circuit and The District Court for Northern

New York that have been entered in this case: (a) to decide

the Civil Rights of people to Protect Their Property, (b) to

decide in some fashion the magnitude of events that would

trigger probable cause against the property owner, (c) to

exercise this Court's supervisory power in regards to the

lower Courts.

JURISDICTION

The jurisdiction of this Court was invoked pursuant to 28

USC par. 1254(1). The decision was filed on October 29,

1999. The jurisdiction of the United States Court of Appeals

for the Second Circuit was invoked pursuant to 28 USC

1291. The jurisdiction of the District Court for Northern NY

was invoked pursuant to28 USC par.1331, 1343 (3) and (4),

2201 and 42 USC 1983.

STATEMENT OF THE CASE

This case is a result of actions and events that happened

during a house fire on January 8, 1994, where petitioner was

the owner and resident. At about one hour after the fire

began, petitioner was ordered to "leave the property” by

Warren County Deputy Sheriff. Douglas David, later arrested

and taken away in handcuffs. (See App-18)

The order to “leave the property” shortly followed the

petitioner's asking the firemen to put their water into a

location where the fire was burning, indicated by a noticeable

amount of black smoke coming from a spot that was under a

collapsed floor acting like a roof. Their water was being

placed on top of this collapsed floor and not underneath a

side of the collapsed floor where the water being squirted

could easily reach the burn.

Petitioner first commented to a firemen that was putting

water on this collapsed floor and into a small pile of rubble

that was ahead of the rising black smoke. Petitioner said to

the effect "there is a cement wall in the way". That fireman

made no change in their attack with the water. At that time

the attic part of the house was gone, half of the main floor

had collapsed into the cellar and there was almost no visible

flames showing from the remains.

Petitioner then spoke to several firemen perhaps thirty feet

away from the first fireman. These firemen had white

helmets that were labeled "chief" and or “assistant chief ".

They refused to change the location of attack on the

undemeath fire to a more favorable location. citing near by

propane tanks.

With the refusal, petitioner immediately walked away and

was about thirty feet away, walking away from the house

2

when petitioner heard from behind "You have to leave".

Turning around, seeing the sheriff's uniform for the first time

at the fire scene petitioner responded "This is my property”.

Several similar comments the deputy added "or you will be

arrested". With no further comments petitioner continued

walking away from the house out the driveway to the motel

the other side of route 9.

The arrest occurred, perhaps a half an hour later, part way

down the driveway leading to the house at about one hundred

fifty feet away from the house. The driveway and the main

road is in the shape of a "Z", that is leaving the main road at

about a 45 degree angle, going two hundred feet down a hill |

of over twenty feet drop in elevation to almost a "U" turn |

then about two hundred almost level to the house, and |

continuing with out the "UL" turn to another house.

Petitioner had stopped about fifty feet short of the "U" turn

where there was an operating fire engine that was unable to

make the sharp turn due to the fair sized snow banks.

Petitioner had walked down the driveway with a neighbor,

Anthony Sapienza, not talking to anybody else, not being

yelled at, not being stopped or confronted by anybody. Ata

point about fifty feet from this sharp almost "U" turn where

there was a fire engine both of us stopped and looked at the

remains of the house for a short time perhaps twenty to thirty

seconds.

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At that time, petitioner, upon haring a noise behind him,

turned and saw Warren County Deputy Sheriff (in uniform),

Douglas David, charging towards him. Petitioner

sidestepped and he went past. Petitioner was then arrested,

wrestled to the ground, hand cuffed and taken to the sheriff's

substation for booking. Later the appearance ticket was

Adjourned on Contemplation of Dismissal (ACOD) which

was ultimately dismissed.

3

Petitioner upon being returned to the scene of the fire,

shortly went to the motel room and stayed there until the 2

AM flare up.

To quote a decision: Under New York law, and, a fortiori,

under federal law, terminating a criminal proceeding after

adjournment in contemplation of dismissal is in all respects

favorable to the defendant. - Singleton v City of New York,

632 F.2d 185 pg 197 (1980). Also: The strong public

policy in favor of providing a remedy for those whose federal

constitutional and statutory rights have been deprived by

individuals acting lawlessly under color of state law is a

powerful one. \if the federal courts serve any great purpose,

it is in protecting these rights. The Supreme Court has

reminded us that civil rights legislation is to be broadly

construed. - Singleton v City of New York, 632 F.2d 185

pg 205.

FALSE INFORMATION

The District Court has erred in relying heavily upon false

information supplied to it by the defendants.

This false information is presented in the appendix. The

page numbers and paragraph numbers will be given.

Affidavit of Brian Engle pages 28 - 30.

Affidavit of Douglas David 30 - 35.

Affidavit of Robert McNally 35 - 40.

Items of false information are:

Drag fire fighters away by pulling on them or their hoses.

28-8, 30-7, 35-15

insisting the fire had to be fought in this fashion and we had

to do as he requested. 28-8, 30-7, 31-7, 32-11, 32-12, 37-20.

4

on three or four occasions told to stand back, would do so

only to inch back and repeat behavior. 28-9, 31-7, 32-12, 32-

13, 35-15, 35-19 and 38-22.

Told not to go near area because of danger of electrocution.

28-10, 31-8, 32-11 and 36-17.

Plaintiff stayed away for a short period but then began

interfering again. 29-12.

Mrs. Greene remained at the scene with out any problems.

29-13 and 39-28.

Mr. Greene returned remained at the scene but no longer

interfering. 29-13 and 34-17.

I and other firemen left the scene around 11PM with the

Greene's still at the premises. 29-14

Greenes present 30-15 and 30-16.

Grabbed a hose from firefighters. 30-7 to 8, 31-9, 35-15 and

37-20

tapping on firemen's shoulders. 31-9, 35-15 and 37-20.

Repeatedly told not to go into house. 31-8, 32-11 and 36-11.

Running around building in close proximaty to the fire.

31-9 and 37-20

Plaintiff does remember leaving the property alone. 33-14

Called to plaintiff to stop 33-16 and 39-25

Turned and looked then began running towards house 34-16

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continued to fight while trying to get to house 34-16

and 39-25

running down the driveway 38-24, 38-25 and 39-25

had to stay away from the scene 39-28

Plaintiff is certain the property is missing 40-29

Jean Hadden counters the false information:

Running 41-4 and 45-6

Close to building 41-4 and 45-6

Confrontations with others 41-4

Leaving the scene by way of driveway after briefly and

orderly talking to a group of firemen and then the deputy

sheriff. 41-6

Not conversing with others 42-6 (top)

Pulling hose away 42-7, 45-7 and 45-9

Pulling on firefighters 45-9

Anthony Sapienza counters the false information:

Walked down driveway 43-4 and 44-1]

Not being accosted or stopped 43-5 and 44-1]

6

Briefly stopping, suddenly and without warning wrestled to

the ground 43-6

In the appendix pages 51 and 52 there is also an itemized

list of the direct paragraphs of affidavits of false information

and the affidavits of the witnesses.

CREDITABLY ELIMINATED

With all of this false information being presented by the

defense it eliminates their creditably.

Petitioner admits to:

Straightening a kink in a fire hose that was greatly

restricting the water going through it. App-48 par 25 and

App-9 mid page.

Petitioner admits to asking firemen to direct water under a

collapsed floor acting like a roof. App-26 to 29 and mid page

App-9. Par 28 is a different event.

Walking around the house at 30 to 50 feet away from the

building. App-49 par 31

Walking near low power lines within 3 - 4 feet but not

closer or touching them. App-47 par 17 thru 24

Retrieving two pieces of electrical equipment from just

inside of the cellar doors that vehicles had been driven

through. App 46 par 6 thru 10. Please note the App-47 par

11 thru 14 from the informational affidavit of Timothy N.

Taylor App-50 section 4 and App-51 section 5.

However, please note in particular App-51 (C ), "Salvage

as much as possible, by removing from the building using

EE Se.

7

air packs until high heat or structural collapse is eminent or

covering items with salvage covers [tarps] if that area is

deemed to be salvageable”.

In New York there is no distributed material of any kind,

that petitioner is aware of, regarding official state procedures

or recommendations in regards to fires in homes. Many large

buildings do have posted evacuation routes that may or may

not help dependant upon the fire. News media comments

have been repeatedly "to get out of the building then watch".

In the first few minutes of a fire there is a good possibility

that some possessions can be saved. Since our house fire was

a television news cast showing a building burning, in the

Albany, New York area, with firemen and other people

carrying out belongings very rapidly from the end of the

house that was not burning. This indicates that salvaging

belongings from a burning building in New York is not

illegal. Admittedly safety of those people involved is of

utmost concern and accidents do occur.

Please note the description in App. Pg. 46 par. 6-14, 16. To —

quote par. 10 "At that time there was no smoke or heat in the

cellar and only a small amount of fire at the mid house

stairway." So this amounted to being similar to walking

about twenty feet from a campfire. In addition there were no

posted barrier tapes, see App. Pg. 47 par. 15 and Pg. 50 par. 3

(C).

To any one who reads this petition, I present a thought for

them to consider. Admittedly most all people do not want a

house fire but would you rather have the New York

procedure of get out, stand and watch or the New Hampshire

way of salvage valuables when with in the realm of adequate

safety.

8

Petitioner became intormed ot this noticeably ditterent

procedure of firefighting a year or so after our house fire. I

know which procedure I would much rather have followed.

Just remember, it could happen to you!

PROBABLE CAUSE

A common definition is, "probably cause exists whenever a

police officer has a reasonable suspicion that a crime has

been committed."

Therefore in considering this case:

1. Is 1t a crime, for in a few seconds to help the firemen

by moving a fire hose to straighten a kink thereby allowing a

full flow of water to pass through the hose?

2. Is it a crime, to calmly ask firemen to put water

undermeath a collapsed floor that is acting like a roof and

preventing the water from reaching the burn?

3. Is it a crime, to walk around a house at a sate distance

when no barrier tapes are deployed on the area?

4. Is it a crime, to walk near suspected energized electric

wires that have dropped to chest height when petitioner has

had over titty years experience handling live and in use

electric wiring and high voltages of 30,000 volts that occur in

color television sets? Also please note - that to actually touch

these wires would not be any more dangerous than handling a

cord of an appliance while it is plugged into an electrical

socket. a

5. Is it a crime, to retrieve property from a burning

building? Such was shown on local news casts. Petitioner

can venture a guess that everybody on this earth would want

9

to save everything from a burning home or building.

6. In addition, does putting all of these episodes into one

event then become a crime?

These above questions are somehow answered affirmative

by the Circuit Court, See App pg. 2 and I quote:

"As the District Court noted, Greene was not entitled to

recover in this action if the temporary eviction and arrest

were supported by probable cause. The acts that Greene

admitted he performed sufficed to establish the existence of

probable cause to believe to believe that he was intentionally

and unreasonably obstructing the efforts of the firefighters in

extinguishing the fire, see N. Y. Penal Law Par. 195.15

(McKinney 1999). The question of whether Greene

performed certain other acts, which he disputed, was thus not

material, and hence his submission of evidence to support

those disputes could not defeat summary judgement"

If these above numbered items do not contain a criminal act

then can probable cause be based upon false information that

is fabricated from events that never happened?

CIRCUIT COURT HAS ERRED

With negative answers to the above question and the

previous five numbered questions the Circuit Court has erred.

With a positive answer to any one of these questions then

who has drastically changed the penal laws of New York

State without telling anybody else?

This is another reason that petitioner is requesting that the

Supreme Court exercise its supervisory powers over the

lower courts.

10

SUMMARY JUDGEMENT

Petitioner has presented evidence that there is no probable

cause.

"Summary judgement will not lie if the dispute about a

material fact is ‘genuine’, that is if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party. Anderson v Liberty Lobby Inc. 91 L Ed 2d 208

Petitioner will present material facts of genuine issue. They

are:

1. Petitioner was ordered to leave his property with out

probable cause. Property disappeared by acts of unknown

subjects.

2. Petitioner was arrested and told to not return until the

next morning, which is much longer than the time needed to

extinguish the fire. Is that reasonable? It is also a public

embarrassment.

3. Petitioner by not being present to effect a guarding

action did loose items of property. Half of the cellar did not

get completely destroyed where they were. See App-40

Therefore : Is the moving party entitled to a judgement as a

matter of law when their defense is based upon false

information?

Information that has been presented should cause a jury to

render a verdict in petitioner's favor. If I was a jury member

and presented with this same information, there is no doubt in

my mind which way I would render a verdict. I also consider

any unbiased and impartial jury members would yeild a

similar verdict.

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Fa OG SA a ITS SRR Pee"

11

This adheres to the Federal Rules of Civil Procedure 56 (c)

"Summary Judgement shall be rendered forthwith if the

pleadings, deposition, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issues as to any material fact and that

the moving party is entitled to a judgement as a matter of

law. App-11.

PRO SE

Petitioner as pro se knows a few of the Court's terms and

procedures. The Court by its own instructions is to proceed

in the way most favorable to the petitioner.

REASON FOR GRANTING THE WRIT

This case has an important question concerning the civil

rights of the people of the United States.

CONCLUSION

The defendants have presented the Court with a "blizzard"

of false information of events that "never happened” in a way

to achieve "Probable Cause". Petition has presented

numerous items of this blizzard that eliminates the

creditability of the defendants pleadings.

While this case involves events of one house fire, there can

easily be over one hundred thousand house fires in this nation

per year. Common events that may occur show the need for

the Court's guidance. Should this Petition for Writ of

Certiorari b denied then the Court is ruling that even very

minor events can be a "Probable Cause" for ejection from

their property or arrest of the property owner in an increasing

of police powers towards a police state such that the police

have virtually unlimited powers to do almost anything.

12

Warren County Deputy Sheriff, Douglas David acting in his

official capacity as deputy sheriff and acting under the color

of State law ordered petitioner to leave his property and later,

in the same capacity, arrested petitioner.

Should this be an unpublished decision, petitioner will strive

to have the decision and its results widely published.

RELIEF SOUGHT

Wherefore, petitioner respectfully preys that this court will

issue a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit.

Respectfully pe

Robert Greene Pro se.

4111 State Route 9

Warrensburg, New York 12885

518-623-9671

App |

ALNY \ NDNY

UNITED STATES COURT OF APPEALS 97-cv-14

FOR THE SECOND CIRCUIT Kahn

Homer

SUMMARY ORDER

I9-7527

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR

ANY OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

Oct. 29,1999 Foley Square, New York City

Circuit Judges: Amalya Kearse, Rodger Miner and

Jose Cabranes

Robert Greene Plaintiff- Appellant

V

Douglas David et al Defendant- Appellees

Appeal from the United States District Court for the

Northern District of New York.

This cause came on to be heard on the record from the

United States Court for the Northern District of New York.

and was argued by plaintiff pro se, submitted by council for

defendant Town, and argued by counsel for the remaining

defendants.

ON CONSIDERATION WHEREOPF, it is now hereby

ordered, adjudged, and decreed that the judgement of said

App 2

District Court dismissing the complaint and the order

denying reconsideration be and they hereby are affirmed.

Plaintiff Robert Greene appeals from a judgement of the

United States District Court for the Northern District of New

York, Lawrence E. Kahn, Judge, dismissing his complaint

brought under 42 U.S.C. Par. 1983 against various

defendants in connection with his temporary eviction from

his property and his subsequent arrest during the attempt by

the defendant firefighters to fight a fire at his house. On

appeal, Greene contends that the District Court improperly

granted summary judgment despite the existence of genuine

issues of material fact, and that the court should have granted

Greene’s motion reconsideration. We disagree, and we

affirm substantially for the reasons stated in Judge Kahn’s

Memorandum-Decision and Order dated January 21, 1999,

and his Memorandum-Decision and Order dated April 7,

1999.

As the district court noted, Greene was not entitled to

recover in this action if the temporary eviction and arrest

were supported by probable cause. The acts that Greene

admitted he performed sufficed to establish the existence of

probable cause to believe to believe that he was intentionally

and unreasonably obstructing the efforts of the firefighters in

extinguishing the fire, see N.Y. Penal Law Par. 195.15

(McKinney 1999). The question of whether Greene

performed certain other acts, which he disputed, was thus not

material, and hence his submission of evidence to support

those disputes could not defeat summary judgement. See

generally Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986) ; Knight v U.S. Fire Insurance Co. , 804 F. 2d 9,

10-11 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). We

see no abuse of discretion in the court’s denial of plaintiff's

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App 3

motion for reconsideration. The evidence submitted in

support of that motion could not properly be characterized as

“new” and, in any event, it did not warrant any change in the

court’s prior conclusion.

We have considered all of the plaintiff's contentions on this

appeal and have found them to be with out merit. The

judgment and order of the district court are affirmed.

FOR THE COURT:

KAREN GREVE MILTON,

Acting clerk

By:

/s/ Lucille Carr

App 4

UNITED STATES DISTRICT COUR I

NORTHERN DISTRICT OF NEW YORK = 97-CV-14

ROBERT GREENE _ Plaintifl LEK/DRH

Filed Apr. 8

V 1999

DOUGLAS DAVID Defendants,

LAWRENCE E. KAHN, | District Judge

MEMORANDUM-DECISION AND ORDER

By Memorandum-Decision and Order filed January 22,

1999, this Court granted summary judgement to the

remaining defendants and dismissed the action in its entirety.

Final judgement was entered the same day. Presently before

the Court is Plaintiff's motion for reconsideration of the

January 22, 1999 decision. Generally “if a party fails to

bring a motion for reconsideration pursuant to a specific

federal rule, such motion will be construed as a motion under

Rule 59(e), which permits a district court, upon motion and

within its discretion, to alter or amend a judgement provided

such motion is filed within ten days of the entry of judgment’

Demaio v Mitchell, No. 93-CV-1229, 1998 WL 9226, *1

(N.D.N.Y. Jan. 7, 1998). The ten day period is calculated

exclusive of weekends and holidays pursuant to Fed. R. Civ

P. 6. (foot note 1) In this case, excluding weekends ,

Plaintiff’ s motion was filed nine days after the entry of

judgement, and will therefore be reviewed pursuant to Rule

59 (e). (foot note 2)

foot note 1 - After January 1, 1999, Local rule 7.1 (2)

specifies that the time for reconsideration motions is ten

“calendar” days. Although this can be construed to include

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App 5

Ft nt contd 1 - weekends, the Court declines to interpret it in

such a fashion in order to avoid creating a conflict between

the Local Rules and the governing Federal Rules of Civil

Procedure. See United States v. White, 980 F. 2d 836, 844

(2d Cir. 1992) (“a construction of a local rule that creates a

conflict with a federal rule should be avoided.”)

Ft nt 2 — The Court wishes to clarify that the chief distinction

between a Rule 59(¢) motion and a Rule 60 ( b) motion, for

purposes of this action, is that the filing of a Rule 59 (e)

motion tolls the period in which the movant may file a notice

of appeal until a decision on the reconsideration motion is

rendered.

I. Discussion

Reconsideration of a prior decision is discretionary and the

factors that generally compel reconsideration are “an

intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent

manifest injustice.” Virgin Atlantic Airways Ltd. V

National Mediation Bd., 956 F. 2d 1245, 1255 (2d Cir.), cert.

denied, 506 U.S. 820 (1992). It is well-settled that Rule 59

is not a vehicle for relitigating old issues, presenting the case

under new theories, securing a rehearing on the merits, or

otherwise taking a “ second bite of the apple” Sequa Corp. v

GBJ Corp., 156 F. 3d 136, 144 (2d Cir. 1998). The motion

for reconsideration “is an extraordinary remedy which should

be used sparingly,” 11 WRIGHT, MILLER & KANE,

FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d Par.

2810.1 (West 1995). Moreover, the decision of whether to

grant a motion for reconsideration lies within the sound

discretion of the district court. See Doolittle v. Ruffo,

1996 WL 167662, at *2 (N.D.N.Y. April 1, 1996).

Plaintiff does not allege that there has been an intervening

change in controlling law. Thus, he must rely on newly

App 6

discovered evidence or demonstrate a clear error in the

Court’s decision. Newly discovered evidence must have

become available only after judgment with the exercise of

due diligence. See Atlantic States Legal Found., Inc. v

Karg Bros., Inc., 841 F. Supp. 51, 55-56 (N.D.N.Y. 1993).

Plaintiff does offer certain evidence, including his own

affidavit, a video tape allegedly showing some of the events

at issue, and an amended affidavit from Timothy Taylor.

Two other affidavits, by Anthony Sapienza and Jean Hadden,

which Plaintiff submitted roughly a month after Plaintiff filed

his reconsideration motion, are referenced in his supporting

affidavit.

Very little, if any of this, can be considered to be “newly

discovered.” Plaintiff's own affidavit, discussing himself and

his personal recollection of the disputed events, and the

affidavit of Timothy Taylor, which is substantially the same

as was previously submitted, clearly do not qualify.

Similarly, Sapienza and Hadden had previously submitted

affidavits, which were considered by the Court prior to its

January 22, 1998 decision. After reviewing the videotape,

and assuming that it could not have been produced at an

earlier time, the Court finds nothing in it that would justify

reversing the Court’s prior Order.

Finally, The Court finds nothing in Plaintiff's memorandum

or the supporting documenits which demonstrates that this

Court made a clear error in its decision.

Accordingly it is hereby

Ordered that Plaintiff's motion for reconsideration is

DENIED and it is further

Ordered that the Clerk serve a copy of this order on all

parties by regular mail.

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App 7

IT IS SO ORDERED.

/$/ LAWRENCE E. KAHN

United States District Judge

Dated: 4/7,1999 Albany, New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ROBERT GREENE JUDGEMENT IN A CIVIL CASE

Plaintiff Docket No. 97-cv-14 LEK/DRH

V Filed January 22, 1999

Douglas David et al

Defendants

XX Decision by the Court. This action came to trial or

hearing before the Court. The issues have been tried and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED that the motion to

dismiss brought by Defendants David, Warren County

Sheriff's Department and Warren County Board of

Supervisors is GRANTED and the action is therefore

DISMISSED in its entirety, all in accordance with the

Memorandum-Decision and Order of the Hon. Lawrence E.

Kahn, U.S. District Judge dated January 22, 1999.

Signed: William J. Griffin Deputy Clerk.

Decided on the submissions by: -

Robert Greene pro se plaintiff.

App 8

For defendants: Douglas David, Warren County Shenti's

Department and Warren County Board of Supervisors —

Robert P. McNally

Brian Engle and Warrensburg Volunteer

Fire Co. — Stephen C. Prundente

District Judge — Lawrence E. Kahn

Memorandum — Decision and Order

In this action brought pursuant to 42 U.S.C. Par. 1983,

Plaintiff alleges that his constitutional (and or civil rights)

were Violated by the defendants when he was ordered to

leave his property and subsequently arrested during the

attempt by the Defendant Warrensburg Volunteer Fire (“Fire

Company”) to fight a fire occurring in his house. By

Memorandum — Decision and Order filed on January 5, 1998,

this Court granted the motion to dismiss brought by

Defendants Brian Engle and the Fire Company, and similarly

granted the motion to dismiss brought by Defendant Town

Board, Town of Warrensburg. Presently before the Court is a

motion for summary judgement pursuant to Fed. R. Civ. P.

12(c). For the reasons discussed below, summary judgement

is granted to all remaining defendants.

I. Facts

Resolving factual disputes in favor of the Plaintiff, the facts

are as follows. On January 8, 1994, a fire started in a

propane clothes dryer. After his efforts to put out the fire

were unsuccessful, Plaintiff's wife called the Warrensburg

Fire Department. Brian Engle (“Engle”), Chief of the

Warrensburg Fire Department, dispatched his firefighters to

the scene, who arrived at the plaintiffs house shortly after

eer

App 9

receiving the call. When Engle himself arrived, he

determined that the fire had spread throughout the house and

called on fire departments from the neighboring Towns of

Chester and Horicon for assistance.

While firefighting efforts were ongoing, Plaintiff entered

the house through the cellar door to retrieve electrical

equipment. Plaintiff dep. At 28. At that time there was a

“slight bit of fire” at the stairway. Id. (Plaintiff's note- this

was over twenty feet away and no smoke in the air). At some

later point, Plaintiff walked around the house to an area

where electric wires were hanging at about chest level. An

employee of the power company shouted at Plaintiff to stay

away from the wires , but Plaintiff “ignored him”. Plaintiff

Dep. At 38-39. ( Plaintiff's note-‘but I did not touch them or

go more than [less] a few feet from them Dep. at 40).

Plaintiff also straightened out a kink in a fire hose. Finally

Plaintiff spoke with several firefighters, telling them that they

should redirect the water to a different location.

Defendant Douglas David (“David”) a Warren County

Deputy Sheriff, received a dispatch while on patrol alerting

him of the fire. When he arrived at the scene, Engle

approached him and stated that Engle Was having a problem

with the Plaintiff. Engle related a number of way in which

Plaintiff had allegedly interfered with the efforts of the

firefighters:

[Bnar said that] the plaintiff kept repeatedly trying to drag

the firefighters away by pulling on them or their hoses. He

would tap on their shoulders or grab their arms in an attempt

to have them direct water into the basement through the

cellar doors. Mr. Greene kept interrupting the firefighters by

insisting that they direct water from their hoses into a

basement rather than through a window at the northwest

comer of the building. Chief Engle explained further that

App 10

Plaintiff had grabbed one of the hoses from the jireiighters.

Brian Engle further informed [Divid] that on three or four

occasions, he had told Mr. Greene to stand back to let them

work. On each occasion, [Engle said,] plaintiff was told that

he could stay but he simply had to get further back behind the

men and stop interfering with them. Plaintiff would do so

only to return and repeat the same behavior over and over.

On another occasion, Brian Engle explained that plaintiff

had to be physically prevented from entering the basement

door where plaintiff was trying [to get] into the house to

remove electrical equipment. The firefighters had again

repeatedly told him that he was not to go back into the house.

Moreover, Brian Engle explained that there was electrical

wires that had burned through and were lying exposed on the

ground all around the basement door and house. . . . Brian

Engle told [David] that he was frustrated with his efforts to

stop plaintiff from going near the fire and posing danger to

himself and his other officers. He asked me to keep him back

so that the firefighters could do their job. (Plaintiff s note —

all most all of this last page and one quarter is fabricated and

never happened)

David Aff. Par 7-8 (and more) (foot note 1). Although

David did not personally see most of the alleged events,

David did observe the Plaintiff attempting to get the

firefighters to direct their firefighting efforts at another

location. He also observed Plaintiff moving around the

building in close proximity to the fire and near a number of

downed electric wires.

FT NT 1- The truth of many of Engle’s allegations is sharply

disputed by the Plaintiff, and on a defendants motion for

summary judgement, the Court cannot rely on a defendants

version of disputed events. However, the statements by

Engle are cited here and will be relied upon later only for the

fact that the statements were made, which is not disputed.

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David then approached the Plaintiff and told him "You've

got to leave". Plaintiff Dep. at 48. Plaintiff stated "This is

my property. Id. At 51. David repeated several times that

Plaintiff had to leave, finally stating, "If you don’t leave, I'll

arrest you right on the spot." Id. At this point Plaintiff left.

However, after cleaning and drying his boots at a nearby

hotel (motel), Plaintiff returned about a half hour later,

accompanied by a friend, Anthony Sapienza (Sapienza).

They walked partly down the driveway and then stood

talking. David approached, forced Plaintiff to the ground and

handcuffed him. Plaintiff was then taken to the police station

and charged with obstructing fire fighters in violation of N.Y.

Penal Law par. 195.15 (McKinney 1988). Plaintiff was

issued an appearance ticket charging him with the offense:

however, the appearance date was ultimately adjourned in

contemplation of dismissal. It is not clear whether the charge

was ultimately dismissed.

II. Discussion

A. Standard of review

Under Rule 56 (c) , summary judgement:

shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgement as a matter of law.

Fed. R. Civ. P. 56 (c); see Anderson v Liberty Lobby, 477

U.S. 242, 250 (1986). The moving party has the initial

burden of "informing the district court of the basis for its

motion" and identifying the mater that "it believes

demonstrate [s] the absence of a genuine issue of material

fact." Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986):

Fed. Deposit Ins. Corp. v Giammettei, 34 F. 3d 51, 54 (2d

Cir. 1994.) The substantive law determines which facts are

App i2

material to the outcome of a particular litigation. See

Anderson, 477 U.S. at 250; Heyman v Commerce & Indus.

Ins. Co. 524 F. 2d 1317, 1320 (2d Cir. 1975). In

determining whether summary judgement is appropriate, a

court must resolve all ambiguities and draw all reasonable

inferences against the moving party. See Matsushita Elec.

Indus. Co. v Zenith Radio Corp., 475 U.S. 574 586 (1986)

(citing United States v Diebold, Inc., 369 U.S. 654, 655

(1962); Hurwitz v Sher, 982 F. 2d 778, 780 (2d Cir. 1992).

If the moving party meets its burden, the burden then shifts

to the non-moving party to come forward with "specific facts

showing that there is a genuine issue for trial." Fed. R. Civ.

P. 56 (e). The non-moving party must "do more than simply

show that there is some metaphysical doubt as to the material

facts." Matsushita, 475 U.S. at586; Trans Sport v Starter

Sportswear, 964 F. 2d 186, 188 (2d Cir 1992) (stating that

"the nonmoving party must come forward with enough

evidence to support a jury verdict in its favor, and the motion

will not be defeated merely . . . on the basis of conjecture or

surmise’) (citations omitted). Only when it is apparent,

however, that no rational finder of fact "could find in favor of

the non-moving party because the evidence to support its

case is so slight" should summary judgement be granted.

Gallo v Prudential Residential Servs. 22 F. 3d 1219, 1223 (2d

Cir. 1994).

B Claim against David

Plaintiff alleges that David violated his constitutional rights

because he acted without any reason to order Plaintiff off his

property. Implicitly Plaintiff also alleges that he was

arrested without probabic cause. David argues ihat he had

probable cause to arrest Plaintiff. The Court finds that the

constitutionality of both the arrest and the ejection order

depend on whether there was probable cause to believe that

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Plaintiff had violated the law against obstructing firefighters.

Because the Court finds that probable cause existed. David's

motion for summary judgment must be granted.

1. Arrest.

To the extent that Plaintiff claims that he was arrested

without cause, he alleges an action for false arrest in violation

of the Fourth and Fourteenth Amendments of the U.S.

Constitution. However the existence of probable cause to

arrest is a complete defense to such an action. In general,

"probable cause to arrest exists when the officers have

knowledge or reasonably trustworthy information of facts

and circumstances that are sufficient to warrant a person of

reasonable caution in the belief that the person to be arrested

has committed a crime Id.

Plaintiff was arrested for allegedly violating N.Y. Penal

Law par. 195.15 (McKinney 1988). This provision states

A person is guilty of obstructing firefighting operations

when he intentionally and unreasonably obstructs the efforts

of any

1. fireman in extinguishing a fire, or prevents or

dissuades another from extinguishing or helping a

fire; or

fireman, police officer or peace officer in performing

his duties in circumstances involving an imminent

danger created by an explosion, threat of explosion or

the presence of toxic fumes or gases.

N.Y. Penal Law par. 195.15. The accompanying

commentary notes that the law does not require that the

obstruction be accomplished “by means of intimidation,

physical force or interference, or by means of any

independently unlawful act." Id. (Practice Commentary)

(internal quotations omitted).

i)

App-i4

Based upon the undisputed actions of the Plaintiff which

David observed, including his movement around the house

and among the electrical wires and his interactions with the

firefighters, and based on Engle's statement which David had

no reason to doubt, the Court finds that David has probable

cause to believe that Plaintiff was guilty of obstructing the

efforts of firefighters. Hence, summary judgement is granted

to David on the claims against him to the extent that they

allege false arrest.

2. Eviction Order

David's order directing Plaintiff to leave his own property

also implicates the protections under the Fourth Amendment.

The Fourth Amendment protects against "unreasonable

searches and seizures” by the government. U.S. Const.

amend. IV. A "seizure [of property] occurs when ' there is

some meaningful interference with an individual's possessory

interests in that propertv.'" Soldal v Cook County, Illinois,

506 U.S. 56, 60 (1992) (quoting United States v Jacobsen,

466 U.S. 109 (1984). The Court has no trouble concluding

that a forced ejection from property, even for a brief period,

constitutes such an interference and thus a seizure of

property.

However, whether the Fourth Amendment is violated

depends upon whether the seizure was "reasonable." See.

e.g., Soidal, 506 U.S. at 61-62. Though the test of

reasonableness "is not capable of precise defimition or

mechanical application, "Bell v Wolfish, 441 U.S. 520, 558

(1979), it generally requires a "careful balancing of

government and private interests." Soldal, 506 U.S. at 71

(quotations omitted); United States v James Daniel Good

Real Property, 510 U.S. 43, 66 (1993).

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App-15

violating the law against obstructing the eftorts ot

firefighters, the Court finds that a person's interests in

remaining on their property is outweighed by the interest in

enforcing the law and the interest, which the law embodies,

in enabling firefighters to perform their difficult and

dangerous task without interference. It is undisputed that in

this case, the seizure was limited to a temporary expulsion for

the period of the firefighting efforts, and because the Court

has found that probable cause existed to conclude that

Plaintiff was obstructing the efforts of firefighters, the Court

concludes that the seizure was not unreasonable.

Accordingly, Plaintiff's claims, insofar as they rest on a

seizure of property, must also be dismissed.

C. Claims Against The Warren County Sheriff’ Department

and the Warren County Board of Supervisors

Plaintiff has also has brought suit against defendant Warren

County Sheriff's Department ("Sheriff's Department") and

the Warren County Board of Supervisors ("Board"). In

order to establish the liability of a municipal entity under par.

1983, a plaintiff must show that a constitutional violation

resulted from a municipal custom or policy. Gottlieb v

County of Orange, 84 F. 3d 511, 518 (2d Cir. 1996). Here

assuming without deciding that David's acts were the result

of a municipal policy, they do not amount to a constitutional

violation. Hence the claims against the municipal defendants

must also be dismissed.

Accordingly, it is hereby

ORDERED that the motion to dismiss brought by

Defendants David, Warren County Sheriff's Department and

Warren County Board of Supervisors is GRANTED and the

action is therefore DISMISSED in its entirety; and it is

further

App-16

ORDERED that the Clerk serve a copy of this order on all

parties by regular mail.

IT IS SO ORDERED.

s) LAWRENCE E. KAHN

United States District Judge

Dated: 1/21,1999

Albany, New York

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UNITED STATES DISTRICT COURT 97-CV O14

NORTHERN DISTRICT OF NEW YORK LEK/DRH

ROBERT GREENE Plaintiff = 8

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DOUGLAS DAVID et al Detendants

APPEARANCES: a aa 4 (99S

/

Robert Greene Pro Se

Plaintiff

For Defendants: Robert P. McNally

Douglas David, Kathleen B. Hogan

Warren County Sheriff Dept.

Warren County Board of Supervisors

Bnan Engle Stephen C. Prudente

Warrensburg Volunteer Fire Co.

Town Board John S. Hall

Town of Warrensburg

Brendan F. Baynes was listed but distributed a letter that

They were not involved with this case and remove their name

District Judge Lawrence E. Kahn

MiEMIORANDUM-DECISION AND ORDER

rresenily before the Court are a motion to dismiss pursuant

to Fed. R. Civ. P. Rule 12 (b) (6) or Rule 12 (c) from

defendants Brian Engle ("Engle") and Warrensburg

Volunteer Fire Company ("Warrensburg Fire Company”) and

a motion to dismiss pursuant to Fed. R. Civ. Rule 12 (b) (6)

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from defendant | own Board, i own of Warrensburg

("Warrensburg Town Board"). For reasons discussed below

both motions are granted.

1. Background

Che following facts are taken from plaintiff's complaint and

assumed for the purposes of this decision to be accurate. On

January 8, 1994, a fire began at plaintiff's home, and shortly

thereafter, a fire truck from the Warrensburg Fire Company

arrived. A five-minute delay occurred between the time the

hose was extended to the time the water began to pour.

Plaintiff asserts that the fire department made several

mistakes in where and how they applied the water, and

asserts that substantial fire damage to the house may have

been a result of these mistakes.

At some point in the process, plaintiff took a more active

role, instructing the firefighters as to which direction they

should apply the water. ( Plaintiff's note - could only ASK as

had no authority to instruct or command.) Shortly thereafter,

plaintiff was told to leave the site by Deputy Sheriff Douglas

David ("David") of the Warren County Sheriff's Department

("Sheriff's Dep't."). Plaintiff refused to leave, claiming a

right to remain on his property. David repeated his demand

several times, and plaintiff refused to comply. At no time did

David give an explanation for his order.

However, plaintiff did then leave the property in order to

remove the water from his boots, returning about half an hour

later. At this time, he was confronted by David, who, with

the help of other unnamed parties, wrestled plaintiff to the

ground and placed him in handcuffs. Plaintiff's complaini

would have been in charge at the site, and that "[i]t is quite

possible that... Doan Engle gave instructions to Deputy

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Shen David.” Compi. Par. 71. Piaintitt was taken to the

police station and charged with interfering with firemen

under N.Y. Penal Law Par 195.15 (McKinney 1988). Foot

note 1 --- Section 195.15, entitled "Obstructing firefighting

operations," states:

A person is guilty of obstructing firefighting operations

when he intentionally and unreasonably obstructs the efforts

of any: 1. Fireman in extinguishing a fire, or prevents or

dissuades another from extinguishing or helping to

extinguishing a fire, or 2. Fireman, police officer or peace

officer in performing his duties in circumstances involving an

imminent danger created by an explosion, threat of explosion

or the presence of toxic fumes or gasses.

Obstructing firefighting operations is a class A misdemeanor.

N.Y. Penal Law Par. 195.15 (McKinney 1988). The

accompanying commentary notes that the law does not

require that the obstruction be accomplished "by means of

intimidation, physical force or interference, or by means of

any independently unlawful Act.” Id.(Practice Commentary)

(internal quotations omitted).

(contd) Months later, plaintiff received an Adjournment in

Contemplation of Dismissal [ACOD] on the interference

charge.

Plaintiff also alleges that there had long been rumors that

"items disappeared at fires,” Compl. Par. 74, apparently

meaning that the Warrensburg Fire Company, in the course

of performing its duties, also engaged in theft. (Plaintiff's

note - When the fire co. leaves then any body in the area can

loot what is remaining) Plaintiff asserts that these rumors

were the reason why he attempted to remain on the property.

Plaintiff also alleges that his inability to protect his property

has indeed resulted in items "disappearing in areas where

[t]otal distruction did not occur.” Compl. (Third Cause of

App-2Zu

Acuion). Particular missing items are referred to in plaints

Papers submitted in reply to the current motions to dismiss.

Plaintiff has stated three causes of action. [he first and

second are broughi against David tor ordering plaintitt to

leave his property. The third, which does not name a specific

party, refers to the disappearance of certain items due to his

inability to protect his property. Plaintiff demands both

injunctive relief, being an order requiring the police to be

informed as to the propriety of forcibly removing persons

from their property while said is burning, and monetary relief

in the amount of $2,000,000.

Il. Discussion

A. Standard of Review

Because the parties have answered the complaint prior to

filing their motion to dismiss, the motion is reviewed as a

motion for judgement on the pleadings pursuant to Rule 12

(c) of the Federal Rules of Civil Procedure. The standard of

review is the same for motions brought under Rule 12 (c) as

for motions to dismiss under Rule 12 (b) (6). See Sheppard

v Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513

U.S. 816 (1994).

On a motion to dismiss, the general rule is that the

allegations in a plaintiff's complaint are deemed to be true

and must be liberally construed in the light most favorable to

the plaintiff. Dahlberg v Becker, 748 F. 2d 85, 88 (2d Cir.

1984), cert. denied, 470 U.S. 1084 (1985).

The Court notes with emphasis its obligation to afford

piaintiff every favorable inference arising from his pro se

status, as well as from his position as non-movant in this

motion to dismiss. To be sure, because pro-se plaintiffs are

often unfamiliar with the formalities of pleading

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App-21

Requirements, "The Supreme Court has instructed the district

courts to construe pro se complaints liberally and to apply a

more flexible standard in determining the sufficiency of a pro

se complaint than they would in reviewing a pleading

submitted by counsel. Platsky v CIA, 953 F. 2d 26, 28 (2d

Cir. 1991). However, the plaintiff must still "assert a

cognizable claim and allege facts that if true, would support

such a claim.” Boddie v Schneider, 105 F. 3d 857, 860 (2d

Cir. 1997). The Court must dismiss for failure to state a

claim if it appears beyond doubt that the plaintiff cannot in

any way establish a set of facts to sustain his claim which

would permit relief. Hughes v Rowe, 449 U.S. 5, 10 (1980):

Bass v Jackson, 790 F. 2d 260,262 (2d Cir. 1986).

B. Plaintiff's par. 1983 Claim

1. General Principles

Because the motions currently before the Court concem

only Brian Engle, the Warrensburg Fire Company, and the

Warrensburg Town Board, the Court will consider the

sufficiency of the complaint only with regard to these parties.

In order to state a claim under 42 U.S.C. par 1983, a

plaintiff must allege that a person acting under color of state

law deprived him or her of a nght, privilege, or immunity

secured by the United States Constitution or the laws or

treaties of the United States. A par 1983 action "creates no

substantive rights; it merely provides remedies for

deprivations of rights established elsewhere." Oklahoma City

Vv Tuttle, 471 U.S. 808, 816, reh. Denied, 473 U.S. 925

(1985).

2. Brian Engle

Even construing the facts liberally, there is no basis for

App-22

Finding that Engle has deprived plaintiff of a protected

constitutional right. Plaintiff's claim against Engle might be

interpreted to allege a deprivation of his property rights

without due process based on the failure Engle's fire-fighters

to prevent damage to plaintiff's house. However, any

negligence in Engle's supervision of the firefighters is not

actionable as such a deprivation. See Daniels v Williams,

474 U.S. 327, 328 (1986) (Fourteenth Amendment Due

Process Clause not implicated by negligent act of an official

causing unintended loss to property). Alternatively, if

plaintiff's claim is interpreted to allege that Engle, as a

"policy-maker,” should be found liable for failure to

adequately train the members of the Warrensburg Fire

Company, plaintiff would have still have to demonstrate that

such training resulted in a deprivation of plaintiff's rights by

those Engle supervised, and as mentioned above , the

negligence of the firefighters does not constitute a

deprivation of rights. Id.

Nor do plaintiff's allegations, if understood as asserting that

Engle was involved in the theft of plaintiff's property, support

a deprivation of property without due process. Although

theft is clearly a deprivation of property, plaintiff must also

allege that the deprivation cannot be remedied under State

law. See Parratt v Taylor, 451 U.S. 527, 543-44 (1981)

(tort remedies provided post-deprivation satisfied

requirement of due process), overruled on other grounds,

Daniels v Williams, 474 U.S. 327 (1986); Capozzi v City

Olean, New York, 910 F. Supp. 900, 909 ( W.D.N.Y.

1995) (suitable post- deprivation remedy satisfies due

process clause). A party which has suffered theft of property

has a remedy under either the New York Penal or civil

common law. See N.Y. Penal law par 155.05 (larceny

defined); Employers’ Fire Ins. Co. v Cotten 245 N.Y. 102

N.Y. 1927) (action for conversion available for unauthorized

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App-23

assumption and exercise of the right of ownership over

goods). Therefore, plaintiff's allegations, even understood as

a claim that Engle has engaged in theft, do not support a

claim for deprivation of property without due process.

Considering plaintiff's claim that "[iJt is quite possible that .

...Brian Engle gave instructions to Deputy Sheriff David,"

Comp par. 71, the Court finds that this entirely conjectural

statement does not ordinarily provide the basis for an action.

Granting plaintiff the leeway justified by his pro se status, the

Court will consider the complaint as alleging, based on

plaintiff's belief, that Engle did indeed, in some fashion, give

instructions to David to have plaintiff ejected from the

property. Assuming that Engle could be held liable for

instructing an officer over whom he had no actual authority,

see New York Town Law par. 176-a (describing the duties

and powers of the chief of a district fire department),

plaintiff's allegations still fail to allege a deprivation of his

constitutional rights.

If plaintiff's allegations are interpreted as an action for

unlawful arrest in violation of the Fourth and Fourteenth

Amendments, plaintiff must show that he was arrested

without probable cause. -Foot Note 2- See Postr. V Doherty,

944 F. 2d 91, 98 (2d Cir. 1991) (quoting United States v

Hastamorir, 881 F. 2d 1551,1556 (11 Cir. 1989))(Where "the

encounter is a full-scale arrest . . . The government must

establish that the arrest is supported by probable cause.")

The Court must take into account plaintiff's involvement in

the activities of the firefighters and his attempt to give them

instructions. However understandably the desire to preserve

Ft nt 2- The Fourth Amendment, made applicable to the

States by the Fourteenth, see Ker v California, 374 U.S. 23,

30 (1963, provides in part that the "right of the people to be

secure in their persons, houses, papers and effects, against

unreasonable searches and seizures, shall not be violated.” U.

S. Constitution Amendment 4.

App-24

one's home might be, plaintiff's actions establish probable

cause of a violation of a N.Y. Penal Law par. 195.15

(McKinney 1988) for obstructing firefighters. ‘Therefore,

plaintiff has not alleged facts that could establish unlawful

arrest.

Plaintiff's claim that he was ordered from his home also

implicates his Fourth Amendment right to be free of

unreasonable searches and seizures. A seizure of property

occurs when " there is some meaningful interference with an

individual's possessory interests in that property.”” Sodal v

Cook County, III, 506 U.S. 56, 61 (1992) (quoting United

States v Jacobsen, 466 U.S. 109, 113 (1984). "[A]t the very

core of the Fourth Amendment stands the right of a man to

retreat into his own home." Id. (citations and internal

quotations omitted). Thus forced eviction from one's home

raises an issue under the Fourth Amendment, even where a

party's liberty and privacy interests have not been infringed.

Id. At 62 - 63.

a

Whether the Fourth Amendment is actually violated,

however, depends on whether the seizure was unreasonable.

Id. At 62. Determination of “reasonableness” is "generally

conducted on a case-by-case basis, with the Court weighing

the asserted governmental interests against the particular

invasion. ..." Hudson v Palmer, 468 U.S. 517, 537 (1984)

(J. O'Connor concurring). The seizure should last no longer

than necessary to effectuate the government purpose. See

Florida v Royer, 460 U.S. 491, 500 (1983).

Under the circumstances in this case, the Court concludes

that defendants’ actions were reasonable. Plaintiff's

involvement in the Warrensburg Fire Company's attempt to

put out the fire could reasonably be viewed as a violation of

state law and have thus justified arrest, a much greater

deprivation than temporary eviction from one's home It was

veered

App-25

not unreasonable for the defendants’ to attempt to end the

interference in a manner short of arrest, particularly as such

interference could not only inhibit successful extinguishment

of the fire but also endanger various parties involved. The

Court finds, therefore, that requiring plaintiff, after his

attempt to direct the Warrensburg Fire Company in its

firefighting activities, to leave his property for so long as

their attempts continued, was not unreasonable.

Because plaintiff's allegations do not establish a violation of

cortitutional rights by Engle, the par. 1983 action against

Engle must be dismissed.

3. Warrensburg Fire Company

For the Warrensburg Fire Company to be found liable, it

must have either created a policy or custom under which an

unconstitutional action occurred or allowed such a policy or

custom fo occur or to continue. See Williams v Smith, 781

F. 2d 319, 323-24 (2d Cir. 1986). As noted above, none of

the actions taken by Engle were unconstitutional. Without an

underlying unconstitutional action, there is no basis for

finding a policy under which such an action occurred. The

action against the Warrensburg Fire Company must be

dlismissed.

4. Warrensburg Town Board

Plaintiff's action against the Warrensburg Town Board is

based on his allegation that "[t]he Warrensburg Town Board

is the elected board of governmental members that has

control over the Warrensburg Fire Company.” Compl. Par

73.

Defendants argue that, pursuant to par. 174(7), a fire district

is "a political subdivision of the state" and that “[iJhe officers

App-26

and employees of a fire district, including the paid and

volunteer members of the fire department thereof, are officers

and employees of such fire district and are not officers or

employees of any other political subdivision.” N.Y. Town

Law par. 174(7) (McKinney 1988). See also Greater

Poughkeepsie Library District v Town of Poughkeepsie, 81

N.Y. 2d 574, 580 (N.Y. 1993) (fire districts "exercise their

powers independent of the towns they serve"). However

defendants have not alleged that the Warrensburg Fire

Company is part of a fire district. Rather, they have only

stated that it was created pursuant to N.Y. Town Law par.

170 (McKinney 1988), which allows for the creation of fire

districts, fire alarm districts of fire protection districts. See

Baker Aff. Par. 7; N.y. Town Law Par.170 (1) (McKinney

1988). Only a fire district is covered by par. 174 (7). See

Nelson v Garcia, 548 N.Y.S. 2d 963, 965 N.Y. App. Div.

1989). It is not clear from the papers, therefore, that the

Warrensburg Fire Company is independent of the

Warrensburg Town Board.

Moreover. the Warrensburg Town Board's other defenses

are not availing. The notice requirements of New York law

are not applicable to par.1983 actions. See Felder v Casey,

487 U.S. 131 (1988); Hoger v Thomann, 592 N.Y.S. 2d 887,

888 (N.Y. App. Div. 1993). Moreover, qualified immunity

applies only to individuals, not to municipalities. See

Nevertheless, by the same reasoning discussed in relation to

the Warrensburg Fire Company, there is on basis for finding

the Warrensburg Town Board liable under par. 1983. The

action against them is therefore dismissed.

Il. Conclusion

A review of the plaintiff's papers reveals the seriousness of

his concern with regard to the constitutionality of defendants’

App-27

actions . However, the needs of the firefighters, who are

performing difficult and potentially dangerous work on a

volunteer basis, also deserve respect and serious

consideration, and it is the reasonable determination of the

state that in the midst of performing their duties, such persons

must be left to their own judgment.

Accordingly, it is

ORDERED that the motion to dismiss by defendants

BRIAN ENGLE and WARRENSBURG VOLUNTEER

FIRE COMPANY is GRANTED; and it is further

ORDERED that the motion to dismiss by defendant

TOWN BOARD, TOWN OF WARRENSBURG is

GRANTED); and it is further

ORDERED that the Clerk serve a copy of this order on

all parties by regular mail.

IT IS SO ORDERED.

DATED: January 5, 1997

Albany, New York

/s/ LAWRENCE E. KAHN

UNITED STATES

DISTRICT JUDGE

Plaintiff's note - typographical error date is 1998

App-28

The following are excerpts from affidavits where titles,

signatures and undisputed parts are omitted.

Brian Engle, Chief, Warrensburg Volunteer Fire Co.

December, 20, 1997.

8. The plaintiff, however, repeatedly tried to drag the fire

fighters away by pulling on them or their hoses. Mr. Greene

kept interrupting them by insisting that the fire could be

better fought in this fashion and that we had to do as he

requested. As part of an earlier evaluation of how best to

fight the fire, I had previously considered attacking the fire

from this direction. We could not do so, however, because

the roof had collapsed closing off the corridor into the

basement from this door with debris.

9. Plaintiff's repeatedly bothering the firemen in this

fashion interfered with their firefighting efforts. On three or

four occasions, I told Mr. Greene (as did my men) to stand

back to let the firefighters work. On each occasion, he was

told that he could stay but that he simply had to get further

behind the men and stop interfering with them. Plaintiff

would do so only to inch back and repeat his behavior.

10. At some point, plaintiff had to be prevented from

entering the basement doorway where plaintiff had been

trying (despite repeated instructions that he was not to do so)

to get inside the house. The electric wires were lying

exposed and presumably live on the ground all around this

basement door. Plaintiff had been told not to go near the area

because of the danger of electrocution. Plaintiff

unequivocally posed a danger both to himself and to the

firefighters by his actions.

11. Because of the repeated interference of the plaintiff, I

asked Warren County Deputy Sheriff, Douglas David to do

something to keep plaintiff out of the way so that I

App-29

and my men concentrate on the fire.

12. Upon information and belief, Douglas David took aside

and told him on several occasions, just as I had, that he had to

keep back. After each warning, plaintiff stayed away for a

short period but then began interfering again. Finally,

Officer David asked plaintiff to come with him to a

restaurant across the road for a cup of coffee with him.

Plaintiff left with Officer David. I had no further involvement

with plaintiff.

13. I did not witness the arrest. I have been told that

plaintiff was arrested as he fled from Officer David. Plaintiff

was taken away for processing and was gone about an hour to

~ an hour and a half. During that time, Mrs. Greene remained

at the scene without any problems. When Mr. Greene

returned there was no repeat of his previous behavior. He too

remained at the scene watching us fight the fire but no longer

interfering.

14. The fire was finally put out at around 9-10PM. At

about 10:00 or 10:30PM while the firefighters were securing

and loading their equipment, Mrs. Greene asked if one of my

men could enter one of the rooms in the concrete block

portion of the house to retrieve money from beneath a water

bed. I agreed and one of my officers accordingly entered a

window, observed the remains of a water bed and within

moments had located a "large stack" of waterlogged bills

bound by rubber bands from beneath the waterbed exactly

Where Mrs. Greene had instructed them it would be found.

The money was given to Mrs. Greene who thanked them.

This was the only property which they were asked to recover.

I and the other firemen left the scene at around 11 PM with

the Greene's still at the premises.

15. The plaintiffs discovered and called the fire department

App-30

to the site in the middle of the night to put out a fire that had

rekindled in the basement. They did so at about 2:00AM.

There was another flare later that morning. At this time, one

Robert Kelso of the fire department borrowed a front end

loader from Warren County DPW to lift the roof remains

thereby allowing the firefighters to shoot water beneath the

roof fragments where the fire was still smoldering. This

effectively put the fire out once and for all. On each occasion

the Greenes were present and could, presumably, have taken

whatever steps they deemed necessary to secure their

property.

16. I have no idea what plaintiff is claiming for lost

property. I know of no theft from the property or complaints

that anybody was looting. Mrs. Greene was present the

entire time of the fire; Mr. Greene was present within an hour

or an hour and an half of his arrest and the Greenes were

present thereafter to take what steps they felt necessary to

protect their property. (end of affidavit)

Affidavit of Warren County Deputy Sheriff, Douglas

David, January 14. 1998.

7. It was obvious to me that the structure was completely

involved and, given the conditions and nature of the fire, that

the firemen were having a difficult time putting the fire out.

When I got closer to the fire Chief Brian Engle came up to

me and advised that he was having a difficult time

controlling the plaintiff. He explained that the plaintiff kept

repeatedly trying to drag the firefighters away by pulling on

them or their hoses. He would tap on their shoulders or grab

their arms in an attempt to have them direct water into the

basement through the cellar doors. Mr. Greene kept

interrupting the fire fighters by insisting that they direct water

from their hoses into a basement rather than through a

window at the northwest comer of the building. Chief Engle

explained further that plaintiff had grabbed one of the hoses

App-31

from the firefighters. Apparently, plaintiff believed that the

fire could be better fought in this fashion and that the

firefighters should do as he requested. Plaintiff repeatedly

bothered the firemen in this fashion. Brian Engle further

informed me that on three or four, he had told Mr. Greene to

stand back and let them work. On each occasion. plaintiff

was told that he could stay but he simply had to get farther

back behind the men and stop interfering with them. Plaintiff

would do so only to return and repeat the same behavior over

and over.

8. On another occasion, Brian Engle explained that

plaintiff had to be physically prevented from entering the

basement door where plaintiff was trying and into the house

to remove electrical equipment. The firefighters had again

repeatedly told him that he was not to go back in to the

house. Moreover, Brian Engle explained that there were

electric wires that had burned through and were lying

exposed on the ground all around the basement door and

house. Plaintiff had been told not to go near the area because

of the danger of electrocution. Brian Engle told me that he

was frustrated with his efforts to stop plaintiff from going

near the fire and posing danger to himself and his other

officers. He asked me to take plaintiff aside and keep him

back so firefighters could do their job.

9. Prior to Chief Engle making this request, I had actually

watched plaintiff tapping on firemen's shoulders as they were

directing water onto the fire in an apparent effort to convince

them that they should direct their efforts elsewhere. I also

observed Mr. Greene-visibly very agitated and upset with the

loss or his home and equipment - running around the building

several times in very close proximity to the fire, near various

downed electric wires and between the firefighters and the

fire itself. In fact, I actually observed Mr. Greene actually

trying to pull a hose from on of those firefighters. Plaintiff

App-32

was visibly upset and quite besides himself. He was

continuously complaining to Brian Engle and his firefighters

that they had to direct the water and that they had to fight the

fire in ways which the firefighters obviously disagreed.

10. There is no question but that plaintiff was interfering

with the firefighting efforts. Moreover in addition to

repeatedly interrupting the firefighters, plaintiff posed a

danger to himself and other firefighters by his actions. If he

was injured by the fire or by the downed power lines, he

would have to be rescued interfering yet again with the fire

fighting efforts and posing a danger to any rescuing

firefighters in the process.

11. In view of the information related to me by Brian

Engle and my own observations of the plaintiff's behavior, I

thereafter approached plaintiff and asked him to stand back

away from the fire to stop interrupting the firefighters efforts.

I told him to stand behind the firemen at a sufficient distance

so that he would not interfere with their efforts. I told him to

stop trying to get into his house, to stop trying to convince

the firemen how to fight the fire and to stay away from the

downed power lines.

12. Plaintiff continued rambling about how he thought the

fire could be fought better and about how he had equipment

in the basement. Plaintiff did, however, step back behind the

fire equipment at a distance where he could still observe the

house but not interfere with anyone. On each occasion and

within moments of his moving back, however, the plaintiff

inched his way back towards the firefighters and repeated his

same previous behavior.

13. On three or four of these occasions, I caught up with

the plaintiff and repeated the above same instructions. Each

time the plaintiff initially stepped back only to return from

App-33 -

behind the equipment to the immediate vicinity of the fire

and to repeat the same type of interfering and disruptive

behavior noted above.

14. Brian Engle accordingly again asked me to keep

plaintiff back. Since my repeated requests that he not

interfere with the firefighters had obviously had been to no

avail, I asked the plaintiff to come across the street to a

restaurant where he could have a cup of coffee and relax. (ft

nt 1) I again told him that it was important that he not

interrupt the firefighters, that he should just let them do their

job and that he had to calm down. Mr. Greene agreed and

voluntarily accompanied me to the restaurant.

15. After a few minutes, I left the plaintiff to return to my

patrol vehicle which was parked just south of the restaurant

on Rte. 9. It was my intent to report to dispatch my status. |

never got the chance, however, as at the very moment I got

into the car, I received a radio call from Chief Engle

reporting that plaintiff was coming down the driveway.

Brian Engle again asked the officer to stop the plaintiff.

16. I looked up and observed the plaintiff crossing the road

and going down the driveway. I got out of my car and called

to plaintiff to stop. Mr. Greene stopped for a moment and

looked at me but then continued walking onwards towards

Ftnt 1. Iam told that Mr. Greene claims that he does not

drink coffee. My suggestion to him that We go up to the

restaurant for a cup of coffee was made, however, to get him

away from the fire scene, not to indicate that he had to have a

cup of coffee or that he cared for coffee. Whether he had

coffee, tea, or any other beverage was irrelevant. In fact, I

believe one of the reasons he wanted to go was so that he

could change his socks which had gotten wet while running

around the firemen.

App - 34

his house away from me. I followed him and repeated my

request that he stop. Again, he turned around and looked at

me but, this time, he began actually running away from me

towards his burning home. I began chasing him down his

driveway and had to tackle him to stop his headlong run

towards the fire. Plaintiff resisted continued to fight while

trying to get towards his house. Firefighters had to help me

subdue him.

17. | took plaintiff to the Warrensburg substation of the

Warren County Sheriff's Department where he was confined

for approximately one hour for booking, processing and

issuance of an appearance ticket charging him with the

misdemeanor of obstructing firefighting operations in

violation of New York Penal Law par 195. 15. (ft nt 2)

Plaintiff immediately returned to the fire scene but this time

did not repeat his previous behavior. He remained there for

the remainder of the time that the fire was being fought.

18. I never observed any property being stolen from the

plaintiff's home I certainly had no involvement in any alleged

theft. Moreover, plaintiff was only in custody for about one

hour during which time the fire continued to blaze. Plaintiff

and his wife could have taken any steps they deemed feasible

to protect their property during and after the fire. Neither I,

the Sheriff nor Warren County owed plaintiff any duty to

continuously watch his property during and after the fire to

ensure there were no thefts.

Ft nt 2. I understand further that the plaintiff has attempted

to make an issue of the fact that I had to look up the actual

citation. The Court must understand that I do not carry the

complete penal code in my mind and - like most people -

look citations up as need be. Hence my having to look up the

statute and section number is irrelevant.

)

App-35

19. While ultimately the Town Court adjourned the ticket

in contemplation of dismissal, | respectfully submit that any

one of the events referred to above constitute more than

ample probable cause for the arrest of the plaintiff. His

repeated behavior - after repeatedly being asked to stay back

by myself, by Chief Engle and upon information and belief.

by individual firefighters - clearly evidences his

unwillingness to abide by the law and by reason in

unfortunate circumstances. (end of affidavit)

Signed by Douglas David and notarized

Attorney's Affidavit of Robert P. MeNally, dated 1-14-1998

15. The plaintiff, however, kept repeatedly trying to drag

the firefighters away by pulling on them or their hoses. He

would tap on their shoulders or grab their arms in an attempt

to have them direct their water into the basement through the

cellar doors. Mr. Greene kept interrupting them by insisting

that they direct water from their hoses into the basement

door. (G42, 46-48, 84, 101-102). On one occasion. he

actually grabbed one of the hoses from a firefighter. Plaintiff

insisted that the fire could be better fought in this fashion and

that the firefighters had to do as he requested. (Ft nt 1)

Plaintiff repeatedly interfered with the firemen in this

fashion. (See also par. 26) On three or four occasions. Bnian

Engle told Mr. Greene (as did his men on several occasions)

to stand back to let them work. On each occasion. he was

told that he could stay but he simply had to get farther back

behind the men and stop interfering with them. Plaintiff

Ftnt1 Actually, Brian Engle in his affidavit asserts that he

had considered fighting the fire by directing water through

the cellar door. However, the roof had collapsed closing off

the corridor into the basement with debris. Hence there was

no Way to put water into the basement area.

App-36

would do so only to repeat the same behavior over and over.

16. On one occasion, Brian Engle explained that plaintiff

had to be actually physically prevented from entering the

basement door where plaintiff was trying and into the house

to remove electrical equipment. The firefighters had

repeatedly told him that he was not to go back into the house.

(G86-90) Plaintiff, however, again believed that he knew

better about whether he could reenter the burning

house.(G89)

17. Moreover, there were electric wires that had burned

through and were lying exposed on the ground all around the

basement door and house. Plaintiff was told not to go near

the area because if the danger of electrocution, not only by

the firefighters but by a representative of the power company,

Niagra Mohawk. (G38) Plaintiff believed that as an engineer

and a person who worked with electricity he could go near

these live wires and that he knew better than the power

company representatives. (G38) Therefore he admits that he

ignored these warnings. (G38, 94-95) There is NO question

that plaintiff posed a danger both to himself and other

firefighters by his actions. If his belief in his ability to handle

electricity proved wrong, he would have to be rescued,

thereby interfering yet again with the firefighting efforts and

also posing a threat to any firefighters engaged in a rescue.

Irrespective of his ability, he should have listened to the

instructions that he received and stay back as he was told

repeatedly.

18. Because plaintiff would not listen to the firefighters or

to Chief Engle, Brian Engle asked Warren County Sheriff

Deputy Douglas David to do some thing to keep plaintiff out

of the way so that they could fight the fire.

App-37

19. Officer David's affidavit is annexed hereto and made a

part hereof as Exhibit F. That affidavit establishes that he

received a dispatch reporting a mutual aid fire at the home of

Robert Greene in Warrensburg, New York. Mutual aid fires

are responded to by the fire companies of several

municipalities. They are generally large fires requiring the

assistance of multiple fire companies to put out. As a matter

of custom and practice, a police officer's duties include

crowd control and public safety at and about fires and

particularly at mutual aid fires which tend to be larger and

more serious.

20. Upon arriving at the scene, Officer David observed the

general area of the fire. He actually watched the plaintiff

tapping on firemen's shoulders as they were directing water

onto the fire in an apparent effort to convince them that they

should direct their efforts elsewhere. He also observed Mr.

Greene running around the building several times in very

close to proximity to the fire, near various downed electric

wires and between the firefighters and the fire itself. In fact,

he actually observed Mr. Greene actually trying to pull a hose

from one of these firefighters. Officer David observed that

plaintiff was visibly upset and quite besides himself. He was

continuously complaining to Brian Engle and the firefighters

that they had to direct the water through the cellar doors and

they had to fight the fire in ways which the firefighters

obviously disagreed. (Plaintiff effectively admits this at par.

26-29 of his complaint. )

21. Brian Engle there after approached Officer David and

informed him of Mr. Greene's prior activities in interfering

with the firefighters. He informed Officer David that he was

frustrated with his efforts to stop plaintiff from going too

near the fire; from interfering with his men and was posing

danger to himself and his other officers. He asked Officer

David to take plaintiff aside and to keep him back so that the

App-38

firefighters could do their job.

22. Officer David thereafter approached plaintiff and asked

him to stand back away from the fire and to stop interrupting

the firefighters efforts. He instructed plaintiff to stand behind

the fireman away from them at a sufficient distance so that he

would not interfere with their efforts. On each occasion, the

plaintiff continued rambling about how he thought the fire

could be fought better, about how he had property in the

basement; etc. But on each occasion, plaintiff did as the

officer instructed stepping back behind the fire equipment at

a distance where he could still observe the house but not

interfere with anyone. On each occasion, however, the

plaintiff within moments inched his way back towards the

firefighters and repeated his same previous behavior.

(Plaintiff actually admits at G103 to being told to stand back

on “three or four " occasions by the officer.)

23. Again, at the repeated requests of Brian Engle, Officer

David asked the plaintiff to leave the scene to come across

the street to a restaurant/motel where he could have a cup of

coffee. He again was told that it was important that he not

interrupt the firefighters and that he had to calm down. Mr.

Greene agreed and accompanied the officer across the street.

Officer David then went to his car to report to the sheriff's

department.

24. When he reached his parked vehicle to call in, he

instead received a radio communication from Brian Engle

reporting that plaintiff was running back down the driveway.

Brian Engle again asked the officer to stop the plaintiff.

25. Officer David looked up and observed the plaintiff

crossing the road and running down the driveway. The

officer got back out of his car. He was in a marked cruiser

and in uniform. He observed plaintiff making his way to the

App-39

fire and called to plaintiff to stop. The plaintiff did so only

long enough to look at the officer and to turn back towards

the fire scene. The officer called for him to stop a second

time. Once more the plaintiff stopped and turned towards the

officer but then to begin running towards the house away

from the officer. The officer followed him and tackled the

plaintiff. Plaintiff resisted the arrest and continued to fight

the officer trying to get towards his house. Several

individuals needed to subdue him. He was placed in

handcuffs

26. Plaintiff was taken to the Warrensburg substation of

the Warren County Sheriff's Department where he was

confined for approximately one hour for booking processing

and issuance of an appearance ticket charging him with the

offence of obstructing firefighter operations.

27. Ultimately, the Court adjourned the ticket in

contemplation of dismissal. (G133) Plaintiff agreed to that

disposition knowing that he could have had a jury trial if he

wished. (G136-137) He was represented by an attorney, Paul

Burke, during this prosecution. (G109). He understood that

an ACOD was not an adjudication of innocence.(G110-111)

28. During the time that plaintiff was being arrested, his

home was still being observed by his wife who was in the

immediate vicinity. There is no proof whatsoever that any

property was stolen on the premises while plaintiff was under

arrest. Plaintiff was also not informed that he had to stay

away from the scene. He was simply told that he could not

interfere with the firefighting efforts.

29. Plaintiff claims that the items set forth in this bill of

particulars annexed hereto and made a part hereof as exhibit

"F" were stolen from his home. (G115-116) These items and

their claimed value are:

App-40

electronic hand saw $20.00

electric drill 20.00

socket wrench holders 12.00

electronic frequency counter — 150.00

18 inch pipe wrench 25.00

small hand tools No stated value

The plaintiff, however, has no evidence whatsoever to

suggest that the property was taken during his arrest or

during two subsequent flare ups. Plaintiff has "no idea when

{the items he claims were stolen] were taken" or who took

this property.(G116) More importantly, the plaintiff is not

even certain that the property is missing as he has to this day

still not searched through a pile of debris 25-30 feet long and

4-5 feet high to see whether any of these items are located

therein.(G116-117, 123-124)

30. For the reasons set forth in the accompanying

memorandum of law and pursuant to this court's decision, |

respectfully submit that there was probable cause for the

arrest of plaintiff. Plaintiff acted in a fashion which clearly

interfered with the firefighting efforts in violation of New

York Penal Law par. 195.15. In view of the above and in

view of plaintiff's admissions at paragraphs "10" through

"16", "20" through "23" and "26" through "29" of his

complaint, it is respectfully submitted that there can be no

question of fact but that he intentionally tried to obstruct the

firefighting efforts. (end of affidavit)

Signed Robert P. McNally

Notarized

App-41

Affidavit of Jean Hadden, Feb. 2 1998.

JEAN HADDEN, being duly sworn, deposes and says:

1. This is to state that 1, JEAN HADDEN, and my husband,

MERVIN R. HADDEN (now deceased) happened to be in

our door yard at 281 Main Street, Warrensburg on January 8,

1994 at about 2:30 in the afternoon when we observed thick

black smoke rising toward the sky, coming from the home of

our next door (north west) neighbors, ROBERT and ROBIN

GREENE.

2. We arrived at the fire about the same time as the

Warrensburg Fire Department. Throughout the major part of

the fire we stood on the west bank of Route 9 looking

directly down the hill at the fire scene. We had the

opportunity of clearly viewing Mr. and Mrs. Greene and later

just Mr. Greene who much of the time stood in the door yard

below away from the firemen. -

3. Lobserved ROBERT GREENE as he moved his jeep

vehicle out of the way of fire trucks.

) 4. [read Officer DOUGLAS DAVID'S and Fire Chief

) BRIAN ENGLE'S affidavits describing their versions of

| what happened at the time of the fire. Contrary to their

recollections, I wish to state unequivocally that never at any

time did I observe ROBERT GREENE running, being

excessively close to the burning house or having any

confrontations with firemen or the uniformed deputy sheriff.

He was mostly off to one side by himself.

5. I observed a member of the fire department with a video

camera. This person, CINDY ANDERSON, had told me on

a previous occasion that as a rule she taped fires and

accidents for the fire department and I surmised that this was

the job she was performing that day.

6. I was surprised to see ROBERT GREENE leaving the

scene of the fire by way of his driveway after briefly and

orderly talking to a group of firemen and than the deputy

sheriff.

App-42

I had not seen him conversing with others before this brief

exchange.

7. [read DOUGLAS DAVID'S affidavit stating that he

observed ROBERT GREENE (I quote) "actually trying to

pull a hose away from one of these firefighters." I never, in

any manner, saw anything like this happen. All the time I

was there, watching intently, he never acted in any other way

than calm and rational, although he was obviously concemed.

8. I have tived at 281 Main Street (renamed 4060 Main

Street) Warrensburg, for nearly 39 years and have known

most all of that time. I know him to be a highly intelligent

and practical man with integrity and high standards. He ts

well known in Warren County for his honesty.

Signed JEAN HADDEN and notarized.

Affidavit of ANTHONY SAPIENZA, Jan. 26, 1998

ANTHONY SAPIENZA, being duly sworn, deposes and

says:

1. Ihave known my neighbor Robert Greene for a period of

fifteen years.

2. I saw that the house of Robert Greene was on fire and I

was with him and his wife at various times for moral support.

3. | supplied Mr. Greene with a dry pair of socks when he

changed his boots at my lodge.

4. Mr. Greene and I walked down his driveway, not talking to

anyone else.

5. We stopped for a moment, part of the way down, not near

any fire equipment, perhaps fifty feet from a pumper.

6. At that time, Mr. Greene was wrestled to the ground,

handcuffed and taken away.

Signed ANTHONY SAPIENZA and notarized.

App-43

1. This affidavit is to clarify the described events in the

witness affidavit of Jan. 26, 1998 by Anthony Sapienza.

2. I have known me neighbor Robert Greene for a period of

seventeen years.

3. During the time that the house of Robert Greene was on

fire | was with him and his wife at various times for moral

support.

4. After supplying Mr. Greene with a dry pair of socks when

he changed his boots at my lodge, Mr. Greene and I walked

down his driveway.

5. We walked down of our own free will, not being accosted,

warmed or stopped by anyone. There were no barricades,

police or firefighter tapes restricting access to the scene. We

Were obviously concerned about the house fire as any

concemed would in a similar situation.

6. After bnefly stopping, Mr. Greene was suddenly and

without warning, wrestled to the ground by a police officer

along with other authorities, handcuffed and taken away.

This occurred about 150 feet from Mr. Greene's house and -

approximately 50 ft. from any fire truck.

7. Although it has been years since this occurrence, I

remember it vividly as it was one of the most shocking events

I have ever experienced. The unnecessary violence and

abduction was reminiscent of the terrible events in our

country when citizens of color were denied their civil rights

and treated like animals.

8. As a key witness who was with Mr. Greene at the

occurrence I here by state that the events listed in Douglas

David's AFFIDAVIT OF MERIT dated January 14th, 1998,

paragraph sixteen were erroneous. Other than tire statement

that Mr. Greene crossed the road into his driveway and that

Deputy David had help in restraining Mr. Greene, the rest of

the sixteen did not occur and is false information.

9. On a similar basis, paragraph twenty-five of the affidavit

of attorney Robert P. McNally also dated January 14th 1998,

contained several comparable erroneous claims such as: Mr.

App-44

Greene was running down his driveway, ignored the calls ot

Deputy David and that Mr. Greene tried to fight off the

otticer and continue trying to get to his house. hese events

never happened.

10. The fact that both of the above statements from the

attidavits of Deputy David and Robert P. McNally did not

include the actuality that I was walking along side Mr.

Greene during the times mentioned is a curious exclusion to

me as | should have been identified as myself or an

unidentified person. If I were mentioned in either affidavit,

this would certify that there was indeed a witness and would

have proved harmful to the testimonies. This vitality should

help substantiate that both statements, (paragraph sixteen

from Deputy David and paragraph trom Robert P. McNally),

were fabricated.

11. To recap the situation, while Mr. Greene and I were

walking down his driveway at a normal pace, no one yelled

at us to stop, nobody confronted us causing us to stop and

likewise there was no one to "run around”.

12. | am willing to testify in court to the above information.

Dated: March 11, 1999. Signed by Anthony Sapienza

Notanzed.

Affidavit of Jean Hadden dated March 11, 1999.

JEAN HADDEN, being duly sworn, deposes and says:

1. I have known Robert Greene for a period of thirty-six

years.

2. This affidavit is to clarify the described events in the

witness affidavit of February 2nd,1998 by Jean Hadden.

3. While conversing outside on January 8, 1994, with my

husband, Mervin Hadden (now deceased), we noticed smoke

coming from the area of our neighbor Mr. Greene's home and

in our concern arrived there just before the first fire truck.

Throughout the major part of the fire we stood on the west

App-45

bank of route 9 looking directly down the hill at the fire

scene.

4. In my profession-I write about my observations and

memories and I duly remembered the following events which

differ on many points from the testimonies of the defendants.

5. [have reviewed the opposing testimonies and dispute the

following incidents and list the facts which I have witnessed.

6. Never at any time did I see Mr. Greene excessively close

to the burning building nor running around the house as

stated in Douglas David's affidavit paragraph 9. To my

knowledge this is false.

7. In addition, the statement in Douglas David's affidavit,

paragraph 9, that Mr. Greene was “actually trying to pull a

hose from one of these firefighters", is not true according to

my observations.

8. I did not witness anything close to the matter and the

entire time I was present Mr. Greene appeared to be calm,

albeit obviously upset that his home was on fire.

9. In Brian Engle's affidavit, paragraph 8, the similar claim

"the plaintiff, however repeatedly tried to drag the fire

fighters away by pulling on them or their hoses” has no

bearing in fact.

10. This information in the above paragraph also places the

affidavit of Robert McNally, paragraph 15, as false according

to what I saw.

11. Contrary to the opposing affidavits, I did not see at any

time Mr. Greene molesting any equipment, harassing any fire

fighters or diverting the attention of any officials on duty. He

was off to one side by himself observing the fire, speaking

seldom to anyone, before leaving the fire scene.

Signed by Jean Hadden, March 11, 1999 Notarized

App-46

Affidavit of Petitioner, Feb. 4, 1999

Robert Greene, being duly sworn, deposes and says that:

1. Lam the plaintiff in the above matter.

2. The Court has information that many events alleged by

the defendants are fabricated and never happened.

3. The plaintiff has presented sworn affidavits from two

independent competent witnesses.

4. The plaintiff will proceed towards presenting this

information to the Court in a deposition. (note did not do)

5. As stated in the decision of 1-21-99 middle of page nine

(now App-13) "A person is guilty of obstructing firefighting

operations when he (they) intentionally and unreasonably

obstructs the efforts of any...fireman in extinguishing a fire ..

6. Page 3 par 2 "While firefighting efforts were going on,

plaintiff entered the cellar door to retrieve electrical

equipment.

7. Big correction to the Court, at that time there were two

men walking near the cellar door. They were not in any

uniform nor did they in anyway identify themselves. These

men Were not engaged in anything towards extinguishing the

fire.

8. The cellar door - two doors four feet wide - can, when

open and clear, pass a vehicle into the house as a garage.

9. The equipment was within a few feet of this door and their

retrieval took twenty seconds or less. This did not interfere

or obstruct the walking of these two men who were not

engaged in any activity that could extinguish the fire.

10. At that time there was no smoke or heat in the cellar and

only a small amount of fire at the mid house stairway.

11. Had these men followed the (voluntary) firefighting code

"Essentials of Firefighting” then the portion of the

corrected/clarified affidavit of Timothy N. Taylor should

have occurred namely “salvage tactics” paragraph's "B and

C" Try to get owner or occupant information on items of

value that may be salvaged from the uninvolved areas of the

building | i.e. rooms or sections that the fire has not yet

App-47

burned]. ...Salvage as much as possible, by removing from

the building using air packs until high heat or structural

collapse is eminent or covering items with salvage covers

[tarps] if that area is deemed to be savable.

12. This could have resulted in considerable property

salvaged with the help from all able persons that were

present.

13. When other fire fighting equipment was to arrive then

the use of air packs would follow the code in "Essentials of

Firefighting" and is done in New Hampshire.

14. It can be many minutes until high heat of structural

collapse stops this type of salvage procedure.

15. In addition at this fire there were no posted barrier tapes

to designate the limit of observers other than fire fighters or

those with permission.

16. At the time of three to five minutes into the fire there is

no danger of structural collapse.

17. The same page three, paragraph two states where

plaintiff ignored a power company man, as I was staying

away from the low wires. See deposition page 38 line nine

"but I did not", line eight "touch them". Read the total of

pages 38 to 41. Plaintiff, with out a need, would not touch

these wires.

18. To handle these wires, presumed to still have electricity,

would not be any more dangerous than handling the cord of a

vacuum cleaner in use or any other electrical appliance.

19. Plaintiff's actions of walking three or four feet away

from electrical wires does not interfere or obstruct the fire

fighting operation.

20. To exaggerate this event into a threat to electrocute

firemen shows a lack of electrical experience by those

making the claim.

21. Plaintiff, when in high school in the middle of the

summer of 1950 or 1951, at my parents cabin (twenty four

units) and trailer park (twenty to twenty five privately owned

units) at Lake George, NY, changed a portion of the main

App-48

Electrical wires while energized and in use. It was done in

this manner to not inconvenience patrons and was needed due

to low voltage causing the troubles. The portion changed

was about five hundred feet long. It was a two wire system

that was supported on trees and had perhaps a dozen taps to

cabins or trailers. As again stated, this was totally

accomplished alone with the electricity in these wires and in

use. Through the ensuing years there have been dozens and

dozens of other work upon wires for electricity when not

turned off.

22. Plaintiff holds a Bachelor of Electrical Engineering

degree from Union College and a Professional Engineer's

license from the State of New York.

23. Plaintiff has also since the late 40's repaired black and

white television sets. Since the mid 50's repaired or worked

with color television sets, which can have 30,000 volts in

their wiring. This high voltage will jump one to one and one

half inches in the air, such that a person need not touch a part.

In the case of house wires, contact must be made with bare

metal parts of the wire to cause the electricity to pass to a

persons body. |

24. Therefore plaintiff has ample experience with the

handling of energized electrical wiring and equipment to do it

safely.

25. In the decision -end of page three to four, (App-9 mid

page) the straightening of a kink in a hose is aiding the

firefighting operation. Most people in a similar situation

would do the same.

26. Asking the firefighters to direct water in a different

direction is not interfering or obstructing the firefighting

operation.

27. The water was being directed to the top of a collapsed

floor (acting like a roof) with the fire underneath. Perhaps

the competence level of the firemen needs to be improved to

the extent that they are aware of the water, to do good, must

reach the burn and not to be just put near it.

App-49

28. The plaintiff witnessed a fire in Warrensburg a couple of

years later where all of the water, eight or more hoses, was

going on the roof of the building. A slight change with the in

use Ariel ladder lowered, then some of the water could be put

into a large attic window where the burn was taking place.

The lower part of the building did not have sizeable smoke

coming out of the broken windows.

29. The plaintiff in asking the firernen to redirect water in a

way that could more efficiently extinguish the fire, is a

reasonable request. My knowing the structure of the house. a

cement wall of the cellar was being hit by the water.

30. The burn of the house and its collapse would destroy any

electrical circuit such that the downed wires near the cellar

door would have no electricity within them.

31. The other condition of walking around the house (at

thirty to fifty feet) in itself would have no effect upon

fwefighting efforts.

32. The question being presented, that with out the

fabricated events, what probable cause is there to order a

property owner to leave their property.

33. In addition the plaintiff standing in their driveway at

approximately one hundred fifty feet from their house is not a

probable cause for an arrest.

34, The plaintiff had been granted a "secret" classification to

handle military information. (RCA Camden NJ 1958.) This

was after a rigorous evaluation of a person, perhaps by the

FBI, to obtain this clearance. It was issued by a Philadelphia

office in 1958 where I am not sure of the code for that office.

35. For the plaintiff to have done these alleged acts, then act

like they never happened and obtain two independent

Witnesses to lie is ridiculous.

36. For the defendants, their actions seem to be common.

37. As for the ACOD - that was to be automatic unless some

criminal act occurred in six months by the plaintiff. None

occurred.

App-50

38. Afire in New York or in New Hampshire can result in

large property damage but the results to the property owner

can be decidedly different. Common sense will show which

would be the desired end result. Which would you want if a

fire was to happen at your home, remember it can happen.

Signed Robert Greene Notarized.

Informational affidavit April 1, 1998

Timothy N. Taylor, being duly sworn, deposes and says:

1. [have known Robert Greene for several years. Iam

presently Assistant Chief of Enfield Volunteer Fire

Department, in the Town of Enfield ,County of Grafton, State

of New Hampshire.

2. Robert Greene asked that I list procedures that the

Enfield Fire Department uses for fire scene control and

salvage tactics.

3. Scene control:

A. Remove all occupants from the burning building.

B. Determine where it is safe and not safe[the hot zone].

C. Post barrier tape ["Fire Line Do Not Cross ] around the

hot zone. This is usually 35 toS0O feet away from the burning

structure unless there is a fatality.

D. Inform violators that they will be arrested if they cross

the line without permission of a fire officer, or a designated

scene Officer.

E. Inform the news media where and when a news release

will be available.

4. Salvage Tactics:

A. Try to establish a hose stream between the fire and the

unbumed area. The contents of a building are often of more

value that the building.

B. Try to get owner or occupant information on items of

value that may be salvaged from the uninvolved areas of the

building|ie.rooms or sections that the fire has not yet burned].

App51

C. Salvage as much as possible, by removing from the

building using air packs until high heat or structural collapse

is eminent or covering items with salvage covers [tarps] if

that area is deemed to be saveable .

D. Use occupant information, as much as possible, to

determine building features and fire load, that could enhance

fire fighting success and fire fighter safety.

E. Only allow occupant in the building, in uninvolved

areas of the building [smoke and heat free] and always with a

fire fighter that can control the occupant. This practice is

only allowed if it is deemed to be completely safe for the

occupant and necessary to indentify to be salvaged by the fire

department.

5. In my 20 years of being a member of the Enfield Fire

Department, I have found that when a family has lost it's

home, a few items saved can turn bitterness into pride of it's

fire department.

Signed Timothy N. Taylor Notarized.

Affidavit of Plaintiff March 11, 1999

Robert Greene, being duly sworn, deposes and says that:

1. Tam the plaintiff in the above matter.

2. No opposition has been received to the motion for

reconsideration dated Feb. 5, 1999.

3. This affidavit is to clarify and elaborate the already

existing positions that have been taken.

4. Two affidavits from witnesses Anthony Sapienza and

Jean Hadden are supplied to clarify their statements.

5. These witness affidavits clearly state that numerous

affidavit statements by the defendants are not accurate

information. These wiil be itemized.

6. The affidavit of Anthony Sapienza paragraph 8 states that

Douglas David's affidavit of Jan. 14, 1998 paragraph 16 has

false information on his requesting plaintiff to stop, plaintiff

looking at him and running towards his house.

7. The affidavit of Anthony Sapienza paragraph 9 states that

a

App-52

Robert McNally's affidavit of Jan. 14, 1998 paragraph 25 has

false information as it states that Douglas David called twice

for the plaintiff to stop and then continued running towards

his house even after being tackled trying to get towards the

house.

8. The affidavit of Jean Hadden paragraph 6 states that

Douglas David's affidavit paragraph 9, to my knowledge this

is false, being excessively close to the burning building or

running around the house.

9. The affidavit of Jean Hadden paragraph 7 states that the

affidavit of Douglas David paragraph 9 is not true by her

observations as to trying to pull a hose from one of these fire

fighters.

10. The affidavit of Jean Hadden paragraph 9 states that the

affidavit of Brian Engle paragraph 8 has no bearing in fact as

to pulling on firefighters or their hoses.

11. The affidavit of Jean Hadden paragraph 10 states that

the affidavit of Robert McNally paragraph 15 is, as false

according to what I saw, repeatedly trying to drag the fire

fighters away by pulling on them or their hoses.

12. The affidavit of Jean Hadden paragraph 11 has a broad

statement that will fit numerous parts of the affidavits of the

defendants. Some are: Brian Engle paragraph 8 plaintiff's

repeatedly bothering the firemen .... Douglas David's

affidavit paragraph 7 Mr. Greene kept interrupting the

firefighters by .... and others.

13. This is conclusive evidence that numerous disputes of

material importance do occur within the evidence supplied to

the court. There are more that have not been detailed or

maybe relatively insignificant.

14. It has been observed that all three of these of the defense

affidavits omitted the information that the plaintiff was

ORDERED to leave his property. That information was

included in the fact finding of the decision dated Jan. 22,

1999, in the middle of the page 5.

App-53

15. As to the video tape, to clarify its significance, if the

plaintiff had done all of the wrongful acts he is accused of in

the defendant's affidavits, it would be reasonable io expect

that the person who video taped the fire scene would have

caught some, if not all, of these wrongful acts.

16. The plaintiff reluctantly named a witness, Dale Rapp, at

the deposition pg. 99 dated Oct. 27, 1997. Dale Rapp,

several months later refused to sign a rather brief aflidavit

which only stated the words of the conversation between the

plaintiff and Douglas David.

17. In a very recent conversation with Edward Lockheart, a

member of the Warrensburg Fire Co. he related to me that he

had been asked to make statements about me that he knew |

had not done.

18. Therefore the plaintiff demands the reversal of the

decision of Jan. 22, 1999, on the basis of the many statements

of false information being presented by the defendants to the

Court thereby obtaining a ruling in their favor.

Signed Robert Greene Notarized.

App-54

New App-54

New York Penal Law par. 195.15

A person is guilty of obstructing firefighting operations

when he intentionally and unreasonably obstructs the efforts

of any

1. fireman in extinguishing a fire, or prvents or

dissuades another from extinguishing or helping a fire; or

2 fireman, police officer or peace officer in performing

his duties in circumstances involving an imminent danger

created by an explosion, threat of explosion or the presence

of toxic fumes or gasses.

Federal Rules of Civil Procedure 56(C)

Summary judgement:

Shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgement as a matter of law.