Opposition Brief — Greene v. Ham

No. 99-214

In The

Supreme Court of the United States

JOSEPH GREENE, et al.,

Petitioners,

v.

ERIC HAM,

Respondent.

.

On Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Connecticut

+

BRIEF IN OPPOSITION

S

WituiaM S. PaAcmiert, Eso.

JoHN R. Wittutams, Esa.

Counsel of Record

WILLIAMS AND Parttis, LLC

51 Elm Street

New Haven, CT 06510

(203) 562-9931

FAX: (203) 776-9494

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ISSUES PRESENTED

A. The cases cited by the petitioners do not evi-

dence a division of opinion in the state and federal

courts.

B. The petitioners incorrectly argue that the stan-

dard for a court's consideration of “material facts in

dispute” on a motion for summary judgment based upon

qualified immunity is the same as the determination of

“materiality” in a Franks context.

C. Contrary to the assertions of the petitioners, the

courts agree that questions of fact related to liability and

qualified immunity in Franks cases are properly decided

by the jury.

D. The law was well settled at the time the peti-

tioners sought the arrest warrant for the respondent.

E. Distinguishing “exculpatory” evidence from

“impeachment” evidence is inapposite to the issues pre-

sented by the petition, and as the claimed issue was not

decided by the Connecticut Supreme Court, review is not

warranted here.

il

TABLE OF CONTENTS

Page

SOUND PRESMINEMEA tcrcesctovecevennetveasehieans i

TABLE OF AUTEM EGSe vinceccesetesnsbcongeetss iii

STATEMENS OF FRR CASE. os ccnvne scvestuccccees 1

REASONS FOR DENYING THE WRIT............. 12

A. The cases cited by the petitioners do not evi-

dence a division of opinion in the state and

SOGOU COMIUE co ccccassesvavnseevesseuseneays 12

B. The petitioners incorrectly argue that the stan-

dard for a court’s consideration of “material

facts in dispute” on a motion for summary

judgment based upon qualified immunity is

the same as the determination of “materiality”

i & FOUND COUR ini ss heecccevecacereesusess 17

C. Contrary to the assertions of the petitioners,

the courts agree that questions of fact related

to liability and qualified immunity in Franks

cases are properly decided by the jury....... 21

D. The law was well settled at the time the peti-

tioners sought the arrest warrant for the

FOCPORGOE oc isccccenencyieses eudeweseaeern 24

E. Distinguishing “exculpatory” evidence from

“impeachment” evidence is inapposite to the

issues presented by the petition, and as the

claimed issue was not decided by the Connecti-

cut Supreme Court, review is not warranted

MONO. ccvcccvessciserkeaeaedstestvaeneeaeee 27

***

TABLE OF AUTHORITIES

Page

FEDERAL Cases

Anderson v. Creighton, 483 U.S. 635 SOE Vedcowns 17, 18

Anderson v. Liberty Lobby, Inc., 477 US. 242, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986).................. 25

Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) ...13, 14

Brown v. D'Amico, 35 F.3d 97 (2nd Cir. 1994)..... 26, 28

Burke v. Beene, 948 F.2d 489 (8th Cir. 1991).......... 23

Cartier v. Lussier, 955 F.2d 841 (2nd Cir. 1992)....... 18

Deary v. Three Un-Named Police Officers, 746 F.2d

BOS (O0G Cig, 1966)... 5 cc ccccccccccccsvceccecce, 22

Dube v. State University of New York, 900 F.2d 587

(2nd Cir. 1990), cert. denied, 501 U.S. 1211 (1991) ....21

Franks v. Delaware, 438 U.S. 154 (1978) .......... passim

Garris v. Rowland, 678 F.2d 1264 (5th Cir.), cert.

denied, 459 U.S. 864 NYG awed dineedbe cececni 22, 23

Golino v. New Haven, 950 F.2d 864 (2nd Cir. 1991),

cert. denied sub nom., Lillis, et al. v. Golino, 505

ane e ce vkccéee, cs 18, 25, 28

Harlow v. Fitzgerald, 457 U.S. 800 (1982).......... 17, 18

Haywood v. Nye, 999 F. Supp. 1451 (D. Utah, 1998) 23, 24

Hervey, et al. v. Estes, 65 F.3d 784 (9th Cir. 1995)

eevee OUCRRNVECe eee 6eeeeesctevarseccec< 12, 13, 14, 23

Hill v. McIntyre, 884 F.2d 271 (6th Cir. De edeaxvawe 23

Hindman v. City of Paris, Texas, 746 F.2d 1063 (Sth

ENC U G4 Ab Ge bind yo evecsses cece coecce, 22

iV

TABLE OF AUTHORITIES - Continued

Page

Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994)......... 24

Luthe v. The City of Cape May, 49 F. Supp. 2d 38

OO WEE OUI od chides cncdnnsnusbcuueebcoutioase 22

Magnotti v. Kuntz, 918 F.2d 364 (2nd Cir. 1990). ..21, 26

Malley v. Briggs, 475 U.S. 335 (1986)..............4.. 18

P.C. v. McLaughlin, 913 F.2d 1033 (2nd Cir. 1990) .... 21

Robison v. Via, 821 F.2d 913 (2nd Cir. 1987).......... 18

Salmon v. Schwarz, 948 F.2d 1131 (10th Cir. 1991)....23, 24

Sharrar v. Felsing, 128 F.3d 810 (3rd Cir. 1997)....... 22

Smith v. Reddy, 101 F.3d 351 (4th Cir. 1996) ..... passim

Smith v. Reddy, 882 F. Supp. 497 (D. Md. 1995)...... 19

Stigall v. Madden, et al., 26 F. 3d 867 (8th Cir. 1994) 12, 13

Torchinsky v. Siwinski, 942 F.2d 257 (4th Cir. 1991) .... 29

Trejo v. Perez, 693 F.2d 482 (5th Cir. 1982)........... 23

TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438,

96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)............ 25, 28

United States v. Leon, 468 U.S. 897 (1984)............ 26

Velardi v. Walsh, 40 F.3d 569 (2nd Cir. 1994)...... 21, 28

Wilson v. Layne, 119 S.Ct. 1692 (1999) ............... 22

Yancey v. Carroll County, 876 F.2d 1238 (6th Cir.

SOEs Cc. vedevesernesncdesbecdeeressetnseecevetiess 23

TABLE OF AUTHORITIES - Continued

Page

State Cases

Eric Ham v. Joseph Greene, et al., 248 Conn. 508

(ePPeD 5 s0teccudycadeceaeeuhucsuuvestienloean passim

In re Investigation of the Grand Juror into the Bethel

Police Department, 188 Conn. 601 (1982) .......... 27, 28

Mulligan v. Rioux, 229 Conn. 716 DE Kaw cae cae ues 18

State v. Couture, 194 Conn. 530 ee eee 27

FEDERAL STATUTES

Te Wee Oe Bei no kscedsedacuceunxenuee 10, 21, 22

CS Gee © OU cn nthavecectnvedertieee ee 10

STATE STATUTES

eS OF Fk Per tae ae 27

STATEMENT OF THE CASE

This petition seeks this Court’s review of limited

portions of the Opinion of the Supreme Court for the

State of Connecticut entitled Eric Ham v. Joseph Greene, et

al., 248 Conn. 508 (1999), Officially released on May 4,

1999.!

The petitioners ostensibly challenge the decision of

the Connecticut court on two bases: first,

whether in a civil rights lawsuit claiming

false arrest and malicious prosecution pursuant

to an alleged inadequate arrest warrant applica-

tion evidence that merely tends to impeach the

credibility of witnesses is “material” and

required to be disclosed in the nonadversarial

warrant application phase;

and second,

whether in a civil rights lawsuit claiming

false arrest and malicious prosecution pursuant

to an alleged inadequate arrest warrant applica-

tion the “materiality” of information omitted

from the warrant application is a legal question

for the Trial Court or a factual question for the

jury.

Pet. 7-8. As such, the petitioners explicitly do not seek

review of the Connecticut Supreme Court's opinion inso-

far as it upheld the verdict in favor of the respondent on

' The petitioners erroneously state that the decision was

“officially published May 9, 1999.” Pet. 2. Petitioners alternately

state that “[t}he decision of the Connecticut Supreme Court's

[sic] was officially published May 4, 1999.” Pet. 5. The correct

official release date of the Opinion is May 4, 1999. Ham, 248

Conn. at 508.

the Connecticut state tort law claims of malicious prosecu-

tion and intentional infliction of emotional distress, and

the punitive damages awarded on the basis of those torts.

In support of their contentions, the petitioners allege

that there exists “a division of opinion within and among

the federal and State courts” on the issues presented by

their petition. Pet. 7. The cases to which the petitioners

cite, however, are inapposite to their argument, and as

discussed more fully below, do not evidence a division of

opinion on the issues stated by the petitioners. Similarly,

the petitioners make numerous misrepresentations of fact

and misleading statements of law, the latter at times

absent any citation whatsoever in support of their legal

assertions. Each of the aforementioned will be discussed

in detail below, and will demonstrate that review by this

Court of the instant case is not warranted.

Absent any actual division of opinion as applied to

the particular circumstances of the subject case, the

request of the petitioners to this Court is reduced to one

of review of factual determinations made by the jury,

reviewed and upheld by the trial court, and ultimately,

reviewed and affirmed by the Connecticut Supreme

Court.? Integral to an understanding of the conclusions

reached is a review of the facts of the case.*

2 The detailed analysis conducted by the Connecticut court

is found in Ham, 248 Conn. 519-526. Of the entirety of the court’s

reasoning, the petitioners only specifically take issue with the

contextually devoid half-sentence “could not possibly have

affected the magistrate’s decision to issue the warrant.” Pet. 18.

* The facts as articulated appear nearly verbatim in the

Connecticut court’s decision, and emanate directly from the

On January 20, 1991, a light colored station wagon

containing two or three African-American males stopped

in the vicinity of Sylvan Avenue and Ward and Asylum

Streets in New Haven. A black male, approximately five

feet five inches to five feet eight inches tall, with a dark

complexion and a stocky build, stepped out of the auto-

mobile and fired approximately ten shots from a weapon

into a crowd of people. He then got back into the vehicle

and left the scene. There were two victims of the shoot-

ing: Markiest Alexander, age fourteen, who died as a

result of the gunshot wounds; and Alfred Brown, age

eighteen, who was seriously injured.

New Haven police responded to the scene. The peti-

tioner Greene was the detective assigned to investigate

the shooting and was responsible for coordinating the

investigation, locating and interviewing witnesses,

retrieving and examining physical evidence, preparing

police reports and reviewing reports of other police

department members involved in the investigation. The

petitioner Sweeney was the supervisor of the investiga-

tion. Numerous witnesses identified through the peti-

tioners’ investigation were taken to police headquarters

that evening and interviewed by the petitioners. They

recovered, among other items, ten nine millimeter shells

from the scene. Among those witnesses who gave sepa-

rate tape-recorded statements to the petitioners within

hours of the shooting, were Ronald Hannans, Tashim

Thomas, Terry Williams and Troy Carson.

evidence adduced at trial, as recorded in the transcript of the

trial. Ham, 248 Conn. 510-518.

Thomas, who had stood approximately thirty feet

away from the shooter, described the shooter to the peti-

tioners as a dark skinned black male, approximately five

feet eight inches tall, with a stocky build. Hannans told

the petitioners that he did not recognize the shooter,

whom Hannans described as a black male approximately

five feet seven inches tall. Carson told the police that,

moments before the shooting, he had seen a car with

three black males cruising the area. He described the

shooter as a dark skinned black male, approximately five

feet seven inches to five feet eight inches tall with a

stocky build. The male was dressed all in black. He could

not identify the shooter beyond that physical description.

Carson knew the respondent and told the police that he

had seen him near the crime scene with a male named

Timothy Davis. He stated that he saw the respondent and

Davis only after the shooting had occurred and the police

had arrived, as the two were leaving the area and as the

crowd of onlookers was dissipating. Although Carson

knew the respondent, he neither identified him as the

shooter, nor suggested that the respondent was involved.

Williams, who gave the same physica! description of the

shooter as the previous three witnesses, identified the

weapon used as a “shiny nine millimeter.”

On February 6, 1991, Tremaine Ortiz, another witness

to the shooting, also described the shooter as a dark

skinned black male, approximately five feet five inches

tall with a medium build. Ortiz verified that the shooter

had a uniquely shiny handgun and that a person named

“Joe,” who fit the description, was known for robbing

drug dealers in the area where the shooting occurred.

Shortly after the evening of the shooting, the peti-

tioners interviewed Brown, the surviving victim. He told

the police that his assailant was a black male, approxi-

mately five feet nine inches tall. Brown, who knew the

respondent from school and the neighborhood, told the

petitioners that he did not recognize his assailant and, in

fact, had never seen him before.

Nearly three weeks after the shooting, on February 6,

1991, the petitioners interviewed Lynwood Cypress.

Cypress described the shooter as a dark skinned black

male, five feet five to five feet seven inches tall, with a

stocky build. He confirmed Williams’ description of the

weapon. Additionally, he advised the petitioners that the

shooter was the same person who had tried to rob him at

gunpoint earlier that evening, shoving the same firearm

into his stomach. Cypress was then transported to the

police department where he gave a tape recorded state-

ment in which he repeated his earlier description of the

shooter. Cypress believed that the shooter’s name was

Joe, but did not know the man’s full identity. Finally,

Cypress told the petitioners that he had seen the same

person two days after the shooting, but had not seen him

in a while and therefore assumed that he was not from

New Haven.

In contradiction to his earlier statements, on Febru-

ary 11, 1991, in his third statement to the petitioners,

Cypress stated that he personally knew the respondent

and that the respondent was the shooter. He witnessed

the respondent get out of a station wagon and open fire

into a crowd of people on Sylvan Avenue. According to

Cypress, the respondent was dressed in black pants, a

black jacket, black shoes and a black hat and was carrying

a nickel plated nine millimeter gun that he used to shoot

the victims. The respondent thereafter got back into the

car, which sped away. The vehicle was driven by some-

one named Joe, whom Cypress also recognized. He did

not know the person in the back seat. The respondent and_

Joe returned moments later and stood in the crowd of

onlookers for three to four minutes. According to this

statement by Cypress, he and Carson stood close to the

respondent and Joe, and Carson conversed with them.4

Joseph Timothy Davis also gave a statement to the

police in which he incriminated the respondent. He

described how, on the day of the shooting, he and the

respondent had been driving around in a station wagon

that he had rented from someone in the neighborhood.

According to Davis, they had stopped at the corner of

Sylvan and Asylum Streets to talk with some friends,

when the respondent began playing with a nine millime-

ter gun he was carrying. The respondent leaned over

Davis, and while he was tapping the weapon on the

windowsill of the car, the gun discharged, and bullets

ricocheted off the ground, striking two boys whom Davis

knew from the neighborhood. Thereafter, they left the

scene. In contradiction to every other witness as to the

location of the shooter, in that statement, Davis reiterated

that the respondent was seated in the car when the gun

was fired. Following police questioning, Davis changed

+ Despite extensive cross examination of the petitioners at

trial on this issue, the jury’s verdict, the trial court’s written

findings and the Connecticut Supreme Court’s discussion of the

matter, the petitioners assert that “the fact that [Lynwood

Cypress] gave the incriminating statement was not challenged.”

Pet. 5.

his story regarding the respondent's location, this time

placing the respondent outside the vehicle during the

shooting.

At trial, Davis described how he had been taken to

the New Haven police station where Greene intimidated

and threatened him with prosecution. Davis related how

Greene had told him falsely that the respondent had

incriminated him in the shooting. Davis further testified

that Greene, in effect, had told him what to say in his

tape-recorded statement. Davis testified that in order to

ensure his release, Davis had fabricated a story incrimi-

nating the respondent, which was included in the war-

rant affidavit. Davis further explained to the jury that on

February 18, 1991, he recanted his statement incriminat-

ing the respondent. There was also evidence that the

petitioners were aware of the recantation.

On January 28, 1991, the petitioners learned from two

inmates, one of whom was a relative of one of the victims,

that an individual identified as Joe Covington, who was

incarcerated at the New Haven Community Correctional

Facility, was claiming responsibility for the shooting of

Brown and Alexander. He had boasted to at least five

people that he was responsible for the January 20, 1991

shooting. He provided details of the crime and how it

had occurred. The petitioners sent another policeman to

interview two other inmates, George Galberth and

Michael Gaetano, but they never interviewed Covington

in connection with their investigation. Nor did they

assign any other member of the police department to

interview him or to show Covington’s photograph to any

of the witnesses.

On February 11, 1991, the petitioners were given

information that an individual named Tyrese White had

shot Alexander and Brown. On the same date, the peti-

tioners received information from another source that an

individual nicknamed “Ears” had had a dispute with

Alexander two,weeks before the shooting, and had

threatened him at that time with a firearm. Neither lead

was investigated. The petitioners did, however, reinter-

view Carson that day. He repeated much of what he had

already stated to the police on the evening of the shoot-

ing. He reiterated that he could not identify the shooter

beyond the physical description he had already provided,

and that he had seen the respondent and Davis leaving

the area of the shooting as the crowd of onlookers dissi-

pated, only after the shooting had occurred and the

police had arrived.

On February 12, 1991, Greene executed a search war-

rant at the respondent’s household. The respondent, an

eighteen year old black youth, six feet two inches tall,

light skinned, and of slim build, weighing 155 pounds,

was present at the time of the search. He had extensive

contact with Greene, thereby allowing Greene carefully to

observe the respondent and take note of his physical

appearance.

On February 13, 1991, the petitioners prepared and

submitted an affidavit in support of a request for an

arrest warrant for the respondent, charging him with

murder in the first degree, assault in the first degree and

two counts of criminal use of a firearm. Although it did

not identify Cypress as the author, the affidavit prepared

by the petitioners included information obviously taken

from Cypress’ third statement, the one in which he

incriminated the respondent. Their affidavit also included

the contents of the statement by Davis that he had been

with the respondent when the respondent shot the vic-

tims. The warrant did not, however, include that portion

of Davis’ earlier statement placing the respondent inside

the vehicle when the weapon discharged.

Additionally, the warrant did not include the fact

that Thomas, Carson, Hannans, Williams and Ortiz, neu-

tral eyewitnesses to the shooting, had told police that the

shooter was five feet seven inches or five feet eight inches

in height, with a dark complexion and a stocky build. Nor

did the affidavit refer to Brown’s statement. Although the

warrant referred extensively to Cypress’ incriminating

statement, it failed to even mention the fact that he had

given two previous statements, neither of which included

an identification of the respondent as the shooter. Nor,

therefore, did it include a reference to the fact that

Cypress had first described the shooter as being a dark

skinned black male, five feet five or six inches in height

with a stocky build, or the fact that the shooter, known to

him only as Joe, had tried to rob Cypress earlier on the

day of the shooting. Further omitted from the affidavit

was Cypress’ statement that, although he had seen Joe

two days after the shooting, he had not seen him for a

long time and therefore assumed he was not from the

area. Finally, the warrant also failed to mention

Covington. Indeed, it did not include any reference to the

two prison inmates who had reported to the police that

Covington had boasted about being the shooter while

providing details about the incident and its victims.

Based upon the affidavit prepared by the petitioners,

a warrant for the respondent’s arrest was issued on

10

February 13, 1991. The warrant was executed by the

petitioners that day, and the respondent was arrested and

held in custody until May, 1991. On May 9, 1991, the

criminal prosecution was nolle prosequied by the state

because the two witnesses, Cypress and Davis, recanted

their earlier statements implicating the respondent. The

charges thereafter were dismissed by operation of law.

In August, 1991, the respondent brought a complaint

against the petitioners, charging them each with federal

civil rights claims pursuant to 42 U.S.C. §§ 1983 and 1988

for false arrest and malicious prosecution and with com-

mon-law claims of malicious prosecution and the inten-

tional infliction of emotional distress.

The case was tried to the jury, which returned a

verdict in favor of the respondent as to both petitioners.

The verdict forms reflect the following awards against

each of the two petitioners: $100,000 compensatory dam-

ages for each of the two federal civil rights claims and

$100,000 compensatory damages for each of the two com-

mon-law claims. Additionally, as indicated on the verdict

forms, the jury awarded the respondent $200,000 in puni-

tive damages against each of the two petitioners for each

of the two civil rights claims. The jury had been

instructed by the trial court that there would be one

award for compensatory damages and that its verdict

form should reflect the total amount it considered appro-

priate. In the absence of any evidence indicating that

separate types of compensatory damages should have

been awarded based upon the different theories of lia-

bility, the trial court approved the total award of $100,000

for compensatory damages. Turning to the issue of puni-

tive damages, the trial court approved the total award of

11

$800,000 in punitive damages in connection with those

claims.

The petitioners thereafter filed a single motion

requesting that the trial court arrest judgment, set aside

the verdict, enter judgment notwithstanding the verdict

or alternately, grant a new trial. The respondent subse-

quently filed his motion in objection thereto. The trial

court heard oral argument on the petitioners’ post trial

motions no fewer than four times.

On May 7, 1997, the trial court issued a written

memorandum of decision on the petitioners’ motion. In

its twenty-seven page decision, the trial court upheld the

jury’s verdict and awards. Pet. 1A-31A.

The petitioners thereafter appealed to the Connecti-

cut Supreme Court. On May 4, 1999 the court issued its

Opinion affirming the jury’s verdict and the trial court's

refusal to set aside that verdict. Ham v. Greene, 248 Conn.

508 (1999).

This petition followed.

5 Contrary to the assertions of the petitioners, damages in

the instant case were never “reduced on posttrial motion” or

remitted in any way. Pet. 4. To the contrary, the trial court

increased the amount of the award subsequent to the jury’s

determination of punitive damages on the state law claims.

Ham, 248 Conn. at 518-519. This award was affirmed by the

Connecticut court, and is not here challenged. Id., 534-537.

12

REASONS FOR DENYING THE WRIT

A. The cases cited by the petitioners do not evidence a

division of opinion in the state and federal courts.

The Petitioners claim that four federal cases exist

which, they purport, “support their petition,” and

assumedly, are at odds with the state and federal cases

cited by the court in Ham v. Greene. Pet. 7 n.1.

A careful examination of all of the cases cited by the

petitioners, however, reveals an absence of the claimed

conflict. Each of the cases are inapposite to the issues

presented by the instant petition. Three of the four cases

offered by the petitioner — Smith, Hervey and Branch -

consider the issue of qualified immunity in a Franks case

on pretrial motion.© The fourth, Stigall, addresses the

entry of judgment in favor of the defendants after trial —

the plaintiff having survived a motion for summary judg-

ment — pursuant to their motion for judgment as a matter

of law.”? None of the cases cited by the petitioners stand

© Smith v. Reddy, 101 F.3d 351 (4th Cir. 1996) (qualified

immunity at the summary judgment stage); Hervey, et al. v. Estes,

et al., 65 F.3d 784 (9th Cir. 1995) (qualified immunity at the

summary judgment stage); Branch v. Tunnell, 937 F.2d 1382 (9th

Cir. 1991) (qualified immunity upon motion to dismiss).

7 Stigall v. Madden, et al., 26 F.3d 867 (8th Cir. 1994). It is

fascinating that the petitioners include this case among those

that they assert support their petition. The term “qualified

immunity” is nowhere used in the court’s opinion. In reaching

its conclusion, the court applies the directed verdict standard,

and in dicta, obliquely refers to the objective reasonableness of

the officer:

We do not believe that this is evidence from which a

factfinder could have found for the plaintiff. The

13

for the proposition that issues of fact should be taken

from the jury in the wholesale fashion that the petitioners

claim. Smith, Hervey, Branch, Stigall, supra.

On the basis of three of the cited cases,’ the peti-

tioners assert that a division exists in the law whether the

issue of materiality? in the context of civil rights cases

question in a case like this is ‘whether a reasonably

well-trained officer in [this officer’s}] position would

have known that his affidavit failed to establish

probable cause and that he should not have applied

for the warrant.’

Id. at 869.

The court evidently considered facts found by the jury and

ruled upon them as a matter of law, but what those facts were is

a matter of sheer speculation. The court merely conclusorily

states that “[t]he information on which Mr. Burrow acted was

not inherently unreliable, nor was it obviously less credible than

the evidence opposed to it. There was, therefore, nothing

objectively unreasonable about believing it.” Id. The probative

value of this case to the petitioners is nil - it stands for none of

the propositions for which it may conceivably be offered. If,

however, it may be construed to stand for the permissibility of a

trial court allowing disputed issues of fact to survive a motion

for summary judgment and be submitted to the jury, and

thereafter to review the findings of the jury against the template

of objective reasonableness (e.g., qualified immunity), then it in

fact supports the procedure undertaken by the trial and

reviewing courts in Ham, supra.

® Smith v. Reddy, 101 F.3d 351 (4th Cir. 1996); Hervey, et al. v.

Estes, et al., 65 F.3d 784 (9th Cir. 1995); Branch v. Tunnell, 937 F.2d

1382 (9th Cir. 1991).

* The petitioners expand their argument as the petition

progresses to encompass numerous factual questions,

including: what material was omitted from or included in the

warrant affidavit; its truth or falsity; the weight a reviewing

magistrate would give such information; the “compelling”

14

pursuant to Franks v. Delaware’ is a question of law for

pretrial determination by the court, or a question of fact

properly left to the jury at trial. The petitioners further

argue that the Connecticut Supreme Court erred in

upholding the latter procedure in Ham v. Green, supra. Pet.

8. The petitioners, however, have chosen to ignore the

obvious — in each of the cases cited by them the defen-

dants therein submitted to the trial court dispositive

pretrial motions based upon qualified immunity. See

generally, Smith, 101 F.3d 351; Hervey, 65 F.3d 784; Branch,

937 F.2d 1382. None of the cases cited hold that the

questions of fact identified by the petitioner are consid-

ered by the court for any but the limited purpose of the

determination of the pretrial motion. In the instant case,

however, the petitioners did not file any pretrial motions

whatsoever. Further, the petitioners raised no objection at

trial to the correct presentation of the factual issues to the

jury, and in fact, the petitioners agreed to the charge of

nature of such information; whether omitted information

“negate[d] guilt;” whether such information would have led to

the decision “to not prosecute;” whether the actions of the

officer constituted “error“or were knowing or reckless

(subjective intent); whether the actions of the officer were

reasonable; whether or not probable cause existed; and whether

or not the actions of the officer were objectively reasonable. See,

e.g., Pet. 10, 21.

The shotgun approach of the petitioners attacks, without

distinction, both the submission of factual issues to the jury

necessary to the determination of liability in a Franks claim, and

the submission of factual issues necessary to the determination

of the qualified immunity issue. Id.

10 Franks v. Delaware, 438 U.S. 154 (1978).

15

law given and the procedure followed by the trial court.

Ham, 248 Conn. at 527, 529 n.12.!!

The petitioners nevertheless attempt to twist the

well-settled law which a trial court must follow in consid-

ering a pretrial dispositive motion based upon qualified

immunity in a Franks civil case into a rule absolutely

barring submission to the jury the factual issues of mate-

riality, reasonableness and probable cause. The peti-

tioners state, utterly without support in, or even citation

to law:

In the civil case, only a trained and experi-

enced judge can reasonably evaluate what omit-

ted evidence another trained and experienced

judge might have found so compelling as to

1! The Connecticut Supreme Court correctly observed that

“the defendants’ complaint . . . that the trial court’s instruction

on materiality was deficient” was “raised for the first time on

this appeal.” Ham, supra, at 527. The court further held:

The defendants claim that the court failed to give

proper guidance regarding the meaning of

exculpatory information and materiality. The claim

was not raised properly at trial. The defendants

expressly informed the court, following its charge to

the jury, that they had no objections to the charge. As

we have repeatedly stated, issues not properly raised

before the trial court will ordinarily not be considered

on appeal.

Ham, at 529 n.12.

The Connecticut court expressly did not review, and

certainly did not decide upon the trial court’s instructions of

law regarding the meaning of exculpatory information and

materiality. As such, the Court should deny the petition insofar

as it requests review of the trial court’s submission to the jury on

these matters.

16

negate guilt and thus lead to the decision to not

prosecute, and alternately, what error in the

warrant application is nevertheless sufficiently

reasonable so as to entitle the accused officer to

qualified immunity even if probable cause is

found to be lacking after “correction” of the

warrant for false or omitted evidence.

Pet. 10.

The petitioners here intentionally blur the distinction

between the trial court’s determination whether there

exists a dispute of material fact to be submitted to the

jury, and the jury’s determination of facts relevant to

liability in the underlying tort. Such faulty reasoning

leads to clearly untenable results — if the argument of the

petitioners were to be credited, then the determination of

whether a Franks violation has occurred would never be

one for the jury, whether or not defendants offer the

defense of qualified immunity. If this is not the necessary

conclusion that one must draw from the petitioners’ argu-

ment, how then can their assertion that the Ham court

erred in submitting factual issues to the jury be

explained? The only possible answer is that the peti-

tioners disagree with the fact-bound conclusions of the

trial court and the Ham court based upon the facts found

by the jury; first, that the facts found support a finding

against the petitioners; and second, that qualified immu-

nity was unavailable to them. Ham, supra, at 527.

17

B. The petitioners incorrectly argue that the standard

for a court’s consideration of “material facts in dis-

pute” on a motion for summary judgment based

upon qualified immunity is the same as the deter-

mination of “materiality” in a Franks context.

Summary judgment based upon qualified immunity

“should be granted only when it is appropriate, that is,

when there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law.” Smith

v. Reddy, 101 F.3d 351, 357 (4th Cir. 1996). Properly raised

on a motion for summary judgment, if a defendant so

elects, the defense of qualified immunity is a well-settled

doctrine that protects government officials from civil

suits arising from the performance of their discretionary

functions when that performance “does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “[W]hether an official

protected by qualified immunity may be held personally

liable for an allegedly unlawful official action generally

turns on the ‘objective legal reasonableness’ of the

action . . . assessed in light of the legal rules that were

‘clearly established’ at the time it was taken.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (citing Harlow, 457 U.S.

at 818-19).

The petitioners do not dispute that the right to be

free from arrest absent probable cause was clearly estab-

lished, nor do they contest that the right was one which a

reasonable person would have known at the time of their

18

submission of the affidavit in support of the arrest war-

rant for the respondent;!? therefore, the appropriate

inquiry is one into the objective reasonableness of the

actions of the respondents. Harlow, 457 U.S. at 818-19;

Anderson, 483 U.S. at 639. In order to be entitled to

summary judgment on such a defense, the officer must

adduce sufficient facts that no reasonable jury, looking at

the evidence in the light most favorable to, and drawing

all inferences most favorable to, the plaintiff, could con-

clude that it was objectively unreasonable for the officer

to believe that probable cause did not exist. Ham, 248

Conn. at 522, quoting Golino v. New Haven, 950 F.2d 864,

870 (2nd Cir. 1991), cert. denied, 505 U.S. 1221 (1992),

citing Malley v. Briggs, 475 U.S. 335, 341 (1986); Robison v.

Via, 821 F.2d 913, 921 (2nd Cir. 1987); Mulligan v. Rioux,

229 Conn. 716, 729 (1994).

When considering a motion for summary judgment

based upon qualified immunity, it is appropriate for the

reviewing court to determine whether there exist genuine

disputes of material facts. In this context, only if “the

._corrected affidavit did not support an objective finding of

probable cause would the factual disputes be material to

resolving the issue of probable cause.” Cartier v. Lussier,

955 F.2d 841, 845 (2nd Cir. 1992). If the court determines

that no dispute of material facts exist, then the court may

properly grant summary judgment, in effect taking all

factual determinations from the jury.

The petitioners rely on the holdings of a scant few

cases, wherein summary judgment was granted, and

12 See Section D, infra.

19

issues of fact were in effect taken from the jury for the

sole purpose of determining the motion, to extrapolate

that in all circumstances the issues of materiality, rea-

sonableness and probable cause in a Franks analysis,

rather than in a summary judgment/qualified immunity

analysis in a Franks case, are questions of law for the

court. The cases cited by the petitioner clearly do not

stand for this proposition. In fact, nowhere in the law is

13 It is extremely telling that the petitioners quote

extensively from the district court’s decision in Smith v. Reddy,

882 F. Supp. 497 (D. Md. 1995). Pet. 23-24. Although the district

court’s decision in Smith, 882 F. Supp. at 499-500, was upheld on

review, the circuit court took great pains to articulate that “we

find that Reddy’s conduct was objectively reasonable and affirm

the summary judgment that granted her immunity. However,

we reach that conclusion by an analysis that differs somewhat

from the district court’s.” Smith v. Reddy, 101 F.3d 351, 353, 355

(4th Cir. 1996). The court stated:

The district court held that if a plaintiff alleges that an

officer obtained a warrant by misleading a

magistrate, the plaintiff must satisfy the subjective

standard set forth in Franks . . . to overcome a

defendant's claim of qualified immunity . . . [which]

requires ‘a substantial preliminary showing that a

[material] false statement knowingly and inten-

tionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit’

... Rather than engaging the Franks test, we apply the

qualified immunity analysis, which examines the

objective reasonableness of an officer’s conduct.

Smith v. Reddy, 101 F.3d at 355.

The quoted portion of the district court’s opinion offered by

the petitioners is excerpted directly from that portion of the

court’s holding which was expressly determined to be incorrect

reasoning by the circuit court. Smith v. Reddy, 101 F.3d at 355;

Smith, 882 F. Supp. at 499-500. The corrected reasoning strongly

20

there to be found any support for the petitioners’ asser-

tion.

Well-settled law instructs that the purpose of quali-

fied immunity is, in effect, to give official transgressors a

“second bite at the apple,” by allowing for the determina-

tion that their actions, although mistaken, were reason-

able. To this end, the doctrine of qualified immunity is

appropriately considered by the court either before trial,

if raised in a pretrial dispositive motion, or after a finding

of liability at trial.

In the instant case, the petitioners did not move for

summary judgment or to dismiss the respondent’s claims

prior to trial. The petitioners’ claims, therefore, that the

trial court submitted the case to the jury in error is

without foundation in law or reason. The trial court did,

after trial, pursuant to the written motion of the peti-

tioners filed after the trial, consider and reject the defense

of qualified immunity. In so doing, the court indepen-

dently evaluated the materiality of the facts omitted from

the warrant affidavit (as opposed to the summary judg-

ment question whether material facts were in dispute),

and determined that no reasonable police officer could

have mistakenly believed that probable cause existed in

the corrected affidavit. The standard applied by the trial

court, and the de novo review standard applied by the

Connecticut court were correct and in accord with well-

settled law.

suggests that the elements of a Franks civil claim are properly

questions of fact for the jury. Id., at 355.

21

As such, the cases cited by the petitioners cannot be

construed to support the petitioners’ assertion that the

issues of materiality, reasonableness and probable cause

should always be determined by the court in Franks civil

cases. It is solely with the factual conclusion of the lower

courts that the petitioners take issue. Therefore, this

Court should decline review of the instant petition.

C. Contrary to the assertions of the petitioners, the

courts agree that questions of fact related to lia-

bility and qualified immunity in Franks cases are

properly decided by the jury.

Factual determinations necessary to the determina-

tion of qualified immunity are properly submitted to the

jury. Magnotti v. Kuntz, 918 F.2d 364, 367 (2nd Cir. 1990);

P.C. v. McLaughlin, 913 F.2d 1033, 1039 (2nd Cir. 1990);

Dube v. State University of New York, 900 F.2d 587, 595-596

(2nd Cir. 1990), cert. denied, 501 U.S. 1211 (1991).

Summary judgment is inappropriate in “doubtful

cases” where the court is unsure what weight a neutral

magistrate would give the remaining truthful informa-

tion. Velardi v. Walsh, 40 F.3d 569, 573-74 (2nd Cir. 1994).

“{Rjeview of the “corrected affidavit” ... where officers

procuring a warrant have deliberately misled the magis-

trate about relevant information [,] ... [to] . .. try to

predict whether a magistrate would have found probable

cause if he had been presented with truthful informa-

tion... is a question of fact rather than of law.” Velardi,

40 F.3d at 574 n.1.

In a § 1983 Franks action the issue of whether there

was probable cause to make an arrest is a question for the

22

jury. Sharrar v. Felsing, 128 F.3d 810, 817-18 (3rd Cir. 1997);

Deary v. Three Un-Named Police Officers, 746 F.2d 185, 192

(3rd Cir. 1984). The question is for the jury if there is

sufficient evidence whereby a jury could reasonably find

that the police officers did not have probable cause to

arrest. Sharrar, 128 F.3d at 818; Deary, 746 F.2d at 192;

Luthe v. The City of Cape May, 49 F. Supp. 2d 380, (D. N.J.

1999). The objective reasonableness of the officer’s

actions is an issue for the jury when facts material to the

issue are in dispute. Luthe, 49 F. Supp. 2d at 389; Sharrar,

128 F.3d at 828; Wilson v. Layne, 119 S.Ct. 1692, 1696

(1999).

In determining qualified immunity, the jury properly

decides all the fact questions, including whether probable

cause for an arrest exists and whether the officer acted

objectively reasonably. Hindman v. City of Paris, Texas, 746

F.2d 1063, 1068 (5th Cir. 1984). It is error for a court to

instruct that probable cause for a warrant is absent, and

that it does not find the officers credible, and such error

is “only a manifestation of the more basic difficulty of not

submitting to the jury the factual disputes regarding the

warrant.” Hindman, 746 F.2d at 1067-68.

If the facts are sufficiently disputed to avoid a

directed verdict on the issue of an officer’s alleged decep-

tion, the jury properly resolves issues prior to the court

ruling on the affidavit’s validity. Id., at 1067-1068.

“[W]here facts relied upon to show probable cause in

a § 1983 action [for false arrest] are controverted, they

must be resolved by the jury before controlling legal

principles are applied.” Garris v. Rowland, 678 F.2d 1264,

23

1270 (5th Cir.), cert. denied, 459 U.S. 864 (1982); see also

Trejo v. Perez, 693 F.2d 482 (Sth Cir. 1982).

The “question whether the judicial officer issuing the

warrant would have done so even without the knowingly

or recklessly false statement is one for the jury.” Hill v.

McIntyre, 884 F.2d 271, 275-76 (6th Cir. 1989).

Whether the judicial officer issuing a warrant would

have done so even without the knowingly or recklessly

false statements included in the warrant affidavit is a

question for the jury. Yancey v. Carroll County, 876 F.2d

1238 (6th Cir 1989).

The nature of a defendant’s conduct, the defendant’s

state of mind and intent are issues of fact for a jury. Burke

v. Beene, 948 F.2d 489, 494 (8th Cir. 1991).

Whether an officer deliberately or recklessly included

false statements in the affidavit is a factual determination

for the jury at trial. Hervey v. Estes, 65 F.3d 784, 791 (9th

Cir. 1995).

Whether, despite the authorization of a magistrate, a

reasonably well-trained officer could have believed that

probable cause for arrest existed is a factual issue for the

jury. Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.

1991); Haywood v. Nye, 999 F. Supp. 1451 (D. Utah 1998).

The claims contained in the plaintiff’s complaint and

the credibility of the parties, when in dispute, are ques-

tions of fact for the jury. Haywood, 999 F. Supp. at 1451

n.1.

24

Whether an officer knew at the time a warrant was

executed that the warrant was unreliable and that state-

ments contained in the affidavit were uncorroborated

“raise[s] a triable issue” of fact for the jury. Haywood, 999

F. Supp. at 1461.

Whether, despite the authorization of a magistrate, a

reasonably well-trained officer could have believed that

probable cause for arrest existed is a factual issue for the

jury. Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.

1991); Haywood, 999 F. Supp. at 1461.

The extent of an officer’s knowledge about the prob-

lems with the investigation is a question of fact for the

jury. Id. Factual disputes of this nature preclude the court

from ruling as a matter of law that the officer’s reliance

on the arrest warrant was objectively reasonable, requir-

ing denial of summary judgment based upon qualified

immunity, and submission to the jury for factual deter-

mination. Id.

Whether an officer presented evidence of probable

cause to the magistrate is a question of fact for the jury.

Kelly v. Curtis, 21 F.3d 1544, 1555 n.8 (11th Cir. 1994).

D. The law was well settled at the time the petitioners

sought the arrest warrant for the respondent.

The petitioners allege that the Connecticut court was

incorrect in its statement of the materiality of the infor-

mation omitted from the warrant affidavit by the peti-

tioners. Pet. 17-20. Specifically, the petitioners take issue

with the court’s holding that various matters not

included in the affidavit “ ‘were material because they

25

were facts which ‘would likely be given weight by a

person considering the question’ of probable cause.’ wae

The petitioners assert that this well-settled rule of law

“simply does not exist, and . . . certainly was not ‘clearly

established’ ” at the time that the petitioners submitted

their affidavit in support of the arrest of the respondent,

on February 13, 1991. Pet. 18-19.

A review of the disputed phrase, in its original con-

text, is enlightening:

Whether an item of information is material

or not is, in the context of a motion for summary

judgment, a mixed question of law and fact. See,

e.g., TSC Industries, Inc. v. Northway, Inc., 426

U.S. 438, 450, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757

(1976). The legal component depends on

whether the information is relevant to a given

question in light of the controlling substantive

law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202

(1986). The factual component requires an infer-

ence as to whether the information would likely

be given weight by a person considering that

question. TSC Industries, Inc. v. Northway, Inc.,

426 U.S. at 450, 96 S.Ct. at 2132.

Golino, 950 F.2d at 871 (emphasis supplied).

As is plainly evident, the argument advanced by the

petitioners that the standard endorsed by the court was

14 The Connecticut court was here quoting the decision of

the trial court, which, in turn was quoting Golino v. City of New

Haven, 950 F.2d 864, 871 (2nd Cir. 1991), cert. denied sub nom.

Lillis, et al. v. Golino, 505 U.S. 1221 (1992). Pet. 6A.

|

26

not “anywhere in effect at the time the warrant applica-

tion for Mr. Ham was submitted” is groundless. Pet. 18.

Similarly, the law, for the purposes of the qualified

immunity question, was clearly established. As the Con-

necticut Supreme Court observed, “the right of an indi-

vidual not to be subjected to arrest without probable

cause has long been clearly established,” Ham, 248 Conn.

at 523,)5 and, dispositively, “was not disputed by the

parties.” Id. (emphasis supplied). The existence of the

right was not disputed at trial or on appeal; likewise, the

right to be free from arrest absent probable cause is not

seriously disputed here. ;

1S See, e.g., Franks v. Delaware, 438 U.S. 154, (1978); United

States v. Leon, 468 U.S. 897 (1984); Malley v. Briggs, 475 U.S. 335

(1986).

That the right was clearly established is all the more evident

as refined and articulated by one court:

A more particularized formulation of the right at

issue is the right to be free from an arrest based on a

warrant that would not have been issued if the officer

seeking the warrant had disclosed to the issuing

magistrate information within the officer’s

knowledge that negated probable cause. See Cartier v.

Lussier, 955 F.2d 841, 845-46 (2nd Cir. 1992); Golino v.

New Haven, 950 F.2d 864 (2nd Cir. 1991), cert. denied,

505 U.S. 1221, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992);

Magnotti v. Kuntz, 918 F.2d 364, 368 (2nd Cir. 1990).

Brown v. D'Amico, 35 F.3d 97, 99 (2nd Cir. 1994).

27

E. Distinguishing “exculpatory” evidence from

“impeachment” evidence is inapposite to the issues

presented by the petition, and as the claimed issue

was not decided by the Connecticut Supreme Court,

review is not warranted here.

The petitioners urge a distinction upon this Court

between so-called “exculpatory” and “impeachment” evi-

dence. Pet. 14. This issue, raised before the trial court on

post verdict motion by the petitioners, was rejected by

that court. Pet. 7A. The issue was not raised before the

Connecticut Supreme Court, and as such, should not now

be reviewed by this Court.!© See generally, Ham, 248 Conn.

508.

The resuscitation of this argument by the petitioners

is significant in a number of respects. All of the state and

federal cases cited by the petitioners in support of this

argument are imported from the criminal context. Pet.

14-17, 14 n.7, n.8, 15 n.9, 16 n.10.!7 As the petitioners

16 See footnote 11, supra.

17 The inapplicability of the cited cases is even more

marked in the context of the Connecticut state cases which deal

with the prosecutorial obligation in the grand jury context. See,

e.g., State v. Couture, 194 Conn. 530 (1984). In Connecticut, the

role of the state grand jury is statutorily limited to investigation,

rather than indictment. C.G.S. §§ 54-45 et seq.

As the Second Circuit has observed:

Under Connecticut law, the finding of probable

cause by an investigatory grand jury does not seem to

establish conclusively that probable cause exists for

the arrest: “Investigating grand juries neither try nor

condemn nor accuse; they only inquire and report.”

In re Investigation of the Grand Juror into the Bethel

28

themselves admit, each of the cases cited articulate only

the burden of disclosure to a criminal defendant placed

upon the prosecuting authority in the limited contexts of

those proceedings. Id. The petitioners nevertheless

attempt to import, without precedent, the standard for

disclosure of information to a criminal defendant by the

prosecuting authority at the grand jury and criminal trial

phases into the context of the constitutional obligation of

an officer submitting a probable cause affidavit. The

absence of caselaw in support of this assertion within the

Franks civil context is strong indication that the argument

of the petitioners has no support within that context.

Contrary to the assertions of the petitioners, the court

has clearly defined material information in the Franks

context as “information [which] would likely be given

weight by a person considering that question.” TSC

Industries, 426 U.S. at 450. “The weight that a neutral

magistrate would likely have given the . . . information

[omitted from the warrant affidavit], along with the other

information that was concealed or misrepresented, is not

a legal question but rather is a question to be resolved by

the finder of fact.” Golino, supra, at 872; TSC Industries,

426 U.S. 438. Similarly, whether a magistrate would have

found probable cause if [s]he had been presented with

truthful information . . . is a question of fact rather than

of law. Velardi v. Walsh, 40 F.3d 569, 574 n.1 (1994). The

holding applied by the Connecticut court in the instant

case based upon clearly established law in effect at the

Police Department, 188 Conn. 601, 605 (1982)

(emphasis in original).

Brown v. D'Amico, 35 F.3d 97, 99 (1994).

one enn eal

29

time the petitioners submitted their affidavit places no

“greater burden of disclosure upon law enforcement” as

the petitioners claim. Pet. 19. The petitioners had, and

law enforcement officers continue to have a constitutional

duty to disclose that “readily available exculpatory evi-

dence of which [the officer] had been made aware.” Smith

v. Reddy, supra, at 357; Torchinsky v. Siwinski, 942 F.2d 257,

264 (4th Cir. 1991).

As such, this claim by the petitioners does not merit

review by this Court.

CONCLUSION

For the reasons articulated above, this Honorable

Court should deny the petition in the instant case.

Respectfully submitted,

THE RESPONDENT, ERIC HAM

WituiaM S. PAcMiert, Esa.

JoHN R. Wiitiams, Esa.

Counsel of Record

WILLIAMS AND Pattis, LLC

51 Elm St., Suite 409

New Haven, CT 06510

(203) 562-9931

FAX: (203) 776-9494

Attorney for Respondent