Petition for Writ of Certiorari — City of Bridgeport, Connecticut v. Russo (No. 06-1575)
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IN THE
Supreme Court of the Anited States
CITY OF BRIDGEPORT, JEREMY DEPIETRO, Officer
and CHRISTOPHER BORONA, Detective,
Petitioners,
¥,
CHRISTOPHER RUSSO,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
WILLIAM J. WENZEL *
PULLMAN & COMLEY LLC
850 Main Street
Bridgeport, CT 06604
(203) 330-2207
* Counsel of Record Attorneys for Petitioners
WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002
QUESTIONS PRESENTED
1. Whether the Fourth Amendment to the United States
Constitution requires law enforcement officers to exhaus-
tively investigate items of evidence identified by a suspect
after an arrest based on probable cause?
2. Whether, notwithstanding an initial arrest based on a
valid warrant for the correct individual and the presentment
of that defendant to a court immediately after the arrest, a
law enforcement officer bears a continuing duty to properly
investigate and ascertain what evidence will prove to be
exculpatory?
(i)
il
PARTIES TO THE PROCEEDING’
The parties to the proceedings in the Second Circuit Court
of Appeals whose judgment is sought to be reviewed were:
Christopher Russo, Plaintiff; the City of Bridgeport, Connec-
ticut; Jeremy DePietro; John Rosa; Christopher Borona and
John Sherbo, Defendants.
' No corporate disclosure statement is required by Sup. Ct. R. 29.6, as
there is no non-governmental corporation as a party.
TABLE OF CONTENTS
Page
QUESTIONS. PRESENTED .......csscsersssnsseosssncssenessencess i
PARTIES TO THE PROCEEDING ..............ce:e:esese0e il
TARAS OR PGS RIDES csnsesevernsviserscorcescsssnsnssasnsesns Vv
Ce I NURI ichieiicnnacensnetesanseinscoinipedarnanbnessiibasanens l
Pe RIE viinicdlasinsittaainnannnsiaiistiapinvinionsinenn saline yr
RELEVANT PPROVISIONS INVOLVED................... 2
SEAR EER GIR BERS CAS csescsssccscsesnnosnenesesncocconsee 3
1. The Investigation and Arrest Giving Rise to
i cccasnisnenaetacedibaithcaticonuinasn 5
2. The District Court Proceedings ................:.c00+ 8
3. The Decision of the Second Circuit................... 9
REASONS FOR GRANTING OF THE PETITION .... 9
SPLIT OF AUTHORITY IN THE CIRCUITS.............. 10
PRs PRUNE vicriseovvictisiinsisiclaahdallanseniaigatbaananaiabice 17
Rae GPE PIIUNED Sica sitiuuischiinhiniitas Sutin a dann eaegiaaaideetnidabinnhionk 18
Appendix A—Decision of the United States Court of
Appeals for the Second Circuit..............eeeeeeeeseereeeees la
Appendix B—Transcript of Argument and Decision
on Motions for Summary Judgment before The
Honorable Alvin W. Thompson (U.S.D.J. for the D.
CS csiscnnnginsvicasih nieces einainciaed baianaibicald emus eke ele 28a
Appendix C—Rule 56(a) Statement of the Individual
Defendants in Support of Motion for Summary
POI i insiesicicsnnnd ccieninithinicheenminaidisiaasiclecbenaiaalauaaumiale 73a
iV
TABLE OF CONTENTS—Continued
Appendix D—Rule 56(a) Statement of Defendant City
of Bridgeport in Support of Motion for Summary
Pac cteetitinieretiiemunsiviinnsicteibatishantiadetoninuataccitains
Appendix E—Plaintiffs Local Rule 56(a)(2) State-
ment in Response to the Individual Defendants’
Motion for Summary Judgment...................c:csceeeeeee
Appendix F—Plaintiff's Local Rule 56(a)(2) State-
ment in Response to Defendant City of Bridge-
port’s Motion for Summary Judgment ....................+.
Appendix G—Individual Defendants’ Exhibits in Sup-
port of Motion for Summary Judgment...................
Appendix H—Partial Deposition Transcript of Plain-
tiff Christopher Russo Submitted As Exhibit J in
Support of Defendant City of Bridgeport’s Motion
Oe IS Fe i siecisissivcricssriiiccmcnivcnnss
Appendix I—Plaintiff's Exhibits Submitted in Oppo-
sition to Defendants’ Motions for Summary Judg-
Appendix J—Partial Deposition Transcripts of Plain-
tiff Christopher Russo and Individual Defendant
Jeremy DePietro Submitted As Exhibits V, W and
X to Individual Defendants’ Reply in Support of
Motion for Summary Judgment............. ec eeeeeeeeeeeeeee
Page
78a
83a
93a
98a
130a
132a
Vv
TABLE OF AUTHORITIES
FEDERAL CASES Page
Ahlers v. Schebil, 188 F.3d 365 (6th Cir. 1999)... 14
Baker v. McCollan, 443 U.S. 137 (1979).... 3, 4, 9-13, 16
Brady v. Dill, 187 F.3d 104 (1st Cir. 1999)........... 13-14
Cannon v. Macon County, | F.3d 1558 (11th Cir.
OE Picts cuctscosuchic ihdescctcshaansatcntasecabiaccadibiatoke 11
Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995)..... 14
Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002) ... 12
Russo v. City of Bridgeport, 479 F.3d 196 (2nd
Sa EE Bik cnsickbinsibindaisnahcaeniseesdtiessacuiapiekaosonicaicdeiied ase
Sanders v. English, 950 F.2d 1152 (Sth Cir.
SO cierischclarbargushsinktsgnsasaadetevebinhationbiwibncteanboabice 12
FEDERAL STATUTES
I A UIE shang sestirashinns pnnsnatiinanehicpntainnasiins 2-3, 8, 10
Be SEINE Po tassicerscinaiuvicinseiersisiaiasneanainnts 2
CONSTITUTION
Fourth Amendment to the U.S. Constitution......... passim
Section 1 of the Fourteenth Amendment to the
Ee ERIE A TT ie 2-3, 8-9, 12
MISCELLANEOUS
Supreme Court Rule 29.6 ........... iecsidcgesnhcgebuaiaiois ii
Connecticut Practice Book § 36-5 .............. eee
IN THE
Supreme Court of the United States
No.
CITY OF BRIDGEPORT, JEREMY DEPIETRO, Officer
and CHRISTOPHER BORONA, Detective,
Petitioners,
Vv.
CHRISTOPHER RUSSO,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioners, the City of Bridgeport, Jeremy DePietro and
Christopher Borona, respectfully petition this Court for a writ
of certiorari to review the judgment of the United States
Court of Appeals of the Second Circuit.
OPINION BELOW
The opinion of the Court of Appeals is reported as Russo v.
City of Bridgeport, 479 F.3d 196 (2nd Cir. 2007). It is
reproduced in the Appendix at la-27a. The opinion of the
District Court (Thompson, J.) is unreported and was given
from the bench at the conclusion of oral argument on
Petitioners’ Motion for Summary Judgment. A transcript of
that hearing, including the decision of the District Court is
reproduced in the Appendix at 28a-72a.
2
JURISDICTION
On February 27, 2007, the Second Circuit Court of
Appeals entered its decision for which review is sought.
The jurisdiction of this Court is involved under 28 U.S.C.
§ 1254(1).
RELEVANT PROVISIONS INVOLVED
Respondent, Christopher Russo, seeks damages for the
alleged violation of his constitutional rights, pursuant to 42
U.S.C. § 1983.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of
this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a
statute of the District of Columbia.
Respondent had claimed a violation of the due process
clause of the Fourteenth Amendment to the United States
Constitution, which provides that:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
3
deny to any person within its jurisdiction the equal
protection of the laws.
U.S. Const. Amend. XIV, § 1.
The decision of the Circuit Court of Appeals rejected that
basis but found a right to exist under the Fourth Amendment
to the United States Constitution. The Fourth Amendment
provides that
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to
be seized.
U.S. Const. Amend. IV.
STATEMENT OF THE CASE
Since this Court’s decision in Baker v. McCollan, 443 U.S.
137 (1979), a number of circuit courts have had occasion to
address factual patterns that went beyond the facts in that
case, and where the periods of detention were sufficiently
prolonged that violations of the Constitution, under the due
process clause of the Fourteenth Amendment, were found
sufficiently pled or proven. Typically, these prolonged deten-
tion cases under 42 U.S.C. § 1983 have involved mistaken
identity cases where the claim of the detained person was
simple: either they were not the person named in the war-
rant or, like Baker, the warrant had been issued based on
a mistake as to the identity of the person named therein.
Baker held that, in such situations, the initial arrest and some
period of continued detention were not violations of the U.S.
Csastitution, but suggested a continuing failure to address
the entity issue would be found to violate constitutional
requirements.
4
This case presents a case of first impression before this
Court, because it attempts to create an entirely new consti-
tutional duty by extrapolating from Baker’s suggestion of
constitutional limits. Here, there was no mistake in the
identity of the person named in the warrant or the person
arrested, the existence of probable cause for the arrest was
unchallenged, the suspect had been presented to court and
the continuing detention of the suspect was determined by
ongoing court proceedings. This case concerns whether or
not law enforcement officers have constitutional obligations
to conduct post-arrest investigations in a manner that will
uncover all exculpatory evidence. Based on the reasoning of
the Second Circuit, law enforcement officers will shoulder
personal responsibility and a continuing duty to exhaustively
investigate defenses brought to their attention by the suspect,
and to monitor the detention status of the suspect at all times
subsequent to their arrest and presentment to judicial offi-
cials. The decision imposes liability on officers solely on
the basis of how they handled a single item of evidence, a
videotape of an armed robbery, the exculpatory value of
which only became apparent after laboratory enhancement,
which these officers had not obtained. As such, it extends the
constitutional obligations of officers beyond simply assuring
that every seizure of a person is based on probable cause, and
it would require them to assess anew, each day, every lead
or clue that a suspect could later show would have been
exculpatory had it been pursued more exhaustively.
This decision presents a conflict in the decisions of the
circuit courts that have addressed the existence of a con-
tinuing duty of an officer to investigate exculpatory defenses
and whether an officer can become liable for subsequent
incarceration over which the officer has no control. The
decision also purports to find this constitutional duty already
heralded by this Court’s decision in Baker under circum-
stances where other circuits cite Baker for the opposite
conclusion.
5
A determination of the duties law enforcement officers
bear whenever a custodial arrest is made is essential to the
daily conduct of thousands of officers. Our legal system has
strongly encouraged officers to rely on judicial determina-
tions as to probable cause, pretrial detention and the right of
each accused to a speedy trial, but would now hold the
officers responsible for how well the judicial system
performs. These officers deserve a single, clear statement as
to what the Constitution requires of them and whether they
may continue to rely on the protection of judicial determi-
nations. Any such imposition of additional duties on law
enforcement officials will materially obstruct the day-to-day
operations of state and municipal police departments through-
out the nation and impede the effective ability of those
officers to protect the public.
1. The Investigation and Arrest Giving Rise to this Case.
On August 1, 2002, a gas service and convenience store
located in Bridgeport, Connecticut, was robbed by an armed,
unmasked male, who fled the scene of the crime. The
cashier, who was the victim of the robbery, gave a physical
description of the perpetrator to police, said he would be able
to identify the robber, and that there was a videotape avail-
able. (Appendix at 100a-101a.) The videotape was obtained
by the Bridgeport Police Department (the “BPD”) on the
same day of the robbery. Due to the poor quality of the video
and the condition of the tape, the investigating officers went
to a local security department and obtained still photographs
of the robber from the videotape. (Appendix at 124a.) Based
on the facial characteristics of these photos, a police depart-
ment computer selected possible matching photos from the
BPD photo identification database. (Appendix at 124a.) The
photo of plaintiff, Christopher Russo, was included in the
eight photos selected by the computer.
6
When the photos were shown to the cashier, he identified
the photo of Mr. Russo, stating: “He is the guy who robbed
me with the gun at the Amoco Station last night. I am posi-
tive. I am one hundred percent sure.” (Appendix at 101a.)
Based upon this identification, the BPD sought a warrant for
Mr. Russo’s arrest. Detective DePietro completed the Appli-
cation for Arrest Warrant, reciting in the written application
the above facts and also stating that the robbery was caught
on videotape, which tape was retrieved by him on the day of
the robbery. (Appendix at 106a-107a.) On September 9,
2002, a judge of the Connecticut Superior Court reviewed the
Application, found probable cause existed for the arrest of
Christopher Russo and issued a warrant. (Appendix at 106a-
107a.) Under Connecticut practice, the officer executing the
warrant “shall take the accused into custody, serve a copy of
the warrant upon him or her” and either release the accused
on bail or bring the arrestee before the court. (Connecticut
Practice Book § 36-5.)
On September 18, 2002, Mr. Russo was arrested by
officers from the State/FBI Task Force at his residence
without incident. (Appendix at 108a-109a.) When he arrived
at the BPD, he was interrogated by Officers DePietro and
Borona. The officers confronted Mr. Russo with photographs
taken from the videotape showing the face of the robber and
telling him that, given the photographic proof, he should
confess. Mr. Russo denied his guilt. Among the several
reasons offered for his innocence, Mr. Russo asked if the
robber had extensive tattooing on his arms, which Mr. Russo
did, and he also questioned whether he matched the physical
description. During the interrogation, Mr. Russo claims the
officers left the interrogation room, claimed to review the
videotape and returned claiming Mr. Russo should confess,
because the perpetrator had tattoos. Mr. Russo, however, did
not confess. At no time prior to September 18, 2002, nor
subsequent to that day, has Christopher Russo had any
7
contact with any of the individual officers sued. (Appendix at
Sa, 124a, 126a and 127.)
On September 19, 2002, Mr. Russo was arraigned before
the Superior Court and bound over for trial. Due to his prior
criminal record, and the pendency of other charges, his bail
was set at $100,000, and he was detained due to his inability
to post bail. (Appendix at 117a-118a.)
Even before Mr. Russo’s first court appearance on
September 19, 2002, the day after his arrest, Mr. Russo had
advised his appointed public defender of the existence of the
videotape and his belief it would exonerate him. (Appendix
at 6a.) Within weeks, his now retained private counsel was
also told about the videotape. (/d.)
On November 19, 2002, an investigator with the State’s
Attorney’s office went to the BPD’s property room to obtain
the videotape. The investigator found the tape had not been
logged into the evidence room but was locked in a desk
drawer of the lead investigating officer, Officer DePietro.
Sometime after November 25, 2002, the investigator obtained
the tape from Officer DePietro and reviewed it. Because the
investigator determined he could not see the perpetrator
clearly, on January 3, 2003, he requested laboratory enhance-
ment of the videotape which was received about January 23,
2003. (Appendix at 112a). After January 23, 2003, the en-
hanced videotape was made available to Mr. Russo’s counsel
who viewed it and reported to the State’s Attorney’s office
that his client could not be the perpetrator shown in the tape.
Ultimately, the State’s Attorney viewed the enhanced video-
tape personally and determined that the individual shown in
the videotape did not have tattoos such as Mr. Russo did. The
following day on April 23, 2003, on the motion of the pros-
ecution, the court dismissed the charges.
8
2. The District Court Proceedings
Following his release, Mr. Russo brought an action under
42 U.S.C. § 1983 against the City of Bridgeport and four
individual officers of the BPD, which action was removed to
the District of Connecticut. Among the claims asserted were
ones for false arrest, false imprisonment and violation of his
civil rights under the Fourth and Fourteenth Amendments.
After discovery, all the defendants filed a motion for
summary judgment that was heard by the Federal District
Court on July 12, 2005. At the hearing, the Honorable Alvin
W. Thompson painstakingly walked through the undisputed
events leading up to the arrest of Christopher Russo and came
to the conclusion that the arrest was fully supported by
probable cause, duly determined by a court of law, and based
on an unqualified identification by the victim, who had been
face-to-face with the robber. Plaintiff's counsel concealed
the existence of probable cause for the arrest (Appendix at
47a-48a.) but argued the real crux of the case was when, after
the arrest and during Christopher Russo’s interrogation of
September 18, 2002, the BPD officers first saw his tattoos
and were challenged by the suspect to determine if the man in
the videotape had tattoos. (/d.) At that time, however, with
Christopher Russo in custody, Judge Thompson asked plain-
tiff “who’s the decision maker in terms of what happens to
him.” Mr. Russo’s counsel said: “The court.” (Appendix
at 48a.)
The District Court judge found that Mr. Russo’s federal
constitutional rights had not been violated and dismissed the
associated state law claims, declining to exercise supple-
mental jurisdiction. (Appendix at 72a.) The stated basis of
the District Court’s decision was that probable cause for the
arrest had been established, precluding the false arrest and
false imprisonment claims under § 1983. The District Court
also concluded that there was no genuine dispute that the
unenhanced videotape was insufficiently clear to exonerate
9
Mr. Russo (Appendix at 66a-69a.) and rejected the argument
that police officers violate a suspect’s constitutional right
when they fail to go out and investigate a suspect’s explana-
tion as to why they are not guilty, as claimed by the suspect.
For that reason, the District Court granted the motion for
summary judgment by all defendants.
3. The Decision of the Second Circuit
Russo appealed the District Court’s order granting sum-
mary judgment in favor of all defendants. The Second
Circuit affirmed the summary judgment with regard to two of
the four officers named as individual defendants. The Second
Circuit vacated, in part, the summary judgment as to Peti-
tioners. The Second Circuit affirmed summary judgment
with regard to the claims for false arrest and false impris-
onment on the basis that such claims cannot lie when the
challenged arrest was supported by probable cause. The Sec-
ond Circuit reversed the entry of summary judgment,
however, with regard to the claim of prolonged detention due
to the Petitioning officers’ alleged mishandling of “exculp-
atory” evidence (the videotape) and failure to turn such
evidence over to the prosecuting attorney. Specifically, the
Second Circuit’s decision held that “the right mentioned in
Baker . . . protected Russo from a sustained detention
stemming directly from the law enforcement officials refusal
to investigate available exculpatory evidence.” (Appendix at
18a.) The Second Circuit did not find that right on the basis
of the Fourteenth Amendment’s due process clause, as
claimed by Russo on appeal, but rather as a right guaranteed
under the Fourth Amendment’s prohibition on unreasonable
seizures of the person.
a
REASONS FOR GRANTING OF THE PETITION
A writ of certiorari is warranted in this case for several
reasons. First, the decision creates a split of authority among
10
the circuits that have considered the underlying constitutional
question of whether a law enforcement officer has a duty to
continue investigating claims of innocence or a suspect’s
offered defenses after making an arrest based on probable
cause. Several circuits have flatly rejected the duty that the
Second Circuit imposes. The Second Circuit’s decision also
creates a continuing constitutional obligation on the part of
law enforcement officers for the suspect’s detention, which
lies entirely beyond the officer’s control. When officers
execute a valid arrest warrant issued by a court of law, arrest
the correct person and promptly present that individual for
arraignment before the court, the court determines whether
the defendant should be detained or released and on what
terms and conditions. Under the Second Circuit’s decision,
an officer’s ability to rely on the independent determination
of probable cause reflected by a court issued warrant may
decay over time. Not only can an arrest initially reason-
able dissolve over time into an unconstitutional seizure, but
that point in time will first be announced years later in a
court proceeding.
Finally, the determination of the Second Circuit carries
significant public policy implications, as it will impose an
impossible burden on law enforcement officers and ultimately
prove counterproductive. Rather than encourage officers to
further investigate crimes, seek out confessions or develop
leads leading to the implication or discharge of other sus-
pects, officers will shun any information or further in-
volvement that might some day trigger a claim that this clue
was the true defense that would have resulted in the suspect’s
earlier release.
SPLIT OF AUTHORITY IN THE CIRCUITS
In Baker, this Court found a § 1983 claim against a sheriff
alleging the intentional failure to investigate and determine
that the wrong man was imprisoned, failed to state a
11
constitutional claim. Baker, 443 U.S. at 143-44. This Court,
in dicta, however, went on to state that a misidentified suspect
“could not be detained indefinitely in the face of repeated
protests of innocence even though the warrant under which he
was arrested and detained met the standards of the Fourth
Amendment.” Jd. at 144. Since Baker, the district and cir-
cuit courts have come to discern a constitutional prohibition
on prolonged detention, pointing to this language as support.
The decisions have come to increasingly diverge, however,
and are now substantially in conflict and disagreement creat-
ing substantial uncertainty in the law enforcement commun-
ity as to the responsibilities officers have under the Fourth
Amendment to the United States Constitution.
The Second Circuit in this case clearly looked to Baker for
the recognition of a constitutional right to be free from
prolonged detention. The Second Circuit also relied upon
several earlier decisions from circuit courts, including its own
prior decision, to reach its holding.
In the first of these, Cannon v. Macon County, | F.3d 1558
(11th Cir. 1993), an officer had arrested an individual whose
name matched that of a person with the same name listed on
the NCIC system. Despite her protests that she was not the
same person, and obvious differences in her appearance, age
and identifying data, the suspect was arrested, booked, held
for several days, and even extradited to another state before
her claims of mistaken identity were recognized. While the
Eleventh Circuit recognized the holding of Baker, it did not
find it precluded the claim made before it, and indeed read
Baker as recognizing “that after the lapse of a certain amount
of time, continued detention in the face of repeated protests
will deprive the accused of liberty without due process.”
Cannon, | F.3d at 1562. Ultimately, Cannon recognized a
“constitutional right to be free from continued detention after
it was or should have been known that the detainee was
entitled to release.” /d. at 1563.
12
Another circuit decision relied on by the Second Circuit
was Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002). Fairley
involved a suspect arrested on outstanding warrants for his
identical twin brother. Though a number of citizens estab-
lished this fact, as did a court restraining order, and the
officers making the arrest reported it to the booking sergeant,
it was never pursued, and the suspect was held for 12 days
before being released. Even though the initial arrest was
based on a valid warrant, the Ninth Circuit found the con-
tinued detention to comprise a constitutional injury and found
that constitutional right recognized by Baker.
Likewise, the Second Circuit relied upon the decision of
the Fifth Circuit Court of Appeals in Sanders v. English, 950
F.2d 1152 (Sth Cir. 1992). Sanders involved the arrest of a
suspect based on a warrant with the strength of the pros-
ecution’s case unraveling almost immediately after the arrest.
Multiple and seemingly unimpeachable witnesses to the
crime vouched for the suspect’s presence out of town at the
time of the robbery, and a number of witnesses either could
not identify the suspect or flatly stated he was not the robber.
The police officers in charge of the investigation actually
received this exculpatory information but then told the
witnesses they did not want to hear it. The district court,
relying on Baker, found that once Sanders was lawfully
arrested, the police officer had no obligation to conduct an
investigation to clear the suspect of the charges. Sanders, 950
F.2d at 1160. The Fifth Circuit reversed and held that this
Court’s decision in Baker did not bar Sanders’ claim because
the claim was not a failure to investigate claims of innocence,
but rather a failure to aid in the suspect’s release after the
officer knew the suspect had been misidentified.
Based on these cases “recognizing” Baker as establishing a
Fourteenth Amendment due process right to be free from
continued detention after an officer knows or should have
known the suspect was entitled to release, the Second Circuit
13
held “that the right mentioned in Baker and enunciated in the
above cited cases protected Russo from a sustained detention
stemming directly from the law enforcement officials’ refusal
to investigate available exculpatory evidence.” (Appendix at
18a.) The Second Circuit decision, however, clearly con-
tradicts the decisions from other circuits.
One of the clearest and most reasoned of these conflicting
decisions is that of the First Circuit Court of Appeals in
Brady v. Dill, 187 F.3d 104 (ist Cir. 1999). In Dill, the
plaintiff was arrested on an outstanding warrant issued for
him when a different individual who had impersonated Dill
failed to appear for a court appearance. Officers, responding
to an unrelated complaint, arrested Dill on the outstanding
warrant but soon came to believe he was the victim of
mistaken identity and did everything in their power to secure
his release, ultimately at the time of his initial arraignment
before a court of law. Though the First Circuit found the
period of detention was within the limits established by Baker
as reasonable for officers to sort out such claims of mistaken
identity, it went on to discuss the principles established by
Baker and the principles applicable in reviewing Fourth
Amendment seizure and post-arrest claims. The Dil/ court
noted this Court’s statements in Baker that police officers
do not have an affirmative duty to investigate every claim
of innocence.’ Dill also expresses grave reservations with
whether police officers are being asked, in effect, to “acting
unilaterally, . . . undo a judicial determination of probable
cause.” Jd. at 111 n.6. The First Circuit held that when a
warrant has been issued upon probable cause, police officers
are not required to exercise discretion or weigh proof. Their
obligations are to execute the warrant and return the suspect
' Dill also conflicts with the decision of the Second Circuit in that the
First Circuit held once the validity of the arrest is determined, the Fourth
Amendment issues are resolved. Dill, 187 F.2d at 108. The Second
Circuit’s decision based its decision on the Fourth Amendment.
14
to a court of law. Any requirement that police officers
“determine” the guilt or innocence of a suspect would “blur
the usual separation of functions” between law enforcement
and the judicial system. Jd. at 112. While Dill noted an
officer may have duties to disclose to prosecutor “known
exculpatory evidence,” /d. at 114, it noted “it is ordinarily
sufficient for the police officer to bring the relevant infor-
mation to the attention of the prosecutor or the proper judicial
official.” Id.
Other circuit courts have recognized that an officer has “no
constitutional obligation to conduct any further investigation
in the hopes of uncovering potentially exculpatory evidence”
once probable cause has been determined to exist. Eversole
v. Steele, 59 F.3d 710, 718 (7th Cir. 1995). This appears to
be the same standard applied in the Sixth Circuit, which has
held that while officers, pre-probable cause, cannot disregard
potentially exculpatory evidence, once probable cause is
established, the officer has no duty to investigate further or
pursue evidence that might exculpate. Ahlers v. Schebil, 188
F.3d 365, 371 (6th Cir. 1999).
There is also no basis in this case to claim that this case
involves known exculpatory evidence. The District Court
determined that, based upon the evidence presented in sup-
port and in opposition to the motion for summary judgment,
there was no genuine dispute that until the videotape was
enhanced, it was not exculpatory. (Appendix at 9a, 66a-67a.)
The evidence before the District Court was undisputed in this
regard and there is no contention in the Second Circuit’s
decision that this was not the case. Indeed, in construing the
evidence “in the light most favorable to Mr. Russo,” (Ap-
pendix at 4a.) the Second Circuit determined that the state
investigator who watched the pre-enhancement tape “deter-
mined that he could not see the perpetrator clearly,” and this
is what led to a request for laboratory enhancement of the
footage. (Appendix at 6a.)
15
Thus, the sole basis for the Second Circuit’s decision
below was the failure of the detectives to investigate.
(Appendix at 18a.) Until the tape was enhanced, the officers
had no basis to know the tape could prove exculpatory, other
than the denial of the suspect who had been identified,
positively, by the victim of the crime.
The undisputed evidence in this case also showed the
officers did nothing to hide or conceal the existence of the
videotape from Mr. Russo or anyone else. Mr. Russo alleges
in his complaint and in his sworn testimony submitted with
regard to the motion for summary judgment that the officers
disclosed to him the existence of the videotape and that a
person matching his description was shown therein. (Appen-
dix at 172a-173a.) Not only was Mr. Russo immediately told
of the existence of the videotape, and that it was in the BPD’s
possession, the officers disclosed that to the Superior Court,
as well. The documents submitted to the District Court with
regard to the motion for summary judgment clearly show that
the existence and location of the videotape was disclosed to
the Superior Court at the time the warrant was requested
(Appendix at 106a.) and under Connecticut law, a copy of the
arrest warrant is provided to the defendant at the time of the
arrest. Mr. Russo’s sworn testimony presented to the District
Court with regard to the motion for summary judgment
established that Mr. Russo told his defense counsel about the
existence of the videotape and how it could help exonerate
him before he was even arraigned on the morning of
September 19, 2002. (Appendix at 189a.) The record shows
Mr. Russo’s retained counsel knew within weeks of the
existence of the videotape and its potential importance to the
defense and, indeed, made some efforts to obtain it as part of
the defense. (Appendix at 190a-191a.) What is not in dispute
is that none of the Petitioners had any contact with Mr. Russo
either before the date of his arrest and interrogation or
subsequent thereto. They neither hid, nor failed to disclose
anything to the court, to defense counsel or the State’s
16
Attorney, but are being held fully responsible for Mr. Russo’s
continued detention, though they had no ability to control
that detention.
It is beyond dispute that the initial arrest of Christopher
Russo fully satisfied the Fourth Amendment’s requirement of
probable cause. The victim of the armed robbery had ample
opportunity to see the face of the unmasked perpetrator who
stood in close proximity to him. Still photographs, depicting
as clearly as possible the face of the robber, and not por-
traying any extremities, were obtained as part of the inves-
tigation. By inputting some of the facial characteristics of the
robber shown in the still photographs, a police department
computer selected photos from the BPD’s database that
contained similar characteristics. Those photos were shown
to the victim the same day as the robbery, and the victim
provided a positive and absolute identification of Christopher
Russo as the man who committed the crime. That infor-
mation was brought to a neutral judge of the Connecticut
Superior Court, who approved a warrant for Mr. Russo’s
arrest. There can be no question but that probable cause
existed for the arrest. By any version of the facts or
allegations, the issue of whether the videotape depicted a
robber with extensive tattooing, or even permitted such a
determination, was never an issue until after the arrest, when
Mr. Russo showed his tattooing and questioned whether the
robber had similar tattoos.
Under Connecticut law, upon issuance of the warrant, the
obligation of the officers serving the warrant was to make the
arrest and either release the defendant on approved conditions
of bail or bring the arrestee before the court. There is no —
dispute that this is exactly what the officers did. Christopher
Russo was arrested on September 18, 2002, and brought
before the court the following morning, September 19, 2002.
While the Second Circuit’s decision purports to simply follow
this Court’s ruling in Baker and subsequent circuit court
17
decisions extending that constitutional right, in point of fact,
it clearly departs from these authorities and comes into
conflict with heretofore unquestioned law in this Court and
other circuits.
PUBLIC POLICY
These conflicting decisions and principles of law create
nightmares for law enforcement officers. In situations where
a good faith investigation leads to an independent, court
determination of probable cause, officers make an arrest and
promptly return the accused to court, under what circum-
stances do they become liable for the prolonged detention of
that suspect? If the officers maintain the evidence and
disclose its existence to all sides, including the accused, what
more must they do to satisfy the Fourth Amendment? When
can officers rely on the courts to satisfy Constitutional
requirements of access to exculpable evidence, speedy trials
and limited pretrial detention? What right do officers have to
direct the enforcement of these rights after the suspect is
turned over to the Court?
These are fascinating and complex legal questions, but
officers deserve clear answers to these questions.
In this case, Christopher Russo was the person identified
by the victim of the crime, a warrant was issued for
Christopher Russo’s arrest, and Christopher Russo was in fact
arrested. There was no confusion, no mistake, and no failure
of due process. The only complaint by Christopher Russo,
and the entire basis for the Second Circuit’s decision, is that
the detectives in the BPD should have conducted a better
investigation, by pursuing a defense that Russo claimed
would exonerate him. Such a burden will require every law
enforcement officer making an arrest to either cut their case
load drastically and exhaust every possible defense or just run
the risk they will be second guessed any time they fail to
exercise perfect judgment.
18
CONCLUSION
This Court should grant Certiorari to consider whether the
Fourth Amendment imposes an obligation on law enforce-
ment officers to prevent any prolonged detention that can
result from their failure to investigate potentially exculpatory
evidence.
Respectfully Submitted,
WILLIAM J. WENZEL *
PULLMAN & COMLEY LLC
850 Main Street
Bridgeport, CT 06604
(203) 330-2207
* Counsel of Record Attorneys for Petitioners
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2005
Docket No. 05-4302-cv
CHRISTOPHER RUSSO,
Plaintiff-Appellant,
v.
CITY OF BRIDGEPORT, JEREMY DEPIETRO, Officer,
JOHN Rosa, Officer, CHRISTOPHER BORONA, Detective,
and JOHN SHERBO, Sgt.,
Defendants-Appellees.
(Argued: May 17, 2006
Decided: February 27, 2007)
Before: KEARSE, CALABRESI, and POOLER,
Circuit Judges.
Appeal from a judgment of the United States District Court
for the District of Connecticut (Thompson, J.) granting the
defendants’ motion for summary judgment. Affirmed in part,
vacated and remanded in part.
BURTON M. WEINSTEIN, Weinstein,
Weiner, Ignal, Napolitano & Shapiro,
Bridgeport, CT,
for Plaintiff-Appellant.
BARBARA BRAIIEL-MASSARO, Office
of the City Attorney, Bridgeport, CT,
for Defendants-Appellees.
2a
CALABRESI, Circuit Judge:
In a case of mistaken identity, Plaintiff-Appellant Chris-
topher Russo (“Russo”) was arrested and imprisoned for the
armed robbery of an Amoco service station and convenience
store in Bridgeport, Connecticut. Two hundred and seventeen
days after his arrest—and one day after the prosecutor
viewed, for the first time, Amoco’s videotape of the crime—
the state requested a nolle prosequi, and the charges against
Russo were dismissed.
Russo brought this action pursuant to 42 U.S.C. § 1983
(“§ 1983”), against the City of Bridgeport (“the City”) and
four city police department employees—Officer Jeremy
DePietro (“DePietro”), Officer John Rosa (“Rosa”), Detective
Christopher Borona (“Borona”), and Sergeant John Sherbo
(“Sherbo”)}—collectively, “the officers” or “the individual de-
fendants-appellees.” He claimed, inter alia, that, in violation
of the Fourth Amendment, the officers and the City subjected
him to false arrest and false imprisonment. He also claimed
that the City and the individual defendants-appellees violated
his Fourth and Fourteenth Amendment rights by keeping him
incarcerated for a long time after his arrest, despite his
protestations of innocence and the availability of exculpatory
facts and evidence.
The district court granted summary judgment to the City
and to all the individual defendants-appellees. We affirm in
part, and vacate and remand in part.
BACKGROUND
On August 1, 2002, an armed, unmasked person robbed an
Amoco auto service station in Brdgeport. The cashier
described the criminal as a white male in his late 30s,
between 5’6” and 5’8” tall, of medium build with a very
short, blond crew cut. The crime was recorded on videotape
by a security camera. Officer Rosa went to the scene of
the incident.
3a
Officer DePietro, who was assigned by Sergeant Sherbo to
investigate the robbery, obtained the videotape of the robbery
on August 1, 2002. After using a video-photo machine to
freeze still photographs of the criminal, DePietro prepared a
mug shot photo array by matching the assailant’s facial char-
acteristics to faces in the police photo identification database.
Russo’s picture was included in this line-up, and the Amoco
cashier identified Russo as the robber, stating that he was
“one hundred percent sure” of his identification. Based on
this evidence,’ police obtained and executed a warrant for
Russo’s arrest. On September 18, 2002, Russo was charged
with first-degree robbery.
Unable to afford the $100,000 bail that was set, Russo
remained in custody for more than seven months, until April
23, 2003, when the charges against him were dismissed. The
dismissal happened because the videotape taken by the sur-
veillance camera showed that “both sides of the perpetrator’s
left arm and one side of the forearm, and one side of the
perpetrator’s right forearm,” were free of any tattoos. Russo,
by contrast, had prominent tattoos on his forearms, hands,
neck, and legs, and, as noted in the arresting officer’s report,
they were there at the time of his arrest on September 18,
2002.
Indeed, in an earlier, 2001 arrest report on file with the
Bridgeport police department, individual defendant-appellee
Rosa documented the existence of “King Tut,” “demon-
devil,” and “tribal art” tattoos on Russo’s two forearms, in
addition to other tattoos on Russo’s upper arms and legs.” No
' The police did not conduct a live line-up, and it is undisputed that the
cashier never saw a picture of Russo that included any part of his body
below his face.
? The district court made no factual findings with respect to Russo’s
tattoos, and we are unable to glean from the photographic reproductions in
our record whether Russo’s hands were also tattooed in 2001, as they
were at the time of his arrest in 2002.
4a
evidence in the record or argument by the government
suggests that Russo lacked arm tattoos on the date of the
robbery or had somehow managed to mask them from the
victim or the video camera’s view.”
In addition to the distinctiveness of his tattoos, Russo’s
physical characteristics were different in important respects
from those of the Amoco robber, as described by the cashier.
At the time of Russo’s arrest for that robbery, Russo was
listed by the police as being a 27-year-old white male, 6’0”
tall, of medium build, who weighed 200 pounds and had
brown hair, but was balding. He was, therefore, younger,
taller, balder, and with different colored hair than the person
whom the victim had described to the police.
Construing the evidence in the light most favorable to
‘Russo, the following events occurred during the 217-day
period of Russo’s custody. Upon his arrest on September 18,
2002, Russo was taken for interrogation by individual defen-
dants-appellees DePietro and Borona, whom he had never
met before. The officers questioned Russo about the robbery
for two hours, seeking his confession. The officers informed
Russo that they had video surveillance of him committing the
robbery, and they showed him a photographic still that had
been “ripped or folded” to show only the robber’s head.
Russo protested that he could not be the person in the photo-
graph because of the shape of the criminal’s head, nose, and
> The district court’s speculation—which was never suggested by any
of the defendants and was unsupported by any evidence—that Russo
could theoretically have covered his tattoos with make-up prior to the
robbery and that the police officers may have relied upon this fact in
making their judgments about handling the evidence, was inappropriate
on a motion for summary judgment. See, e.g., Baker v. Home Depot, 445
F.3d 541, 543 (2d Cir. 2006) (restating the well-settled rule that a federal
court is “constrained, in reviewing a ruling on a motion for summary
judgment, to resolve all ambiguitics and draw all inferences in favor of []
the nonmoving party”).
Sa
hairline. He also told the officers to watch the videotape to
see whether the perpetrator had body tattoos.* The officers
left the interrogation room and returned a while later holding
a magnifying glass and a ruler. They then informed Russo
that the videotape showed a perpetrator with tattoos. Russo,
nevertheless, refused to plead guilty to the robbery.
After the questioning, DePietro came to Russo’s holding
cell one or two additional times seeking a confession in
exchange for giving Russo access to the hospital methadone
program.” The officers “kept on dismissing” the issue of his
tattoos. Russo also continued to press the other differences
between his and the perpetrator’s face and insisted that this
showed his innocence.
From the day of the robbery through a date after November
25, 2002, DePietro, who was the lead investigating officer on
the robbery, had possession of the videotape. DePietro and
Borona stated that they viewed the videotape, and testified
that they “did not notice tattoos” on the perpetrator. Indi-
vidual defendant Sherbo, the sergeant who had assigned
DePietro to investigate the robbery, attested that he did not
watch the videotape, because, in his view, the eyewitness
identification confirmed the assailant’s identity and made it -
unnecessary to view the surveillance footage. There is no
dispute that after the date of the interrogation, there was no
further contact between Russo and DePietro and Borona.
“ In his deposition, Russo testified that he raised the issue of his tattoos
immediately with the officers after learning of the videotape showing the
robber, “[b]ecause being into tattoos the way I am, the first thing about me
that makes me original is my tattoos.”
* At the time of the interrogation, Russo was experiencing early signs
of substance withdrawal, specifically, aching in his knees. He testified,
however, that [he] was very clear in everything [he] saw and said that
day.”
6a
After learning of the videotape through the questioning,
and believing—based on the officers’ representations—that
the robber had tattoos of the same size and location as he did,
Russo told his appointed attorney and later his retained
counsel that he wished to prove his innocence by seeing the
tape of the robbery in order to compare his own tattoo
imagery to that of the perpetrator. At Russo’s first court
appearance for arraignment and bond-setting on September
19, 2002, Russo’s appointed public defender did not raise the
issue of the videotape to the judge.
At a hearing before the state court, likely to have oc-
curred in early October, the prosecutor successfully countered
Russo’s lawyer’s request that the court compare Russo’s
tattoos to those of the perpetrator.° On November 1, 2002,
Russo’s counsel moved for the production of any exculpatory
material, and it is undisputed that the videotape was not
produced at this time. On December 2, 2002, Russo’s trial
attorney issued a written letter in which he specifically asked
to view the tape.
On November 19, 2002, an investigator for the Office of
the State Attorney visited the Bridgeport Police Depart-
ment property room to obtain the videotape. The investigator
found that the tape was missing. Sometime after Novem-
ber 25, 2002, the investigator obtained the tape from Officer
DePiétro, who had it locked in a drawer of his desk. Later, the
State investigator watched the tape and determined that he
could not see the perpetrator clearly. On January 3, 2003, he
requested a laboratory enhancement of the footage, which he
received on January 22, 2003.
° Neither party submitted a transcript of this proceeding, but Russo
testified that his parents heard Russo’s trial attorney requesting the tape
when Russo was not in the courtroom. This testimony was not challenged
by the defense.
7a
Later, at an unknown date before April 9, 2003, Russo’s
trial attorney was finally allowed to watch the tape.
Immediately thereafter, he told the state investigator that the
person on the tape could not be his client. The videotape was
not actually surrendered to the defense until Russo was
released in late April, 2003.
The state attorney was aware of Russo’s “fairly vivid
tattoos on his arms as well as on his neck” from the time he
first received the case. Yet, because Russo’s face resembled
the robber’s in photo stills taken from the videotape, his
office claimed to have been convinced that Russo was the
perpetrator until one day before seeking dismissal of the case.
Finally, on April 22, 2003, due to defense counsel’s contin-
uing “insistence” on Russo’s innocence, the prosecutor actu-
ally watched the videotape. The following day, after checking
with a probation officer to verify that Russo’s tattoos
predated the crime, the state requested a nolle prosequi.
At the hearing to request dismissal of the prosecution, the
state attorney noted that “often the less said is better”, but
he stated:
So, I had a talk—to sit down with a couple of inves-
tigators yesterday to actually view the videotape in the
thought that perhaps the videotape gave somehow some-
what of a better view of the perpetrator than the stills
that had been developed from the videotape. That, in
fact, happened. The videotape shows both sides of the
perpetrator’s left aim and one side of the forearm, and
one side of the perpetrator’s right forearm. And there
very clearly are no tattoos on any of those.
The court dismissed the case.
As recognized by the district court, the Bridgeport Police
Department had exclusive custody of the videotape evidence
from August 1, 2002 until at least November 26, 2002, a
period of 117 days. Construing the evidence in the light most
8a
favorable to the nonmoving party, the record indicates a
68-day time period—between the police interrogation on Sep-
tember 18, 2002 and the earliest date on which the tape may
have been obtained from DePietro—during which DePietro
and Borona were on notice of Russo’s claim of innocence
based on his tattoos. The state attorney himself did not watch
the videotape as moving picture footage, rather than frozen
stills, until more than seven months after Russo’s arrest.
Naming the City and the individual officers who conducted
his arrest and investigation as defendants, Russo filed a civil
rights action in state court. The action was removed to the
federal district court on October 17, 2003. Russo there filed a
second amended complaint which asserted a failure to train
and supervise by the City, as well as false arrest and unrea-
sonably lengthy detention by the City and by the individual
defendants. The complaint alleges that both the City and the
individual defendants-appellees lacked probable cause for
Russo’s arrest, demonstrated reckless and malicious indiffer-
ence to Russo’s claims of innocence, and failed to meet their
statutory obligation under Connecticut law to disclose ex-
culpatory evidence. In addition to his § 1983 count, Russo
claimed false arrest, false imprisonment, negligent infliction
of emotional distress, and intentional infliction of emotional
distress under state law.
By a brief endorsement order and final judgment dated July
13 and July 14, 2005, the district court granted summary
judgment to all the defendants. The court found that Russo’s
federal constitutional rights had not been violated, and, hav-
ing dismissed Russo’s federal claims, the court declined to
exercise supplemental jurisdiction over Russo’s state claims.
At oral argument, the district judge expressed his sympathy
for Russo given the length of his wrongful incarceration, but
he found no Fourth or Fourteenth Amendment violations. He
stated that probable cause for Russo’s arrest had been
established, and that this fact precluded false arrest and false
9a
imprisonment claims under § 1983. With respect to Russo’s
due process claims, the district court did not make specific
factual findings about the timing or scope of the state’s
investigation of the crime or videotape evidence. He did
conclude, however, that the evidence was insufficient to show
that the videotape was legible enough to exonerate Russo
prior to the tape’s enhancement in January, 2003. The court
went on to reject, as a matter of law, the argument that
“when the person whose’s [sic] been arrested provides an
explanation as to why they’re not guilty, the police officers
violate that person’s constitutional rights when they don’t go
out and investigate the claims made by the person who’s been
arrested.” Having found no violation of Russo’s federal
constitutional rights by the individual defendants, the district
court rejected the claims against the City without discussion.
DISCUSSION
I. Standard of review
““We review a grant of summary judgment de novo,
construing the record in the light most favorable to the non-
moving party” Hoyt v. Andreucci, 433 F.3d 320, 327 (2d Cir.
2006) (quoting Bourdon v. Loughren, 386 F.3d 88, 92 (2d
Cir. 2004)). We will affirm the district court’s grant of
summary judgment only if, taking all of plaintiff's evidence
as true and drawing all inferences in plaintiff's favor, we find
that no reasonable juror could conclude that Russo has
established that the defendants violated his constitutional
rights under circumstances subjecting them to liability under
§ 1983. See Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 122-23 (2d Cir. 2004); Fed. R. Civ. P. 56(c).
II. Deprivation of constitutional rights
As in any § 1983 case on summary judgment, we first
determine whether, “[t]aken in the light most favorable to
the party asserting the injury, [] the facts alleged show the
{defendants’| conduct violated a constitutional right,” Saucier
10a
v. Katz, 533 U.S. 194, 201 (2001); see also Farrell v. Burke,
449 F.3d 470, 499, n.14 (2d Cir. 2006) (quoting same), and
only thereafter consider whether qualified immunity shields
individual defendants. Russo argues constitutional tort lia-
bility arising under the Fourth and Fourteenth Amendments.
He asserts that his lengthy detention and the withholding of
the videotape from state investigators constituted violations
of his right to be free from unreasonable seizures and of his
right to due process.
A. The Fourth Amendment claim based on false arrest and
false imprisonment
Russo’s first claim relies on theories of false arrest and
false imprisonment. In analyzing claims alleging the consti-
tutional tort of false arrest, “we have generally looked to the
law of the state in which the arrest occurred.” Davis v. Rod-
riguez, 364 F.3d 424, 433 (2d Cir. 2004) (examining Connec-
ticut law to assess a plaintiff's false arrest claim); see also,
e.g., Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006)
(considering New York law). This follows our normal prac-
tice with respect to § 1983 claims. See Davis, 364 F.3d at
433 n.7.
In a false arrest action, Connecticut law places the burden
of proving an unlawful arrest on the plaintiff. Beinhorn v.
Saracen, 23 Conn. App. 487, 491, 582 A.2d 208, 210 (1990);
Davis, 364 F.3d at 433. And, in Connecticut, a false arrest
claim cannot lie when the challenged arrest was supported by
probable cause. Beinhorn, 23 Conn. App. at 491, 582 A.2d at
210. Interpreting an analogous rule under New York law in
the context of federal civil rights actions, our court has
uniformly rejected Fourth Amendment false arrest claims
premised on lawful arrests supported by probable cause. See
” Russo has abandoned his Sixth Amendment speedy trial claim on
appeal. See Fed. R. App. P. 28(a)(9)(A) (the appellant’s brief “must con-
tain . . . appellant’s contentions and the reasons for them”).
lla
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004); Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Singer v. Fulton
County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). In the
present case, the district court properly found that there was
no disputed issue of material fact that Russo’s arrest was
supported by probable cause (the positive identification by
the gas station cashier).
The more vigorous dispute between the parties—but an
equally well-settled issue under Connecticut law—is whether
Russo’s on-going detention supported an independent § 1983
claim for false imprisonment. As in the case of false arrest,
we look to Connecticut state law principles to determine the
validity of Russo’s federal civil rights claim based on false
imprisonment. See Huang v. Johnson, 251 F.3d 65, 75 (2d
Cir. 2001).
Under Connecticut law, “‘[flalse imprisonment, or false
arrest, is the unlawful restraint by one person of the physical
liberty of another.’” Outlaw v. City of Meriden, 43 Conn.
App. 387, 392, 682 A.2d 1112, 1115 (1996) (quoting Green
v. Donroe, 186 Conn. 256, 267, 440 A.2d 973, 974 (1982)).
In Outlaw, the Connecticut Appellate Court stated that the
applicable law for false arrest and false imprisonment “is
identical,” and therefore “there is no cause of action for false
imprisonment if the plaintiff was arrested pursuant to a
facially valid warrant.” /d. at 1115 (describing the continuity
of this rule across 180 years of case law); see also Lo Sacco v.
* Indeed, in Outlaw, the Connecticut court of appeals considered the
false imprisonment/false arrest claim of a plaintiff who, like Russo, was
arrested based on an uncontested warrant, but who was ultimately relieved
from charges following exculpatory revelations on the eve of trial. Out-
law, 682 A.2d at 1113-14. The court found that in the context of a legally
authorized arrest, a plaintiff must show that a state actor misused the
“legal process to effect a valid arrest for an improper purpose.” /d. at 1115
(internal quotation marks omitted). In other words, the plaintiff had to
have made a malicious prosecution claim. This Russo has not done.
lp arin een
12a
Young, 20 Conn. App. 6, 20, 564 A.2d 610, 617 (1989)
(stating that a claim for false imprisonment may not lie where
“the arrest of the plaintiff is legally authorized”); Love v.
Town of Granby, 2004 WL 1683159, at *¢ (D. Conn. July 12,
2004).
The district court’s dismissal of Russo’s § 1983 claims for
false arrest and false imprisonment is therefore affirmed.’
B. The claim based on an unreasonably prolonged
detention
The heart of Russo’s second claim is that his prolonged
detention—caused by the individual defendants-appellees’
alleged mishandling of exculpatory evidence and failure to
turn that evidence over to the prosecuting attorney which, in
® Based on our conclusion that Russo did not make the requisite
showing that his arrest lacked probable cause, we need not decide whether
a nolle prosequi in Connecticut is a per se bar to a § 1983 claim of false
arrest. On the one hand, we have stated that “[a] person who thinks there
is not even probable cause to believe he committed the crime with which
he is charged must pursue the criminal case to an acquittal or an
unqualified dismissal, or else waive his section 1983 claim.” Roesch v.
Otarola, 980 F.2d 850, 853 (2d Cir. 1992). However, several years later,
when we discussed Roesch v. Otarola and its Connecticut precedent, we
indicated that a judgment of conviction was a defense to a claim of either
malicious prosecution or false arrest, and then went on to say that we were
“not aware of any opinion by Connecticut’s highest court addressing the
issue of favorable termination in the context of a claim for false arrest
where there has been no determination as to guilt.” Weyant, 101 F.3d at
853 (emphasis added). The apparent tension between these decisions, and
their applicability in the context of Connecticut’s procedures for entering
a nolle prosequi specifically, has been the source of disagreement among
district judges in this circuit. Compare, e.g., Holman v. Cascio, 390 F.
Supp. 2d 120, 125-26 (D. Conn. 2005) (holding that the context of the
prosecutor’s decision to enter a nolle matters, and that such a decision
does not, per se, preclude initiation of a false arrest suit in federal court)
with Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 171 (D. Conn.
2003) (holding that a prosecution resulting in a nolle is not a favorable
termination for the purpose of a false arrest claim).
13a
turn, prevented the prosecutor from complying with his duty
to give the exculpatory evidence to the defense—violated his
Fourteenth Amendment right to be free from deprivations of
liberty without due process of law. As he did before the dis-
trict court, Russo argues that the officers willfully mishandled
and suppressed two items of exculpatory evidence: (1) the
2001 arrest file showing Russo’s prominent tattoos and
(2) the moving footage of the surveillance videotape demon-
strating that the perpetrator was not tattooed. In addition,
Russo asserts municipal liability by the City of Bridgeport on
the theory that a failure to train and supervise these officers
led to the deprivations of Russo’s constitutional rights.
1. Individual defendants
To hold individual defendants-appellees DePietro, Borona,
Sherbo, and Rosa liable in their personal capacity, Russo
must show that their conduct violated his constitutional rights
and that their actions were taken under color of state law. See
42 U.S.C. § 1983; Hafer v. Melo, 502 U.S. 21, 25 (1991);
Eagleson v. Guido, 41 F.3d 865, 872 (2d Cir. 1994). To make
such a “personal” claim, Russo need not establish a connec-
tion to governmental “policy or custom.” Hafer, 502 U.S.
at 25.
To prevail on this claim, Russo must establish (1) that he
has a right to be free from continued detention stemming
from law enforcement officials’ mishandling or suppression
of exculpatory evidence, (2) that the actions of the officers
violated that nght, and (3) that the officers’ conduct “shocks
the conscience,” County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998). In addition, even if Russo proves these
elements, he cannot prevail against the individual defendants
if the officers establish that they are entitled to qualified
immunity.
In the following subsection (a), we address the three ele-
ments of this claim and conclude that Russo has made out a
14a
prima facie case with respect to Officer DePietro and
Detective Borona. In doing so, we clarify that this type of
claim, which has in the past been treated as one based on
substantive due process, should be examined under the Fourth
Amendment instead. In subsections (b) and (c), we conclude
that summary judgment was appropriate as to Sergeant Shero
and Officer Rosa. Given these conclusions, subsection (d)
examines whether Officer DePietro and Detective Borona are
entitled to qualified immunity.
a. Officer DePietro and Detective Borona
Undisputed evidence shows that both DePietro and Borona
had responsibility for investigating the Amoco robbery, with
Borona accompanying DePietro to the service station on the
date of the crime. Similarly, that evidence establishes that
DePietro took control of the surveillance tape on the date of
the robbery, viewed the tape, prepared photographic stills
from the tape, served as the affiant in the warrant for
Russo’s arrest, obtained that warrant, and retained the original
videotape in his desk drawer through a date that was after
November 25, 2002.
Beyond that, the testimony in the case diverges. But read in
the light most favorable to Russo, as it must be, the record
evidence shows the following. DePietro and Borona ques-
tioned Russo and pursued follow-up discussions in which
they learned—not necessarily for the first time, as such
attributes were on record in police files—of Russo’s dis-
tinctive physical characteristics, and specifically of his
tattoos. They watched the unenhanced surveillance tape, and
they represented to Russo that they could see the perpetrator’s
arms. Then, while concealing the tape, they falsely insisted
that it showed a man with tattoos like his. Rather than
following police rules on the storage of evidence and the
processing of exculpatory evidence, DePietro put the tape in
his drawer, thus impeding the state attorney’s access to the
footage. As a result, and despite Russo’s repeated attempts to
1Sa
focus attention on the tape, it took more than six months for
that tape to reach Russo’s counsel, and more than seven
months before Russo was released from prison.
The question of whether such conduct amounted to a
deprivation of Russo’s constitutional rights is similar to one
posed to the Supreme Court in Baker v. McCollan, 443 U.S.
137 (1979), in which a plaintiff was arrested pursuant to a
valid warrant actually intended for his brother.'° /d. at 143.
The plaintiff remained incarcerated for eight days—despite
his protests of innocence and the availability of exculpatory
evidence—until the police compared his photograph to that of
the wanted man and released the innocent arrestee. Jd. at 141.
The plaintiff brought an action pursuant to § 1983 alleging
that the sheriff had failed to institute proper identification
procedures in violation of the plaintiff's due process rights.
As in Russo’s case, the plaintiff's claims were based on law
enforcement’s conduct after the plaintiff was incarcerated
pursuant to a valid warrant.
In Baker, the Supreme Court held that the plaintiffs
situation—which it found was a “depriv[ation] of his liberty
for a period of days” pursuant to a warrant satisfying Fourth
Amendment standards—did not, in the circumstances of that
case, give rise to a constitutional claim. /d. at 144. The Court
stated, however: “Obviously, one in [plaintiff's] position
could not be detained indefinitely in the face of repeated
protests of innocence even though the warrant under which he
was arrested and detained met the standards of the Fourth
Amendment.” Jd. at 144. Such protection derived from his
constitutional right to a speedy trial. /d. (citing United States
v. Marion, 404 U.S. 307 (1971)). But, going beyond this
Sixth Amendment right, the Court suggested that such a
'° The plaintiff's brother, rather than the police, precipitated the mix-up
by identifying himself as the plaintiff in the course of the crime and
subsequent proceedings. See Baker, 443 U.S. at 140-41.
l6a
prolonged detention could also be understood in terms of the
Fourteenth Amendment right to due process of law:
We may even assume, arguendo, that, depending on
what procedures the State affords defendants following
arrest and prior to actual trial, mere detention pursuant to
a valid warrant but in the face of repeated protests of
innocence will after the lapse of a certain amount of time
deprive the accused of “liberty . . . without due process
of law.”
Id. at 145 (quoting U.S. CONST. amend. XIV, § 1); see also
Wright v. Smith, 21 F.3d 496, 499 n.1 (2d Cir. 1994) (quoting
same). The Court made clear, however, that the plaintiff's
detention—“three days over a New Year’s weekend”! '—
amounted to no such deprivation. Baker, 443 U.S. at 145.
In a concurring opinion, Justice Blackmun reinforced the
Court’s due process discussion. He explained that, as he saw
it, the majority opinion did not “foreclose the possibility that
a prisoner in [plaintiff's] predicament might prove a due
process violation by a sheriff who deliberately and repeatedly
refused to check the identity of a complaining prisoner
against readily available mug shots and fingerprints.” Jd. at
148 (Blackmun, J., concurring). In other words, the due
process clause might well reach conduct more shocking than
that of the defendant in Baker. And, Justice Blackmun read
the Court’s opinion to “conclude[] only that ‘every’ claim of
innocence need not be investigated independently,” and that
defendant’s intent was “relevant to the existence of a con-
stitutional violation.” /d.
Following Baker, the Eleventh Circuit recognized a Four-
teenth Amendment due process right “to be free from con-
tinued detention after it was or should have been known that
'' Plaintiff was incarcerated for a total of eight days, but spent only
three days in the custody of the defendant sheriff.
17a
the detainee was entitled to release.” See Cannon v. Macon
County, 1 F.3d 1558, 1563 (11th Cir. 1993). In Cannon, a
sheriff's deputy arrested an innocent woman whose name was
similar to that of a fugitive and ignored the arrestee’s pro-
testations of innocence. Jd. at 1560-61. The deputy’s failure
to take any steps to identify the plaintiff as the fugitive, the
court held, provided sufficient evidence from which a jury
could find that the deputy acted with deliberate indifference
towards the plaintiff's due process rights. Jd. at 1564. Sim-
ilarly, the Ninth Circuit applied Baker’s recognition of a due
process interest to a twelve-day detention of a plaintiff ar-
rested on valid warrants intended for his twin brother. See
Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002). The
court held that the plaintiff “had a liberty interest in being
free from a twelve-day incarceration without any procedural
safeguard in place to verify the warrant he was detained on
was his and in the face of his repeated protests of innocence.”
Id.; see also Sanders v. English, 950 F.2d 1152, 1162 (Sth
Cir. 1992) (holding that the failure to release a pretrial
detainee after police officer knew or should have known that
plaintiff had been misidentified gives rise to cause of action
under § 1983)."”
And our own court has recognized the due process
protection suggested in Baker. Thus, in Satchell v. Dilworth,
we considered the claims of a plaintiff who, following com-
pletion of a criminal sentence, had been illegally rearrested
and incarcerated for thirty-one days based on misleading and
incomplete, if not deliberately false, information provided by
state correctional services. 745 F.2d 781, 782 (2d Cir. 1984).
'? Likewise the Seventh Circuit, having acknowledged “the general
proposition that a warrantless arrest does not support a claim under § 1983
ifthe arresting police had probable cause,” went on to say that this
“general rule [] does not preclude a// § 1983 actions for wrongful deten-
tions that follow constitutional arrests.” Sivard v. Pulaski County, 959
F.2d 662, 665 (7th Cir. 1992).
18a
The plaintiff, we stated in Satchell, might be able to prevail
on his due process claims if he could demonstrate that any of
the defendants intentionally’* concealed or conspired to
conceal evidence of the plaintiff's completion of his sentence..
Id. at 785.
Today, we hold that the right mentioned in Baker and
enunciated in the above cited cases protected Russo from a
sustained detention stemming directly from the law enforce-
ment officials’ refusal to investigate available exculpatory
evidence. The Bridgeport police officers retained sole custody
of the videotape evidence—and stored it in an improper
manner—for a full 68 days after Russo alerted them that
examining the pictures of the perpetrator for tattoos could
exonerate Russo. They did this after intentionally misstating
that the robber had tattoos. Moreover, their failure to perform
the simple task of checking the tape resulted in all of Russo’s
217-day incarceration.
We must clarify the source of this right, however. Al-
though Justice Blackmun in Baker—and several circuits in-
cluding our own in Satchell—have suggested that the nght
was rooted in substantive due process, we now conclude, in
light of more recent guidance from the Supreme Court, that
the right should instead be analyzed under the Fourth Amend-
ment. In Graham v. Connor, 490 U.S. 386 (1989), decided
almost ten years after Baker, the Supreme Court stated that
“[w]here a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more
generalized notion of “substantive due process,” must be the
guide for analyzing these claims.“ Albright v. Oliver, 510
U.S. 266, 273 (1994) (plurality opinion) (quoting Graham,
' As discussed infra, Satchell’s holding that the plaintiff could also
prevail by proving that his unlawful incarceration resulted from negli-
gence has been revisited in light of Supreme Court precedent. See
O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005).
19a
490 U.S. at 395)). And more recently, in County of Sacra-
mento v. Lewis, 523 U.S. 833 (1998), the High Court noted
that Rochin v. California, 342 U.S. 165 (1952)}—a case on
which Justice Blackmun had relied in Baker “was decided
long before Graham v. Connor . . . and today would be
treated under the Fourth Amendment, albeit with the same
result.” Sacramento, 523 U.S. at 849 n.9.
Russo’s claim—which he presents as being based on
substantive due process—fits comfortably under the coverage
of the Fourth Amendment. We have observed that “[w]hen
the accused is physically detained following arraignment,
there can be no question that he has been seized within the
meaning of the Fourth Amendment.” Murphy v. Lynn, 118
F.3d 938, 944 (2d Cir. 1997); see also County of Sacramento,
523 U.S. at 844 (“[A] Fourth Amendment seizure [occurs] . . .
when there is a governmental termination of freedom of
movement through means intentionally applied.” (internal
quotation marks and emphasis omitted)); Oliver, 510 U.S. at
274 (plurality opinion) (“The Framers considered the matter
of pretrial deprivations of liberty and drafted the Fourth
Amendment to address it.”). And while “we have generally
looked to the law of the state in which the arrest occurred” in
analyzing § 1983 claims based on the Fourth Amendment,
Davis, 364 F.3d at 433 (emphasis added), the scope of the
Fourth Amendment’s protection against “unreasonable” seiz-
ures 1s, of course, not limited to state law.
Thus, since the Fourth Amendment provides a more “ex-
plicit textual source of constitutional protection,” in light of
Graham, the Fourth Amendment, rather than substantive due
process, should serve as “the guide for analyzing these
claims.” Graham, 490 U.S. at 395; cf: Fontana v. Haskin, 262
F.3d 871, 881 (9th Cir. 2001) (“‘[C]laims arising before or
during arrest are to be analyzed exclusively under the fourth
amendment’s reasonableness standard rather than the substan-
20a
tive due process standard .. . .””) (quoting Reed v. Hoy, 909
F.2d 324, 329 (9th Cir. 1990)).
We therefore treat Russo’s claim as being based on the
Fourth Amendment’s protection against unreasonable seiz-
ures. And, doing so, we conclude, in light of (1) the length of
time of Russo’s wrongful incarceration, (2) the ease with
which the evidence exculpating Russo—which was in the
officers’ possession—could have been checked, and (3) the
alleged intentionality of DePietro’s and Borona’s behavior,
that Russo has sufficiently alleged that he was unreasonably
seized. In other words, the evidence Russo has proffered
suffices to prevent summary judgment on Russo’s claim of a
Fourth Amendment violation by DePietro and Borona.
(1)
In Baker, the Supreme Court expressly recognized that “the
lapse of a certain amount of time” is an element in assessing
the existence of a constitutional encroachment. Baker, 443
U.S. at 145. Indeed, in one of the precedents relied on in
Baker, the Court had stated that “[t]he consequences of pro-
longed detention may be more serious than the interference
occasioned by arrest. Pretrial confinement may imperil the
suspect’s job, interrupt his source of income, and impair his
family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114
(1975); see Baker, 443 U.S. at 143 (citing Gerstein). And the
Baker Court noted that the short duration of the plaintiffs
detention was central to the Court’s denial of the plaintiffs
claims. See id. at 145; accord Davis v. Hall, 375 F.3d 703,
718 (8th Cir. 2004); Cannon v. Macon County, | F.3d 1558,
1562 (11th Cir. 1993); Coleman v. Frantz, 754 F.2d 719, 724
(7th Cir. 1985). The total 217-day detention here, or even the
68-day detention between Russo’s arrest and DePictro’s
yielding of the tape to the prosecutor, plainly was prolonged
rather than short and carried constitutional implications.
2la
(2)
Whether DePietro and Borona watched the tape before
(falsely) telling Russo that the robber was tattooed, or failed
to follow up on Russo’s claims of innocence by refusing to
watch the tape at all, their conduct easily fits the hypothetical
presented in Justice Blackmun’s Baker concurrence: that the
standard for liability announced by the Court would reach an
officer who “refused to check the identity of a complaining
prisoner against readily available mug shots and finger-
prints.” See Baker, 443 U.S. at 148 (Blackmun, J., con-
curring) (emphasis added). An officer’s duty to investigate
specific, readily-verifiable claims of innocence in a reason-
able time period clearly covers reviewing a surveillance
camera video record of a crime, when, as here, it was an
easily available piece of physical evidence.
(3)
We have said that a substantive due process claim requires
more: To trigger liability, a police officer’s action must
“shock[] the conscience.” '* County of Sacramento, 523 U.S.
at 846. That is, it must be “‘arbitrary in the constitutional
sense,’ O’Connor v. Pierson, 426 F.3d 187, 203 (2d Cir.
2005) (quoting Collins v. City of Harker Heights, 503 U.S.
115, 128 (1992)). And, given our decision—following the
Supreme Court’s admonition in Graham—to treat Russo’s
claim under the Fourth Amendment, the “shock the con-
'* The Baker majority did not evaluate whether the defendant sheriff's
conduct in Baker “shocked the conscience. Justice Blackmun, however,
did explore the issue in his concurrence. He explained that liability was
rejected because “[nJothing in [the sheriff's] conduct suggest{ed] outrage-
ousness.” The sheriff, who was new to his position, could only be said to
have erred in his failure to supervise adequately his deputies’ conduct and
there was “no indication that petitioner was aware, or should have been
aware, either of the likelihood of misidentification or of his subordinates’
action.” 443 U.S. at 147-48.
22a
science” requirement must now be understood as a crucial
feature going to the “unreasonableness” of the seizure.
The state of mind of a government defendant is an integral
aspect of any “shock the conscience” standard. Thus, we have
read County of Sacramento to mean that while “a purpose to
cause halm” might be required in a situation such as a high-
speed chase, “deliberate indifference”—but not negligence—
can support a finding of liability in situations where the
government owes a special duty of care to those in its charge.
O’Connor, 426 F.3d at 203.
Here, Russo was in state custody—and hence in the charge
of the government—throughout the relevant proceedings.
Moreover, a reasonable jury could find that DePietro actively
hid the exculpatory evidence. As such, his conduct is of a
different order from that of the defendant in Baker, where
inadvertent omission, rather than an affirmative wrongdoing,
led to the detention. See 443 U.S. at 143; see also Whitley v.
Seibel, 613 F.2d 682, 685-86 (7th Cir. 1980) (distinguishing
Baker and finding liability because of defendant police offi-
cers’ improper behavior). In addition, by falsely describing
the content of the videotape, DePietro and Borona attempted
to evoke a confession from him by misrepresenting the very
evidence of Russo’s innocence that was available to them.
This act, combined with their failure to investigate the tape to
see if the tape was in fact exculpatory, would readily support
a jury finding of either intentional violation of, or deliberate
indifference to, Russo’s constitutional nghts. See Cannon, |
F.3d at 1564 (holding that a defendant’s failure to verify that
an arrestee was the fugitive sought on the arrest warrant
raised a question of fact as to defendant’s deliberate indif-
ference toward the plaintiffs due process rights). And,
DePietro’s failure to follow police procedures with respect to
the storage of the exculpatory evidence adds further evidence
on the basis of which a jury could find deliberate indifference
to Russo’s incarceration and to his asserted innocence.
23a
The evidence of shocking conduct on the part of DePietro
and Borona was sufficient to preclude a grant of summary
judgment in their favor on the merits of Russo’s “unrea-
sonable seizure” claim.
b. Sergeant Sherbo
Sherbo, for his part, took DePietro’s oath for Russo’s arrest
warrant application, assigned and supervised DePietro’s in-
vestigation, and made the determination that it was unnec-
essary to view the tape personally. Sherbo may not be held
liable simply because one or more of his subordinates com-
mitted a constitutional tort. “[He] may be found liable
[, however, for any] deliberate indifference to the rights of
others by his failure to act on information indicating uncon-
stitutional acts were occurring or for his gross negligence in
failing to supervise his subordinates who commit such
wrongful acts, provided that the plaintiff can show an
affirmative causal link between the supervisor’s inaction and
[his] injury.” Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.
2002). But no evidence was proffered that Sherbo was on
notice of Russo’s tattoo-based claim of innocence. As a
result, no deliberate indifference by Sherbo to Russo’s rights
has been shown. Similarly, Sherbo’s conclusion that the
robbery victim’s positive identification precluded the need for
watching the videotape—standing alone—is in no sense
arbitrary, let alone shockingly so. See County of Sacramento,
523 US. at 846.
Summary judgment with respect to Sergeant Sherbo is
therefore affirmed.
c. Officer Rosa
Summary judgment was also appropriate with respect to
Officer Rosa, who responded to the Amoco robbery and
wrote an incident report. Rosa had arrested Russo in 2001 and
had recorded his tattoos in the arrest report that was the
reason Russo was in the police database when the 2002
24a
robbery occurred. But the record contains no evidence that
Rosa had possession of the videotape, had viewed the sur-
veillance sequence, had transformed it into still photographs,
or had prepared the photographic line-up. He had no role or
responsibility for Russo’s arrest, interrogation, or in the
robbery investigation generally. Indeed, Russo did not know
him or recognize his name. The district court did not err in
dismissing Russo’s suit against Officer Rosa.
d. Defendants’ Qualified Immunity
Based on our determination that a reasonable factfinder
could conclude that DePietro and Borona’s conduct violated
Russo’s Fourth Amendment rights, we move to the second
step of the Saucier inquiry and assess whether these officers
are entitled to qualified immunity as a matter of law. See
Saucier v. Katz, 533 U.S. 194, 201 (2001).
Qualified immunity protects public officials from liability
for civil damages when one of two conditions is satisfied: “(a)
the defendant’s action did not violate clearly established law,
or (b) it was objectively reasonable for the defendant to
believe that his action did not violate such law.’” Poe, 282
F.3d at 133 (quoting Tierney v. Davidson, 133 F.3d 189, 196
(2d Cir. 1998)); see also Lennon v. Miller, 66 F.3d 416, 421
(2d Cir. 1995) (summary judgment is appropriate if “the only
conclusion a rational jury could reach is that reasonable
officers would disagree about the legality of the defendant[’s]
conduct under the circumstances”). In this case, neither con-
_ dition has been satisfied.
First, Russo had a clearly-established constitutional right to
be free from prolonged detention caused by law enforcement
officials’ mishandling or suppression of exculpatory evidence
in a manner which “shocks the conscience.” See Baker, 443
U.S. at 144 (referring to such a right as [o]bvious[{]” in the
context of a warranted arrest and protestations of innocence,
and doing so as early as 1979); Wright, 21 F.3d at 499 n.1
25a
(quoting Baker’s statement); see also Cannon, 1 F.3d at
1564-65 (holding that a reasonable official would attempt to
verify identifying information in the face of the plaintiff's
assertions of mistaken identity).
Today we have clarified that Russo’s claim should be
“treated under the Fourth Amendment,” County of Sacra-
mento, 523 U.S. at 849 n.9, rather than under substantive due
process. But this clarification is of no consequence to the
question of whether the right was clearly established, because
the proper inquiry is whether the right itself—rather than its
source—is Clearly established. See, e.g., Wilson v. Spain, 209
F.3d 713, 716 (8th Cir. 2000) (“[T]here is no question that
[plaintiff's] right to be free from excessive force was clearly
established, even if there is some ongoing uncertainty about
which constitutional text is the source of that right.” (footnote
omitted)); Alexander v. Perrill, 916 F.2d 1392, 1398 n.11 (9th
Cir. 1990) (noting that the only issue before it with respect to
qualified immunity was “whether there was a clearly estab-
lished duty to investigate”; that its prior decision in Hay-
good v. Younger, 769 F.2d 1350 (9th Cir. 1985) (en Banc),
“answer[ed] that question in the affirmative”; and that “[flor
purposes of this appeal, it is unimportant that the Haygood
court found the prison officials ultimately violated the
plaintiff's right to be free from cruel and unusual punishment,
rather than the right to due process and to be free from double
jeopardy as alleged in this case”).
As to the second condition, the proffered evidence would
support a jury finding that DePietro and Borona acted in-
tentionally in hiding exculpatory evidence and misleading
Russo as to whether the videotape showed a perpetrator with
tattoos. Hence, a reasonable trier of fact need not conclude
that it was objectively reasonable for DePietro and Borona to
believe their actions were lawful. See Lennon, 66 F.3d at 420.
And, once again, it is of no consequence that we have
clarified the source of this right. The question of reasonable
26a
disagreement turns on whether reasonable officers could
disagree about whether conduct is illegal, not on whether they
know the precise constitutional reason why it is not lawful.
Qualified immunity to DePietro and Borona is unavailable
at summary judgment.
2. City of Bridgeport
Russo also alleged that the City of Bridgeport failed to
train and supervise its officers in the handling of exculpatory
evidence. Municipal liability under § 1983 for the conduct
of employees below the policymaking level requires that a
plaintiff show a violation of his constitutional rights that
resulted from a municipal custom or policy. See Dwares v.
City of New York, 985 Rid 94, 100 (2d Cir. 1993); Monell v.
Dep't of Social Services, 436 U.S. 658, 694 (1978). Having
rejected Russo’s claim of a violation of his constitutional
rights, the court below failed to make any factual findings as
to the City’s policies with respect to police department
handling of exculpatory evidence or with regard to the local
implementation of Conn. Gen. Stat. § 54-86c(c), which enu-
merates a state police officer’s duty to disclose exculpatory
evidence to the state attorney. Nor did the court examine the
application of municipal policies by the police department or
the individual defendants.
Nevertheless, the City has admitted, in its supplemental
responses to Russo’s requests for admissions, that “all indi-
vidual defendants . . . acted toward the Plaintiff in accordance
with custom, policy and practice.” We understand this to
constitute an admission that, if officers DePietro and Borona
are ultimately held to have violated Russo’s constitutional
rights, then municipal liability against the City will be
appropriate as well. Accordingly, given our holdings with
respect to Russo’s constitutional claims against DePietro and
Borona, summary judgment was inappropriate with respect to
Russo’s claim against the City.
27a
CONCLUSION
If a jury credits Russo’s evidence regarding DePietro’s and
Borona’s conduct, and if it finds that the videotape provided
adequate verification of Russo’s innocence based on his
unique physical characteristics, then Russo will have estab-
lished that he was unreasonably seized by DePietro and
Borona, in violation of his Fourth Amendment rights. Russo’s
long incarceration for the crime of another, in the face of
exculpatory evidence’ that was ignored or actively suppressed,
would amount to no less than “a decided lack of solicitude []
for the liberty of [the City’s] citizens,” Young v. City of Little
Rock, 249 F.3d 730, 735 (8th Cir. 2001). Moreover, the
validity of DePietro’s and Borona’s assertion of qualified
immunity cannot be determined at the summary judgment
stage. As such, the district court’s grant of summary judg-
ment to DePietro and Borona must be vacated. In addition,
given DePietro’s and Borona’s possible violation of Russo’s
constitutional rights, and the City’s admission that these
officers were acting “in accordance with custom, policy and
practice,” the district court’s grant of summary judgment to
the City must also be vacated. On the other hand, the dis-
trict court correctly granted summary judgment to defendants
Sherbo and Rosa.
Accordingly, this case is AFFIRMED in part, and VA-
CATED and REMANDED in part for further proceedings.
Costs are awarded to the appellant.
28a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
[Filed JULY 12, 2005]
No. 3:03CV1972(AWT)
CHRISTOPHER RUSSO,
Plaintiff,
VS.
CITY OF BRIDGEPORT, et al.
Defendants.
ORAL ARGUMENT ON MOTION FOR
SUMMARY JUDGMENT
BEFORE: HON. ALVIN W. THOMPSON U:S.D.J.
APPEARANCES:
FOR THE PLAINTIFF:
PERELMUTTER, POTASH & GINZBERG, P.C.
11 Bank Street
Seymour, Connecticut 06483-0001
BY: JEFFREY D. GINZBERG, ESQ.
WEINSTEIN, WEINER, IGNAL, NAPOLITANO
& SHAPIRO
350 Fairfield Avenue
Bridgeport, Connecticut 06604
BY: BURTON M. WEINSTEIN, ESQ.
29a
FOR THE DEFENDANT:
CITY OF BRIDGEPORT
OFFICE OF THE CITY ATTORNEY
999 Broad Street
Bridgeport, Connecticut 06604
BY: BARBARA BRAZZEL-MASSARO, ESQ.
ARTHUR C. LASKE, III, ESQ.
* * *
[3] 3:06 P.M.
THE COURT: We’re here for argument on the motions for
summary judgment in the matter of Christopher Russo vs. the
City of Bridgeport, et al. The docket number is 3:03-CV-
1792.
Would counsel please state their appearances for the
record.
MR. GINZBERG: Your Honor, on behalf of the plaintiff,
Christopher Russo, my name is Attorney Jeffrey Ginzberg
from Seymour, Connecticut.
MR. WEINSTEIN: On behalf of the plaintiff, Attorney
Burton Weinstein, Bridgeport, Connecticut, sir.
MS. BRAZZEL-MASSARO: Good afternoon, Your
Honor. My name is Barbara Brazzel-Massaro. I’m with
Corporation Counsel for the City of Bridgeport. I represent
the individual police officers John Rosa, Jeremy DePietro,
Christopher Borona, and Sergeant Joseph Sherbo.
THE COURT: Did you say John Rosen or Russo?
MS. BRAZZEL-MASSARO: Rosa, R-o-s-a.
MR. LASKE: Good afternoon, Your Honor. Arthur Laske,
Assistant City Attorney, City Attorney’s Office, City of
Bridgeport. And I represent the City of Bridgeport.
THE COURT: Thank you.
30a
Let me take a moment to get my papers organized.
[4] (Pause)
THE COURT: I’m looking first at the Motion for Sum-
mary Judgment filed by the individual defendants, just so you
know—
MS. BRAZZEL-MASSARO: Yes, Your Honor.
THE COURT: —for reasons that may be obvious.
Mr. Weinstein called my chambers with a question about
something, I forget exactly what it was, a couple of weeks
ago. My law clerk conveyed the question to me and I pulled
the file down and I started reading, Before I’d know it, I’d
finished reading the motions so I was ready to discuss them
with you. I thought that would be faster than taking time to
try and write something up, I'll just have you in and talk it
through with you.
I do have some questions I want to review first in terms of
exactly what are the claims. I want to make sure we’re on the
same page on that.
The first count sets forwards a claim against the City and
the individual defendants. It’s a 1983 claim so it’s a Monel
claim against the City of Bridgeport. As I read it, it’s failure
to train and supervise against the City; and as to the
individual defendants, it appears to be false arrest.
MR. GINZBERG: And also unreasonably lengthy incar-
ceration once arrest had been made.
[5] THE COURT: So it’s false arrest and detention?
MR. GINZBERG: Correct. Unreasonably lengthy deten-
tion.
MR. WEINSTEIN: And particularly as a result of the
failure to disclose exculpatory information which was in the
possession of the City for some time before this arrest and
that’s—
3la
THE COURT: I understand the factual contention about
the state statute on disclosure of exculpatory information, but
under 1983 you have to bring a claim for violation of a
federal right. So that might be a corollary fact, but it wouldn’t
be a basis for the claim, as I understand it.
MR. WEINSTEIN: Except that for purposes of qualified
immunity, since the statute is mandatory, it would not be a
matter of discretion, but administrative obligation to turn that
information, over.
THE COURT: It’s still not the claim itself. It’s one of the
pieces of evidence that you’re talking about in support of the
claim or a factual circumstance I think that you’re pointing to
as in support of a claim as opposed to the claim being based
on the statute itself.
MR. WEINSTEIN: I’m sorry, I could not hear that last
part.
THE COURT: Well, I said it is not the basis—{6] let me
rephrase it.
You’re not pointing to that state statute as the federal right
that’s been violated because it’s not a federal statute.
MR. WEINSTEIN: No, I’m aware it’s not a federal statute.
However, my point—if I misstated, I apologize. The statute I
think removes any possible claim of discretion with regard to
turning over exculpatory material.
THE COURT: We can talk about that later. I’m not dis-
agreeing with you on that point.
So false arrest and unreasonably long detention.
And then. I think the other three counts are, pretty straight-
forward the way they’re set forth. Actually, they are brought
against—I guess they’re brought against the individual defen-
dants and the City.
MR. GINZBERG: Yes, Your Honor.
32a
MR. WEINSTEIN: If I may, sir, with regard to the City,
paragraphs 32 and 33 of the Second Amended Complaint
specifically raise the issues of failure to train and supervise
and disregard of the civil rights, which are the elements of the
claim, against the City.
THE COURT: Right. I was on Counts Two, Three and
Four, false arrest, imprisonment, and then negligent infliction
of emotional distress and intentional [7] infliction of emo-
tional stress. Okay.
Let me ask first about this claim of unreasonably long
detention. On what date was the plaintiff first presented
before—on what date was he arrested?
MR. GINZBERG: 9/18. 9/18/02 was the date that he was
picked up. And he was picked up at his home early in the
morning, he was in bed—
THE COURT: I’ve read all the papers.
Let me preface this because it might save us some time. I
looked at what happened with Mr. Russo, think it’s a terrible
situation. I don’t think anybody would disagree with that for
somebody to be detained so long and then have it determined
that they were not the person depicted on the videotape.
That’s not why we’re here. We’re here to talk about the legal
issues. And the questions, as I see them, are not whether what
happened to him was terrible but whether he in fact has a
legal claim against these defendants.
As I look at it, there are several reasons why what hap-
pened to him happened to him. I will tell you reading the file
I had to really ask myself how could this have not—what
could have been done so that this didn’t happen? And I think
the plaintiff is pointing to certain things that the police
officers could have done, but there [8] are certainly other
things that other people who were involved in the process
could have donc. And the question is: Are the police officers
liable and is the City liable for what happened?
33a
So I remember that he was in bed and all of that, so just
wanted to pin down he was arrested on September 1 8th.
MR. GINZBERG: Correct.
THE COURT: Was he presented before a judicial officer
on September 18?
MR. GINZBERG: September 19th was the date he was
presented to a judicial officer.
THE COURT: So he was arrested September 18th, pre-
sented September 19th.
MR. GINZBERG: That’s night.
THE COURT: Now, at that point the decision to detain
him, as I understand things, was made by the judicial! officer.
So how is there a claim against these officers for detention of
the defendant? They had him, as I understand it, for ques-
tioning at the Bridgeport headquarters on the 18th.
MR. GINZBERG: Right.
So if we take it from September 18th as the date which—in
a continuum, the worst possible thing that the City or the
police officers could have done as opposed to [9] August Ist,
let’s focus on what happened on September 18th and Sep-
tember 19th, as Your Honor suggests. I say that if the judicial
authority had known or if it had been brought to the judicial
authority’s attention the fact that there was a videotape which
showed clean arms of the perpetrator, the judicial authority,
would never have incarcerated or allowed the plaintiff to be
incarcerated. It’s just clear that that would not have happened.
So based upon what the police officers brought to the
attention of the judicial authority at that point, what they
portrayed, they portrayed a very surface and I think a callus
view of the circumstances. They portrayed a similarity in
appearance between the photograph from 2001 and the
eyewitness identification in August of 2002. That was way
34a
too superficial for the circumstances given, the vivid tattoos
and given the exculpatory videotape which was not turned
over. And that videotape was not turned over until he was
released in April of ’03. So they allowed that videotape to
remain completely out of view in a desk drawer somewhere
without bringing that information to the attention of the
proper authorities. They had a duty to do that. And they failed
to do that.
In addition to that—and that would have been outcome
determinative.
There’s another aspect which is equally [10] determinative
but not as stark as colorful tattoos on arms. And that is there
was a height and weight differential between the perpetrator
and the plaintiff.
The perpetrator was described to have been small, 5’8”,
very small build. And blonde hair. Not weighing very much.
This individual, the plaintiff, was huge, as we all know from
the facts.
THE COURT: Well, we can be more specific than that. He
was 6’, 6’1”—
MR. GINZBERG: He was 671”, 210 pounds. And not
blonde hair. His tattoos, vivid just doesn’t describe it. Dennis
Rodman would be considered tame compared to the colors on
these tattoos.
So just from looking at him, they should have imme-
diately—an alarm should have gone off to go back to that
videotape and recheck the videotape to make sure there were
some marks or tattoos on the arms.
THE COURT: What you’re describing, though, is not an
unlawful detention claim. You’re saying something that
would be the kind of thing people say when they’re going to
make a claim that somebody obtained an arrest warrant under
false pretenses. And I don’t see that claim here and | don’t
see the evidence for it here.
35a
Let me just back up a second. I’m going to mix the two
claims together here in terms of the false arrest.
[11] As I read the papers, there are certain things that hap-
pened that led up to the issuance of the arrest warrant.
Number one, we had the robbery which was recorded on
the surveillance tape.
Number two, Officer Rosa responded to the report of the
robbery. He took a statement from Mr. Saleem, the victim.
Then it was, I guess, Defendant Sherbo who assigned the
investigation to Detective—is it DePietro?
MS. BRAZZEL-MASSARO: DePietro, Your Honor, Jer-
emy DePietro.
THE COURT: —to Mr. DePietro. And then Mr. DePietro
went over to the convenience store/Amaco station, I’m not
sure which it is or it’s both. He learned that there—the ob-
tained the videotape, surveillance tape. And then he and at
some point Mr. Borona were involved in observing that the
videotape was difficult to see.
They went to, I don’t know if it’s St. Vincent’s Hospital
where they were able to print out photographs of the person.
The person had a pink towel around his neck, as I recall.
And with those photographs, at least DePietro, and I don’t
know what Borona’s involvement was, proceeded to look
through the book of photographs that the [12] Bridgeport
Police Department has and pulled out eight pictures that
showed individuals who had similar facial characteristics or
I'll say head, face and head characteristics as the person who
was depicted on the surveillance videotape.
Is there any disagreement about that yet?
MR. GINZBERG: So far so good.
THE COURT: Okay.
36a
Mr. Saleem who, according to I think Officer Rosa’s
report, had said that he would be able to identify the person if
he saw him again, was shown the photographs and he
identified the photograph of the plaintiff, Mr. Russo. And he
said something along the lines that he was a hundred percent
sure or certain. I mean, it was a positive identification.
MR. GINZBERG: By a 22-year-old. Correct.
THE COURT: Yes, he is 22 years old. I don’t know that
that’s particularly compelling as a fact.
MR. WEINSTEIN: May I suggest one discrepancy left out
at that time even before the arrest of—
THE COURT: We’re not at the arrest yet.
MR. WEINSTEIN: Given the circumstances, the reaching
over the counter, I respectfully submit, sir, it is very unlikely
that the victim would fail to have noticed those tattoos. They
were very obvious. And to [13] fail to mention them at all—
THE COURT: We’re not at the tattoos yet, Mr. Weinstein.
We’re at what the officers knew. This is—at this point, this is
what the officers—this is what the officers have been told.
MR. GINZBERG: Subjectively at this point, because the
standard is objective reasonableness, not their subjective
point of view.
THE COURT: I think it’s undisputed that this i: what the
officers knew. I’m talking objectively.
MR. GINZBERG: This is why I would respectfully dis-
agree with that. It’s what they believed. Their subjective
belief is not really what’s relevant.
THE COURT: What do you mean it’s what they believed?
MR. GINZBERG: It’s what an objective police officer
would have done under the circumstances.
37a
THE COURT: At this time we’re not talking about what an
objective police officer would have done under circum-
stances. We’re talking about what were the circumstances.
MR. GINZBERG: As of August 1 I’m with you so far.
THE COURT: Okay. So at this point the officer has a
positive identification and the officer goes out and [14] gets
an application—puts together an application for an arrest war-
rant and a judge signs the application and the warrant issues.
Why didn’t the officer—why isn’t there probable cause
when arrested at that point?
MR. GINZBERG: Because there was an arrest report,
Exhibit 2 I believe in my materials which indicated that
Christopher Russo had vivid tattoos back in 2001.
THE COURT: What you’re saying, in other words, is there
were other documents unrelated to this case in the records of
the Bridgeport Police Department that showed that he had
vivid tattoos.
MR. GINZBERG: Yes.
MR. WEINSTEIN: And further, sir, the Department is a
defendant.
THE COURT: Can we have just one person argue this,
please?
MR. WEINSTEIN: Very well, sir.
THE COURT: Why don’t we get to you later, Mr. Wein-
stein. If you could relax for a few minutes, okay?
The fact that there may be something else in the police
department’s records does not mean there is not probable
cause unless you can point to the fact or point [15] to some
authority for the proposition that in order to have probable
cause, a police officer needs to, in addition to having in this
case a positive identification by the victim, needs to go
38a
through and search all the information within the control of
the department to determine that there’s nothing that negates
a conclusion that there’s probable cause. I didn’t see any such
authority in the plaintiff's papers.
MR. GINZBERG: Well, I think there is a slight nuance.
I’m not saying that he should go into all of the records of the
Bridgeport Police Department. All I’m saying is that there
was one particular record that they were aware of because
they pulled out the photo. And in that record there was a
police report from 2001. And one of the officers involved in
this arrest was Officer Rosa. And his name is on the 2001
report.
THE COURT: Officer Rosa, though, was not involved in
putting together the photograph array, as I understand it. His
involvement—first of all, his involvement ceased when
he turned in his report, if I’m remembering reading the
papers correctly. So he was not involved in putting together
the array.
And second, can I ask for a clarification, either from one of
the counsel for the defendants or the City, the way I read the
papers it sounded as though there [16] was a set of photo-
graphs that were gone through. Is this a situation where the
City sits down and it goes through the files for all these
various arrests, or is there like a mug shot book?
MS. BRAZZEL-MASSARO: It’s a computer-generated
system, Your Honor. What the officers would do is they
would look at, for instance, certain characteristics. In this case
an individual who was white male, approximate age, the fact
that he had balding hair, the type and shape of his face. They
would put those characteristics actually into the computer and
the computer would generate a number of photographs that
would fit that particular type of description.
And then the computer, basically they would take out those
photographs that would fit that description that was generated
39a
if it was here through a report or if it was, for instance, an
individual giving a description to an individual drawing in a
police department, certain generated type of characteristics.
Based on that, then the officers would be just pulling out
photographs.
THE COURT: When you say “pulling out photographs,”
from where?
MS. BRAZZEL-MASSARO: From the computer. That’s
how it was done. Either Detective Borona or Detective De-
Pietro indicate that the photographs were randomly [17]
picked. Eight photographs were picked in this case that fit the
description that they put in. And then what they did was take
from the computer-generated photographs those eight photos
and provided them to Mr. Saleem for him to view.
So it was not actually going through case files, it was a
computer-generated photograph that came out based on the
description. And I think that’s what their affidavits indicated
in support of our motion, Your Honor. That’s what they were
talking about, the photo base. They talked about the photo
database system, which is what they did.
THE COURT: Do you have any evidence to the contrary,
Mr. Ginzberg?
MR. GINZBERG: No.
THE COURT: That’s an important point, I think, if what
you were suggesting is that when they went to the file to pull
the photograph out, they should have at least seen other
things in the file. It appears that it’s not—there’s no evidence
to dispute the defendants’ position that they literally didn’t go
to a file and open a file.
So I think we are back at a situation where they had these
characteristics, they plugged the information in, and the
computer generated photographs and they got a [18] positive
identification from the victim.
40a
And at that point I don’t know why there wasn’t probable
cause for the arrest, because they used that information to
obtain an arrest warrant from a judge.
MR. ,;GINZBERG: Based upon what they did up to that
point of time, there is an argument to be made that 7 there
was probable cause. If one takes the viewpoint that—
THE COURT: Well, you say there’s an argument to be
made that there’s probable cause. Can you cite authority for
me that there was not probable cause?
MR. GINZBERG: I don’t have authority to that point.
THE COURT: Well, why don’t you give me your analysis.
If you had been writing an opinion that you wanted to cite,
what would your analysis be as to why there was not probable
cause?
MR. GINZBERG: Because if they withheld information, I
think there is authority to the point of view that if you
withhold information, that that would remove probable cause.
By information, I’m referring, specifically to the videotape.
THE COURT: Well, at the point that they are obtaining the
search warrant, I don’t understand your argument about them
withholding the videotape because it [19] seems to me all the
things that are significant about the videotape become
significant in hindsight, not in terms of—I mean, when the
officers looked at the videotape, first of all, in the initial
viewing, it was difficult to see things. That’s why they went
over to the hospital to get the photographs. And they still
weren’t terribly clear in terms of his —at least the ones I
looked at in the papers, they weren’t particularly clear in
terms of his arms. And the person’s wearing a towel around
his neck.
MR. GINZBERG: Well, I dispute any conclusion that it
was unclear to the police officers. I posit to the Court that it
was very clear if you look at the videotape. The towel only
4la
hid the neck, it did not hide the arms. And if one only looks at
a small snippet of the videotape and from that makes a—
prints out one photograph, black and white photograph, I
agree that you would see only as much as you saw or
permitted yourself to see. But if you spent the time and
watched the videotape for as long as the perpetrator was in
the convenience store, it would become apparent to anyone
watching the videotape that he was flashing his arms in front
of the surveillance camera. So if you go beyond an initial
period of time when the perpetrator is in view to the point in
time where the perpetrator walks in and around [20] and back
out to the cashier’s table and he flashes his arms which don’t
have any towels, that argument loses credibility that it was
somehow unclear and goes into the area where I believe the
law is that an officer cannot 5 rely upon his subjective belief;
rather, it’s what a 5 reasonably objective police officer would
think when looking at the videotape.
THE COURT; You're collapsing two things there, though.
You’re collapsing what are, the facts and circumstances that
were known to the officer, and then what is the test you apply
in evaluating the officer’s conduct. And at this point I’m
focusing really on what was known to the officer.
The officer—at the point that the officer looked at the
videotape and got the information to get the computer-gen-
erated photographs, it seems to me it’s reasonable to put—as
I understand it, the computer program mug shots or mugs,
they’re not waist up. So to put in the information that shows
the face and then have the eyewitness come in and say they’re
a hundred percent certain that this is the person, .that’s how
the officer proceeded. The officer could have done a lot of
other things. He could have said, Well, Officer Rosa’s report
says the person had blonde hair. The videotape appears to
show someone who’s bald. I think it’s blonde crew cut is [21]
what Rosa’s report says. But the officer’s entitled to De-
42a
Pietro’s report I think says that the witness told him the
person had a shaved head.
So at this point it seems to me that what the facts show are
that DePietro sat down, he had a picture the person, he got
computer-generated photographs with those facial character-
istics. The witness positively identified the person as the
person who robbed him. And he obtained an arrest warrant
based on that positive identification.
MR. WEINSTEIN: But that’s a missing link. In order to
get the warrant, they had to have a name, a jacket number, an
address. If it was just the face, somebody would have had to
have done something to connect a person to that face. A
person with a prior jacket, a prior number, who had been
arrested by Rosa, and who had then physical characteristics,
6’-1”, 210, as opposed to the original description. At that
point any moderately competent police officer would have
said, “Wait a minute. The description given by the victim
is so grossly different from the description of the person
whose face got picked out, size, mass, the tattoos.” Anybody
with any competence would have said, “Maybe we better
check this.”
So it was not getting the picture and having [22] probable
cause because, yeah, he looks like that. It’s once they got that,
they took that information and did get the database, Exhibit 2,
which at that point should have told them that they should
have done something else than just tell the judge disregard the
height, the weight, and the tattoos.
THE COURT: Well, the other problem we have with your
talking about when the officers were before the judge is—I
mean, I’ve never practiced criminal law in state courts, but it
was my impression that it isn’t the police officers who come
in but it’s the State’s Attorney who comes in and—
43a
MR. WEINSTEIN: Based on what the officer tells him.
That’s why we have a statute that says you’ve got to give this
information to the officer.
The State’s Attorney simply presents the affidavit of the
officer. When the officer got the visible ID from the victim,
he then went and pulled the jacket. How else would he know
the name? How else would he know the address? They got
the jacket. That jacket, Exhibit 2, clearly contains the infor-
mation that demonstrates there were King Tut tattoos and that
this man in every other way did not match. At that point the
officers knew or ought to have known that they had the
wrong man.
[23] THE COURT: Because they find a jacket that shows—
MR. WEINSTEIN: A jacket that shows—
THE COURT: —that he had tattoos?
MR. WEINSTEIN: That’s Exhibit 2 to our—opposing
summary judgment.
THE COURT: Yes, I see that.
MR. WEINSTEIN: And it’s Officer Rosa. And it says “left
arm King Tut tattoos.”
And so the—at this point in order to get the warrant, you
put dewn a description of who you’re going after. And it
never occurred to them that they ought to have the description
match. That, I think, is where—
THE COURT: At that point why do the officers have to go
through—if they have a name and positive identification and
they know they just have to find out where to get the person,
why are they obligated to do anything other than to just get
the information they need to go out and pick up the person?
MR. WEINSTEIN: I think a jury could find that in order to
get the name, the name had to come from a record. They had
an address. That wasn’t generated with a picture. A jury could
44a
find—and it is for the jury to find—whether or not at that
point the gross difference in physical characteristics aside
from the tattoos should [24] have alerted them and at that
point they failed—
THE COURT: We don’t get to a jury unless we first pin
down the question of whether the officers had probable cause.
And I don’t have any authority for the proposition that the
officers didn’t have probable cause.
It’s clear that it’s a terrible situation that happened to Mr.
Russo, but that doesn’t mean the officers didn’t have prob-
able cause.
I’m also very troubled by the fact that he gets to his
arraignment, he says—I think he told his lawyer, if I’m
reading the defense papers correctly, that there’s a video and I
presume or would infer that he told his lawyer that the video,
that’s great, because if you look at it, you’ll see it’s not me.
Yet there’s no request for the video. I mean, there’s no
hearing before the judge. And at this point, the people who
really have the best information about what the video will
show are Mr. Russo and his counsel, not the police officers.
MR. WEINSTEIN: No, because counsel filed the regular
Practice Book motion for-production of exculpatory evi-
dence, which the prosecutor could not have complied with
and didn’t because the exculpatory evidence was locked in
the drawer of DePietro’s desk.
THE COURT: You can’t—
MR. WEINSTEIN: Also the fact that the following [25]
day or second day after, there was, according to the plaintiff,
an interview, an interview carried on by DePietro and Borona
in which the plaintiff said, “Look at my arm, look at the other
guy. It can’t be me.”
They go out, come back in a little while and pretend that
they looked at the videotape and said, “No, we measured,
45a
they’re the same. I'll tell you what. Cop for three years, we’ ll
give you a break.” And he refused to become a victim of that
attempted extortion knowing he was innocent.
At that point any jury to be able to determine whether
to believe Borona, even if you give the police the first
two days—
THE COURT: You’re arguing facts. I want to know why
there—at that point he’s been arrested, pursuant to the arrest
warrant.
MR. WEINSTEIN: According to what Judge Nevas de-
termined in—
THE COURT: You have not addressed why there wasn’t
probable cause for the arrest, first of all. And now you’re
arguing an additional point, which is that when the person
whose’s been arrested provides an explanation as to why
they’re not guilty, the police officers violate that person’s
constitutional rights when they don’t go out and investigate
the claims made by the person who’s been [26] arrested. I’m
sure we all wish that that had been done here, but the fact that
we think it would have been a good idea doesn’t mean it’s the
law that police officers are required to do it.
MR. WEINSTEIN: But they lied to him and said they did
investigate and the perpetrator had the tattoos. That goes
beyond the proposition that Your Honor’s suggesting. He
says, “Look at me, I’m innocent, look at my tattoos.” They go
out and say, “Okay, we checked., We even measured with a
ruler the data.” And came back and lied to him and tried to
extort a confession out of him knowing they were lying if you
believe what was said.
And it’s for a jury to determine whether or not the—
THE COURT: You’re jumping way—you’re being pre-
sumptuous when you argue it’s for a jury to decide when
we’re here on a motion for summary judgment and I’m
asking you about probable cause. I think you—
46a
MR. WEINSTEIN: They have a continuing obligation to
disclose exculpatory material. And if the police officers saw
the tattoo, which is—you can’t miss. And the man says,
“Look, it can’t be me, take a look at the tapes.” At that
point—at that point an affirmative obligation under the statute
to do something more than just ignore their own—the City’s
own records [27] showing the gross physical description.
Because if that’s not the case—
THE COURT: Where are you finding this affirmative obli-
gation, under the exculpatory evidence statute, Connecticut
statute?
MR. WEINSTEIN: Yes, that’s their duty.
And also it was made quite explicit by Judge Nevas in his
decision on a motion for summary judgment in the Murvin
case.
THE COURT: I read the Murvin case, it doesn’t help you
at all here. Sorry. That’s my—
MR. WEINSTEIN: In possession of information after the
fact that contradicted—
THE COURT: Murvin is not this case.
First of all, I mean, you’re saying this tape which was
viewed by the officers clearly showed that Mr. Russo had
these tattoos, but the only evidence I see in this record is that
even the prosecutor in the state court action when the parties
were in state court did not agree that the tape exonerated Mr.
Russo nor did the state’s investigator, Mr. Donovan. Mr.
Donovan’s affidavit states that—I think it was Mr. Mirsky
who was the attorney for Mr. Russo told Mr. Donovan that
this tape clearly shows it’s not Mr. Russo. And Mr. Donovan
says, “I cannot agree that the tape shows it’s not Mr. Russo.”
[28] Then when they were in court, I don’t remember the
name of the state prosecutor, but I believe Mr. Russo at his
deposition testified that this issue came up in court before the
47a
judge, I assume, and the remark from the prosecutor was, “A
jury will have to decide that.”
So what we have, in contrast to that, are your arguments
about what the officers should have tumbled to. But what we
have in evidence is the people that were actually involved at
the time did not see the tape as exonerating Mr. Russo. The
prosecutor was still proceeding with the prosecution.
MR. WEINSTEIN: Ham and Gooden boih address some
of the situations where “I was at work, check my work
records” —
THE COURT: Id like to talk about what I’m talking
about, the facts of this case.
MR. WEINSTEIN: Yes.
THE COURT: The facts of this case are I believe as I
stated them. We have your arguments that you want to put
before a jury. But what I have to look at is: What is the
evidence that’s in the record now?
MR. GINZBERG: Up to September 18th. Your Honor, up
to September 18th when the arrest was made, the point that
you’re making is probable cause. But at the point after the
arrest was made and Mr. Russo was in [29] custody, there
became a different burden upon the police, because at that
point Mr. Russo—
THE COURT: If I can compartmentalize this. Are you
conceding there was probable cause?
MR. GINZBERG: I am conceding, for purposes of this
discussion, that there was probable cause.
THE COURT: Okay. But you’re not giving me any—what
I hear you saying is you’re not conceding for purposes of the
motion—
ak
MR. GINZBERG: Right.
48a
THE COURT: —but just this part of the discussion?
MR. GINZBERG: Right.
THE COURT: But you haven’t given me anything that
would show that there was not probable cause.
MR. GINZBERG: Right.
THE COURT: That’s my conclusion, just so we’re clear.
Okay.
Now you want to talk about after September 18th.
MR. GINZBERG: I concede that point for purposes of our
discussion. Obviously an arrest was made.
But I think the focus of this case, the most important part
of this case really is what happened after Mr. Russo was
taken into custody. It was after the custodial arrest that Mr.
Russo then had this [30] interrogation that occurred on
September 18th. And during this custodial interrogation, he
had an opportunity, once again, to make his point to the
police officer. The police officer said to him, “We have the
tape.” And Mr. Russo said, “Well, then you must know that it
couldn’t be me. Because what did the perpetrator have on his
arms: Did he look like me? Did he have tattoos on his arms?”
And that’s really the more important part of the case
because it’s really from September 18th on until April where
Mr. Russo was in custody. And at that point the individual
defendants, the City was on notice that there was a claim of
unreasonably lengthy detention by virtue of the tattoos.
THE COURT: At the point that Mr. Russo is in custody,
who’s the decision maker in terms of what happens to him?
MR. GINZBERG: The court.
THE COURT: I thought he was in custody and he had to
be arraigned. He was in custody but there had to be an
arraignment to determine whether he should be detained or
not.
49a
MR. GINZBERG: Right.
THE COURT: I hope I’m getting the terminology right.
MR. WEINSTEIN: Not an arraignment. This was [31]
based on information, based on affidavit and warrant.
THE COURT: He was presented and arraigned the next
day, what do you call that? The court proceeding on the 19th?
MR. WEINSTEIN: It was—
THE COURT: What was the court proceeding on the 19th
of September?
MR. WEINSTEIN: They proceeded by way of the infor-
mation and he was arrested. And he was held in custody.
From that point on, there was a continuing obligation as a
matter of law—
THE COURT: I’m sorry, you’re not answering my ques-
tion. All I wanted to get to was from the arrest, they brought
him into headquarters and questioned him for a couple of
hours. But as I understand it, there’s some obligation that he
be presented before a judicial officer before he can be
detained further. And I was making reference to the court
proceeding on what I have been told was September 19th.
What’s that proceeding called in state court?
MS. BRAZZEL-MASSARO: Your Honor, I have it. It was
an arraignment.
THE COURT: An arraignment. So he was arraigned.
And at that point, it appears to me, at least, [32] that the
judge is making the decision based on the arguments received
from the prosecutor and defense counsel. And | agree with
you defense counsel—I’m sorry, the prosecutor is basing his
or her decision on how to proceed on information that is
obtained from the police officers. But it’s the two lawyers
arguing to the judge. And the judge made the decision to
detain.
50a
MR. GINZBERG: But how can the judge—again, I’m not
disagreeing with your point about the probable cause, I’m
moving on to a different point, as you say, compartmentalize
the separate point.
Once the judge hears arguments and there has been a
disconnect between what the police officers are giving to the
prosecutor—I’m talking about September 19th as there was in
this case—the judge doesn’t have any discretion at that point
to disagree with the State’s Attorney’s Office.
There was a continuing obligation beginning on the 18th
and continuing to the 19th to go back and look at that video-
tape and determine, based upon the police officer’s investi-
gation, whether it was right. Don’t forget—
THE COURT: Well, Mr. Russo is sitting there in court in
front of the judge and the prosecutor with the defense
attorney. Mr. Russo, as I understand it, told his [33] lawyer at
the first appearance, “You can show it’s not me because I
have these tattoos. And it’s unlikely anyone else will show up
on the videotape with these type of tattoos.” It seems to me if
that were the situation in this courtroom, I would expect to be
hearing from the defense counsel, “Look. Look at the video-
tape. My client has these tattoos. It’s unlikely anybody else
has tattoos like this.” And the prosecutor would be hearing
that too. And they would look at Mr. Russo and they would
say, “Well, it seems to me that’s something that ought to be
explored.” But at that point it’s not the officers who are
running the show, it’s the prosecutor and the judge who are
having this discussion.
MR. GINZBERG: But at that point the police are telling
the prosecutor that the perpetrator has tattoos just like Mr.
Russo because they conducted this interrogation where they
were measuring the tattoos to make sure they were similar.
THE COURT: Where does the record show that the police
officers told the prosecutor that the person on the videotape
has tattoos like Mr. Russo?
5la
MR. GINZBERG: That does not—
MR. WEINSTEIN: If Your Honor please—
MS. BRAZZEL-MASSARO: Your Honor, there is no such
fact that has ever been stated. The only person who [34] has
said that was Mr. Russo. In fact, the testimony of the officer
is very—at least in the deposition was vet: different from that.
THE COURT: I’m not talking about the conversation in
the interrogation room. Mr. Ginzberg made a reference to the
officers are telling the prosecutor.
MS. BRAZZEL-MASSARO: Your Honor, if you look at
the affidavits that were submitted by both officers, they indi-
cate after the arrest of Mr. Russo they never saw him again or
had anything to do with the case, in fact, until they met him
here one day at a status conference. So that they had nothing
to do with it once it went to the State’ Attorney’s Office with
the file.
The file indicates that there’s a warrant and the warrant
shows that there’s a videotape that was provided, but there
was no conversation between the State’s Attorney and the
police officers that has ever been indicated in any testimony,
evidence, anything of that nature.
MR. WEINSTEIN: If Your Honor please, Exhibits and 6
describe what the police knew at the relevant time. Exhibit
ee
THE COURT: I think I asked Mr. Ginzberg—lI asked Mr.
Ginzberg about a specific statement. You’re going to some-
thing else. Can we finish with that first?
[35] MR. GINZBERG: Yes.
THE COURT: My question was—
MR. WEINSTEIN: But the tattoos—
52a
THE COURT: —I believe you made a reference to the—I
think you made a reference to the state prosecutor being told
by the officers that the person on the videotape had tattoos.
MR. GINZBERG: I’m assuming that, Your Honor. Be-
cause there seems to be, in my opinion, a fact question here as
to why the prosecutor wouldn’t tell the judge that there was
an issue with regard to the tattoos. It seems to me that a
reasonable prosecutor, knowing that there was a videotape
and a claim of tattoos, would have instructed the judge that
there was exculpatory evidence here and we need to take a
closer look.
THE COURT: But you can’t assume that for purposes of
this motion.
MR. GINZBERG: I think it’s a fact question that needs to
be resolved in favor of the plaintiff.
THE COURT: It’s pure speculation under the summary
judgment standard.
MR. GINZBERG: It’s not. It’s a factual issue, Your Honor.
I beg to differ with the Court.
MR. WEINSTEIN: Your Honor, if you look at Exhibit—
[36] MS. BRAZZEL-MASSARO: That issue has never—
THE COURT: Excuse me, we’re stopping.
Mr. Weinstein, please sit down. I’d like to hear Ms.
Massaro respond to that point.
MS. BRAZZEL-MASSARO: Your Honor, that issue has
never been raised. During the entire deposition of Officer
DePietro, that question was never asked of him. In fact, I
believe he was asked questions about his contact with anyone
after this, and he indicated there was no contact, Your Honor.
So he had, in his deposition testimony, indicated that there
was none. So I don’t know where we’re suddenly coming up
with this as a fact question. It was never alleged in the
53a
complaint, it was never addressed in the deposition. Today
for the first time we hear this statement that the officers went
to the prosecutor telling them that the individual in the
videotape had tattoos. That has-never been raised.
THE COURT: I think it’s been described as an assumption.
Mr. Weinstein, you had a point?
MR. WEINSTEIN: Yes.
If Your Honor please, Exhibit Number 5 attached to the
56(a)(2) statement is dated September 18, 2002, and it is the
report on Mr. Russo from the police department. 6:20 that
morning, the date of the arrest, he was charged [37] with
robbery first degree on a warrant. At that point—at that
point—the notation is made “tattoos right neck, left neck,
right forearm, right hand, left hand.” And the description of
him is 6 ft., 200 pounds.
Compare that—compare that—-with the description of the
perpetrator as being a white male 56” to 5’8”, medium build
with no mention whatever of any tattoos.
I respectfully submit, sir, at that point any competent police
officer at all would have known that there is a sufficient
discrepancy between the two to require some sort of inves-
tigation, especially the following day in view of the protes-
tations “Look at me, look at my tattoos.” And that’s why
there was no probable cause to continue. And there was an
affirmative burden to tell the magistrate that there was
exculpatory information here and to investigate.
MS. BRAZZEL-MASSARO: Your Honor, if I may, that
Exhibit 5 was the arrest report that was done, as you see, by
the arresting officer, Detective Martin. That was not some-
thing that was done by any of the officers here. , There’s no
information to indicate that any of the defendants in this case
were involved. That’s the paperwork that was done the day he
was arrested by Detective Martin. I don’t know what rele-
54a
vance it has to [38] this particular claim against these de-
fendants.
THE COURT: Did you have other points you wanted to
make, Mr. Ginzberg?
MR. GINZBERG: Not at this time, Your Honor.
MR. WEINSTEIN: If I may make one, sir?
THE COURT: Yes.
MR. WEINSTEIN: The reason that Inspector Donovan and
the State’s Attorney’s Office had the enhanced photograph
made that exonerated Mr. Russo was that everybody agreed
the quality, the quality of the original videotape and even the
effort to enhance it at the hospital was too vague, it wasn’t up
to standards, nobody could be quite sure.
Under those circumstances, I respectfully submit the situa-
tion is no different than failure to check the time slip alibi as
in hand or the gross misdescription. There has got to be some
obligation, and there is in the Connecticut statute as well as
under the law that protects us from illegal imprisonment
where there is clear indication of a missing identification.
There’s some obligation to try to follow through.
Here actual knowledge on the part of the department, the
department records that had to be consulted clearly indicated
that the perpetrator did not bear a resemblance to Mr. Russo.
And that’s why, when the [39] police proceeded until finally
even those who were blind could see he was not the right
man, it cost Mr. Russo two hundred—
THE COURT: 213?
MR. WEINSTEIN: 217.
THE COURT: 217 days?
MR. WEINSTEIN: 217 days of his life.
55a
THE COURT: Did you want to address that, Mr. Brazzel-
Massaro?
MS. BRAZZEL-MASSARO: Your Honor, I only wanted
to make a couple of comments to correct some statements that
were made on the record.
I think Attorney Ginzberg indicated that the videotape was
in the drawer of Detective DePietro’s desk until April 2003.
Obviously, we know that that’s. not so since Inspector
Donovan did obtain that from him.
THE COURT: I believe it was November 25.
MS. BRAZZEL-MASSARO: Thaet’s correct, Your Honor.
November 19th was the date that he asked for it and actually
Detective DePietro was not in, he was a trainee at that time.
On the 25th he returned and received the tape, from Detective
DePietro at that time.
In addition, Your Honor, I did indicate that there was one
affidavit that addressed the computer generated, that was
Detective Borona who was able to [40] obtain it through the
computer. If you will review his affidavit, I believe—
THE COURT: Is that attached to your original?
MS. BRAZZEL-MASSARO: That was attached to my
original motion, Your Honor, I believe. And his affidavit is
actually Exhibit M.
THE COURT: Yes.
MS. BRAZZEL-MASSARO: And he indicates on the sec-
ond page of his affidavit how it was that they accomplished
getting the computer-generated information.
THE COURT: Give me a second to read that, please.
(Pause)
THE COURT: Okay, thank you.
56a
MS. BRAZZEL-MASSARO: And then lastly, Your Honor,
the only thing that I do want to refer to is one of the last
statements that was made by Attorney Weinstein regarding
Inspector Donovan and what he had to do.
Everybody agreed that the tape was of poor quality and
needed to be enhanced. And that is exactly what we’re talking
about here. And the April 23, 2003 transcript with Attorney
Benedict, I believe, was the state’s attorney at that time who
handled the matter, and I just want to quote what he indicated
after they had the [41] tape. He said, “We thereafter, having
heard about the tattoos on the arms, had still photographs
developed from the videotape. And from still photographs I
believe myself amongst other persons who had seen Mr.
Russo in the courtroom all were reasonably convinced, if not
completely convinced, that Mr. Russo was in fact the person
who appears in the still photos of the videotape taken at the
convenience store.”
Your Honor, I think that tells it all.
THE COURT: Yes, Mr. Ginzberg?
MR. GINZBERG: Thank you, Your Honor.
If | might, on that last point, I want to bring to Your
Honor’s attention that that argument by the State’s Attorney
Benedict was made in hindsight. The only statement he gave
was in April of ’03, and that was the date which he said, “The
less said about the case the better.” So he was reflecting on
photos that were presented some time ago. And the statement
really was what I would consider more or less a redoing of
past history on his part.
THE COURT: Although Inspector Donovan’s, as I under-
stand it, was not. His conversation took place with Attor-
ney Mirsky towards the end of, I don’t know, November,
January—
57a
MS. BRAZZEL-MASSARO: I think the letter was [42]
actually December 2 of 2003. There was a question as to the
videotape. Inspector Donovan indicated that he had questions
about the clarity of the videotape and sent it for an
enhancement to the state lab. It wasn’t until January of 2003,
I think it was January 23, 2003 that the videotape was re-
turned enhanced from the state lab.
And then it was some conversation thereafter, I think it was
in March was the last conversation that Inspector Donovan
had, Your Honor, based on his affidavit.
Your Honor, are you looking for the affidavit of Inspector
Donovan?
THE COURT: No, I was just looking for the photographs
again.
MS. BRAZZEL-MASSARO: Your Honor, I noticed it was
April actually when he actually sent the last letter. to the
correction center. I wanted to make sure | didn’t misstate.
April 21.
THE COURT: Okay. Is there anywhere in the papers—I
see Exhibit 7 to the plaintiff's opposition a series of photo-
graphs which are, I assume, the photographs that are from the
surveillance camera stills?
MR. GINZBERG: Yes.
THE COURT: Are those the ones that then were used to—
let me be more precise.
We have the videotape itself, Are these from [43] the
videotape or are these the photographs that were prepared by
the officers when they went to the hospital tc get the prints
made?
MS. BRAZZEL-MASSARO: No, those are not the photo-
graphs that were prepared by the officers. I think 1 provided
the originals.
58a
THE COURT: I don’t mean the photo array.
MS. BRAZZEL-MASSARO: The, photographs, yes, I did
provide those to the Court also. I think I have with me copies
of what the State’s Attorney had as the photos, which is really
four quadrant-type photographs, Your Honor. It’s not done in
this fashion.
If I understood the memorandum of the plaintiff, these
photographs are actually the photographs that they had done
through their videographer. So they were not the actual
photographs that were available to the officers nor to the
State’s Attorney.
I believe if you look at my Exhibit O, that it has a series of
photographs. I think I provided the Court with the originals
of those.
THE COURT: Yes. I actually am working with the cham-
bers’ copy.
MS. BRAZZEL-MASSARO: And I do have another series
from the State’s Attorney’s Office which are very similar to
these, Your Honor, also.
[44] THE COURT: I'll make one observation which I don’t
think is a material fact for purposes of the probable cause
issue, but it’s something I don’t think I’ve mentioned in terms
of some of the other arguments that have been made.
We do have the fact that the person who robbed the
establishment had this towel around his neck. And my recol-
lection is that, as you got further into the case, some of the
people on the prosecution and law enforcement side viewed
that as a circumstance that could suggest they, shouldn’t put
as much weight on Mr. Russo’s version of events as they
might otherwise, because the towel would obscure any no-
ticeable tattoos that he had around his neck. I was reminded
of that when I saw this.
59a
I don’t think that’s a material fact for purposes of the
probable cause analysis, however, because I still come back
to the fact that you had the video surveillance tape used to
produce a photograph. Those photographs were put into the
computer which generated a lineup. A witness came in and
made a positive identification, hundred percent positive
identification, after having said the witness would be able to
identify the person if he saw him again. Based on that, an
arrest warrant was obtained and the arrest was made pursuant
to a warrant, not by any of these defendants, by the way.
[45] So as to false arrest, I really don’t see any genuine issue
of material fact. And it seems to me there was probable cause
for the arrest and therefore there is no—well, therefore there’s
no constitutional violation and the defendants are entitled to
judgment as a matter of law on the probable cause on the
false arrest claim.
MR. WEINSTEIN: But as to false imprisonment from the
time they knew or ought to have known that they had the
wrong person because of the police records, because the arms
of—the perpetrator didn’t have his arms covered. And be-
cause of the facts in which they were obliged by Connecticut
law to disclose if they had bothered to look, the false
imprisonment I think was here.
I would respectfully call Your Honor’s attention to the fact
that as far as DePietro, who was the top man on the case, is
concerned, he had no idea what exculpatory evidence was or
meant.
If Your Honor would be good enough to look at our
56(a)(2) statement, September 10th. We have a transcript. It’s
Exhibit 3 of the deposition of DePietro. And I asked the
question: “And during the course of your career as a police
officer from the time you first were hired until today, has
anyone ever told you that if you encounter exculpatory
information on a case you have been investigating, that you
60a
have an obligation to inform the [46] State’s Attorney in
charge of the prosecution of that ca of the existence of the
exculpatory, information?” Answer: “Specifically, no.”
Then I asked: “Did anybody during the entire course of
your training as a police Officer ever indicate to you that
there was a state statute which says you have an obligation to
inform the State’s Attorney in charge of the file—who are in
charge of the prosecution of the case you investigated of any
exculpatory information as soon as you learn it?” Answer:
“Specifically has anybody specifically told me that? I’m not
sure. I couldn’t answer.”
The chief investigator on this case had no idea, first of all,
even what exculpatory information was and then that if he
encountered it he should turn it over.
I respectfully submit, sir, that the law in this district, as
expressed by both Judge Goettel in the Calovine case and by
Judge Nevas in the Murvin case, is that if exculpatory ma-
terial is learned after the initial arrest, there is an affirmative
duty constitutionally under the fourth, quote, procedural
substantive due process and under Connecticut law to call
that to the prosecution or the magistrate. Because otherwise
innocen people can be locked up indefinitely until time of
trial and nobody cares under the law. That is not the law.
[47] THE COURT: Now you’re amending your complaint,
though.
MR. WEINSTEIN: I’m sorry, sir?
THE COURT: Now you’re amending your complaint.
MR. WEINSTEIN: No, sir.
THE COURT: You don’t have a procedural or—you made
reference to procedural and substantive due process.
MR. WEINSTEIN: We have paragraph 34 of the Second
Amended Complaint, as a result of the violation of plaintiff's
6la
civil rights, his false imprisonment, false incarceration, he
suffered the following damages. That’s paragraph 34.
THE COURT: So you’re not making a procedural due
process claim.
MR. WEINSTEIN: I’m making both. But we have made
the false imprisonment claim. And that false imprisonment
occurred when they knew or ought to have known that there
was information which contradicted the information they
gave to the judge and never disclosed that. It’s not fair to the
magistrate.
THE COURT: In your analysis, when did the false impris-
onment commence and when did it end?
MR. WEINSTEIN: Oh. It ended when the charge was dis-
missed, That’s the easy one, False imprisonment [48] ended
on April 23, 2003.
It commenced, I respectfully submit, at least the day of that
interview, the following day I guess the 20th, maybe the 19th,
the day of the interview when they saw the tattoos.
By that time, it’s very difficult to’ believe the chief inves-
tigating officer was totally oblivious to the record of the man
that he had arrested. He knew about the tattoos before. There
was no indication of any tattoos on the arms in any of the
photographs. And he then says, “Look, cop a plea.”
THE COURT: Let’s have Ms. Massaro address that false
arrest. Is that addressed in your papers, Ms. Massaro?
MS. BRAZZEL-MASSARO: Your Honor, we were not
aware that there was a false imprisonment claim. We thought
it was unreasonable detention claim, which is what I think
Attorney Ginzberg indicated in the beginning of his argu-
ment. I suppose at this particular time we’re no aware that
that was a claim that was made.
62a
However, I think that even if you look at the facts in this
case, that that claim, cannot survive either
But let me just go back to the initial statement about what
Detective DePietro testified to in the deposition. I think that
Attorney Weinstein, [49] unfortunately, has chosen certain
questions and answers and not provided the Court with a full
response of Detective DePietro during the course of that dep-
osition when he was asked on at least three separate occasions
regarding exculpatory evidence and was even asked to define
what he thought was exculpatory evidence on page 13 of the
deposition. I think that’s one of the exhibits that the City has
provided to the Court. And then thereafter was asked a little
bit more about exculpatory evidence, and I think that was part
of the City’s exhibit. It was pages 72, I believe, 75 through 77
again when he was asked at his deposition about his training
and exculpatory evidence where he indicated he got specific
information about exculpatory evidence and what he was to
do with it.
Let’s go back to the claim whether or not there was false
imprisonment. There’s been no claim in this case that these
officers falsely imprisoned Mr. Russo And in fact, if you find
that there was probable cause to arrest him on September
18th, 2002, and he was then arraigned on September 19,
2002, and the Court was to make a determination as to
whether or not there was sufficient information to hold him
and what the bail would be, then there is no false arrest of Mr.
Russo.
THE COURT: You mean no false imprisonment.
[50] MS. BRAZZEL-MASSARO; No false imprisonment,
I’m sorry, of Mr. Russo.
In fact, that’s what the court did. And bail was set at
$100,000 I believe on September 19th based on this arrest
_and also some other arrests that he was involved in because
he was on probation, as I understand it, at that time. So that
63a
there’s no false imprisonment that would be connected
specifically to these particular defendants at that time, Your
Honor.
THE COURT: I agree.
MR. GINZBERG: If I may, Your Honor, I’m just pointing
to the Court the second count which alleges false impris-
onment.
THE COURT: I’m really focusing on the federal claim at
this point.
MR. GINZBERG: Well, the federa! claim is incorporated
by reference into the second count because paragraph 3—
THE COURT: I don’t disagree with you, but I’m really
focusing on the federal claim. Because if I don’t have
jurisdiction over the federal claim, I’m not going to keep the
state law claims.
MR. WEINSTEIN: Your Honor, I suggest that it is a
federal failure, a federal constitutional violation to know or
ought to know that a perpetrator is 5’6” and slim [51] build
and to be aware of a description of a 6’1”, 210-pound man
and not tell the court that discrepancy is irrelevant when you
make the decision to issue the warrant. And if you don’t
discover it until the next day or the day after, there is a
continuing obligation to inform the court and the prosecutor
that you’ve got the wrong man.
And to establish the precedent that the police can simply
disregard information which they either know or ought to
know after an arrest and wait months until the case comes to
trial before innocent people are turned loose is not in accord
with the Constitution, which is exactly what I think the
defendants are claiming they have a right to do.
THE COURT: I don’t understand that they’re claiming to
have the right to do that. I understand they’re claiming that
if they have them—well, | won’t go through the facts again.
They had probable cause. And they proceeded.
64a
MR. WEINSTEIN: To arrest, but not to continue to detain.
That’s the point. Probable cause to get the warrant is one
thing. Probable cause to act or fail to act in such a way to
maintain the imprisonment of a man that probable cause
alone applies to, that’s what we’re basing on.
[52] THE COURT: Well, I guess I’ve given you my con-
clusion that there are no genuine issues of material fact as to
the claimed false arrest and the defendants are entitled to
judgment as a matter of law.
I also said I agreed with Ms. Massaro’s analysis in terms of
false imprisonment because the plaintiff was arrested pur-
suant to an arrest warrant—
MR. GINZBERG: Just one point, Your Honor? I’m sorry.
THE COURT: Let me finish this and then I'll hear you.
—and he was presented before a judicial officer who
concluded that he should be detained.
So I don’t see any genuine issues as to false imprisonment
either. I think the defendants are entitled to judgment as a
matter of law on that part of Count One as well.
MR. GINZBERG: On that point on Count One, Your
Honor, the false imprisonment, there is authority for the
proposition that the Fourth Amendment does apply to the
point in time between the arrest but before the trial And the
cases that I have in mind are Sanders vs. English 950 F.2d
1152, a Fifth Circuit case, and Jones vs. City Chicago, which
is a Seventh Circuit case. And to conclude that just because
there was probable cause and then sweep [53] into the next
issue that that rules out a Fourth Amendment claim for
unreasonably lengthy detention I feel gives short shrift to that
second claim of the unreasonable length.
THE COURT: But I believe what you’re arguing is, first of
all, that the—two things: First of all, that the videotape
showed and that the defendants knew that the person on the
65a
videotape did not have tattoos on his arm. And we don’t have
any evidence that would create a genuine issue of material
fact as to that point. All the evidence in the record is to the
contrary.
And secondly, you’re arguing that—you’re arguing that
assuming that you win on the first point, which I think you
don’t, the officers have an affirmative duty to go out and
investigate claims that are put forth by the person who’s been
arrested—in this case, the plaintiff, Mr. Russo—while the
court proceedings are going on. And I believe that—can’t
remember the name of the case, but there’s a case cited in the
defendants’ papers that I believe stands for the proposition
that once the arrest is made and certainly once you get to the
point of the arraignment and there’s a detention by a judicial
officer, the police officer’s job is done. They don’t have
obligations.
Do you remember which case that was, [54] Ms. Massaro?
MS. BRAZZEL-MASSARO: Your Honor, I don’t, but
have a case Shattuck vs. Town of Stratford, 233 F.Supp.2d.
301, which was a decision by Judge Droney on November 13,
2002. But I don’t think that that was the case I cited in my
brief.
THE COURT: I printed those cases out. I just have so
many papers here on the bench I can’t put my hand on it.
It is cited in the defendants’ papers.
MS. BRAZZEL-MASSARO: Yes; Your Honor, Williams
vs. the City of New York.
THE COURT: Yes. The Williams case. That’s what I’m
thinking of.
MR. GINZBERG: I guess the Court is—
THE COURT: I’m going to—your question?
66a
MR. GINZBERG: My question is: Does that mean that the
Court is not going to consider the Sanders case that I cited
where the police officer found exculpatory evidence after
the arrest and the Jones vs. City of Chicago case in which a
police officer kept street files, quote/unquote, they were
called street files?
THE COURT: No, it doesn’t mean I’m not going to con-
sider those cases. It means, as I stated a moment ago, that I
don’t think you’ve created a genuine issue of [55] material
fact as to whether the officers knew they had exculpatory
evidence until the tape was enhanced. And at that point, in
fact, the officers weren’t involved in the case; it was in the
hands of the state investigator, Mr. Donovan, and the prose-
cutors. I just don’t think you’ve created a factual issue as to
whether the officers were aware of exculpatory evidence.
It’s undisputed that the tape was unclear. So I’m not
ignoring those cases, I just don’t think you’ve put forth
evidence that creates an issue for trial as to whether they
knew they had exculpatory evidence.
MR. GINZBERG: I’m a little stunned because I thought
that the videotape is clear in what it shows and Your Honor is
saying that it’s not clear, that Your Honor is assuming—not
assuming, I said the wrong word. Your Honor is taking the
point of view of what the police officer believed on Sep-
tember |8th.
THE COURT: I guess what I’m looking at is what I have
in front of me as evidence in the record. And what I have as
evidence in front of me in the record is the statements by
everyone who looked at the tape prior to it being enhanced to
the effect that the tape was unclear and it needed to be
enhanced, which was done in January or—
MS. BRAZZEL-MASSARO: January.
67a
THE COURT: Around the January time frame. And [56] it
needed to be enhanced because it was unclear.
And at that point I believe the tape being enhanced and
showing that there are no tattoos on the arms of the person
who committed the crime, it’s clear that that’s exculpatory
evidence. But before then, it’s not exculpatory evidence. And
there’s no evidence that any defendant in this case had a basis
for knowing that.
MR. WEINSTEIN: Except for the gross difference in
physical appearance, the 6’1”, 200—
THE COURT: We’re talking about the tape now.
MR. WEINSTEIN: I beg your pardon?
THE COURT: I’m dealing with the tape now and want to
make sure I’ve finished with that. You want to come back and
talk about the physical appearance, we can talk about that
next.
So my answer is, I’m not ignoring those cases. I’m just
saying the point in time at which there is a discovery that
there’s exculpatory evidence is in January. And at that point
none of these defendants are involved in the case.
MR. GINZBERG: And I guess—
THE COURT: In the criminal case, that is.
MR. GINZBERG: So Your Honor is saying that what the
police officers’ subjective opinion was about what the: tape
showed really governs.
[57] THE COURT: No. Because it wasn’t just the officers.
The question is: What does the evidence in the case show
was discernible from the videotape? And the evidence in the
case is the statements of the officers. I have the tape, a cutout
from the tape here myself. I also have the statements of Mr.
Donovan, the state inspector, and I have in the record before
68a
me the statements of the prosecutor. And that’s the only
evidence that I have as to what you could discern from the
tapes. With that evidence, the only conclusion that you can
draw is that you cannot tell that the person who robbed
the store did not have tattoos based on that surveillance
videotape.
MR. GINZBERG: I think that Your Honor said that we
were going to deal with the videotape and what the officers
believed on September 18th about that videotape. And now
Your Honor’s going into the Donovan portion of the case
which came about in January of 03.
THE COURT: I only went there in response to your
question.
MR. GINZBERG: I attempted to discuss what Your Honor
raised, which was let’s deal with the videotape. And the
statement that I made to Your Honor for comment was,
“You’re taking the police officers’ subjective opinion about
what the tape revealed as of [58] September 18th, ’02.” And
Your Honor said, “No, I’m considering the Donovan portion
of it.”
The Donovan portion of it didn’t come about until January
of ’03. I think the Donovan portion of it is irrelevant to our
discussion now about the videotape. I’m talking specifically
about the videotape. And what I’m hearing from Your Honor
is that you’re taking the position that the police officers’
perception of those videotapes is what governs.
THE COURT: No. The question I thought we were
discussing, the argument that was made which was that there
was a duty to disclose information that exonerated Mr. Russo.
That’s where this part of the discussion started. And my
analysis was that there was no indication that there was
evidence that exonerated Mr. Russo until the enhanced
tape was prepared in January of 2003. That’s what we were
discussing.
69a
MR. GINZBERG: Okay. Within that compartment, the
only way that Your Honor could come to that point of view
would be by looking at the videotape. And on September 18,
‘02, if one were to look at the videotape, one would have seen
exonerating evidence. And that was not turned over.
THE COURT: What’s your factual basis for saying that—
point to me, point out to me something in the [59] record that
supports that conclusion. That’s where I’m hung up on
accepting your argument. What’s in the record that supports
that conclusion?
MR. GINZBERG: That the videotapes shows—
THE COURT: Was exonerating evidenc
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