Connell v. Signoracci

• Decision Date: 21 August 1998
• Docket Number: Nos. 96-7955,s. 96-7955
• Citation: 153 F.3d 74,1998 WL 518376
• Parties: Robert S. CONNELL; Valerie Ann LaPointe, Plaintiffs-Appellees, v. Robert SIGNORACCI, Mayor and Commissioner of Public Safety of the City of Cohoes; Frank Valenti, Chief Investigator for the District Attorney, Albany County; Raymond William Heslin, Chief of Police, Police Department, City of Cohoes; Stephen Carmel, Building Code Enforcement Officer, City of Cohoes; James Ward, Detective Lieutenant, Police Department, City of Cohoes; Patrick Abrams, Captain, Police Department, City of Cohoes, each individually and in their official capacity, Defendants-Appellants, John Stackrow, Commissioner, Department of Public Works, City of Cohoes; City of Cohoes, New York; City of Cohoes Police Department; Keith J. Champagne, Director of Code Enforcement, City of Troy, each individually and in their official capacity, Defendants. (L), 96-9125 and 96-9455.
• Court: U.S. Court of Appeals — Second Circuit

Page 74

153 F.3d 74

Robert S. CONNELL; Valerie Ann LaPointe, Plaintiffs-Appellees, v. Robert SIGNORACCI, Mayor and Commissioner of Public Safety of the City of Cohoes; Frank Valenti, Chief Investigator for the District Attorney, Albany County; Raymond William Heslin, Chief of Police, Police Department, City of Cohoes Stephen Carmel, Building Code Enforcement Officer, City of Cohoes; James Ward, Detective Lieutenant, Police Department, City of Cohoes; Patrick Abrams, Captain, Police Department, City of Cohoes, each individually and in their official capacity, Defendants-Appellants John Stackrow, Commissioner, Department of Public Works City of Cohoes; City of Cohoes, New York; City of Cohoes Police Department; Keith J. Champagne, Director of Code Enforcement, City of Troy, each individually and in their official capacity, Defendants.

Nos. 96-7955(L), 96-9125 and 96-9455.

United States Court of Appeals Second Circuit.

Argued Aug. 28, 1997.

Decided Aug. 21, 1998.

Lewis B. Oliver, Jr., Albany, NY (Mark A. Edwards, Oliver & Oliver, on the brief), for Plaintiffs-Appellees.

Daniel J. Stewart, Albany, NY (Dreyer Boyajian LLP, on the brief), for Defendants-Appellants Signoracci, Heslin, Carmel, Ward, and Abrams.

Arete Sprio, Albany, NY (Maynard, O'Connor, Smith Catalinotto & D'Agostino, LLP, on the brief), for Defendant-Appellant Valenti.

Before: MESKILL and JACOBS, Circuit Judges, and KORMAN, District Judge. ^*

JACOBS, Circuit Judge:

Plaintiffs-appellees Robert Connell and Valerie LaPointe were (respectively) the landlord and the owner-operator of two topless dancing bars located in the neighboring towns of Cohoes and Troy, New York. They allege that the defendants-appellants--the mayor of Cohoes, municipal officials of Cohoes and Troy, and an investigator for the Albany County District Attorney's office--violated 42 U.S.C. § 1983 by infringing (and by conspiring to infringe) plaintiffs' rights under the First and Fourteenth Amendments. Mayor Robert Signoracci and the other remaining individual defendants appeal from two orders of the United States District Court for the Northern District of New York (McAvoy, Ch. J.), (i) denying their motion to dismiss this action on the ground of qualified immunity, and (ii) denying their motion for reconsideration of that decision.

Before discovery commenced, the defendants moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court granted the motion in part, but held that claims were stated for retaliation based on plaintiffs' exercise of their First Amendment rights. The court denied the defendants' motions to dismiss on the basis of qualified immunity.

We reverse as to Connell's claims, affirm as to LaPointe's claims, and remand.

It cannot be said to be objectively reasonable that persons in defendants' official positions would have believed that a supposed campaign of harassment against LaPointe's topless business would chill Connell's expression, because as a policeman he was barred from having an interest in a bar and therefore had no right to operate or present the topless entertainment that in this case passes for First Amendment expression. The complaint does not plead otherwise, and in fact expressly disclaims any involvement by him in the bars or in the expressive activity of topless dancers he denies employing. Defendants are therefore entitled to qualified immunity as to all of Robert Connell's claims.

As to LaPointe's claims, we cannot resolve the qualified immunity issues because the prolix and unintelligible allegations of the complaint frustrate the preliminary consideration of immunity to which the defendants are entitled, and we therefore remand for further proceedings as to those claims.

BACKGROUND

Robert Connell was a police officer of the City of Cohoes, who left the force in April 1994 as a result of a back injury. While he was still a police officer and during the events giving rise to this action, Connell owned two parcels of commercial property, one in Cohoes and the other in neighboring Troy. He rented them to his paramour Valerie LaPointe, who owned and operated bars there. In May 1993, LaPointe's bars began to offer topless dancing. This entertainment was and remains permissible under state and local law. LaPointe closed the Troy bar on or about April 20, 1994, and the Cohoes bar on August 8, 1994.

Connell and LaPointe allege that Mayor Signoracci of Cohoes and the other defendant officials are hostile to topless entertainment; that they engaged in harassment to discourage patronage of the bars and retaliate against Connell and LaPointe; and that they succeeded in depressing revenues, in forcing LaPointe to close her businesses, and in depriving Connell of rent proceeds. After sifting the verbiage of the complaint, the district court usefully identified four incidents of allegedly harassing conduct in a bench ruling on May 13, 1996.

A. The Four Incidents of Alleged Harassment

1. The License Investigation. Section 128 of the New York State Alcoholic Beverage Control Law, and the regulations of the Cohoes Police Department, prohibit a police officer from being "either directly or indirectly interested in the manufacture or sale of alcoholic beverages." See N.Y. Al. Bev. Con. L. § 128 (McKinney's 1987). This provision prohibits officers from having an interest in the ownership or operation of any establishment that has a liquor license. See Wilson v. New York State Liquor Authority, 52 N.Y.2d 741, 436 N.Y.S.2d 275, 275, 417 N.E.2d 569, 569 (1980) (mem.). "[T]he obvious purpose of the prohibition is to avoid conflicts of interest with a police officer's duty to enforce the Alcoholic Beverage Control Law, and to preserve public confidence in the police." Rotunno v. City of Rochester, 120 A.D.2d 160, 161, 507 N.Y.S.2d 924, 925 (4th Dep't 1986), aff'd, 71 N.Y.2d 995, 529 N.Y.S.2d 275, 524 N.E.2d 876 (1988).

Acting on information that Connell was violating this provision, the defendants conducted an internal investigation in June 1993. Connell maintains that he never had an ownership interest in the bars and that they were owned and operated by LaPointe. The complaint alleges that Cohoes officials sought affidavits from LaPointe's employees and offered one of them leniency on drunk driving charges in exchange for incriminating information about Connell. No criminal charges arising from this investigation were filed against Connell.

2. The enforcement of the signage ordinance. In May 1993, LaPointe gave a new name ("Sensations") to the part of the Cohoes bar in which the topless dancers were performing. She repainted the exterior sign in bright colors and added a painting of a fan dancer. The bar sits in the Cohoes Historic District, and its appearance and signage are subject to special regulation. Defendant Stephen Carmel, the Cohoes building code enforcement officer, wrote to LaPointe that the repainted sign violated two Code provisions. According to Carmel, the plaintiffs were required to obtain a permit for a new sign, and to submit color drawings of proposed designs to the Planning Board. LaPointe refused to obtain a permit, asserting that the Code provision did not govern the repainting of an existing sign. Carmel issued appearance tickets to both of the plaintiffs. The sign remained.

The complaint alleges that the sign had been repainted on prior occasions without objection, that the ordinance had never been enforced against any other business for the repair, maintenance or alteration of an existing sign, that the ordinance was enforced in 1993 to harass Connell and LaPointe and injure their business, and that the neighbor's complaint cited in Carmel's letter was a pretext. Local newspapers reported the incident; and plaintiffs allege that Mayor Signoracci claimed "official credit for this action."

3. The awning theft investigation. The complaint alleges that in 1993, Mayor Signoracci instigated a probe of Connell for the alleged theft of an awning that had been removed from an abandoned building and installed at LaPointe's bar. Signoracci and Police Chief Heslin turned the investigation over to the Albany County District Attorney, who assigned to it his Chief Investigator, defendant Valenti. Valenti was assisted by defendants Ward and Abrams, Cohoes police officers. They placed a body microphone on an individual named Mike Morrow and monitored his conversations with Connell. Connell was indicted on charges of grand larceny and official misconduct in November 1993. The grand larceny charge was ultimately adjourned in contemplation of dismissal, and the official misconduct charge was dismissed.

The complaint alleges that the investigation was prompted by a falsehood told by a disgruntled former employee of LaPointe; that defendant Valenti coerced Morrow to wear the body microphone and then to lie to the grand jury; and that Signoracci and the other defendants conspired with the district attorney's office to trump up the charges for the sole purpose of threatening and harassing Connell.

4. The campaign against topless bars. According to the complaint, Mayor Signoracci made frequent public statements beginning in May 1993, denouncing topless bars and their owners; expressed a desire to do everything he could to eliminate topless dancing and similar entertainment in Cohoes; blamed both LaPointe and Connell for the topless dancing; and accused Connell of maintaining a financial interest in the establishments in violation of state and local law. Signoracci publicly conceded that the plaintiffs had a First Amendment right to offer topless entertainment and that this entertainment was legal under state law, and voiced his view that, nonetheless, "[t]hey don't belong 1 1/2 blocks away from two churches, the police station, City Hall and in a local Historic District."

In November 1993, the Mayor sponsored a public rally with the American Family Association to observe Pornography...