232 F.3d 92 (2nd Cir. 2000), 1405, Diesel v Town of Lewisboro

Docket Nº:1405(L), 1722(XAP) --
Citation:232 F.3d 92
Party Name:LYNNE DIESEL, Plaintiff, DENNIS J. DIESEL, Plaintiff-Appellee-Cross-Appellant, v. TOWN OF LEWISBORO, WAYNE E. BENNETT, "JOHN" RUTLEDGE, first name fictitious, true first name unknown and MARTIN CAMPOS, Defendants, MAURICE COLEY, PRESTON L. FELTON, AND STANLEY GARRANT, Defendants-Appellees, THOMAS LARKIN, DENNIS O'CONNELL and JOHN J. NOONAN, Defenda
Case Date:November 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 92

232 F.3d 92 (2nd Cir. 2000)

LYNNE DIESEL, Plaintiff,

DENNIS J. DIESEL, Plaintiff-Appellee-Cross-Appellant,

v.

TOWN OF LEWISBORO, WAYNE E. BENNETT, "JOHN" RUTLEDGE, first name fictitious, true first name unknown and MARTIN CAMPOS, Defendants,

MAURICE COLEY, PRESTON L. FELTON, AND STANLEY GARRANT, Defendants-Appellees,

THOMAS LARKIN, DENNIS O'CONNELL and JOHN J. NOONAN, Defendants-Appellants-Cross-Appellees.

Docket Nos. 99-7831(L), 99-7840(XAP)

Nos. 1405(L), 1722(XAP) --

United States Court of Appeals, Second Circuit

November 13, 2000

Argued: April 24, 2000

Appeal from the judgment of the United States District Court for the Southern District of New York (Brieant, J.) in favor of plaintiff in his 42 U.S.C. § 1983 action against several New York State Police officers.

Defendants-appellants appeal the district court's (i) denial in part of their motion for judgment as a matter of law, and (ii) entry of judgment in favor of plaintiff in the remittitur sum of $200,000. Plaintiff cross-appeals (i) the district court's grant in part of the defendants' motion for judgment as a matter of law and (ii) the setting aside of the punitive damages.

Judgment reversed.

Page 93

[Copyrighted Material Omitted]

Page 94

DAVID LAWRENCE III, Assistant Solicitor General for the State of New York, New

Page 95

York, NY (Eliot Spitzer, Attorney General of the State of New York, Edward Johnson, Deputy Solicitor General, Mark Gimpel and Mary Lynn Nicolas, Assistant Solicitor Generals, on the brief), for Defendants-Appellants-Cross-Appellees and Defendants-Cross-Appellees.

MARC ROWIN, New York, NY (Lynch Rowin LLP, New York, NY, on the brief), for Plaintiff-Appellee-Cross-Appellant.

Before: JACOBS, LEVAL and SACK, Circuit Judges.

JACOBS, Circuit Judge:

Dennis Diesel, a New York State Trooper, brought this civil rights action under 42 U.S.C. § 1983 and New York state law against several other members of the New York State Police. Diesel had cooperated with an internal affairs investigation involving misconduct by State Police officers in Peekskill. In a subsequent unrelated incident, Diesel was found early one morning in Lewisboro, passed out or asleep behind the wheel of an official car. Diesel alleged that in retaliation for his cooperation in the Peekskill investigation, the defendants conducted an excessive, prolonged and overzealous investigation of the Lewisboro incident; that they failed to extend to him the form of professional courtesy he terms the "blue wall of silence"; and that their conduct violated Diesel's rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.

Following a jury verdict in favor of Diesel, the United States District Court for the Southern District of New York (Brieant, J.) granted in part and denied in part the defendants' motion for judgment as a matter of law, and ordered a new trial limited to determining the damages on the surviving verdicts in favor of Diesel. The second jury returned an award that the district court found to be excessive. Diesel avoided a third trial by accepting the $200,000 remittitur offered by the district court (Fox, M.J.).

Defendants-appellants Dennis O'Connell, Thomas Larkin and John Noonan challenge the district court's refusal to grant in full their motion for judgment as a matter of law. Diesel cross-appeals the district court's partial grant of that motion--which dismissed the 42 U.S.C. § 1985 claim against O'Connell, Larkin and Noonan, and dismissed all claims against the other defendants--as well as the court's setting aside of the first jury's award of punitive damages.

We hold that (A) a selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence"; (B) the investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and (C) Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct. Accordingly, Diesel was as a matter of law not entitled to any damages. We therefore reverse insofar as the district court entered judgment in favor of Diesel and affirm insofar as the court entered judgment as a matter of law in favor of the defendants.

BACKGROUND

At all times relevant to this action, the parties were members of the New York State Police.

Dennis Diesel was a Trooper in Troop K, which serves four counties: Columbia, Dutchess, Putnam, and Westchester. Troop K is divided into zones. Stormville, Diesel's assigned barracks through most of 1995, is in Zone 3. Captain Thomas Larkin was commanding officer of the Stormville barracks. Captain Dennis O'Connell was commanding officer of Troop K and the Peekskill barracks, which is in Zone 4.

Page 96

In November 1995--after Diesel cooperated in the investigation into the Peekskill incident--he was temporarily promoted to the rank of Investigator and assigned to the Executive Services Detail. In this capacity, Diesel served as security officer and driver to then-Lieutenant Governor Betsy McCaughey Ross. In March 1996--following the Lewisboro incident--Diesel was reassigned to his permanent rank of Trooper.

A. The Peekskill Investigation

In September 1994, the State Police Inspection Unit began investigating the possibility that officers in the Peekskill police barracks were covering up a hit-and-run accident involving the brother of a state trooper. Although Diesel was assigned to the Stormville barracks, he was present at the Peekskill barracks on the night in question on an unrelated matter. In September 1995, one of the investigators interviewed Diesel about the alleged cover up, and Diesel provided corroborating evidence about the suspected officers' conduct that the investigator deemed "important."

As a result of the investigation, one officer pled guilty to criminal charges and was forced to resign from the police force, and another was suspended for 30 days and transferred to a different command post.1 Defendant Captain O'Connell, the commanding officer of the Peekskill Barracks, issued a memorandum to his troopers, deploring the incident in terms that are studiously ambiguous. (The text of the memorandum is set out in the margin.)2 In any event, the investigation and the resulting disciplinary actions were unpopular with the troopers.

Diesel testified that he suffered harassment when news of his cooperation leaked to other officers. Letters calling him a rat were left in his locker. He was shunned by his fellow officers, and became "an outcast, like [he] wasn't part of the inner-workings of the State Police."

Defendant Lieutenant John Noonan, commanding officer of the Bureau of Criminal Investigation ("BCI") unit at the Peekskill barracks, who had been Diesel's close friend, told Diesel that he was no longer being considered for promotion to the BCI and would be "no longer welcomed at [Noonan's] home." According to Diesel, Noonan stated that Diesel was "pegged as a rat."

Captain Larkin, Diesel's commanding officer at Stormville Barracks, relayed to Diesel a request from Captain O'Connell that Diesel avoid patrolling in Peekskill and the rest of Westchester County. Larkin told Diesel that he was "not welcome down there." There was also evidence introduced that Noonan and O'Connell harassed another officer who had cooperated with the investigation.

B. Diesel's Temporary Promotion

In November 1995, Diesel was temporarily promoted to the rank of Investigator and assigned to the Executive Services

Page 97

Detail. Part of his duties in this elite unit included driving the Lieutenant Governor and protecting her. His temporary promotion brought a $10,000 raise, bigger pension benefits, better hours, and the right to use a State Police vehicle while off-duty. It is undisputed that the promotion to the Executive Services Detail was temporary and that Diesel served in this new post at the pleasure of the Superintendent, who could reassign Diesel to his permanent rank of Trooper for any reason at any time.

C. Lewisboro Incident

1. The Night Before

Between 10:00 and 11:00pm, on February 2, 1996, Diesel dropped the Lieutenant Governor at her Manhattan residence and began to drive back to his Westtown home. Diesel took a sixty-mile detour to Le Chateau, a restaurant in Lewisboro owned by Diesel's friend Joseph Jaffre. Diesel was joined at dinner by Jaffre and by Jaffre's friend, Debra Tosetti. Under the rules of the Executive Service Detail, Diesel remained "on-duty" during this detour.

Diesel admitted that he drank some wine during dinner, but the amount is contested. Diesel said that he drank less than one glass and Tosetti corroborated Diesel's account. A week after the incident, Jaffre signed a sworn statement estimating that Diesel drank about one and a half glasses. Still later, at trial, Jaffre testified that the group shared three bottles of wine, from which Diesel drank several glasses. According to his trial testimony, Jaffre believed Diesel became intoxicated.3

Diesel left the restaurant between 2:00 and 3:00am Just before leaving, he fell in the men's room and injured his nose. Diesel testified that he had slipped on water leaking from a broken toilet. According to Jaffre, the toilet was working and the floor was dry. Tosetti applied two bandages to the bridge of Diesel's bleeding nose.

With Diesel's knowledge, Jaffre placed an unopened bottle of wine in the back seat of Diesel's unmarked State Police car. Diesel began...

To continue reading

FREE SIGN UP