312 F.3d 568 (2nd Cir. 2002), 01-7832, Kent v. Katz

Docket Nº:Docket No. 01-7832.
Citation:312 F.3d 568
Party Name:Dean KENT, Plaintiff-Appellee, v. Jared KATZ, individually and as a Police Officer for the Town of Colchester, Defendant-Appellant.
Case Date:December 10, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 568

312 F.3d 568 (2nd Cir. 2002)

Dean KENT, Plaintiff-Appellee,


Jared KATZ, individually and as a Police Officer for the Town of Colchester, Defendant-Appellant.

Docket No. 01-7832.

United States Court of Appeals, Second Circuit

December 10, 2002

Argued: April 2, 2002.

Page 569

Thomas C Nuovo, Burlington, VT (Bauer, Anderson & Gravel, Burlington, VT, on the brief), for Plaintiff-Appellee.

Joseph A. Farnham, Burlington, VT (McNeil, Leddy & Sheahan, Burlington, VT, on the brief), for Defendant-Appellee.

Before: WALKER, Chief Judge, NEWMAN and KEARSE, Circuit Judges.

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KEARSE, Circuit Judge.

Defendant Jared Katz, an officer in the Colchester, Vermont Police Department, challenges so much of an order of the United States District Court for the District of Vermont, William K. Sessions III, Judge, as denied his motion pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the claims of plaintiff Dean Kent brought under 42 U.S.C. § 1983 and state law for false arrest, on the ground that Katz has qualified immunity from suit on those claims because a state court found probable cause for Kent's arrest, thereby collaterally estopping Kent from proving an essential element of his false arrest claims. In the district court, Katz had moved to dismiss all of Kent's claims; the district court denied the motion in part, stating that as to certain claims, including the claims of false arrest, the presence of genuine issues of material fact precluded the granting of summary judgment.

After Katz filed a notice of appeal, Kent moved to dismiss the appeal for lack of appellate jurisdiction. This Court granted the motion in part, noting that we have jurisdiction to entertain an interlocutory appeal from the denial of summary judgment based on an immunity defense only to the extent that the defense can be decided as a matter of law. See, e.g., Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); In re State Police Litigation, 88 F.3d 111, 124 (2d Cir. 1996). Accordingly, we dismissed so much of the appeal as dealt with (a) Kent's claims other than those for false arrest, and (b) the false arrest claims themselves except to the extent that Katz asserted qualified immunity as a matter of law on the basis of collateral estoppel as to the issue of probable cause. For the reasons that follow, we conclude that Kent's contention that he was arrested without probable cause is not precluded by collateral estoppel, and that Katz has not shown that he is entitled to qualified immunity as a matter of law. We therefore affirm the denial of summary judgment.


Except as indicated, the following facts pertaining to the claims of false arrest are essentially undisputed. On the afternoon of June 20, 1996, Kent and two assistants, Keith Shappy and Aaron Sterling, were clearing brush and burning it on Kent's property in the Town of Colchester, Chittenden County, Vermont. At some point, Kent drove off on an errand, leaving Shappy and Sterling to tend the fire. While Kent was gone, Katz arrived, responding to a complaint of a fire on the property. Kent shortly returned, parked his Jeep, and walked toward Katz.

Katz informed Kent that there had been a complaint; Kent asked who had complained. This exchange occurred several times. Katz asked whether Kent had a permit for the fire. Kent said they had been burning brush for 18 days, and he shrugged; the parties differ as to the meaning of the shrug.

At some point, Katz stated that Kent's eyes were red, and he asked whether Kent had been drinking. Kent said he had not, but his response included the statement, "[n]ot very much." According to Kent, his first response was "no"; when he was asked how much alcohol he had drunk, he said "[n]ot very much" sarcastically; and he reiterated to Katz that he had not been drinking that day.

Katz also asserts that Kent was walking unsteadily as he approached Katz; that Kent swayed as he stood before Katz; that Kent's speech was slurred; and that there

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was a strong odor of intoxicants on Kent's breath. Disputing these assertions, Kent submitted affidavits from Shappy, Sterling, and others who had been with Kent on June 20, stating that Kent had not been drinking alcohol that day. Shappy and/or Sterling, both of whom witnessed the encounter between Katz and Kent, stated that Kent had not staggered, swayed, appeared intoxicated, or smelled of alcohol.

There is no dispute that Katz asked Kent to take a sobriety test and that Kent refused; Kent argued that he was on his own property and not driving. Katz arrested Kent for suspicion of driving while under the influence of alcohol ("DWI") in violation of 23 V.S.A. § 1201 (1996). Katz asked Kent to turn around and place his hands behind his back; Kent complied. Katz attempted to force Kent's hand and wrist up behind his back and eventually kicked Kent's feet out from under him. At some point, Kent's wrist was broken.

On June 24, 1996, in connection with a State of Vermont ("State") summary procedure for civil suspension of the driver's license of a person whom a law enforcement officer had "reasonable grounds" to believe was violating § 1201, see 23 V.S.A. § 1205 (1996), Katz filed an affidavit in the State's District Court for Chittenden County, giving his version of the June 20 events and stating that he "ha[d] probable cause" to believe that Kent had driven while intoxicated, in violation of § 1201. (Affidavit of Jared Katz dated June 24, 1996 (" § 1205 Affidavit"), at 1.) The affidavit was submitted ex parte; and although § 1205(c) requires that the accused be given prompt notice of the summary civil suspension and a copy of the officer's affidavit, Kent apparently did not receive Katz's notice and affidavit until much later.

On July 11, 1996, the State filed an information against Kent. It alleged that Kent, in Colchester "on the 20 day of June 1996 did then and there operate a motor vehicle on a public highway while under the influence of intoxicating liquor, to wit; a Jeep, on Macrae Road, in violation of 23 VSA § 1201(a)(2)." (Information dated July 11, 1996 ("Original Information" or "Information").) On July 16, 1996, a Chittenden County District Judge subscribed to the following statement at the foot of the Information: "This information has been presented to me and I have found probable cause, this 16th day of July 1996[.]" See generally Vt. R.Crim. P. 5(c) ("If the defendant was arrested without a warrant. . . and the prosecution is upon information, the judicial officer shall determine. . . whether there is probable cause to believe that an offense has been committed and that the defendant has committed it."). See also Vt. R.Crim. P. 5(h) (allowing the defendant to challenge such a finding).

Kent was arraigned on the DWI charge on July 16, 1996. He pleaded not guilty and subsequently moved for a "Good Cause Hearing" on that charge. Kent's motion was adjourned several times and was never heard because in January 1997, he and the State agreed to settle the case. The State reduced the charge against Kent from DWI, 23 V.S.A. § 1201(a)(2), to careless and negligent operation of a motor vehicle, in violation of 23 V.S.A. § 1091(a)(1) (1996) ("C & N" or "Negligent Operation"); and Kent pleaded nolo contendere to the Negligent Operation charge. In addition, the State agreed not to pursue the civil suspension of Kent's driver's license under 23 V.S.A. § 1205. The agreement was reflected in the...

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