479 F.3d 196 (2nd Cir. 2007), 05-4302, Russo v. City of Bridgeport

Docket Nº:Docket No. 05-4302-cv.
Citation:479 F.3d 196
Party Name:Christopher RUSSO, Plaintiff-Appellant, v. CITY OF BRIDGEPORT, Jeremy DePietro, Officer, John Rosa, Officer, Christopher Borona, Detective, and John Sherbo, Sgt., Defendants-Appellees.
Case Date:February 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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479 F.3d 196 (2nd Cir. 2007)

Christopher RUSSO, Plaintiff-Appellant,


CITY OF BRIDGEPORT, Jeremy DePietro, Officer, John Rosa, Officer, Christopher Borona, Detective, and John Sherbo, Sgt., Defendants-Appellees.

Docket No. 05-4302-cv.

United States Court of Appeals, Second Circuit.

Feb. 27, 2007

Argued: May 17, 2006.

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Burton M. Weinstein, Weinstein, Weiner, Ignal, Napolitano & Shapiro, Bridgeport, CT, for Plaintiff-Appellant.

Barbara Brazzel-Massaro, Office of the City Attorney, Bridgeport, CT, for Defendants-Appellees.

Before: KEARSE, CALABRESI, and POOLER, Circuit Judges.

CALABRESI, Circuit Judge.

In a case of mistaken identity, Plaintiff-Appellant Christopher 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 defendants-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.


On August 1, 2002, an armed, unmasked person robbed an Amoco auto service station in Bridgeport. 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.

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 characteristics 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, 1 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 surveillance camera showed that "both sides of

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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. 2 No 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. 3

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 defendants-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 photograph because of the shape of the criminal's head, nose, and hairline. He also told the officers to watch the videotape to see whether the perpetrator had body tattoos. 4 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

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program. 5 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. Individual 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.

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 occurred in early October, the prosecutor successfully countered Russo's lawyer's request that the court compare Russo's tattoos to those of the perpetrator. 6 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 Department property room to obtain the videotape. The investigator found that the tape was missing. Sometime after November 25, 2002, the investigator obtained the tape from Officer DePietro, 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.

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

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perpetrator until one day before seeking dismissal of the case. Finally, on April 22, 2003, due to defense counsel's continuing "insistence" on Russo's innocence, the prosecutor actually 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 investigators...

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