Brown v. D'Amico
| Citation | 35 F.3d 97 |
| Decision Date | 12 September 1994 |
| Docket Number | No. 1483,D,1483 |
| Parties | Thomas Richard BROWN, Plaintiff-Appellee, v. Frank D'AMICO, Defendant-Appellant. ocket 93-9243. |
| Court | U.S. Court of Appeals — Second Circuit |
Henri Alexandre, Asst. Atty. Gen., Hartford, CT (Richard Blumenthal, Atty. Gen., Jane Rosenberg, Asst. Atty. Gen., on the brief), for defendant-appellant.
Donn A. Swift, New Haven, CT (Hugh F. Keefe, Mary Beattie Schairer, Christopher M. Licari, Lynch, Traub, Keefe & Errant, on the brief), for plaintiff-appellee.
Before: NEWMAN, Chief Judge, JACOBS and LEVAL, Circuit Judges.
This interlocutory appeal concerns a state investigator's claim to qualified immunity in connection with an arrest warrant obtained from a judge after a finding of probable cause by a Connecticut "investigatory grand jury." The specific issue is whether the investigator is protected by qualified immunity from a civil rights action for false arrest and malicious prosecution because his affidavit in support of the warrant omitted information alleged to undermine probable cause, notwithstanding the fact that the omitted information had been considered by the grand jury. The issue arises on an appeal by Frank D'Amico from a ruling of the District Court for the District of Connecticut (Alan H. Nevas, Judge) denying in part D'Amico's motion seeking summary judgment on the ground of qualified immunity. We believe that D'Amico is entitled to qualified immunity and accordingly reverse.
The "investigatory grand jury" in Connecticut. Connecticut statutes authorize two types of grand juries, an indicting grand jury, composed of eighteen electors, see Conn.Gen.Stat. Sec. 54-45(a) (1993), and an investigatory grand jury, composed of either one or three judges, see id. Sec. 54-47(b)(3) (1993). This appeal concerns an investigatory grand jury, an instrumentality "known to the common law," State v. Menillo, 159 Conn. 264, 273, 268 A.2d 667, 671 (1970), but now entirely a "creature of statute," Connelly v. Doe, 213 Conn. 66, 70, 566 A.2d 426, 429 (1989). Typically consisting of only one judge, the investigatory grand jury has been referred to, at least before women were appointed to the Connecticut Superior Court, as a "one man grand jury." See State v. Moynahan, 164 Conn. 560, 563 n. 1, 325 A.2d 199, 204 n. 1, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973).
Unlike an indicting grand jury, which has the power both to investigate and to accuse by a formal charging "bill," Conn.Gen.Stat. Sec. 54-45(a), (b), an investigatory grand jury is authorized only to investigate. At the completion of its task, it files with the Superior Court a "finding," which "shall state whether or not there is probable cause to believe that a crime or crimes have been committed." Id. Sec. 54-47g(a). Thereafter, the initiation of criminal charges rests with the prosecuting authorities.
The Waterbury investigation. In 1985, a panel of state judges authorized an investigation into possible corruption in Waterbury, Connecticut. See Conn.Gen.Stat. Sec. 54-47b(4) (1993). Pursuant to the panel's authorization, the chief court administrator appointed Connecticut Superior Court Judge Barry Schaller to serve as a one-person investigatory grand jury. The role of the investigatory grand jury was to find whether there was probable cause to believe that a crime had been committed. Id. Sec. 54-47g(a). Appellant Frank D'Amico, an investigator in the State's division of criminal justice, was assigned to assist in the investigation. Appellee Thomas R. Brown, a Waterbury police officer, was one of the subjects of the grand jury's investigation. On July 1987, the investigatory grand jury filed a report of its findings. Though this document has been sealed, all available evidence indicates (and D'Amico attests) that the investigatory grand jury found probable cause to believe that Brown committed perjury and fabricated evidence during the grand jury proceedings.
The charges against Brown. D'Amico then applied to Connecticut Superior Court Judge Paul Foti for a warrant to arrest Brown for perjury and fabrication of evidence stemming from Brown's testimony before the grand jury. In support of this application, D'Amico filed an affidavit setting forth the basis for his claim that there was probable cause. In the affidavit, D'Amico said that his statements were based on the testimony heard by, and the exhibits entered before, the investigatory grand jury. Assistant State's Attorney David Shepack had approved the warrant application and accompanying affidavit. Judge Foti found probable cause and issued the warrant, which was duly executed. The charges against Brown were dismissed in January 1989.
The civil rights suit. Thereafter, Brown filed the pending civil rights complaint under 42 U.S.C. Sec. 1983. He contends that D'Amico omitted crucial exonerating information from his warrant affidavit and is therefore liable for false arrest and malicious prosecution. According to Brown, D'Amico excluded from his affidavit the testimony of certain individuals who had appeared before the grand jury. Because the testimony received by the grand jury remains sealed (with the exception of Brown's testimony), Brown offered affidavits from these persons summarizing their testimony before the grand jury. Brown alleges that if the testimony of these individuals had been included in the warrant affidavit, the affidavit would not have supported a finding of probable cause. Brown sought compensatory and punitive damages for false arrest and malicious prosecution.
D'Amico moved for summary judgment on the grounds that there was probable cause for Brown's arrest and prosecution and that, in any event, he is immune from liability because of qualified immunity. The Court granted his motion in part, dismissing the claims against him based on actions taken in his official capacity. But the Court denied his motion as regards the claims against him based on actions taken in his individual capacity. D'Amico now appeals from that ruling.
Since the immunity issue can be adjudicated without any resolution of a factual dispute, we have jurisdiction on this interlocutory appeal to decide D'Amico's claim to qualified immunity.
Qualified immunity shields arresting officers from personal liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights, see Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). See Golino v. New Haven, 950 F.2d 864, 870 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992). As Brown argues, "[t]he right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right." Id. But this assertion identifies the right at issue in the instant case at too abstract a level of generality. See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038-39. A more particularized formulation of the right at issue is the right to be free from an arrest based on a warrant that would not have been issued if the officer seeking the warrant had disclosed to the issuing magistrate...
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