Burgess v. Wallingford
| Decision Date | 15 May 2013 |
| Docket Number | Case No. 11-cv-1129 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Richard E. Burgess, Plaintiff, v. Wallingford, et al., Defendants |
Before the Court are cross motions for summary judgment filed by plaintiff Richard E. Burgess [Rec. Doc. 50] and defendants Chief Douglas L. Dortenzio, Lieutenant Anthony Martino, Sergeant Michael Colavolpe, police officers Devin Flood and Gabriel Garcia, and the Town of Wallingford [Rec. Doc. 51]. Also before the Court are plaintiff's objection to defendants' motion for summary judgment [Rec. Doc. 53], defendants' objection to plaintiff's motion for summary judgment [Rec. Doc. 54], plaintiff's reply to defendants' objection [Rec. Doc. 59], plaintiff's objection to granting summary judgment to pro se defendant Mark Vanaman [Rec. Doc. 68], and defendants' response to plaintiff's objection to granting summary judgment to Vanaman [Rec. Doc. 69]. Vanaman did not file an objection to plaintiff's motion for summary judgment. For the reasons that follow, plaintiff's motion will be DENIED and defendants Colavolpe, Dortenzio, Flood, Garcia, Martino, and the Town of Wallingford's motion will be GRANTED. Additionally, the Court will GRANT summary judgment in favor of pro se defendant Vanaman sua sponte.
Plaintiff's Complaint [Rec. Doc. 1] alleges that he was unlawfully stopped and falsely arrested by defendants Sergeant Colavolpe and Officers Flood and Garcia in violation of the Fourth Amendment and 42 U.S.C. § 1983. Plaintiff also asserts a section 1983 claim for deprivation of free speech in violation of the First Amendment and for deprivation of the right to bear arms in violation of the Second Amendment against defendants Chief Douglas L. Dortenzio, Lieutenant Anthony Martino, Sergeant Michael Colavolpe, police officers Devin Flood and Gabriel Garcia and the Town of Wallingford. Additionally, plaintiff brings a claim against the defendants Chief Douglas L. Dortenzio, Lieutenant Anthony Martino, Sergeant Michael Colavolpe, police officers Devin Flood and Gabriel Garcia, and the Town of Wallingford for deprivation of the right to bear arms in violation of the Connecticut Constitution, Article 1, Section 15. Plaintiff brings a claim against the Town of Wallingford under Monell v. Department of Social Services, 436 U.S. 658 (1978), for failure to train. Finally, plaintiff brings a section 1983 claim for malicious prosecution against pro se defendant Mark Vanaman.
On May 16, 2010, plaintiff went to Yale Billiards, a pool hall that serves alcoholic beverages in Wallingford, Connecticut, wearing a loaded handgun visible in a holster on his hip. Burgess Dep., Pl. Ex. II at 29:13-18, 30:7-11, 34:11-25, 54:12-13. He also had two extra thirteen round magazines on the small of his back. Id. at 35:12-15. He carried a total of forty bullets. Id. at 35:15-18. He wore a Connecticut Citizens Defense League ("CCDL") shirt which quoted the Connecticut State Constitution regarding the right to bear arms, id. at 33:22-34:10, and also had copies of a CCDL brochure explaining the CCDL's position on the legality of carrying firearms, id. at 39:12-14, 45:13-46:18. He was at the pool hall for approximately fifteen to twenty minutes, id. at 38:17-24, when the owner of Yale Billiards, Richard Hilton, approached him, id. at 39:1-4. Hilton commented on the gun and noted that he thought it was not legal to openly carry it. Id. at 39:1-21; Hilton Dep., Def. Ex. F at 13:13-24. Hilton asked plaintiff if he would conceal his gun, and plaintiff refused. Burgess Dep., Pl. Ex. II at 41:21-3; Hilton Dep., Def. Ex. F at 13:13-17.Hilton left to call the police. Hilton Dep., Def. Ex. F at 13:19-21, 18:15-21. Defendant Mark Vanaman, a customer who was playing pool at another table, Vanaman Dep., Pl. Ex. E at 59:7-22, approached plaintiff, Burgess Dep., Pl. Ex. II at 39:24-25, and asked him to conceal his gun, id. at 48:5-9; Vanaman Dep., Pl. Ex. E at 67:18-19. Plaintiff alleges that Vanaman was "agitated." Id. at 53:17-20. Plaintiff again did not conceal his weapon. Vanaman walked away from plaintiff and went outside to call the police. Vanaman Dep., Pl. Ex. E at 9-20. After Vanaman left, Hilton and plaintiff had another conversation wherein it was decided that plaintiff would leave Yale Billiards. 50:6-13; Hilton Dep., Def. Ex. F at 15:9-10.
The Wallingford Police Department's dispatch reported to the officers that a man openly carrying a firearm was pacing outside of Yale Billiards. Flood Dep., Pl. Ex. D at 12:13-18; Colavolpe Dep., Pl. Ex. HH at 27:22-28:2. Dispatch reported further that two calls had been made reporting the man with an exposed gun at or in the vicinity of Yale Billiards. Colavolpe Dep., Pl. Ex. HH at 28:15-16.
Sergeant Colavolpe and officers Michael Fraenza, Gabriel Garcia, Abel Gonzalez, and Devin Flood arrived. Colavolpe Dep., Pl. Ex. HH at 33:25-34:8. Officers Garcia and Flood spoke with Vanaman, who identified plaintiff as the man with the firearm about whom he had called the police. Vanaman Dep., Pl. Ex. E at 81:13-25; Flood Dep., Pl. Ex. D at 21:21-24:12. Flood, Colavolpe, and Garcia saw plaintiff sitting on a bench outside of Yale Billiards with a firearm in a holster and two magazines visible at his waist. Pl.'s Revised Rule 56(a)1 Stmt. ¶ 12 [Rec. Doc. 60]; Colavolpe Dep., Pl. Ex. HH at 36:7-9, 37:13-15, 42:16-25, 44:19-22. They approached plaintiff and Sergeant Colavolpe promptly seized plaintiff's gun and ammunition. Colavolpe Dep. 43:22-23. Plaintiff was then handcuffed and arrested. Burgess Dep., Pl. Ex. II at 60:4-18. While plaintiff was handcuffed, Colavolpe called the police station and spoke with LieutenantMartino. Martino Dep., Pl. Ex. C at 18:18-19. They discussed whether Connecticut state law permitted the unconcealed carry of a firearm and whether someone could be arrested for disturbing others by unconcealed carry of a firearm. See id. at 20:1-29:21. Before they left the Yale Billiards parking lot, Colavolpe talked to Hilton who told him that the man with the weapon was making people uncomfortable. Colavolpe Dep., Pl. Ex. HH at 48:17-49:1-8. Plaintiff was then transported to police headquarters. Burgess Dep., Pl. Ex. II at 62:4-18. He was charged with disorderly conduct, his gun and ammunition were returned to him, and he was released later that night. Burgess Dep., Pl. Ex. II at 72:3-8. Plaintiff later filed a complaint regarding his arrest with the Wallingford Police Department. Martino Dep., Pl. Ex. C at 44:24-46:1. Chief Dortenzio assigned Lieutenant Martino to investigate the complaint. Id. The disorderly conduct charge against plaintiff was subsequently dismissed. Id. at 81:6-19.
Summary judgment is appropriate only when the record reflects that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Such a determination is to be made after "construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor." Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012).
Initially, the party moving for summary judgment must demonstrate the absence of any genuine issues of material fact. When a party seeking summary judgment bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if such evidence were uncontroverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As to issues which the nonmoving party has the burden of proof at trial, the moving party must satisfy this burden by demonstrating the absence of evidence supporting the non-moving party'sclaim, and if the moving party succeeds the burden shifts to the non-moving party to show that there is a genuine issue for trial. Id. at 322-23.
Once the burden shifts to the non-moving party, it must direct the attention of the court to evidence in the record and set forth specific facts sufficient to establish that there is a genuine issue of material fact requiring a trial. Id. at 324. The non-moving party may not rest on mere allegations or denials of the adverse party's pleadings as a means of establishing a genuine issue worthy of trial, but must demonstrate by affidavit or other admissible evidence that there are genuine issues of material fact or law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970).
There is no genuine issue of material fact if, viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If no issue of fact is presented and if the movant is entitled to judgment as a matter of law, the court is required to render the judgment prayed for. Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 322.
Plaintiff alleges that the initial stop by defendants Sergeant Colavolpe1 and officers Flood and Garcia was an unconstitutional seizure in violation of Terry v. Ohio, 392 U.S. 1 (1968). He asserts that carrying a loaded gun in public does not create reasonable suspicion to justify a Terrystop. The defendant officers assert that reasonable suspicion existed to justify the investigatory stop and seizure of plaintiff's weapon.
Under Terry, "an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop." Illinois v. Wardlow, 528 U.S. 119, 120 (2000). A valid Terry stop must be "justified at its inception." Terry, 392 U.S. at 20. For reasonable suspicion to justify a stop, there must be a "particularized and objective basis" for suspicion of legal wrongdoing under the "totality of the circumstances." United States v. Arvizu, 534 U.S. 266, 273 (2002). A showing of...
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