Calamia v. City of New York

Decision Date22 June 1989
Docket NumberD,No. 1123,1123
Citation879 F.2d 1025
PartiesBarry CALAMIA, Plaintiff-Appellee, v. The CITY OF NEW YORK, the Police Department of the City of New York, and Kevin Sutton, individually and as Police Officer of the City of New York, John Doe Officers, individually and as Officers of the Police Department of the City of New York, John Doe Officer, individually and as Commanding Officer of the Sixty Third Precinct of the Police Department of the City of New York, John Doe, individually, and Elizabeth Smyth, and Elizabeth Smyth a/k/a Betty Patterson, and Robert J. McGuire, as Commissioner of the Police Department of the City of New York, Defendants-Appellants. ocket 88-9082.
CourtU.S. Court of Appeals — Second Circuit

Sheldon M. Krupnick, Garden City, N.Y. (Krupnick & Goldman, Garden City, N.Y., on the brief), for plaintiff-appellee.

Edward F.X. Hart, New York City (Peter L. Zimroth, Corporation Counsel for the City of New York, Leonard J. Koerner, Jonathan Pines, Paul Marks, New York City, on the brief), for defendants-appellants.

Before KEARSE, CARDAMONE, and PIERCE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants City of New York ("City"), City Police Detective Kevin Sutton, et al., appeal from an amended final judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Mark A. Costantino, Judge, awarding plaintiff Barry Calamia $50,000 in damages on his claims under 42 U.S.C. Sec. 1983 (1982) for arrest without probable cause and use of excessive force during arrest, and his claim under state law for negligence and conversion. On appeal, Sutton contends that he was entitled to judgment notwithstanding the verdict ("n.o.v.") on grounds, inter alia, of insufficiency of the evidence and qualified immunity. For the reasons below, we affirm so much of the judgment as awarded Calamia damages on his state-law claims; we conclude, however, that Sutton is entitled to judgment in his favor on the claim for arrest without probable cause and is entitled to a new trial on the claim for use of excessive force.


The events leading to this lawsuit arose out of a controversy between Calamia and defendant Elizabeth Smyth, who for some years had lived together and operated an antique store in Brooklyn, New York. The evidence at trial, taken in the light most favorable to Calamia, revealed the following.

A. The Criminal Charges Against Calamia

In mid-June 1982, Smyth went to the Police Department's 63rd Precinct and filed a complaint alleging that Calamia had taken property belonging to her from her store. Detectives told her they would investigate her complaint, but they came to the view that the matter was a domestic dispute more properly pursued through other routes. Smyth then went to the Kings County District Attorney's Office and lodged her complaint with Assistant District Attorney ("ADA") Lee Jacobson.

Jacobson asked Smyth for documentation of her claims that she owned the store and the property taken by Calamia. Smyth told him Calamia had taken documents along with the property, but she produced, inter alia, utilities bills for the store in her name, a license issued by the City Department of Consumer Affairs permitting her to do business as an antique dealer, a receipt for certain property, and income tax forms indicating that she was running the business and paying taxes on its profits. Jacobson interviewed a number of witnesses; three who operated a store adjacent to Smyth's stated they had seen Calamia removing large quantities of property from the store in the middle of the night. Smyth told Jacobson she had seen her property in the apartment of Sylvia Kramer, Calamia's mother, where Calamia lived.

Jacobson concluded that Smyth had a legitimate complaint, and he telephoned the 63rd Precinct to inquire why the police were not pursuing the matter. The desk officer advised Jacobson that if he felt action was warranted he should send a written note so stating. Jacobson discussed the matter with his superiors and then sent Smyth to the police station with a formal letter, a note to the desk sergeant, and a list of the property Smyth claimed Calamia had taken. The letter stated, in pertinent part, as follows:

This note concerns a number of crimes perpetrated against Ms. Elizabeth Smyth by one Barry Calamia-Kramer over the past two months. Ms. Smyth attempted to initiate criminal proceedings at the 63 precint [sic ] earlier this week but was unsuccessful. Apparently the feeling as [sic ] the station was that the incidents were "domestic disputes" and that Ms. Smyth should pursue other remedies.

After extensive conversations with Ms. Smyth, it is my conclusion that the alleged incidents are not domestic disputes and that the crimes should be handled through the criminal justice system. My conclusion is based on the following:

(a) the serious nature of the alleged crimes (i.e., burglary, criminal possession of a weapon, menacing, etc.),

(b) the number and frequency of the alleged crimes,

(c) the strength of the cases (witnesses to almost all crimes),

(d) the present non-relationship of the defendant to the complainant ...,

(e) the possible dangerousness of the accused. The complainant presently fears for her physical safety. The accused has more than once threatened to kill the complainant, and to physically harm other persons and witnesses. (In addition, the defendant was, and still may be, a suspect in a Brooklyn murder case).

All things considered, this does not seem to be a "lovers [sic ] quarrel" or a "domestic dispute." Instead it seems to be a number of serious crimes perpetrated by a possibly very dangerous person.

Lieutenant Dowling of the 63 precint [sic ] has assured me that if I enclose this note with an attached copy of the alleged crimes, Ms. Smyth will have no difficulty in initiating the complaint and having the accused arrested.

In addition, the accused has made it known to the complainant that he has in his possession the fruits of the alleged burglary (the complainant has also seen said property in the accused's home). Some effort should be made to recover this property before the accused destroys it. [ ] A search warrant may not be required. (Complainant states that when the accused's mother opens the door to the apartment, much of the stolen property can be seen in "plain view.")

Thank you very much for your help. The case should be pursued. Attached is a listing of most of the alleged crimes, the date, time and places of occurrence, and witnesses to those crimes.

(Letter of ADA Jacobson, dated June 18, 1982.)

Smyth took the documents given her by Jacobson to the 63rd Precinct and gave them to Detective Sutton, to whom her case had been assigned. Sutton reviewed the papers and discussed the matter by telephone with Jacobson. Jacobson asked Sutton to go to the Kramer-Calamia apartment with Smyth "to get a fresh observation" of the property allegedly stolen by Calamia, because the authorities "need[ed] a more recent sighting to obtain any sort of search warrant."

On June 30, Sutton accompanied Smyth to the Kramer-Calamia apartment; they did not enter, but stood in the doorway and observed a cluttered apartment with a large amount of furniture. Sutton thereafter executed an affidavit in support of an application for a search warrant for more than 40 listed items. The affidavit stated that Sutton had been informed by Smyth that the listed property had been stolen from her antique store. In addition, though Sutton admitted at trial that he had not seen all of the items listed in his affidavit in support of the search warrant application, that affidavit stated "that on June 30, 1982 [deponent] did accompany informant Elizabeth Smyth of Brooklyn to the above mentioned premises and at that time did observe the above described property." The premises mentioned were identified as "apartment 5L" at the street address where Calamia and his mother lived; the Kramer-Calamia apartment, however, was 12E, not 5L. A search warrant was issued for apartment 5L.

At approximately midnight on June 30, Sutton and five other City policemen went to the Kramer-Calamia apartment and arrested Calamia. Calamia testified that when he opened the door, Sutton immediately shoved him in the chest, threw him to the floor, turned him over and handcuffed his wrists tightly behind his back. Though Calamia complained that the cuffs were cutting into his wrists, the officers kept him tightly cuffed. Except for a short time in which the officers sat him up for a telephone call to his attorney (and held the receiver for him), Calamia remained on the floor, tightly handcuffed with his hands behind his back for some five or six hours while the officers collected the items listed in the search warrant. Eventually, he was taken to the police station and only thereafter were his handcuffs loosened or removed.

Calamia was arraigned on charges of burglary in the third degree and criminal possession of stolen property in the first degree. The property seized by the police was not kept in police custody but was promptly released to Smyth with instructions to safeguard it until after disposition of the criminal charges against Calamia. Two or three days later, Smyth and her mother moved the property to Long Island. Calamia had sought unsuccessfully to persuade Sutton that he was the sole proprietor of the antique store and was in fact the owner of the property Smyth claimed he had stolen. He also sought unsuccessfully to have Sutton prevent Smyth's removal of the property to Long Island.

Some eight months later, the charges against Calamia were dismissed. The property was not returned to Calamia. The District Attorney's office decided that since Smyth had possession of the property, the criminal charges should be dropped and the matter resolved in Civil Court as a property dispute.

B. The Present Lawsuit


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