Carlos v. Santos
| Decision Date | 15 August 1997 |
| Docket Number | D,Nos. 2337,2338 and 2339,s. 2337 |
| Citation | 123 F.3d 61 |
| Parties | William G. CARLOS; Salvatore Ardisi; Michael Armistead; Paul Caccia; Michael Christiansen; William Frattarola; Russell Infantino; Raymond Nikisher; Vito Rizzi; Peter Farrell; Roger Schreader; Lisa Carlucci; Katherine Brown; William Bujarski; Gary Cerrone; Joseph Dusavage; Richard Hatfield; Thomas Johanson; David Orce; David Ryan; Michael Gibbons; Margaret Bradley; Virginia Irwin; Mary Jane Fredeman; Ann Marie Repanti, Plaintiffs-Appellants-Cross-Appellees, Jim Gordon; George Gallinger; Maureen Petranchik; Mariam D'Alessio; Thomas D'Amico, Plaintiffs-Appellants, v. Carmelo J. SANTOS; Charles Ferrante, Sr.; Samuel R. Gambino; Town of Putnam Valley, New York, Town of Putnam Valley; the Town Board of the Town of Putnam Valley, New York, Defendants-Appellees-Cross-Appellants. ockets 97-7523, 97-7619 and 97-7631. |
| Court | U.S. Court of Appeals — Second Circuit |
Jonathan Lovett, White Plains, NY (Lovett & Gould, White Plains, NY, of counsel), for Plaintiffs-Appellants-Cross-Appellees.
William J. Madonna, Bronx, NY, for Plaintiffs-Appellants.
Julius W. Cohn, White Plains, NY (Sweeney Cohn Stahl & Vaccaro, White Plains, NY, of counsel), for Defendant-Appellee-Cross-Appellant Gambino.
David O. Wright, Shrub Oak, NY, for Defendant-Appellee-Cross-Appellant Ferrante, Sr.
(William H. Bave, Jr., Wilson, Bave, Conboy & Bave, White Plains, NY, of counsel and on the brief), for Defendants-Appellees-Cross-Appellants.
Before: OAKES and PARKER, Circuit Judges, and NICKERSON, District Judge. *
Members of the Putnam Valley, New York, police force brought three suits against certain members of the town board of Putnam Valley and against the Town of Putnam Valley itself (the "Town"). The plaintiffs alleged that the board members planned to vote to abolish their police department as a means of retaliating against the Chief of Police (the "Chief") for exercising First Amendment rights. They sought a permanent injunction and damages. The district court (Charles L. Brieant, Judge ), consolidated the three actions, severed the claims for monetary damages, and held a bench trial on the equity issues. The court dismissed the claims against the individual defendants, denied the plaintiffs' request for a permanent injunction, but required the defendants to wait 120 days before implementing any abolition of the force. The court then granted a stay pending appeal. We affirm all aspects of the district court's opinion except the 120-day waiting period, which we vacate, and one of the findings of fact made by the court, which we also vacate.
The Town of Putnam Valley is one of six towns within Putnam County, New York. Putnam Valley and two other towns have their own police forces; the remaining three towns do not. The County Sheriff provides police protection to the towns that do not have their own forces, and backup services to the towns that do. Defendants Santos, Gambino, and Ferrante are members of the town board of Putnam Valley and have stated their intention to vote as soon as possible to abolish the town police force. They constitute a majority of the board.
Apparently there has been bad blood between plaintiff Carlos (the Chief) and the defendants. The defendants have taken the position that the town police force is unnecessary and expensive, especially because the Town has had to settle several lawsuits involving the police force. The Chief, on the other hand, charges that the Board members' proffered motives for abolishing the police force are merely pretexts for retaliation against him for his political involvement.
In September and October 1996, Carlos and other members of the police force brought three separate lawsuits against the defendants, alleging that the defendants were depriving them of property and retaliating against them for exercise of political speech, in violation of 42 U.S.C. § 1983, the First Amendment, and the Fourteenth Amendment. Jurisdiction was premised on the presence of a federal question. See 28 U.S.C. § 1331. The three actions were consolidated by the district court.
On November 1, 1996, Judge Brieant issued a preliminary injunction preventing the abolition of the police department. On November 8, 1996, the defendants consented to extend the injunction until trial, which was set for December 3, 1996. Judge Brieant severed the jury issues and heard trial on the equity issues. The trial concluded on December 13. On December 17, 1996, defendant Ferrante filed a Notice of Appeal from the preliminary injunction. The appeal to this Court was expedited, but a decision was not made until March 17, 1997. By that time, Judge Brieant was prepared to issue his final decision, so this Court remanded the case to Judge Brieant so that he could do so. On April 7, 1997, the district court issued its findings of fact and conclusions of law, which denied an injunction, dismissed all claims asserted against the defendants in their individual capacities, dismissed third party claims, but granted the plaintiffs a stay pending appeal and imposed a 120-day waiting period should the Board vote to abolish the police department. The court supplemented these findings and conclusions on April 17, holding that New York law did not require a mandatory public referendum prior to abolishing the police department. Judgment was entered on these two orders on April 17.
The plaintiffs have appealed, and the defendants have cross-appealed.
The complaints alleged that the defendants engaged in the following specific acts:
(1) Before Santos took office, he met with Carlos in order to convince Carlos to retire;
(2) the defendants conducted secret meetings in order to further their retaliatory plan;
(3) the defendants provided scurrilous information to the FBI, which caused Carlos's application to participate in training at the FBI Academy to be rejected;
(4) the defendants hired a consultant to review the police department and produce a negative report;
(5) the defendants held a televised town board meeting "solely for the purpose of staging vicious personal attacks on the Chief of Police";
(6) the defendants encouraged a third party (one Olsen) to institute state litigation designed to embarrass the Chief;
(7) Ferrante, "purportedly acting as 'private citizen Charles Ferrante,' " made false allegations of police misconduct after commencement of this litigation.
Following trial, Judge Brieant made findings regarding these allegations. He found that Santos had indeed met with Carlos in order to convince him to retire. He did not, however, credit the plaintiffs' allegation that the defendants provided scurrilous information to the FBI: he stated that "[t]he source or names of persons conveying the adverse information cannot be identified, but it did not necessarily come from the defendants, as others in law enforcement and politics have come to dislike the Chief over the years." He found that the defendants did hire a consultant, but that the consultant's report was not particularly derogatory. He found that there was insufficient information to resolve the allegation that Ferrante had made false allegations of police misconduct. Finally, he found that all three defendants' motivation for their actions was essentially to save money for the taxpayers.
The plaintiffs argued that the defendants were liable under 42 U.S.C. § 1983. Judge Brieant disagreed, and dismissed all claims against the individual defendants on the ground of legislative immunity. He stated the following:
The Court concludes that the decision as to whether or not this Town should have its own police department is essentially legislative and political in its character, rather than administrative. The issue may be resolved by a majority of the Town Board after a public hearing. Its power to do so is absolute and unreviewable even if impelled by mixed motives, some of which, as in this case, are or may be political, invidious, or retributive.
It is clear that the individual members of the Town Board are absolutely immune from personal liability under 42 U.S.C. § 1983 for making legislative decisions of the sort present here, including budgetary allocations and the decision of whether or not any town department or position should be maintained and continued, or abolished.
On appeal, the plaintiffs argue that their complaints against the defendants in their individual capacities should not have been dismissed, because the alleged wrongdoings included conduct that was "non-legislative in nature" and that occurred "outside of the legislative forum." Therefore, they argue, the conduct does not come within the legislative immunity doctrine.
Section 1983 provides a right of action against any person who "under color of" state law subjects another person to a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Our first inquiry, therefore, is whether the actions alleged by the plaintiffs come within the definition of "under color of" law.
" 'The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." ' " Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996) (quoting West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941))), cert. denied, --- U.S. ----, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997). Santos's meeting with Carlos was not a "misuse of power, possessed by virtue of state law." Santos had not yet even taken office: he possessed no power by virtue of state law to misuse. Nor did state authority...
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