Devittorio v. Hall

• Decision Date: 07 November 2008
• Docket Number: No. 07 Civ. 0812(WCC).,07 Civ. 0812(WCC).
• Citation: 589 F.Supp.2d 247
• Parties: Peter T. DeVITTORIO, Ralph Tancredi, Michael Marinelli and Edward Arce, Plaintiffs, v. David HALL, individually, Anthony Marraccini, individually, and the Town/Village of Harrison, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

589 F.Supp.2d 247

Peter T. DeVITTORIO, Ralph Tancredi, Michael Marinelli and Edward Arce, Plaintiffs, v. David HALL, individually, Anthony Marraccini, individually, and the Town/Village of Harrison, New York, Defendants.

No. 07 Civ. 0812(WCC).

United States District Court, S.D. New York.

November 7, 2008.

COPYRIGHT MATERIAL OMITTED

Lovett & Gould, White Plains, NY (Jonathan Lovett, of Counsel), for Plaintiffs.

Bond, Schoeneck & King, PLLC, Garden City, NY (Mark N. Reinharz, of Counsel), for Defendants.

OPINION AND ORDER

CONNER, Senior District Judge.

Plaintiffs, Peter DeVittorio ("DeVittorio"), Michael Marinelli ("Marinelli"), Ralph Tancredi ("Tancredi") and Edward Arce ("Arce"), bring this action under 42 U.S.C. § 1983 alleging violations of their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution and violations of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2520 ("Title HI"). Defendants, David Hall ("Hall"), Anthony Marraccini ("Marraccini") and the Town/Village of Harrison, New York (the "Town" or "Harrison") move for summary judgment pursuant to FED. R. CIV. P. 56. For the reasons stated below, defendants' motion is granted.¹

BACKGROUND

Plaintiffs are police officers for the Town Police Department (the "Department"). Plaintiffs DeVittorio and Marinelli are members of the Police Benevolent Association ("PBA"); at the time relevant to this lawsuit Tancredi was the PBA President and Arce was the PBA Sergeant-At-Arms. (Complt.¶¶ 3-6.) Plaintiffs allege that Hall, the Town's Chief of Police, and Marraccini, a Captain in the Department, installed a closed-circuit television camera and audio recorder in the men's locker room at Police Headquarters. (Id. ¶¶ 7-10.) They claim that defendants used the equipment to tape officers in various states of undress, and record and listen to private conversations regarding alleged departmental corruption and plaintiffs' objectives as members and officers of the PBA. (Id. ¶ 11.)

Plaintiffs Marinelli and Tancredi claim that in retaliation for their reporting the camera and expressing concerns as PBA members, defendants gave them assignments usually given to junior members of the Department, and Marraccini gave a permanent investigative assignment to another officer after proposing earlier that it go to Marinelli. (Id. ¶¶ 21-23.) In a February 2006 meeting, in which DeVittorio expressed his concerns about the incident, the PBA adopted a resolution to report the camera to an outside law enforcement agency. (Id. ¶¶ 24-25.) Plaintiffs claim that in March or April 2006 Marraccini made false accusations that Tancredi misspent PBA money and threatened disciplinary action against PBA members if they refused to report Tancredi. (Id. ¶ 26.)

I. The Video Camera in the Locker Room²

In the spring of 2005, defendants became aware of incidents of vandalism in the officer locker room at Police Headquarters. (Defs. R. 56.1 Stmt. ¶ 2.) Marraccini noticed that holes were kicked into the locker room walls, the lock on his locker was broken on four occasions and Hall's locker was glued shut on two occasions.³ (Id. ¶¶ 3, 5.) It is uncontested that Marraccini was also aware that an eagle statue on Tancredi's locker was being repeatedly damaged. (Id. ¶ 4.)

The following details of the locker room are uncontested. There are 72 individual lockers within the locker room and both police officers and civilian members of the Department, such as custodians, have access to the room. (Id. ¶¶ 7-9, 11.) The door to the locker room has a combination lock but the combination is common knowledge and provided to anyone in the Department. (Id. ¶ 12.) The locker room contains the patrolman mailboxes, several message boards and an exercise area with equipment that can accommodate up to ten people at a time. (Id. ¶¶ 13-17.) There is a shower area and bathroom adjacent to the locker room in a separate area with doors. (Id. ¶¶ 20-21.)

Marraccini decided that a video camera without audio should be installed in the locker room to focus on his locker and identify the vandal(s). (Id. ¶¶ 23-24.) Marraccini spoke to Hall about it and Hall agreed to the installation. (Id. ¶ 25.) Marraccini asked Sergeant Dominick Pascale ("Pascale"), who handled the Department's telecommunications and computer system, to make the necessary arrangements. (Id. ¶¶ 26-27.) Pascale contacted Andrew Natarelli ("Natarelli") of Alcorn Systems, Inc., who had done prior work for the Department in installing and maintaining telecommunications systems and equipment. (Id. ¶¶ 28-29.)

After speaking with Pascale and Marraccini, Natarelli purchased a Color 380 LOR Mini Lens CMOS Camera (Model No. CNC7002ST), which has only video capability and no microphone or audio capability. (Id. ¶ 31.) Only two wires were attached to the camera, one for video and one for the power source, for the camera to have any audio capability it would have to have a microphone and three wires attached. (Id. ¶¶ 32-33.) In April or May 2005 Pascale and Natarelli installed the camera in the ceiling of the locker room without a microphone or any audio capability. (Id. ¶¶ 34-35.)

Plaintiffs viewed the camera on April 10, 2008 at Police Headquarters with their attorney and defendants' attorney and noted that the camera had three small wires projecting from it and a larger black wire with an apparent connector. (Pls. R. 56.1 Stmt. ¶ 93.) Plaintiffs state that prior to this Marraccini had shown Tancredi the camera and holding the larger black wire had said: "This was never hooked up." (Id. ¶ 96.)

Computer software, known as DigiVue, which controlled the functioning of the camera, was installed on Marraccini's computer in order for the camera to work. (Defs. R. 56.1 Stmt. ¶¶ 39-41.) Defendants allege that this software was not installed on any other computer in the Department. (Id. ¶ 42.) Plaintiffs state that Hall told Tancredi the camera was hooked up to Pascale's computer but thereafter Marraccini told Tancredi that it was hooked up to his computer. (Pls. R. 56.1 Stmt. ¶¶ 100-01.) It is uncontested that Marraccini did not open, access or use the software at any time, and although the camera was intended to work on a motion sensor, the motion sensor was never functioning because of a manufacturing defect in the DigiVue software. (Defs. R. 56.1 Stmt. ¶¶ 43-47.)

It is also uncontested that Pascale and Natarelli attempted to fix the problem but were unsuccessful, Natarelli contacted DigiVue for upgraded software but that software was never installed on any computer and because the motion sensor never worked, no video recordings were ever made of anybody. (Id. ¶¶ 49-52.)

The camera was installed to focus solely on Marraccini's locker but the field of view was too wide and both Marraccini's locker and the one next to it were visible. (Id. ¶¶ 55-59.) When plaintiffs discovered the camera, it was pointed down the middle of an aisle of lockers. (Pls. R. 56.1 Stmt. ¶ 119.) Pascale and Natarelli attempted to correct the field of view but were unable to fix the problem. (Defs. R. 56.1 Stmt. ¶ 60.)

On May 4, 2005, Pascale and Natarelli were able to capture two still pictures from the camera using the DigiVue software, however, these are the only pictures that were ever taken by the camera and there are no people visible in either picture. (Id. ¶¶ 61-62.) Defendants swear in their affidavits that at no time did Pascale, Natarelli, Marraccini or Hall ever see or hear about any recordings or pictures of anyone in the locker room. (Id. ¶¶ 63-66.) Marraccini and Hall swear that at no time did they ever observe anyone on the camera in the locker room. (Id. ¶¶ 67-68.) In mid to late 2005, Marraccini instructed Pascale to "get rid of the camera and un-install the DigiVue software. (Id. ¶ 70.) The software was uninstalled but the two still pictures were saved on Marraccini's computer. (Id. ¶¶ 71-73.) Although the camera was not functional, it remained in the vent above Marraccini's locker for several months. (Id. ¶ 79.)

Marraccini and Pascale both state that Tancredi asked them several times if a camera could be installed in the locker room because of the vandalism and damage done to the eagle statue on his locker. (Id. ¶¶ 74-76.) Lieutenant Deborah Schuck states in her affidavit that she heard Tancredi ask Pascale about installing a camera in the locker room. (Id. ¶ 77.) Tancredi denies ever making this inquiry. (Lovett Affm., Ex. 2 at ¶ 28.)

In December 2005 an officer in the Department saw the camera hanging through an opening in the vent. (Defs. R. 56.1 Stmt. ¶¶ 80-81.) At a subsequent PBA meeting Marraccini, a PBA member, stated "something to the effect that the purpose of the camera was not to observe people in the locker room, e.g., that he was not `gay' and was not looking at their private areas." (Id. ¶ 82.)⁴ Marraccini showed the camera to Tancredi and advised him that it was not hooked up properly and never worked. (Id. ¶ 83.) It is uncontested that Marraccini told Tancredi he would be willing to have an outside investigation done and would do anything to establish a comfort level with the officers. (Id. ¶¶ 84-85.) Tancredi told Marraccini that was not necessary and no criminal charges were brought against the Department as a result of the incident. (Id. ¶¶ 86-87.) It is also uncontested that in December 2005 Hall had a meeting with Tancredi and PBA counsel Richard Bunyan, during which Bunyan indicated that they intended to report the incident to an outside law enforcement agency. (Id. ¶¶ 88-89.) Hall offered to turn over the camera matter to either the Westchester County District Attorney's Office, the Westchester County Police or the New York State Police. (Id. ¶ 91.) Plaintiffs state that Hall told Tancredi that the camera "was never hooked up. No audio, no audio." (Pls. R. 56.1 Stmt. ¶ 94.) Plaintiffs state that Hall also claimed that he did not know the camera had been installed in the locker room. (Id.) Plaintiffs...