Genovese v. Town of Southampton

• Decision Date: 01 February 2013
• Docket Number: No. 10–cv–3470 (JFB)(AKT).,10–cv–3470 (JFB)(AKT).
• Citation: 921 F.Supp.2d 8
• Parties: Nancy GENOVESE, Plaintiff, v. TOWN OF SOUTHAMPTON et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

921 F.Supp.2d 8

Nancy GENOVESE, Plaintiff,

v.TOWN OF SOUTHAMPTON et al., Defendants.

No. 10–cv–3470 (JFB)(AKT).

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

Feb. 1, 2013.

Frederick K. Brewington and Johanna David, Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiff.

Jeltje DeJong and David H. Arntsen, Devitt Spellman Barrett, LLP, Smithtown, NY, for defendants.

memorandum and order

JOSEPH F. BIANCO, District Judge.

Plaintiff Nancy Genovese (“Genovese” or “plaintiff”) commenced this action against the Town of Southampton (“the Town”), Southampton Town Police Lieutenant Robert Iberger (“Iberger”) (collectively, “the Southampton defendants”), the County of Suffolk, Suffolk County Undersherrif Joseph T. Caracappa, Suffolk County Deputy Sheriff Robert Carlock, Suffolk County Sherriff Lieutenant Frederick Luete, and John or Jane Does 1 through 10 who are believed to be employees of the Suffolk County Sherriff's Office (collectively, “defendants”), alleging that these individuals and entities violated numerous federal and state laws arising out of plaintiff's detention and arrest on July 30, 2009, outside Gabreski Airport. Plaintiff, who possessed a rifle in a gun case, was originally detained after Iberger observed plaintiff taking photographs of a military base. Plaintiff was subsequently arrested by Suffolk County Police Officers for trespass.

As to the claims against the Southampton defendants that are relevant to this motion, plaintiff alleges that Iberger and the Town violated her constitutional rights pursuant to 42 U.S.C. § 1983.¹ Specifically, plaintiff claims that Iberger falsely arrested her, used excessive force against her, and unlawfully seized her firearm, and that the Town is liable for having an unconstitutional policy, practice, or custom, and for failing to train its officers.

The Southampton defendants now move for summary judgment on all of the claims asserted against the Town and Iberger, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants the Southampton defendants' motion in its entirety with respect to the federal claims, and declines to exercise supplemental jurisdiction over the state law claims.

First, with respect to the false arrest claim, it is undisputed that, on July 30, 2009, plaintiff was taking photographs of a vital defense installation. Based upon that undisputed evidence, there was probable cause for Lieutenant Iberger to conclude that plaintiff had violated 18 U.S.C. § 795, which makes it a crime to photograph a vital military installation. In fact, following oral argument, plaintiff acknowledged that “there is nothing to oppose the applicability of 18 U.S.C. § 795 in this matter.” (Letter by Nancy Genovese, Aug. 10, 2012, ECF No. 54.) Thus, whether Iberger's detention of plaintiff is characterized as a Terry stop or an arrest, his actions were supported by applicable law.

Second, with respect to the excessive force claim, it is uncontroverted that plaintiff tried to stop Iberger from removing the gun case from her car. Moreover, plaintiff's allegation of force is that Iberger's elbow and shoulder came into contact with her body as he retrieved the rifle from the car, but plaintiff also concedes that the push was not strong enough to cause her to fall. Even crediting plaintiff's version of events and construing the facts most favorably to plaintiff, no rational jury could possibly conclude that this minimal contact constituted excessive force.

Third, with respect to the seizure of the rifle, it is undisputed that the gun case was in plain view in the front passenger seat of the car during the lawful detention. In fact, plaintiff confirmed to Iberger that a gun was in the case. Under such circumstances, Iberger had the authority to seize the gun without a warrant during the detention.

In the alternative, the Court concludes that Iberger would be entitled to qualified immunity on each of these claims given the uncontroverted facts in this case.

With respect to the Section 1983 claim against the Town, that claim must fail because there is no underlying deprivation of plaintiff's constitutional rights by a Town employee. In any event, there is no evidence of a policy, practice, or custom that would allow this claim to survive summary judgment against the Town.

Finally, the Court notes that, although there are serious allegations of the use of additional force against plaintiff subsequent to Iberger's stop on July 30, 2009 (after other law enforcement officials arrived) as well as other violations of her constitutional rights, none of the evidence regarding those events relate to the Southampton defendants; rather, those allegations, which are made against the County defendants, relate to conduct after Iberger had already left the area. Therefore, Iberger is not alleged to have had any involvement in those subsequent acts.

Accordingly, summary judgment on the federal claims against the Southampton defendants is warranted, and the Court declines to exercise supplemental jurisdiction over any of the state claims against them. The case will proceed against the County defendants.

I. Background

A. Factual Background

The Court has taken the facts set forth below from the parties' depositions, affidavits, and exhibits, and from the parties' respective Rule 56.1 Statements of Facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50–51 (2d Cir.2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.²

On July 30, 2009, plaintiff stopped her car on the side of County Road 31 to take pictures of a restored helicopter outside Gabreski Airport, half of which is a United States Air Force Base. (Def.'s 56.1 ¶¶ 1–2, 41.) Plaintiff had a semiautomatic assault rifle in a gun case in her car. ( Id. ¶ 16.) At approximately 6:40 p.m., Iberger, a Lieutenant with the Southampton Town Police Department who was on vacation that day, observed plaintiff photographing the Airport fence line. ( Id. ¶¶ 39, 41–42.) Iberger initially pulled over with the intent of merely forwarding the license plate information to Suffolk County Criminal Intelligence once the individual drove past him. ( Id. ¶ 44.) However, Iberger observed the vehicle continuously moving forward, stopping, and then moving forward again. ( Id. ¶ 45.) Having been certified by the Department of Homeland Security as a counterterrorism awareness instructor and having previously been involved in incidents of individuals surveying government facilities, Iberger believed plaintiff's activities warranted further investigation. ( Id. ¶¶ 32–37, 47.)

Iberger followed the plaintiff as she drove her vehicle into the entrance road for the airport, and pulled his car alongside hers. ( Id. ¶¶ 46–47.) After observing plaintiff taking photos of the facility, Iberger identified himself as a police officer and asked plaintiff what she was doing and if she saw the signs prohibiting photography of the facility.³ ( Id. ¶¶ 49–50.) Plaintiffresponded that she “was a patriot and ... was just taking pictures of the helicopter for her daughter ....” (Arntsen Declaration (“Arntsen Decl.”) Ex. D, Deposition of Robert Iberger (“Iberger Dep.”) at 73.) Plaintiff does not dispute that Iberger asked her whether she saw the signs. (Pl.'s 56.1 ¶ 50; Def.'s 56.1 ¶ 50.) Plaintiff showed Iberger the photographs, and Iberger saw that the photos contained the barbed wire areas and other security features of the fence. (Def.'s 56.1 ¶ 51.)

Iberger unsuccessfully attempted to get the attention of the guard in the security booth at the airport, and was unable to contact the airport by telephone. ( Id. ¶ 52.) Iberger then called a Southampton Police Dispatcher and asked them to contact the airport. A few minutes later, guards from the airport joined plaintiff and Iberger. ( Id. ¶¶ 53–54.)

After Iberger showed the guards the photographs, one of the guards asked Iberger whether he was aware that there was a gun case in the front passenger seat; Iberger told them he was not so aware.⁴ ( Id. ¶¶ 55–56.) Iberger and one of the guards approached the side of the car and observed a gun case on the floor leaning against the door. ( Id. ¶ 57.) The rifle in the hard case, which said “Bushmaster” on it, was visible from the outside of the car. ( Id. ¶ 16.)

Iberger asked plaintiff what was in the case; she initially told him it was a shotgun or a rifle, but then said she was not sure what type of gun it was. ( Id. ¶ 58.) Iberger advised plaintiff that he was securing the case for officer safety. ( Id.)

Although Iberger does not remember when, at some point plaintiff exited her vehicle. ( Id. ¶ 59; Iberger Dep. at 86–87.) Iberger told plaintiff twice to stand back while he secured the gun case. (Def.'s 56.1 ¶ 60.) Plaintiff told Iberger that she did not consent to a search. (Arntsen Decl. Ex. C, Deposition of Nancy Genovese (“Genovese Dep.”) at 130.) Plaintiff does not dispute that she tried to stop Iberger from removing the gun case from the car. (Def.'s 56.1 ¶ 22; Pl.'s 56.1 ¶ 22.) Plaintiff testified that Iberger “pushed” her, but then stated that it was his elbow and shoulder that came into contact with her body “as he pulled the rifle up off the floor and opened the car door.” (Genovese Dep. at 131.) She stated that she lost her balance and was hurt, but that she did not fall. ( Id. at 130–31.) Plaintiff concedes that any bruises she received that day occurred while being processed in jail by Suffolk County, and not during the incident with Iberger. (Def.'s 56.1 ¶ 24; Pl.'s 56.1 ¶ 24.)

After opening the case, Iberger determined that the weapon appeared to be the stock of an M4 type AR15 assault rifle. (Def.'s 56.1 ¶ 61.) Iberger asked plaintiff why sh...