Gil v. County of Suffolk

• Decision Date: 06 November 2008
• Docket Number: No. CV 06-1683(LDW)(ARL).,CV 06-1683(LDW)(ARL).
• Citation: 590 F.Supp.2d 360
• Parties: Bryan M. GIL and Maureen B. Gil, Plaintiffs, v. COUNTY OF SUFFOLK, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 360

590 F.Supp.2d 360

Bryan M. GIL and Maureen B. Gil, Plaintiffs, v. COUNTY OF SUFFOLK, et al., Defendants.

No. CV 06-1683(LDW)(ARL).

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

November 6, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patricia Weiss, Esq., Sag Harbor Shopping Cove, Sag Harbor, NY, for Plaintiffs.

Christine Malafi, Suffolk County Attorney, by Richard T. Dunne, Assistant County Attorney, Hauppauge, NY, for Defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiffs Bryan Gil ("Gil") and Maureen Gil bring this action under 42 U.S.C. § 1983 against defendants County of Suffolk (the "County"), former Suffolk County Police Commissioner John C. Gallagher, Suffolk County Police Detective Patrick Leslie ("Detective Leslie"), Suffolk County Police Lieutenant James Connell ("Lieutenant Connell"), and Suffolk County Police Officers Mitchell Weisbrod ("Officer Weisbrod") and Thomas Pryor ("Officer Pryor"), asserting claims for, inter alia, false arrest, malicious prosecution, conspiracy and excessive force.¹ Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Gil opposes the motion.

I. BACKGROUND

For purposes of this motion, the evidence presented can be summarized as follows. At approximately 3:10 a.m. on April 12, 2003, taxi driver Denis Short ("Short") reported to his cab company that he had just been robbed at gun point by two individuals in Farmingville, New York. According to the 911 report, the 911 dispatcher's description put over the air referred to the assailant as a white male, 5' 2" tall, wearing a mask and blue hooded shirt. Officers Weisbrod and Pryor assert that the dispatcher referenced a blue hooded "sweatshirt." In response to the dispatch, Officer Pryor located Short at Hetty's Path and South Coleman Road in Farmingville. Short reported the incident and described the assailant to Officer Pryor. In the meantime, Officer Weisbrod observed from his police vehicle a male— later identified as Gil, then 16 years old— in the general vicinity run off the road and duck behind a tree. Gil maintains that he left the road and went behind the tree because he did not want to be bothered by anybody. Officer Weisbrod exited his police vehicle, drew his weapon, and directed the male to come out from behind the tree. Officer Weisbrod asserts that he handcuffed and then frisked the subject, who turned out to be Gil. Gil, however, claims that he was frisked, then handcuffed. Gil further maintains that he explained to Officer Weisbrod that he just came from his girlfriend's house and was on his way home and that Officer Weisbrod could see that Gil was cooperative and not nervous. Gil adds that Officer Weisbrod found no weapon or money in his possession, and that Officer Weisbrod told Gil that he would have him "out of here quickly or shortly," Deposition of Bryan Gil, at 35 (Defendant County of Suffolk's Statement Pursuant to Local Rule 56.1, Ex. D). In any event, Officer Weisbrod reported that he had a subject in custody, and Officer Pryor then drove Short to where Gil was located. At 3:27 a.m.—approximately 17 minutes from Short's report of the robbery and, therefore, less from when Officer Weisbrod detained Gil—Short positively identified Gil as the assailant with the gun.

Gil maintains that the circumstances suggest that the show-up identification was untrustworthy. In this respect, Gil asserts that Short's description of the robber differed significantly from Gil's description that night. For instance, the robber was described as 5' 2" tall wearing a mask and blue hooded shirt, whereas Gil was 5' 9" tall and wearing, inter alia, a black knit earwarmer and black hooded sweatshirt. Gil asserts that the show-up scene was

artificially created by Officer Weisbrod and other SCPD officers by posing Gil as leaning against the police vehicle, by keeping Gil in handcuffs, by Officer Pryor telling the victim, essentially, that the SCPD had caught the robber, by keeping the victim across the street from where Gil was held on a misty, foggy night in a dimly lit area so that Gil's face and height was [sic] not clearly visible to the victim.

Plaintiffs' Statement of Disputed Facts Precluding Defendants' Rule 56(b) Motion ("Plaintiffs' Statement") ¶ 2.

Moreover, Gil maintains that the SCPD failed to adequately train and supervise its field officers to conduct a proper show-up and failed to adhere to the Manual for Police in the State of New York in connection with the show-up of Gil. In this respect, he asserts that, before the show-up, the police officer defendants, Sergeant Vincent DiResta, and other officers not named herein as defendants failed, inter alia, to inform Short that the suspect may not be the person who committed the offense and to write down the victim's statements. In any event, following Short's identification of Gil, Gil was arrested and taken to the precinct.

At the precinct, Detective Leslie processed Gil for the felony robbery charge, during which time Detective Leslie took a statement from Short concerning the incident and show-up identification. In the statement, transcribed by Detective Leslie and signed by Short, Short, inter alia, confirmed his show-up identification of Gil.

Gil maintains that Detective Leslie deliberately coached Short in connection with Short's statement by repeatedly interrupting Short with questions and dialogue in the guise of clarification, intentionally rephrased what Short initially told the officers on the scene, and refused to take an alibi statement from Gils' girlfriend, Ashley Schoenig, at the precinct despite knowing that she was Gil's alibi and that she was available to make her alibi statement. He also maintains that Detective Leslie, inter alia, (1) failed to note whether he gave Gil his Miranda warnings; (2) did not allow Gil to make a phone call for seven hours after his arrest and for over three-and-one-half hours after he told Detective Leslie he wanted a lawyer; and (3) delayed Gil's arraignment for approximately 24 hours after his arrest paperwork was processed to allow the police to find evidence linking Gil to a crime that they knew he did not commit.

Thereafter, Gil was indicted for the robbery of Short. Gil maintains that Officer Weisbrod falsely testified and deliberately misled the grand jury by purposefully misstating the location of the stop and Gil's detention and by falsifying the description of the robber to more accurately portray Gil's characteristics as consistent with Short's identification. According to Gil, Officer Weisbrod testified falsely to the grand jury in retaliation for Gil's filing of a notice of claim against the County and others in July 2003 and "to further his own personal goals" as he had already received a commendation for Gil's arrest prior to testifying. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion Pursuant to Fed.R.Civ.P. Rule 56 ("Plaintiffs' Mem."), at 22.

Gil asserts that Detective Leslie also retaliated against him for filing the notice of claim. In this respect, he asserts that Detective Leslie provided false information to the Suffolk County Police Department's ("SCPD") Internal Affairs Bureau during its investigation by Lieutenant Connell of police conduct in connection with the robbery.

After a hearing in the underlying criminal action, the trial judge suppressed Short's identification as unduly suggestive. The district attorney appealed and the Second Department reversed, holding: "The identification procedure in this case was not improper merely because [Gil] was handcuffed at the time that he was displayed to the victim. Nor was the procedure improper merely because the victim had been told that the police had a suspect in custody." People v. Gil, 21 A.D.3d 1120, 803 N.Y.S.2d 634, 635 (2d Dep't 2005) (citations omitted) (citing People v. Armstrong, 11 A.D.3d 721, 783 N.Y.S.2d 134, 136 (3d Dep't 2004)) (holding that "a showup identification is permissible if reasonable and not unduly suggestive," and that a show-up is not unduly suggestive as a matter of law even if the defendant is "identified while handcuffed and seated in a patrol car"). The Second Department found that the

police had reasonable suspicion to pursue, stop and detain [Gil] based upon ... [a] broadcast which provided ... a general description [and based on] the close proximity of the defendant to the site of the crime, and the short passage of time between the crime [and the defendant's stop]. [Gil's] unusual behavior in running across the street and ducking down behind a tree or bushes added to the reasonable suspicion that justified [Gil's] detention pending the victim's prompt `show-up' identification of him as one of the robbers.

Gil, 803 N.Y.S.2d at 635 (internal quotations and citations omitted). After a bench trial, Gil was acquitted.

Gil and his mother, Maureen Gil, then commenced this action. In addition to Gil's claims for false arrest, malicious prosecution, conspiracy and excessive force, Gil asserts a First Amendment retaliation claim and Maureen Gil asserts a claim for "interfering with her rights to parent and see her arrested teenage son while he was in police custody for about 30 hours." Plaintiffs' Mem. at 24.

As for Gil's retaliation claim, this claim appears to be based, in part, on the alleged retaliatory conduct of Officer Weisbrod and Detective Leslie following Gil's filing of the notice of claim. In addition, Gil maintains that Lieutenant Connell and Commissioner Gallagher retaliated by conspiring and engaging in unlawful conduct in connection with the internal affairs investigation by, inter alia, (1) failing to advise Gil of his right to remain silent when he was requested to come in for an interview with Internal Affairs; (2) failing to interview all police officers involved in Gil's arrest; and (3) requesting the district attorney's office to engage in "heightened prosecutorial activity and...