Loria v. Gorman
| Decision Date | 26 September 2002 |
| Docket Number | Docket No. 01-7964.,Docket No. 01-7965. |
| Citation | 306 F.3d 1271 |
| Parties | Theodore E. LORIA, Plaintiff-Appellee, v. Charles GORMAN, individually and in his capacity as a police officer for the City of Rochester, Robert Nitchman, individually and in his capacity as a police officer for the City of Rochester, Defendants-Appellants, City of Rochester, Mark Wiater, George Markert, individually and in his capacity as a police officer for the City of Rochester, Vasquez, individually and in his capacity as a police officer for the City of Rochester, Debra Stritzel, individually and in her capacity as an employee of the City of Rochester, Defendants. Theodore E. Loria, Plaintiff-Appellee, v. Dale Feor, individually and in his capacity as a police officer for the City of Rochester, Defendant-Appellant, City of Rochester, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
Nira T. Kersmich, Rochester, NY, for Appellee.
Karen M. Kammholz, Office of the Corporation Counsel, Rochester, N.Y. (Linda S. Kingsley, Corporation Counsel, Rochester, NY, of counsel), for Appellants Gorman and Nitchman.
Michele DiGaetano, Office of the Corporation Counsel, Rochester, N.Y. (Linda S. Kingsley, Corporation Counsel, Rochester, NY, of counsel), for Appellant Feor.
Before: MESKILL, SACK and BRIGHT* Circuit Judges.
These interlocutory appeals from the United States District Court for the Western District of New York, Siragusa, J., arise out of plaintiff-appellee Theodore Loria's (Loria) claims of misconduct by the City of Rochester and several of its police officers. The district court granted summary judgment in favor of defendants on most of Loria's claims but denied qualified immunity to Officers Charles Gorman, Robert Nitchman and Dale Feor (collectively "appellants"), finding the existence of genuine issues of material fact. These denials are the subject of the interlocutory appeals. We deal with Loria's claim that we lack appellate jurisdiction, a claim we find unpersuasive, after setting out the facts because of their bearing on the issue.
On the merits of the appeals, we affirm in part, reverse in part and remand to the district court. We hold that the district court properly denied qualified immunity to Gorman and Feor but erred by denying it to Nitchman.
"We review de novo the [d]istrict [c]ourt's decision to deny a government official's motion for summary judgment on the basis of qualified immunity." Poe v. Leonard, 282 F.3d 123, 131 (2d Cir.2002). The following facts are alleged by Loria and stipulated to by appellants unless otherwise noted.
In the early morning hours of April 10, 1998, Loria co-hosted a party for seventy to eighty people at his house, located at 15 Weaver Street in Rochester. The party was predominately held indoors with some overflow of guests onto the driveway. At approximately 1:30 a.m., two police officers arrived at 15 Weaver Street in response to a noise complaint. Loria admits that music was played at the party before the police arrived but claims that it was not loud enough to be heard outside the house.
The officers spoke with Loria's friend Joey in the driveway. Then Joey went into the house and informed Loria that officers were outside in response to a noise complaint. Loria claims that he immediately directed that the stereo be turned off and that it was not turned on again that night. Joey went back outside and informed the officers that Loria owned the house. The officers left soon thereafter.
Approximately forty-five minutes later, a different group of officers, including appellants Gorman and Nitchman, arrived at 15 Weaver Street in response to a second noise complaint. While neither Gorman nor Nitchman responded to the initial noise complaint, Gorman was aware that officers had been dispatched to 15 Weaver Street earlier that evening. Upon their arrival, Gorman and Officer Cruz approached the open side door of the house and Cruz began speaking with someone inside about the noise complaints. There was a request that the owner come outside to discuss the problem. Joey informed Loria that officers were outside and wished to speak with him regarding the noise complaints. Loria said he had nothing to say to the officers and told Joey to close the door.
When Joey refused, Loria approached the door and attempted to close it. To prevent the door from closing, Gorman stuck out his arm and leaned into the door. In so doing, he pushed the door back and it hit Loria in the face, knocking him backwards. Gorman then took one or two steps into the foyer. Loria alleges that Gorman then grabbed him by his coat, pulled him outside and slammed him against the hood of his Jeep ripping his coat and sweater and dislocating his shoulder. Loria claims that then Gorman informed him that he was under arrest.
Loria claims that Gorman then handcuffed him and transferred him to Nitchman, who escorted him to a police car and placed him in the back seat. Loria alleges that soon after, Lieutenant Markert ordered that he be charged with obstructing governmental administration in the second degree (OGA) and Nitchman subsequently gave Loria an appearance ticket for that charge. See N.Y. Penal Law § 195.05. At Loria's request, Nitchman drove him to Rochester General Hospital where he received treatment for his shoulder.
With regard to the arrest, Nitchman did not see Gorman enter the house but did see him push the door and lead Loria outside. The police at the time had neither an arrest warrant nor a search warrant for the premises. The OGA charge was subsequently dismissed.
Two days later, in the early morning hours of April 12, 1998, police received another complaint concerning loud music coming from 15 Weaver Street. Officer Nitchman responded to the complaint by going to the home of the complainant, June Irvine. In her deposition, Irvine stated that there had been exceedingly loud parties at 15 Weaver Street the previous two nights, with music so loud that it caused her house to vibrate and kept her awake. Irvine further stated that she saw "cars constantly pulling up to the front of the house, [and that] people go in and come back out within a couple of minutes" and claimed that "[t]hey may be selling drugs out of there." With regard to the night of April 12, Irvine stated that she
Loria alleges that when Nitchman arrived on the scene on April 12 at 3:10 a.m., no music was playing.1 Nitchman did not enter the 15 Weaver Street property that morning.
In response to the same complaint, Officers Brown and Wiater responded directly to 15 Weaver Street and saw a number of people, one of whom Wiater believed was Loria, enter the house and close the door as the police pulled up. Wiater approached the closed door, knocked, and asked Loria to come outside. Someone inside, whom Wiater thought was Loria based on his voice, yelled for the police to leave. Wiater testified that he recognized Loria's voice because he had spoken with him earlier that evening.
Wiater subsequently told Nitchman that Loria was at the party and Nitchman filed a warrant application charging Loria with a violation of a city noise ordinance. In that application, Nitchman asserted, inter alia, that he had personal knowledge that music was audible beyond the property line, that Loria owned the property, was present at the party on April 12 and refused to answer the door for the police during an investigation of vice activity. A copy of Irvine's deposition was attached. Nitchman did not state in the application that the information regarding Loria's presence and refusal to open the door was based solely on his conversation with Wiater rather than his own perception. Nor did Nitchman attribute his claim that music was playing to the Irvine deposition.
A city court judge signed the warrant and an appearance ticket was issued to Loria for the noise violation. The charge was subsequently dismissed.
On the evening of April 17, 1997, Loria was driving his Jeep when it collided with and damaged a Dodge Neon, owned by Annie Mosley, the mother of Loria's former girlfriend Latrelle Mosley (Mosley). Mosley was not in the car when the vehicles collided, but a friend who was in the car at the time informed her of the incident and of Loria's involvement.
Mosley later called the police and Officer Hernandez investigated the incident and completed a report. Hernandez gave Mosley a copy of the report.
On April 18, 1997, Loria and Mosley encountered each other at a gas station. Loria jumped out of his van and confronted Mosley, yelling violently. A loud and profane argument ensued during which Loria told Mosley that he would kill her. Responding to a call, two police officers arrived, separated Loria and Mosley, arrested Loria for harassment and placed him in a police car.
About twenty minutes later, Inspector Feor arrived at the gas station. He spoke with Mosley who showed him her copy of the crime investigation report Hernandez had completed regarding the previous night's collision. The report classified the offenses Mosley alleged Loria had committed as criminal mischief and reckless endangerment. In addition, Mosley claims that she told Feor that the collision was with Loria's Jeep as...
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