Pena v. Deprisco
| Decision Date | 09 December 2005 |
| Docket Number | Docket No. 03-7880(CON).,Docket No. 03-7940(CON).,Docket No. 03-7962(CON).,Docket No. 03-7876 (L).,Docket No. 03-7929(CON). |
| Citation | 432 F.3d 98 |
| Parties | Maria PENA, individually, and as the Administrator of the Estate of Dilcia Pena; Marietta Small, Public Administrator of Kings County, as Administratrix of the Estate of Andy M. Herrera; Maria Delcarmen Herrera, and as Intended Administratrix of the Estate of Ricardo Nicanol Herrera; and Victor Herrera, as father of Andy M. Herrera and Nicanol Herrera, deceased, Plaintiffs-Appellees, v. Thomas DEPRISCO, Captain; Roy Richter, Captain; Rick Carpen, Lieutenant; Peter Moy, Sergeant; Michael Zarilli, Sergeant; Dennis Healy, Sergeant; Keith Singer, Sergeant; Jack Conway, Police Officer; John Welsh, Police Officer; Edward Sills, Police Officer; Anthony Prinzano, Police Officer; Michael Gaudio, Police Officer; Marie Desario, Police Officer; Paul Alba, Police Officer; John Chavez, Police Officer; Michael McGill, Police Officer; Brian T. White, Captain; Martin Finkelstein, Police Officer; Craig Hilderbrand and Michael Immett, individually and in their official capacity as agents of the PBA; "John" Gallo, (first name being fictitious and presently unknown); and Vincent Fiorenza, Defendants-Appellants, City of New York; the Patrolman's Benevolent Association of the City of New York, individually and in their official capacity as New York Police Officers; Joseph Grey; "John" Rabinowitz, (first name being fictitious and presently unknown); "John Does," individually and in their official capacity as Police Officers and non-uniformed employees of the New York City Police Department, the identity and number of whom is presently unknown; "Richard Roes," individually and in their official capacity as New York City Police Officers, Supervisory Police Officers of the City of New York, the identity and number of whom is presently unknown; "William Woes," individually and in their official capacity as Police Officers and/or agents for the PBA, the identity and number of whom is presently unknown; the Wild Wild West, Inc.; Brian T. White, Captain; David C. Gaskin; and Patrick Lynch, in his official capacity as President of the PBA, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Eugene B. Nathanson, New York, NY, for Plaintiffs-Appellees.
Alan Beckoff (Michael A. Cardozo, Corporation Counsel of the City of New York, Stephen J. McGrath, Alan H. Scheiner, Zachary A. Cunha, of counsel), New York, NY, for "Municipal" Defendants-Appellants.
Gregory M. Longworth, Worth, Longworth & London, LLP (John W. Burns, of counsel), for Defendants-Appellants Police Officers Jack Conway, Michael Gaudio, Craig Hilderbrand, Edward Sills, Anthony Prinzano, Marie Desario, Paul Alba, John Chavez, Michael McGill, Martin Finkelstein, John Welsh, Michael Immit, and "John Gallo."
Andrew C. Quinn, Quinn, Ferrante & Mellea, LLP (Bruno V. Gioffre, Jr., Rosa Luna-Molé, of counsel), White Plains, NY, for Defendants-Appellants Dennis Healy and Keith Singer.
Mark P. Goodman, Debevoise & Plimpton LLP (Mary Jo White, Howard S. Hogan, Laura E. Neish, of counsel) for Amicus Curiae Patrolmen's Benevolent Association of the City of New York.
Before: WALKER, Chief Judge, SACK and HALL, Circuit Judges.
On August 4, 2001, off-duty New York City police officer Joseph Grey,1 while heavily intoxicated, drove his automobile through several red lights on a Brooklyn street, striking three people, one of whom was pregnant, and killing them all. The plaintiffs, in both representative and individual capacities, brought a variety of claims against Grey and other persons who allegedly, among other things, implicitly encouraged and sanctioned Grey's abuse of alcohol and driving under its influence. The plaintiffs contend that the law enforcement officials' approval of Grey's behavior created a danger to the decedents for which the defendants may be held liable under 42 U.S.C. § 1983. The district court denied the defendants' motion brought under Federal Rule of Civil Procedure 12(b)(6) to dismiss the plaintiffs' complaints. See Small v. City of New York, 274 F.Supp.2d 271, 282 (E.D.N.Y.2003). Some of the defendants appeal, asserting that they were entitled to qualified immunity with respect to the state-created-danger claims.
We agree with the district court that the plaintiffs have alleged facts which, if proven, might constitute a violation of the plaintiffs' "substantive due process" right to be free from state created dangers. In other words, assuming as we must at this stage of the proceedings that the plaintiffs' charges are true, we conclude that the defendants' behavior would have violated fundamental constitutional rights of the victims. Yet, because that interpretation of the Due Process Clause was not clearly established at the time of the defendants' actions, they cannot be held individually liable under principles of qualified immunity.
We therefore vacate the order of the district court denying the defendants' motion to dismiss insofar as it is based on such behavior, and we remand with instructions to dismiss the complaint to that extent on the grounds of qualified immunity.
This appeal is limited to whether individual defendants are entitled to qualified immunity with respect to their alleged violations of the Fourteenth Amendment's guarantee of substantive due process. In stating the facts for purposes of considering this appeal, we take all of the plaintiffs' allegations to be true "and draw all reasonable inferences in the plaintiff[s'] favor." Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.2003). The narrative that we are about to repeat therefore paints various defendants in "decidedly unflattering colors," Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001), which may or may not be borne out by the facts.
When, in 1984, Grey first applied to be a New York City police officer, he disclosed his history of drinking problems to the New York City Police Department. Although he continued to drink heavily during his time as a member of the force, he was never questioned, disciplined, or counseled about his alcohol use. Indeed, during Grey's tenure, it was common practice for both off-duty and on-duty officers to drink at or near the police precinct house. The drinking was done, at least in part, in public and with the full knowledge of Grey's supervisors.
When Grey ended his shift at 8:00 a.m. on Saturday August 4, 2001, he embarked on a twelve hour drinking binge. It began in the company of fellow police officers and supervisory police sergeants in the parking lot of the 72nd Precinct on Fourth Avenue in Brooklyn, New York. Around noon, Grey's supervisor, Sergeant Dennis Healy, who had been drinking with the rest of the group in the precinct lot, asked Grey to drive him to "The Wild, Wild West," a local "strip club." The bar had been declared by department officials to be "off limits" to police officers — a designation that officers ignored that day as they apparently had in the past. After Grey drove Healy to the bar, they were joined there by other police officers.
Some four or five hours after their arrival at the bar — eight hours or so into Grey's drinking for the day — Sergeant Healy asked the inebriated Grey to drive him back to the 72nd Precinct house. When they arrived, at about 5:00 p.m., Grey entered the building to use the toilet. Although he was visibly intoxicated, neither the desk sergeant, the patrol sergeant, nor any of the on-duty officers with whom Grey came into contact did anything to reprimand him or to prevent him from leaving, returning to the driver's seat of his automobile, or driving drunk. Undeterred, Grey drove back to the strip club, apparently without Healy, to continue drinking.
Another two or three hours later, Grey prepared to return to the 72nd precinct for his next shift. At this point, he had been drinking continuously for nearly twelve hours and had not slept in more than twenty-two. At around 9:00 p.m., Grey sped through multiple red lights and — without sounding his horn or braking — struck and killed Maria Herrera, her son, Andy Herrera, and her sister, Dicia Pena as they attempted to cross Third Avenue, in Brooklyn. The pedestrians were in the north crosswalk of 46th Street, crossing Third Avenue in accordance with the "walk" signal. Maria Herrera was eight-and-a-half months pregnant at the time. Her son, Ricardo Nicanol Herrera, Andy's brother, was delivered in the hospital by cesarean section, but died shortly after his birth.
Afterward, the plaintiffs allege, other New York City police officers and the Patrolmen's Benevolent Association ("PBA")2 hindered the investigation. No sobriety tests were administered at the crime scene. Officers discussed which sobriety test Grey would be able to "beat." The police delayed testing Grey's alcohol blood level for several hours. The Accident Investigation Squad mishandled evidence by: (1) contravening orders from the King's County District Attorney's office by delivering Grey's blood samples to a non-authorized lab instead of the medical examiner's office, (2) failing to develop photographs taken at the scene of the crime, (3) losing or destroying inculpatory evidence, (4) intimidating and pressuring civilian witnesses to change their version of the events, and (5) suppressing the results of Grey's "alco-sensor" test. As discussed below, these post-accident allegations are not the subject of this appeal.
On May 2, 2002, Grey, who by then had resigned from the force, was convicted following a jury trial in New York Supreme Court, Kings County (Anne G. Feldman, Justice) of one count of driving while intoxicated, one count of driving with a suspended license, and four counts of second degree manslaughter for recklessly causing the deaths of the four persons he had killed. On May 23, 2002,...
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