Razzano v. County of Nassau

• Decision Date: 28 February 2011
• Docket Number: No. 07–cv–3983 (ADS)(AKT).,07–cv–3983 (ADS)(AKT).
• Parties: Gabriel RAZZANO, Plaintiff,v.COUNTY OF NASSAU, Police Commissioner Lawrence W. Mulvey, Salvatore Mistretta, William Lemieux, and Anthony Rocco, Defendants.
• Court: U.S. District Court — Eastern District of New York

765 F.Supp.2d 176

Gabriel RAZZANO, Plaintiff,

v.COUNTY OF NASSAU, Police Commissioner Lawrence W. Mulvey, Salvatore Mistretta, William Lemieux, and Anthony Rocco, Defendants.

No. 07–cv–3983 (ADS)(AKT).

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

Feb. 28, 2011.

La Reddola, Lester & Associates, LLP, by Robert James La Reddola, Esq., Wendy C. Pelle–Beer, Esq., of Counsel, Garden City, NY, Attorneys for the plaintiff.Nassau County Attorney's Office, by Esther D. Miller, Deputy County Attorney, Karen Schmidt, Deputy County Attorney, Liora M. Ben–Sorek, Deputy County Attorney, Ralph J. Reissman, Deputy County Attorney, of Counsel, Mineola, NY, Attorneys for the defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Gabriel Razzano, the plaintiff in this case, asserts that the defendants, all associated with the Nassau County Police Department, violated his Fourteenth Amendment due process rights by failing to provide him with an adequate opportunity to recover rifles and shotguns that the defendants had confiscated from his residence. All parties now move for summary judgment. The rulings of the Court follow.

I. BACKGROUND

The Court previously decided a motion to dismiss in this case, Razzano v. County of Nassau, 599 F.Supp.2d 345 (E.D.N.Y.2009) (“ Razzano I ”), and familiarity with that decision is assumed. Because the recitation of facts in Razzano I was based solely on the plaintiff's complaint, the Court now again relates the background in this case, now drawing from the parties' evidentiary submissions.

The plaintiff Gabriel Razzano is a fifty-six year old resident of Freeport, New York, which is in Nassau County. He is a member of the Minuteman Civil Defense Corps, whose stated mission is to “see the borders and coastal boundaries of the United States secured against the unlawful and unauthorized entry of all individuals, contraband, and foreign military.” (Compl., ¶ 3; Minuteman Civil Defense Corpts Mission Statement, available online at (visited February 18, 2011).) He describes himself as “active in my community of Freeport on the issue of illegal immigration,” and notes that he has received attention for “protest[ing] the construction of a hiring hall” in downtown Freeport. (Affidavit of Gabriel Razzano, dated Apr. 29, 2010, ¶ 3 (“Razzano April Aff.”).)

Along with protesting for stricter enforcement of the immigration laws, Razzano has also repeatedly contacted local and federal legislators relating to immigration. One such legislator was United States Representative Carolyn McCarthy. In the six years leading up to the events precipitating this lawsuit, Razzano telephoned McCarthy's office approximately one hundred times, and visited the office approximately six times.

Razzano visited McCarthy's office for a seventh time on the morning of Monday, March 19, 2007, seeking to meet with Representative McCarthy on immigration issues. The parties disagree about the details of this visit, but neither disputes that shortly after Razzano arrived at McCarthy's office, McCarthy's staff members informed Razzano that he was not a member of McCarthy's district and asked him to leave the office. According to the defendants, Razzano was rude, frightening, and threatening to the staff members when he came to the congresswoman's office. Not surprisingly, Razzano denies this assertion.

Whether Razzano was rude and threatening or not, he did leave McCarthy's office, and at the recommendation of McCarthy's staff members, he went directly to the Board of Elections to determine his correct Congressional district. The Board of Elections shortly thereafter issued a certificate to Razzano indicating that he was in fact registered to vote in McCarthy's district. This was apparently an error, but Razzano had no reason to know this at the time. After making a brief stop elsewhere, Razzano returned to McCarthy's office that same day, with both his certificate and a video recorder in hand.

There was no one in the reception area when Razzano entered Representative McCarthy's office, so he waved to a person in the back of the office and sat down. While Razzano had been away, a member of McCarthy's staff had called the Garden City Police regarding his visit, and the Garden City Police contacted the Nassau County Police Department Special Investigations Squad. The Special Investigations Squad in turn dispatched an officer to Representative McCarthy's office. So, shortly after Razzano sat down in the congresswoman's office, he was met by Nassau County Detective Alfred Samaniego, a member of the Special Investigations Squad. Samaniego asked to see Razzano's identification, and explained to Razzano that he was not one of McCarthy's constituents. According to Samaniego, Razzano “became agitated and began to raise his voice” during this encounter. (Reissman Aff., Ex. L.) Razzano denies this. All parties do agree that shortly after Razzano arrived at the office, Samaniego asked Razzano to leave, and escorted him outside. The parties also agree that, as he left the office, Razzano saw Representative McCarthy at the elevator, at which point Razzano said words to the effect of “Ms. McCarthy, I've been trying to meet with you.” Razzano then left the office with no response from the congresswoman.

Between Razzano's two visits to McCarthy's office on March 19, 2007, Garden City police officers discovered that Razzano owned fifteen registered handguns. The Garden City police then also contacted the Nassau County Pistol License Section, which, the next day, Tuesday, March 20, 2007, assigned two Nassau County Police Officers—the individual defendants Officer (now Sergeant) Salvatore Mistretta and Sergeant William Lemieux—to investigate whether Razzano's pistol license should be suspended and his handguns confiscated.

Lemieux and Mistretta state that they began their investigation into Razzano's fitness to possess handguns on the morning of March 20, 2007 by meeting with staff members of Representative McCarthy who had interacted with Razzano in the past. They then also spoke with Detective Samaniego, who told them that Razzano “seemed unstable” when he met him at McCarthy's office the previous day. (Reissman Aff., Ex. L at 5.) The officers next proceeded to Razzano's residence. Finding that Razzano was not home, the officers decided to visit Razzano's mother, who lives nearby. Razzano's mother, who was home, greeted the officers and called Razzano, who agreed to meet Lemieux and Mistretta at his house within a short time.

Upon returning to Razzano's residence, the officers took a photograph of the back door to Razzano's minivan, from which hung a large rope tied into a noose. The photograph, which has been submitted to the Court, also shows that the vehicle had bumper stickers that read “Vote for Rope” and “got rope?”. (Reissman Aff. at Ex. M.)

The officers then entered the plaintiff's home. Although the plaintiff's motion papers suggest that he did not consent to Lemieux and Mistretta entering his home, the plaintiff's complaint suggests the contrary. (See, e.g., Compl., ¶ 78 (stating that Razzano “allowed [the officers] to enter” his home).) The defendants also uniformly testify that Razzano consented to their entering his house, and Razzano's sworn testimony does not contradict this.

The parties also dispute what happened after the officers entered Razzano's home. However, before describing that dispute, the Court pauses to note a critical fact in this case. Along with his fifteen registered handguns, Razzano also possessed nine rifles and shotguns, which, because of the length of their barrels, are referred to collectively as “longarms”. In Nassau County, there is no license requirement for the purchase or possession of longarms. Razzano kept these longarms in the same safe where he stored his handguns.

According to Razzano, once in his house, the officers instructed him that they were confiscating all of his guns, including his longarms. Razzano states that he quickly and peaceably complied with this demand, in spite of his assertion that the revocation of his pistol license only legally required that he surrender his handguns.

By contrast, the officers claim that after they entered Razzano's residence, they spoke with Razzano for thirty minutes, during which time Razzano appeared “mentally unstable,” and “became angry, then sad, and then started to cry”. (Affidavit of Salvatore Mistretta, dated May 12, 2010, ¶ 32 (“Mistretta May Aff.”).) The officers also state that during this time they saw in Razzano's home a book by David Duke entitled “Jewish Supremicism,” as well as a “four-page flyer from the anti-illegal immigration organization ‘Save–A–Patriot.Org’ ”. (Id., ¶ 31.) Taking all of this into consideration along with the information they had gathered from their investigation, the officers state that they then decided to confiscate Razzano's handguns. When Razzano opened his safe to produce his handguns, the officers also saw Razzano's longarms, and the officers determined at that point that they should confiscate these weapons as well. (See id., ¶ 33.)

Whatever actually happened in Razzano's home, the parties agree that the officers confiscated all of the guns in Razzano's possession, for which they issued receipts to him. Razzano was not arrested or charged with any crime. A little over a month later, on April 24, 2007, the Nassau County Police informed Razzano by letter that it was revoking his pistol license. Among the grounds stated for revoking the license were six police reports, which indicated that Razzano had participated in anti-illegal immigration protests. None of the six reports reflect any criminal activity by Razzano.

On May 2, 2007, the plaintiff, through an attorney, requested a hearing with the Nassau County Pistol License Bureau challenging the revocation of his pistol license. Under Nassau County law, persons whose pistol licenses are revoked are entitled to such a hearing, and in...