Soares v. State of Conn.
| Decision Date | 02 November 1993 |
| Docket Number | No. 333,D,333 |
| Citation | 8 F.3d 917 |
| Parties | Manuel SOARES, Plaintiff-Appellee, v. STATE OF CONNECTICUT, Department of Environmental Protection, Leslie Carothers, Former Commissioner of D.E.P., Joseph Healy, Captain, Eric Smith, Defendants, Henry Konow, Sergeant, Clayton Firmin, Officer, John Luty, Officer, Defendants-Appellants. ocket 93-7377. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael Bradley, Stonington, CT, for plaintiff-appellee.
Robert B. Teitelman, Asst. Atty. Gen., Hartford, CT (Richard Blumenthal, Atty. Gen.), for defendants-appellants.
Before: VAN GRAAFEILAND, WALKER, and JACOBS, Circuit Judges.
This appeal is from an order of the District Court of the District of Connecticut (Alan H. Nevas, Judge) that denied three state employee defendants summary judgment on their qualified immunity defense to plaintiff's claim that when they arrested him on a warrant and placed him in handcuffs they violated his Fourth Amendment rights. The district court held that issues of fact existed as to the qualified immunity defense because one defendant failed to include in the probable cause affidavit supporting the arrest warrant the fact that the regulation underlying the charge against plaintiff had a history of non-enforcement and because the other two defendants may have acted unreasonably in handcuffing plaintiff upon his arrest. We reverse.
In early 1990, defendant Konow, an enforcement officer with the Connecticut Department of Environmental Protection ("DEP"), while responding to a discovery request related to a different charge against plaintiff Soares, a commercial fisherman, came across certain DEP records indicating that Soares had violated a Connecticut regulation by submitting false reports that he did not fish during 1989. See Conn. Agencies Regs. § 26-157b-1(i).
After further investigation, on March 30, 1990, Konow submitted to an Assistant State Attorney ("ASA") a sworn affidavit as part of an application for a warrant to arrest plaintiff for violating the reporting regulation. Konow's affidavit set forth facts indicating that plaintiff had submitted false monthly reports indicating that he had not fished in 1989, but contained no information pertaining to the non-enforcement history of the regulation. The ASA signed and submitted the application to a judge of the Connecticut Superior Court who issued the warrant on April 20, 1990.
On April 27, 1990, armed with the arrest warrant, defendants DEP enforcement officers Firmin and Luty arrested Soares at the town dock in Stonington, Connecticut and placed him in handcuffs before placing him in the police car for transport to the Stonington Police Station. Shortly after plaintiff arrived at the station, the handcuffs were removed leaving plaintiff's right wrist slightly bruised and his left wrist with a temporary indentation.
The ASA filed charges against plaintiff but thereafter the case apparently lay dormant until April 17, 1991 when the ASA filed and the Connecticut Superior Court entered an order of nolle prosequi dismissing all charges against plaintiff.
On May 29, 1991, plaintiff instituted this suit under 42 U.S.C. §§ 1983 and 1988 against the DEP and various DEP officials in their official and individual capacities, including Konow, Firmin and Luty, claiming false arrest, use of excessive force, selective prosecution, cruel and unusual punishment, violation of free speech rights, and failure to train and supervise law enforcement officers.
In July 1991, the district court dismissed the complaint as to the DEP without opposition. And in February 1992, the district court dismissed further claims leaving only claims against five DEP defendants, including Konow, Firmin and Luty, in their individual capacity for selective prosecution, false arrest and excessive force.
On July 30, 1992, all defendants moved for summary judgment asserting inter alia qualified immunity defenses on the remaining claims. In a decision filed on April 15, 1993, the district court granted summary judgment in favor of all defendants except as to Konow on the false arrest claim, and except as to Firmin and Luty on the excessive force claim. Plaintiff's motion for reconsideration was denied.
Defendants Konow, Firmin, and Luty now appeal from the district court's April 15, denial of summary judgment to them based on their defense of qualified immunity.
Although the district court's April 15, 1993 decision is not a final order, "[i]t is well settled under the collateral order doctrine that the denial of summary judgment based on the issue of qualified immunity, though technically interlocutory, is reviewable by an appellate court." Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992). Our jurisdiction in such matters is limited to circumstances where the qualified immunity defense may be established as a matter of law or where the district court has committed fundamental error in applying the law. See Cartier, 955 F.2d at 844; see also Mitchell v. Forsyth, 472 U.S. 511, 526-30, 105 S.Ct. 2806, 2815-18, 86 L.Ed.2d 411 (1985); Washington Square Post # 1212 v. Maduro, 907 F.2d 1288, 1292 n. 1 (2d Cir.1990).
Defendants contend that they are entitled to receive qualified immunity protection as a matter of law. To establish this defense at the summary judgment stage, the officers must show upon facts that are undisputed "either that [their] conduct did not violate 'clearly established rights' of which a reasonable person would have known, or that it was 'objectively reasonable' to believe that [their] acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir.1990); see also Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982).
Soares argues that the qualified immunity that might otherwise shield an officer who submits a probable cause affidavit to support an arrest warrant is not available to Konow because the affidavit omitted what plaintiff claims to be the material fact that the DEP reporting regulations were not enforced prior to his prosecution. The district court agreed with plaintiff, ruling that Konow was not entitled to qualified immunity for his actions because "a jury could conclude that Konow's failure to inform the judge that the reporting requirements were never or rarely enforced was a material or reckless omission."
It is settled that a person has a clearly established right not to be arrested or prosecuted without probable cause. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992). A plaintiff can demonstrate that this right was violated where the officer submitting the probable cause affidavit "knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit" or omitted material information, and that such false or omitted information was "necessary to the finding of probable cause." Id. at 870-71 (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978)) (internal quotations omitted).
In reviewing such cases on qualified immunity motions, a court should put aside allegedly false material, supply any omitted information, and then determine whether the contents of the "corrected affidavit" would have supported a finding of probable cause. See Cartier, 955 F.2d at 845; Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir.1990). If probable cause remains, no constitutional violation of the plaintiff's Fourth Amendment rights has occurred. Cartier, 955 F.2d at 845; see also Magnotti, 918 F.2d at 368 (). However, if the corrected affidavit does not support an objective finding of probable cause, then the court should conclude that material factual disputes prevent summary Here, the Connecticut Superior Court was asked to determine whether there was probable cause to arrest Soares for violation of the reporting regulation and, based on Konow's affidavit that omitted any reference to enforcement history, found that probable cause existed. If Konow's affidavit were "corrected" to include the history of non-enforcement of the reporting regulation, the probable cause calculus would be no different because such information is simply irrelevant to the question whether there was probable cause to believe that Soares had violated the regulation. Any decision not to prosecute an offense based on official acquiescence to widespread noncompliance is solely within the discretion of the executive branch, not the courts; consequently, for the state court to factor such a consideration into whether probable cause existed would have been improper. Konow's affidavit plainly contained sufficient information to support a finding of probable cause. It established that Soares had fished in 1989 even though he reported that he had not fished in that year. The district court thus erred in ruling that omission of the regulation's enforcement history led to a violation of plaintiff's Fourth Amendment rights. Accordingly, Konow is entitled to summary judgment on the basis of qualified immunity.
judgment for defendant on the qualified immunity defense. Cartier, 955 F.2d at 845-46.
Plaintiff argues that in light of the fact that he was charged with a minor and non-violent crime, physical custody and handcuffing were unreasonable applications of force in violation of his Fourth Amendment rights. The district court determined that Firmin and Luty were not entitled to qualified immunity because "it is not...
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