Vaher v. Town of Orangetown

• Decision Date: 23 September 2015
• Docket Number: No. 10 Civ. 1606(ER).,10 Civ. 1606(ER).
• Citation: 133 F.Supp.3d 574
• Parties: Valdo VAHER, Plaintiff, v. TOWN OF ORANGETOWN, NEW YORK, and Kevin Nulty, jointly, severally and individually, Defendants.
• Court: U.S. District Court — Southern District of New York

133 F.Supp.3d 574

Valdo VAHER, Plaintiff,

v.TOWN OF ORANGETOWN, NEW YORK, and Kevin Nulty, jointly, severally and individually, Defendants.

No. 10 Civ. 1606(ER).

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

Signed Sept. 23, 2015.

Alan Edward Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff.

John J. Walsh, II, Paul Edward Svensson, Hodges, Walsh & Slater, L.L.P., White Plains, NY, for Defendants.

OPINION AND ORDER

RAMOS

, District Judge.

Valdo Vaher ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983

against the Town of Orangetown ("the Town") and Chief Kevin Nulty of the Orangetown Police Department ("OPD") in his personal capacity ("Defendants"). Plaintiff maintains that Defendants violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. Amended Complaint ("Am. Compl.") (Doc. 10). He seeks compensatory and punitive damages for each alleged constitutional violation, and an order directing Defendants to return property that was confiscated from his home as a result of a March 2007 search and seizure, described below. Am. Compl. at 24–25.

Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure

. (Doc. 62). For the following reasons, Defendants' motion is GRANTED.

I. BACKGROUND

A. Factual Background

At all times relevant to this suit, Plaintiff was a federal police officer with the United States Department of Veteran Affairs ("VA"), residing in Orangetown, a town in Rockland County, New York. Defendants' Response to Plaintiff's Additional Allegations ("Defs.' 56.1 Resp.") (Doc. 72) ¶¶ 49–50.¹

While this action stems from several encounters between Plaintiff and various members of OPD starting in the early 2000s, Plaintiff's claims derive primarily from two events. First, in March 2007, OPD executed a search warrant and seized ammunition and magazines from Plaintiff's home, which Plaintiff has never recovered ("2007 Search and Seizure"). Two years later, in March 2009, OPD responded to a dispute between Plaintiff and a contractor at Plaintiff's home, in which Plaintiff pulled his gun on the contractor in response to perceived threatening behavior ("2009 Incident").

1. Pre–2007 Search and Seizure

In the early 2000s, Plaintiff was a member of the New York Army National Guard's 422nd Military Police Company, as was James Nawoichyk, who later became a Detective at OPD. Defs.' 56.1 Resp. ¶¶ 51–52. Plaintiff asserts that the two men had a tense relationship, primarily because Nawoichyk became suspicious about Plaintiff's previous work for the Estonian army. Id. Additionally, Plaintiff claims that Nawoichyk became interested in Plaintiff's collection of military firearms, but Plaintiff rebuffed Nawoichyk's requests to see the collection. Id. ¶ 53. Plaintiff also asserts that he complained about Nawoichyk's treatment towards him to the New York National Guard's Inspector General Office and to the Commander of the 422nd Military Police Company. Id. ¶¶ 53–56. Plaintiff did not, however, file a formal written complaint or disciplinary proceeding against Nawoichyk while they served in the National Guard together. See Affirmation of Paul E. Svennson (Doc. 63), Ex. C at 36–37, 85.²

2. The 2007 Search and Seizure

On March 7, 2007, Plaintiff lived with his mother in Orangetown, New York. Defs.' 56.1 Resp. ¶¶ 58–59. On that day, while Plaintiff was away attending military school in Fort Dix, New Jersey, Plaintiff's mother accidently locked herself out of the house and had to call a local locksmith. Id. ¶¶ 61–62. The locksmith managed to open a door to the garage, and when he looked inside the garage he saw what appeared to be seven or eight rifles, thousands of rounds of ammunition, and large, military-style ammunition boxes. Ex. G at 2. Plaintiff admits that at the time he had several military rifles and several thousand rounds of ammunition in the garage in plain view. Ex. C at 100–02. The locksmith alerted his boss to the large cache of firearms and ammo in Plaintiff's garage, and the following day his boss contacted the Orangetown Police Department. Id.

In response, Nawoichyk, who was by then a Detective at OPD, and his partner, Detective Thomas Hoffman, went to Plaintiff's residence, where they spoke to Plaintiff's mother and asked her about the complaint OPD received from the locksmith. The parties dispute the tenor of this exchange and Plaintiff claims that the Detectives put his mother under duress, but whether coerced or not, it is undisputed that the mother eventually allowed Nawoichyk and Hoffman to look around the garage. Plaintiff's Response to Defendants' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1

("Pl.'s 56.1 Resp.") (Doc. 70) ¶ 3; Defs.' 56.1 Resp. ¶¶ 65–66.

Inside the garage, Nawoichyk saw in plain view several rifles and military-style ammunition cans and containers, some of which contained belts of three or four rounds of ammunition linked together. Ex. H ¶¶ 9–10. While Plaintiff maintains that these rounds were not readily capable of being restored and linked together to form belts of 10 rounds or more, Ex. C at 152, they appeared to Nawoichyk to be so capable, Ex. H ¶ 11. Nawoichyk thus suspected that Plaintiff was in violation of New York Penal Law ("NYPL") § 265.02(8)

, Criminal Possession of a Weapon in the Third Degree, outlawing possession of a "large capacity ammunition feeding device," defined as "a magazine, belt, drum, feed strip, or similar device ... that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition," § 265.00(23).³

After hearing about the incident from his mother, Plaintiff called Nawoichyk to explain that he had the requisite firearm licenses, and to warn Nawoichyk that Plaintiff would not consent to another search of his home. Defs.' 56.1 Resp. ¶¶ 68–70. On March 19, 2007, Plaintiff went into OPD in person to meet with Nawoichyk and Hoffman. Plaintiff showed the Detectives his various firearm licenses. In the course of that conversation, Plaintiff freely admitted that he owned a large capacity ammunition feeding device, but asserted that his licenses allowed him to do so legally. Pl.'s 56.1 Resp. ¶ 5; Defs.' 56.1 Resp. ¶ 74; Ex. C at 115–16.

Three days later, after consulting with his supervisor, Detective Lieutenant McAndrew, and the local Assistant District Attorney, Nawoichyk prepared an affidavit and applied for a warrant to search Plaintiff's premises, based on a belief that Plaintiff was in violation of

NYPL § 265.02(8)

. Pl.'s 56.1 Resp. ¶ 8; Ex. H ¶ 2. That same day, Justice Paul B. Phinney III of the Justice Court of the Town of Orangetown issued a warrant, pursuant to New York Criminal Procedure Law ("CPL") § 690, authorizing the search of Plaintiff's premises for "a large capacity ammunition feeding device that consist of ammunition, linked together by belt and links such that it can be readily restored and converted to accept more than ten rounds of ammunition." Ex. I; Pl.'s 56.1 Resp. ¶ 10. After receiving the search warrant, Nawoichyk, Hoffman, and McAndrew met to plan the coordination and execution of the search. Pl.'s 56.1 Resp. ¶ 12; Defs.' 56.1 Resp. ¶ 78.

On March 26, 2007, Nawoichyk, Hoffman, and McAndrew, along with members of the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) and the Rockland County Sheriff's Department, executed the search warrant. Defs.' 56.1 Resp. ¶¶ 80–81. Plaintiff maintains (and Defendants deny) that the search was conducted in an "abusive and disrespectful manner," including the destruction of his property, threatening and insulting comments made by officers at the scene, and one member of OPD, Officer Sila, drawing his gun on Plaintiff in a menacing fashion. Id. ¶¶ 87–89, 91. Plaintiff twice tried to call OPD Chief Nulty on the day of the search to complain, but could not reach him and did not leave a message. Accordingly, Nulty never returned the calls. Id. ¶ 84; Ex. C at 182.

The search team seized ten ammunition cans and boxes containing hundreds of ammunition belts with links of three and four rounds, one belt with thirteen linked rounds, and a number of high capacity magazines. See Ex. J (Return Order listing seized items). While Plaintiff attests that the three-round belts were broken such that one could not link them together with other rounds, he also testified that the thirteen-round belt appeared to be multiple three-round links attached together, which he had not yet taken apart despite an intent to do so. See Ex. C at 151–55.

The following day, Justice Phinney signed the Return Order, which contained a list of items removed from Plaintiff's residence, and was delivered to Plaintiff several weeks later. Pl.'s 56.1 Resp. ¶¶ 19–20; Defs.' 56.1 Resp. ¶ 94; Ex. J. Upon filing the instant suit, Plaintiff now insists that the Return Order omitted two items that were seized, "a 20? barrel length AR–15 rifle kit consisting of a barrel and two plastic bags and a green military ammunition box with hinges." Defs.' 56.1 Resp. ¶ 95. Plaintiff admits that he did not inform OPD of the missing rifle kit or ammunition box when he filed a formal complaint with OPD in January 2008, despite already having access to the Return Order. Ex. C at 164. Defendants deny taking the rifle kit and contend that all seized property was within the scope of the search warrant.

The parties do not dispute that Plaintiff was never arrested for weapons possession, and that his seized property was never returned. Defs.' 56.1 Resp. ¶ 96. The Return Order was issued pursuant to CPL § 690.55(1)(b)

and directed OPD to "retain custody of the 10 listed items seized" and "hold the same in a safe and secure place until such time as the court, or another court of competent jurisdiction, should direct the disposition or delivery of said items." Ex. J. It does not appear from the record that Plaintiff ever petitioned the Justice Court, or any other court, for an order directing the return of his property.

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