Washington Square Post 1212 v. City of New York

• Decision Date: 31 August 1989
• Docket Number: No. 86 Civ. 5018 (PKL).,86 Civ. 5018 (PKL).
• Citation: 720 F. Supp. 337
• Parties: WASHINGTON SQUARE POST # 1212 AMERICAN LEGION, Edward Semenza, Nicholas Compiglia, Patrick Petrucelli, William Genovese, Steven J. Gambino, Thomas Stio, John De Dominici, Joseph Gigliano and Salvatore Ianniello Jr., Plaintiffs, v. The CITY OF NEW YORK, Benjamin Ward, Police Commissioner, City of New York, John L. Hogan, Assistant Director of the Federal Bureau of Investigation; Denis Maduro, Paul Meyer; Susan Schnitzer, Michael Luzzo; Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry, William Jenkins, and David Stone, Agents of the Federal Bureau of Investigation; Lt. William J. Shannon, Sgt. Joseph Caiola, Det. Carl Babara, Det. Patrick Purcell, Det. Steve Gilbert, Det. Joseph Blik, Det. William Pavone, and Det. Jose Flores, Police Officers of the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

720 F. Supp. 337

WASHINGTON SQUARE POST # 1212 AMERICAN LEGION, Edward Semenza, Nicholas Compiglia, Patrick Petrucelli, William Genovese, Steven J. Gambino, Thomas Stio, John De Dominici, Joseph Gigliano and Salvatore Ianniello Jr., Plaintiffs, v. The CITY OF NEW YORK, Benjamin Ward, Police Commissioner, City of New York, John L. Hogan, Assistant Director of the Federal Bureau of Investigation; Denis Maduro, Paul Meyer; Susan Schnitzer, Michael Luzzo; Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry, William Jenkins, and David Stone, Agents of the Federal Bureau of Investigation; Lt. William J. Shannon, Sgt. Joseph Caiola, Det. Carl Babara, Det. Patrick Purcell, Det. Steve Gilbert, Det. Joseph Blik, Det. William Pavone, and Det. Jose Flores, Police Officers of the City of New York, Defendants.

No. 86 Civ. 5018 (PKL).

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

August 31, 1989.

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Center for Constitutional Rights, (William M. Kunstler, Ronald L. Kuby, of counsel), Gilbert Dilucia, New York City, for plaintiffs.

Benito Romano, U.S. Atty. S.D. New York, (Susan P. Johnston, of counsel), Peter L. Zimroth, Corp. Counsel, New York City (Steven H. Mosenson, of counsel), for defendants.

ORDER & OPINION

LEISURE, District Judge:

Plaintiffs bring this action alleging that their constitutional rights were violated when a Federal Bureau of Investigation ("FBI")—New York Police Department ("NYPD") Joint Organized Crime Task Force ("JOCTF") conducted an investigation at American Legion Post # 1212 (the "Post"), in connection with the homicide and shooting of two task force members by persons allegedly associated with the Genovese organized crime family. Both the Federal Defendants¹ and the City Defendants² now move to dismiss the complaint for failure to state a claim under Rule 12 of the Federal Rules of Civil Procedure, and for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

On January 21, 1986, New York Police Department Detective Anthony J. Vendetti ("Vendetti") was killed and his partner, Detective Kathleen Burke ("Burke"), was seriously wounded by persons suspected of being members of organized crime. Detectives Vendetti and Burke were members of the FBI-NYPD Joint Organized Crime Task Force assigned to the so-called Genovese crime family and had been sworn in as Special Federal Marshals. More specifically, they were conducting surveillance of Frederick Giovanelli, an alleged member of the Genovese crime family, at the time of the shooting.

After the shooting, Detective Burke identified Giovanelli and Carmine Gaultiere ("Gaultiere") as two of the perpetrators; the latter also allegedly associated with the Genovese crime family. Because Detectives Vendetti and Burke were shot in the course of a JOCTF investigation, the shootings triggered a JOCTF search for the perpetrators and for witnesses to the shooting.

A list of locations to be visited was compiled. The locations on the list were social clubs allegedly frequented by members of the Genevose crime family. See, e.g., Declaration of James Kossler, executed on February 18, 1987 ("Kossler Declaration") ¶ 6; Declaration of Denis Maduro, executed on January 8, 1987 ("Maduro Declaration") ¶¶ 7, 9 and 14. The American Legion Post # 1212 was on this list, and members of the JOCTF # 4 were assigned to investigate it. None of the Federal Defendants had previously been to the Post.

The team approached the first location at 229 Sullivan Street at approximately 6:00 p.m. Because it was a small location, only a few of the team members were required to complete the assignment there. The other team members continued to the second location at 179 Sullivan Street, the Post.

The team members entered the Post, and allegedly identified themselves orally. However, no identification was displayed. Affidavit of Edward J. Semenza, sworn to on September 21, 1987 ("Semenza Affidavit") ¶ 4. All of the agents were wearing blue wind breakers with the letters "FBI" or "NYPD" prominently displayed. Plaintiffs contend the officers entered the Post with their guns drawn. Semenza Affidavit ¶ 4. The persons in the Post were directed to stand facing one wall leaving their hands on the wall and spreading their legs. Chairs and tables in the middle of the room were pushed aside to clear floor space. The people who did not cooperate were forced to the wall. Plaintiffs were forced to stand in this position for more than one hour. Semenza Affidavit ¶ 6.

While the patrons were being lined up against the wall, the ground floor of the Post was secured. Team members went through the back door into the alley to ensure that no one had fled into the alley, that no one was hiding there, and to ascertain where the alley led.

After the patrons were collected at the wall, pat-down frisks for weapons and identification were conducted. During the pat-down process, the remainder of the team members arrived as they had completed their assignments at the first location. The agents began interviewing and photographing the patrons. Subsequently, the agents secured the rooms upstairs. During the investigation several additional people entered the Post. They too were interviewed and photographed.

After the investigation was completed at the Post at approximately 6:40-6:45 p.m., the team left and proceeded to the third location. Maduro Declaration ¶ 22. Gaultiere, the suspect, had been apprehended at 5:20 p.m.

The Federal Defendants are the Special Agent ("SA") in charge of the New York office, John L. Hogan, ten Special Agents of the Federal Bureau of Investigation who, as members of the FBI-NYPD JOCTF, were involved in the search for Gaultiere, and an FBI photographer, Jin Moy. Complaint ¶¶ 13-14. The City Defendants are the City of New York, Police Commissioner Ward and eight members of the New York City Police Department. Complaint ¶¶ 11-12 and 14.

STANDARDS FOR REVIEW

1. Motion to Dismiss

A motion to dismiss under Rule 12 must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); Morales v. New York State Department of Corrections, 842 F.2d 27, 30 (2d Cir.1988). The Court must accept the pleader's allegations of facts as true together with such reasonable inferences as may be drawn in its favor. Murray v. City of Milford, Connecticut, 380 F.2d 468, 470 (2d Cir.1967). See also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Rule 8 requires only a "short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102-03, 2 L.Ed.2d 80 (1957) (cited in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)).

2. Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

The substantive law governing the case will identify those facts which are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.... it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court then must determine whether there does indeed exist a genuine issue as to any material fact; "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102 (2d Cir.1989). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). See also Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506 (2d Cir.1989). However, Rule 56 does not require that the moving party support its motion with affidavits or other similar materials which negate the opponent's claim. Rather, "the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. The burden on the moving party will be "discharged by `showing'— that is, pointing out to the District Court— that there is an absence of evidence to support the nonmoving party's case." Id. 477 U.S. at 325, 106 S.Ct. at 2554.

Indeed, once a motion for summary judgment is properly made, the burden then shifts to the non-moving party, which "must set forth specific facts showing that there is a genuine issue for trial."³ Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. Because the District Court must determine "whether there is a need for trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," id.—the nonmoving party must produce, at...