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Kaminsky v. Schriro

United States District Court, D. Connecticut

March 20, 2017

JOSEPH W. KAMINSKY, JR., Plaintiff,
v.
DORA B. SCHRIRO, Commissioner of the Department of Emergency Services and Public Protection, et al., Defendants.

          RULING ON MOTION FOR SUMMARY JUDGMENT

          Michael P. Shea, U.S.D.J.

         Acting on information that Joseph Kaminsky, Jr., was a felon in possession of three machine guns and other firearms, state and local police officers traveled to his home in Coventry, Connecticut, on December 16, 2011. After hearing a pounding on the side of his house and observing officers in the yard with their hands on their holsters, Kaminsky opened the front door, spoke to one of the local officers whom he knew, and gestured for the officer to come in. Three officers entered and, ultimately, the police seized a large quantity of guns and ammunition from the home. Kaminsky now claims that his consent to the entry was coerced, as he feared the police would kick down his front door, and thus that the officers violated his Fourth Amendment rights by entering his property and seizing his weapons without a warrant. The local police officers have moved for summary judgment, and I must decide principally whether there is evidence in the record that would permit a reasonable juror to find that Kaminsky's consent was coerced. I find that there is not and grant summary judgment to the local police officers with respect to the entry into the home. I also grant them summary judgment with respect to the seizure of the firearms and ammunition, as only one of them was involved in that seizure and the evidence shows that Kaminsky voluntarily consented to the seizure. However, because the parties have not addressed in their briefs whether some of the local officers entered protected portions of Kaminsky's yard referred to as “curtilage” in Fourth Amendment parlance, and because there is some evidence in the record suggesting they did, I deny summary judgment to the local officers who entered Kaminsky's yard without a warrant.

         I. Background

         A. Facts[1]

         On December 16, 2011, Connecticut State Police (“CSP”) Officer Barbara Mattson received a call from FBI Agent Eric Moore about Kaminsky's recent application to renew his federal firearms permit. (ECF No. 57-5 at 6.) Agent Moore informed Mattson that the records check conducted for the renewal revealed that Kaminsky was a convicted felon, and that the conviction was from 1964. (Def's L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 1-2; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 1-2.) Agent Moore also informed Mattson that Kaminsky had three registered machine guns. (Def's L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 3; Pl.'s L. R 56(a)(2) Stmt., ECF No. 65 at ¶ 3.) Conn. Gen. Stat. § 53a-217 prohibits felons from possessing firearms.

         Mattson then contacted members of the Coventry Police Department (“CPD”) to inform them that Kaminsky was a convicted felon and had machine guns and other firearms in his possession. (Def's L. R 56(a)(1) Stmt., ECF No. 57-2 at ¶ 4; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 4.) In light of this information, CPD personnel -Lt. Solenski, Sgt. Flanagan, and Officers Dexter and Opdenbrouw- accompanied Mattson and Connecticut State Police officers to Kaminsky's home on December 16, 2011. (Def's L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 5; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 5; Amended Complaint (“Am. Compl.”), ECF No. 35 at ¶ 4, 25.)

         When they arrived at Kaminsky's home, Lieutenant Solenski of the CPD initially communicated with Kaminsky. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 8; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 8.) Kaminsky met Solenski and CSP Officers Mattson and Imbibo at his front door. (ECF No. 57-5 at 6.) Kaminsky, who knew Solenski and recognized him, asked “What is going on, Walt?” and why the police were there. (ECF No. 57-10 at 7.) Solenski responded that the State Police wanted “come in and look at your house” because Kaminsky had firearms. (Id.; ECF No. 57-5 at 7.) Kaminsky opened the door for Solenski to enter and waved him into his home. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 12; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 12.) Plaintiff does not dispute that he opened the door and waved Solenski in, but says that the action was not voluntary as he felt forced to do so. (Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 12; ECF No. 65 at 25.) According to Kaminsky, as the police approached his home, they “pounded on the side of the house like they hit it with a butt of a rifle or with their billy club.” (ECF No. 57-10 at 5.) Kaminsky never told Solenski that he could not enter his home. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 14; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 14.) Kaminsky does not know if Flanagan ever entered his home, and does not know who Dexter and Opdenbrouw are or what they look like. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 16-18; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 16-18.) Kaminsky never saw any police officer have a drawn weapon or a long gun. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 6-7; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 6-7.) While police officers were at different places around the house, Kaminsky also did not see any officers with helmets on, and does not know if they were wearing bulletproof vests. (ECF No. 57-10 at 6.) The officers around the house had their hands on their pistol holsters. (Id.)

         Once inside, Mattson informed Kaminsky that he was a convicted felon; Solenski never told Kaminsky that he was a convicted felon. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 9-10; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 9-10.) No member of the Coventry Police Department told Kaminsky that he could not have weapons in his possession. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 11; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 11.) Kaminsky explained to Mattson that his attorney was working on his felony conviction and asked her to call his attorney. (ECF No. 57-5 at 6.) Mattson called his attorney, Donald Weisman, from the kitchen, and explained that Kaminsky was unable to possess firearms because of his felony conviction. (ECF No. 57-5 at 6-7.) Weisman stated that Kaminsky would cooperate. (Id. at 7.)

         After Mattson spoke with his attorney and told Kaminsky that he was a convicted felon and that it was illegal for him to possess firearms, Kaminsky agreed to turn over his firearms. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 19; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 19.) Based on the information that he was a convicted felon, Kaminsky believed that it was illegal for him to possess the firearms and thus he intended for the officers to remove his firearms from his home. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 28-29; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 28-29.) Kaminsky now disputes that he was in fact a convicted felon, contending that the offense for which he was convicted - unemployment fraud - was not a felony in 1964. But he does not dispute that he agreed to turn over his firearms. (Id. at ¶ 19.) The officers confiscated 36 firearms and certain ammunition. (ECF No. 57-5 at 7.) Dexter helped carry the firearms from Kaminsky's home to police vehicles. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 21; Pl.'s L. R. 56(a)(2) Stmt., ECF No. 65 at ¶ 21.) Hicks was not at Kaminsky's home; he processed the firearms in the Coventry Police Department evidence and property room. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 22-23; Pl.'s L. R 56(a)(2) Stmt., ECF No. 65 at ¶ 22-23.)

         On December 19, 2011, Mattson and CSP Detective Musial returned to Kaminsky's home and he turned over an additional 23 firearms to them. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 24; Pl.'s L. R 56(a)(2) Stmt., ECF No. 65 at ¶ 24; Am. Compl., ECF No. 35 at ¶ 38.) No Coventry Police Officers were present at Kaminsky's home on December 19, 2011. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 25; Pl.'s L. R 56(a)(2) Stmt., ECF No. 65 at ¶ 25.) Hicks again processed the new firearms in the Coventry Police Department evidence and property room. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 26; Pl.'s L. R 56(a)(2) Stmt., ECF No. 65 at ¶ 26.) Kaminsky also asserts that there are an additional 24 firearms that were confiscated from his property and not recorded anywhere, but acknowledges that no Coventry Police Officers were present when the firearms were taken. (Def.'s L. R. 56(a)(1) Stmt., ECF No. 57-2 at ¶ 27; Pl.'s L. R 56(a)(2) Stmt., ECF No. 65 at ¶ 27.)

         B. Procedural History

         Kaminsky filed this lawsuit under 42 U.S.C. § 1983 on December 16, 2014, against the following defendants: Dora B. Schriro, Commissioner of the Connecticut Department of Emergency Services and Public Protection (“DESPP”); DESPP Sergeant Paolo D'Alessandro; Chief of the CPD Mark A. Palmer[2]; CPD Lieutenants Walter Solenski and Brian Flanagan and CPD Officers Michael Hicks, Robert Dexter, and Ted Opdenbrouw; and CSP Officers Barbara Mattson, Vincent Imbimbo, and Sean Musial. (ECF No. 1.) He then amended his complaint on September 2, 2015. (ECF No. 35.) On June 21, 2016, I granted in part and denied in part Defendants' motion to dismiss the amended complaint. (ECF No. 63.) I dismissed the claims against the State Defendants in their official capacities, the portion of Count Two asserting a Second Amendment violation, the portion of Count Three asserting a First Amendment violation, and the supervisory claim against Defendant D'Alessandro, and dismissed without prejudice the remaining portions of Counts Two (asserting a violation of Article First, Section 15 of the Connecticut Constitution), and Three (asserting a violation of Article First, Section 10 of the Connecticut Constitution). I also dismissed the claims against Defendants Solenski and Flanagan in their official capacities. The sole remaining claim asserts a violation of the Fourth Amendment against Mattson, Musial, and Imbimbo of the CSP (the “State Defendants”) and Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks of the CPD (the “Coventry Defendants”) in their individual capacities. Kaminsky alleges that the Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks “unlawfully entered upon the Plaintiff's property without consent and in the absence of a warrant on December 16, 2011.” (ECF No. 35 at ¶ 112, 114, 116.) He also alleges that Dexter, Opdenbrouw, and Hicks, under the supervision of Solenski, “unlawfully entered the real property of the Plaintiff” and “unlawfully seized 36 firearms and ammunition from the Plaintiff's home in the absence of a warrant and by threat of arrest unless the Plaintiff complied.” (Id. at ¶ 113, 115, 117.)

         The Coventry Defendants have filed a Motion for Summary Judgment, arguing that they are entitled to qualified immunity because they reasonably relied on information relayed to them by the State Police. They also argue that there is no evidence that they took initial possession of Kaminsky's firearms. Opdenbrouw and Flanagan also argue that there is no evidence that they entered Kaminsky's home, and Hicks argues that there is no evidence that he visited Kaminsky's property at all.

         II. Legal Standards

         A. Summary Judgment

         Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The “party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists.” Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Id. If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted).

         An issue of fact is “material” if “it might affect the outcome of the suit under the governing law.” Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000) (internal citation and quotation marks omitted). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (internal citation and quotation marks omitted). On summary judgment, a court must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013) (internal citation and quotation marks omitted).

         B. ...


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