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Kaminsky v. Mattson

United States District Court, D. Connecticut

January 12, 2018

BARBARA MATTSON, individually, et al. Defendants.


          MICHAEL P. SHEA, U.S.D.J.

         I earlier granted summary judgment in favor of Town of Coventry police officers who entered the home of Joseph Kaminsky Jr. and seized firearms on December 16, 2011, because I found that Kaminsky had consented to the entry and seizure. Kaminsky v. Schriro, 243 F.Supp.3d 221 (D. Conn. 2017). In the same ruling, I denied summary judgment as to the Coventry police officers who remained in Kaminsky's yard during the December 16, 2011, visit, noting that there was a question about whether those officers had invaded the “curtilage” of Kaminsky's property, an issue the parties had not addressed. Id. at 231. I later permitted those officers to move for summary judgment as to the curtilage issue, and now conclude, after construing the evidence in the record in the light most favorable to Kaminsky, that the portion of Kaminsky's yard in which those officers were located does not constitute “curtilage” and thus that those officers did not violate his Fourth Amendment rights either. I therefore GRANT the remaining Coventry defendants' motion for summary judgment. (ECF No. 87.) I also allowed the State of Connecticut officers who had entered Kaminsky's home together with the Coventry officers to move for summary judgment, even though they had not done so initially, and now grant their motion as well (ECF No. 82), because I find that Kaminsky's consent to the entry and seizure extended to the state officers as well.

         I. Background

         A. Procedural History

         Kaminsky filed this lawsuit under 42 U.S.C. § 1983 on December 16, 2014, against Dora B. Schriro, Commissioner of the Connecticut Department of Emergency Services and Public Protection (DESPP); DESPP Sergeant Paolo D'Alessandro; Chief of the Coventry Police Department (CPD) Mark A. Palmer[1]; CPD Lieutenants Walter Solenski and Brian Flanagan and CPD Officers Michael Hicks, Robert Dexter, and Ted Opdenbrouw; and Connecticut State Police (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 the defendants' motion to dismiss the amended complaint. (ECF No. 63.) I dismissed the claims against the State of Connecticut 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 Solenski and Flanagan in their official capacities.

         On March 20, 2017, as noted, I granted in part and denied in part the motion for summary judgment by defendants Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks of the CPD (the Coventry Defendants). I granted summary judgment on all claims against them, except for Kaminsky's claim against Flanagan, Dexter, and Opdenbrouw for unlawful entry onto any curtilage portion of Kaminsky's property. The Coventry officers have now submitted a second motion for summary judgment (with my permission), and that motion is fully briefed. Connecticut State Police Officers Barbara Mattson, Vincent Imbimbo, and Sean Musial (the Connecticut Defendants) did not seek summary judgment initially but now have filed a motion for summary judgment on the remaining claims against them, and that motion is fully briefed as well.

         B. Facts[2]

         1. Kaminsky's Property

         Joseph Kaminsky is 86 years old and lives at 105 John Hand Drive in Coventry, Connecticut. (ECF Nos. 87-2 at ¶ 1, 97-1 at ¶ 1.) The south and east borders of his property abut Wangumbaug Lake for 105 feet. (ECF Nos. 83 at ¶ 3, 95 at ¶ 3.) This means that one side of his house and a yard face the lake: there is no fence or enclosure to block either his yard or his home from full view by any boats on the lake, other than a low stone retaining wall. (ECF Nos. 83 at ¶ 4, 95 at ¶ 4.) Kaminsky's property lies within a cove of the lake, but there is no fence, blockade, or other restriction separating this cove from access to the lake as a whole. (ECF Nos. 95 at ¶ 4, 94-11, 94-14.) Wangumbaug Lake has a public boat launch, and the general public is permitted to use it to access the lake. (ECF Nos. 83 at ¶ 5, 95 at ¶ 5.) Any member of the public on the lake would be able to view Kaminsky's property and house unobstructed: although it is removed from the main part of the lake, there is nothing preventing the public from accessing the cove. (ECF Nos. 83 at ¶ 6, 95 at ¶ 6, 94-11.) The yard area around the low stone retaining wall is fully visible from the lake, and there is a clear view of several houses on the other side of the lake from the area in Kaminsky's yard near the stone wall. (Id.)

         Also in that yard area near the low stone wall is a flagpole. (ECF No. 87-7, 94-11.) The pole towers above Kaminsky's house, reaching approximately twice its height. (ECF No. 87-7.) In the photograph submitted by the defendants, it appears that there are two large flags hanging from the flagpole. (ECF No. 87-7.) In the video submitted by the plaintiff, the camera pans up to show a large American flag hanging from it as well. (ECF No. 94-11.) The flagpole faces out to the lake. (ECF No. 87-7.) Its flags are visible from the lake and from the houses across the lake that face Kaminsky's property. (ECF No. 94-11.)

         Trees border Kaminsky's property on the north and west sides. (ECF Nos. 94-11, 94-14.) While the trees on the west side of the property are thick and obscure the view of Kaminsky's house (except for the area near the driveway, from which the house is visible), the trees on the north side are both sparse and spare. (Id.) The few trees that are there are small and do not block a view of Kaminsky's house. (Id.) Kaminsky's northerly neighbor's house sits just a few yards away, with a full view of Kaminsky's property through this line of trees. (Id.) Kaminsky's front door, visible from the road, is sealed shut: a path leads along the northern border of the property around the back of the house to another door, which faces the lake. (Id.)

         2. December 16, 2011

         On December 16, 2011, Connecticut State Police (CSP) Officer Barbara Mattson received a call from FBI Agent Eric Moore about Joseph Kaminsky's recent application to renew his federal firearms permit. (ECF Nos. 87-2 at ¶ 9, 97-1 at ¶ 9.) Agent Moore informed Mattson that the records check conducted for the renewal revealed that Kaminsky had a felony conviction from 1964. (Id.) Agent Moore stated that Kaminsky's application to renew his permit was denied for that reason. (Id.) Conn. Gen. Stat. § 53a-217 prohibits people previously convicted of felonies from possessing firearms.

         After receiving this information, Mattson queried Kaminsky's criminal history through the State Police Bureau of Identification (SPBI) database. (ECF Nos. 87-2 at ¶ 10, 97-1 at ¶ 10.) Kaminsky was listed in that database as having a 1964 conviction for seven counts of unemployment insurance fraud. (Id.) She also checked the Special Licensing and Firearms Unit (SLFU) databases and learned that Kaminsky held a current Connecticut permit to carry pistols and revolvers and a Town of Coventry permit to sell firearms-neither of which a felon lawfully may possess. (ECF Nos. 87-2 at ¶ 11, 97-1 at ¶ 11.) Mattson noticed that the 1964 conviction was not listed in the SPBI database the last time Kaminsky's Connecticut pistol permit was renewed, which was on August 17, 2010. (ECF Nos. 87-2 at ¶ 12, 97-1 at ¶ 12.) Mattson further learned that Kaminsky had six firearms registered to his name, including three machine guns, in violation of both state and federal law. (ECF No. 87-2 at ¶ 13, 97-1 at ¶ 13.) Mattson compared the fingerprints for Kaminsky's 1964 conviction with the fingerprints for the pistol permit registered to his name, and they matched. (ECF Nos. 87-2 at ¶ 14, 97-1 at ¶ 14.)

         Mattson and Vincent Imbimbo, another SLFU detective, then drove to the CPD to speak with Mark Palmer, Chief of Police. (ECF Nos. 87-2 at ¶ 15, 97-1 at ¶ 15.) At the CPD, Mattson and Imbimbo spoke with Chief Palmer, Lieutenant Walter Solenski, and Detective Matthew Hicks and alerted them that Kaminsky had a prior felony conviction and had registered firearms in his possession. (ECF Nos. 87-2 at ¶ 16, 97-1 at ¶ 16.) Mattson and Imbimbo told the CPD officers that they intended to provide Kaminsky with written notification that his permit was being revoked because of his criminal conviction and that they intended to speak with Kaminsky about the surrender of the firearms in his possession. (Id.) Solenski stated that he was acquainted with Kaminsky and would accompany Mattson and Imbimbo to Kaminsky's house. (ECF Nos. 87-2 at ¶ 17, 97-1 at ¶ 17.) Solenski, as well as CPD Sergeant Brian Flanagan and CPD Officers Dexter and Opdenbrouw, then accompanied Mattson and Connecticut State Police officers to Kaminsky's home on December 16, 2011. (ECF Nos. 57-2 at ¶ 5, 65 at ¶ 5, 87-2 at ¶ 18, 97-2 at ¶ 18.)

         When they arrived at Kaminsky's home, at approximately 10:51 a.m., Mattson parked in the driveway. (ECF No. 97-1 at 21, ¶ 18.) The Coventry defendants were in another car. (ECF No. 97-1 at 21, ¶ 17.) The officers “had to walk up a little bit and come around” to reach the door, i.e., the door facing the lake. (ECF No. 97-1 at 21, ¶ 19.) 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. 82-12 at 5.)[3] Mattson, Imbimbo, and Solenski approached the door. (ECF No. 97-1 at ¶¶ 17-19.) Kaminsky went to the door, and “Soleknski was standing at the bottom of the steps, the entryway to the door.” (ECF No. 82-12 at 5.) Kaminsky recognized Solenski and asked him “What is going on, Walt?”, and Solenski said “Can we come in?” (ECF Nos. 82-12 at 5, 87-2 at ¶ 19, 97-1 at ¶ 19.) Kaminsky then waved the officers inside. (ECF No. 82-12 at 5) (“So, they-I left the door open and I waved them in.”)

         Flanagan, Dexter, and Opdenbrouw stayed outside. Kaminsky stated that he observed “three, or four, or five” officers on his property that day. (ECF No. 95 at 6, ¶ 11.) He states that they were “close to and on the house side of his stone [retaining] wall.” (ECF No. 95 at 6, ¶ 12; see also ECF No. 94-13 at 2 (“[C]lose to my stone wall so they could jump over the stone wall it looked like to me. Take protection from a felon like myself.”)) In the affidavits accompanying the Coventry defendants' first motion for summary judgment, Flanagan, Dexter, and Opdenbrouw all stated that they waited in Kaminsky's yard, while Mattson, Imbimbo, and Solenski went inside. (ECF Nos. 57-7 at ¶ 5 and 57-9 at ¶ 5.) They stated that this was to provide “cover” for the officers who went inside, given that they knew Kaminsky was in possession of several firearms and had a previous conviction. (Id.) In Flanagan's and Dexter's affidavits accompanying this second motion for summary judgment, however, they state that they were outside the bounds of Kaminsky's property, “near the house of Joseph Kaminsky.” (ECF Nos. 87-4 at ¶¶ 4, 6, 87-9 at ¶¶ 4, 6.) Opdenbrouw states that he was in fact in Kaminsky's yard while he was providing cover for the other officers. (ECF No. 87-11 at ¶ 4.) Once Solenski, Mattson, and Imbimbo entered Kaminsky's house, these three officers left their positions and returned to stand on the public road. (ECF Nos. 87-4 at ¶ 18, 87-9 at ¶ 13, 87-11 at ¶ 9.)

         Once inside, Mattson informed Kaminsky that she believed Kaminsky had been convicted of a felony and, therefore, could not possess firearms legally. (ECF No. 87-2 at ¶ 20, 97-1 at 8, ¶ 20.) Kaminsky explained to Mattson that his attorney was working on that issue with the federal firearms authorities. (Id.) Kaminsky requested that Mattson telephone his attorney and handed her his attorney's business card. (Id.) Mattson called Kaminsky's attorney, Donald Weisman, from the kitchen and explained that she believed Kaminsky was unable to possess firearms because of his felony conviction. (ECF No. 87-2 at ¶ 22, 97-1 at 8, ¶ 22.) Weisman stated that Kaminsky would cooperate in surrendering firearms to the officers. (Id.)[4]

         After Mattson spoke with his attorney, Kaminsky agreed to turn over his firearms. (ECF Nos. 87-2, 97-1 at ¶ 23.) Kaminsky surrendered his pistol permit and “went around his residence removing firearms from their places of storage.” (ECF Nos. 87-2 at ¶ 24, 97-1 at ¶ 24.) This included removing firearms stored in the attic by accessing a concealed folding staircase. (ECF Nos. 87-2 at ¶ 25, 97-1 at ¶ 25.) The officers accepted Kaminsky's surrender of 36 firearms that day, according to the inventory report. (ECF Nos. 87-2 at ¶ 30, 97-1 at ¶ 30.)[5] Mattson instructed Kaminsky to come to the CPD to sign and receive a copy of paperwork indicating that he had surrendered these firearms. (ECF Nos. 87-2 at ¶ 28, 97-1 at ¶ 28.) Later that day, Kaminsky did so and signed the SLFU Surrendered Firearms Log sheets indicating that he had surrendered 36 firearms. (ECF Nos. 87-2 at ¶ 31, 97-1 at ¶ 31.)

         3. December 19, 2011

         On December 19, 2011, Solenski received a telephone call from Attorney Weisman, who stated that Kaminsky had located additional firearms in his house that he wished to surrender. (ECF Nos. 87-2 at ¶ 35, 97-1 at ¶ 35.) Solenski passed this information along to the SLFU. (Id.) Mattson then telephoned Weisman to confirm that Kaminsky wanted to surrender additional firearms. (ECF Nos. 87-2 at ¶ 36, 97-1 at ¶ 36.) Mattson informed him that three of the weapons surrendered on December 16, 2011, were illegal assault weapons under Connecticut law and would have to be destroyed. (Id.) Weisman asked if Kaminsky ...

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