United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON MOTION FOR
W. EGINTON, SENIOR U.S. DISTRICT JUDGE
action, plaintiff Michael Picard alleges that defendants
Patrick Torneo, John Jacobi, and John Barone, who are all
employed by the Connecticut state police, violated his First
and Fourth Amendment rights pursuant to 42 U.S.C. §
1983. This Court granted summary judgment in defendants'
favor on plaintiff's claim of violation of his First
Amendment right to receive and memorialize information (count
one); denied summary judgment on his claim of a Fourth
Amendment violation of his right against warrantless seizure
of property (count two); and denied summary judgment on his
claim of retaliation based on his exercise of his First
Amendment right to protest (count three).
move for reconsideration as to count three. For the following
reasons, plaintiff's motion will be granted. Upon review,
the Court finds that defendants are entitled to summary
judgment on count three.
motion for reconsideration "generally will be denied
unless the moving party can point to controlling decisions or
data . . . that might reasonably be expected to alter the
conclusion reached by the court." Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
"The major grounds justifying reconsideration are
'an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.'" Virgin
Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992).
immunity shields government officials performing
discretionary functions from liability to the extent that
their "conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The doctrine protects public
officials from the risk of potentially ruinous monetary
liability that would deter qualified people from public
service, and it safeguards the public interest in having
government employees act with independence and without fear
of consequences. Eng v. Coughlin, 858 F.2d 889, 895
(2d Cir. 1988).
is entitled to summary judgment based on qualified immunity
if the court finds that the rights of the plaintiff were not
clearly established or that no reasonable jury could conclude
that it was objectively unreasonable for the defendant to
believe that he was not clearly violating an established
federal right. Lee v. Sandberg, 136 F.3d 94, 102 (2d
first stage of the qualified immunity analysis, the court
must consider whether the facts, taken in a light most
favorable to the plaintiff, could show a constitutional
violation. Cowan v. Breen, 352 F.3d 756, 761 (2d
Cir. 2003). If so, the court must determine whether the right
in question was clearly established at the time the violation
occurred. Saucier v. Katz, 533 U.S. 194, 201 (2001).
determining whether a right is clearly established, the court
considers whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.
Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002). To
determine whether a particular right was clearly established
at the time defendants acted, the court should consider: (1)
whether the right in question was defined with
“reasonable specificity”; (2) whether the
decisional law of the Supreme Court and the applicable
circuit court support the existence of the right in question;
and (3) whether under preexisting law a reasonable defendant
official would have understood that his or her acts were
unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d
Cir. 1991). “When neither the Supreme Court nor this
court has recognized a right, the law of our sister circuits
and the holdings of district courts cannot act to render that
right clearly established within the Second Circuit.”
Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006).
qualified immunity defense is established where: "(a)
the defendant's action did not violate clearly
established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such
law." Tierney v. Davidson, 133 F.3d 189, 196
(2d Cir. 1998). The doctrine of qualified immunity recognizes
that "reasonable mistakes can be made as to the legal
constraints on particular police conduct."
Saucier, 533 U.S. at 205. However, qualified
immunity applies if the officer's mistake as to what the
law requires is reasonable. Id. Qualified immunity
does not apply if, on an objective basis, it is obvious that
no reasonably competent officer would have taken the actions
of the alleged violation. Malley, 475 U.S. at 341.
Summary judgment is appropriate when a trier of fact would
find that reasonable officers could disagree. Lennon v.
Miller, 66 F.3d 416, 421 (2d Cir. 1995).
alleges that defendants charged him with the infractions to
retaliate against him for his protected activities of
protesting. Defendants argue that summary judgment must enter
on plaintiff's retaliation claims because the defendants
acted with probable cause; no evidence indicates that
defendants' actions were motivated or substantially
caused by plaintiff's exercise of his First Amendment
rights; and defendants' actions did not chill
plaintiff's First Amendment rights.
state his First Amendment retaliation claim, plaintiff must
show that: (1) he has a right protected by the First
Amendment; (2) defendants' actions were motivated or
substantially caused by plaintiff's exercise of that
right; and (3) defendants' actions effectively chilled
the exercise of his First Amendment rights. Curley v.
Village of Suffern, 268 F.3d 65, 76 (2d Cir. 2001).
“Chilled speech is not necessary if plaintiff can
establish that he suffered some other concrete harm.”
Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d
recent decision, the United States Supreme Court held that a
“plaintiff pressing a retaliatory arrest claim must
plead and prove the absence of probable cause for the
arrest.” Nieves v. Bartlett, 139 S.Ct. 1715,
1724 (May 28, 2019). In reviewing a challenged arrest, the
Court should determine “whether the circumstances,
viewed objectively, justify [the challenged] action, ”
and if so justified, the Court should conclude that the
challenged action “was reasonable whatever the
subjective intent motivating the relevant officials.”
Id. at 1725. The Court elaborated that
“probable cause speaks to objective reasonableness of
an arrest, ” and “its absence will-as in
retaliatory prosecution cases-generally provide weighty
evidence that the officer's animus caused the arrest,
where the presence of probable cause will suggest the
opposite.” Id. at 1724. The Court qualified
that the “no-probable-cause requirement should not
apply when a plaintiff presents objective evidence that he
was arrested when otherwise similarly situated individuals
not engaged in the same sort of protected speech had not
been.” Id. at 1727.
probable cause to arrest exists when the officer has
“knowledge or reasonably trustworthy information of
facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to
be arrested has committed or is committing a crime.”
Weyant v. Okst, 101 F.3d 845, 851 (2d Cir. 1996).
Probable cause is a “fluid concept-turning on the
assessment of probabilities in particular factual
context…[;]” it is evaluated according to the
totality of the circumstances. Illinois v. Gates,
462 U.S. 213, 232-33 (1983); Jenkins v. City of New
York, 478 F.3d 76, 90 (2d Cir. 2007). “A tip from
an anonymous informant-“though it will seldom
demonstrate basis of knowledge and the veracity of an
anonymous informant is largely unknowable-can form the basis
of reasonable suspicion or probable cause if it is
sufficiently corroborated.” Roberts v. Azize,
767 Fed.Appx. 196 (2d Cir. April 25, ...