Opinion
00 Civ. 4292 (SAS)
February 6, 2002
Marie DuSault, Esq., Greenwald Law Offices, Chester, New York, for Plaintiff.
Milton Thurm, Esq., Thurm Heller LLP, New York, New York, for Meehan Defendants.
Bruno V. Gioffre, Jr., Assistant Attorney General, New York, New York, for Defendant Dowling.
OPINION AND ORDER
Plaintiff, Gregory Bulanov, brings this Section 1983 action against New York State Trooper Timothy Dowling ("Dowling") and the Town of Lumberland defendants, Constables Kirk and David Meehan (the "Meehan defendants"). As a result of his arrest on suspicion of driving while intoxicated ("DWI"), Bulanov claims that he was subjected to unreasonable search and seizure, false arrest and imprisonment, and severe emotional distress. Bulanov also claims that his equal protection and due process rights were violated. Dowling has moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, arguing that he had sufficient probable cause under the circumstances to believe that Bulanov was engaged in criminal activity, i.e., driving while intoxicated. Bulanov, who argues that he was not intoxicated and therefore there was no reasonable suspicion or probable cause to justify subjecting him to any level of detention, has cross-moved for summary judgment. For the following reasons, Dowling's motion is granted and all claims against him are dismissed.
I. FACTS
A. Dowling's Version of the Events
At approximately 9:20 p.m. on June 12, 1999, Dowling responded to a State Police dispatcher's call on a possible DWI. See State Defendant's Statement Pursuant to Local Rule 56.1 ("Def. 56.1") ¶ 2. Dowling arrived on the scene where he was met by Constable Kirk Meehan who informed him that Bulanov had an open container of beer in his car, that he detected the smell of alcohol, and that he suspected that Bulanov was intoxicated. See id. Dowling was also informed that Bulanov admitted that he had been drinking. See id. Dowling observed Bulanov's car on the grassy shoulder of the road, with a portion protruding onto the roadway and its four-way flashers on. See id. ¶ 5. After his discussion with Kirk Meehan, Dowling approached Bulanov and asked him for identification. See id. ¶ 3. As Bulanov reached into the glove compartment in response to Dowling's request, Dowling smelled alcohol coming from inside the vehicle. See id. ¶ 4. Upon detecting this odor, Dowling asked plaintiff if he had been drinking and plaintiff admitted that he had. See id. Bulanov told Dowling that he had consumed one or two beers on a boat that afternoon while fishing. See id.
At this point, Dowling directed Bulanov out of the car and instructed him to lean on the front hood of the Lumberland patrol car. See id. ¶ 5. When stepping out of his car, plaintiff was very awkward, placing his right hand on the driver's door to support himself. See id. Dowling then administered several field sobriety tests consisting of a horizontal Gaze Nystagmus test, a "walk and turn" test and a "one leg stand" test. See id. ¶ 6. While administering these tests, Dowling detected the odor of alcohol on plaintiff's breath. See id. Plaintiff, who was uncooperative throughout these field sobriety tests, failed to perform any of the tests to Dowling's satisfaction. See id. Plaintiff's lack of motor coordination and lack of cooperation led Dowling to suspect that plaintiff had been drinking. See id.
Dowling then went to his vehicle to retrieve an alco-sensor instrument and attempted to perform an alco-sensor test on Bulanov. See id. ¶ 7. After initially failing to cooperate, plaintiff finally complied, the test was performed, and the resulting reading was .222, which is over the legal limit of intoxication. See id. Based on the field sobriety and alco-sensor tests, Bulanov was placed under arrest for DWI. See id. Bulanov was escorted to Dowling's patrol car where he was read his Miranda rights and a DWI warning. See id. ¶ 9.
Bulanov was then taken to the State Police barracks in Narrowburg, New York for processing. See id. ¶ 10. At the barracks, plaintiff was uncooperative in taking another alco-test. See id. Plaintiff finally cooperated and forcefully blew into the instrument which registered a breath alcohol level of .02, which is below the legal limit. See id. At this point, Dowling "unarrested" plaintiff and drove him home.
In August of 1999, the machine used to administer the alco-tests at the Narrowsburg barracks was found to be malfunctioning and was sent out for repairs. See Def. 56.1 ¶ 11.
B. Bulanov's Version of the Events
Bulanov's account differs from Dowling's version in the following areas. First, Bulanov contends that Kirk Meehan only told Dowling that there was an open beer in Bulanov's car, that he (Kirk Meehan) smelled alcohol, and that Bulanov stated that it was his first beer. See Plaintiff's Statement Pursuant to Local Civil Rule 56.1 ("Pl. 56.1") ¶ 13(a). Plaintiff also claims that he was not drunk and that he passed the field sobriety tests. See id. ¶ 14. In support of this statement, plaintiff claims that Kirk and David Meehan acknowledged that they observed nothing about Bulanov's physical movements or appearance to suggest intoxication. See id. ¶ 13(c). Bulanov testified that he cooperated with Dowling during the field sobriety tests and that his cooperation is corroborated by Kirk Meehan who allegedly acknowledged that Bulanov's performance of the field sobriety tests "seemed fine." See id. ¶¶ 14(b)(c). Bulanov further claims that none of the officers at the scene observed anything about his appearance and speech, such as red eyes and slurring, that indicated intoxication. See id. ¶ 14 (d). Finally, plaintiff disputes the .222 reading from the alco-test, claiming that Dowling lied about his performance on the field sobriety tests and the resulting reading. See id. ¶ 15.
C. Undisputed Facts
The following facts remain undisputed. First, plaintiff's car was parked on some portion of the main roadway's shoulder — whether the car was entirely within the shoulder or whether part of the vehicle protruded onto the runway is immaterial. Second, plaintiff concedes that Kirk Meehan told Dowling that there was an open beer in Bulanov's car, that he (Kirk Meehan) smelled alcohol, and that Bulanov stated that it was his first beer. Then there is Dowling's testimony that he observed Bulanov score .222 on the alco-sensor test.
Plaintiff disputes the alco-sensor test reading in a number of ways. First, plaintiff attempts to discredit this reading by his statement that he only had one beer that afternoon. See Pl. 56.1 ¶ 15. Second, plaintiff points to the much lower reading (.02) taken later that day at that Narrowsburg barracks. See id. Finally, plaintiff accuses Dowling of lying about his observation of Bulanov's score on the field sobriety test.
None of these raise a genuine issue of material fact as to Dowling's observation of the .222 reading. Plaintiff's first attempt is a self-evaluation of his sobriety. Furthermore, it does not foreclose the possibility that Dowling's testing instrument was malfunctioning. Nor is this possibility foreclosed by the much lower reading at the barracks. Finally, accusing Dowling of lying under oath is both conclusory and unsupported by specific facts, see infra Part II.A. Accordingly, Dowling's statement that he observed a .222 reading remains undisputed.
II. DISCUSSION
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "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." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law[,]' [while] [aim issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must view the evidence "in the light most favorable" to the nonmovant. See Breland-Starling v. Disney Publishing Worldwide, 166 F. Supp.2d 826, 829 (S.D.N.Y. 2001) (citing Anderson, 477 U.S. at 255). A court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001) "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the nonmovant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). However, the nonmoving party may not "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999), cert. denied, 120 S.Ct. 2688 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (quotation marks, citations, and alterations omitted)
B. There Was Probable Cause to Arrest Plaintiff for DWI
"Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). In particular, a plaintiff must demonstrate that: "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Fernandez v. DeLeno, 71 F. Supp.2d 224, 229 (S.D.N.Y. 1999) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)). However, "[t]he existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest.'" Weyant, 101 F.3d at 852 (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).
Probable cause to arrest exists "when the officers have 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, 101 F.3d at 852 (citing Supreme Court cases). The existence of probable cause must be determined based on the totality of the circumstances, see Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989), and must be evaluated under an objective standard, see Haussman v. E.S. Fergus, 894 F. Supp. 142, 148 (S.D.N.Y. 1995). Furthermore, the validity of an arrest is not contingent upon an ultimate finding of guilt or innocence. See Fernandez, 71 F. Supp. 2d at 229. "[P]robable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information." Bernard, 25 F.3d at 102. Finally, probable cause can be determined as a matter of law where there is no dispute as to the pertinent events and the knowledge of the officers. See Weyant, 101 F.3d at 852.
Here, Dowling had sufficient probable cause to arrest Bulanov for driving while intoxicated. Accepting plaintiff's version of what initially transpired between Kirk Meehan and Dowling, when Dowling arrived at the scene, he saw a car parked alongside the roadway. Meehan then informed Dowling that there was an open container of beer in plaintiff's vehicle, that he smelled alcohol, and that plaintiff admitted to drinking some amount of beer that day. Dowling then had plaintiff perform several field sobriety tests, which he failed, during which time Dowling smelled alcohol on plaintiff's person. Dowling ultimately had plaintiff take an alco-test which registered a reading of .222 which is above the legal limit. In sum, based on the undisputed facts — the position of Bulanov's car off the roadway, the discussion in which Kirk Meehan informed Dowling that Bulanov had an open container of beer in his vehicle, and Dowling's observation of Bulanov's .222 reading on the alco-sensor test — Dowling reasonably believed that he had probable cause to arrest plaintiff for DWI.
Whether the car was parked entirely within the road's shoulder as plaintiff claims or whether a portion of the car jutted out onto the pavement is immaterial. What is important is that plaintiff's car was parked off of the main road with its flashers on, a sign of distress to any reasonable officer.
Dowling's conversation with Kirk Meehan and the position of plaintiff's car gave Dowling reasonable suspicion to further detain Bulanov and administer the field sobriety test.
Plaintiff's attempts to create a material issue of fact are inconsequential. For example, plaintiff states that Kirk and David Meehan observed nothing about plaintiff's physical movements that would suggest intoxication. Even if this is true, it is immaterial. When questioned about plaintiff's gait, David Meehan responded as follows:
Q. And when he exited the vehicle and when you allowed him to exit the vehicle, did you notice if he used the vehicle in any way to support himself?
A. He got out holding the door.
Q. So, he was holding the door when he got out?
A. When he came out of the car, yes.
Q. When he walked to the front of the vehicle, did you notice how his balance was, in any way?
A. Did I take notice? No.
Deposition of David Meehan, Ex. B to the Affidavit of Marie DuSault, plaintiff's attorney ("DuSault Aff."), at 149. Kirk Meehan gave the following testimony.
Q. Did he have problems maintaining his balance?
A. I don't recall.
Q. Did he appear intoxicated?
A. You know, no, I don't know.
Q. You don't know or you don't remember?
A. I don't remember. I can't, I can't honestly sit here and tell you yes or no because I can't.
Deposition of Kirk Meehan ("K. Meehan Dep."), Ex. C to the DuSault Aff., at 143. When asked if he noticed if plaintiff's eyes were red or glazed, Kirk Meehan could not recall. See id. at 180, 203 (stating that he just didn't take notice of whether plaintiff's eyes were red or glazy).
Only Dowling's observations are relevant to a finding of probable cause as he was the arresting officer. Moreover, Dowling was fully justified in relying on what Kirk Meehan told him when he arrived at the scene. See Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (when making a probable cause determination, police officers are "entitled to rely on the allegations of fellow police officers").
While plaintiff now contests Dowling's observations of his performance on the field sobriety test, see Pl. 56.1 ¶ 14(a), plaintiff never testified at his deposition that he passed the field sobriety test, see Bulanov Dep. at 96-100. In any event, plaintiff's conclusory assertion that he passed the field sobriety test would not refute Dowling's observation that he failed the test. See Haussman, 894 F. Supp. at 148-49 (stating that plaintiff was not qualified to determine whether he passed sobriety tests because, for example, he could not determine whether his eye movement was uneven when following a pen). Based on this record, I conclude, as a matter of law, that Dowling had probable cause to arrest plaintiff for driving while intoxicated.
C. Dowling Is Entitled to Qualified Immunity in Any Event
Assuming, arguendo, that there was no probable cause to arrest plaintiff, Dowling would nonetheless be immune from suit under the qualified immunity doctrine.
Government officials performing discretionary functions are shielded from personal liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known . . . . Even where the permissible scope of activity is clearly defined, the qualified immunity defense protects an official if it was "objectively reasonable" for him to believe his acts were lawful.Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The question of qualified immunity is distinct from the question of probable cause. See Magnotti, 918 F.2d at 367. In the context of allegations of false arrest, the Second Circuit has stated that "[a]n arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). Furthermore, "[m]istaken judgments concerning probable cause are protected so long as they are reasonable." Bryant v. Rudman, 933 F. Supp. 270 (S.D.N.Y. 1996) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). As stated by the Second Circuit in the context of an arrest warrant,
[a] subjective inquiry into an official's personal belief is rejected in favor of an objective analysis of what a reasonable officer in defendant's position would believe. In the context of an allegedly unconstitutional arrest, the objective reasonableness standard bars the defense of qualified immunity "[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable" . . . . Thus, even where the law and the scope of permissible official conduct are clearly established, the defense of qualified immunity will protect a government official if it was "objectively reasonable" for him to believe his acts were lawful.Cartier V. Lussier, 955 F.2d 841, 843-44 (2d Cir. 1992) (quoting Malley V. Briggs, 475 U.S. 335, 344-45 (1986)).
The above rationale is equally applicable to warrantless arrests based on an individual officer's assessment of probable cause at the scene. Here, it was objectively reasonable for Dowling to believe that he was lawfully arresting plaintiff. In sum, the position of plaintiff's car, Kirk Meehan's recitation of what he observed, and Dowling's own observations provide ample support for the decision to arrest plaintiff for driving while intoxicated. Whether probable cause actually existed is therefore irrelevant as it was objectively reasonable for Dowling to have believed that probable cause existed. Accordingly, Dowling is insulated from suit and all claims against him are dismissed.
D. Plaintiff's Equal Protection and Substantive Due Process Claims
Plaintiff's Complaint alleges both equal protection and substantive due process violations. These claims must be dismissed regardless of whether Dowling is entitled to qualified immunity.
The Equal Protection Clause of the Fourteenth Amendment directs that all persons similarly situated should be treated alike. See Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (citing City of Cleburn v. Cleburn Living Ctr., Inc., 473 U.S. 432, 439 (1985)). To establish an equal protection violation, plaintiff must prove purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). Furthermore, "it is axiomatic that plaintiff must allege that similarly situated persons were treated differently." Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994).
Here, plaintiff has not shown that he is a member of a suspect class. Nor has plaintiff shown purposeful discrimination or that he was treated differently than other similarly situated persons. For these reasons, plaintiff's equal protection claim is dismissed.
Plaintiff's substantive due process claim must also be dismissed. "[I]f a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) Because plaintiff's false arrest claim is covered by the Fourth Amendment, a substantive due process claim is both duplicative and unnecessary and is therefore dismissed.
III. CONCLUSION
For the reasons stated above, all claims against Dowling are dismissed. The equal protection and substantive due process claims are dismissed against all defendants. The Clerk of the Court is directed to close this motion. A conference with the remaining parties is scheduled for February 14, 2002 at 4:30 p.m. Defendant Dowling's appearance at this conference is not required.