Hickey v. City of New York

Full title: WALTER HICKEY AND ANNIE HICKEY, Plaintiffs, v. THE CITY OF NEW YORK et…

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

Date published: Nov 24, 2004

01 Civ. 6506 (GEL) (S.D.N.Y. Nov. 24, 2004)

Opinion

01 Civ. 6506 (GEL).

November 24, 2004

Dan Cherner, Law Offices of Daniel Cherner, New York, New York, for Plaintiffs Walter and Annie Hickey.

Michael I. Verde, James Tampellini, Katten Muchin Zavis Rosenman, New York, New York, for Defendants City of New York, Howard Safir, Harold Wittig, Patrick Reilly, Barbara Ojeda, Thomas Siracusa, Andrew Amelia, John Moeser, Sean M. Reilly, Kim Andrews, John Heihs, Christoper Teiner, Peter Reese, and James Delaney.

OPINION AND ORDER

GERARD E. LYNCH, District Judge

In this civil rights action, plaintiff Walter Hickey, who was shot when police officers responded to a domestic violence call, alleges that the police used excessive force in shooting him and in manhandling him after he was shot. His mother, Annie Hickey, who was present at the time, alleges primarily that she was unlawfully arrested without probable cause by the officers on the scene. For reasons difficult to understand, plaintiffs persist in confusing the central issues arising from this incident by compounding these claims with literally dozens of causes of action against a host of defendants, many of whom had no substantial involvement in the actions that plaintiffs plausibly claim were unlawful. As a consequence, the defendants, while acknowledging that at least one of plaintiffs' claims calls for trial, move for the dismissal of most of these claims. The motion will be granted in part and denied in part.

BACKGROUND

A party against whom a claim is asserted may move "at any time . . . for a summary judgment in the party's favor as to all or any part thereof." Fed.R.Civ.P. 56(b). Summary judgment is appropriate when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine issue as to any material fact," in turn, is established "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where a "genuine issue of material fact" exists, the motion will be defeated with respect to those claims that present such genuine issues.

In determining the existence of a "genuine issue," this Court must view the evidence in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ("On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion."). The parties to this case have submitted extensive, detailed materials in support of their respective positions, and exhibits to the briefing provided by each side number in the dozens. Given the extent of the factual disputes in the case, the Court will describe here the evidence presented by both sides. It does so not with a view toward making findings or evaluating the evidence, but rather to present a coherent account of such facts as are not disputed, while giving sufficient play to the many points of disagreement between the parties.

I. Factual Background

On February 23, 1999, Officers Christopher Teiner and John Heihs of the New York City Police Department were dispatched to the residence of plaintiffs Walter and Annie Hickey in response to the 911 call of Walter Hickey's ex-wife, Christine Brown. Brown placed at least two calls from the Hickey residence following an altercation with Walter Hickey, during which (according to Brown) Walter Hickey repeatedly struck her in the head, temporarily causing her to lose consciousness. (Copertino DD-5, Wallace Report, Cherner Decl. Ex. N, at 1). After the second call, Brown retreated to the basement, where she heard the shots fired by Officer Teiner (and placed a further call to 911 to report those shots, which she claims she assumed were intended for her) (id.), but did not otherwise observe the events at the core of plaintiffs' complaint. Plaintiffs offer a competing account of the circumstances surrounding the phone calls of Brown to 911, contending that it was Brown who initially attacked Walter Hickey and that, when asked to leave the home by Annie Hickey, she fled to the kitchen, calling 911 to assert false claims against Walter Hickey. (Annie Hickey Dep., Cherner Decl. Ex. R, at 43, 46, 50-51; Walter Hickey Aff. ¶¶ 10-19.)

The parties also disagree about what happened once Teiner and Heihs arrived at the Hickey residence, announced their arrival, and identified themselves as police officers responding to a domestic violence call. Plaintiffs allege that, in response, Annie and Walter Hickey came to the door, and Annie Hickey, with her arm around her son, identified herself as a School Safety Officer, and invited the officers to come inside. (Annie Hickey Dep. 65-66.) Walter Hickey's cell phone was in a leather case clipped to his belt on his right-hand side, at waist-level. (Walter Hickey Aff. ¶ 23.) As Annie and Walter Hickey stepped outside, both police officers ran back from the house. One of the officers — later identified by both plaintiffs and defendants as Teiner — shouted, "He's got a gun," drew his own service weapon, and pointed it in the direction of the plaintiffs. (Annie Hickey Aff. ¶ 16.) According to the plaintiffs, Annie Hickey protested that her son was unarmed, and pled with the officers not to shoot, but Teiner nonetheless fired a shot, shattering the glass of the storm door, and causing Walter Hickey to fall backwards through the door. (Annie Hickey Dep. 65-66; Annie Hickey Aff. ¶¶ 17-18; Walter Hickey Aff. ¶ 26.) Plaintiffs allege that after this first shot, Annie Hickey again protested that they were unarmed, but the same officer fired again. This time the bullet struck Walter Hickey and caused him to fall to the ground. (Walter Hickey Aff. ¶ 26.)

Defendants counter with a strikingly different scenario. Teiner and Heihs claim that after arriving at the Hickey residence they heard "noises and pushing like banging into walls" coming "from behind the front door." (Teiner 9/8/03 Dep., Verde Aff. Ex. 5, at 137-38.) On hearing these noises, Teiner and Heihs retreated backwards, away from the front door, and down the steps, with Teiner at least reaching street level, before Walter and Annie Hickey emerged through the front door, locked in struggle. It appeared to the officers as if Annie Hickey was attempting to restrain Walter Hickey from coming toward them. (Id. at 138-39, 148; Heihs 9/9/03 Dep., Verde Aff. Ex. 7, at 87-88, 94-95.) According to both officers, Walter Hickey then broke out of his mother's embrace, and pulled from his waistband what appeared to the officers to be a gun, took a combat stance, and threatened to kill the officers. (Heihs 9/9/03 Dep. 95-96; Teiner 9/8/03 Dep. 163, 165.) Heihs retreated, attempted to retrieve his firearm from its holster, and sought cover (Heihs 9/9/03 Dep. 96); Teiner fired two shots in the direction of Walter Hickey, striking him once. (Teiner 9/8/03 Dep. 171, 174; Def. R. 56.1 Stmt. ¶ 8.) The officers' version of events is partially corroborated a statement given later that evening by Annie Hickey while at the station house. Although Annie Hickey now disavows the statement as made under duress, sleep deprivation, and psychological pressure, see below, at the time she claimed that Walter Hickey yelled that he had a gun, and pleaded with the officers to shoot him. (Annie Hickey Written Stmt., Verde Aff. Ex. 30, at 3.)

The parties disagree as well as to what happened after Walter Hickey was shot. According to the plaintiffs, even after Walter Hickey lay on the porch, Teiner yelled at Annie Hickey to get out of the way, or he would shoot her, too. (Annie Hickey Dep. 80.) Teiner then "handcuffed [Walter Hickey] with one hand, . . . [Heihs] got him by the other arm and they dragged him and [threw] him down the steps, [and] they began to kick him." (Id. at 87.) Plaintiffs claim that at least one officer who arrived on the scene after the shooting also joined in the beating. (Id. at 95-96.) The officers who arrived on the scene after the shooting did not immediately realize that Walter Hickey had been shot (Walter Hickey Aff. ¶ 33), and it was only after considerable delay that he was placed in an ambulance, and even then the ambulance remained at the Hickey residence for some time before Walter Hickey was taken to the hospital. (Id. ¶¶ 33, 34, 36, 38.)

Defendants, however, adamantly deny that Walter Hickey was either dragged from the porch or beaten following the shooting, citing inter alia the following: EMT technician William Cummings stated that Walter Hickey's head injury was inconsistent with being dragged, and that Walter Hickey had told Cummings he had been injured when he fell down the stairs (Cummings Interview, Verde Aff. Ex. 17, at 2); neither the physician's assistant who treated Walter Hickey, nor the intern on duty that evening in the emergency room observed any injuries apart from the bullet exit and entry wounds (Engel Report, Verde Aff. Ex. 19, at 1-2); and three civilian bystander witnesses all testified that they did not recall observing anyone beating Walter Hickey (Mitchell Dep., Scott-McKelvey Dep., Mayas Dep., Verde Aff. Exs. 20, 21, 22). Moreover, defendants claim that an ambulance was summoned for Walter Hickey within minutes of the shooting, and that it departed the scene for the hospital about thirty minutes later. (Def. R. 56.1 Stmt. ¶¶ 12, 15 (noting ambulance was requested at 11:09 p.m., two minutes after the officers arrived at the Hickey residence, and departed for the hospital at 11:39 p.m.).)

Both sides agree that at some point before Walter Hickey left for the hospital in the ambulance, Annie Hickey was transported to the 105th Precinct, where she remained until sometime between 4:00 and 5:00 a.m. Plaintiffs and defendants differ, however, about the conditions of her stay there. Plaintiffs allege that defendants Sgt. Thomas Siracusa and Officer Kim Andrews took her to the precinct against her will, without giving her adequate time to dress properly, after Siracusa informed her that she would have to make a statement about the incident. Plaintiffs further allege that she was kept in a small room at the precinct, where Detective John Moeser told her she had to complete a statement before she could leave, contact family members, or go to the hospital, even after she complained that she felt ill. (Annie Hickey Dep. 110-11, 113-17, 368.) Annie Hickey later discovered that a number of relatives, including her brother, sister, niece, and nephew, had visited the precinct looking for her, but all were denied access to her. (See Carlton Newton Aff.; Simmons Aff.; David Newton Aff.)

Annie Hickey testifies that Moeser told her that "[she] had to answer questions and make a statement, and the sooner that [she] did that, then [she] could leave and that [the police] would drive [her] to the hospital." (Annie Hickey Aff. ¶ 34.) The great strain of the events of the evening allegedly exacerbated Annie Hickey's pre-existing high blood pressure condition (she had suffered a stroke in the 1980s), and Annie Hickey feared not only that her son was dying, but also that she herself might be suffering a second stroke. (Annie Hickey Aff. ¶¶ 37-38.) Under those conditions, plaintiffs allege Annie Hickey signed a statement prepared by Moeser, after he discarded a first, truthful statement as not "good enough" (Annie Hickey Dep. 115-116), and made the tape-recorded statements now offered by defendants to impeach her present claims. Annie Hickey disavows the contents of those statements: "I signed some pieces of paper and did not know what they said or what I was signing, and all I could think about was Moeser's telling me that the sooner I finished, the sooner I could get out of there." (Annie Hickey Aff. ¶ 39.) With regard to the taped statements, she now avers that "I was even more worn out than I had been before, and I said what they wanted to hear. . . . Much of what is on the tape is not correct, as it was coerced and suggested." (Annie Hickey Aff. ¶ 41.)

Defendants do not dispute that the police took Annie Hickey to the 105th Precinct "to be interviewed further in regard to the incident and to preserve the statement she had made at the scene." (Def. R. 56.1 Stmt. ¶ 39.) Defendants deny, however, that Annie Hickey requested medical treatment, and claim she was provided with information about Walter Hickey's condition, and allowed access to her brother, David Newton. According to defendants, it was Annie Hickey who refused to make phone calls, not precinct personnel who denied her access to a telephone. (Def. R. 56.1 Stmt. ¶¶ 49.) Further, defendants claim Moeser merely recorded Annie Hickey's verbal statement made earlier at the Hickey residence to Sgt. Arthur Hearns, and note that Annie Hickey stated in a tape-recorded interview she had not been mistreated by the police: "I would say I'm sorry that this happened and I . . . have to say the police here have been very nice. . . . They have tried to make my stay here, being here, comfortable and . . . I have great respect for you guys." (Def. R. 56.1 Stmt. ¶ 53; Annie Hickey Taped Stmt., Verde Aff. Ex. 31, at 29.) Both parties agree that Annie Hickey left the 105th Precinct in the early hours of February 24, 2004, escorted by her brother, David Newton. (Annie Hickey Dep. 361-62; Def. R. 56.1 Stmt. ¶¶ 52, 55.)

II. Procedural History

As the preceding account makes clear, the parties agree roughly on the time line of the evening's events and contacts between plaintiffs and the various defendants, but hotly dispute the character of those contacts. Out of this confusing factual record, plaintiffs find support in their complaint, originally filed on July 18, 2001, for thirty-eight causes of action against the City of New York, the New York City Police Department ("NYPD"), eleven named City of New York/NYPD employees, as well as "Unknown John and Jane Doe(s)" police officers, and Queens County Assistant District Attorneys ("ADAs") Peter Reese and James Delaney. Plaintiffs are not always clear, however, against which defendants they assert these causes of action, often referring simply to "the defendants" in their complaint, even when the facts alleged make clear that not all defendants could be involved.

Plaintiffs assert a number of violations of 42 U.S.C. §§ 1983 and 1985. First, plaintiffs assert four claims of excessive use of force, against Teiner and/or Heihs for shooting Walter Hickey (Fifth Cause of Action, Compl. ¶¶ 128-132), against Teiner, Heihs, and "other unknown individuals" for the alleged beating which took place following the shooting (Sixth Cause of Action, Compl. ¶¶ 133-137), and against Teiner or Heihs for injuries to Walter and Annie Hickey from the shattering of storm door glass (Seventh and Eighth Causes of Action, Compl. ¶¶ 138-147). Plaintiffs also assert a claim of deliberate indifference against the defendants for failure to provide timely medical attention for Walter Hickey. (Ninth Cause of Action, Compl. ¶¶ 148-155.)

Second, plaintiffs assert a series of claims for the alleged mistreatment of Annie Hickey while in police custody after the shooting. They allege she was falsely arrested (Second Cause of Action, Compl. ¶¶ 111-116), falsely imprisoned (Fourth Cause of Action, Compl. ¶¶ 123-127), and denied medical care while in police custody due to defendants' deliberate indifference (Tenth Cause of Action, Compl. ¶¶ 156-163). In addition, the complaint avers a failure to intervene on the part of defendants to prevent those injuries (Fourteenth Cause of Action, Compl. ¶¶ 181-185).

Third, plaintiffs assert a similar series of claims on behalf of Walter Hickey for false arrest (First Cause of Action, Compl. ¶¶ 106-110), false imprisonment (Third Cause of Action, Compl. ¶¶ 117-122), malicious prosecution (Eleventh Cause of Action, Compl. ¶¶ 164-169), and abuse of process (Twelfth Cause of Action, Compl. ¶¶ 170-175) in connection with his arrest and eventual prosecution (leading to acquittal) on assault charges (Compl. ¶¶ 81, 95-96), as well as a claim of failure to intervene to prevent these abuses and those complained of in connection with his shooting (Thirteenth Cause of Action, Compl. ¶¶ 176-180). Plaintiffs also assert that the events at the core of the complaint — Walter Hickey's shooting, arrest, and prosecution, and Annie Hickey's detention — deprived Walter and Annie Hickey of their substantive due process rights in that the behavior of defendants was "shocking to the conscience" (Fifteenth Cause of Action, Compl. ¶¶ 186-190), and resulted in a number of procedural due process violations, including the failure of defendants to provide either plaintiff with Miranda warnings, and denial of Annie Hickey's access to counsel and her family members while in police custody. (Sixteenth Cause of Action, Compl. ¶¶ 191-195.)

Fourth, plaintiffs make three broader complaints in Causes of Action Seventeen through Nineteen.¹ In Cause of Action Seventeen, plaintiffs allege a Monell claim of a "pattern and practice of unjustified, unreasonable and illegal beatings and excessive uses of force and other violations of law, including, but not necessarily limited to false arrests, false imprisonments, abuses of process, malicious prosecutions, and procedural and substantive due process violations by police officers" employed by the NYPD, "permitted and tolerated" by the City of New York, and which made possible the abuses suffered by the plaintiffs as alleged throughout the complaint. (Compl. ¶ 197, 203.) Plaintiffs further allege that the defendants conspired to deprive them of their civil rights in violation of 42 U.S.C. § 1985(2) and (3), by obstructing justice in covering up their alleged wrongful acts in this matter and depriving plaintiffs of the equal protection of the laws. (Causes of Action Eighteen and Nineteen, Compl. ¶¶ 204-224).

1 There are actually two Causes of Action denominated as the Nineteenth Cause of Action in plaintiffs' complaint, but they appear to be identical and will be treated here as one Cause of Action.

In addition to these constitutional claims, plaintiffs originally asserted a number of state law claims in Causes of Action Twenty through Thirty-Eight, all but two of which (Causes of Action Twenty-Six and Twenty-Seven, false arrest and imprisonment of Annie Hickey) have been dismissed. A Stipulation and Order, agreed to by the parties and signed by United States Magistrate Judge Frank Maas, dismissed the New York City Police Department as a defendant in the case (given its status as an agency of the City of New York, and thus a non-suable entity), and dismissed the state law claims against the City of New York and the "NYPD defendants," "i.e., those individual defendants who were employees of the City of New York working for the NYPD." (Stipulation and Order of February 13, 2004). And in response to a motion to dismiss by defendants Reese and Delaney, the two Queens County ADAs, the Court dismissed plaintiffs' Eleventh, Twelfth, Twenty-Third, Twenty-Fourth, and Thirty-Fourth Causes of Action, which allege actions that were fully within the scope of prosecutorial immunity, on grounds of absolute prosecutorial immunity. Hickey v. City of New York, No. 01 Civ. 6506, 2002 WL 1974058, at *4 (S.D.N.Y. Aug. 26, 2002). However, Causes of Action Two, Four, Sixteen, Nineteen, Twenty-Six, and Twenty-Seven alleged actions — participation in the arrest and detention of Annie Hickey — which fell outside the scope of that immunity, and therefore survived defendants' motion to dismiss, id. at *3-*4, while the balance of the complaint did not allege any involvement of these defendants, id. at *5. As a result of these orders, Causes of Action One through Nineteen survive as to all remaining defendants, and Causes of Action Twenty-Six and Twenty-Seven survive only as to defendants Reese and Delaney.

DISCUSSION

The parties are divided by the basic factual issue of how Walter Hickey came to be shot. As the preceding narrative indicates, plaintiffs claim the shooting was provoked by little more than the appearance of Walter Hickey on his porch, with a cell phone strapped to his waist. Meanwhile, defendants claim Walter Hickey emerged from his home, threatening to shoot them, and holding what appeared to be a gun in a firing position. This divide creates a clear factual issue as to whether the police used excessive force in shooting Walter Hickey.² Plaintiffs, however, have brought a series of additional claims, on which defendants now move for summary judgment.

2 Walter Hickey has made an excessive force claim for injuries caused by the shattering of the glass storm door (Cause of Action Seven, Compl. ¶¶ 138-142), over and above those injuries resulting directly from either the shooting itself or the alleged beating he received thereafter. Defendants, pointing to the description of events provided by Walter Hickey in his deposition, claim the storm door shattered due to the force of Walter Hickey's body as he fell backwards into it, rather than as a direct result of the bullets fired by Teiner. (Walter Hickey Dep., Verde Aff. Ex. 23, at 118, 126.) Regardless, this excessive force claim is dismissed as duplicative. There is only one use of force that is relevant to these particular injuries: the shooting. If that use of force was excessive, Walter Hickey may recover for any resulting injuries, whether he was injured by the bullets themselves, by glass that shattered when it was hit by a bullet, or by glass that shattered as he fell through the door as a consequence of being shot. Which, if any, of these injuries can be established by sufficient evidence to reach the jury may await determination at trial.

I. Walter Hickey: False Arrest, False Imprisonment, Malicious Prosecution, and Abuse of Process

Defendants move for summary judgment on plaintiffs' First, Third, Eleventh, and Twelfth Causes of Action, alleging federal civil rights claims under 42 U.S.C. § 1983 for false arrest, false imprisonment, malicious prosecution, and abuse of process as to Walter Hickey. The Supreme Court has long recognized that both the elements and defenses of such causes of actions are to be construed with reference to state common law. See, e.g., Wilson v. Garcia, 471 U.S. 261, 277 (1985). Indeed, the Second Circuit has recognized explicitly that § 1983 false arrest and malicious prosecution claims are distinguished from their state law analogues only by the requirement that the tortfeasor act "under color of state law," see Posr v. Doherty, 944 F.2d 91, 94 (2d Cir. 1991), citing Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 40 (2d Cir. 1985), and has held that abuse of process may ground a § 1983 claim, while looking to New York state law to define its elements. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Moreover, the claims of false arrest and false imprisonment are "synonymous" under New York law. Posr, 944 F.2d at 96.³ Accordingly, this Court must look to the New York state law of false arrest, malicious prosecution, and abuse of process in deciding defendants' motion on these claims.

3 Because the torts of false arrest and false imprisonment are identical, plaintiffs' Third Cause of Action, for false imprisonment of Walter Hickey, is dismissed as duplicative.

A thorough exploration of the elements of these state law torts, however, is unnecessary because the existence of probable cause offers a complete defense to all three. See Boyd v. City of New York, 336 F.3d 72, 75 (2d. Cir. 2003) (probable cause for arrest and prosecution will defeat false arrest and malicious prosecution claims); Granato v. City of New York, No. 98 Civ. 667, 1999 WL 1129611, at *7 (E.D.N.Y. Oct. 18, 1999) (probable cause an "excuse or justification" that defeats abuse of process claim); see also Singer v. Fulton Co. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause."). Therefore, the critical issue is whether a reasonable jury could find that no probable cause existed for Walter Hickey's arrest and prosecution; if not, summary judgment must be granted as to these claims. Probable cause is measured by the reasonableness of the belief that an offense has been committed by the person arrested. See Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (probable cause exists where "the knowledge of facts, actual or apparent, [is] strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of" (internal quotes omitted)); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (probable cause exists "when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested").

Although plaintiffs press their claims against a long list of officers, they focus their discussion on the deposition testimony of Hearns. (P. Mem. 3-4.) Hearns — oddly enough, one of the few officers connected to the case who is not named as a defendant — took responsibility for the decision to place Walter Hickey formally under arrest. (Hearns Dep., Verde Aff. Ex.11, at 56.) Characterizing Hearns's deposition testimony as amounting to an admission that "he did not know what, if anything, Mr. Hickey had done wrong," plaintiffs argue that probable cause was lacking and Hearns's decision to arrest arbitrary. (P. Mem. 3-4.)

Plaintiffs' argument quotes isolated portions of Hearns's testimony, and completely mischaracterizes the tenor of his actual account. Hearns stated during his deposition that he "wasn't sure" whether Walter Hickey had done anything wrong. (Hearns Dep. 56.) Of course, probable cause does not require certainty on an officer's part that a crime has been committed, only that "the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Golino, 950 F.2d at 870. Moreover, Hearns testified that after arriving at the Hickey residence, but prior to his decision to arrest Walter Hickey, Annie Hickey had told him that her son had been upset by a fight with his girlfriend, and had threatened to kill his girlfriend, himself, and the police officers. (Hearns Dep. 52-53.) Given that "[o]fficers have probable cause to arrest if they receive `information from some person — normally the putative victim or eyewitness — who it seems reasonable to believe is telling the truth,'" Thomas v. Culberg, 741 F.Supp. 77, 80 (S.D.N.Y. 1990) (quoting Daniels v. United States, 393 F.2d 359, 361 (D.C. Cir. 1968)), the statements of Annie Hickey to Hearns would constitute probable cause. Hearns was also told by Heihs or Teiner that they were responding to a 911 call about a domestic dispute with Walter Hickey's girlfriend, which confirmed Annie Hickey's account. (Hearns Dep. 56.) Thus, plaintiffs' claim that Hearns admitted that "he did not know what, if anything, Mr. Hickey had done wrong" and therefore lacked probable cause is completely inaccurate.

However, plaintiffs' brief also misperceives the point at which a Fourth Amendment seizure of Walter Hickey occurred. A suspect is seized for purposes of the Fourth Amendment when he is shot in an effort to bring him under police control. Tennessee v. Garner, 471 U.S. 1, 7 (1985). Thus, regardless of when the officers decided to label their actions an arrest, Walter Hickey was "arrested" when Teiner shot him, and the existence of probable cause must be gauged as of that point.

There is abundant evidence from which a jury could find that the officers had probable cause to arrest Walter Hickey. Teiner and Heihs were responding to a 911 call reflecting an assault at the Hickeys' address. (NYPD 911 Sprint Report, Verde Aff. Ex. 3, at 1.) The 911 operator had received a call from Brown, and knew that a female complainant had reported a "male trying to kill her." (Id.) Annie Hickey herself recalls that the officers announced themselves as responding to a domestic dispute. (Annie Hickey Dep. 65.) Most importantly, the officers describe Walter Hickey as bursting out of the house, with his mother trying to restrain him, making threatening gestures and remarks towards them, and pointing an object that appeared to them to be a gun. (Heihs 9/9/03 Dep. 95-96; Teiner 9/8/03 Dep. 163, 165.) If this account is accepted, there can be no doubt that Teiner and Heihs were justified in arresting Hickey.⁴

4 Whether they were justified in using deadly force in the attempt is a different question, which is addressed below in Part III.

This account, however, is disputed by the plaintiffs. Both Annie and Walter Hickey dispute the officers' account of what occurred on the front steps. (Annie Hickey Dep. 65-68, 78-80; Walter Hickey Aff. ¶¶ 21-28.) Because a jury could believe their testimony, on summary judgment the Court must disregard the disputed portions of the testimony, and can award summary judgment only if the officers already had probable cause based on the undisputed information in their possession at the time they arrived at the Hickey residence. This information, however, is not entirely clear on the present record. The 911 operators knew that a woman had reported that a man was trying to kill her,⁵ a fact which, if known to Teiner and Heihs, might well have sufficed to give them probable cause to arrest Walter Hickey when he emerged from the house in the presence of a woman, Annie Hickey, whose intervention, even on her own account, could be taken by a reasonable officer as confirming that Walter Hickey was the man they were seeking.

5 The record is unclear as to whether this information was also known to the dispatcher. The record contains a "NYPD 911 Sprint Report and Incident Listing" from February 23, 1999 (Verde Aff. Ex. 3), detailing the 911 calls placed by Christine Brown, and their content. It is not clear, however, what access the dispatcher had to all or some of this information, as no explanation has been given as to how the Sprint Report is used, or what precise communications took place between the 911 operators and the dispatcher. Regardless, for the reason given below, information known only to the 911 operators or to the dispatcher may not be imputed to Teiner and Heihs.

"[W]here law enforcement authorities are collaborating in an investigation, . . . the knowledge of one is presumed shared by all," Illinois v. Andreas, 463 U.S. 765, 772 n. 5 (1982), and the existence of probable cause is therefore determined with reference to the collective knowledge of all officers involved in the investigation. However, the knowledge of 911 operators and dispatchers may be imputed to investigating officers only where the operator or dispatcher is a police officer, or has received appropriate training to evaluate information for probable cause. See United States v. Colon, 250 F.3d 130, 137-38 (2001). As the Second Circuit there held, "imputing information known only to the civilian operator and not conveyed to the dispatching and then arresting officers would extend the [collective knowledge] doctrine beyond its current jurisprudential parameters." Id. at 137. Although the Court went on to hold that this difficulty could be remedied by providing 911 operators (and presumably then also civilian dispatchers) with training on "the standards for evaluating the sufficiency of incoming information," id. at 138, nothing in the present record reflects whether the 911 operators or dispatcher in this case had such training.⁶ Thus, for present purposes, the evaluation of probable cause must depend solely on the information relayed by the operators and dispatcher to the arresting officers themselves.

6 Indeed, as plaintiffs point out, the 911 operators and dispatcher in this case, all identified as "police communications technicians," were disciplined for "failure to obtain information from a caller" and "failure to relay pertinent information to the responding units," respectively. (Queens South Investigations Unit Final Report, Cherner Decl. Ex. G, at 3.)

On this point, however, the record is cryptic. The garbled transcript of the dispatch to the officers in the field says only, "Central . . . assaulted . . . male . . . female. 90 — 52 210 Place. 90 — 52 210 Place, 90 Avenue to 91. It's a private house. You're gonna see a female at the location in regards K. Basement . . . time." (Dispatch Run Tr., Cherner Decl. Ex. H., at 1.) While a reasonable jury might interpret this as suggesting a female victim, such an interpretation is, to say the least, disputable. Neither Teiner nor Heihs, in fact, recalls whether they believed that the call reflected a male-on-female assault or vice versa. Heihs initially stated he knew the complainant was a woman, but retreated, when pressed, to the conclusion that he did not remember. (Heihs 10/14/03 Dep., Verde Aff. Ex. 8, 296-98.) Teiner, similarly, was "not positive" as to whether it was a man or woman who had placed the 911 call, did not remember whether a weapon was involved, and could say only that he understood there was "an assault in progress." (Teiner 9/8/03 Dep. 133-35, 116.) This information would certainly give reasonable officers a reasonable basis to conclude that a crime was being committed, but not that Walter Hickey was committing it.

There are thus genuine issues of material fact as to whether Teiner and Heihs had probable cause to arrest Walter Hickey at the time that Teiner shot, and thereby seized, him.

But these questions do not support a claim against the other officers. Plaintiffs charge a number of officers in the challenged claims, many of whom had no connection to the arrest at all, or had only a formal connection to the arrest (like Officer Sean Reilly, who merely processed the arrest because Teiner and Heihs had been sent for medical treatment (Sean Reilly Dep., Verde Aff. Ex. 13, at 41-42, 44-45, 55-56)). By the time Walter Hickey was taken from the scene, in police custody, in an ambulance, the officers had discovered Brown in the basement and taken her statement, which unequivocally gave the officers probable cause to arrest Hickey. See Thomas, 741 F. Supp. at 80 (S.D.N.Y. 1990) (quoting Daniels v. United States, 393 F.2d 359, 361 (D.C. Cir. 1968)).

For similar reasons, plaintiffs' claims of malicious prosecution and abuse of process are blatantly without merit. By the time a complaint was filed against Walter Hickey, any ambiguity about the nature of the alleged assault had been completely resolved. By that time, both Brown and Annie Hickey had made statements alleging that Walter Hickey had assaulted Brown. While Annie Hickey has since disavowed the statements she made at the station house, she does not deny that she made them, and even if a jury concludes that she was not being truthful and made the statements solely to please the police, there is no basis for concluding that the officers and prosecutors who heard the statements did not in good faith believe that she was reporting what had actually happened. Moreover, even if these statements are disregarded, Brown's statements alone are sufficient to establish probable cause.

Accordingly, summary judgment is denied as to Cause of Action One, insofar as it alleges that Teiner and Heihs seized Walter Hickey without probable cause in violation of the Fourth Amendment. Summary judgment is granted to all other defendants on Causes of Action One, Three, Eleven, and Twelve.

II. Annie Hickey: False Arrest and False Imprisonment

Defendants move for summary judgment on plaintiffs' Second and Fourth Causes of Action, alleging civil rights claims under 42 U.S.C. § 1983 for the false arrest and imprisonment of Annie Hickey.⁷ A cause of action for false arrest will lie where the plaintiff shows, 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) (citing Broughton v. State, 37 N.Y.2d 451, 456 (1975)). As stated above, probable cause would supply the requisite "justification," and serve as a complete defense to a false arrest claim.

7 Because the claims of false arrest and false imprisonment are identical and duplicative, plaintiffs' claim for false imprisonment of Annie Hickey will be dismissed. See note 3 above.

But defendants do not argue that they had probable cause to arrest Annie Hickey. Instead, they argue that she was never arrested. Defendants rely on the notion of consent, arguing that Annie Hickey voluntarily went to and stayed at the station house, and therefore has no claim of false arrest. (D. Mem. 12-13.) In the absence of a formal charge, as here, a person may still be "seized" within the meaning of the Fourth Amendment, and therefore have a basis for a false arrest claim under § 1983, where "`in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Thus, the critical question is whether a jury could find that a reasonable person in Annie Hickey's position would have believed that she was not free to leave.

Defendants cite to a great deal of evidence suggesting that Annie Hickey was free to leave, and that a reasonable person would have so believed. They note, inter alia, that she was never handcuffed; that she rode to the station in an unmarked police car, where she sat in the back seat, alone; and that she volunteered information about the incident to the officers en route. (Id. at 12, citing Annie Hickey Dep. 103-04; Siracusa Dep., Verde Aff. Ex. 33, at 54; Andrews Dep., Verde Aff. Ex. 34, at 41; Siracusa Mem. Book, Verde Aff. Ex. 39, at 3; Andrews Mem. Book, Verde Aff. Ex. 35, at 2.) Once at the station, defendants assert, she never tried to leave, refused to take phone calls, and was told that she would be taken to the hospital to visit her son once officers were finished taking her statement. (Id. at 12-13, citing Annie Hickey Dep. 360, 374; Siracusa Dep. 115-16, 122-23.) Moreover, defendants point to Annie Hickey's tape-recorded statement that "[the police] have been very nice. They have tried to make my stay here, being here, comfortable and I have great respect for you guys." (Id. at 13, quoting Annie Hickey Taped Stmt. 29.)

But defendants disregard Annie Hickey's own testimony. Annie Hickey states that she told Siracusa that she did not want to go to the precinct and that she "was forced out of [her] own house against [her] will." (Annie Hickey Aff. ¶¶ 27, 29.) She also testifies that once at the station, she was placed in a small room, told she was not allowed to leave, and refused access to a telephone and visitors. (Id. ¶¶ 33-34.) Moreover, she now disavows both her written and oral statements that evening, claiming they were made under severe physical and emotional distress and sleep deprivation (Annie Hickey Aff. ¶¶ 35-42). At her deposition, she similarly testified that she was hustled out of her house by Siracusa, with barely time to dress (Annie Hickey Dep. 99); that she made two to three requests to leave (id. at 111); that she was "scared to death," and felt "nervous" and "coerced" while making her written statement at the precinct (id. at 114-115); that a first, truthful statement was discarded as not "good enough" by the officer taking that statement (id. at 115-116); and that she told that same officer anything that he wanted to hear in order to be released so as to see her son as quickly as possible (id. at 117).

A reasonable jury might well reject Annie Hickey's current account of the evening's events, particularly in light of her earlier contradictory out-of-court statements. But these contradictions, and the contrary testimony of the officers, simply raise credibility questions, to be resolved by the jury. If the jury accepts her version of events, it will have a sufficient basis for finding that her Fourth Amendment rights were violated. Defendants' insistence that Annie Hickey was never considered a suspect by the police (Moeser Dep., Verde Aff. Ex. 36, at 119; Reese Dep., Verde Aff. Ex. 37, at 97-98) is beside the point: The relevant inquiry for the jury is what a reasonable person in Annie Hickey's position would believe, and therefore, the state of mind of the officers is not controlling. The jury may either reject the defendants' testimony entirely, or even if it credits the testimony, it may find nonetheless that a reasonable person in Annie Hickey's position would have believed that she was under arrest.

Defendants argue in the alternative that even if Annie Hickey was held against her will, her detention was justified for purposes of investigation. (D. Mem. 11, 13.) Police officers may briefly detain a person for investigatory purposes, see Terry v. Ohio, 392 U.S. 1 (1968), although ordinarily that power of temporary, investigative detention is justified by the underlying purpose of determining whether a suspect should ultimately be placed under formal arrest. See, e.g., United States v. Vita, 294 F.2d 524, 530 (2d Cir. 1961). Here, defendants disclaim any purpose of holding Annie Hickey as a suspect. In any event, the extent of investigative custody is not unbounded,Florida v. Royer, 460 U.S. 491, 499 (1983) (Terry "created only limited exceptions to the general rule that seizures of the person require probable cause to arrest"); Dunaway v. New York, 442 U.S. 200, 212-216 (1979) (custodial interrogation of suspect, after forcible removal from neighbor's home, for period of one hour required probable cause, not just Terry stop standard of reasonable suspicion), and it certainly cannot extend to the circumstances alleged here, which include forcible removal to a police station for an interrogation that stretched over several hours, accompanied by a denial of requests to seek medical treatment and to visit her son at the hospital.

Annie Hickey's false arrest claim will therefore survive summary judgment. It is a separate question, however, against whom she can press this claim. The complaint names Siracusa, Andrews, Moeser, Wittig, Reese, Delaney, and "all others involved." (Compl. ¶ 113.) Her claim can only survive against those defendants who a reasonable jury can find "confined" Annie Hickey "without [her] consent and without justification," that is, those defendants who contributed to a reasonable belief that she was not free to leave.

Annie Hickey's claim unquestionably survives against Siracusa, who allegedly told her that she had no choice but to accompany him to the precinct (Annie Hickey Aff. ¶ 28), and Moeser, who allegedly told her that she had to make a statement before she could leave, and could not make phone calls or speak to family members (Annie Hickey Aff. ¶ 34; Annie Hickey Dep. 110-111). The record on summary judgment, however, does not support her claims against any of the other police defendants, or against ADAs Reese and Delaney. Although Annie Hickey claims to have been surrounded by a number of police officers and escorted to the police car to be taken to the precinct (Annie Hickey Aff. ¶ 30), she does not identify which police officers, nor does her testimony provide any basis for finding that these officers were coercing or detaining her, rather than escorting her or simply milling about. She claims Andrews initially got into the back seat of the car with her (Annie Hickey Aff. ¶ 31), which could conceivably be viewed as blocking her exit, but Andrews's presence in the backseat was fleeting: Plaintiff's testimony is that she was driven to the station seated alone in the back of the car (Annie Hickey Dep. 103-04). Moreover, neither her affidavit nor her deposition testimony reveals any other coercive behavior on the part of any other defendant other than Moeser, once she arrived at the station.⁸ Therefore, plaintiffs' Second and Fourth Causes of Action are dismissed with regard to all defendants, except Siracusa and Moeser.

8 Plaintiff states that after Moeser, Reese, Delaney, and Wittig completed taking her tape recorded statement, they "made [her] stay awhile longer, about 20 minutes, before they finally let [her] leave" (Annie Hickey Aff. ¶¶ 40-43), but she provides no concrete details about their actions. The conclusory statement that these individuals "made [her] stay" is insufficient to raise a genuine issue of fact about coercion.

III. Walter and Annie Hickey: Excessive Force Claims

Defendants move to dismiss plaintiffs' Fifth (as against defendant Heihs), Sixth, Seventh, and Eighth Causes of Action, alleging use of excessive force in violation of plaintiffs' Fourth Amendment rights. Briefly summarized, these causes of action allege excessive use of force in the shooting of Walter Hickey (Fifth Cause of Action), excessive use of force in the beating of Walter Hickey (Sixth Cause of Action), and excessive use of force in the resulting injury to Annie Hickey as a consequence of Walter Hickey's shooting (Eighth Cause of Action).⁹ Civil rights claims under § 1983 for excessive use of force in connection with seizure by law enforcement officials are governed by the "objective reasonableness" standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 397 (1989). Whether the use of force by police in connection with a seizure is objectively reasonable, in turn, is determined in light of "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest of attempting to evade arrest by flight." Id. at 396. Where it is established that a cognizable Fourth Amendment seizure has occurred, summary judgment will only be appropriate if, viewing the evidence in the light most favorable to plaintiffs, no jury could find that the behavior of the officers was unreasonable. See Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

9 The Seventh Cause of Action should be dismissed as duplicative. See note 2 above.

Defendants move to dismiss plaintiffs' Fifth Cause of Action only as against defendant Heihs, conceding that a genuine issue of material fact exists as to whether Teiner used excessive force in shooting Walter Hickey. (D. Reply Mem. 5.) Defendants find support for their motion in the apparent agreement between the parties that it was Teiner, not Heihs, who fired at Walter Hickey, and that Heihs indeed did not discharge his weapon at all. (P.R. 56.1 Stmt. ¶ 9.) Heihs' nonparticipation in the shooting, defendants argue, render plaintiffs' claims without basis in fact. (D. Mem. 14.)

Defendants are mistaken, however, as a matter of law. "[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). An officer, although he or she does not personally inflict the injury at the core of an excessive use of force claim, may still be liable under § 1983 where he or she fails to intervene to prevent the harm, in spite of a "realistic opportunity" to do so,O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1998), and "observes or has reason to know . . . that excessive force is being used." Anderson, 17 F.3d at 557. To be sure, it may be difficult to persuade a jury that Heihs could have done anything to prevent the shooting, even if plaintiffs succeed in demonstrating that Teiner used excessive force that evening. Events appear to have transpired very quickly, and there is no evidence that Teiner communicated his intention to fire before doing so. But ultimately, whether Heihs could have or should have intervened is an issue of fact for the jury to resolve. Contrary to defendants' argument, the mere fact that Heihs never discharged his weapon does not protect him from liability, if it can be shown that he could have and should have prevented Teiner from firing at Walter Hickey. Therefore, defendants' motion to dismiss the Fifth Cause of Action as against defendant Heihs must be denied.

Defendants next move for summary judgment of plaintiffs' Sixth Cause of Action, which alleges Heihs and Teiner used excessive force in dragging Walter Hickey off the front porch, throwing him onto the ground in front of his residence, and subjecting him to a savage beating, which consisted of "kick[ing] him in the head, stomach, body and other parts of the body, including stepping on and kicking his head, causing him to suffer a gash on his head." (Compl. ¶ 47.) While plaintiffs' memorandum also presses this claim against Hearns, they have not sought to amend their complaint and therefore this claim will only be considered as against Heihs and Teiner. Defendants claim that plaintiffs have failed to produce any evidence in support of this version of events, and have therefore failed to satisfy their burden. (D. Mem. 15.)

Here, too, plaintiffs' case may be weak, but is adequate to survive summary judgment. A "moving party is `entitled to judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a cause of action for excessive force, plaintiffs would have the burden of establishing both the use of force and resulting injury, but there is little in the record before the Court on summary judgment to support plaintiffs' version of events. Heihs denied in his deposition testimony that any such beating took place (Heihs 9/9/03 Dep. 133-34, 141-42); the three deposed witnesses, all neighbors of the Hickeys, could not recall any beating (Mitchell Dep., Scott-McKelvey Dep., Mayas Dep.); and emergency room personnel who examined Walter Hickey found no injuries consistent with having been beaten (Engel Report 1-2). Nonetheless, Walter Hickey testifies that he was dragged and beaten in the manner alleged (Walter Hickey Aff. ¶ 30-31), and Annie Hickey also testified that Teiner and Heihs kicked her son after dragging him onto the lawn (Annie Hickey Dep. 87-88; Annie Hickey Aff. ¶ 23). If Walter and Annie Hickey are believed, then Walter Hickey has a claim for excessive force in connection with the post-shooting assault. This conflict in the testimony must be resolved by the jury. Defendants' motion for summary judgment on plaintiffs' Sixth Cause of Action must be denied.

Finally, defendants move for summary judgment on Annie Hickey's excessive use of force claim against Heihs and Teiner, for injuries she allegedly suffered when the glass in the storm door shattered following Teiner's firing of his weapon (Eighth Cause of Action). Defendants claim that Annie Hickey cannot state a cause of action for excessive use of force, because the Fourth Amendment's protection extends only to unreasonable seizures, and Annie Hickey was not "seized" under the Fourth Amendment where she was merely the unintentional victim of a shooting directed at her son. (D. Mem. 17-18.) Plaintiffs argue that Teiner's actions were directed equally at Walter and Annie Hickey. (P. Mem. 9-10.)

In order to state an excessive force claim, Annie Hickey must indeed first establish that she was "seized," such that the Fourth Amendment is at all applicable. Medeiros v. O'Connell, 150 F.3d 164, 167 (2d Cir. 1998) ("[T]he first step [in any section 1983 claim predicated on the Fourth Amendment] is to determine whether there has been a constitutionally cognizable seizure.") Whether Annie Hickey was "seized" for purposes of this Fourth Amendment excessive force claim is a different question from whether she was later "seized" for purposes of her false arrest claim. Here, the relevant conduct is the shooting as the source of her injuries from the shattered glass of the storm door, regardless of whether the storm door shattered as a result of the force of the second bullet, as plaintiffs contend, or as a result of the force of Walter Hickey's body as he fell, as defendants contend. See note 2 above. While a shooting may constitute a seizure for Fourth Amendment purposes, Tennessee v. Garner, 471 U.S. 1, 7 (1985), it is equally clearly established that the conduct at issue must be purposeful for it to raise the possibility of a Fourth Amendment violation. Brower v. County of Inyo, 489 U.S. 593, 597, 599 (1989) (Fourth Amendment seizure occurs "only where there is a governmental termination of freedom of movement through means intentionally applied," such that the "person [is] stopped by the very instrumentality set in motion or put in place in order to achieve that result"). In a case of first impression, the Second Circuit applied this standard to the accidental shooting of a hostage during police efforts to apprehend the hostage-taker in Medeiros, holding that the hostage did not have a Fourth Amendment claim because the "police did not intend to restrain [the hostage]." Medeiros, 150 F.3d at 169.¹⁰

10 In so holding, the Second Circuit followed the approach of the First and Fourth Circuits, which rejected similar claims because the person restrained was not the intended object of the force applied. See Landol-Rivera v. Cosme, 906 F.2d 791 (1st Cir. 1990) (rejecting Fourth Amendment claim of hostage injured by police bullet intended for armed robber); Rucker v. Harford County, 946 F.2d 278 (4th Cir. 1991) (rejecting Fourth Amendment claim where bystander was killed when struck by bullets intended to stop fugitive's car).

Therefore, in order for Annie Hickey to have a Fourth Amendment claim, she must show as a threshold matter that she was the intended object of the force exerted by Teiner. If a genuine issue of material fact existed as to Teiner's intent in firing those two shots, this would preclude summary judgment. Despite the loose allegations made in their memorandum of law (P. Mem. 9), plaintiffs have produced no actual evidence indicating that Teiner was attempting to restrain her when he fired. Annie Hickey's proximity to Walter Hickey on the porch does not in of itself give rise to the inference that the officers intended to restrain her, rather than the man they claim was gesturing at them with an object that appeared to be a gun.

Although Annie Hickey therefore was not "seized" by the shooting for Fourth Amendment purposes because she was not the intended object of the shooting, she is not left wholly without protection: Police misconduct outside of the context of Fourth Amendment seizures may still give rise to claims under the substantive due process protections of the Fourteenth Amendment. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 844-45 (1998); Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) ("[C]onstitutional tort claims asserted by persons collaterally injured by police conduct who were not intended targets of an attempted official `seizure' are adjudged according to substantive due process norms."); cf. Clark v. City of Norwalk, No. X01CV 930146667, 1998 WL 886599, at *9-*10 (Conn.Super.Ct. Dec. 10, 1998) (unpublished opinion) (denying summary judgment on excessive force claim under due process standard of County of Sacramento where material fact existed as to whether police had some intent to harm minor passengers whey they fired upon car during police pursuit). Annie Hickey's claims are more appropriately examined under a substantive due process standard, as pressed in plaintiffs' Fifteenth Cause of Action and explored below. With regard to her Fourth Amendment claim, however, in the absence of a genuine issue of material fact as to Teiner's intent to restrain Annie Hickey, defendant's motion for summary judgment is granted.

IV. Walter and Annie Hickey: Deliberate Indifference Claims

Defendants move for summary judgment on plaintiffs' Ninth and Tenth Causes of Action, alleging deliberate police indifference to the medical needs of Walter and Annie Hickey while they were in custody, in violation of plaintiffs' rights under the Fifth and Eighth Amendments. Defendants assert that the Fifth and Eighth Amendments are inapplicable to Walter and Annie Hickey, because they were neither subject to federal action as required by the Fifth Amendment, nor convicted of any crimes as required by the Eighth Amendment, and in the alternative, that plaintiffs have failed to produce any evidence of deliberate indifference to substantiate their claims. (D. Mem. 18-20.)

Defendants are correct that plaintiffs' claims fall outside the protection of the Fifth and Eighth Amendments. See Betts v. Brady, 316 U.S. 455, 462 (1942) ("Due process of law is secured against invasion by the federal Government by the Fifth Amendment and is safeguarded against State action in identical words by the Fourteenth."), overruled on other grounds by Gideon v. Wainwright, 372 U.S. 335 (1963); Ingraham v. Wright, 430 U.S. 651, 668-71 (1977) (Eighth Amendment protection against "cruel and unusual punishment" applies only in postconviction setting). However, as plaintiffs correctly observe (P. Mem. 10), "deliberate indifference" claims under § 1983 may be grounded in the due process clause of the Fourteenth Amendment. It is well-established that police officers have a constitutional duty under the Fourteenth Amendment to attend to the medical needs of those held in custody: "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the . . . Due Process Clause." DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199 (1989) (internal citation and footnote omitted); see also City of Revere v. Mass. General Hospital, 463 U.S. 239, 244 (1983) ("Due Process clause . . . does require the responsible government or governmental agency to provide medical care to persons . . . who have been injured while being apprehended by the police."). Further, as the rights of those held without any adjudication of guilt must be equal to, if not greater than, the rights of those held pursuant to a valid conviction, the Supreme Court has directed courts to look to the standards applicable under the Eighth Amendment in defining the scope of the corresponding Fourteenth Amendment duty. See County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998);Madden v. City of Meriden, 602 F. Supp. 1160, 1163-64 (D.C. Conn. 1985). Therefore, plaintiffs may have a cause of action if they can make out a claim of deliberate indifference under theEstelle v. Gamble test, 429 U.S. 97 (1976), established in the context of Eighth Amendment liability, but subsequently recognized as applicable to substantive due process claims for deliberate indifference as well. See County of Sacramento, 523 U.S. at 849-50. Walter Hickey was concedely in police custody at the time these claims arose, and because there is a material factual dispute about whether Annie Hickey was in police custody we must assume arguendo that she was.

While plaintiffs' claims are legally sufficient, however, they fail because an adequate factual basis has not been supplied to sustain claims of deliberate indifference. Under Estelle v. Gamble, plaintiffs must "allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." 429 U.S. at 106. With regard to Walter Hickey, while the gunshot wound undoubtedly incurred serious medical needs, there is no evidence of indifference, deliberate or otherwise, to those needs. While plaintiffs continue to insist otherwise (see e.g., P.R. 56.1 Stmt. ¶¶ 12-16), the record is clear that the police summoned an ambulance almost immediately (within two minutes of arriving on the scene), and that the ambulance arrived on scene within six minutes, and departed for the hospital twenty-two minutes later. (NYPD 911 Sprint Report 1; Ambulance Call Report, Verde Aff. Ex. 18, at 1.) With regard to Annie Hickey, there is no basis upon which a reasonable factfinder could conclude that she was suffering from any serious medical condition requiring attention. Although Annie Hickey testified that she did tell police officers at the precinct that she was "ill" and "at the point of having a stroke," and requested water to take high blood pressure medication she had brought with her from home, she also testified that she was provided with a bottle of water and that she did take her medication. (Annie Hickey Dep. 106, 108, 368-69.) The only other injuries she alleges were cuts and bruises on her arm and foot, for which she did not seek treatment until two days after the incident. (Id. 305.) Since no evidence has been produced of serious medical needs, there is no basis for finding that the defendants showed deliberate indifference. Therefore, defendants' motion for summary judgment will be granted as to the deliberate indifference claims of both Walter and Annie Hickey.

V. Walter and Annie Hickey: Failure to Intervene Claims

Defendants move for summary judgment on plaintiffs' Thirteenth and Fourteenth Causes of Action, alleging a failure by various defendants to intervene to prevent the abuses alleged throughout the Complaint. More specifically, plaintiffs have alleged in their Thirteenth Cause of Action that defendants failed to intervene to prevent false arrest, false imprisonment, malicious prosecution, abuse of process, and excessive use of force with regard to Walter Hickey (Compl. ¶ 177), and to prevent false arrest, false imprisonment, and excessive use of force with regard to Annie Hickey in their Fourteenth Cause of Action (Compl. ¶¶ 182-183). In support of their motion, defendants argue that none of the defendants would have had the opportunity to intervene to prevent any of the alleged abuses (D. Mem. 25-29), and therefore can not be liable.

A "failure to intervene" cause of action does not itself state a separate constitutional violation. Rather, it is a means through which to hold additional defendants accountable for the violations committed by their co-defendants, given the duty discussed above of all law enforcement officials to prevent constitutional violations: "An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official."Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (internal citations omitted). For liability to attach to that officer, however, "there must have been a realistic opportunity to intervene to prevent the harm from occurring," and assessment of the existence of such a "realistic opportunity" for intervention and prevention is left to the factfinder's determination. Id.

Setting aside the requisite showing of "realistic opportunity" for the moment, however, it is clear that there must be colorable claims of an underlying violation first before plaintiffs may state failure to intervene causes of action against additional defendants. Here, summary judgment has already been granted on Walter and Annie Hickey's causes of action for false imprisonment as duplicative, Walter Hickey's causes of action for malicious prosecution and abuse of process, and is granted below on Annie Hickey's excessive use of force claim as a species of substantive due process violation, see Part VI.A below. Therefore these cannot serve to ground failure to intervene claims. On the remaining claims (false arrest of Walter Hickey; excessive use of force in arresting Walter Hickey; false arrest of Annie Hickey), plaintiffs have failed to make out a factual basis on which a reasonable factfinder could conclude that any defendants beyond those directly responsible for the alleged violations would have had a "realistic opportunity" to prevent their occurrence. First, on Walter Hickey's false arrest and excessive use of force claims, it is uncontested that only defendants Teiner and Heihs were on the scene when Teiner fired his weapon, the Fourth Amendment "seizure" that grounds those claims. Since plaintiffs' First and Fifth Causes of Action are already pressed against both Heihs and Teiner, a "failure to intervene" claim would be duplicative here. Similarly, plaintiffs have already pressed their Sixth Cause of Action against Teiner and Heihs for the alleged beating Walter Hickey endured after being shot. Although plaintiffs summarize the evidence as showing that Hearns, Filippidis, and Baker were present when the alleged beating occurred (P. Mem. 13), none of these individuals are named as defendants.

Second, we have already determined that Annie Hickey's false arrest claim is only properly pressed against defendants Siracusa and Moeser, and "failure to intervene" claims against these defendants would be duplicative. Of the remaining named defendants, plaintiffs claim that Andrews, Ojeda, Wittig, Reese, Delaney, Amelia, and Patrick Reilly could have intervened to stop the alleged violations from incurring, but point to no evidence in the record to support this characterization. (P. Mem. 14.) Indeed, the record shows no contact between Annie Hickey and defendant Amelia (who merely transported another officer to the Hickey residence the next morning (Amelia Dep., Verde Aff. Ex. 26, at 36-37)), and only minimal contacts between Annie Hickey and defendants Ojeda (who, as the desk officer that evening, had some awareness that Annie Hickey was in the precinct, but did not speak to her (Ojeda Dep., Verde Aff. Ex. 27, at 39-44)), Andrews (who escorted Annie Hickey to the precinct with Siracusa, see above), and Patrick Reilly (who interviewed Annie Hickey after she had already returned home (Patrick Reilly Dep., Verde Aff. Ex. 25, at 130)). Plaintiffs attempt to make out a case against Ojeda by pointing to the testimony of Carlton Newton, Annie Hickey's nephew, that he and other Hickey family members were prevented from seeing Annie Hickey by officers on duty in the station that night. (P.R. 56.1 Stmt. ¶¶ 56-57.) But in fact, Newton's Affidavit does not identify Ojeda by name (Carlton Newton Aff. ¶¶ 19-27), and in any event, does not suffice to show that Ojeda, or any other defendant, knew that Annie Hickey's detention was allegedly illegal. See Anderson, 17 F.3d at 557 (officer must either "observe or have reason to know" of the violation); Universal Calvary Church v. City of New York, No. 96 Civ. 12236, 2000 WL 1538019, at *9 n. 20 (S.D.N.Y. Oct. 17, 2000) ("Although a failure to intervene and protect claim does not require a showing of presence, it does require the officer to have observed or have reason to know of the alleged violation." (citing Anderson, 17 F.3d at 557)). Likewise, although defendants Wittig (Wittig Dep., Verde Aff. Ex. 24, at 93-96), Reese, and Delaney questioned Annie Hickey that evening, she appears to have cooperated fully, going so far in her oral statement as to applaud the treatment she received. (Annie Hickey Taped Stmt. 29.) Whether she now disavows that voluntariness of her detention is irrelevant; at the time, even accepting the truth of Annie Hickey's account, defendants did not have any reason to suspect that she was being detained against her will and so cannot be held liable for a failure to intervene. Annie Hickey's claim of involuntary detention is that Siracusa told her she was required to go to the station and that Moeser kept her from having contact with relatives. If she acquiesced in these alleged shows of authority without further protest, and plaintiff does not contend that she made any, officers who encountered her later cannot have known she was there in obedience to authority. Accordingly, defendants' motion for summary judgment on plaintiffs' Thirteenth and Fourteenth Causes of Action is granted.

VI. Walter and Annie Hickey: Due Process Claims

A. Substantive Due Process

Defendants move for summary judgment on plaintiffs' Fifteenth Cause of Action, alleging violations of Walter and Annie Hickey's substantive due process rights by defendants' "behavior shocking to the conscience," including "(i) attempting to murder Mr. Hickey and Ms. Hickey; (ii) shooting Mr. Hickey; (iii) savagely beating and assaulting Mr. Hickey; (iv) failing to provide timely, adequate medical attention to Mr. Hickey; and (v) arresting Ms. Hickey and forcing her to the precinct to attempt to force false statements from her as part of a cover-up of the wrongful actions of the defendants." (Comp. ¶ 187-188). These claims are largely duplicative, and improperly pressed as violations of substantive due process. This Court has already considered, and dismissed on summary judgment, plaintiffs' claims with regard to defendants' alleged indifference to Walter Hickey's medical needs. See Part IV above. Similarly, we have already assessed plaintiffs' claims springing from the shooting, alleged beating of Walter Hickey, and alleged illegal detention of Annie Hickey under the applicable Fourth Amendment standards, and have found that all will survive this summary judgment motion. It would be a waste of resources to permit these claims under the Fourteenth Amendment, as well as improper, given the Supreme Court's direction that substantive due process analysis is not available where a more specific constitutional standard is directly applicable. See, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989) ("The validity of the [excessive force] claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized `excessive force' standard.").

Only Annie Hickey's claims in connection with the shooting may be properly considered under a substantive due process analysis, because, as we have already determined, there was no cognizable Fourth Amendment seizure, and no other constitutional standard is directly applicable. See Part III above. But even this claim is legally insufficient. A substantive due process claim is only appropriate where governmental conduct "shocks the conscience" and transgresses the "decencies of civilized conduct," Rochin v. California, 342 U.S. 165, 172-73 (1952); ordinarily, such conduct must be "intended to injure in some way unjustifiable by any government interest." County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986) ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.")). Merely negligent conduct by government officials is not constitutionally cognizable under substantive due process, Daniels, 474 U.S. at 328, and "recklessness or gross negligence" has only very occasionally sufficed, see County of Sacramento, 523 U.S. at 849-50 (compiling cases). In County of Sacramento, in the context of a high-speed police chase, the Supreme Court held that recklessness or gross negligence could not give rise to a Fourteenth Amendment substantive due process claim where "unforeseen circumstances demand an officer's instant judgment," given that permitting liability in such situations would fail to "`convey the appropriate hesitancy to critique in hindsight decisions [balancing competing interests and] necessarily made in haste, under pressure, and frequently without the luxury of a second chance.'" Id. at 852-54 (quoting Whitley v. Albers, 47 U.S. 312, 320 (1986)); see also Medeiros v. O'Connell, 150 F.3d 164, 170 (2d. Cir. 1998) (citing County of Sacramento in rejecting Fourteenth Amendment claim brought on behalf of hostage killed by police bullet intended for hostage-taker).

Applying these precedents to the specific circumstances of this case, Teiner's conduct cannot be said to have "shocked the conscience." No evidence has been adduced that it was Teiner's intent to restrain Annie, rather than Walter Hickey, when he fired his weapon, see Part III above, so at most Teiner might be said to have acted recklessly in shooting at Walter Hickey, with the unintended consequence that the glass storm door might shatter and injure Annie Hickey. Even if so, there can be no question that he acted with law enforcement goals in mind, making precisely the sort of split-second decision, balancing Walter Hickey's rights with public safety, protected by the standards announced in County of Sacramento. Perhaps, as a decision on the merits in this case will finally resolve, he struck that balance improperly, employing excessive force in restraining Walter Hickey, but that would not suffice to find a substantive due process violation as to Annie Hickey. Defendants' motion for summary judgment on plaintiffs' Fifteenth Cause of Action is therefore granted.

B. Procedural Due Process

Plaintiffs have also pressed a number of procedural due process claims in their Sixteenth Cause of Action. Plaintiffs have alleged defendants "failed to give Miranda warnings either to Mr. Hickey or Ms. Hickey; they failed to allow Ms. Hickey to leave the 105th precinct; they failed to allow her to speak to a lawyer; they failed to allow her to see her family; they failed to allow her family members to see her; and generally completely denied procedural due process to Mr. Hickey and Ms. Hickey." (Compl. ¶¶ 192-193.) Plaintiffs' procedural due process claims are either duplicative or meritless and require little discussion. Three of these claims are simply duplicative — allegations that Annie Hickey was illegally detained, including denying her and her family members access to one another, are covered by her false arrest claim (Cause of Action Two). The remaining claims — failure to give Miranda warnings and failure to provide Annie Hickey with access to counsel — do not state constitutionally protected rights, and cannot give rise to procedural due process claims. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976) ("Procedural due process imposes constraints on government decisions which deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment."). It is undisputed that Annie Hickey was never under formal arrest, nor subject to custodial interrogation as a suspect, and therefore, she had no protected right to a lawyer. Brewer v. Williams, 430 U.S. 387, 398-399 (1977) (Sixth and Fourteenth Amendment right to counsel attaches "at or after the time that judicial proceedings have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information, or arraignment") (internal quotes omitted). And although Miranda warnings are a prerequisite to the admission of statements at a criminal trial resulting from any custodial interrogation, suppression of statements given in the absence of Miranda warnings is the proper mechanism for protection against self-incrimination under the Fifth Amendment. Failure to give Miranda warnings is not an independent wrong, and cannot give rise to potential § 1983 liability. See O'Hagan v. Soto, 523 F.Supp. 625, 629 (S.D.N.Y. 1981) ("Nothing in the Miranda opinion even suggests the elevation of the warning itself to the level of a constitutional right. . . . There is no reason or support for subjecting law enforcement officials to civil liability for failure to give Miranda warnings.") Therefore, defendants' motion for summary judgment on plaintiffs' Sixteenth Cause of Action is granted.

VII. Monell Claim

Plaintiffs' Seventeenth Cause of Action alleges a "pattern and practice of unjustified, unreasonable, and illegal beatings and excessive uses of force and other violations of law, including, but not necessarily limited to, false arrests, false imprisonments, abuses of process, malicious prosecutions, and procedural and substantive due process violations by police officers," which plaintiffs claim gives rise to liability on the part of the City of New York under Monell v. Department of Social Services, 436 U.S. 658 (1978). (Compl. ¶ 197.) Municipal liability can be established under Monell where the alleged unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by [the municipality's] officers," or where that action results from "governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91. Liability for the actions of subordinates, as alleged here, hinges on providing a link to "actions or omissions of higher ranking officials with policymaking authority." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004).

Plaintiffs advance two such links in support of Monell liability: first, that defendant police officers were not given proper training or supervision, and, second, that defendant City of New York had a policy of covering up civilian shootings leading to increased incidences of such shootings. (P. Mem. 18-19.) A failure to train or supervise can raise municipal liability where it "amounts to deliberate indifference" to the violations which may occur as a result. City of Canton v. Harris, 489 U.S. 378, 388 (1989). Plaintiffs claim training should have been provided for virtually every aspect of the conduct involved in this case, including the appropriate use of deadly force, determination of probable cause for arrest, and investigation of civilian shootings. But even assuming that all of these various situations could meet the Walker test, which establishes certain requirements that must be met in this Circuit before a failure to train or supervise in a particular context will raise Monell liability, see Walker v. New York, 974 F.2d 293, 297-98 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993), plaintiffs have not provided evidence of any such failure to train.

Plaintiffs cite to a preliminary report provided by one of their expert witnesses, but this report makes no effort to evaluate the training actually provided by the NYPD. With regard to a failure to train on use of force, the expert has relied on Teiner's deposition testimony, concluding simply that "assuming [Teiner's description of his initial and ongoing firearms training] is accurate" such training would be "dramatically flawed and inconsistent with generally accepted practices on law enforcement training." (Ryan Report, Cherner Decl. Ex. LL ¶¶ 30-33.) But as defendants note (D. Reply Mem. 11), Teiner's deposition testimony is hardly dispositive on this issue. For example, the expert report cites a lack of "shoot-don't shoot" training, but Teiner was never asked explicitly whether he received "shoot-don't shoot" training. (Teiner 9/8/03 Dep., Verde Reply Aff. Ex. 45, at 57-60.) And while the post-police academy training Teiner described appears to be primarily target practice, he was never asked to unpack his affirmative response to the question of whether he received firearm training at the police academy, which "include[d] getting training on firing [his] weapon." Id. at 57. "Training on firing his weapon" might or might not have included "shoot-don't shoot" training, but it is impossible to know one way or the other from this exchange. No other discovery appears to have been taken on the subject.

Similarly, the expert's report reveals nothing about what kinds of training officers may or may not have received with respect to plaintiffs' other claims; instead, the expert merely extrapolates from his analysis of the events that such events could have been avoided if proper training had been provided. (See, e.g., Ryan Report ¶ 59 ("Obviously, this failure by multiple [communications] personnel indicates a failure to train communications personnel in a recurring law enforcement task that can have a dramatic impact on the rights of citizens.".) But these conclusory allegations are insufficient on summary judgment, see Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) ("[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment."); plaintiffs have failed entirely to develop any factual record to support their failure to train or supervise claims.

Plaintiffs have also failed to develop a factual record which would support their second theory of Monell liability, i.e., an existence of "a policy of trying to cover up officer shootings of civilians and justify the shootings." (P. Mem. 18.) While plaintiffs "need not identify an express rule or regulation," and can show instead a "persistent or widespread" practice amounting to a "custom or usage with the force of law," or a "failure to investigate" such that the conduct becomes an "accepted custom or practice," Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004), plaintiffs cite to no evidence at all in the record in support of this theory. Nor has the Court's search of the record revealed a factual basis for this claim. At most, perhaps plaintiffs could have pointed to the conclusion of their expert that the investigations of the ADAs and the NYPD into this incident were inadequate and biased (Ryan Report ¶¶ 44-55), but failure to investigate a single incident without more does not create a genuine issue of material fact as to whether such conduct has become an "accepted custom or practice." See, e.g., Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980) ("[A]bsent more evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy could not ordinarily be inferred from a single incident of illegality such as a first arrest without probable cause or with excessive use of force."). The Court cannot, as plaintiffs appear to assume, somehow take judicial notice of a number of highly-publicized episodes of alleged police abuse or brutality, assume without any evidentiary record that these episodes all involved wrongful police behavior and a failure to investigate or punish such behavior, and extrapolate from those assumptions an effect on the present episode. Defendants are entitled, therefore, to summary judgment on plaintiffs' Seventeenth Cause of Action.

VIII. § 1985 Claims

In Causes of Action Eighteen and Nineteen, plaintiffs allege that defendants conspired to "impede, hinder, obstruct, and defeat the due course of justice in New York State" with the intent to deprive the Hickeys of the equal protection of the laws in violation of § 1985(2) and, "motivated by invidious discriminatory intent," conspired to "deprive [the Hickeys] of the equal protection of the law and of equal privileges and immunities under the laws" in violation of § 1985(3). (Compl. ¶¶ 205-207, 217-219.) Defendants argue that plaintiffs have failed to produce any evidence of either conspiracy or of any invidious discriminatory animus. (D. Mem. 33-35.)

While claims under §§ 1985(2) and (3) are distinct, both require a showing of class-based invidiously discriminatory animus, at least where obstruction of justice is alleged in connection with state court proceedings. See Kush v. Rutledge, 460 U.S. 719, 726 (1983) (affirming Ninth Circuit analysis requiring "class-based, invidiously discriminatory animus" in connection with § 1985(2), cl. 2 (state court proceedings), but not in connection with § 1985(2), cl. 1 (federal proceedings)); Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (requiring "racial, or otherwise class-based, invidiously discriminatory animus" under § 1985(3)); Zemsky v. City of New York, 821 F.2d 148, 151 (2d Cir. 1987) ("A plaintiff states a viable cause of action under § 1985 [excepting clause 1 of § 1985(2)] only by alleging a deprivation of his rights on account of his membership in a particular class of individuals.") Plaintiffs suggest that a race-based animus can be inferred here from "historical experience" of police discrimination against racial minorities, a racial epithet directed at Walter Hickey, and abusive language directed at Annie Hickey. (P. Mem. 20.) Plaintiffs have supplied no record of this "historical experience" and the abusive language cited evinces no race-based content. (See, e.g., Annie Hickey Dep. 80 ("you fucking bitch, move").) According to Annie Hickey's deposition testimony, an unidentified officer, who appeared on the scene after the shooting, did say to Officer Teiner "don't worry about it, that's the nigger you shot, don't worry about it." (Annie Hickey Dep. 96.) But such an isolated instance of a racial slur, by an unidentified officer who is not a defendant, cannot create a genuine issue of material fact as to the motivations of those defendants who are alleged to have violated plaintiffs' rights. Absent evidence of racial or other class-based invidious discriminatory animus on the part of the defendants themselves, defendants are entitled to summary judgment on plaintiffs' § 1985 claims.

IX. State Law Claims

Defendants move for summary judgment on the remaining two state law claims for false arrest and false imprisonment of Annie Hickey, pressed against ADAs Reese and Delaney (Causes of Action Twenty Six and Twenty Seven). Defendants argue that these claims are time-barred under the New York statute of limitations applicable to pendant state tort actions. (D. Mem. 35, citing N.Y. Gen. Mun. Law § 50-i.) If § 50-i applies, these claims are clearly time-barred: Under § 50-i, actions must be commenced within "one year and ninety days after the happening of the event upon which the claim is based." The events at issue here occurred on February 23 and 24, 1999, and this action was not filed until July 18, 2001, more than two years later.

Plaintiffs argue that as ADAs, defendants Reese and Delaney are state officials, and therefore unprotected by the terms of § 50-i (P. Mem. 24), which provides a statute of limitations for actions against any "officer, agent or employee" of a "city, county, town, village, fire district or school district." N.Y. Gen. Mun. Law § 50-i. Plaintiffs are mistaken, however; courts have routinely considered § 50-i applicable to district attorneys as county officials. See, e.g., Fox v. City of New York, No. 03 Civ. 2268, 2004 WL 856299 (S.D.N.Y. Apr. 20, 2004) (applying § 50-i to state law claims against district attorney); Drakeford v. Brooklyn Dist. Attorney, 700 N.Y.S.2d 1, 1 (N.Y.App.Div. 1999) (same); Drake v. City of Rochester, 408 N.Y.S.2d 847, 851-52 (N.Y.Sup.Ct. 1978) (applying § 50-i to claims against county for acts of its district attorneys). Therefore, state law claims in this case are time-barred and defendants' motion for summary judgment on these claims is granted.¹¹

11 In any event, as discussed in Part II above, no evidence supports the claim that Reese and Delaney were responsible for the false arrest of Annie Hickey, and so these claims would fail on the merits.

X. Immunity

A. Police Defendants

Defendants move to have the complaint dismissed in its entirety against the police defendants (Safir, Wittig, Patrick Reilly, Ojeda, Siracusa, Amelia, Moeser, Sean M. Reilly, Andrews, Heihs, and Teiner) on the basis of qualified immunity. (D. Mem. 39-40.) The only claims which will survive summary judgment are Cause of Action One (false arrest of Walter Hickey) as against Teiner and Heihs, Cause of Action Two (false arrest of Annie Hickey) as against Siracusa and Moeser, and Causes of Action Five and Six (excessive use of force in arrest of Walter Hickey) as against Teiner and Heihs, and so we need only consider whether qualified immunity applies to these claims and these defendants. Defendants will be entitled to qualified immunity "insofar as 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). A two-part inquiry is required: first, whether the facts alleged show a constitutional violation, and if so, second, whether that constitutional right was clearly established at the time of the constitutional violation, such that the "law put the officer on notice that this conduct would be clearly unlawful." See Cowan v. Breen, 352 F.3d 756, 761 (2d Cir. 2003) (quoting from and interpreting requirements of Saucier v. Katz, 533 U.S. 194, 201-02, 205 (2001)).

We have already determined that the facts, viewed in the light most favorable to plaintiffs, allege constitutional violations.See Parts I, II, III above. If proven, these would certainly be violations of clearly established constitutional rights, i.e., the right to be free from false arrest, Dunaway v. New York, 442 U.S. 200, 206-07 (1979); Florida v. Royer, 460 U.S. 491, 499-500 (1983), and to be free from excessive use of force in connection with arrest, Graham v. O'Connor, 490 U.S. 386, 395 (1989). At the same time, as we have already examined in connection with the underlying claims, the established law clearly would have put these defendants on notice that their conduct might have been legally justified under certain circumstances, and defendants have argued that such circumstances existed here (i.e., they had probable cause to seize Walter Hickey and Annie Hickey's consent to take her to the station house; use of force was "objectively reasonable" against Walter Hickey). Plaintiffs have advanced competing versions, sufficient to survive summary judgment, and so we cannot say as a matter of law whether defendants' conduct was legally justified. The merits of the underlying claims and the qualified immunity inquires therefore merge in this case, even where qualified immunity analysis would require ordinarily that they be kept separate.See Saucier v. Katz, 533 U.S. at 206 (reversing Ninth Circuit decision collapsing excessive force and qualified immunity analysis, reasoning qualified immunity analysis provides additional deference for a mistake of law); cf. Cowan, 352 F.3d at 764 n. 7 (where genuine issues of material fact exist in excessive force cases, Saucier analysis "ultimately converge[s] on one question: Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful"). Where such factual disputes exist as to whether conduct may be legally justified, neither qualified immunity, nor a decision on the merits can be granted as a matter of summary judgment. Defendants' motion is therefore denied.

B. ADAs Reese and Delaney

Defendants also move for dismissal of the complaint against ADAs Reese and Delaney, arguing they are entitled to absolute or qualified immunity. (D. Mem. 36-39.) This Court has already determined that the ADAs are not entitled to absolute immunity for those Causes of Action not within the scope of prosecutorial immunity — Causes of Action Two, Four, Sixteen, Nineteen, Twenty-Six, and Twenty-Seven — but dismissed the remainder of the complaint as against Reese and Delaney. Hickey v. City of New York, No. 01 Civ. 6506, 2002 WL 1974058, at *3-*4 (S.D.N.Y. Aug. 26, 2002). At that time, the Court reserved decision as to whether they might be entitled to qualified immunity on the surviving claims until the factual record was more fully developed. Id. at *5. Only Cause of Action Two (false arrest of Annie Hickey) has not been dismissed on summary judgment, and no evidence in the record supports pressing these claims as against ADAs Reese and Delaney. See Part II above. Reese and Delaney are not, therefore, in need of the protection of qualified immunity, and defendants' motion to dismiss the complaint on this basis is moot.

XI. Sanctions

Finally, defendants ask this Court to award sanctions against plaintiffs under Fed.R.Civ.P. 11.¹² Defendants argue sanctions are appropriate, first, because plaintiffs have pressed claims they know to be "legally meritless and factually unsupported" in violation of Fed.R.Civ.P. 11(b) (D. Reply Mem. 13-15) and, second, because plaintiffs have violated Magistrate Judge Maas's Order in this case barring counsel from engaging in personal attacks (D. Reply Mem. 15).

12 Defendants initially requested sanctions be imposed under the New York State Rules of the Chief Administrator of the Courts (D. Mem. 40), a state statute inapplicable to these federal proceedings. Realizing their mistake, defendants have stated the proper basis for such a request in their reply memorandum (D. Reply Mem. 13).

Defendants' first request for sanctions based on plaintiffs' allegedly frivolous pleading may not simply be tacked on to a brief on the merits of their summary judgment motion. Such a motion must be brought separately, see Fed.R.Civ.P. 11(c) ("A motion for sanctions under this rule shall be made separately from other motions or requests."). Defendants attempt to excuse this dereliction by claiming that Judge Maas ordered or directed them to raise this issue in their motion papers. (D. Reply Mem. 13.) But the cited correspondence between counsel and Judge Maas does no such thing; it makes no reference to directing this Court's attention to plaintiffs' alleged frivolous pleading, and, in fact, was not even entered until August 10, 2004 (Maas 8/10/04 Order, Verde Reply Aff. Ex. 50, at 1), more than a month after defendants' "Rule 11" request was first made in a memorandum of law filed on July 2, 2004. Rather than purporting to overrule or grant an exception to Rule 11's requirement of a separate sanctions motion, the cited Order addresses an entirely different sanctions issue — plaintiffs' counsel's ad hominem attacks on defense counsel in plaintiffs' opposition memorandum; it is that matter which Judge Maas directed defendants to address in their reply brief in the instant motion. (Id. at 1.)

But regardless of this procedural defect, sanctions will not be granted. Plaintiffs have erected a superstructure of claims that are meritless, duplicative, and/or trivial around the core of plausible triable claims in this case. Plaintiffs' counsel's refusal to dismiss even the most baseless or useless of these claims demonstrates overzealousness and lack of judgment. It is not so clear, however, that all or most of the arguments advanced are frivolous, in any technical sense. As can be seen from the preceding opinion, a few of the claims on which defendants move for summary judgment have merit sufficient to defeat the motion, and several more are supported by reasonable, if ultimately meritless, arguments. Plaintiffs' most troubling practice is their insistence on naming a number of officers as defendants who have no semblance of responsibility. Counsel's imprudent insistence on pursuing these claims required considerable time and expenditure on the part of defense counsel and the Court, and offered little or no genuine value to plaintiffs. Such conduct is not to be encouraged, and is not in the best tradition of legal advocacy, which aims for the vindication of a client's genuine rights in an efficient and effective way, not for the multiplication of claims that can have little impact on the ultimate outcome of the case. But sanctions may not be predicated on the foolish advancement of valueless and unlikely claims, unless the "claims, defenses, and other legal contentions" are not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law," and/or the "allegations and other factual contentions" have no "evidentiary support or . . . [are not] likely to have evidentiary support after a reasonable opportunity for further investigation and support." ( Fed.R.Civ.P. 11(b)(2)-(3).) We cannot say that the claims presented here are so lacking in legal and factual support as to be sanctionable.

Defendants also seek sanctions via their reply papers for violation of Judge Maas's Order regarding personal vituperation, as directed by Judge Maas in the subsequent order discussed above. Interactions between opposing counsel in this case have been marked by such a degree of incivility that Judge Maas, after examining the transcript of one deposition and other submissions made by the parties in the discovery process, found it necessary to caution both sides about their behavior. (Discovery Order of October 30, 2003.) Judge Maas singled out the use of "pejoratives" directed by plaintiffs' counsel toward defendants' counsel for special rebuke, and warned that any future use of such "pejoratives" would result in the imposition of sanctions. (Id. at 1.) Defendants now claim that plaintiffs have violated this order, pointing to a single paragraph in plaintiffs' opposition papers (D. Reply Mem. 15, citing P. Mem. 24-25), a claim to which plaintiffs have not had an opportunity to respond.

The paragraph in question is indeed personally offensive to counsel for defendants, and serves no purpose whatever, other than to divert attention from defendants' quite plausible demand for Rule 11 sanctions. It is hard to imagine how any attorney could regard this kind of language as effective advocacy, especially when a prior history of such interpersonal offensiveness has already led a judicial officer to admonish the lawyer, and to order that such conduct be avoided. Judge Maas's August 10 Order, however, leaves open to defendants' counsel the possibility of bringing the issue back to him if it is not addressed by this Court. (Maas 8/10/04 Order 1.) This is a more appropriate way of handling the matter. First, since plaintiffs have not had an opportunity to reply, referring the matter back to Judge Maas will permit any response plaintiffs would like to make, without delaying resolution of the merits of the motion. Second, Judge Maas, having issued the Order, is in a much better position to evaluate what, if any, sanction is merited by the conduct in question, taken in the context of the behavior occasioning the Order. Judge Maas's Order, however, remains in place, and is reaffirmed by this Court. Despite this Court's preference for having this issue resolved before Judge Maas, its patience is not infinite. As the case progresses to trial, behavior of the sort admonished by Judge Maas and exemplified in plaintiffs' brief will not be tolerated.

CONCLUSION

Accordingly, defendants' motion for summary judgment is granted in part, and denied in part. Summary judgment on Causes of Action Three, Four, Seven through Nineteen, Twenty-Six, and Twenty-Seven is hereby granted as to all defendants. Summary judgment on Causes of Action One, Five and Six, pressed only against defendants Teiner and Heihs, is hereby denied. Summary judgment on Cause of Action Two is denied as against defendants Siracusa and Moeser and granted on behalf of all other defendants. Defendants' motion for sanctions is also hereby denied.

SO ORDERED.