Opinion
CV1560279450S
08-09-2016
Curry J. Simpson v. City of New Britain et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Robert E. Young, J.
ALLEGATIONS AND PROCEDURAL HISTORY
In his second amended complaint, the plaintiff, Curry J. Simpson, makes the following allegations. The plaintiff is a resident of New Britain, Connecticut. The defendants Andrzej Kowalski and Luis are police officers employed by the defendant City of New Britain and are sued in their individual capacity. Acting under color of state law, the defendant officers were investigating a noise complaint on January 18, 2015, between 2:30 and 3:00 a.m. and knocked on the door of the plaintiff's apartment, waking him. The defendant officers demanded the plaintiff's name and date of birth. The plaintiff provided his name and a military identification card which contained his photograph and his name, but not his date of birth. The defendant officers again demanded his date of birth. Rather than answer them orally, the plaintiff began reaching for his operator's license. Before he could furnish his operator's license to the defendant officers, they placed the plaintiff in handcuffs and brought him outside, shoeless and coatless. The officers briefly released him from the cuffs so as to obtain a jacket and shoes, at which time he also provided them with his operator's license, containing his photograph, name, address and date of birth. The defendant officers then brought him to the front of the apartment building. The property manager of the building told the defendant officers that the plaintiff was not the cause of the noise complaint. Nevertheless, the defendant Kowalski issued a criminal complaint against the plaintiff, falsely and maliciously claiming that the plaintiff interfered with police in violation of General Statutes § 53a-167a. As a result, the plaintiff was subjected to a prosecution of the charges. After several court appearances, the charge was nolled.
The action is brought pursuant to 42 U.S.C. § 1983. The first count, entitled " Count One, " asserts that the plaintiff's first, fourth and fourteenth amendment rights under the United States Constitution to be free from unlawful arrest, retaliatory arrest and malicious prosecution were violated by the defendant officers. The second count, entitled " Count Two, " asserts that the actions of the defendant officers constitute false arrest and malicious prosecution. The third count, entitled " Count Three, " asserts indemnification by the defendant City of New Britain pursuant to General Statutes § 7-465.
The complaint does not comply with Practice Book § 10-26.
The defendants move for summary judgment on three grounds. The first is that the defendant officers are entitled to judgment as a matter of law as to the claims of false arrest, unlawful arrest and malicious prosecution because they had probable cause. It is presumed that this ground is directed to the first and second counts, although the claim of " retaliatory arrest" is not addressed. The second ground is the individual officers are entitled to qualified immunity. The third ground is that defendant City of New Britain is not liable on the indemnification claim.
There is no factual claim in the complaint specifically asserting that the arrest was in retaliation for any particular action or incident.
The plaintiff filed an objection to the motion. The defendants filed a reply to the objection. The parties submitted exhibits with their memoranda. The exhibits of the defendants are unauthenticated and not admissible, so these are not considered by the court. The photographs submitted by the plaintiff are not authenticated and not admissible. The court does not consider any of these inadmissible submissions in its consideration of the motion for summary judgment and objection thereto. The parties presented oral argument in support of their respective positions on July 5, 2016.
" Practice Book § 17-45 provides in relevant part that [a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . That section does not mandate that those documents be attached in all cases, but we note that [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment . . . Therefore, before a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
LEGAL STANDARD
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Hearsay is an out-of-court statement offered to prove the truth of the matter asserted . . . Unless subject to an exception, hearsay is inadmissible." (Citations omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 655, 137 A.3d 1 (2016).
ANALYSIS
I. Probable Cause
The first ground for summary judgment asserted by the defendants is that the police officers had probable cause for the arrest. The plaintiff received a citation for interfering with police in violation of General Statutes § 53a-167a, which states, " (a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, motor vehicle inspector designated under section 14-8 and certified pursuant to section 7-294d or firefighter in the performance of such peace officer's, special policeman's, motor vehicle inspector's or firefighter's duties. (b) Interfering with an officer is a class A misdemeanor, except that, if such violation causes the death or serious physical injury of another person, such person shall be guilty of a class D felony."
The plaintiff argues that the scope of General Statutes § 53a-167a is limited to physical conduct or " fighting words." That is not correct. Our Supreme Court has opined that the failure to provide identification pursuant to a " Terry stop" (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), may constitute probable cause for a charge of interfering with a police officer, § 53a-167a. In State v. Aloi, 280 Conn. 824, 911 A.2d 1086 (2007), a police officer approached a suspect who had been identified by a complainant. The suspect was standing near a fire truck which the complainant had suspected was vandalized by the suspect. The police officer approached the suspect and stated the purpose of his approach. The officer requested identification from the suspect, who initially refused. Id. at 828. The suspect was subsequently charged with interfering with a police officer, § 53a-167a.
" § 53a-167a defines interfering to include obstruction, resistance, hindrance or endangerment. Those words have a broad scope. By using those words it is apparent that the legislature intended to prohibit any act which would amount to meddling in or hampering the activities of the police in the performance of their duties. The defendant's act, however, does not have to be wholly or partially successful nor must it be such as to defeat or delay the performance of a duty in which the officer is then engaged. The purpose of the statute, which had its origin in the common law, is to enforce orderly behavior in the important mission of preserving the peace; and any act that is intended to thwart that purpose is violative of the statute" . . . Thus, " [t]he broad intent of § 53a-167a is to prohibit conduct that hampers the activities of the police in the performance of their duties. Because a refusal to provide identification in connection with a Terry stop may hamper or impede a police investigation into apparent criminal activity, we see no reason why such conduct would be categorically excluded under the expansive language of § 53a-167a . . . Although each case must be decided on its own particular facts, as a general matter, a suspect's refusal to comply with a lawful police command to provide identification following a Terry stop is likely to impede or delay the progress of the police investigation, even when that refusal is peaceable . . . Thus, a refusal to comply with a police command to provide identification in the course of a Terry stop may constitute a violation of § 53a-167a even if that refusal is unaccompanied by any physical force or other affirmative act; § 53a-167a broadly proscribes conduct that hinders, obstructs or impedes a police officer in the performance of his or her duties irrespective of whether the offending conduct is active or passive . . . We therefore reject the defendant's categorical contention that a refusal to comply with a lawful police request for identification necessarily falls outside the purview of § 53a-167a." (Internal citations omitted; emphasis omitted). Id. at 832-35.
Whether the particular facts of this case constitute probable cause for the citation is a question of fact. In their memorandum in support of the motion for summary judgment, in support of their assertion that there was probable cause for the citation, the defendants state that they were dispatched to the plaintiff's residence to investigate a noise complaint, that they heard loud talking and knocked on the first-floor door and that the plaintiff answered the door. The plaintiff admitted he was a resident of the premises. None of these assertions is supported by evidence. Following this recitation, the defendants conclude, " The individual defendants had objective, specific and particularized facts that reasonably supported the suspicion that plaintiff had been engaged in a criminal activity." The criminal activity is not articulated, nor was the plaintiff charged with such activity. The defendants further assert, " The individual defendant's [sic] efforts to complete their inquiry to properly identify the plaintiff who was repeatedly disobeying the officer's directive were reasonable under the circumstances and suspicions known to the officer." Whether the plaintiff repeatedly disobeyed the directive is a question of fact and is contested by the plaintiff in his affidavit.
Most importantly, whether there was intent to disobey is a question of fact and whether such disobedience constitutes interference is a question of fact. The statute requires that the actor intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer's authority or protests his or her action. State v. Williams, 205 Conn. 456, 472, 534 A.2d 230 (1987). In his affidavit, the plaintiff contends that he was in a " sleepy stupor, " and intended to provide the information to the defendant officers but mistakenly handed them his military identification rather than his operator's license. Intent to interfere is a critical issue of fact and is very much contested here. Such genuine issues of fact make summary judgment inappropriate. The motion for summary judgment is denied as to this ground.
II. Qualified Immunity
The second ground for summary judgment asserted by the defendants is that the police officers are entitled to qualified immunity. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Mulligan v. Rioux, 229 Conn. 716, 727, 643 A.2d 1226 (1994). The right of an individual not to be subjected to arrest without probable cause has long been clearly established . . . Thus, the question in this case was whether it was objectively reasonable for the defendants to believe that their arrests of the plaintiff did not violate that right . . . Although the ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court, when, as in this case, there are unresolved factual issues material to the applicability of the defense, preventing its early disposition, resolution of those factual issues is properly left to the jury. (Internal citations omitted.) Id., 736.
In the instant case, the existence of probable cause is dependent upon the version of facts to be found by the factfinder. At this point, we have the affidavits and other properly substantiated evidence submitted by the plaintiff which supports his position that there was no probable cause, which is not countered by any admissible evidence presented by the defendants to support their bald assertion that probable cause existed. " Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." DeLaurentis v. City of New Haven, 220 Conn. 225, 252-53, 597 A.2d 807 (1991). A genuine issue of fact exists as to whether there was probable cause for the arrest, making summary judgment inappropriate. The motion for summary judgment is denied as to this ground.
III. Indemnification
The third ground for summary judgment is asserted by defendant City of New Britain. The defendant City asserts that it is not liable on the third count's indemnification claim pursuant to General Statutes 7-465, stating, " Since the claim is derivative of Counts One and Two, it necessarily fails should the Court grant their motion for summary judgment on the other counts." As the court denies the motion for summary judgment as to the first count and second count, the basis of the ground asserted by the defendant City of New Britain does not appertain. The motion for summary judgment as to the third count is denied.
ORDER
The defendants' motion for summary judgment (127.00) is denied. The objection to same (130.00) is overruled.