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TINA EDWARDS, Plaintiff, - against - RICHARD R. PRETSCH, WILLIAM
LEONICK, JOHN C. BLAUVELT, GARY COOPER, sued in their individual capacities,
and WAL-MART STORES, INC., Defendants.
00 Civ. 5784 (WCC)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OFNEW YORK
180 F. Supp. 2d 499
January 11, 2002, Decided
OPINION AND ORDER
CONNER, Senior D.J.:
Plaintiff Tina Edwards brings
the instant action against defendant Wal-Mart Stores, Inc. ("Wal-Mart"),
and against defendants William Leonick, Richard R. Pretsch, John C. Blauvelt
and Gary Cooper in their individual capacities as police officers for the Town
of Newburgh Police Department ("NPD") pursuant to 42 U.S.C. § 1983.
Plaintiff asserts claims for: (1) false arrest; (2) malicious prosecution; and
(3) coerced confession. Defendants now move for summary judgment as to all
claims pursuant to FED. R. CIV. P. 56. For the reasons that follow, defendants'
motions are granted in part and denied in part.
BACKGROUND
Unless otherwise noted, the
following facts are undisputed. In February 1996, Wal-Mart hired plaintiff to
work as a cashier at its Newburgh, New York store (the "Store").
(Edwards Dep. at 14.) Plaintiff worked for Wal-Mart until her termination in
February 1999. Between July 7, 1998 and January 30, 1999 the Store received
several bomb threat telephone calls. (Defs. Rule 56.1 Stmt. P 4.) On one such
occasion, October 26, 1998, the Store received two threatening phone calls.
(Watkins Aff., Ex. 5.) Both calls were received by Wal-Mart employee Bea Toll.
(Id.) The New York State Police were notified and the subsequent report states,
in relevant part, that "[Toll] received a phone call from an unknown male
who stated that there was a bomb in the building. Approx. 12 or 13 minutes
later the same subject received a second call and the unknown [*502]male stated
'you're not taking this seriously, there is a bomb in the building.'"
(Id.) Audiotapes were made of the threatening call, but are not in evidence for purposes of the instant motion.
In response to these and other calls, a
joint investigation was conducted by the NPD, the New York State Police, the
Orange County District Attorney's Office and Wal-Mart's Loss Prevention
Department.
(Id.) As part of this investigation, in January 1999, Wal-Mart set up video
surveillance of the pay phones in the Store parking lot and arranged for
incoming calls to the Store to be traced to their source. (Id. P 5.) The video
camera's internal clock was synchronized with the clocks inside the Store and
the employees were instructed to note the time of any bomb threats received.
On
January 30, 1999, the Store received a single bomb threat call that was traced to
a pay phone outside the Store. (Id.) Telephone company records revealed that
the call was made at 6:40:56 p.m. and lasted ten seconds. (Watkins Aff., Ex.
11.) The telephone records indicate that no other phone calls were placed to
the Store from the pay phones outside the Store at or about that time. Wal-Mart
also had videotape surveillance of the pay phone area on January 30, 1999.
(1/30/99 Video.) The video depicts two persons walking towards the pay phones
at 6:42:08 p.m. (Id.) The first person, wearing a dark jacket, went to one of
the pay phones at 6:42:21 p.m. (Id.) The second pay phone was occupied. The
second person, wearing light pants, paced near the soda machines adjacent to
the pay phones. When the individual using the second pay phone left at around
6:42:44 p.m., the second person went to the vacant pay phone. (Id.) Wal-Mart
turned over the videotape to the NPD on January 30, 1999. (Watkins Aff., Ex.
13.) The same day, Dale P. Jackson, a district Loss Prevention supervisor for
Wal-Mart, identified the first person on the video as Nadya Palou, another
Wal-Mart employee, and the second person as plaintiff. (Jackson Dep. at 7-9.)
On
the afternoon of February 5, 1999, officers Blauvelt and Leonick questioned
Palou about the bomb threats. (Pl. Rule 56.1 Stmt. P 43.) They read to Palou
the contents of the various threatening phone calls and showed her still
photographs taken from the January 30, 1999 videotape. (Id. P 44.) Palou
identified herself and plaintiff in the photographs and eventually confessed to
having made several bomb threats. (Id. at P 45; Palou Dep. at 29.) Palou also
implicated plaintiff in at least one bomb threat call. She stated that on one
occasion she asked plaintiff "to stand by the soda machine and make sure
-- to look out if somebody was coming to use the phone or coming near the phone
so I could stop the phone call." (Palou Dep. at 9.) Palou did not recall
the date of the call, and further stated that plaintiff assisted her on one or
two other occasions. Palou also recalled that on one occasion, after Palou
phoned in a bomb threat and "nothing happened," plaintiff called the
Store again and said "they're not taking the call seriously." (Palou
Dep. at 10.) While Palou did not recall the date, she stated that she believed
that call occurred on the same day that plaintiff served as her lookout. (Id.
at 44-45.) Defendants note the apparent inconsistencies between Palou's
deposition statements and her statements to the NPD, and the January 30, 1999
videotape and the audiotapes of prior bomb threats. Defendants state:
according to Palou, on January 30, 1999,
plaintiff waited outside for her near the soda machines before Palou came out.
Contrary to Palou's account, however, the videotape shows the two figures . . .
walking toward the pay [*503]phone area near one another, with Palou in front.
In addition, according to Palou, plaintiff stood near the soda machines the
entire time Palou was on the phone. Contrary to Palou's account, however, the
videotape shows the light-jacketed figure
(identified as Edwards) walking to the vacated pay phone while the
dark-jacketed figure (identified as Palou) was still using the pay phone.
After being read the contents of the various bomb calls by Blauvelt and
Leonick, Palou claimed that plaintiff had made the "You're not taking this
seriously, there is a bomb in the building" call [which was made on
October 26, 1998], after Palou first made a bomb threat call and the store was
not immediately evacuated. However, according to Palou, plaintiff made the
"You're not taking this seriously" call on the same day that she
purportedly acted as a lookout for Palou, i.e., January 30, 1999.
(Pl. Mem. Opp. Summ. J. at 7-8.)
Officers Pretsch and Leonick
went to plaintiff's home at approximately 4:15 p.m. on February 5, 1999 and
asked her to accompany them to the police station for questioning about the
bomb threats. (Defs. Rule 56.1 Stmt. P 6.) Plaintiff agreed and voluntarily
accompanied the police officers to the police station. (Id.) After plaintiff arrived
at the police station, she was read her Miranda rights and signed a waiver
card. (Edwards Dep. at 78.) Over the course of the next several hours,
plaintiff was interrogated by Leonick and Pretsch. During the course of the
interrogation, plaintiff was shown a photograph that appeared to be taken from
a videotape of a person smoking a cigarette near the Store pay phones.
Plaintiff identified herself as the person in the photograph. (Id. at 61-62.)
At approximately 9:30 p.m., plaintiff confessed to Cooper in Pretsch's presence
to making a bomb threat in which she told Wal-Mart that they "were not
heeding my call, what, do you think I'm kidding. . . ." (Id. at 92.)
Shortly thereafter, plaintiff was placed under arrest and charged with falsely
reporting an incident in the second degree and reckless endangerment in the
first degree. (Defs. Rule 56.1 Stmt. P 9.) Plaintiff pled not guilty, was taken
to the Orange County Jail, and was released on $1,000 bail. The charges against
her were eventually dismissed.
The circumstances under which the confession was elicited are hotly
disputed. Plaintiff argues that Leonick repeatedly used profanity during his
interrogation in an effort to induce her to confess. (Edwards Dep. at 79.)
Plaintiff claims that "[Leonick] asked me if I took my son to church every
weekend and I said no and he said, you're a no good F-ing mother," and
that "he continually told me that I was lying, that I wasn't telling the
truth and then he walked out and Detective Pretsch came in and he said, I'm
sorry for my partner's way of speaking but he talks this way to everyone."
(Id. at 84.) In her October 30, 2001 deposition, plaintiff further recounted
part of the interrogation as follows:
Q:
What did [Pretsch] say?
A: He
said the sooner you admit it, you can go home.
Q:
What did you say?
A: I
said I didn't do it. I'm not going to admit to it. He left. Detective Leonick
came back and when he came back he said, well, you know, if nobody can take
care of your son we'll have child services come and take your son away from
you, this and that, this and that, this and that.
Q: What's this and that?
[*504]
A: Just mainly telling me that if I didn't cooperate with them they were going
to take and make sure that my son was taken away from me because I was lying
and they said that they could prove it and when they said -- when they brought
my son into it it totally got me to the point where I was just like enough
already and that's when I said yes, I did it but when I couldn't give them any
more information they -- he's like, well, why did you do it and I said I don't
know. . . .
(Id.
at 87-88.) Plaintiff further testified that when, in response to such
questioning, she stated that her husband was home taking care of her son,
Leonick made no response. .(Id. at 92.) Plaintiff also claims that she was not
allowed to leave the interrogation room to smoke a cigarette, and that Leonick
requested that plaintiff make an audiotape to be analyzed and that she would be
responsible for paying the costs. (Pl. Decl. PP 5, 7.) Plaintiff also stated in
her deposition that during the interrogation she was offered pizza, was never
denied access to a rest room and never requested an attorney. (Edwards Dep. at
82-83, 101.) Defendants dispute that Leonick used profanity during the
interrogation or that he mentioned plaintiff's son. (Leonick Dep. at 30.)
On
December 13, 2001, plaintiff submitted a signed declaration in which she
claims, for the first time, that the language of the bomb threat call to which she
confessed was relayed to her by Leonick and Pretsch prior to her confession.
This is in conflict with plaintiff's prior deposition testimony in which she
testified as follows:
Q: Now, when you said that you did it, did
you say anything else other than I did it?
A: I explained what was on the phone call but
that was -- I believe that was it.
Q: When you say you explained what was on the
phone call, what do you mean?
A: I told them they were not heeding my call,
what, do you think I'm kidding and --
Q: Just so we're clear, those were your
words?
A. Yes. Right.
(Edwards Dep. at 92.) There is no mention in
the deposition that plaintiff was made aware of the content of the phone call
prior to the confession, and the subsequent declaration does not contain an
explanation for the discrepancy between the deposition and the subsequent
affirmation.
Plaintiff does not dispute that no Wal-Mart representative ever
questioned or detained her with respect to the bomb threat investigation.
Nonetheless, plaintiff argues that Wal-Mart assisted in plaintiff's
interrogation. (Wal-Mart Rule 56.1 Stmt. PP 5-6.) However, while the evidence
submitted suggests that Dale Jackson, a Wal-Mart employee, was present at the
police station at the time that Palou and plaintiff were being interrogated,
his involvement was limited to answering police questions regarding the
investigation. (Pretsch Dep. at 42.) Plaintiff does not assert any claims against any individual Wal-Mart employee.
During discovery in the instant action, plaintiff requested that
Wal-Mart produce all audiotapes, videotapes and documents concerning any bomb
threats made in 1998 and 1999. Wal-Mart subsequently produced the January 30,
1999 videotape and six audiotapes in their possession. None of the audiotapes
contained the second bomb threat made on October 28, 1999 allegedly by
plaintiff. In his deposition [*505] testimony, Jackson states that to the best
of his knowledge, the case file pertaining to the instant case was discarded
after Jackson left the Newburgh area and a new district loss manager was hired.
(Jackson Dep. at 25.) However, Jackson also states that copies of everything
Wal-Mart had in their case file was turned over to the NPD. (Id. at 26-27.)
DISCUSSION
I. Standard of Review
Defendants move for summary judgment pursuant to FED. R. Civ. P. 56.
Summary judgment may be granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). The burden rests on the moving party to demonstrate the absence of a
genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986);
Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp. 2d 249, 254 (E.D.N.Y.
1999). A genuine factual issue exists if there is sufficient evidence favoring
the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Ticali, 41 F. Supp. 2d at
254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws
all permissible factual inferences against the movant. See Anderson, 477 U.S.
at 255. Summary judgment is warranted when the nonmovant has no evidentiary
support for an essential element on which it bears the burden of proof. Celotex, 477 U.S. at 322-23; Silver v. City
Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir. 1991).
II. Qualified Immunity
As
an initial matter, defendants Pretsch, Leonick, Blauvelt and Cooper seek
summary judgment on the ground of qualified immunity. As the Second Circuit recently
stated in Cerrone v. Brown,
[a] police officer is entitled to qualified
immunity from liability for his discretionary actions if either (1) his conduct
does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known, or (2) it was objectively
reasonable for him to believe that his actions were lawful at the time of the
challenged act.
246 F.3d 194, 199 (2nd Cir. 2001) (quotations
and citations omitted); With respect to the second element, a police officer is
entitled to qualified immunity if "a jury, viewing all facts in the light
most favorable to the plaintiff, could conclude that officers of reasonable
competence could disagree on the legality of the defendant's actions." Id.
at 202 (quotations and citations omitted). In situations where probable cause
is required, this standard requires
something less than actual probable cause. This is defined by the Second
Circuit as "arguable probable cause," and is described as follows:
Arguable probable cause exists when a
reasonable police officer in the same circumstances and possessing the same
knowledge as the officer in question could have reasonably believed that
probable cause existed in the light of well established law. It is inevitable that
law enforcement officials will in some cases reasonably but mistakenly conclude
that probable cause is present, and we have indicated that in such cases those
officials--like other officials who act in ways they reasonably believe to be
lawful--should not be held personally liable. Even on summary judgment, where
all facts must be viewed in the [*506]light most favorable to the non-moving
party, for the purpose of qualified immunity and arguable probable cause, police officers are entitled to draw reasonable
inferences from the facts they possess at the time of a seizure based upon
their own experiences.
Id. at 203 (quotations and citations
omitted).
We
will address each of defendants' qualified immunity arguments in connection
with our discussion of plaintiff's claims to which they apply.
A.
Coercion of Confession
Plaintiff alleges that defendants Pretsch, Leonick, Blauvelt and Cooper
coerced her confession in violation of her Fifth Amendment right against
compelled testimonial self-incrimination. That right attaches during custodial
interrogations of a criminal suspect and is violated by the use of a compelled
statement against the declarant at any criminal proceeding. See Weaver v. Brenner, 40 F.3d 527, 535-36 (2d
Cir. 1994). The Supreme Court analyzes coercive interrogation techniques under
the Due Process Clause. See Colorado
v. Connelly, 479 U.S. 157, 163, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986).
"The test under the Due Process Clause is whether the suspect's statements
were made voluntarily, which depends upon examining all of the circumstances
surrounding the interrogation to see if police overreaching overcame a
suspect's will and led to an involuntary confession, one not freely
given." Weaver, 40 F.3d at 536.
Assuming for the purposes of
this motion that plaintiff was "in custody" for the purposes of the
Fifth Amendment at the time of her confession, we must deny defendants' motion
for summary judgment with respect to this claim. Plaintiff alleges that she was
interrogated for five hours, was verbally harassed, was not allowed to take a
break to smoke a cigarette, and that she was threatened that if she did not
confess, her three-year-old son could be taken from her care. While defendants
hotly contest each of these allegations, and may well prevail at trial, genuine
and material issues of fact currently exist as to whether the confession was
coerced. Accordingly, defendants' motion for summary judgment with respect to
this claim is denied.
Defendants' motion for summary
judgment on the basis of qualified immunity for this claim is similarly denied.
It is clearly established that police officers may not coerce a confession from
a criminal suspect. Accordingly, defendants are entitled to qualified immunity
only if it was objectively reasonable
for them to believe that their actions were lawful. Because plaintiff and
defendants dispute the circumstances surrounding the confession, a factual
determination of defendants' conduct is necessary before we can decide whether it was objectively
reasonable for them to believe that their conduct was lawful. See Niemann v. Whalen, 911 F. Supp. 656, 673
(S.D.N.Y. 1996) (Conner, J.).
B.
False Arrest and False Imprisonment
Plaintiff's claim for false arrest implicates the Fourth Amendment right
to be free from unreasonable seizures. See
Singer v. Fulton County Sheriff, 63 F.3d 110, 115 (2nd Cir. 1995). The
elements of a claim of false arrest under § 1983 are "substantially the
same" as the elements of a false arrest under New York law. See Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir.
1992). Under New York law, "a plaintiff claiming false arrest must show,
inter alia, that the defendant intentionally confined him without his consent
and without [*507] justification." Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996). "There is no 'bright line' rule differentiating an arrest from
[other lesser detentions] supportable by less than probable cause." Posr
v. Doherty, 944 F.2d 91, 98-99 (2d Cir. 1991). An arrest occurs when an individual
is restrained and his freedom of movement limited to such an extent that he did
not feel free to leave. See id. Furthermore, for § 1983 purposes, false
imprisonment is merely a species of false arrest. See Singer, 63 F.3d at 118. "False imprisonment is simply an
unlawful detention or confinement brought about by means of an arrest rather
than in some other way and is in all other respects synonymous with false
arrest." Covington v. City of New York, 171 F.3d 117, 125 (2d Cir. 1999)
(Glasser, J., dissenting); see also
Bowman v. City of Middletown, 91 F. Supp. 2d 644, 660 (S.D.N.Y. 2000).
The
existence of probable cause to arrest is a complete defense to a false arrest
claim under § 1983. See Weyant, 101
F.3d at 852. "Courts evaluating probable cause must consider those facts
available to the officer at the time of the arrest and immediately before
it." Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996).
Probable cause exists when there are "facts and circumstances sufficient
to warrant a prudent man that the [suspect] had committed or was committing an
offense." Id. (quotations and citations omitted). The probable cause
determination is based on the totality of the circumstances at the time of the
arrest. See Calamia v. City of New
York, 879 F.2d 1025, 1032 (2d Cir. 1989).
Plaintiff argues that there was no probable cause to arrest defendant on
February 5, 1999. For the purposes of this motion, because questions of fact
exist as to whether defendants coerced plaintiff's confession, we will not
consider the confession in our probable cause determination. Defendants argue
that there was sufficient evidence to establish probable cause even if the
confession is disregarded. We agree. At the time of the arrest, defendants had
the following pieces of evidence:
1. Knowledge that on January 30, 1999,
Wal-Mart received a single bomb threat call that was traced to pay phones
outside the store.
2. The January 30, 1999 surveillance video depicting
two individuals near the pay phones outside Wal-Mart.
3. A telephone log indicating that a call was
placed from the same pay phones to
Wal-Mart at approximately the same time a bomb threat was placed and at
approximately the same time the videotape depicted the two individuals near the
pay phones.
4. A confession by Nadya Palou that she made
several bomb threats, at least one with plaintiff's assistance in which
plaintiff served as a "lookout." Palou also stated that on one
occasion where Palou initiated a bomb threat, plaintiff made a subsequent call
warning Wal-Mart that they should take the threat seriously.
4. Numerous NPD complaint reports detailing
several bomb threat calls, including two on October 26, 1998. The report states
that Wal-Mart received a second call and an unknown male stated "You're
not taking this seriously, there is a bomb in the building."
5. A statement by Nadya Palou identifying
herself and plaintiff in a photograph made from the videotape.
6. A statement by Dale Jackson identifying
plaintiff as one of the persons seen in the videotape.
[*508] 7. A statement by plaintiff, prior to
the alleged coerced confession, identifying herself as one of the persons seen
in a photograph made from the videotape.
We
therefore conclude, as a matter of law, that there was sufficient evidence to
establish probable cause to arrest plaintiff without considering the subsequent
confession. Plaintiff's argument that the minor factual inconsistencies between
the evidence and defendants' theory of the crime should preclude summary
judgment is unpersuasive. Admittedly, Palou's statements are vague as to the
number and timing of the bomb threats, and the October 1998 police report
refers to a single unknown male caller. However, while the evidence may have
been unlikely to sustain a conviction, considering the totality of the
circumstances, there was sufficient evidence to support a determination of
probable cause. Accordingly, defendants' motion for summary judgment dismissing
plaintiff's false arrest and false imprisonment claims is granted. Furthermore,
defendants Pretsch, Leonick, Blauvelt and Cooper are entitled to qualified
immunity with respect to this claim. While the law is clearly established that
a lawful arrest requires probable cause, there is no doubt that, based on the
evidence at their disposal, a reasonable officer in the defendants' position
could reasonably believe he had probable cause to arrest the plaintiff.
C.
Malicious Prosecution
Plaintiff has also asserted a
claim for malicious prosecution against defendants for pressing charges without
probable cause. To state a claim for malicious prosecution, plaintiff must
establish: (1) the initiation or continuation of a criminal proceeding against
plaintiff; (2) termination of that proceeding in plaintiff's favor; (3) lack of
probable cause for the commencement of the proceeding; and (4) actual malice as
the motivation for defendants' actions. See
Rounsevill v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994). Even without considering
the lack of evidence demonstrating malice, our previous finding that defendants
had probable cause at the time to believe plaintiff had committed the charged
crimes warrants dismissal of this claim. Therefore, defendants' motion for
summary judgment with respect to this claim is granted.
CONCLUSION
For the reasons stated above, we grant defendants' motions for summary
judgment with respect to plaintiff's Fourth Amendment claims for false arrest,
false imprisonment and malicious prosecution, including all claims asserted
against defendant Wal-Mart. However, we deny summary judgment as to the Fifth
Amendment coerced confession claim asserted against defendants Richard Pretsch,
William Leonick, John Blauvelt and Gary Cooper.
SO ORDERED
Dated: White Plains, NY
January 11, 2002
William C. Conner
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