229 Conn. 716 | Conn. | 1994
Lead Opinion
The principal issue in this appeal is whether the defendants, detectives Robert Rioux and Gerald Myers of the East Hartford police department,
The following facts are undisputed. The plaintiff was employed as the director of the department of public works for the town of East Hartford (department) from 1968 until November 1,1985. On two occasions in 1985, the plaintiff was arrested pursuant to warrants prepared by the defendants on charges stemming from the department’s lubrication services contract with Automatic Lubrication Service, Inc. (Automatic Lubrication). The plaintiff was first arrested on October 28, 1985, and charged with one count of “Town Ordinance Violation: Bidding Procedure” in violation of chap
During the criminal proceedings that followed his arrests, the plaintiff filed separate motions to dismiss each information under which he stood charged,
In support of his motions, the plaintiff filed affidavits containing offers of proof, which satisfied the trial court in the criminal proceedings, Tamborra, J., that the plaintiff had made the substantial preliminary showing required for a Franks hearing. At the close of the Franks hearing, Judge Tamborra concluded that, even though the affidavits may have contained some inaccuracies, the plaintiff had not “met his burden of showing that a false statement necessary to the finding of probable cause was knowingly and intentionally included or made with reckless disregard for the truth.” Accordingly, Judge Tamborra denied each of the plaintiffs motions to dismiss as to all counts, on the ground that sufficient probable cause existed for allowing the charges against the plaintiff to proceed to trial.
Subsequently, the plaintiff was brought to trial on the criminal charges before Judge Robert Hale. At the close of the state’s evidence, the plaintiff moved for a judgment of acquittal pursuant to Practice Book §§ 882 through 884,
In their answer to the plaintiffs amended complaint, the defendants asserted four special defenses. They claimed that: (1) qualified immunity shielded them from liability because their alleged acts had been performed in the course of a governmental duty and were discretionary; (2) each arrest had been made pursuant to a valid warrant; (3) they had consulted with prosecuting attorneys in the course of their alleged conduct and were therefore protected by their reliance on the advice of counsel; and (4) their alleged conduct had been objec
Thereafter, the case was tried to a jury, which, on January 2, 1992, returned a verdict in favor of the plaintiff on all six counts of his complaint, awarding a total of approximately $1 million in damages.
The plaintiff claims that the trial court improperly set aside the jury’s verdict because: (1) the defendants, having acted with malice, were not immune from the plaintiff’s claims for malicious prosecution under our common law doctrine of qualified immunity; and (2) the defendants’ qualified immunity from the plaintiff’s civil rights claim depended on disputed questions of fact and, therefore, should not have been set aside as a matter of law. The defendants raise the following alternative grounds for affirming the trial court’s judgment: (1) their arrests of the plaintiff were supported by probable cause as a matter of law; (2) they were entitled to qualified immunity because their conduct was objectively reasonable; (3) there was insufficient evidence to support the jury’s finding of malice for purposes of the plaintiffs malicious prosecution claims; (4) the defendants’ reliance on the advice of the state’s attorneys shielded them from liability; and (5) the doctrine of collateral estoppel precluded the plaintiff from relitigating the existence of probable cause because that issue already had been fully and fairly litigated at the Franks hearing during the underlying criminal proceeding. In addition, the defendants argue that in the event that we reverse the judgment and reinstate the verdict, we should consider whether the damages awarded by the jury were excessive as a matter of law. Because
At the outset, we note that “ ‘[directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982)[;] Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Our review of a trial court’s [decision] to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. [In determining whether the trial court has correctly set aside the verdict, we] must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985) .... [We will uphold a trial court’s decision to set aside the verdict and direct judgment] only if we find that the jury could not reasonably and legally have reached their conclusion. . . . Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986) . . . .’ (Internal quotation marks omitted.) Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989).” John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991).
I
The plaintiff first claims that the trial court incorrectly set aside the verdict because it applied the wrong standard of qualified immunity to his common law claims of malicious prosecution. The plaintiff asserts that the trial court incorrectly applied to both his civil rights claim and his common law claims an “objective reasonableness” standard of immunity, even though that standard is properly applicable only to his civil rights claim. Under this standard, the defendants’ conduct was protected by qualified immunity unless they acted in an objectively unreasonable manner.
“The [common law] doctrines that determine the tort liability of municipal employees are well established.” Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). Although historically “ ‘[a] municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) . . . [municipal] employees faced the same personal tort liability as private individuals.’ Gordon v. Bridgeport Housing Authority, [208 Conn. 161, 165, 544 A.2d 1185 (1988)].” Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Over the years, however, “[t]he doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees.” Burns v. Board of Education, supra, 645. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Id. “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.” Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). In contrast, “ ‘[ministerial’ refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975).
Under the facts of this case, the defendants’ allegedly tortious conduct constitutes discretionary govern
The standard of qualified immunity that protects public officials from civil suits pursuant to § 1983, arising from the performance of their discretionary functions, is distinct from that established under our common law. “Although [§ 1983] on its face admits of no immunities”; Malley v. Briggs, supra, 475 U.S. 339; the United States Supreme Court has held that the qualified immunity defense protects government officials performing discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, supra, 457 U.S. 818. For purposes of a § 1983 claim, “whether an official protected by quali
This comparison of the well established common law
To succeed in these common law claims, the plaintiff must qualify for one of the exceptions to a municipal employee’s qualified immunity for discretionary acts. The plaintiff asserts that the only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action when the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See DeLaurentis v. New Haven, supra, 220 Conn. 242-43; Evon v. Andrews, supra, 211 Conn. 505; Stiebitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957). We agree with the plaintiff’s claim that this exception is applicable.
One of the elements that the plaintiff was required to demonstrate in proving his claims for malicious prosecution was that the defendants “acted with malice, primarily for a purpose other than that of bringing an offender to justice.
II
The plaintiff next claims that the trial court improperly set aside the verdict as a matter of law with respect to his civil rights claim because the issue of whether qualified immunity shielded the defendants from liability turned on disputed issues of material fact. The plaintiff contends that the trial court made its decision to set aside the verdict on the basis of its flawed interpretation of Cartier v. Lussier, supra, 955 F.2d 841, a case that was decided by the United States Court of Appeals for the Second Circuit after the trial in this case had concluded. The plaintiff argues that as a result, the trial court improperly substituted its judgment for that of the jury on factual issues, and, therefore, its decision should be reversed. We agree.
The trial court granted the defendants’ motion to set aside the verdict and for judgment notwithstanding the verdict solely on the basis of Cartier.
In its memorandum of decision, the trial court interpreted Cartier as “calling for” a Franks hearing, and noted that, in the present action, such a hearing already had been held by Judge Tamborra. The trial court further noted that the “analysis put forth by the Cartier court” had not been available either to the trial court, Koletsky, J., or to the parties, when the defendants had filed their motion for summary judgment in 1989. The trial court thus concluded that “in light of Cartier and the fact that [in this case] a Franks hearing [had been] held after which probable cause [had been] found, we conclude that the defendants are entitled to qualified immunity as a matter of law.”
The principles applied by the Cartier court are consistent with the principles of federal qualified immunity contained in federal precedent, and do not represent any departure therefrom. See, e.g., Finnegans. Fountain, 915 F.2d 817 (2d Cir. 1990); Warren v. Dwyer, 906 F.2d 70 (2d Cir.), cert. denied, 498 U.S. 967, 111 S. Ct. 431, 112 L. Ed. 2d 414 (1990). In accordance with this established precedent, the defendants were entitled to qualified immunity as a matter of law only if, on the facts found, their conduct either did not violate “clearly established rights” of which a reason
The trial court is authorized to set aside the jury’s verdict only when it finds that the jury could not reasonably and legally have reached its conclusion. John T. Brady & Co. v. Stamford, supra, 220 Conn. 441. In this case, however, the trial court did not set aside the jury’s verdict on the ground that it was unsupported by the facts in the record. Nor did the trial court set aside the verdict on the ground that there were no material issues of fact relating to the existence of probable cause.
Ill
Because we conclude that the trial court improperly set aside the verdict for the plaintiff, we must now turn to the defendants’ five alternative grounds for affirmance.
A
The defendants first argue, as an alternative ground for affirming the judgment of the trial court setting aside the verdict, that undisputed facts established probable cause, as a matter of law, in support of both of the arrests of the plaintiff by the defendants.
In the present case, the existence of probable cause for both arrests was contingent upon the defendants’ assertion, in the affidavits in support of the arrests, that the department’s lubrication services contract with Automatic Lubrication was fixed for one year, and had terminated. In the affidavit in support of the October 28 arrest, the defendants claimed that the plaintiff had violated the town competitive bidding ordinance by failing to put the contract out to bid after the contract had terminated. Likewise, in the affidavit in support of the November 19 arrest, the defendants claimed that the plaintiff had violated the state bribe receiving statute because he had allowed Automatic Lubrication to pay for his rounds of golf at the Blackledge Country Club in return for the benefit of continuing the contract, even after it had terminated, without first submitting the contract to bid. If the contract had been a continuing one that remained valid throughout the period in question, there would have been no obligation to submit the
“In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. . . . Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990).” (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 722, 629 A.2d 333 (1993). If, as in this case, “the parties have reduced their agreement to a writing, their intent ‘is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intent existed in the minds of the parties but what intention is expressed in the language used.’ (Internal quotation marks omitted.) [Barnard v. Barnard, supra, 214 Conn. 110.]” Id. Further, “[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987).
In the present case, the contract in question contains such definitive language. Consequently, the issue of whether the parties intended that the contract be fixed for one year, or continuing, is a question for the court to resolve from the language contained in the contract. The contract has no termination date, but contains a provision permitting either party to give a sixty day termination notice.
At trial, the plaintiff presented uncontested evidence that during all material times, neither Automatic Lubrication nor the department had issued a notice of intent to cancel the contract. Thus, when the defendants prepared the arrest warrants, the contract had not terminated and was ongoing as a matter of law during the period in question. In light of this determination, we necessarily conclude that the defendants lacked probable cause as a matter of law when they arrested the plaintiff. We, therefore, reject this alternative ground for affirmance.
B
The defendants also argue, as an alternative ground for affirming the trial court’s judgment setting aside the verdict, that even if the defendants lacked probable cause to arrest the plaintiff, qualified immunity shielded them from liability on the plaintiff’s civil rights claim pursuant to § 1983 because their conduct was objectively reasonable.
At trial, the plaintiff introduced evidence that on September 5, 1985, the audit and investigations committee of the town council of East Hartford (committee) held a meeting for the purpose of investigating “their criteria for running the [lubrication] service and their procedures for monitoring the service . . . .’’Present at the meeting were the plaintiff and other department employees, various members of the committee, and representatives of Automatic Lubrication. The minutes of that meeting contained a transcript of the questions by committee members, among others, to the plaintiff, along with his answers, concerning the nature of the lubrication services contract. The transcript was admitted into evidence at trial. In response to questions about the length of the contract, the plaintiff stated: “It was an on-going contract—just continued from month to month and either party had a right to cancel the contract at any time.” In addition, the plaintiff stated that the reason the department had not put the contract out to rebid was because of the sixty day cancellation clause.
The chairman of the committee provided the defendants with a copy of the transcript. In fact, in their affi
Moreover, the plaintiff introduced evidence that, prior to the defendants’ arrests of the plaintiff, the town’s own police department had concluded in a prior investigation that the contract was ongoing. Specifically, the plaintiff introduced evidence that in September, 1981: the police department already had conducted an investigation of the same contract between the department and Automatic Lubrication; as part of that investigation, the assistant director of finance had conducted a review of all bills submitted by Automatic Lubrication during the two years preceding September, 1981; and, as a result of the whole investigation, the police department had acknowledged that Automatic Lubrication had a valid continuing contract with the town and had not made any claim that the town’s purchases of lubrication services had violated the town competitive bidding ordinance. For purposes of testing the objective reasonableness of the defendants’ belief that probable cause existed, the defendants are held to have known about this earlier investigation. See State v. Acquin, 187 Conn. 647, 657, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983) (“when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered”).
At trial, the plaintiff introduced further evidence indicating that the department and various other town offi
On the basis of this evidence,
C
The defendants also argue as an alternative ground for affirming the trial court’s judgment setting aside the verdict, that the jury could not reasonably have found that the defendants acted with malice sufficient to prove the plaintiff’s claims of malicious prosecution. We disagree.
As we already have stated, to succeed in his claims for malicious prosecution, the plaintiff must show that the defendants acted with malice, that is, primarily for a purpose other than that of bringing the plaintiff to justice. DeLaurentis v. New Haven, supra, 220 Conn. 256 n.16; McHale v. W.B.S. Corp., supra, 187 Conn. 447. Additionally, the plaintiff must prove that the defendants acted without probable cause. McHale v.
Moreover, there was ample evidence at trial from which the jury could have reasonably found malice separate and apart from the lack of probable cause. The plaintiff introduced evidence that three days prior to arresting the plaintiff, the defendants had promised to contact the plaintiffs attorney and to allow him to surrender should he later become subject to arrest, but thereafter ignored that promise and arrested the plaintiff, at a public meeting of the audit committee, to which the press expressly had been invited. As additional proof of the defendants’ malice, the plaintiff introduced evidence of the defendants’ failure fully to investigate the charges for which they arrested the plaintiff. See DeLaurentis v. New Haven, supra, 220 Conn. 258 (“ ‘to proceed without inquiry would be to act without probable cause where the information is readily obtainable’ ”). First, the plaintiff introduced uncontested evidence that Automatic Lubrication in fact had not paid for eight of the plaintiff’s twelve rounds of golf that were the subject of his November 19 arrest. Additionally, the plaintiff introduced evidence that the defendants had failed to inquire into their own police department’s September, 1981 investigation, prior to arresting the plaintiff.
The jury was free to accept these facts and circumstances as true, and to infer therefrom that the defend
D
The defendants next argue, as an alternative ground for affirmance, that their reliance on the advice of state’s attorney John Bailey and assistant state’s attorney Cornelius Shea prior to proceeding against the plaintiff affords them a complete defense to the plaintiff’s claims for malicious prosecution.
Although we have held that a defendant’s reliance on the advice of counsel can be a complete defense to
At trial, the defendants presented evidence that they had consulted with the state’s attorney’s office on at least three occasions in connection with the arrests, that affidavits in support of the arrests had been presented to the state’s attorneys, and that the state’s attorneys had found probable cause to support the arrests. The plaintiff, however, presented evidence that both of the warrant affidavits prepared by the defendants were replete with false statements and omissions of fact.
E
As a fifth ground on which to affirm the judgment of the trial court, the defendants argue that the doctrine of collateral estoppel precluded the plaintiff from relitigating the existence of probable cause because that issue already had been litigated fully and fairly during the underlying criminal case at the Franks hearing. We disagree.
In the underlying criminal proceeding related to the present action, the plaintiff moved to dismiss the criminal charges against him, claiming that the arrest warrant affidavits contained material inaccuracies and omissions that were the result of either a deliberate falsehood or a reckless disregard for the truth. On February 3,1986, Judge Tamborra heard the plaintiff’s motion and determined that the plaintiff had established the threshold showings required under Franks
The defendants assert that, because the existence of probable cause defeats all of the plaintiff’s claims, the preclusive effect of Judge Tamborra’s determination that the corrected affidavit supported an objective finding of probable cause warranted a directed verdict in their favor. Specifically, the defendants assert that the plaintiff is collaterally estopped from relitigating the issue of probable cause previously resolved against him by Judge Tamborra. Accordingly, the defendants urge us to affirm the trial court’s judgment to set aside the verdict. We reject the defendants’ argument.
“Pursuant to 28 U.S.C. § 1738 (1988)
Under Connecticut law, “[cjollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).
We conclude that in the present action, the plaintiff was not provided with a full and fair opportunity as that phrase is used in the collateral estoppel lexicon to litigate the issue of probable cause at the Franks hearing. “The requirement of full and fair litigation ensures fairness, which is a 'crowning consideration’ in collateral estoppel cases.” Id., 306. In discussing what constitutes “full and fair litigation” for the purposes of collateral estoppel, we have stated that “if the nature of the hearing carries procedural limitations that would not be present at a later hearing, the party might not have a full and fair opportunity to litigate.” Id. Because, in Connecticut, a Franks hearing occurs early in the underlying criminal case, it necessarily has procedural limitations that were not present in the plaintiff’s subsequent civil trial on his claims for malicious prosecution. For example, when a defendant succeeds
IV
Because we reverse the judgment and reinstate the verdict, we must also consider the defendants’ claim that the damages awarded by the jury were excessive as a matter of law and based on inadmissible evidence. Specifically, the defendants argue that the trial court incorrectly admitted the testimony of David Hanlon concerning an alleged lost employment opportunity claimed by the plaintiff. The defendants further argue that because Hanlon’s testimony was impermissibly speculative, it cannot properly support the jury’s award of thousands of dollars of damages, attributable only to Hanlon’s testimony. In the alternative, the defendants argue that the jury acted out of passion, sympathy, or another improper motive in awarding the plaintiff’s damages. Consequently, the defendants urge us to conclude that the verdict is excessive as a matter of law and to remand the case for a new trial on
The defendants raised their claim of excessive damages in their motion to set aside the verdict and for judgment notwithstanding the verdict
The decision whether to reduce a jury verdict because it is “excessive as a matter of law” rests solely within the discretion of the trial court, pursuant to General Statutes § 52-216a.
The judgment is reversed and the case is remanded to the trial court for an articulation in accordance with part IV of this opinion.
In this opinion Peters, C. J., Borden and Norcott, Js., concurred.
The town of East Hartford is also a defendant in this case. The plaintiffs claims against the town, brought pursuant to General Statutes §§ 7-101a and/or 7-465, are for indemnification purposes only. At trial, the town admitted that it would be responsible for the conduct of the individual defendants, Rioux and Myers, if they were found to be liable. This opinion does not refer to the town separately in its role as a defendant.
Chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford provides: “Purchasing Manual and Amount Limitations Requiring Sealed Bids and Quotations.
“The Purchasing Agent and the Director of Finance shall prescribe rules, regulations, and procedures in a written administrative purchasing manual and all purchases shall be made pursuant thereto. The manual shall be given to all departments with instructions regarding its use.
“All single purchases and contracts, other than professional services for which the requirement of competitive bidding would not be to the Town’s advantage, in which the amount of expenditure is estimated to exceed Two Thousand Five Hundred Dollars ($2,500), shall be made from or let by sealed bids. However, all purchases less than Two Thousand Five Hundred Dollars ($2,500), but more than One Thousand Five Hundred Dollars ($1,500), shall be substantiated by three (3) quotations which shall be held as a permanent record for audit and public inspection.”
Chapter 1, § 1-14 of the code of ordinances of the town of East Hartford provides in relevant part: “General Penalty.
“(a) Whenever in this Code or in any Ordinance of the Town any act is prohibited or is made or declared to be unlawful or an offense, misdemeanor or public nuisance or whenever in such Code or Ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, where no specific penalty is provided therefor, the violation of any such provision of this Code or any Ordinance shall be punishable by a fine not exceeding Ninety-Nine ($99.00) Dollars, or imprisonment for a term not exceeding six (6) months, or by both such fine and imprisonment, unless a different penalty is prescribed by law.”
General Statutes § 53a-148 provides: “bribe receiving: class d felony, (a) A public servant or a person selected to be a public servant
“(b) Bribe receiving is a class D felony.”
General Statutes § 54-56 provides: “dismissal of information by court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”
The plaintiff claimed that chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford was not a penal ordinance and, therefore, did not charge a criminal offense.
Judge Tamborra also rejected the plaintiffs claim that chapter 10, article 2, § 10-5 of the code of ordinances of the town of East Hartford was not a penal ordinance. Judge Tamborra noted that chapter 1, § 1-14 of the code of ordinances of the town of East Hartford provides a penalty, a fine or imprisonment for violating any ordinance that requires an affirmative act. Judge Tamborra reasoned that because chapter 10, article 2, § 10-5 is such an ordinance, its violation would necessarily subject one to penal sanctions of the code. Whether such a violation would subject the offender to criminal prosecution by means of General Statutes § 53a-24 is an issue we need not resolve.
Practice Book § 883 provides in relevant part: “[-MOTIONS for judgment OF ACQUITTAL]--IN GENERAL . . .
“After the close of the prosecution’s case in chief or at the close of all
Practice Book § 884 provides in relevant part: “--at close of prosecution’s case
“If the motion is made after the close of the prosecution’s case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present his [or her] case in chief. . . .”
Each claim was framed in two counts: one count against the defendants Rioux and Myers; and the other count against the defendant town of East Hartford for indemnification.
Section 1983 of title 42 of the United States Code (1988) provides: “civil ACTION FOR DEPRIVATION OF RIGHTS
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
The plaintiff’s § 1983 claim alleged liability on the basis of his malicious prosecution claims. See Conway v. Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984) (action for malicious prosecution may support liability under § 1983). Specifically, the plaintiff alleged that the defendants, while acting under color of state law, had caused the plaintiff to be arrested on October 28, and November 19,1985; that the arrests had violated the plaintiff’s right to freedom from illegal seizure of his person, unlawful arrest, and illegal detention, secured by the due process clause of the fifth and fourteenth amendments to the constitution of the United States; and that as a result, the plaintiff had suffered damages.
The plaintiff alleged, inter alia, that in the affidavits in support of each arrest the defendants had: (1) falsely and inaccurately stated that the department’s lubrication services contract with Automatic Lubrication (contract) was fixed for one year; (2) failed to disclose that the contract was a continuing contract that could be terminated by either the department or Automatic Lubrication; and (3) falsely and inaccurately stated that it was the plaintiff’s responsibility to put the contract out to bid. Specifically with respect to the affidavit in support of the October 28 arrest, the plaintiff alleged that the defendants had: (1) provided a false and misleading account of the plaintiff’s testimony at a meeting of the town council’s audit and investigations committee, held for the purpose of investigating the criteria for running the lubrication service, by selectively editing the plaintiff’s testimony and by failing to include the plaintiff’s complete responses to the committee’s questions; and (2) falsely and inaccurately stated that the plaintiff, having the responsibility to put the contract out to bid, had failed to do so by his own admission. Finally, with respect to the affidavit in support of the November 19 arrest, the plaintiff alleged that the defendants had failed to disclose that on eight of the twelve occasions that the plaintiff had played golf at Blackledge Country Club, his round had been neither charged to nor paid for by Automatic Lubrication.
In connection with the plaintiff’s common law malicious prosecution claims, the jury awarded damages of $487,000 on the first and second counts, relating to the October 28,1985 arrest, and $487,000 on the third and fourth counts, relating to the November 19, 1985 arrest. In connection with the plaintiffs civil rights claim, the jury awarded damages of $974,000 on the fifth and sixth counts, relating to both arrests. Because the trial court properly instructed the jury that the plaintiff is entitled to full recovery only once for his suffered harm; Kilduff v. Adams, Inc., 219 Conn. 314, 333, 593 A.2d 478 (1991); his damages total $974,000.
After the close of the plaintiff’s case-in-chief and again after the close of evidence, the defendants had moved for a directed verdict, claiming qualified immunity as a matter of law. See Practice Book § 321. The trial court reserved decision on both of these motions.
The defendants raised other grounds for setting aside the verdict that are not relevant to this appeal.
Because neither party has raised the public duty doctrine, and because we already have concluded that the defendants’ conduct constitutes discretionary action, we do not consider in this instance the parallel analysis of common law governmental immunity that involves the question of whether the duty imposed upon the defendants is public or private in nature. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 166-67; Shore v. Stoningion, 187 Conn. 147, 152, 444 A.2d 1379 (1982); Leger v. Kelley, 142 Conn. 585, 589-90, 116 A.2d 429 (1955).
Specifically, the trial court relied on: Anderson v. Creighton, supra, 483 U.S. 639; Harlow v. Fitzgerald, supra, 457 U.S. 818; Cartier v. Lussier, supra, 955 F.2d 843.
In their brief to this court, the defendants do not expressly dispute that the trial court applied the incorrect standard of qualified immunity to the plaintiffs common law claims, but they nevertheless imply that this court has adopted the federal standard as applicable to such claims. In support of this position, the defendants cite Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 168-69 n.3. The defendants’ reliance on Gordon, however, is entirely misplaced. In Gordon, we stated: “This state’s doctrine of governmental immunity accords with the doctrine of governmental immunity as announced by the United States Supreme Court in Nixon v. Fitzgerald, 457 U.S. 731, 744, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982). There [the United States Supreme Court] stated: ‘[T]his court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages. ’ ‘As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.’ Harlow v. Fitzgerald, [supra, 457 U.S. 806]. Federal law also recognizes the distinction between discretionary and ministerial acts. Id., 816-17; see also Payton v. United States, 679 F.2d 475, 479-80 (5th Cir. 1982).” (Emphasis added.) Gordon v. Bridgeport Housing Authority, supra, 168-69 n.3. Thus, despite the defendants’ claim to the contrary, in Gordon we did not incorporate federal standards into our state’s doctrine of qualified immunity; we merely noted that our state’s policy of providing some form of qualified immunity to governmental officials is not inconsistent with the federal approach.
In addition to suggesting that this court has already adopted the federal standard as applicable to common law claims, the defendants expressly invite
The trial court’s jury charge on the defendants’ qualified immunity defense confirms that the trial court analyzed the plaintiff’s common law claims for malicious prosecution under the federal standard for qualified immunity. As that charge reveals, the trial court incorrectly instructed the jury, in conformance with the defendants’ request to charge, that the defendants enjoyed the same immunity under both the plaintiff’s common law claims and his § 1983 claim: “Our state Supreme Court has recognized that the state standard for governmental immunity is the same as the standards announced by the United States Supreme Court. The officers cannot be held liable unless it is found that they knowingly broke the law or, on the facts known by them at the time, had absolutely no basis for a belief in prosecution. If any reasonable officer could believe in probable cause, then you must find for the defendants.”
At trial, the plaintiff took exception to this charge.
In addition to malice, “[a]n action for malicious prosecution . . . requires a plaintiff to prove that: (1) the defendant initiated or procured
We do not reach the issue of whether, for purposes of defeating common law qualified immunity, the definition of “malice” is limited to “a purpose other than that of bringing an offender to justice.” Zenik v. O ’Brien, supra, 137 Conn. 595.
The trial court’s memorandum of decision provided: “This court finds Cartier dispositive of the issue of qualified immunity and the defendants’ claim that they are entitled to qualified immunity as a matter of law.”
In this case, the factual issues properly left to the jury include, but are not limited to, whether the defendants knew or should reasonably have known that: (1) the contract was ongoing; (2) their police department had concluded in a prior investigation that the contract was ongoing; and (3) the department and various other town officials considered and consistently treated the contract as ongoing in nature. The determination of these factual issues is necessarily predicated on the determination of subsidiary facts, also properly left to the jury. For a discussion of these material factual issues see part III B and C of this opinion.
Because the defense of qualified immunity has been construed as an immunity from suit, not a mere defense to liability; Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985); when there are no unresolved factual issues material to its applicability, it is preferable for the trial court to decide the issue of qualified immunity as a matter of law on a pretrial motion for summary judgment, or on a motion for a directed verdict. Oliveira v. Mayer, 23 F.2d 642, 649-50 (2d Cir. 1994); Warren v. Dwyer, supra, 906 F.2d 76.
We note that the unchallenged jury charge also allowed the jury to consider the ultimate issue of whether it was objectively unreasonable for the defendants to believe that they had probable cause to arrest the plaintiff. This charge was proper according to the most recent decision of the Second Circuit Court of Appeals on this topic. See Oliveira v. Mayer, supra, 650 (where factual disputes concerning police conduct are revealed and “[tjhese disputes bear directly upon whether it was objectively reasonable for the officers to believe that they were acting lawfully . . . [t]he District Court should have let the jury (a) resolve these factual disputes and (b) based on its findings, decide whether it was objectively reasonable for the defendants to believe that they were acting within the bounds of the law when they detained the plaintiffs.” [Citation omitted.]).
The defendants argue that the trial court properly could have applied the correcting test, concluded that probable cause existed as a matter of
Our resolution of this issue is consistent with our resolution of the defendants’ fifth alternative ground for affirmance discussed in part III E of this opinion. An objective finding of probable cause at the conclusion of a Franks hearing does not foreclose the plaintiff from revisiting that issue at a civil proceeding if, by means of civil discovery, the plaintiff may be able to obtain additional evidence relevant to the issue of probable cause. At such a civil proceeding, the trial court would again have the opportunity to assess whether there are issues of fact material to the existence of probable cause that should be reserved for the jury’s consideration.
Because the plaintiff’s § 1983 claim is supported by his common law claims for malicious prosecution; see Conway v. Mount Kisco, supra, 750 F.2d 214; the defendants’ argument reaches all six counts of the complaint.
Paragraph E 6 of the contract provides: “It shall be understood that any contract and/or agreement entered into by the Town of East Hartford pertaining to the specified lubrication service may be canceled by either party by providing the other party with at least sixty (60) days notice of intent to cancel such service.”
In their brief to this court, the defendants extend this argument to the plaintiff’s common law malicious prosecution claims on the ground that this court should adopt the federal standard of qualified immunity as applicable to common law claims for malicious prosecution. Because we already have rejected the defendants’ invitation to substitute the federal qualified immunity doctrine for our well established common law qualified immunity doctrine; see footnote 17; we address the defendants’ argument only with respect to the plaintiff’s civil rights claim.
“The right not to be arrested or prosecuted without probable cause has . . . long been a clearly established constitutional right.” Golino v. New Haven, supra, 950 F.2d 870.
Despite the dissent's suggestion to the contrary, we do not hold the defendant police officers to the same standard we might hold an attorney specializing in contract law. For this reason, we do not decide this issue as a matter of law. Rather, we examine the evidence that a jury could have relied on to determine that it was not objectively reasonable for the defendant police officers to have believed they had probable cause to arrest the plaintiff.
The dissent takes issue with our failure to consider certain evidence that weighs in favor of the objective reasonableness of the defendants’ belief in probable cause. We do not dispute the principle that extrinsic evidence favorable to the defendants and known to them at the time of the arrests
See footnote 24.
In their brief, the defendants discuss the common law defense of reliance on counsel solely in the context of its application to the plaintiff’s state law malicious prosecution claims. This is consistent with the position the defendants took at trial. In their request to charge on this issue, titled “Probable Cause—Advice of Counsel,” the defendants relied solely on Brodrib v. Doberstein, supra, 107 Conn. 296, which holds that a defendant’s reliance on counsel can be a complete common law defense to an action for malicious prosecution.
Although the defendants do not argue that the common law defense of reliance on counsel applies to the plaintiff’s § 1983 claim, they do argue, and we recognize, that any reliance on the part of the defendants on the advice of the state’s attorneys is a factor properly to be considered by the jury in assessing whether the defendants acted in an objectively reasonable fashion.
See footnote 11.
Section 1738 of title 28 of the United States Code (1988) provides in relevant part: “[judicial proceedings or copies thereof, so authenticated, [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State . . . from which they are taken.”
Practice Book § 4013 (a) (1) provides in relevant part: “If any appellee wishes to . . . (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues. . . .”
The defendants raised the claim of excessive damages in their original motion to set aside the verdict and in their first amended motion to set aside the verdict and for judgment notwithstanding the verdict.
General Statutes § 52-216a provides in relevant part: “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. . . .”
Concurrence in Part
concurring and dissenting. I agree with a great deal of what my learned colleagues have stated in the majority opinion. Nevertheless, I disagree with the majority’s disposition of the claim for qualified immunity raised by the defendant police officers (defendants) as a defense to the federal civil rights claim brought under 42 U.S.C. § 1983. The issue of whether the defendants are entitled to immunity was properly raised in the motion to set aside the verdict and for judgment notwithstanding the verdict (post-verdict motion). The trial court ruled on the postverdict motion in the defendants’ favor solely on the basis of issue preclusion, because in the criminal proceedings against the plaintiff Judge Tamborra determined in a Franks hearing
Federal law does not, however, restrain this court on the counts predicated on state law. Indeed, I fully support the majority’s rejection of federal qualified immunity as a defense to those counts.
I
The defense of qualified immunity is, of course, applicable to a § 1983 action.
First, the “right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right.” Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied sub nom. Lillis v. Golino, U.S. , 112 S. Ct. 3032, 120 L. Ed. 2d 902 (1992). Second, the parties in this case do not suggest that any exception is applicable. Accordingly, neither of the first two factors cloaks the defendants with immunity.
The third factor—that is, whether it was objectively reasonable for the officers to believe that, their acts did not violate the plaintiff’s rights—requires that the court determine if “either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Id., 870. “No other ‘circumstances’ are relevant to the issue of qualified immunity.” Davis v. Scherer, 468 U.S. 183, 191, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984).
The question of whether the defendants are entitled to qualified immunity is generally one for the court. Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991); 2 S. Nahmod, Civil Rights and Civil Liberties Litigation (3d Ed. 1991) § 8.08. The
The determination of whether the defendant police officers are immune should be made by the trial court
The majority rejects sending this back to the trial court because factual issues were disputed and “the jury could reasonably have inferred that a reasonable police officer in the defendants’ position would have known that the plaintiff, his coworkers, Automatic Lubrication, and relevant town officials considered and consistently treated the department lubrication services contract with Automatic Lubrication as ongoing in nature.” I agree with the majority that factual disputes that are material and necessary to the resolution of whether an objectively reasonable basis existed for finding probable cause are properly given to the jury. Cartier v. Lussier, 955 F.2d 841, 845-46 (2d Cir. 1992). The majority claims that such factual issues exist in the present case, stating that “the factual issues properly left to the jury include, but are not limited to, whether the defendants knew or should reasonably have known that: (1) the contract was ongoing; (2) their police department had concluded in a prior investigation that
First, I would remand this issue because of the voluminous record in this case, the uncertainty of what necessary facts (if any) were in dispute and the absence of any trial court opinion addressing qualified immunity on its merits. See Finnegan v. Fountain, supra, 915 F.2d 821 (leaving issue of qualified immunity to the trial court on remand).
Second, I am not persuaded that any facts necessary to determine the objective reasonableness of the defendants’ conduct are in dispute. In this regard, it is important to note that all the facts do not have to be undisputed for the trial court to decide the issue of qualified immunity. Jennings v. Joshua Independent School District, 877 F.2d 313, 317 (5th Cir. 1989) (“In this case there were enough undisputed facts for the court to have made a legal determination that [the defendant] was entitled to immunity. We certainly cannot say that it was obvious that an application for a warrant should not have been made in this case.”). In fourth amendment cases, the trial court, in its traditional role of determining probable cause, has a significant role to play in weighing the facts to determine the reasonableness of the defendants’ conduct. Torchinsky v. Siwinski, 942 F.2d 257, 262-64 (4th Cir. 1991) (assessing reasonableness of defendant’s investigation, including reasonableness of defendant’s belief in the credibility of a witness to a crime, as a matter of law).
The majority fails to consider certain evidence that weighs in favor of the objective reasonableness of the defendants’ actions and upon consideration of the entire
The majority also fails to consider the significant fact that the defendants’ investigation had uncovered evidence of a series of price increases for the contractual lubrication services, and the plaintiff had acquiesced in these price increases without requiring competitive bidding on the services. The plaintiff admitted at trial that he had authorized these price increases, and that if bidding had been required, it would have been his responsibility to initiate the process. Although the majority states that “relevant town officials considered and consistently treated the . . . contract ... as ongoing in nature,” the purchasing agent for the city of East Hartford testified he had told the defendants that, in his opinion, there was an obligation to rebid the contracts when the prices first increased because the original contract terminated at that point. Furthermore, in the minutes of the September 5, 1985 town council audit committee meeting, which were supplied to the defendants before the warrants were issued, the plaintiff discussed the price increases, and committee chairman Henry Genga stated his opinion that the contract was not ongoing and should have been put out to bid. The defendants argue that in view of these circumstances, reasonable law enforcement officers could
The majority ignores the evidence of price increases and its effect on the reasonableness of the defendants’ conduct, apparently because it was not expressly made part of the arrest warrant affidavits. Although I agree that the trial court should consider material omissions that undermine a reasonable belief in probable cause,
Indeed, the analysis in Krause v. Bennett, supra, 887 F.2d 369-72, demonstrates the principle that extrinsic evidence favorable to the defendants and known to them at the time should be considered in determining the existence of qualified immunity. In Krause, the arrest warrant affidavit stated that the plaintiff “knowingly” possessed stolen property, a traffic sign that had been missing for seventeen years. Id., 366. The court relied on a number of facts external to the affidavit; id., 371; to support its determination that “the circumstances as known to [the defendant] at the time of the arrest and the application for the warrant were sufficient to support a finding of probable cause.” Id., 370.
The majority also fails to consider Judge Tamborra’s determination pursuant to the Franks hearing that “I cannot find that any of the claims, inaccuracies, or omissions in either of the affidavits resulted from deliberate falsehood or reckless disregard of the truth.” This trial court finding, although having no preclusive effect in the civil case, should weigh in favor of the objective reasonableness of the officers’ conduct.
Further, I disagree with the majority that advice of counsel was not raised as an issue and therefore should not be considered in determining the availability of qualified immunity as a shield to the § 1983 count.
Moreover, the fact that the majority, in order to demonstrate the lack of probable cause for the arrests, finds it necessary to utilize legal principles of contract interpretation also gives me great pause in rejecting the defense of qualified immunity, and is further reason why I believe this matter should be remanded. The objective reasonableness defense requires that we analyze whether “reasonable [police] officers could disagree as to whether probable cause exists,” not reasonable lawyers or law students. (Emphasis added.) Cartier v. Lussier, supra, 955 F.2d 846. Although the United States Supreme Court has instructed that “a reasonably competent public official should know the law governing his conduct(emphasis added) Harlow v. Fitzgerald, supra, 457 U.S. 819; to my knowledge the courts have not implied that a reasonably competent police officer should know the law of contracts.
II
Finally, I would also provide further guidance to the trial court on the issue of objective reasonableness. First, once a warrant is issued by a judge, there is a presumption that the officer’s actions were objectively reasonable. “Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause, see United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965), and a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden, see, e.g., Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991) (search warrant).” Golino v. New Haven, supra, 950 F.2d 870.
Nevertheless, this presumption should not be interpreted as an absolute shield. “This view of objective reasonableness is at odds with our development of that concept in Harlow and [United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)]. In Leon, we stated that our good-faith inquiry is confined to the
Second, the objective reasonableness standard precludes any consideration of the motives of the police officers in seeking the warrant.
Third, we should underscore that the issue of objective reasonableness is quite distinct from the issue of whether there was in fact probable cause to arrest.
Finally, on remand, the trial court should hold a hearing to determine whether there are bona fide factual disputes that would prevent the court from resolving the qualified immunity issue as a matter of law. The following rule would determine the immunity of the defendants: “[W]ell-established principles instruct that qualified immunity is appropriate if the affidavit accompanying the warrant is sufficient, after correcting for material misstatements or omissions, to support a reasonable officer’s belief that probable cause existed. See [Malley v. Briggs, supra, 475 U.S. 341]; Franks v. Delaware, [supra, 438 U.S. 154].” Magnotti v. Kuntz, supra, 918 F.2d 368.
In sum, I would remand this case to the trial court to determine whether (1) the defendants had probable cause to arrest,
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). In Franks, the United States Supreme Court held that, under certain circumstances, criminal defendants are entitled to an evidentiary hearing to attempt to demonstrate that the police misrepresented the facts supporting probable cause contained within an arrest warrant affidavit. Id., 171-72.
I point out that the plaintiff in this case makes no claim that he did not have the necessary information at the time of the Franks hearing to litigate the issue fully before Judge Tamborra. The plaintiff merely states in a conclusory fashion that he had no “full and fair opportunity, for collateral estoppel purposes, to litigate the issues in dispute at theFranks hearing,” relying on Golino v. New Haven, 950 F.2d 864 (2d Cir. 1993), cert. denied sub nom. Lillis v. Golino, U.S. , 112 S. Ct. 3032, 320 L. Ed. 2d 902 (1992). Golino is inapposite to this case. In Golino, the court, interpreting Connecticut law, held that a probable cause hearing to determine whether the defendant should stand trial for murder had no preclusive effect in a subsequent § 1983 suit because there had been no opportunity for the defense to present evidence or call witnesses. Id., 869-70. In the present case, the plaintiff was afforded a full adversarial hearing in the Franks hearing.
Nevertheless, I agree with the bright line rule promulgated by the court that because “a Franks hearing occurs early in the underlying criminal case, it necessarily has procedural limitations that were not present in the plaintiffs subsequent civil trial” and accordingly should not have preclusive effect in a subsequent civil suit. As pointed out by the majority, the procedural limitation is that the Franks hearing is subject to restrictive criminal discovery rules, so that the defendant’s access to vital evidence is more limited than in a civil proceeding. We have the authority to establish this rule because the question of whether preclusive effect is given to the result of a Franks hearing is, as the majority points out, a question of state law. See Gunther v. Holmgreen, 738 F.2d 879, 884 (7th Cir. 1984), cert. denied, 469 U.S. 1212, 105 S. Ct. 1182, 84 L. Ed. 2d 329 (1985) (applying Wisconsin law to require that a Franks hearing has preclusive effect in a § 1983 suit).
Because I would remand this matter to the trial court to determine whether there were sufficient undisputed facts to decide the issue of qualified immunity as a matter of law, I would also include in that remand the
At one time, a claim of qualified immunity could be defeated by proof that the defendant public official acted in an objectively unreasonable manner, or that the official acted in bad faith, with malice. Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). In 1982, the United States Supreme Court overruled Strickland and held that the subjective malice of a public official is irrelevant to the existence of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
A glaring example of the potential injustice caused by the rejection of a subjective standard is found in Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994). In Oliveira, a private citizen reported to the Stamford police his suspicion that the plaintiffs had committed a burglary. Id., 644. The citizen’s sole basis for the suspicion was the following observations, communicated to the police: the plaintiffs had dark skin; they were driving in a dilapidated station wagon with New York license plates; they were seen emerging from a one way street in an affluent neighborhood in North Stamford; and they were handling an expensive video camera. On the basis of this information, six police cruisers located and stopped the plaintiffs’ car using “high-risk” stop procedures. The plaintiffs were ordered by loudspeaker to stop and exit their vehicle, by police with guns drawn. They were each handcuffed, searched while spread over
I agree with part l of the majority opinion. The federal qualified immunity defense is not a shield against our common law action of malicious prosecution.
In Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), the Second Circuit Court of Appeals recently held that the ultimate issue of whether police officers acted in an objectively reasonable manner, for purposes of qualified immunity, should have been decided by the jury rather than the District Court as a matter of law. Id., 649-50. Although this conclusion would seem to contradict other decisions of the Second Circuit, the decisions are reconcilable because the factual issues in Oliveira were inextricably interwoven with the legal conclusion. The ultimate issue that the jury had to determine was whether it was “objectively reasonable for the police to believe that their detention of the plaintiffs was only a Terry stop or that they possessed probable cause to make an arrest.” Id. To make this determination it was necessary for the jury to resolve a number of factual disputes, because of “conflicting accounts of the total duration of the detention, the plaintiffs’ responsiveness to the police’s instructions, the physical treatment of the plaintiffs once removed from their vehicle, the defendants’ use of their weapons, and a number of other particulars.” Id., 650. Under these circumstances, it would be impossible to isolate discrete factual issues that the jury could resolve by answering interrogatories so that the District Court could make the ultimate determination of whether the police acted in an objectively reasonable manner. Therefore, under the facts of Oliveira, the ultimate conclusion of objective reasonableness had to be made by the jury based on its resolution of the various factual disputes.
The fact that the defendants did not object to the jury charge or proposed interrogatories should not foreclose review of the issue of qualified immunity on postverdiet motions. In the present case, the defendants pleaded qualified immunity as a special defense, claimed it as a ground for summary judgment, sought a directed verdict based on it and squarely raised the issue in the postverdict motion. Under these circumstances, the defendants preserved their claims. Krause v. Bennett, supra, 887 F.2d 369; Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 109 S. Ct. 1095, 103 L. Ed. 2d 230 (1989).
I agree that under Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986), the trial court is to consider extrinsic information known to the defendants but not found within the warrant in assessing the question of objective reasonableness. In Briggs, the United States Supreme Court held that “the same standard of objective reasonableness . . . applied in the context of a suppression hearing . . . defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest. Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, [United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)], will the shield of immunity be lost.” Id., 344-45. Although this broad statement suggests that in making the determination of objective reasonableness the court should focus solely on the warrant, the Second Circuit Court of Appeals has held that the inquiry is not limited to the four corners of the warrant. Cartier v. Lussier, supra, 955 F.2d 845. Instead, the trial court must determine “if the affidavit accompanying the warrant is sufficient, after correcting for material misstatements or omissions, to support a reasonable officer’s belief that probable cause existed.” (Internal quotation marks omitted.) Id.
I recognize that, in a criminal Franks hearing, the state could not rely on material omissions that support probable cause to justify the prosecution of the defendant. Qualified immunity presents, however, a different issue than a criminal Franks hearing—that is, the objective reasonableness of the officers who sought the warrant under all the circumstances.
The defendants’ brief raises the issue as to all the counts including the § 1983 count, arguing that the conclusion that the defendants acted in an objectively reasonable manner is bolstered because “[tjown officials openly disputed the validity of the contract and the State’s Attorney advised the
“Ordinarily, reliance on counsel is conclusive on the reasonableness of the officer’s conduct even if the attorney’s advice was unfounded or erroneous. The only exception to this rule is where there was not a full and fair disclosure to the attorney.”
Bailey admitted on cross-examination, however, that he did not have a recollection of specific discussions in this regard. Bailey also testified that he could not remember whether he was presented with a copy of the contract itself.
Furthermore, if we are going to charge the defendant police officers with knowledge of the law of contract, the majority should discuss and con
The case cited by the majority to support this proposition, State v. Acquin, 187 Conn. 647, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983), is wholly inapposite, as it stands for the proposition that, in determining whether probable cause supports the warrantless seizure of a defendant, the courts consider “the collective knowledge of the law enforcement organization at the time of arrest . . . .” Id., 657. This presumption has the purpose of facilitating the successful prosecution of defendants arrested on probable cause. The majority violates fundamental principles of federal law by turning this presumption upside down and using it to undermine an officer’s claim of qualified immunity, because as previously indicated the objective reasonableness of conduct is assessed based on the facts and circumstances known to the defendants. See, e.g., Juriss v. McGowan, 957 F.2d 345, 349 (7th Cir. 1972). Furthermore, the presumption applied by the majority is unfair. Although the town of East Hartford has agreed to indemnify the police officers in this case, other public officials may not enjoy this privilege.
Of course, in a § 1983 suit involving a constitutional violation where motive is an element of the cause of action, motive evidence is clearly relevant. See Gutierrez v. Municipal Court, 838 F.2d 1031, 1050-51 (9th Cir. 1988), vacated on mootness grounds, 490 U.S. 1016, 109 S. Ct. 1736, 104 L. Ed. 2d 174 (1989) (claim of equal protection clause violation based on racial discrimination); Musso v. Hourigan, 836 F.2d 736, 743 (2d Cir. 1988) (claim of first amendment violation).
See footnote 3.
