Parks v. USA et al

Filing 79

RULING granting in part and denying in part 74 First MOTION for Summary Judgment by Gregory Jacobson. Summary Judgment is GRANTD on plaintiff's excesssive force claims and DENIED on plaintiff's improper search and seizure claims as to defendant Gregory Jacobson. Signed by Judge Holly B. Fitzsimmons on 9/13/12. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM A. PARKS
v.
MARSHALL SEGAR,
OFFICER T. LYNCH, and
GREGG JACOBSON

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CIV. NO. 3:09CV1162 (HBF)

RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff William A. Parks brings this civil rights action
pursuant to 42 U.S.C. § 1983, alleging that Officers Marshall
Segar, Todd Lynch, and Gregg Jacobson deprived him of
constitutional rights secured by the Fourth Amendment to the
United States Constitution.1 Defendants are sued only in their
individual capacities.

[Doc. #37, Amend. Compl. At ¶4].

Pending is a Motion for Summary Judgment filed by Gregg
Jacobson, a police officer in the Town of Montville. Jacobson
argues that (1) plaintiff cannot prevail on claims of excessive
force because the undisputed facts show that Jacobson did not
use force against plaintiff, and was not in a position to
prevent other officers from subjecting plaintiff to excessive
1

Plaintiff contends defendants subjected him to an unreasonable
search and seizure and used unreasonable force in connection
with an arrest. Amend. Compl. at ¶13. He further alleges that
defendants had a duty to intervene to protect plaintiff from the
unlawful actions and failed/refused to perform such duty. Id.
¶6.
1

force; (2) he is entitled to summary judgment on plaintiff’s
improper search and seizure claims because undisputed exigent
circumstances justified Jacobson’s actions; and (3) in the
alternative, he is shielded from plaintiff’s improper search and
seizure claims by the doctrine of qualified immunity.
For the reasons that follow, defendant’s Motion for Summary
Judgment [Doc. # 74] is GRANTED in part and DENIED in part.
Standard of Law
Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. See D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.
1998); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The non-

moving party may not rely on conclusory allegations or
unsubstantiated speculation. See D'Amico, 132 F.3d at 149.
Instead, the non-moving party must produce specific,
particularized facts indicating that a genuine factual issue
exists. See Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.
1998).

To defeat summary judgment, “there must be evidence on

which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252, 106 S. Ct. 2505.

If the evidence

produced by the non-moving party is merely colorable or is not

2

significantly probative, summary judgment may be granted. See
id. at 249–50, 106 S. Ct. 2505.
A party opposing summary judgment may not rest on the “mere
allegations or denials” contained in his pleadings. Goenaga v.
March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.
1995). See also Ying Jing Gan v. City of New York, 996 F.2d 522,
532 (2d Cir. 1993) (holding that party may not rely on
conclusory statements or an argument that the affidavits in
support of the motion for summary judgment are not credible).

A

self-serving affidavit which reiterates the conclusory
allegations of the complaint in affidavit form is insufficient
to preclude summary judgment. See Lujan v. National Wildlife
Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695
(1990).

“The nonmovant, plaintiff, must do more than present

evidence that is merely colorable, conclusory, or speculative
and must present concrete evidence from which a reasonable juror
could return a verdict in her favor.” Page v. Connecticut
Department of Public Safety, 185 F. Supp. 2d 149, 152 (D.Conn.
2002) (citations and internal quotation marks omitted).
If a nonmoving party has failed to make a sufficient
showing on an essential element of his case with respect to
which he has the burden of proof at trial, then summary judgment
is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
3

If the plaintiff

fails to provide any proof of a necessary element of the
plaintiff's case, then there can be no genuine issue as to any
material fact. Id.

A complete failure to provide proof of an

essential element renders all other facts immaterial. Id.; see
also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995) (movant's burden is satisfied if it can point
to an absence of evidence to support an essential element of
nonmoving party's claim).
Facts
Defendant disagrees with much of plaintiff’s testimony, but
accepts certain allegations as true for purposes of the summary
judgment motion. [Doc. #74-1 at 1].

Specifically, defendant

accepts for purposes of the motion that plaintiff may have been
subjected to the alleged incidences of excessive force by other
officers.

Id.

Plaintiff and defendant submitted Local Rule 56(a)(1) [Doc.
#74-2, 74-3] and Local Rule 56(a)(2) [Doc. #77-1] Statements,
respectively.

From those documents, the Court finds the

following undisputed facts.2

2

Plaintiff admits the facts presented in defendant’s Local
56(a)(1) Statement at paragraphs 1-4; 6-12; and 14. He disputes
the facts alleged in paragraphs 5 and 15. Where background
facts are listed that were not included in defendant’s Local
56(a)(1) Statement, the court cites to exhibits provided by both
parties that indicate agreement.
4

1.

On May 15, 2009, Marshall Segar and Todd Lynch were
officers in the New London Police Department, and Gregg
Jacobson was an officer in the Montville Police Department.
Answ. to Amend. Compl. ¶4; doc. #74, Ex. B, Jacobson Aff.
¶3.

2.

On May 15, 2009, while on duty, Jacobson was sent to see if
Parks was at his home in Montville, Ct.

Jacobson Aff. ¶4.

Jacobson was told that plaintiff was wanted by the New
London Police Department because he had threatened to blow
up the New London social security office.3 Doc. #74-2,
Def.’s 56(a)(1) Stat. ¶13-14; Jacobson Aff. ¶5.
3.

Officer Jacobson observed that plaintiff’s car was parked
in his driveway and notified the New London Police
Department. Doc. #74-2, Ex. A, Parks Tr. 110; Jacobson Aff.
¶6.

3

Neither Jacobson’s Local 56(a)(1) Statement, nor his attached
affidavit, states who told him that plaintiff had threatened to
blow up the New London social security office. Plaintiff does
not argue that Jacobson received the information from a noncredible source, and the record suggests that Jacobson was told
by some law enforcement official, from either the Montville or
New London Police Department. The Court therefore assumes for
purposes of this motion that Jacobson was told by a law
enforcement official.
5

4.

After unsuccessful attempts were made to contact plaintiff
at his home, Officer Jacobson and Officer Lynch entered
plaintiff’s home.4

5.

Parks Tr. 48; Jacobson Aff. ¶8-9.

Officer Jacobson forced open a door in plaintiff’s house to
reach plaintiff. Parks Tr. 110-111; Jacobson Aff. ¶12.

6.

Officer Jacobson would have been two to four feet away from
plaintiff during an alleged incident in which a police dog
was given a command and subsequently bit plaintiff.5 Def.’s
56(a)(1) Stat. ¶2, 4-5; Pl.’s 56(a)(2) Stat. ¶5.

4

The section of plaintiff’s deposition available to the court
indicates that he knew that officers were outside his house but
he did not go outside to meet them. Parks Tr. 110. Plaintiff
does not respond anywhere to defendant’s assertion that
unsuccessful efforts were made to contact plaintiff before
arriving at plaintiff’s house, before entering plaintiff’s
house, and before forcibly entering through a door in
plaintiff’s house. Jacobson Aff. ¶¶8, 11, 14. Despite
defendant’s inexplicable failure to include these facts, which
are material to his claim of exigent circumstances, in his Local
56(a)(1) Statement, defendant still properly cites to affidavit
statements when relying on these facts in his motion. [Doc. #741 at 23]. Plaintiff therefore had proper notice that defendant
was using these facts to support a legal position, but did not
address them in his opposition. Accordingly, the court
construes these facts as undisputed for purposes of the motion.
See Fed. R. Civ. P. 56(e)(2).
5

Defendant does not admit that the dog bite actually occurred,
and in fact states that he did not witness such a bite. Jacobson
Aff. ¶16. However, based on plaintiff’s testimony, defendant
states he would have been three to four feet away from any
hypothetical attack. Def.’s 56(a)(1) Stat. ¶5. Plaintiff denies
this because his testimony actually indicates that Officer
Jacobson could have been as close as two feet from the attack.
Parks Tr. 119-120; Pl.’s 56(a)(2)Stat. ¶5. In his motion for
summary judgment, defendant states, “plaintiff testified that
Jacobson was three or four feet away at this time,” citing to
plaintiff’s testimony, in which plaintiff stated that Jacobson
was “two, three, maybe four feet away at the time.” [Doc. 74-1
6

7.

The police dog was in control of an officer other than
Jacobson. Id. at 3.

8.

Plaintiff does not know where Officer Jacobson was when
plaintiff was allegedly pushed to the ground and struck
with a baton enroute from his house to a police cruiser.
Id. at 6-7.

9.

Plaintiff does not know where Officer Jacobson was when
plaintiff was allegedly subjected to excessive force while
inside Officer Jacobson’s police cruiser. Id. at 8-9.

10.

Plaintiff does not know where Officer Jacobson was when
plaintiff was allegedly struck in the sally port area of
the New London Police Department. Id. at 10-11.

11.

Officer Jacobson was not present during an alleged incident
of excessive force against plaintiff in the booking area of
the New London Police Department. Id. at 12.

Discussion
1. Excessive Force
Plaintiff alleges that defendant Jacobson violated his Fourth
Amendment rights five times by failing to intercede while other
officers were subjecting him to excessive force.

In his first

claim, plaintiff alleges that Jacobson could have interceded,

at 5]. The Court therefore adopts two feet as the undisputed
minimum possible distance.
7

but failed to, when defendant Lynch commanded his German
Shepherd to bite plaintiff in his home.

Plaintiff’s remaining

four claims of excessive force pertain to instances outside his
home, in a police car, in the sally part of the New London
Police Department, and in the booking area of the New London
Police Department.

Jacobson seeks summary judgment on all five

claims.
It is well settled that a police officer “has an affirmative
duty to intercede on the behalf of a citizen whose
constitutional rights are being violated in his presence by
other officers.” O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.
1988)(internal citations omitted).

An officer is liable for

failure to intercede where the officer “observes that excessive
force is being used or has reason to know that it will be used.”
Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.
2001)(internal citations omitted). “In order for liability to
attach, there must have been a realistic opportunity to
intervene to prevent the harm from occurring.” Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir. 1994)(emphasis added)(citing
O'Neill, 839 F.2d at 11–12). Whether an officer had sufficient
time to intercede or was capable of preventing the harm being
caused by another officer is an issue of fact for the jury
unless, considering all the evidence, a reasonable jury could
not possibly conclude otherwise. Id.
8

In opposing the motion for summary judgment, plaintiff
alleges that Jacobson had the ability to intercede and protect
plaintiff from the dog bite.

Plaintiff’s motion does not

address any of the four remaining claims of excessive force.
a. First Claim of Excessive Force - The Dog Bite
Jacobson acknowledges that there are issues of disputed
fact regarding whether Lynch’s German Shepherd bit plaintiff.
However, Jacobson argues that this is not material for purposes
of summary judgment because even assuming, arguendo, that
plaintiff’s deposition testimony is true, a reasonable jury
could not conclude that Jacobson had a realistic opportunity to
intercede. Anderson, 17 F.3d at 557.
Jacobson relies on the facts in O’Neill, where a police
officer did not intercede while another officer struck a
handcuffed man three times.

The Second Circuit found that “the

three blows were struck in such rapid succession that [the
observing officer] had no realistic opportunity to prevent
them,” and so there was insufficient evidence to permit a jury
to reasonably conclude that the observing officer’s failure to
intercede was a proximate cause of the beating. O’Neill, 839
F.2d at 11.
Construing the facts in a light most favorable to
plaintiff, the Court must consider whether a jury could
reasonably conclude that Jacobson was able to prevent the dog
9

bite from two feet away.

Parks Tr. 119. Plaintiff’s own

testimony suggests Jacobson could not.

Plaintiff testified that

another officer’s command “caused the dog to lurch out” and bite
him for half a second to a second. Parks Tr. 119.

Therefore, by

plaintiff’s account, the dog attack happened even faster than
the officer’s attack in O’Neill, where three punches were
landed; and the O’Neill attack was found to have happened so
quickly that a reasonable jury would be unable to conclude that
an observing officer had time to intercede.6 See O’Neill, 839
F.2d at 11-12 (stating that the attack was not “an episode of
sufficient duration to support a conclusion that an officer who
stood by without trying to assist the victim became a tacit
collaborator”).
Nor does plaintiff propose any way that Jacobson could have
prevented the attack besides not calling the New London Police
Department in the first place.

Parks Tr. 120.

Plaintiff’s

failure to offer any evidence that Jacobson could have
interceded is a failure to provide any proof of a necessary
element of his case.

6

Without such proof, there can be no

The Court notes that neither party alleges that the time it
took for the dog to react to the command was of any significant
duration.
10

genuine issue as to any fact material to this claim.7 Celotex
Corp, 477 U.S. at 322-23.
Applying the Second Circuit’s reasoning in O’Neill to an
even stronger set of facts, the Court concludes that a jury
could not reasonably find that Jacobson was able to prevent a
dog bite lasting one second once the command was given.
On this record, summary judgment is GRANTED on the first
claim of excessive force against defendant Jacobson.
b. Other claims of excessive force.
Plaintiff also alleges that Jacobson failed to intercede
during four more instances where other officers subjected him to
excessive force.8

Plaintiff admitted that he does not know where

Jacobson was during those instances of excessive force, except
for the final instance, where plaintiff admitted he knows
Jacobson was not present. Pl. Local 56(a)(2) Stat. ¶¶7, 9, 1112.

7

Plaintiff’s opposition to summary judgment is also deficient in
its ability to establish genuine issues of material fact
concerning the dog bite. Plaintiff denies defendant’s statement
that he did not witness the dog bite [Doc. # 77-1 at ¶15];
but while the fact that Jacobson witnessed the attack, and the
facts contained in plaintiff’s Rule 56(a)(2) Statement are
indeed disputed, they are not material to the issue raised by
Jacobson’s motion for summary judgment, namely, whether
defendant had a realistic opportunity to prevent the dog bite
even given those facts.
8
The four instances allege a failure to intervene when plaintiff
was: 1. walking to the police cruiser; 2. sitting in the police
cruiser before transport to the New London P.D.; 3. in the New
London P.D. Sallyport; and 4. in the New London P.D. Booking
Area.
11

Plaintiff’s opposition does not address any of these
instances, except to deny the assertion that defendant did not
witness them.

Id. ¶15.

However, this denial only cites

plaintiff’s deposition testimony regarding the dog bite.

There

is no evidence to support plaintiff’s denial regarding the four
other alleged instances of excessive force, and the citation
does not comply with the requirements of Local Rule
56(a)(3)(“[E]ach denial in an opponent's Local Rule 56(a)2
Statement, must be followed by a specific citation to (1) the
affidavit of a witness competent to testify as to the facts at
trial and/or (2) evidence that would be admissible at trial”).
Moreover, in the absence of specific evidence as to Jacobson’s
whereabouts, plaintiff’s deposition testimony that Jacobson was
“in the proximate area” is vague and speculative, insufficient
to create a factual issue.
Accordingly, summary judgment is GRANTED in favor of
Jacobson on plaintiff’s remaining claims that Jacobson violated
plaintiff’s Fourth Amendment rights by failing to prevent the
use of excessive force by other officers.
2. Improper Search and Seizure
Plaintiff alleges that Jacobson conducted a warrantless search
and arrest, and inflicted unreasonable and unnecessary damage on
his property, in violation of the Fourth Amendment. [Doc. #37 at
2].

Jacobson argues that a forced, warrantless entry was
12

justified by exigent circumstances.

For the following reasons,

the Court finds that the undisputed facts are insufficient to
form a basis for granting summary judgment as to these claims.
A search carried out on a suspect’s premises without a
warrant is presumptively unreasonable, unless the police can
show that it falls within one of a carefully defined set of
exceptions based on the presence of “exigent circumstances.”
Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S. Ct. 2022,
2042, 29 L. Ed. 2d 564 (1971)(footnote citations omitted).
Similarly, a warrantless felony arrest in the home is prohibited
by the Fourth Amendment, absent probable cause and exigent
circumstances. Welsh v. Wisconsin, 466 U.S. 740, 751, 104 S. Ct.
2091, 2098, 80 L. Ed. 2d 732 (1984).
The Second Circuit has established six “illustrative guides”
to aid in determining whether exigent circumstances exist:
(1) the gravity or violent nature of the offense with
which the suspect is to be charged; (2) whether the
suspect is reasonably believed to be armed; (3) a
clear showing of probable cause . . . to believe that
the suspect committed the crime; (4) strong reason to
believe that the suspect is in the premises being
entered; (5) a likelihood that the suspect will escape
if not swiftly apprehended; and (6) the peaceful
circumstances of the entry.
United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997)(citing
United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990)(en
banc)).

The core question is whether the facts, as they

appeared at the moment of entry, would lead a reasonable,
13

experienced officer, to believe that there was an “urgent need
to render aid or take action.”

United States v. Klump, 536 F.3d

113 (2d Cir. 2008)(citing MacDonald, 915 F.2d at 769).
Jacobson argues that exigent circumstances existed to
justify warrantless entry into plaintiff’s home because
plaintiff could have possessed the means to carry out his threat
to blow up the New London social security office in the time it
would have taken for Jacobson to obtain a warrant.9

It is

undisputed that, prior to entering plaintiff’s home, Jacobson
had been told that plaintiff had threatened to blow up the New
London social security office.

It is also undisputed that

plaintiff did not respond to police efforts to contact him.

9

Jacobson testified that: “[plaintiff] presented an immediate
threat because of his threats to blow up the social security
office”; “[plaintiff’s] failure to respond to numerous
communication attempts by the police at his home, both prior and
after entry into the house caused me to fear for [plaintiff’s]
safety also”; and “entry into [plaintiff’s] house was to ensure
both [plaintiff’s] own safety and that of the public.” Jacobson
Aff. ¶13-15. In his brief, Jacobson does not argue that the
need to ensure plaintiff’s safety justified the warrantless
entry, even though that reason could be valid justification to
support such entry. Brigham City v. Stuart, 547 U.S. 398, 403,
126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006)( “The need to protect
or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent an exigency or
emergency”). Considering this issue sua sponte in light of
Jacobson’s affidavit statements, the Court finds that
plaintiff’s failure to respond to police communication efforts
did not necessarily imply that his safety was at risk, and
whether Jacobson’s belief was reasonable in this regard is a
question of fact for a jury.
14

However, Jacobson’s affidavit does not provide any specific
reason for why the time necessary to obtain a warrant would
allow plaintiff a greater opportunity to carry out his threat.
If the officers were convinced that plaintiff was in the house
upon their arrival, then a reasonable finder of fact could
conclude that once officers arrived at plaintiff’s house, a
warrantless entry was not needed to ensure that plaintiff could
not escape and/or carry out his threat.10

In short, on the

current record, it is unclear whether simple monitoring of
plaintiff’s home during the time needed to obtain a warrant
would suffice to ensure that plaintiff was not an imminent
threat to public safety.

Therefore, it is unclear whether

exigent circumstances existed to justify Jacobson’s warrantless
entry into plaintiff’s home.
It is also not clear that exigent circumstances developed
at any point after the officers entered the home.

Jacobson

testified that he could hear plaintiff talking on the phone
behind a closed door while not responding to police efforts at
communication.

However, Jacobson did not indicate whether he

could hear the substance of the phone conversation, or (if he

10

While the facts establish the Jacobson considered the
presence of plaintiff’s car in his driveway as reason to believe
that plaintiff was inside his house, Jacobson Aff. ¶6, absent
from the record is any indication of how confident officers were
in this belief.
15

could hear the conversation) why it caused him to fear for the
public’s safety or plaintiff’s own safety.

Facts pertaining to

how Jacobson perceived the nature of the phone conversation
(i.e., whether plaintiff was speaking with an accomplice;
plaintiff was threatening to hurt himself; plaintiff’s voice was
calm; plaintiff’s voice was loud and threatening) are material
to whether exigent circumstances existed to justify Jacobson’s
forced, warrantless entry through a door inside plaintiff’s
house.

Without these material facts, the Court cannot make a

summary judgment determination that exigent circumstances arose
after officers entered plaintiff’s house.
Since the undisputed facts do not establish that exigent
circumstances justified Jacobson’s warrantless entry into
plaintiff’s house, or Jacobson’s forced entry through a door
inside the house, the Court now turns to the question of
qualified immunity.
3. Qualified Immunity
Jacobson argues that he is entitled to summary judgment on
plaintiff’s improper search and seizure claims due to qualified
immunity.

Although plaintiff does not address this argument in

his opposition brief, the Court finds that the facts in the
record are not strong enough to grant Jacobson qualified
immunity.

16

“The doctrine of qualified immunity protects government
officials ‘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.’” Messerschmidt v. Millender, --- U.S. ---, 132 S. Ct.
1235, 1244, 182 L. Ed. 2d 47 (2012)(quoting Pearson v. Callahan,
555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565
(2009)).

Qualified immunity applies if the official's mistake

is a mistake of law, mistake of fact, or mistake based on mixed
questions of law and fact. Palmieri v. Kammerer, 690 F. Supp. 2d
34 (D. Conn. 2010)(citing Pearson, 555 U.S. at 231).

The

purpose of qualified immunity is to protect officials when they
must make difficult “on-the-job” decisions. Id. (citing Zieper
v. Metzinger, 474 F.3d 60, 71 (2d Cir.2007)).

Thus, qualified

immunity protects “all but the plainly incompetent or those who
knowingly violate the law” by giving “ample room for mistaken
judgments.” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229,
112 S.Ct. 534, 116 L. Ed. 2d 589 (1991)).
In the Second Circuit, qualified immunity analysis consists of
a three-step inquiry examining whether there is an alleged
violation of a constitutional right, whether the right was
clearly established at the time of the conduct, and – if the
right was clearly established – whether the defendant’s actions
were objectively reasonable.

Id. (citing Harhay v. Town of
17

Ellington Bd. Of Educ., 323 F.3d 206, 211 (2d Cir. 2003)).
Summary judgment on qualified immunity grounds is inappropriate
if there are disputed facts that are material to determining
reasonableness. Id. (citing Yorzinski v. Alves, 477 F. Supp. 2d
461, 469 (D. Conn. 2007)).
At the first step of the inquiry, plaintiff clearly alleges
that Jacobson violated his constitutional rights by conducting a
warrantless search and arrest, and by damaging property while
forcing entry through a door.

The second step is also met

because these rights were clearly established at the time of
conduct. See e.g., Payton v. New York, 445 U.S. 573, 586, 100 S.
Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980)(“It is a ‘basic
principle of Fourth Amendment law’ that searches and seizures
inside a home without a warrant are presumptively
unreasonable”)(footnote omitted); and Notice v. Koshes, 386 F.
Supp. 2d 23, 27 (D. Conn. 2005)(stating that unreasonable
property damage may constitute seizure in violation of the
Fourth Amendment).
At the third step, the Court considers whether the
undisputed facts are sufficient to establish that Jacobson’s
actions were objectively reasonable.

While Jacobson believed

that plaintiff was wanted by the New London Police Department
for threatening to blow up the social security building,
Jacobson’s affidavit does not explain why he thought plaintiff
18

was still an imminent threat to public safety after officers
arrived at the house.

It is possible that reasonable officers,

despite seeing plaintiff’s car in his driveway and believing him
to be inside the house, could have nonetheless feared that
plaintiff left the house by some other means, or that plaintiff
was able to coordinate an attack from inside his house.
However, in his affidavit, Jacobson does not suggest that he
believed either possibility was realistic, or that either
possibility served as his reason for entering the house without
a warrant.

Thus a qualified immunity analysis of these

possibilities is premature.

While qualified immunity grants

officers wide latitude to make on-the-job mistakes, it does not
provide protection for every warrantless home search and arrest
made when investigating a suspect who reportedly made a threat.
Nothing in the record distinguishes plaintiff’s alleged threat
or behavior in such a way that it should have caused reasonable
officers to believe that taking the time to obtain a warrant
would jeopardize the public’s safety or the safety of any
individual.11

11

Accordingly, summary judgment is DENIED on

By way of comparison, the Supreme Court recently found that
officers were entitled to qualified immunity for their
warrantless home entry to investigate a student’s alleged threat
to shoot up the school; but the Court’s decision rested on a set
of facts far more comprehensive than the present set. Ryburn v.
Huff , --- U.S. ---, 132 S. Ct. 987, 181 L. Ed. 2d 966
(2012)(per curiam). In Ryburn, the court did not merely rely on
19

plaintiff’s claims that Jacobson violated his Fourth Amendment
rights by subjecting him to an improper search and seizure.
Conclusion
For the reasons stated, defendant Gregg Jacobson’s Motion
for Summary Judgment [Doc. #74] is GRANTED on plaintiff’s
excessive force claims and DENIED on plaintiff’s improper search
and seizure claims.

This is not a Recommended Ruling.

The

parties consented to proceed before a United States Magistrate

the nature of plaintiff’s alleged threat and the fact that the
student’s mother had initially refused to communicate with the
officers, but on the following detailed circumstances: Prior to
their warrantless entry, officers had conducted an investigation
and found that the student’s frequent absences from school and
history of being bullied were characteristic of school shooters;
a classmate reported that he believed the student was capable of
a school shooting; plaintiff’s mother hung up when officers
identified themselves on the phone; when plaintiff’s mother
eventually went outside to speak with officers, they found her
behavior and responses “extremely unusual” and “odd”; when they
asked her if there were any guns in the house, she responded by
“immediately turn[ing] around and r[unning] into the house”; and
the first officer into the house specifically stated that,
because of the mother’s behavior in response to the last
question about guns, he was “scared because [he] didn’t know
what was in that house.” Id. at 987-89 (brackets and quotations
original). Taking all facts into consideration (especially the
mother’s reaction to the question pertaining to whether there
were any guns in the house), the Court found that there was an
objectively reasonable basis for the officers to fear that
violence was imminent so that warrantless entry into the home
was permissible under the Fourth Amendment. Id. at 992.
In contrast, the present record does not include any facts,
beyond the nature of plaintiff’s alleged threat and his failure
to respond to communication efforts, to support Jacobson’s
belief that plaintiff presented an “immediate” threat. Jacobson
Aff. ¶13.
20

Judge [Doc. #76] on July 19, 2012, with appeal to the Court of
Appeals. Fed. R. Civ. P. 73(b)-(c).
ENTERED at Bridgeport this 13th day of September 2012.

_____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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