Drew et al v. Groton et al

Filing 73

ORDER granting in part and denying in part, claims against City of Groton are dismissed 62 Motion for Summary Judgment. Signed by Judge Janet Bond Arterton on 7/21/11. (Torday, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
John F. Drew,
Plaintiff,

Civil No. 3:09cv1355 (JBA)

v.
City of Groton, et al.,
Defendants.

July 21, 2011

RULING ON MOTION FOR SUMMARY JUDGMENT
On October 6, 2010, Plaintiff John Drew filed a Second Amended Complaint
claiming that Defendant Brian Connolly, the City of Groton (“City”), and Groton Chief of
Police Bruno L. Giulini subjected Drew to a false arrest and unlawful detention in violation
of his Fourth and Fourteenth Amendment Rights. Defendants now move [Doc. # 62] for
summary judgment on all of Plaintiffs’ claims. For the reasons stated below, Defendants’
Motion for Summary Judgment will be granted in part and denied in part.
I.

Material Facts
A.

Traffic Stop

According to his deposition testimony, Plaintiff spent the evening of July 26, 2008
at Danno’s Café on Poquonnock Road in Groton with his girlfriend Linda Graser and other
friends. (Drew Dep., Ex. B to Defs.’ Rule 56(a)1 Smt. at 22:7–30:3.) Drew testified that he
had “one sip” of beer at Danno’s and that Graser had a single Tom Collins. (Id. at
23:13–24:12.) He also stated in his December 9, 2010 affidavit that the one sip of beer was
the only alcohol he drank that day and that he was not under the influence of any drugs or
alcohol. (Drew Aff., Ex. 1 to Pl.’s Rule 56(a)2 Stmt. ¶ 1.) Drew further averred that he left
Danno’s at about 10:22 p.m. with Graser. (Id. ¶ 2.) According to Drew, he drove on

Poquonnock Road from Danno’s to the intersection with Mitchell Street, at which point he
waited for a fire truck with its sirens on to pass and then turned right onto Mitchell. (Drew
Dep. at 40:10–19; Drew Aff. ¶¶ 2–3.) After Drew turned onto Mitchell Street, Graser noticed
a police cruiser behind their truck and, believing that the cruiser was traveling with the fire
truck, Drew signaled and veered to the right to allow the cruiser to pass. (Drew Dep. at
40:20–41:5; Drew Aff. ¶ 3.) When the cruiser did not pass them, Drew signaled left,
reentered the traffic lane, and after stopping at a stop sign at the intersection of Allen Street
and Smith Street, turned left onto Smith Street. (Drew Dep. at 41:5–49:19; Drew Aff.
¶¶ 3–4.) After Drew turned onto Smith Street, the cruiser turned its lights on and Drew
pulled his truck over to the right of the road. (Drew Dep. at 48:13–51:5; Drew Aff. ¶ 4.)
Drew states in his affidavit: “I had my signals on for every turn I made and at no point did
I cross over a double yellow line nor did the vehicle ride up on any curb,” and testified
similarly during his deposition. (Drew Dep. at 51:6–18; Drew Aff. ¶ 5.)
Defendant Officer Brian Connolly of the City of Groton Police Department testified
during his August 6, 2010 deposition and explained in his Incident Report that at
approximately 10:20 p.m. on July 26, 2008, he was traveling west on Poqounnock Street and
was directly behind Drew’s truck at the intersection with Mitchell Street when the fire truck
passed. (Incident Report, Ex. A to Defs.’ Rule 56(a)1 Stmt. at 1; Connolly Dep., Ex. D to
Defs.’ Rule 56(a)1 Stmt. at 23:16–24:22.) Connolly followed Drew onto Mitchell Street and
stated in the Incident Report and his deposition that he paced Drew’s rate of speed at 22
miles per hour, that the posted speed limit on Mitchell is 30 miles per hour, and the average
flow of traffic is probably 40 miles per hour. (Incident Report at 1; Connolly Dep. at 25:4–8.)
Connolly claims in the Incident Report that Drew then “suddenly” turned left on Allen
2

Street without signaling and “cut the corner very sharply crossing into the eastbound
lane/double yellow line of Allen by several feet.” (Incident Report at 1.) He further claims
that Drew turned right onto Smith Street and as the truck turned “its rear passenger side tire
traveled over the corner/sidewalk, by approximately 8–10 inches.” (Id.) He then “performed
a traffic stop on Smith Street.” (Id.)
Officer Connolly wrote in the Incident Report that after approaching the truck he
“detected an odor of an alcoholic beverage coming from the vehicle” and asked Drew and
Graser if they had been drinking to which Drew responded he had “one shot with dinner
then said only one beer” and Graser responded “they had [a] couple of drinks a while ago
with dinner.” (Id.) During his deposition, Connolly similarly testified that Drew at one
point told him that he had a shot and at another point told Connolly he had a beer.
(Connolly Dep. 48:6–14.) Drew testified, however, that he told Officer Connolly that he had
“a sip of beer” and did not tell Connolly that he had a shot. (Drew Dep. at 52:14–53:2.)
Connolly continues in the Incident Report that he asked Drew for his license and
registration and that Drew handed him his license and two registrations along with his
emissions forms. (Incident Report at 1.) Drew testified that he handed Connolly “the
paperwork” from his glove compartment, which included the bill of sale, and that Connolly
“threw it back” at him and said “[t]his paperwork is incorrect.” (Drew Dep. at 54:3–20.)
Connolly denies having thrown the paperwork at Drew. (Connolly Dep. at 44:2–6.) Officer
Connolly states in the Incident Report that when he asked Drew questions, Graser “talked
over him and answered all the questions.” (Incident Report at 1.) Connolly then asked
Drew to exit the truck and Drew complied. (Incident Report at 1; Drew Dep. at 54:24–55:3;
Connolly Dep. at 52:10–12.) Connolly testified that he observed signs that Drew may have
3

been impaired and that he informed Drew that he “was concerned about him driving while
impaired.” (Connolly Dep. 49:6–52:19.) Plaintiff’s Expert Peter Plante, a police officer for
25 years, states in an affidavit that Connolly “did not have sufficient grounds to ask plaintiff
to exit the motor vehicle” because Connolly never states that Drew had glassy or bloodshot
eyes, flushed face, slowed or mumbled speech or an inability to understand instructions, or
a combative disposition. (Plante Aff., Ex. 3 to Pl.’s Rule 56(a)2 Stmt. ¶ 7.)
B.

Field Sobriety Tests

After Drew stepped out of the truck, Officer Connolly asked him if he would submit
to field sobriety tests and Drew consented. (Incident Report at 1; Connolly Dep. at
52:20–24.) Drew testified that Connolly first asked him to touch his nose, however Officer
Connolly testified that he did not, at any time, ask Drew to touch his nose. (Drew Dep. at
59:3–7; Connolly Dep. at 53:7–9.) Officer Connolly testified that the first field sobriety test
that he conducted was the horizontal gaze Nystagmus test. (Connolly Dep. at 53:3–6.) In
conducting that test, Connolly asked Drew he if wore contacts or glasses, to which Drew
responded that he did not; Connolly then asked Drew to follow with his eyes a pen that
Connolly held 10 to 12 inches from Drew’s face and moved from Drew’s left to his right.
(Incident Report at 1–2; Connolly Dep. at 53:3–54:7; Drew Dep. at 59:7–17.) Connolly wrote
in the Incident Report that Drew moved his head to follow the pen, once moved his head in
the opposite direction of the pen, did not have “smooth pursuit” in his eyes, and had
“distinct jerkiness at maximum deviation, in his left eye.” (Incident Report at 2.) Connolly
explained at his deposition that are six clues that officers look for in conducting the test and
“it is the failing point” if they observe four; Drew displayed three of the clues. (Connolly
Dep. at 53:12–57:25.)
4

Defendants’ Expert Danny West testified at his deposition that if an officer observes
four or more clues then there is a 77% probability that an individual’s blood alcohol content
(“BAC”) is above the legal limit of 0.08%. (West Dep., Ex. M to Defs.’ Rule 56(a)1 Stmt. at
82:10–18.) Plante states in his affidavit that according to Connolly’s deposition testimony,
Connolly did not properly administer the horizontal Nystagmus test and despite Connolly’s
incorrect instructions, Drew actually passed the test. (Plante Aff. ¶ 8.) On the arrest form,
Connolly did not check off any of the boxes that correspond to the horizontal Nystagmus
test. (Arrest Form, Ex. 4 to Pl.’s 56(a)2 Stmt. at 1.)
Officer Connolly then conducted the “walk–and–turn” test by asking Drew to keep
his hands at his sides and stand with his right foot in front of his left foot, take a series of
nine small steps heel to toe, and then turn around and return using the same series of steps.
(Incident Report at 2; Connolly Dep. at 65:17–68:18.) According to Connolly, Drew was
unable to keep his right foot straight while standing in the starting position, was unable to
properly count his steps, missed the heel–to–toe three times, raised his arms once to regain
balance, and returned without turning around by walking backwards without touching heel
to toe. (Incident Report at 2; Connolly Dep. at 67:5–69:17.) Connolly testified that this
meant that Drew “failed the test.” (Connolly Dep. at 69:18–19.) Plante states in his affidavit,
however, that “Officer Connolly incorrectly conducted the walk and turn test and incorrectly
provided the plaintiff with instructions as to how to walk and turn.”
Officer Connolly then proceeded to the next test: the “one–leg–stand.” (Connolly
Dep. at 71:19–72:1.) Connolly testified that he checked to make sure that Drew did not have
any disabilities and then asked Drew to stand with his hands at his sides and raise one foot
approximately six inches in the air while keeping his legs straight and toe pointed, looking
5

at his toe, and counting out loud until Connolly asked him to stop. (Id. at 72:2–20.)
According to Connolly, Drew swayed while he gave the instructions and although he
counted properly, he could not raise his leg without bending it and had to put his foot down
for balance. (Id. at 72:23–74:11; Incident Report at 2.) Drew demonstrated three of four
clues that would suggest impairment, and because two demonstrated failure, he failed this
test. (Connolly Dep. at 74:12–75:21.)
Despite Connolly’s account of the sobriety tests, Drew maintains that he passed all
three tests he was given. (Drew Aff. ¶ 7.)
C.

Drew’s Arrest

Officer Connolly reported that “[b]ased on the results of the Field Sobriety Tests, the
smell of alcoholic beverage, [Drew’s] admitting to consuming alcohol just prior to driving
on a public road, [and] his erratic/improper driving” he believed he had probable cause to
arrest Drew for driving while under the influence of alcohol. (Incident Report at 2.) He
continued that “Drew was handcuffed behind his back, using two pairs of handcuffs for his
comfort” and “was transported to the Groton City Police Department, where he was
processed.” (Id.)
Drew says that after Connolly handcuffed him “he hit the cuffs and it caused my
wrists to swell and get black–and–blue.” (Drew Dep. at 61:11–12.) He stated that Connolly
then asked him if he did drugs, if he wanted to kill himself, and if he wanted to kill Connolly.
(Id. at 55:9–23.) Drew further testified that the officer that then drove him to the Police
Department asked him if he was drinking, if he was on drugs, if he wanted to kill himself,
and if he was hearing voices in his head, and Drew “just stopped talking” in response. (Id.

6

at 70:12–71:23.) He claims that the officers were “trying to provoke [him] . . . [b]y asking
stupid questions.” (Id. at 71:4–6.)
D.

Further Testing

At the Police Department, Officer Connolly asked Drew if he would submit to a
Breathalyzer test, and Drew consented. (Incident Report at 3; Drew Dep. at 74:15–22;
Connolly Dep. at 91:12–16.) The result of the Breathalyzer test was 0.000% BAC. (Incident
Report at 3; Connolly Dep. at 92:16–17.) Connolly then asked Drew to undergo a urine test
and Drew agreed. (Connolly Dep. at 94:19–23.) The lab report for Drew’s urine test issued
on September 5, 2008 and revealed that no drugs or metabolites were detected in Drew’s
urine sample. (Lab Report, Ex. E to Defs.’ 56(a)1 Stmt. at 1.)
E.

Booking/Release

Defendant Bruno L. Giulini, Groton Chief of Police, testified during his October 4,
2010 deposition that because Drew was arrested for drunk driving, the Police seized his
driver’s license. (Giulini Dep., Ex. F to Defs.’ Rule 56(a)1 Stmt. at 36:24–37:10.) Drew did
not receive his license back until five days later, on August 1, 2008, although Giulini testified
that he could have retrieved it twenty–four hours after his arrest. (Id. at 38:16–23.)
According to Giulini, Drew was not advised by any document that he could have picked up
his license twenty–four hours later. (Id. at 38:24–39:2.) Giulini also testified during his
deposition that under the City of Groton’s policies and procedures, a twenty–four–hour
seizure of an individual’s driver’s license shall only occur if that person has a BAC of .1 or
higher or that person refuses chemical tests, neither of which applied to Drew. (Id. at
37:11–38:2.)

7

Drew was booked at approximately 10:50 p.m., placed in a holding cell, and released
on a $500 non–surety bond at 12:10 a.m. on July 27, 2008. (Drew Dep. at 77:19–23; Arrest
Report, Ex. L to Defs.’ Rule 56(a)1 Stmt.)
II.

Discussion1
A.

Reasonable Suspicion to Stop Drew’s Vehicle

Defendants argue that they are entitled to summary judgment on Drew’s claim in
Count One of the Second Amended Complaint that Officer Connolly violated his Fourth
Amendment rights by forcing Drew to exit his vehicle and submit to sobriety tests without
reasonable suspicion because it is undisputed, based on the totality of the circumstances, that
Connolly had reasonable suspicion to both stop Drew’s vehicle and to test his sobriety.
(Mem. Supp. [Doc. # 62–1] at 16–18.)
“The temporary detention of an individual during a traffic stop is subject to
limitation under the Fourth Amendment as a ‘seizure’ of the person.” Holeman v. City of
New London, 425 F.3d 184, 189 (2d Cir. 2005) (citing Whren v. United States, 517 U.S. 806,
809–10 (1996)). Under the Fourth Amendment, a law enforcement officer may “stop and
briefly detain a person for investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow,

1

“Summary judgment is appropriate where, construing all evidence in the light most
favorable to the non-moving party,” Pabon v. Wright, 459 F.3d 241, 247 (2d Cir. 2006), “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law,” Fed. R. Civ. P. 56(c)(2). An issue of fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is “genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Unsupported allegations do not create a material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
8

490 U.S. 1, 7 (1989). In making a determination on reasonable suspicion, the Court must
look at the “totality of the circumstances of each case to see whether the detaining officer has
a particularized and objective basis for suspecting legal wrongdoing,” drawing on his or her
“own experience and specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person.”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotations and citations omitted).
Defendants argue that “based on his personal observations of the plaintiff failing to
use his turn signal, crossing the double yellow line, and driving up onto the curb when
making a turn, Officer Connolly had reasonable suspicion to stop the plaintiff’s vehicle.”
However, even though Officer Connolly included these facts in his Incident Report and
testified to each of those observations in his deposition, these facts are not undisputed.
Drew’s account of the traffic stop refutes the observations that Defendants use as a basis for
reasonable suspicion. Drew and Graser both state in their affidavits that at no point did the
rear wheel of Drew’s truck drive over the curb and that Drew used his signals for every turn
he made. (Drew Aff. ¶¶ 5, 9; Graser Aff., Ex. 2 to Pl.’s Rule 56(a)2 Stmt. ¶ 4.) Drew similarly
avers that at no point did his truck cross over a double yellow line. (Drew Aff. ¶ 5.)
This leaves as the only undisputed fact upon which Connolly based his decision to
stop Drew’s vehicle that Drew was driving approximately twenty–two miles per hour for
some period of time in a thirty mile–per–hour zone. Defendants argue in their Reply that
Drew’s slow rate of speed alone was sufficient grounds for reasonable suspicion (Reply
[Doc. # 68] at 4–5), however, the cases upon which they rely do not support this proposition.
In State v. Jensen, 109 Conn. App. 617, 625–26 (2008), the Connecticut Appellate Court held
that where police officers observed the defendant “driving very slowly and even stopping
9

momentarily at a green traffic signal” in corroboration of a report that an individual driving
that same make and model vehicle was driving erratically, the officers had reasonable
suspicion to stop the defendant. In State v. Franco, No. MV–503054, 1991 WL 112359, *2
(Conn. Super. Ct. June 11, 1991), “[t]he defendant's slow speed and mode of operation of
his vehicle, including braking at relatively easy turns and being overly cautious, led Sergeant
Mrozek, based on training and experience, to suspect that the defendant might be operating
under the influence.” In each of these cases, the arresting officers based their suspicion of
wrongdoing on more than just driving several miles per hour below the speed limit; they
based their reasonable inferences on other observations of erratic or overly cautious driving.
Based on the only undisputed fact—Drew’s slow rate of speed—Defendants do not
establish that they are entitled to judgment as a matter of law on the issue of whether
Connolly had reasonable suspicion to stop Drew’s vehicle. If a jury credited Connolly’s
account of Drew’s driving, there may have been reasonable suspicion to stop Drew, but if a
jury credited Drew’s account, there would not have been. These conflicting accounts of the
facts that would be taken into account in the reasonable suspicion analysis make summary
judgment inappropriate on Drew’s claim that Connolly lacked reasonable suspicion to stop
his vehicle. See Clynch v. Chapman, 285 F. Supp. 2d 213, 224–25 (D. Conn. 2003).
The conflicting accounts of Drew’s conduct following the traffic stop likewise
preclude summary judgment on the issue of whether Connolly had reasonable suspicion to
order Drew to exit his truck. Connolly claims that he smelled alcohol from Drew’s truck,
that Drew handed him the wrong paperwork, and that Drew told Connnolly that he drank
one beer or one shot earlier in the night. Drew, however, claims that he handed Connolly

10

the correct paperwork and that he told Connolly that he had only had one sip of beer that
night.
Because a reasonable jury could return a verdict for Drew based on his and Graser’s
account of the events leading up to Connolly’s decision to stop Drew’s vehicle and ask him
to exit and submit to sobriety tests, Defendants’ motion for summary judgment on Drew’s
claim that Connolly violated his Fourth Amendment rights by stopping his vehicle and
forcing him to submit to sobriety tests is denied.
B.

Probable Cause for Drew’s Arrest

Defendants argue that they are entitled to summary judgment on Drew’s claim in
Count One of the Second Amended Complaint that Officer Connolly violated his Fourth
Amendment rights by placing him under arrest without probable cause because, based on
the undisputed facts, Drew’s performance on the field sobriety tests in connection with the
circumstances of the traffic stop were sufficient to establish probable cause for the arrest.
(Mem. Supp. at 20–22.)
In order to succeed on a false arrest claim, a plaintiff must establish that “(1) the
defendant intentionally arrested him or had him arrested; (2) the plaintiff was aware of the
arrest; (3) there was no consent to the arrest; and (4) the arrest was not supported by
probable cause.” Shattuck v. Town of Stratford, 233 F. Supp. 2d 301, 306 (D. Conn. 2002).
“The existence of probable cause is a complete defense to a false arrest claim.” Weinstock v.
Wilk, 296 F. Supp. 2d 241, 247 (D. Conn. 2003). Probable cause to arrest exists where an
Officer has “knowledge or reasonably trustworthy information sufficient to warrant a person
of reasonable caution in the belief that an offense has been committed by the person to be
arrested.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (citations omitted).
11

“Whether probable cause existed is a question that may be resolved as a matter of law on a
motion for summary judgment if there is no dispute with regard to the pertinent events and
knowledge of the officer.” Wilk, 296 F. Supp. 2d at 246 (citing Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 2003)).
As with the facts upon which Connolly based his decision to stop Drew’s vehicle,
there are disputes “with respect to the pertinent events and knowledge” of Officer Connolly
in concluding that he had probable cause to arrest Drew for driving while under the
influence of alcohol. Officer Connolly stated in his Incident Report that he believed he had
probable cause to arrest Drew “[b]ased on the results of the Field Sobriety Tests, the smell
of alcoholic beverage, [Drew’s] admitting to consuming alcohol just prior to driving on a
public road, [and] his erratic/improper driving.” (Incident Report at 2.) He asserts that he
detected the scent of alcohol in Drew’s truck and that Drew at one point said he had a shot
with dinner and later said that he had one beer. (Id. at 1.) Drew, however, claims that he
only told Connolly that he had one sip of beer with dinner. (Drew Dep. at 52:14–53:2.)
Connolly did not state in his Incident Report or during his deposition that Drew had glassy
or bloodshot eyes, a flushed face, slurred speech, an inability to understand instructions, or
a combative disposition. (See Plante Aff. ¶ 7.) As discussed above, Drew and Connolly offer
contradictory accounts of Drew’s driving and whether or not it was erratic and/or improper.
Officer Connolly conducted field sobriety tests and stated that although Drew was
not at “the failing point” for the horizontal gaze Nystagmus test, he failed the walk–and–turn
test because he could not keep his right foot straight, could not properly count his steps or
walk heel–to–toe, raised his arms to regain balance, and did not turn around to walk back
to Connolly heel–to–toe as instructed, but instead returned by walking backwards.
12

(Incident Report at 2; Connolly Dep. at 53:6–69:19.) Drew maintains that during the
walk–and–turn test, he “was asked to walk forward and backwards which I did.” (Drew Aff.
¶ 7.) Connolly also stated that Drew failed the one–leg–stand test because he swayed while
standing still, could not raise his leg without bending it, and had to put his foot down for
balance. (Incident Report at 2; Connolly Dep. at 72:23–74:11.) Drew’s expert, Peter Plante,
maintains that Officer Connolly did not properly administer the horizontal Nystagmus test,
“incorrectly conducted the walk and turn test and incorrectly provided the plaintiff with
instructions as to how to walk and turn,” and that “[t]he field sobriety tests performed were
not performed adequately.” (Plante Aff. ¶¶ 8–10.)
Between Connolly’s and Drew’s versions of what occurred after the traffic stop and
during the field sobriety tests, and taking into account Plante’s depiction of the field tests as
incorrectly administered, there exists a dispute over whether Drew drove erratically, whether
and to what extent Drew admitted recent consumption of alcohol, and whether Drew
performed inadequately on the field sobriety tests. That Connolly detected the scent of
alcohol in Drew’s truck is undisputed, as is the fact that Connolly did not believe that Drew
had glassy or bloodshot eyes, a flushed face, slurred speech, an inability to understand
instructions, or a combative disposition. The extent of the disputed facts regarding Drew’s
conduct and Connolly’s observations make summary judgment on Drew’s false arrest claim
inappropriate. Compare Wilk, 296 F. Supp. 2d at 247 (summary judgment appropriate
because there are no disputed issues of material fact as to the totality of the circumstances
as available to the arresting officer at the time of the arrest); Clynch, 285 F. Supp. 2d at 226
(summary judgment appropriate because “no reasonable jury could find lack of probable
cause where it is undisputed that the individual demonstrates to the arresting officer an
13

inability to perform moving field sobriety tests, smells of alcohol, slurs his speech, and
admits to recent consumption of alcohol”).
Here, a reasonable jury could credit Drew’s account of the facts surrounding the
traffic stop and his performance on the sobriety tests, as well as his expert’s criticism of the
manner in which Connolly conducted those tests. A jury could therefore find either that
Drew did not fail the field sobriety tests or that they were incorrectly administered. In light
of this factual dispute as to the pertinent events and knowledge of Officer Connolly, the
question of whether probable cause existed to arrest Drew cannot be resolved as a matter of
law on summary judgment. See Wilk, 296 F. Supp. 2d at 246. Defendants’ motion for
summary judgment on Drew’s claim that he was arrested without probable cause is therefore
denied.
C.

License Seizure/Due Process

Defendants argue that they are entitled to summary judgment in their favor on
Drew’s claim that he was “deprived of his right to operate a motor vehicle when the police
unlawfully seized his operator’s license” because Drew’s license was never suspended but
merely held for twenty–four hours, he had an adequate post–deprivation remedy in that he
was entitled to a hearing, and it was reasonable for Officer Connolly to hold Drew’s license
for twenty–four hours because he suspected that Drew might be under the influence of
something other than alcohol.2

2

Defendants, in moving for summary judgment on this issue, stylize Drew’s claim
that he was deprived of his right to drive (Am. Compl. ¶ 13) as a due process claim.
Although Drew complains that he was deprived his right to drive “as a further result” of the
Fourth and Fourteenth Amendment violations committed by Connolly in stopping him
without reasonable suspicion and arresting him without probable cause, he does not
specifically stylize his claim that he was deprived of his right to drive as a due process claim
14

“[D]ue process ordinarily requires an opportunity for ‘some kind of hearing’ prior
to the deprivation of a significant property interest.” Hodel v. Virginia Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 299 (1981). Defendants argue that even if Connolly’s
seizure of his license violated Conn. Gen. Stat. § 14-227b, as Chief Giulini suggested in his
deposition (Giulini Dep. at 36:24–38:23), this did not amount to a violation of due process
because a deprivation of liberty or property through the random or unauthorized conduct
of a state employee does not violate due process so long as the state provides an adequate
post–deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 534–35 (1984). It is not clear
from these facts, however, that Drew was provided with an adequate post–deprivation
remedy. Giulini testified that Drew was not informed that he could retrieve his license
twenty–four hours later, and that he did not get his license back until five days after the
arrest. (Giulini Dep. at 38:16–39:23.) Defendants point to no other remedy available to
Drew after Connolly seized his license.
The Connecticut Appellate Court in State v. Washburn, 34 Conn. App. 557, 565–66
(1994), held that Conn. Gen. Stat. § 14-227b, in providing for a 24–hour license suspension
without a pre–suspension hearing, does not violate federal due process rights insofar as the
right to operate a motor vehicle is not significantly infringed by a 24–hour suspension and
the risk of erroneous deprivation is low considering the safeguards in § 14-277b(c),
including that the person whose license is suspended “first be arrested and submit to and fail
or refuse to submit to a blood alcohol test.” Here, however, the safeguards in § 14-277b(c)

in his Second Amended Complaint. Nonetheless, Drew’s counsel clarified at oral argument
that this claim is brought under the procedural due process guarantee of the Fourteenth
Amendment.
15

were not complied with; Drew’s license was suspended even though he neither refused nor
failed a blood alcohol test or urinalysis. Because the undisputed facts do not demonstrate
that Drew was provided with an adequate post–deprivation remedy and also show that
Officer Connolly failed to comply with statutory procedures that protect a drunk–driving
suspect from erroneous deprivation, Defendants cannot show that as a matter of law they
did not violate Drew’s due process rights by seizing his license for a total of five days.
Defendants’ motion for summary judgment in their favor on Drew’s license seizure claim
is therefore denied.
D.

Monell Liability

Defendants argue that they are entitled to summary judgment on Drew’s claims
against the City because Drew cannot establish a constitutional violation by the individual
defendants3 and because Drew cannot present any evidence of a City policy that resulted in
the alleged constitutional violations. (Mem. Supp. at 26–20.)
A municipality may be liable under Section 1983 “for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body's officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
An official municipal policy or custom can be established by showing a deliberate policy of
failing to train or supervise officers where that failure “amounts to deliberate indifference

3

Without a constitutional violation by one of its officers, a municipality cannot be
held liable under Monell, City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986), however, as
discussed above, Defendants are not entitled to summary judgment on Drew’s claims against
Officer Connolly. Accordingly, summary judgment is not appropriate on Monell liability
based on an absence of a constitutional violation by an individual officer.
16

to the rights of persons with whom the police come into contact.” Anthony v. City of New
York, 339 F.3d 129, 140 (2d Cir. 2003) (citing City of Canton v. Harris, 489 U.S. 378, 388–89
(1989)). Where there is no written directive or regulation that establishes the alleged policy
of failing to train, it “may be inferred from the informal acts or omissions of supervisory
municipal officials” where those acts are so severe as to “constitute ‘gross negligence’ or
‘deliberate indifference’ to a plaintiff’s rights.” Sarus v. Rotundo, 831 F.2d 397, 400–01 (2d
Cir. 1987). A plaintiff must accordingly show:
(1) that ‘a policymaker of the municipality knows to a moral certainty that
its employees will confront a given situation’; (2) that ‘the situation either
presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of employees
mishandling the situation’; and (3) that ‘the wrong choice by the employee
will frequently cause the deprivation of a citizen's constitutional rights.’
Nicholson v. Scoppetta, 344 F.3d 154, 166–67 (2d Cir. 2003) (quoting Young v. County of
Fulton, 160 F.3d 899, 904–04 (2d Cir. 1998).
In support of his failure–to–train claim,4 Drew relies entirely on the deposition
testimony of Chief Giulini. Chief Giulini testified that the police department did not have
authority to seize Drew’s license and that he could see “where there is a need to incorporate
more steps into a policy and procedure on operating under the influence” in that the
department needed to do a better job articulating facts and circumstances contained in the
reports prepared after an arrest. (Giulini Dep. at 38:11–43:1.) Giulini’s concern with respect
to the seizure of Drew’s license and the need to improve reporting cannot, however, support

4

Drew’s counsel clarified at oral argument that his Monell claim against the City
concerned only his claim regarding the seizure of his driver’s license in violation of his due
process rights.
17

an inference that the Groton Police Department failed to adequately train its Officers with
respect to under what circumstances they can suspend a driver’s license and what procedures
they must follow. Giulini’s after–the–fact conclusion that Connolly was wrong in seizing
Drew’s license does not bear on whether supervisory City officials were deliberately
indifferent to the rights of those suspected of driving under the influence. Neither Giulini’s
acknowledgment of Connolly’s error nor his desire to see improved reporting procedures
demonstrate or suggest that he knew that officers would be confronted with difficult choices
in deciding whether or not to suspend a driver’s license for 24 hours and that a wrong choice
by those officers would frequently cause the deprivation of due process rights. See Nicholson,
344 F.3d at 166–67.
Despite the evidence in this case that Connolly may have made the wrong decision
in electing to suspend Drew’s license, Drew does not point to any fact in the record that
suggests that this is a difficult choice that officers frequently face or even that the City
officials regularly fail to train officers on the suspension criteria in Conn. Gen. Stat. § 14277b. Giulini’s admission with respect to the need to incorporate more steps into the City’s
policy and procedure bears only on the department’s need for more accurate reporting after
arrests, not on the need to make more accurate decision with respect to license suspension.
Because the undisputed facts, construed in the light most favorable to Drew, demonstrate
that he does not have evidence to support a viable failure–to–train claim against the City,
Defendants motion for summary judgment with respect to this claim is granted.

18

E.

Qualified Immunity

Defendants also argue that the individual defendants are entitled to summary
judgment under the doctrine of qualified immunity because Officer Connolly’s actions were
objectively reasonable.
“A police officer is entitled to qualified immunity shielding him or her from a claim
for damages for false arrest where (1) it was objectively reasonable for the officer to believe
there was probable cause to make the arrest, or (2) reasonably competent police officers
could disagree as to whether there was probable cause to arrest.” Ricciuti v. New York City
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). “[O]n summary judgment, where all facts
must be viewed in the light most favorable to the non-moving party, for the purpose of
qualified immunity and arguable probable cause, police officers are entitled to draw
reasonable inferences from the facts they possess at the time of a seizure based upon their
own experiences.” Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir. 2001). With respect to
Drew’s arrest, the facts as viewed in the light most favorable to Drew, demonstrate that it
was not objectively reasonable for Connolly to believe that there was probable cause to arrest
Drew for driving while under the influence, as discussed above. Because of the dispute as
to what the facts available to Connolly at the time of the traffic stop and arrest actually were,
Defendants motion for summary judgment in favor of Officer Connolly under the doctrine
of qualified immunity is denied.

19

III.

Conclusion
For the reasons stated above, Defendants Motion for Summary Judgment [Doc. # 62]

is GRANTED in part and DENIED in part. Plaintiff’s claims against the City of Groton are
dismissed. All other claims remain for adjudication.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 21st day of July, 2011.

20