Berg v. Gallo et al

Filing 71

ORDER. For the foregoing reasons, Defendant Sorbo's 48 Motion for Summary Judgment is GRANTED IN PART, and DENIED IN PART. Signed by Judge Michael P. Shea on 3/19/2014. (Pomeroy, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ERICA BERG,
Plaintiff,
v.
MICHAEL SORBO,
Defendant.

No. 3:12-cv-00228 (MPS)

MEMORANDUM OF DECISION
In September 2009, Town of East Haven Police Officer Michael Sorbo arrested Erica
Berg for “Interfering with an Officer,” a misdemeanor offense, due in part to her interaction with
a tow truck driver whom Officer Sorbo had summoned to a beach parking lot to tow illegally
parked cars. In this civil rights action brought by Ms. Berg against Officer Sorbo, I must decide
whether the undisputed facts show that arguable probable cause supported this arrest. Because
the few undisputed facts show only that Officer Sorbo believed that Ms. Berg had asked the tow
truck driver to wait until her supervisor arrived before continuing to carry out Officer Sorbo‟s
towing orders, and because more is required to violate the “interfering” statute, a trial is
necessary to determine whether Officer Sorbo had arguable probable cause to arrest Ms. Berg. I
therefore deny Officer Sorbo‟s motion for summary judgment (dkt. # 46), except as to the
conspiracy claim, which Ms. Berg has failed to support with admissible evidence.
I.

Background
Ms. Berg brings the following causes of action against Officer Sorbo: claims under 42

U.S.C. § 1983 for false arrest and malicious prosecution in violation of the Fourth Amendment
(Am. Compl., ¶¶ 2, 39), retaliation for exercising rights guaranteed by the First Amendment, and
denial of equal protection of the laws in violation of the Fourteenth Amendment (id., ¶¶ 2, 15,
35, 40, 42); claims under Connecticut state common law for false imprisonment, false arrest,
malicious prosecution, defamation, and intentional infliction of emotional distress (“IIED”) (id.,

¶¶ 2, 43-45); and a claim alleging that Officer Sorbo “conspired” against her with other
individuals who were previously Officer Sorbo‟s co-defendants (id., ¶¶ 1, 15, 33).1
Officer Sorbo‟s liability as to virtually all of the claims turns on whether he had probable
cause to arrest Ms. Berg for violation of Conn. Gen. Stat. § 53a-167a and whether he is entitled
to qualified immunity with regard to his probable cause determination.
II.

Relevant Facts
Except as otherwise noted, the record includes the following undisputed facts. On July

19, 2009, Officer Sorbo was assigned to beach patrol duty.

This assignment included

responsibility for managing a public parking lot located near the beach and next to a parking lot
for the Sandpiper restaurant. Due to limited parking availability, cars began to park in the public
parking lot in a haphazard manner, eventually blocking the entrance and exit to the lot. Citizens
approached Officer Sorbo to complain about their cars being blocked and to express concern
that, in order to exit, some cars were driving over an adjacent playground and sidewalk where
children were playing.
After assessing the situation, Officer Sorbo determined that a public safety issue existed
that needed to be addressed immediately. He ticketed six vehicles that were blocking the exits
and called the East Haven police station to request that tow trucks be ordered to remove the six
ticketed vehicles. Multiple tow trucks subsequently arrived at the parking lot and began towing
the vehicles.
While the towing was in progress, Ms. Berg and her boss, the then mayor of East Haven,
April Capone Almon, drove into the public parking lot in Ms. Berg‟s car. They had made a

1

After oral argument on March 11, 2014, the Court granted summary judgment to Defendants Miller, Gallo, and
Maturo for, among other things, lack of personal involvement in the alleged deprivation of Ms. Berg‟s rights, and to
the Town of East Haven because Ms. Berg had failed to show a municipal custom or policy sufficient to prove a
Monell claim. With Ms. Berg‟s consent, her claims against the John Doe officers were dismissed.

2

spontaneous decision to dine at the Sandpiper. At this time, Ms. Berg was employed as a
“confidential assistant in the office of the mayor.” When the two women arrived at the public
parking lot, they saw a scene that Ms. Berg described as “chaotic.” Citizens who were in the
parking lot and distressed that their vehicles were being towed spoke with Ms. Berg and Mayor
Capone Almon.
Ms. Berg has since agreed that the vehicles obstructing the exit needed to be moved, but
she disagreed with the means Officer Sorbo employed to accomplish this objective. After
speaking with the families, Ms. Berg approached one of the tow truck drivers, John Conway, and
had a brief conversation with him about the vehicle he was towing.

The content of this

conversation is in dispute. According to Officer Sorbo, who did not hear the conversation but
later interviewed Mr. Conway about it, Ms. Berg asked Mr. Conway not to leave with the vehicle
he had in tow because the mayor was on her way. According to Mr. Conway, who submitted an
affidavit in support of Officer Sorbo‟s motion for summary judgment, Ms. Berg asked Mr.
Conway to “drop” the vehicle he was towing and then instructed him not to leave the parking lot
until the mayor arrived. According to Ms. Berg, she asked Mr. Conway if it would be possible
for him to “drop” the vehicle if the vehicle‟s owners paid the “drop fee,” and did not make any
mention of the mayor.
Shortly after the conversation between Ms. Berg and Mr. Conway, Mayor Capone Almon
spoke with Mr. Conway, who told her that he felt obligated to follow Officer Sorbo‟s
instructions to complete the towing of the vehicle. The mayor asked to talk with Mr. Conway‟s
supervisor, who, after speaking with the mayor, instructed Mr. Conway to drop the vehicle that
he was towing and leave the parking lot. Mr. Conway complied with these instructions and
departed.

3

Officer Sorbo claims that he also observed Ms. Berg removing parking tickets from the
illegally parked vehicles, an act Ms. Berg denies. According to Officer Sorbo, he also observed
Ms. Berg take a ticket from a woman after a brief conversation on the beach that took place after
the towed vehicles had been returned to their owners. Ms. Berg disputes this version of events;
instead, she recalls the woman tearing up the ticket and throwing it in her face.
On July 22, 2009, Officer Sorbo prepared a case incident report about the events that took
place in the parking lot. The report included references to his interview of Mr. Conway and a
second tow truck driver. Over six weeks later, Officer Sorbo prepared a five-page affidavit in
support of an arrest warrant application for the arrest of Ms. Berg and Mayor Capone Almon for
“interfering with an officer” in violation of Conn. Gen. Stat. § 53a-167a. This application was
signed by State‟s Attorney Michael Dearington on September 3, 2009, and granted by Superior
Court Judge Joseph Licarai, Jr. on September 4, 2009. Ms. Berg and Mayor Capone Almon
were arrested on the basis of this arrest warrant application. Ultimately, the State did not pursue
the charges against Ms. Berg, although the circumstances in which the charges were dropped are
not clear from the summary judgment record.
III.

Relevant Legal Principles
A. Section 53a-167a
Officer Sorbo arrested Ms. Berg for committing a misdemeanor in violation of Conn.

Gen. Stat. § 53a-167a, which states that “[a] person is guilty of interfering with an officer when
such person obstructs, resists, hinders or endangers any peace officer . . . in the performance of
such peace officer‟s . . . duties.” The statute “prohibits any action – whether verbal or physical –
that is intended to meddle in or hamper the activities of the police in the performance of their
duties.” White v. Wortz, 66 F. Supp. 2d 331, 333 (D. Conn. 1999) (citing State v. Williams, 205

4

Conn. 456, 471 (1987)); see also State v. Williams, 110 Conn. App. 778, 794 (2008) (“The
language of § 53a-167a is intended to be broad. By using those words it is apparent that the
legislature intended § 53a-167a to prohibit any act which would amount to meddling in or
hampering the activities of the police in their performance of their duties.”).
Not every comment or question in response to a police officer‟s order, however, rises to
the level of “meddling” or “hampering.” Although the statute “cover[s] some acts of verbal
resistance as well as acts of physical resistance,” “[t]he statute‟s requirement of intent limits its
application to verbal conduct intended to interfere with a police officer and excludes situations in
which a defendant merely questions a police officer‟s authority or protests his or her action.”
Williams, 205 Conn. at 471-72. “To avoid the risk of constitutional infirmity,” the Connecticut
Supreme Court in Williams “construe[d] § 53a-167a to proscribe only physical conduct and
fighting words that by their very utterance inflict injury or tend to incite an immediate breach of
the peace.” Id. at 473 (internal quotation marks omitted); see also Ruttkamp v. De Los Reyes,
No. 10-cv-392, 2012 WL 3596064 (D. Conn. Aug. 20, 2012) (“Where the offending conduct is
merely verbal, . . . the Connecticut Supreme Court has held that it does not constitute illegal
interference to merely question a police officer‟s authority or protest his or her action.”).
More recent Connecticut Supreme Court cases, including State v. Aloi, 280 Conn. 824
(2007), and State v. Silva, 285 Conn. 447 (2008), have not disturbed these principles. Although
the court in those cases reiterated that the words used in § 53a-167a “have a broad scope” and are
meant “to prohibit any act which would amount to meddling in or hampering the activities of the
police in the performance of their duties,” Aloi, 280 Conn. at 833 (emphasis in original), the
holdings in those cases are limited to the situation where the arrested individual states a refusal to
show identification in violation of a police officer‟s direct command. Id. at 841 n.22 (“Our

5

holding today is limited to a determination that a refusal to provide identifying information to a
police officer in connection with a legitimate Terry stop may be sufficient to constitution a
violation of § 53a-167a. Although a refusal to comply with certain other types of lawful police
commands or orders may provide a basis for prosecution under § 53a-167a, . . . for the purposes
of this opinion we need not consider any factual scenario other than the scenario presented by the
lawful Terry stop in the present case.”); Silva, 285 Conn. at 455-56 (finding that Aloi controlled
where the defendant refused to supply police officers with identifying information and vehicle
registration, swore at the police officers, was loud and belligerent, and stamped her feet).
Connecticut‟s longstanding rule – one the Williams court drew from the principle of
constitutional avoidance – thus remains that, apart from disobedience to a direct police
command, § 53a-167a proscribes “only physical conduct and fighting words,” and does not
extend merely to raising questions about a police officer‟s actions. 205 Conn. at 473. None of
the cases relied on by Officer Sorbo are to the contrary. See White, 66 F. Supp. 2d at 333
(violation of § 53a-167a where arrested individual knocked breathalyzer out of officer‟s hand
when officer attempted to determine his level of intoxication, and struggled in effort to prevent
officer from placing handcuffs on him); Williams, 110 Conn. App. at 795-96 (“The defendant‟s
providing a false name to police is verbal conduct that is equivalent to the defendant‟s refusal to
give identification to the police in Aloi, in that it hampered, or hindered, the ability of officers to
perform their duties properly [and process the defendant‟s arrest], quickly and efficiently.”).
B. Probable Cause
“Probable cause to arrest exists when the arresting officer has knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a

6

crime.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “[T]he existence of probable cause
is a complete defense to a civil rights claim alleging false arrest or malicious prosecution.”
Garcia v. Gasparri, 193 F. Supp. 2d 445, 449 (D. Conn. 2002). “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.”
Weinstock v. Wilk, 296 F. Supp. 2d 241, 246 (D. Conn. 2003).
When an individual is arrested after “the issuance of a warrant by a neutral magistrate
judge,” there is a “presumption that it was objectively reasonable for the officers to believe that
there was probable cause . . . .” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).
To overcome that presumption, the plaintiff must show that the affiant knowingly and
intentionally, or with reckless disregard for the truth, made a material false statement or omission
in his affidavit. Id. If this showing is made, and the plaintiff overcomes the presumption of
probable cause, then the court must determine whether the officer is entitled to qualified
immunity under the “corrected affidavit[] doctrine,” where the court “look[s] to the hypothetical
contents of a „corrected‟ application to determine whether a proper warrant application, based on
existing facts known to the applicant, would still have been sufficient to support arguable
probable cause to make the arrest as a matter of law.” Escalera, 361 F.3d at 743-44.
In making the qualified immunity inquiry, “a court should put aside allegedly false
material, supply any omitted information, and then determine whether the contents of the
„corrected affidavit‟ would have supported a finding of arguable probable cause.” Id. at 744.
Arguable probable exists if the officer can show that “it was objectively reasonable for the
officer to believe that probable cause existed” or “officers of reasonable competence could
disagree on whether the probable cause test was met.” Id. at 743.

7

IV.

Discussion
In this case, Officer Sorbo must establish qualified immunity under the corrected

affidavit doctrine to prevail on summary judgment. This is so because Ms. Berg has submitted
evidence that raises a disputed issue of fact as to whether Officer Sorbo knowingly or recklessly
misreported the events in the affidavit submitted in support of the application for her arrest
warrant. As noted above, in her deposition testimony, Ms. Berg disputed Officer Sorbo‟s version
of events concerning the removal of tickets and Ms. Berg‟s interaction with the woman on the
beach, among other things. In addition, there is some evidence from which a reasonable juror
could infer that Officer Sorbo harbored animus towards Mayor Capone Almon and Ms. Berg.
In July 2009, Officer Sorbo did not intend to arrest Ms. Berg or the mayor. (Sorbo Dep.
at 34:8-13.) 2 But on September 1, 2009, some six weeks after the events in the parking lot and
only days before he applied for an arrest warrant, Officer Sorbo requested permission to listen to
the East Haven Police Department dispatch audio tapes relating to the July 19, 2009 events.
Those tapes included a recorded conversation between the mayor and the dispatch officer, in
which the mayor said: “Why is Officer Sorbo towing cars? . . . I‟ll tell you and I‟ll have a talk
with the Chief, but I have fucking had it with Officer Sorbo playing cute down here at the beach,
I‟ve had it dealing with this shit on a Saturday.” (Exhibit D, Supplemental Case Incident
Report.) They also included a conversation in which Mayor Capone Almon told Officer Sorbo
“I‟m turning you into the [C]hief . . . . [T]his is political just say yes m‟am, say it.” (Id.) On
September 3, 2009, shortly after listening to these recordings, Officer Sorbo applied for an arrest
warrant for both Ms. Berg and Mayor Capone Almon. From these facts, a reasonable juror could

2

Asked when he decided to pursue an arrest warrant, Officer Sorbo testified as follows: “I went on a cruise, talked
to my daughter, told her the story, and at that time I thought I was going to do a warrant. She said, Dad, you‟ll get
more respect from the kids on the street than you did that day. I said okay, and I thought about it, and when I came .
. . back to work, I thought about it some more and decided to do a warrant.” (Sorbo Dep. at 35:1-8.)

8

infer that Officer Sorbo sought the arrest warrant out of animus towards Ms. Berg, who was the
mayor‟s assistant, and that the statements in the arrest warrant affidavit that conflict with Ms.
Berg‟s deposition testimony were not just inaccuracies, but knowing or reckless falsehoods.
Viewing the disputed facts in the light most favorable to Ms. Berg, as I must at the summary
judgment stage, I find that Ms. Berg has presented evidence that permits an inference that
Officer Sorbo acted recklessly or intentionally with regard to the truth of the statements in his
affidavit. I must therefore disregard the “allegedly false material” and “supply any omitted
information,” Escalera, 361 F.3d at 744, to determine the content of the hypothetical corrected
affidavit.
According to Officer Sorbo‟s affidavit, Ms. Berg engaged in three acts that might
conceivably violate § 53a-167a. First, Ms. Berg allegedly removed from vehicles the parking
tickets that Officer Sorbo had issued, and allegedly took tickets from individuals who had arrived
to collect their vehicles. (Aff. at 3.) Second, Officer Sorbo allegedly learned, based on an
interview with the tow truck driver, Mr. Conway (mistakenly identified as Mr. Connelly in the
affidavit), that Ms. Berg had asked the tow truck driver not to leave the parking lot with the
vehicle he had in tow because the mayor was “on her way there.” (Id. at 4.) As a result, Mr.
Conway awaited the arrival of the mayor, who then spoke with Mr. Conway‟s supervisor and
arranged for all of the vehicles to be returned to the parking lot or to the vehicles‟ owners, free of
charge. (Id.) Third, while at the police substation located on the beach, a woman allegedly
approached Officer Sorbo regarding a ticket he had issued earlier in the day. He informed her
that he could not take the ticket back without proof of residence and registration. (Id. at 5.) As
the woman walked away, Ms. Berg allegedly stopped the woman and engaged her in

9

conversation. The woman then allegedly handed the ticket to Ms. Berg, and both women left the
beach area. (Id. at 5-6.)
As noted, Ms. Berg denies the first act altogether. She testified at her deposition that she
never removed any tickets from any of the vehicles. (Berg Dep. at 54:20-24, 56:4-12.) Officer
Sorbo concedes “that there is a factual dispute between the plaintiff and Officer Sorbo as to the
accuracy of the statement in Officer Sorbo‟s affidavit that the plaintiff removed tickets from cars
on July 19, 2009 and that for purposes of ruling on a motion for summary judgment the court
must credit the plaintiff‟s version of events.” (Dkt. # 48-1, at 24.)3 Since Ms. Berg has
submitted some evidence that Officer Sorbo‟s account of the first act was false, a corrected
affidavit would exclude this act.
It would also exclude the third act. Ms. Berg testified that she did not take the ticket from
the woman on the beach. Instead, she “saw the woman yelling and yelling. . . . [T]he woman
came over to me and was yelling with the ticket -- threw the ticket, said she was going to rip the
ticket, ripped part of the ticket and went crazy . . . .” (Berg Dep. at 120:10-15.) The woman then
threw the ticket in Ms. Berg‟s face. (Id. at 53:18-22.) Officer Sorbo himself testified that “a
woman came up yelling and screaming at me because I gave her a ticket and I wouldn‟t take it
back.” (Sorbo Dep. at 28:6-9.) He also gave testimony about this incident that conflicted with
his case/incident report and affidavit, and he admitted that he wrote his description of this act
incorrectly. (See Sorbo Dep. at 37-38 (testifying that Ms. Berg took the ticket from the woman
on the beach and admitting that his written description in the affidavit that the woman handed the
ticket to Ms. Berg was incorrect).) Ms. Berg has submitted enough evidence that Officer Sorbo‟s
account of the third act was false to call for the exclusion of that act from the corrected affidavit.
3

When asked about this act during his deposition, Officer Sorbo gave conflicting testimony. (See Sorbo Dep. at
36:19-25, 37:1, 50:19-25, 51:1-4 (testifying at varying times that (1) Ms. Berg removed tickets from the vehicles; (2)
Ms. Berg just took a ticket from a BMW; and (3) he could not recall Ms. Berg taking a ticket from a vehicle).)

10

The corrected affidavit thus narrows to a focus on the second act, i.e., Ms. Berg‟s
interaction with the tow truck driver.

Although Ms. Berg disputes the version of her

conversation with the tow truck driver set forth in the affidavit, she has not submitted any
evidence that Officer Sorbo‟s report was false. Nor could she. The affidavit‟s description of the
conversation between Ms. Berg and Mr. Conway is based entirely on Officer Sorbo‟s interview
of Mr. Conway. (Aff. at 4.) Officer Sorbo did not hear the conversation. (Sorbo Dep. at 16:1018.) There is no evidence in the record that Ms. Berg has any personal knowledge of what Mr.
Conway told Officer Sorbo about the conversation that took place between her and Mr. Conway.
Because Ms. Berg has submitted no evidence that Mr. Conway did not make the statements to
Officer Sorbo that were ultimately reported in the affidavit, there is no basis to exclude the
second act from the corrected affidavit. The issue is thus whether the facts in the affidavit
relating to the second act are sufficient to support a finding of “arguable probable cause,” the
standard for establishing qualified immunity. I find that they are not.
Officer Sorbo devoted only three sentences of his five-page affidavit to a description of
Ms. Berg‟s interaction with the tow truck driver: “During this time [when tow trucks were
removing vehicles], this affiant observed a civilian town employee, Erica Berg who workers [sic]
as a secretary in the mayor‟s office, stop one (1) of the tow truck drivers, known to me as John
[Conway]. . . . Mr. [Conway] stated that he was first approached by Erica Berg, prior to the
mayor‟s arrival. She asked him not to leave the area with the vehicle that he had in tow because
the Mayor was on her way there.” (Aff. at 4-5.)
The affidavit does not elaborate on the statement that Ms. Berg “stop[ped]” a tow truck
driver. It does not indicate whether she stood in front of the tow truck‟s path, or hailed the tow
truck driver to engage in conversation, or whether the tow truck driver, who knew Ms. Berg,

11

stopped on his own when he saw her approach. (See Conway Aff at ¶ 9.) There is also some
evidence in the record – evidence of which Officer Sorbo would likely have known because it
came from the tow truck driver, whom Officer Sorbo interviewed before preparing the affidavit –
that Ms. Berg did not stop Mr. Conway, but that he was already stopped when she approached
him. (Id. ( “I started to tow a second or third car from the parking lot, and while that car was
elevated on my tow truck but before I had towed it out of the parking lot, I was approached by
Erica Berg . . . .”).)
The arrest warrant affidavit similarly does not elaborate on Ms. Berg‟s request to Mr.
Conway that he not leave the area. As noted, Officer Sorbo did not hear the conversation, and
thus, not surprisingly, the affidavit contains no information about the tone and the way in which
Ms. Berg made this request. Ms. Berg might have shouted the request or she might have asked
politely, making clear that she would not try to prevent the tow. The affidavit does not say. It is
also unclear from the affidavit whether the mayor arrived at Mr. Conway‟s truck within seconds
of Ms. Berg‟s request, or whether Mr. Conway‟s delay in leaving the parking lot as a result of
Ms. Berg‟s request stretched into minutes, or longer. 4
Officer Sorbo urges the Court to focus on the version of the Berg–Conway conversation
set forth in Mr. Conway’s affidavit, which is more detailed and more suggestive of interference.
In his affidavit, Mr. Conway states that after Ms. Berg asked him to put down the car he was
towing, he told Ms. Berg that he believed he had a legal duty to do as the police instructed him
and tow the car away, after which Ms. Berg “instructed” him not to leave the parking lot until the
mayor‟s arrival. (Conway Aff. at ¶¶ 7, 10-11.) When the mayor arrived, Mr. Conway also told
4

I do not intend any of this as criticism of Officer Sorbo. The brevity of Officer Sorbo‟s description of Ms. Berg‟s
interaction with the tow truck driver in the affidavit is understandable. Not surprisingly, the affidavit focuses on the
conduct of Mayor Capone Almon, who is not a party to this lawsuit. Also, to the extent it discusses Ms. Berg, the
affidavit devotes greater detail to the first and third acts. More generally, it will be for a jury to decide whether
Officer Sorbo did anything improper, and nothing I have said is meant to cast a shadow upon him.

12

her that he felt obligated to follow Officer Sorbo‟s order to tow the car. (Id. at ¶¶ 7, 13.) In the
arrest warrant affidavit, however, Officer Sorbo reports only a single ask by Ms. Berg, and also
reports that Mr. Conway stated that he had raised the need to fulfill Officer Sorbo‟s order only to
the mayor, and not to Ms. Berg. Because Officer Sorbo has moved for summary judgment, I am
required to resolve this discrepancy in favor of Ms. Berg, crediting the shorter, murkier version
of the conversation included in the arrest warrant affidavit.
In short, there are genuine issues of material fact as to the circumstances known to
Officer Sorbo when he wrote the affidavit, including exactly what was said between Ms. Berg
and Mr. Conway, how it was said, and the length of time Mr. Conway was delayed as a result of
his interaction with Ms. Berg. If all of these factual issues were resolved against Officer Sorbo
and all related inferences were drawn in Ms. Berg‟s favor, then the evidence would be that Ms.
Berg simply asked Mr. Conway, who was already stopped, if he would not mind holding off
towing the car for a brief period until the mayor could speak with him.5 Such conduct would not
amount to arguable probable cause to arrest Ms. Berg for violation of § 53a-167a, as that statute
has been construed by the Connecticut Supreme Court. Indeed, such innocuous conduct would
likely fall farther outside the statute than “question[ing] a police officer‟s authority or
protest[ing] his or her action,” Williams, 205 Conn. at 472.6 For these reasons, I conclude that a
reasonable jury, drawing all inferences in favor of Ms. Berg, could decide that it was objectively
unreasonable for Officer Sorbo to believe that probable cause existed, and that officers of

5

The version of the conversation offered by Ms. Berg, which Officer Sorbo would not have known when he
authored his affidavit, is even milder. She claims that she approached Mr. Conway and, in no way indicating that
she was overriding Officer Sorbo‟s instructions, asked if he could “drop” the car if the families paid the “drop fee.”
(Berg. Dep. at 59-60; 56(a)(2) at ¶ 14.)
6
Had the corrected affidavit been presented to a Superior Court judge, it is unlikely that the few sentences devoted
to Ms. Berg‟s interaction with the tow truck driver would have convinced the judge to approve the application for
Ms. Berg‟s arrest, especially when juxtaposed with the great detail with which the affidavit describes Mayor Capone
Almon‟s acts. The reviewing judge would have likely wanted to know more about the circumstances of the
conversation between Ms. Berg and Mr. Conway.

13

reasonable competence would not disagree on whether the probable cause test was met. I
therefore cannot find on summary judgment that Officer Sorbo is entitled to qualified immunity,
and I deny summary judgment as to Ms. Berg‟s § 1983 claims against Officer Sorbo for false
arrest and malicious prosecution.
Officer Sorbo‟s entire motion for summary judgment focuses on the probable cause issue.
There is no separate analysis of the state law claims or the First and Fourteenth Amendment
claims.

I must thus deny summary judgment on those claims as well.

I grant summary

judgment, however, as to Ms. Berg‟s conspiracy claim, which, under 42 U.S.C. § 1985, requires
a “[c]onspiracy to interfere with civil rights” by “two or more persons.” As explained in my
ruling following oral argument, Ms. Berg has submitted no admissible evidence that anyone
other than Officer Sorbo knowingly violated her civil rights.
V.

Conclusion
Summary judgment is granted as to Ms. Berg‟s conspiracy claim against Officer Sorbo

and denied as to all other claims against him.

IT IS SO ORDERED.

/s
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
March 19, 2014

14