Kanizaj v. Santello et al

Filing 48

Docket Entry Correction re 47 Order on Motion for Summary Judgment, replacement pdf of order attached. (Ruocco, M.) Modified on 2/6/2017 to change document type to opinion(Ruocco, M.).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEPHEN KANIZAJ,
Plaintiff,
v.
BRIANNA SANTELLO, ET AL.,
Defendants.

:
:
:
:
:
:
:
:
:

CASE NO. 3:15cv949(DFM)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff, Stephen Kanizaj, brings this civil rights
complaint against several Old Saybrook police officers1 pursuant
to 42 U.S.C. § 1983 alleging that they violated his Fourth
Amendment right to be free from unreasonable searches and
seizures.

Pending before the court is defendants’ motion for

summary judgment. (Doc. #44.)

For the reasons set forth below,

the motion is GRANTED. 2
I.

Factual Background

The following facts, drawn from the parties’ Local Rule
56(a) statements and exhibits, are undisputed.

1In

his original complaint, plaintiff named Brianna
Santello, Michael Small, John Doe, and James Doe as defendants.
(Doc. #1.) By way of his amended complaint (doc. #34),
plaintiff dismissed the action as to defendant Santello and
substituted “Patrolman Miller,” Robbert van der Horst, and James
Forte for the Doe defendants.
2This is not a recommended ruling.
On March 11, 2016, the
parties consented to the jurisdiction of a magistrate judge.
Doc. #38; see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b).

On April 15, 2014, at approximately 4:41 PM, the Old
Saybrook Police Department received a call3 from an individual
who identified himself as “James Brink.”

(Defendants’ Local

Rule 56(a)(1) Statement of Facts (“Def. SOF”), Doc. #44-2, ¶¶ 1,
4; Plaintiff’s Local Rule 56(a)(2) Statement (“Pl. SOF”), Doc.
#45-1, ¶¶ 1, 4.)

The caller stated, “I’m hearing gunshots from

across the street.”
Pl. SOF ¶ 2.)

(Audio Recording, Def. Ex. A; Def. SOF ¶ 2;

He explained, “I’m just down the street, but the

location of where the gunshots are . . . coming from is 225
Springbrook Road.”
Pl. SOF ¶ 3.)

(Audio Recording, Def. Ex. A; Def. SOF ¶ 3;

Plaintiff lives at 225 Springbrook Road.

(Def.

SOF ¶ 23; Pl. SOF ¶ 23.)
The caller continued that “this happened about two minutes
ago.

I just keep hearing gunshots and screaming, I’m just

scared right now.”

(Audio Recording, Def. Ex. A; Def. SOF ¶¶ 5,

11; Pl. SOF ¶¶ 5, 11.)

He stated that he was “looking through

the window” and could “see people with guns pointed to people’s
heads.”

(Audio Recording, Def. Ex. A; Def. SOF ¶¶ 6, 9; Pl. SOF

¶¶ 6, 9.)

Police were dispatched to the scene.

Recording, Def. Ex. A.)

(Audio

The caller reported that there were two

armed individuals wearing black ski masks and “a whole family on

3This

was not a 911 call--the call was made directly to the
Old Saybrook Police Department. (Def. SOF ¶ 1; Pl. SOF ¶ 1.)
2

the floor.”
SOF ¶ 14.)

(Audio Recording, Def. Ex. A; Def. SOF ¶ 14; Pl.
When asked if any shots had been fired, the caller

informed the dispatcher that about five shots were fired.
(Audio Recording, Def. Ex. A; Def. SOF ¶ 8; Pl. SOF ¶ 8.)

He

told the dispatcher, “I think someone’s been shot in the leg”
and that “there are only a couple alive.”

(Audio Recording,

Def. Ex. A; Def. SOF ¶¶ 16, 17; Pl. SOF ¶¶ 16, 17.)

When asked

what the people were doing, the caller answered, “they are just
lying on the floor with blood coming out.”

(Audio Recording,

Def. Ex. A; Def. SOF ¶ 18; Pl. SOF ¶ 18.)
The dispatcher informed the responding officers by radio
that the caller heard gunshots, that there were people in the
house with guns to their heads, and that the caller could hear
screaming.

(Audio Recording, Def. Ex. A; Def. SOF ¶¶ 7, 10, 12;

Pl. SOF ¶¶ 7, 10, 12.)

She relayed the caller’s report that one

to three people possibly had been shot in the leg and that he
saw blood.

(Audio Recording, Def. Ex. A; Def. SOF ¶ 19; Pl. SOF

¶ 19.)
Police arrived on Springbrook Road about 6 minutes and 20
seconds after the start of the call.
A; Def. SOF ¶ 13; Pl. SOF ¶ 13.)
tactical gear.

(Audio Recording, Def. Ex.

The officers were wearing

(Pl. Depo., Def. Ex. B, Doc. #44-4, p. 11; Def.

SOF ¶ 33; Pl. SOF ¶ 33.)

Plaintiff was standing in his kitchen
3

when his adult son alerted him that there were police officers
in their backyard.

(Pl. Depo., Pl. Ex. 1, Doc. #45-2, pp. 4-5.)

Plaintiff went to the back screen door and an officer told him
to come out of the house.

(Id. at 5.)

Plaintiff asked if he

could put on sneakers or take his socks off because it was wet
outside.4

(Id.)

socks off.

The officer responded that he could take his

(Id. at 7; Def. SOF ¶ 30; Pl. SOF ¶ 30.)

did so and came outside.

Plaintiff

(Pl. Depo., Pl. Ex. 1, Doc. #45-2, p.

5.)
Some of the officers asked plaintiff questions that “didn’t
make sense” to him.

(Id.)

One officer asked plaintiff if he

had heard a car backfiring, another asked if he had heard shots
being fired, and another asked if someone had been shot in the
front yard.

(Id. at 8.)

Plaintiff “didn’t know what was going

on,” and responded that he had not heard a car backfire or any
shots being fired.

(Id. at 5, 8.)

When asked if anyone else

was in the house, plaintiff responded that his son was inside.
(Id. at 5.)
outside.

An officer asked plaintiff to tell his son to come

(Id.)

Plaintiff’s son came outside and they stood on

the porch against the exterior wall of the house.

4It

(Id.)

was “a mild day, drizzling.” (Pl. Depo., Pl. Ex. 1, Doc.
#45-2, pp. 8, 11.)
4

An officer asked plaintiff for permission to enter the
house.

(Id.)

Plaintiff refused, telling the officer, “[y]ou

have no right to go in my home.”
anyway.

(Id.)

(Id.)

The officer entered

Another officer, defendant Small,5 pointed his

rifle at plaintiff, keeping him “covered for the safety of the
other officers.”

(Pl. Depo., Pl. Ex. 1, Doc. #45-2, pp. 5, 7;

Def. SOF ¶ 29; Pl. SOF ¶ 29.)

Plaintiff told Officer Small that

he wanted to accompany the officer.

(Id. at 6.)

told plaintiff that he had to stay outside.

Officer Small

(Id.)

later, a female officer also entered the house.

Some time

(Id.)

were the only officers who entered plaintiff’s house.

These
(Id.)

Plaintiff estimates that the officers were inside for
“[p]robably 15 minutes.”

(Id.)

During the search, the officers turned on every light and
opened every interior door--“closet doors, bedroom doors,
basement door.”
SOF ¶ 25.)

(Pl. Depo., Pl. Ex. 1, Doc. #45-2, p. 9; Pl.

The officers did not open any drawers.

Pl. Ex. 1, Doc. #45-2, p. 9.)
damage to plaintiff’s house.
p. 9; Pl. SOF ¶ 25.)

5Plaintiff

(Pl. Depo.,

The officers did not cause any
(Pl. Depo., Pl. Ex. 1, Doc. #45-2,

At no time did the defendants handcuff

could not testify as to the names of the officers
involved in the incident. He knows only Officer Small by name
because he gave plaintiff his business card after the incident.
(Pl. Depo., Pl. Ex. 1, Doc. #45-2, pp. 6, 8.)
5

plaintiff or otherwise physically contact him.

(Pl. Depo., Pl.

Ex. 1, Doc. #45-2, p. 12; Def. SOF ¶¶ 31, 32; Pl. SOF ¶¶ 31,
32.)
Upon completion of the investigation, the defendants found
nothing that supported the allegations made by the caller.
(Small Aff., Def. Ex. C, Doc. #44-5, ¶ 8; Police Report, Def.
Ex. D, Doc. #44-6, pp. 5-6; Def. SOF ¶ 34; Pl. SOF ¶ 34.)

It

later was determined that plaintiff was the victim of
“swatting.”6
II.

(Police Report, Def. Ex. D, Doc. #44-6, p. 6.)

Summary Judgment Standard

“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A “material” fact is a fact that influences the

case’s outcome under governing law.
Inc., 477 U.S. 242, 247–48 (1986).

Anderson v. Liberty Lobby,
A “genuine” dispute is one

that a reasonable jury could resolve in favor of the non-movant.
Id.

The moving party bears the initial burden of establishing

that there are no genuine disputes as to any material fact.

6“A

‘swatting 911 call’ is a false 911 call made to police
in which a false report of a violent crime is made to elicit a
police Special Weapons and Tactics squad (‘SWAT’) response to
the physical address of a targeted individual, his or her family
members, or place of employment.” United States v. Neff, No.
3:11-CR-0152-L, 2013 WL 30650, at *3 (N.D. Tex. Jan. 3, 2013).
6

Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Once such a showing is made, the non-movant must show that there
is a genuine issue for trial.

Id.

The court may rely on

admissible evidence only, Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010), and must view the evidence in the record in the
light most favorable to the non-movant, drawing all reasonable
inferences in that party’s favor.

Weinstock, 224 F.3d at 41.

III. Discussion
A. Exigency
The Fourth Amendment protects the right of the people “to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”

U.S. Const., amend. IV.

“It is a basic principle of Fourth Amendment law . . . that
searches and seizures inside a home without a warrant are
presumptively unreasonable.”

Brigham City v. Stuart, 547 U.S.

398, 403 (2006) (internal quotation marks omitted).

“[T]his

presumption may be overcome in some circumstances because [t]he
ultimate touchstone of the Fourth Amendment is reasonableness.”
Kentucky v. King, 563 U.S. 452, 459 (2011) (internal quotation
marks omitted).
[T]he warrant requirement is subject to certain
reasonable exceptions . . . .
One well-recognized
exception applies when the exigencies of the situation
make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable under the
7

Fourth Amendment . . . .
[The Supreme] Court has
identified several exigencies that may justify a
warrantless search of a home . . . .
Under the
“emergency aid” exception, for example, officers may
enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an
occupant from imminent injury . . . .
Id. at 460 (citations and internal quotation marks omitted); see
also Brigham City at 403 (“The need to protect or preserve life
or avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency.”) (internal
quotation marks omitted).

Under the “emergency aid” exception,

“[c]ourts must apply an objective standard to determine the
reasonableness of the officer’s belief, taking into account the
circumstances then confronting the officer, including the need
for a prompt assessment of sometimes ambiguous information
concerning potentially serious consequences.”

Mayes v. Vill. of

Hoosick Falls, 162 F. Supp. 3d 67, 80 (N.D.N.Y. 2016) (citations
and internal quotation marks omitted).
Here, it is undisputed that the Old Saybrook Police
Department received a call from an individual who gave
identifying information and stayed on the line to provide
updated details as the incident purportedly developed.

The

caller reported an armed home invasion at a specific address-plaintiff’s house.

He stated that he saw masked gunmen holding

a family at gun point, firing shots, and injuring some of the
8

victims.

At the time the officers responded and entered

plaintiff’s house, they reasonably believed that a home invasion
was in progress.

Thus, the officers were “confronted with an

urgent need to render aid or take action.”

Moore v. Andreno,

505 F.3d 203, 213 (2d Cir. 2007) (internal quotation marks
omitted).

Only after the search was it determined that

plaintiff was the victim of swatting.
Plaintiff’s sole argument in opposition to summary judgment
is that once he “was in custody, there simply was no evidence of
ongoing exigent circumstances sufficient to obviate the warrant
requirement.”

(Pl. Br., Doc. #45, p. 2.)

The fact that

plaintiff and his son exited the house and proclaimed that no
one else was inside did not pacify the exigency of the situation
or the need to search the house for potential suspects and
victims.

See, e.g., Canady v. Jackson, No. 307-CV-01843 (CSH),

2010 WL 3925132, at *6 (D. Conn. Sept. 29, 2010) (“Even if the
plaintiff was alone in the home, and explained as much to the
police, the 911 call gave more than enough cause for concern
that she might be lying, under duress, in order to make the
police go away.

It is undisputed that they . . . performed only

the most basic sweep of the premises, which was concluded in a
matter of minutes.”).

The court

9

appreciate[s] the risk of a “false positive” emergency
call and recognize[s] that a show of police force in
response to a prank call is a substantial intrusion on
the lives of the prank’s victims. It is the nature of
our own assessments of what constitutes an emergency
that the police will routinely be summoned for matters
that are not, in some objective sense, real emergencies.
We will not impose a duty of inquiry on the police to
separate a true cry for help from a less deserving call
for attention because the delay may cost lives that could
have been saved by an immediate police response. The
possibility that immediate police action will prevent
injury or death outweighs the inconvenience we suffer
when the police interrupt our ordinary routines in
response to what turns out to be a non-emergency call.
U.S. v. Snipe, 515 F.3d 947, 953-54 (9th Cir. 2008).
Considering the substance of the call, the officers’ entry
and limited search of plaintiff’s house and their temporary
seizure of plaintiff were reasonable under the Fourth Amendment.
No rational jury could find otherwise.

Construing the evidence

in the light most favorable to plaintiff, the defendants’ search
took fifteen minutes and was limited to areas where gunmen or
victims could be found.7

7Once

The officers conducted a cursory search

an officer enters a residence under the emergency
aid exception, he may properly conduct a limited search
of the premises if it is objectively reasonable for him
to believe that the search is necessary to ensure the
safety of someone therein. The search must be strictly
circumscribed by the exigencies which justify its
initiation . . . . As to what may be done by the police
or other public authorities once they are inside the
premises, this must be assessed upon a case-by-case
basis, taking into account the type of emergency which
appeared to be present . . . . The officer’s post-entry
conduct must be carefully limited to achieving the
10

of plaintiff’s house, turning on lights and opening interior
doors.

On this record, defendants’ actions were objectively

reasonable under the Fourth Amendment.8
IV.

Conclusion

For the foregoing reasons, defendants’ motion for summary
judgment (doc. #44) is GRANTED.
This is not a recommended ruling.

The consent of the

parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.

Appeals can be made directly to the

appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).

objective which justified the entry—the officer may do
no more than is reasonably necessary to ascertain
whether someone is in need of assistance and to provide
that assistance.
Mayes, 162 F. Supp. 3d at 81 (citations and internal quotation
marks omitted).
8In light of this conclusion, the court need not address
defendants’ qualified immunity defense. See, e.g., Nelson v.
City of Stamford, No. 3:09-CV-1690(VLB), 2012 WL 233994, at *28
(D. Conn. Jan. 25, 2012) (“Having found that no constitutional
violation occurred, the Court need not address the Defendants'
claims of qualified immunity.”); Morris v. Valeriano, No. 3:06CV-392(JCH), 2007 WL 1851167, at *6 (D. Conn. June 26, 2007)
(finding no constitutional violation and granting summary
judgment, district court “need not address the defendants’
qualified immunity defense.”).
11

SO ORDERED at Hartford, Connecticut this 6th day of
February, 2017.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

12