Wagner et al v. The County of Schenectady et al
Filing
77
MEMORANDUM-DECISION and ORDER that defendants' 61 Motion for Summary Judgment is GRANTED. That plaintiffs' 64 Cross-Motion for Summary Judgment and Class Certification is DENIED. That all claims against defendants are DISMISSED. Signed by Judge Gary L. Sharpe on 11/17/2011. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
MICHAEL WAGNER, LEVI INGERSOLL
KEN FENWICK and SIDNEY ALPAUGH,
Plaintiffs,
1:09-cv-652
(GLS/DRH)
v.
DAVID J. SWARTS et al.,
Defendants.
_________________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Proner, Proner Law Firm
60 East 42nd Street
New York, New York 10165
MITCHELL L. PRONER, ESQ.
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224
DOUGLAS J. GOGLIA
Assistant Attorney General
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Michael Wagner, Levi Ingersoll, Ken Fenwick and Sidney
Alpaugh commenced this action against defendants,1 asserting claims
pursuant to 42 U.S.C. §§ 1983 and 1988 for violations of their constitutional
rights in conjunction with defendants’ implementation and execution of
motorcycle checkpoints. (See Compl., Dkt. No. 1.) Pending are the
parties’ cross-motions for summary judgment and plaintiffs’ motion for class
certification. (See Dkt. Nos. 61, 64.) For the reasons that follow,
defendants’ motion for summary judgment is granted, and plaintiffs’
motions are denied.
II. Background2
In 2008, the New York State Police implemented a Statewide
Motorcycle Enforcement and Education Initiative (“Initiative”) to address the
“alarming increase in motorcycle crashes . . . over the past decade,” and
the escalating “number of motorcycles traveling New York’s roadways.”
(Defs.’ Statement of Material Facts (“SMF”) ¶ 1, Dkt. No. 61, Attach. 1.) In
addition to a public information/education element, the Initiative called for
1
Although the Complaint lists multiple defendants, the parties, via stipulations,
dismissed the claims against the majority of them. (See Dkt. Nos. 44, 46, 47, 48, 49, 50.) The
remaining defendants are David J. Swarts, Chair of the Governor’s Traffic Safety Committee,
as well as Major William Sprague, Lieutenant Daniel Larkin and Lieutenant Jim Halversen, all
of the New York State Police.
2
The facts are undisputed unless otherwise noted.
2
motorcycle checkpoints, “a novel concept in New York as well as
nationally,” to reduce the number of motorcycle crashes and increase
vehicle and traffic law compliance. (See id. ¶¶ 2-4.) According to
defendants,3 the primary objective of the checkpoints was “to detect
motorcycle safety violations and insure [sic] proper registration and
operator compliance with New York State’s motorcycle license
requirements.” (See, e.g, id. ¶ 6.)4
1.
Creation of the Initiative
As part of his Master’s course work at the State University of New
York at Albany, defendant Lt. James Halversen, the commanding officer of
the New York State Police Motorcycle Unit, wrote a thesis on the
increasing rate of motorcycle fatalities for riders over forty-years old. (See
Dkt. No. 61, Attach. 14 ¶ 25.) In so doing, he considered measures—such
as routine commercial trucking inspections and the automobile seatbelt
3
Plaintiffs aver defendants’ stated objective is merely a pretext, as the true purpose of
the checkpoints was general criminal interdiction. (See Dkt. No. 64, Attach. 3 ¶ 1.) In support
of this contention, they raise two principle arguments: (1) the checkpoints were ineffective
since they failed to address the major causes of motorcycle fatalities (i.e., speed and alcohol)
and were not explicitly recommended by either the National Highway Traffic Safety
Administration (“NHTSA”) or the Governor’s Traffic Safety Committee (“GTSC”); and (2) the
inclusion of non-motorcycle enforcement officers at the checkpoints was indicative of the true
purpose. (See id.; accord Dkt. No. 64, Attach. 11 at 7-8.)
4
(See also Dkt. No. 61, Attach. 14 ¶ 6, Attach. 22 at 31, Attach. 23 at 31, Attach. 26 at
1, Attach. 27 at 3, Attach. 28 at 1.)
3
checkpoints—that the State Police could adopt to “curb the increase in all
motorcycle crashes and fatalities” in New York. (Id. ¶ 26.) Based on his
research,5 and his experience as a “motorcycle enthusiast,” Halversen
developed the idea for motorcycle safety checkpoints. (Id. ¶¶ 25-27.)
Upon his return to duty, he set out to implement this plan. (Id.)
With the help of defendant Lt. Daniel Larkin, Halversen submitted a
grant application to the GTSC in 2007 to fund the checkpoints. (Pls.’ SMF
¶¶ 84, 88, Dkt. No. 64, Attach. 4.) The GTSC, which is chaired by
defendant David J. Swarts, approved the application and funded the
Initiative with federal grant money “provided by NHTSA and [Federal
Highway Administration (“FHA”)].” (Dkt. No. 61, Attach. 3 ¶¶ 5-6.)
Although Swarts oversaw the funding of the Initiative, neither he, nor any
5
In his affidavit, Halversen recited numerous statistics on motorcycle safety trends to
explain “why it became necessary for law enforcement authorities to increase the attention
paid to motorcyclists and motorcycle safety issues.” (Dkt. No. 61, Attach. 14 ¶ 8.) For
example, in October 2007, the Department of Transportation noted a “pronounced trend” in
motorcycle fatalities during the preceding nine years. (Defs.’ SMF ¶ 10.) Although
motorcycles comprise less than 3% of the registered vehicles in the United States,
motorcyclists were approximately “37 times more likely than passenger car occupants to die in
a [crash] and 9 times more likely to be injured.” (Id. ¶ 11.)
Notably, in New York, motorcycle fatalities increased by 23% between 2004 and 2009,
and the total number of motorcycle “crashes” increased by 27% from 2003 to 2007. (Id. ¶¶ 11,
14.) With respect to motorcycle helmets—which “are estimated to be 37-percent effective in
preventing fatal injuries to motorcycle [drivers] and 41-percent for motorcycle
passengers”—New York, despite its mandatory helmet law, see N.Y. Veh. & Traf. Law § 381(6)
(McKinney 2005), saw an increase from 13% to 20% in motorcycles fatalities “accounted for by
unhelmeted riders.” (Defs.’ SMF ¶ 10.)
4
member of the GTSC staff, participated in any of the checkpoints. (Id. ¶¶
7-8.)
The pilot checkpoint was conducted on I-84 in Duchess County on
October 7, 2007, the same day a “large motorcycle event was being held
20 miles to the east,” in Connecticut. (Defs.’ SMF ¶¶ 46-48.) Portable
highway message signs instructed all motorcycle riders to “exit ahead,” and
a marked state police vehicle, with its emergency lights on, was stationed
at the entrance to the rest area; a trooper standing outside the vehicle
waved “all oncoming motorcycles into the rest area.” (Id. ¶¶ 49-51.) Once
inside, the motorcyclists were directed to an inspection area where
members of the Motorcycle Unit inspected both the bikes and the riders.
(Id. ¶ 52.) Violations were noted on a checklist and then passed to a State
Police Trooper, who in turn issued any applicable traffic citations. (Id. ¶
53.) In total, 280 motorcycles passed through the pilot checkpoint, 225
were inspected for safety violations, and 104 traffic tickets were issued, of
which illegal helmets was the most common with 41 infractions. (Id. ¶ 55.)
2.
The Motorcycle Checkpoints
Halversen’s initial plan (“Plan 1") called for “full-blown inspections” of
every motorcycle that entered the checkpoint. (See Dkt. No. 64, Attach. 3
5
¶ 56.) This plan, which mirrored the configuration of the pilot checkpoint,
was memorialized in the New York State Police 2008 Guidelines for the
Operation of Motorcycle Enforcement Checkpoints. (Defs.’ SMF ¶¶ 56-57;
see also Dkt. No. 61, Attach. 26.) These guidelines outlined the planning
and execution of the motorcycle checkpoints, including: location and date
selection6; discussion points for pre-checkpoint briefings; safety
considerations7; and even how to distinguish illegal “novelty” helmets from
Department of Transportation (“DOT”) compliant helmets8. (See Defs.’
6
Defendants admit that to justify the resources expended, the motorcycle checkpoints
were executed on days, and in locations, that corresponded with “a sufficient volume of
motorcycle traffic.” (Defs.’ SMF ¶ 58.) To this end, the 2008 Guidelines state: “[u]nless an
area has an abnormally high volume of motorcycle traffic absent some specific event, or
groups are known to engage in illegal stunt riding activities on specific public highways,
checkpoints should be scheduled contemporaneous with some event that brings a sufficient
volume of motorcycle traffic through the checkpoint area.” (Id.)
7
Although Plan 1 called for the stop of every motorcycle entering the checkpoint,
checkpoint personnel were “reminded that ‘checkpoints must be conducted in the safest
manner possible,’” even if that meant that some motorcycles were allowed to pass through
without inspection. (Defs.’ SMF ¶ 61.) In fact, the 2008 Guidelines state:
[B]revity . . . must be emphasized. Unless a violation of law is observed or
suspected, each inspection MUST be brief, taking no more time than is necessary
to walk around the motorcycle, observe relevant safety equipment (including
helmet) and check for a proper driver’s license. Traffic CANNOT be allowed to back
up into a queue waiting for an inspection.
(Id. ¶ 62) (emphasis in original). To ensure safe operations, the checkpoint’s commanding
officer was vested with the authority to wave “all oncoming motorcycles . . . passed the
checkpoint until the congestion abated and it again became possible for checkpoint personnel
to safely and expeditiously conduct inspections.” (Id. ¶¶ 63-64.)
8
The defendants provided a substantial amount of documentation on the distinction
between DOT compliant helmets and novelty, or non-DOT compliant, helmets. (See Defs.’
SMF ¶¶ 19-45.) Indeed, checkpoint personnel were instructed to “take a zero-tolerance
approach” when it came to ticketing “substandard helmets,” which according to the defendants
were easily identifiable. (See id. ¶ 40, 65.)
6
SMF ¶¶ 58-66; see also Dkt. No. 61, Attach. 26.) However, Plan 1 was
short-lived as the troopers conducting the initial checkpoints were
“overwhelmed,” and a “significant number of motorcycles were waved past
. . . to avoid traffic backups and concomitant safety concerns.” (Defs.’ SMF
¶ 67.)
In its place, the State Police “adopted a second methodology” (“Plan
2"), which enabled them to conduct checkpoints “where heavy volumes of
traffic were anticipated.” (Id. ¶ 68.) The major difference between Plans 1
and 2 was that Plan 2 utilized an officer at the “point”— the entrance of the
checkpoint—who was responsible for quickly screening each passing
motorcyclist for helmet compliance, and each motorcycle for obvious
equipment violations. (Id. ¶ 70.) Halversen explained the “point” process
as follows:
If a violation was observed, or there was reasonable cause for the
point officer to suspect a violation, the motorcyclist was directed
into the inspection area for a thorough inspection. Conversely, if
no apparent or probable violation9 was observed, the motorcyclist
was waved past the checkpoint and back onto the highway
without stopping, and in most cases, without having to put his or
her foot on the pavement.
9
The actual language contained in the plan is not “probable violations,” it is “visual or
audible violations.” (See Dkt. No. 61, Attach. 28 at 6.)
7
(See Dkt. No. 61, Attach. 14 ¶ 37.) Although incorporated into the 2009
New York State Police Guidelines for the Operation of Motorcycle
Enforcement Checkpoints, plaintiffs dispute that Plan 2 was used at the
checkpoints at which they were stopped. (See Defs.’ SMF ¶¶ 71-73; Dkt.
No. 64, Attach. 3 ¶¶ 71-72.)
In sum, 17 motorcycle checkpoints were conducted in 2008; 5,342
vehicles passed “through the check,” 2,278 were inspected and 1,064
tickets were issued. (Pls.’ SMF ¶¶ 140, 145-46.) Of the 1,064 tickets
issued, 600 were for non-safety related violations, 365 were for helmet
violations and 99 were for other safety violations. (Id.) The checkpoints
also resulted in 4 criminal arrests. (Id.) Moreover, the Initiative
“significantly increased the number of tickets issued for illegal helmets”
from 35 in 2007 to 796 in 2008, a 2,175% increase, and further contributed
to a 17% decrease in motorcycle fatalities from 2008 to 2009. (Defs.’ SMF
¶¶ 141-42.)
With respect to the checkpoints plaintiffs encountered on June 13
and June 20, 2008, 1,319 motorcycles were screened by the point,
resulting in 171 illegal helmet citations, 17 illegal exhaust citations, 24
citations for “other safety-related VTL violations” and 56 citations for “other
8
VTL violations.” (See id. ¶¶ 143, 145.)
3.
The Underlying Motorcycle Stops
On June 13, 2008, plaintiff Sidney Alpaugh departed his
Pennsylvania home on his motorcycle for Port Dover, Canada, to attend
the Friday the Thirteenth motorcycle rally. (Pls.’ SMF ¶ 10-11.) En route,
he encountered a motorcycle checkpoint which was set up on an exit ramp
off I-190 near the Peace Bridge Point of Entry. (Id. ¶ 15; Defs.’ SMF ¶ 84.)
As he drove down the exit ramp, Alpaugh noticed that “all motorcycles
were being directed to the right while all cars and trucks were being
permitted to proceed.” (Pls.’ SMF ¶ 15.) When he “approached an officer
standing in the middle of the road,” the officer directed him into the
inspection area that was staged in an adjoining park. (Pls.’ SMF ¶ 16;
Defs.’ SMF ¶¶ 85-87.) Once inside the inspection area, which was
surrounded by police cars and officers equipped with “riot gear,” Alpaugh
was instructed to dismount and remove his helmet. (Pls.’ SMF ¶ 17; Defs.’
SMF ¶ 87.) A trooper took his insurance, registration and license back to a
patrol car for processing, and when the trooper returned, Alpaugh was
issued a ticket for wearing an unapproved helmet. (Defs.’ SMF ¶¶ 88-89.)
Although he now claims that he was detained for 45 minutes, and that he
9
only pled to the helmet infraction to save money, Alpaugh initially claimed
the stop lasted 20-30 minutes. (Pls.’ SMF ¶¶ 20, 28; Defs.’ SMF ¶ 91.)
Like Alpaugh, plaintiffs Levi Ingersoll, Ken Fenwick and Michael
Wagner were also stopped at a motorcycle checkpoint, albeit one week
later on June 20, 2008, in conjunction with their trips to the “Harley
Rendezvous.” (See Defs.’ SMF ¶¶ 93-122.) All three admitted they saw a
sign which read “All Motorcycles Exit”; that they were directed into the
inspection area by an officer standing in the middle of the road; and each
was eventually ticketed for—and plead guilty to—wearing an unlawful
helmet. (See id.) Moreover, Ingersoll and Fenwick both stated they were
detained for no more than 30 minutes at the checkpoint. (See Defs.’ SMF
¶¶ 98, 112.)
As a result of being stopped at the motorcycle checkpoints, plaintiffs
now seek both compensatory and punitive damages, declarative and
injunctive relief, and an award of costs and attorney’s fees, for alleged
violations of their constitutional rights. (See Compl. ¶ 1, Dkt. No.1.)
III. Standard of Review
Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
10
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Roe v. City of Waterbury,
542 F.3d 31, 35 (2d Cir. 2008). When evaluating the material facts, the
court “construes all evidence in the light most favorable to the non-moving
party, drawing all inferences and resolving all ambiguities in [its] favor.”
Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010). Thus, the movant
must demonstrate the absence of genuine issues of material fact, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Thomas v. Roach, 165 F.3d
137, 142 (2d Cir. 1999), a burden it can meet “if [it] can point to an absence
of evidence to support an essential element of the nonmoving party’s
claim,” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18
(2d Cir. 1995).
If the movant satisfies its burden, the nonmoving party must offer
specific evidence showing that a genuine issue of material fact warrants a
trial. See Celotex, 477 U.S. at 324. “A ‘genuine’ dispute over a material
fact only arises if the evidence would allow a reasonable jury to return a
verdict for the nonmoving party.” Dister v. Cont’l Group, Inc., 859 F.2d
1108, 1114 (2d Cir. 1988) (citation omitted). Moreover, material disputes
must be based on specific facts as reflected in the adverse party’s
11
response, by affidavits or as otherwise authorized by Rule 56, see St.
Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000), and affidavits must be
based on personal knowledge, see Harriscom Svenska, AB v. Harris Corp.,
3 F.3d 576, 581 (2d Cir. 1993). The bald assertion of some alleged factual
dispute will not defeat a properly supported motion. See Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) (citation
omitted). “Conclusory allegations, conjecture, and speculation . . . are
insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156
F.3d 396, 400 (2d Cir. 1998). Naturally, reasonable inferences may defeat
a summary judgment motion, but only when they are supported by
affirmative facts and relevant, admissible evidence. See Fed. R. Civ. P.
56(c)(4); Spinelli v. City of New York, 579 F.3d 160, 166-67 (2d Cir. 2009).
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248.
IV. Discussion
It is axiomatic that the motorcycle checkpoints here constitute
seizures “within the meaning of the Fourth Amendment.” See City of
Indianapolis v. Edmond, 531 U.S. 32, 40 (2004). However, merely
12
implicating the Fourth Amendment is insufficient as only unreasonable
seizures run afoul of it. See, e.g., Ill. v. Lidster, 540 U.S. 419, 426 (2004).
While the constitutionality of the motorcycle checkpoints is directly tied to
their reasonableness, the court, in resolving the pending motions, is not
similarly bound.
Here, defendants, in addition to arguing that the motorcycle
checkpoints were constitutionally permissible, also assert the following
defenses: sovereign immunity, a lack of personal involvement, and
qualified immunity. Collectively, these defenses, if meritorious, negate the
need to address the overarching constitutional issue. But, given the
breadth and importance of the motorcycle checkpoints, abstention on the
principal issue would simply be unjust. Therefore, before discussing the
alternative defenses raised, the court addresses the constitutionality of the
motorcycle checkpoints.
A.
Fourth Amendment “Special Needs” Doctrine
The crux of defendants’ argument is that the motorcycle checkpoints,
as executed by the New York State Police, are constitutionally permissible
because “the primary objective . . . was, and is, to target safety violations.”
(See Dkt. No. 61, Attach. 2 at 30-31.) Conversely, plaintiffs claim the
13
stated purpose of “safety” is a pretext, relying primarily on the presence of
non-motorcycle unit officers at the checkpoints to support their position.
(See Dkt. No. 64, Attach. 1 at 27-32; Dkt. No. 70 at 3-4.) They further aver
that even if the purpose of the checkpoints was permissible, “the severity of
the checkpoints’ interference with the personal liberty of motorcyclists far
outweighs the degree to which the seizure actually serves the public
interest in reducing motorcycle accidents and fatalities.” (See Dkt. No. 64,
Attach. 1 at 37.) The court will address each of these arguments in turn.
1.
The Primary Purpose of the Checkpoints
Generally, a search or seizure conducted without the “individualized
suspicion of wrongdoing” is unreasonable under the Fourth Amendment.
Edmond, 531 U.S. at 37. However, this general rule is not without
exceptions, one of which—the “special needs” doctrine—is applicable in
this case. Under this doctrine, programs “designed to serve ‘special needs,
beyond the normal need for law enforcement,’” are sustainable in absence
of individualized suspicion. See id. However, where the primary purpose of
the program is “a general interest in crime control,” it is disqualified from
“special needs” treatment. Lynch v. City of New York, 589 F.3d 94, 100
(2d Cir. 2009), cert. denied, 131 S. Ct. 415 (2010) (citing Edmond, 531
14
U.S. at 38) (internal quotations omitted). Accordingly, the threshold inquiry
examines the “programmatic purpose,” as “special needs” analysis is only
appropriate in cases where the government’s principal interest is distinct
from general crime control. Lynch, 589 F.3d at 100 (citing Edmond, 531
U.S. at 45-46).
Vehicle checkpoints, such as the ones at issue here, are not a novel
concept. Indeed, the Supreme Court has repeatedly affirmed their
constitutionality in a variety of contexts. See, e.g., United States v.
Martinez-Fuerte, 428 U.S. 543 (1976) (to intercept illegal aliens at a fixed
Border Patrol checkpoint); Mich. Dept. of State Police v. Sitz, 496 U.S. 444
(1990) (at sobriety checkpoints); Lidster, 540 U.S. at 423-28 (for the
purpose of locating witnesses to a hit-and-run); but see Edmond, 531 U.S.
at 44 (refusing to “sanction stops justified only by the generalized and
ever-present possibility that interrogation and inspection may reveal that
any given motorist has committed some crime”). Furthermore, several
Circuit Courts have upheld checkpoints regulating vehicular traffic, a
purpose less distinguishable from general crime control. United States v.
Bowman, 496 F.3d 685, 692 (4th Cir. 2007) (“[A] roadblock is
constitutionally permissible where its principal purpose is to regulate
15
vehicular traffic by allowing police to check driver’s licenses and vehicle
registrations.”) (internal citations and quotations omitted); accord United
States v. Fraire, 575 F.3d 929, 932-35 (9th Cir. 2009); United States v.
Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir. 1998); United States v.
McFayden, 865 F.2d 1306, 1310-13 (D.C. Cir. 1989).
Here, the court concurs with defendants that the principal focus of the
motorcycle checkpoints was safety. In addition to the empirical evidence
provided, the exhibits submitted in support of defendants’ motion
consistently state the checkpoints were designed “to detect motorcycle
safety violations and insure [sic] proper registration and operator
compliance with New York State’s motorcycle license requirements.”
(Defs.’ SMF 6; Dkt. No. 61, Attach. 14 6, Attach. 22 at 31, Attach. 23 at
31, Attach. 26 at 1, Attach. 27 at 3, Attach. 28 at 1); but see Bowman, 496
F.3d at 693-695 (finding the testimony of a single field officer, standing
alone, was insufficient to prove the primary purpose of the roadblocks in
question). Albeit less refined than sobriety checkpoints, the purpose of the
motorcycle checkpoints is easily discernible from a general interest in crime
control.
Rather than conceding this point, plaintiffs allege that a factual
16
dispute exists as to the primary purpose of the checkpoints. (See Dkt. No.
70 at 3-4.) Their argument rests on the following “undisputed” facts: (1) the
checkpoints were not explicitly “recommended as a means of promoting
motorcycle safety” by the NHTSA; (2) the checkpoints failure to “address”
speed and alcohol; (3) defendants’ view that select segments of the
motorcycling community who attend the events targeted consist of “outlaw
bikers” and “dangerous gang members”; (4) the monitoring of the
checkpoints by the New York State Police Special Investigation Unit (“SIU”)
and gang task force for the purposes of “criminal interdiction”; (5) the
recommendation that checkpoints include SIU officers to “conduct a more
thorough inspection of any suspect motorcycle, particularly as it relates” to
non-traffic offenses; and (6) a GTSC progress report which states the
“motorcycle grant includes funding for overtime for intelligence gathering
and subsequent criminal and traffic enforcement resulting from this effort.”
(See Dkt. No. 64, Attach. 1 at 32-33; Dkt. No. 70, Attach. 2 at 2.) While
these facts may be undisputed, they are unequivocally immaterial.
First, the fact that other law enforcement personnel were on hand,
and focused on non-safety violations does not render the checkpoints
17
unconstitutional.10 Although Edmond explicitly left open the question of
“whether police may expand the scope of a license or sobriety checkpoint
seizure in order to detect the presence of [other crimes],” 531 U.S. at 47
n.2, the Second Circuit, in Lynch, directly addressed this point. There, the
Court stated: “[T]he special needs doctrine applies to any program of
searches whose “primary purpose” is a government interest other than
crime control, Edmond, 531 U.S. at 46-48, and the mere fact that crime
control is one purpose—but not the primary purpose—of a program of
searches does not bar the application of the special needs doctrine.”
Lynch, 589 F.3d at 102 (emphasis in original); see also United States v.
William, 603 F.3d 66, 68 (1st Cir. 2010) (finding that even though the police
were primarily conducting a sobriety checkpoint, the fact that “other crimes
might come to light” was sufficient to warrant keeping a drug-sniffing dog in
reserve); cf. Ill. v. Caballes, 543 U.S. 405, 407-08 (2005) (A dog sniff,
which does not extend the duration of an otherwise lawful traffic stop,
10
The degree to which SUI participated in, and the number of arrests during, the
checkpoints further diminishes plaintiffs’ argument regarding the primary purpose of the
checkpoints. Though it is clear that SUI officers “monitored” the checkpoints, (see, e.g., Dkt.
No. 61, Attach. 4 ¶ 4), plaintiffs have not demonstrated that SUI took part in any of the
inspections, or even interacted with any of the motorcyclists. (See Dkt. No. 64, Attach. 1 at 15,
33; Dkt. No. 64, Attach. 4 ¶¶ 109-11.) Moreover, the 17 checkpoints in 2008 only resulted in 4
criminal arrests. (Pls.’ SMF ¶¶ 140, 145-46.) Stated another way, of the 2,278 inspections
conducted, 0.17% resulted in an arrest. (Id.)
18
neither shifts the purpose of the stop, nor renders it unconstitutional.).
Essentially, plaintiffs seek to prohibit officers conducting a lawful
checkpoint from investigating evidence of general criminal wrongdoing,
which if observed during a roving traffic stop, would otherwise be pursued.
Notably, such a rule could deter law enforcement officials from properly
allocating resources—e.g., personnel trained and equipped to handle
volatile gangs—out of fear that the mere presence of such equipment or
personnel would render the entire operation unconstitutional. Besides
being unsupported by controlling precedent, this argument is alarming and
incongruous.
Second, the fact that the NHTSA did not recommend the checkpoints
is equally unpersuasive. “[T]he decision as to which among reasonable
alternative law enforcement techniques” to employ is a decision for those
“who have a unique understanding of, and a responsibility for, limited public
resources,” and not the court. Sitz, 496 U.S. at 453.
Finally, plaintiffs’ argument regarding the checkpoints’ failure to
address the problems of alcohol and speed is baffling given their position in
this litigation. By arguing that the checkpoints are ineffective in addressing
the dangers caused by alcohol, plaintiffs not only ignore Larkin’s testimony
19
on intoxicated motorcyclists,11 but also implicitly concede that the
checkpoints would be constitutional if their primary purpose was sobriety.
Likewise, as defendants aptly note, using a checkpoint to combat speeding
is illogical as the motorcyclists are required to slow down to a speed of
roughly 5 m.p.h. to pass through them. (See Dkt. No. 66 at 6.)
Despite plaintiffs’ attempt to cast doubt on the primary purpose of the
checkpoints, the evidence submitted demonstrates that the focus of the
checkpoints was safety, not crime control. As such, the checkpoints are
not per se unconstitutional under Edmond since their primary purpose was
distinct from the general interest in crime control. See 531 U.S. at 44.
2.
The Balancing Test
Because the checkpoints implicate a “special need,” their
reasonableness must now be evaluated “on the basis of the individual
circumstances.” Fraire, 575 F.3d at 932 (quoting Lidster, 540 U.S. at 426)
(internal quotations omitted); see also United States v. Amerson, 483 F.3d
73, 83 (2d Cir. 2007) (describing the second inquiry in the “special needs”
analysis as “context-specific”). This evaluation, which is essentially a
11
Larkin testified that in spite of the fact that these were not sobriety checkpoints,
“whenever [the State Police] stop a vehicle, if [they] detect alcohol impairment, [they] would
administer . . . a breath test.” (See Dkt. No. 61, Attach. 8 at 27:24-29:2.)
20
balancing test, considers “the gravity of the public concerns served by the
seizure, the degree to which the seizure advances the public interest, and
the severity of the interference with individual liberty.” Lidster, 540 U.S. at
427 (quoting Brown v. Tex., 443 U.S. 47, 51 (1979)).
a.
The gravity of the public concern
Defendants argue that mitigating “an alarming increase in motorcycle
crashes and fatalities by detecting motorcycle safety violations” is a
sufficiently grave interest. (See Dkt. No. 61, Attach. 2 at 33.) Conversely,
plaintiffs endeavor to downplay the seriousness of the problem by arguing
the threat posed by motorcycle accidents and fatalities is not “immediate,”
and that even if it is, the existence of “practical alternatives” to the
checkpoints renders them impermissible. (See Dkt. No. 64, Attach. 1 at
41.) Again, plaintiffs’ argument lacks merit.
In Delaware v. Prouse, the Supreme Court reviewed, and ultimately
struck down, a discretionary license and registration spot check by a roving
patrol officer. 440 U.S. 648, 663 (1979). Notwithstanding its decision,
which largely rested on the complete lack of empirical support for the
State’s position, the Court agreed “that the States have a vital interest in
ensuring that only those qualified to do so are permitted to operate motor
21
vehicles, that these vehicles are fit for safe operation, and hence that
licensing, registration, and vehicle inspection requirements are being
observed.” Id. at 658.
Here, unlike in Prouse, 440 U.S. at 658, defendants submitted
statistics to substantiate their assessment of the motorcycle safety
problem.12 For example, in October 2007, the DOT noted a “pronounced
trend” in motorcycle fatalities during the preceding nine years. (Defs.’ SMF
¶ 10.) In New York alone, motorcycle fatalities increased by 23% between
2004 and 2009, and the total number of motorcycle “crashes” increased by
27% from 2003 to 2007. (Id. ¶¶ 11, 14.)
While plaintiffs may disagree with Halversen’s research, and the
collective expertise of the New York State Police and GTSC, they have not,
and arguably could not, refute New York’s interest in ensuring that
motorcycles traveling on its roads are “fit for safe operation.” See Prouse,
440 U.S. at 658. As such, the court concludes that regulating motorcycle
safety is a sufficiently grave public interest to support the seizures in
question.
b.
12
The interests advanced by the checkpoints
See Part II supra note 5.
22
The second factor to analyze is the “degree to which the seizure
advances the public interest.” Lidster, 540 U.S. at 427 (quoting Brown v.
Tex., 443 U.S. at 51). Here, the evidence establishes the checkpoints had
an immediate impact on motorcycle safety. Specifically, “the number of
tickets issued for illegal helmets” increased from 35 in 2007 to 796 in 2008,
a 2,175% increase, and motorcycle fatalities decreased by 17% from 2008
to 2009. (Defs.’ SMF ¶¶ 141-42.) In fact, 356, or 45%, of the 796 tickets
for illegal helmets were issued at the checkpoints. (See Pls.’ SMF ¶¶ 140,
145-46.) In addition to these results, the “checkpoints likely have a
deterrent value apart from” the safety violations cited during the stops. See
William, 603 F.3d at 70. Accordingly, the checkpoints undeniably
advanced the public interest in promoting motorcycle safety.
c.
The severity of the interference
The final factor to consider is “the severity of the interference with
individual liberty.” Lidster, 540 U.S. at 427 (quoting Brown v. Tex., 443
U.S. at 51). Thus, to pass constitutional muster, “the checkpoints must be
minimally intrusive: (1) they must be clearly visible; (2) they must be part of
some systematic procedure that strictly limits the discretionary authority of
police officers; and (3) they must detain [riders] no longer than is
23
reasonably necessary to accomplish [their purpose] . . . unless other facts
come to light creating a reasonable suspicion of criminal activity.”
Bowman, 496 F.3d at 692 (internal citations omitted).
In conducting this analysis, the court is guided by the Supreme
Court’s comparison of checkpoint stops with roving patrol stops in
Martinez-Fuerte. There, the Court stated:
[W]e view checkpoint stops in a different light because the
subjective intrusion—the generating of concern or even fright on
the part of lawful travelers—is appreciably less in the case of a
checkpoint stop . . . . [T]he circumstances surrounding a
checkpoint stop and search are far less intrusive than those
attending a roving-patrol stop. Roving patrols often operate at
night on seldom-traveled roads, and their approach may frighten
motorists. At traffic checkpoints the motorist can see that other
vehicles are being stopped, he can see visible signs of the
officers’ authority, and he is much less likely to be frightened or
annoyed by the intrusion.
428 U.S. at 558 (internal citations and quotations omitted).
Here, plaintiffs concede the checkpoints—through the use of highway
variable message signs, or the presence of police personnel and
equipment—were visible. (See Dkt. No. 61, Attach. 10 at 31:11-34:7,
Attach. 11 at 27:3-15, Attach. 12 at 34:3-11, Attach. 13 at 12:14-18.) While
plaintiff Alpaugh claims he was surprised by, and apprehensive about
entering, the checkpoint, his claims are immaterial to the checkpoint’s
24
visibility. (See Dkt. No. 64, Attach. 1 at 41-42.)
Secondly, the officers’ discretion at the checkpoints was appropriately
limited. In addition to publishing guidelines on checkpoint operations, and
inspection “cheat sheets” to ensure uniformity, individual officer discretion
was restricted in that all motorcyclists were subjected to a preliminary
inspection in one of two ways: under Plan 1, by requiring all motorcycles to
enter the checkpoints and undergo a brief inspection, or under Plan 2,
through the use of the “point” officer. (Defs.’ SMF ¶¶ 61, 67-70.)
In spite of these facts, plaintiffs claim there were “no set standards for
conducting the inspections,” insofar as officers conducting the checkpoints
retained discretion as to “who to inspect,” “what the inspection should
consist of,” and “what to cite.” (See Dkt. No. 64, Attach. 1 at 43.) This
argument is unavailing because removing all discretion from the officer’s
conducting the checkpoints is unnecessary and impractical. See Prouse,
440 U.S. at 661 (stating an officer’s “standardless and unconstrained
discretion . . . in the field [must] be circumscribed, at least to some
extent.”); William, 603 F.3d at 70 (finding the checkpoint in question there
“constrained officers’ discretion in the areas most important to the
constitutional analysis: the checkpoint occurred at a fixed location, the
25
officers stopped every car passing through, and further investigation
occurred only if individualized suspicion developed.”); cf. Town of Castle
Rock, Colo. v. Gonzales, 545 U.S. 748, 760 (2005) (recognizing a “well
established tradition of police discretion [which] has long coexisted with
apparently mandatory arrest statutes.”).
Here, defendants appropriately limited the officer’s discretion as the
motorcycle checkpoints occurred at fixed locations, every motorcycle was
either stopped or initially inspected,13 and “further investigation occurred
only if individualized suspicion developed.” See William, 603 F.3d at 70.
Finally, there is no material dispute as to the third criterion, the
reasonableness of the time plaintiffs were detained. Though the plaintiffs
dispute the methodology used by the State Police,14 their depositions
13
Plaintiffs argue, and defendants admit, that some motorcycles were allowed to pass
through the checkpoints without inspection. (See Dkt. No. 64, Attach. 1 at 43.) According to
defendants, the checkpoints were temporarily shutdown (i.e., all motorcycles were waived
through) when the commanding officer determined checkpoint resources were overwhelmed
and/or when safety considerations so required. (See Dkt. No. 66 at 20.) Although plaintiffs
note that this authority was not explicitly discussed in the guidelines, safety was undoubtedly a
prevailing concern. (Defs.’ SMF ¶¶ 61-64.) Thus, to the extent plaintiffs are suggesting
defendants should be required to forego safety considerations in order to eradicate all
discretion, the court vehemently disagrees.
14
Irrespective of whether the defendants used Plan 1 or Plan 2 in conducting the
checkpoints—a point plaintiffs belabored in their submissions—their utility far outweighs the
minimal interference to the individuals detained. Even if every rider was stopped for a brief
inspection, as called for in Plan 1, this type of stop is indistinguishable from the checkpoints
previously approved by the Supreme Court. See, e.g., Martinez-Fuerte, 428 U.S. at 566-67;
Sitz, 496 U.S. at 455; Lidster, 540 U.S. at 423-28. Moreover, Plan 2 was even less invasive
given that motorcyclists, unlike automobile drivers, can be observed by simply slowing down
26
establish that, at most, they were detained for 45 minutes. (See Dkt. No.
70 at 6; Pls.’ SMF ¶¶ 20, 28; Defs.’ SMF ¶¶ 91, 98, 112.) Notably, this time
reflects the entirety of the detention, and not just the preliminary inspection.
Because the plaintiffs required secondary inspections—as they were
suspected of, and eventually cited for, wearing illegal helmets—the court
concludes the detentions in question were reasonably necessary to
achieve the checkpoints’ purpose. (See Defs.’ SMF ¶¶ 86-122.)
In sum, the court concludes the checkpoints were enacted to promote
motorcycle safety, a manifest public interest; they were effective in
addressing this interest; and that any interference with individual liberties
was not only minimal, but also grossly outweighed by the interest
advanced. Since the checkpoints were reasonable under the Fourth
Amendment, there was not a constitutional violation, and defendants are
entitled to judgment as a matter of law. Accordingly, defendants’ motion for
summary judgment is granted and plaintiffs’ cross-motion is denied.
B.
Defendants’ Alternative Arguments
Alternatively, defendants argue that even if the checkpoints violated
and riding past a point officer. (See Dkt. No. 61, Attach. 14 ¶ 37.) Indeed, in cases where
there was no visible or suspected violation, the rider did not even have to place his feet on the
ground. (Id.) As such, the court concludes that both methodologies are constitutional.
27
plaintiffs’ Fourth Amendment rights, they are still entitled to summary
judgment on the bases of Eleventh Amendment immunity, a lack of
personal involvement by defendant Swarts, and qualified immunity for all
defendants in their individual capacities. (See Dkt. No. 61, Attach. 2 at 1819, 41-44.) Though they failed to address the Eleventh Amendment
argument, plaintiffs counter, albeit in a cursory fashion, that genuine issues
of fact exist with respect to Swarts’s personal involvement and qualified
immunity. (See generally Dkt. No. 64, Attach. 1; Dkt. No. 70.) The court
agrees with defendants.15
1.
Eleventh Amendment Immunity
Defendants correctly aver they are entitled to summary judgment on
the compensatory damage claims against them in their official capacities.
(See Dkt. No. 61, Attach. 2 at 41.) The Eleventh Amendment shields states
and their agencies, departments, and officials in their official capacities
from suit in federal court, regardless of the relief sought. See Papasan v.
Allain, 478 U.S. 265, 276 (1986). This immunity gives way in only three
circumstances: (1) where it is waived by the state; (2) where it has been
15
While the court’s decision rests firmly on the constitutionality of the checkpoints, the
following provides alternative bases for summary judgment.
28
abrogated by Congress, see Kentucky v. Graham, 473 U.S. 159, 169
(1985); and (3) where a state official is sued in her official capacity for
prospective injunctive relief, see Ex parte Young, 209 U.S. 123, 157
(1908). See also Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir.
1990) (explaining that section 1983 does not abrogate Eleventh
Amendment immunity). Because plaintiffs’ claims do not fall within any of
these recognized exceptions, Eleventh Amendment immunity provides an
alternative basis to grant defendants’ motion with respect to the
compensatory damage claims against them in their official capacities.
2.
Personal Involvement
Next, defendants aver plaintiffs failed to prove Swarts was personally
involved in the alleged misconduct. (See Dkt. No. 61, Attach. 2 at 18-19.)
In response, plaintiffs claim a factual issue exists as to whether Swarts, as
the chairman of the committee that funded the checkpoints, satisfies the
standard for personal involvement. (See Dkt. No. 64, Attach. 1 at 36.)
However, this is not a question of fact.
Damages in a section 1983 claim are only appropriate if the
defendant was personally involved in the alleged constitutional violation.
See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (citations omitted).
29
Ordinarily, the plaintiff must demonstrate that there is a “tangible
connection between the alleged unlawful conduct and the defendant.”
Balkum v. Sawyer, No. 6:06-cv-1467, 2011 WL 5041206, at *4 (N.D.N.Y.
Oct. 21, 2011) (citing Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)).
Where, as here, the defendant is a supervisory official, a link, under the
doctrine of respondeat superior, is inadequate to establish the requisite
personal involvement. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981);
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). Thus, to prevail
against a supervisory defendant, the plaintiff must show that the
supervisor:
(1) directly participated in the violation, (2) failed to remedy the
violation after being informed of it by report or appeal, (3) created
a policy or custom under which the violation occurred, (4) was
grossly negligent in supervising subordinates who committed the
violation, or (5) was deliberately indifferent to the rights of others
by failing to act on information that constitutional rights were being
violated.
Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), rev’d on other grounds, Ashcroft
v. Iqbal, 556 U.S. 662 (2009)).16
16
Notably, the issue of supervisory liability for civil rights violations was addressed by
the Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). In that case, the Court
clarified that a governmental official, regardless of title, is accountable only for his or her
conduct in such a setting, and that as such the term “supervisory liability” is a misnomer. See
30
In the instant case, Swarts’s sole connection to the alleged
constitutional violation was that he chaired the committee responsible for
funding the checkpoints. (See Dkt. No. 61, Attach. 2 at 19.)
Conspicuously absent from plaintiffs’ submissions is proof that Swarts
participated in either the design or execution of the checkpoints, or that he
was responsible for assessing their constitutionality. Moreover, plaintiffs
have not even articulated which of the five Colon prongs they are relying on
to establish personal involvement.
Accordingly, plaintiffs’ inability to establish Swarts’s personal
involvement in the alleged constitutional violation further supports the grant
of defendants’ motion with respect to the claims against Swarts.
3.
Qualified Immunity
Lastly, defendants argue, and plaintiffs contest, that they are entitled
Iqbal, 129 S. Ct. at 1948.
The Second Circuit has yet to address the impact of Iqbal upon the categories of
supervisory liability under Colon. Lower courts have struggled with this issue, and specifically
whether Iqbal effectively calls into question certain prongs of the Colon five-part test for
supervisory liability. See Sash v. United States, 674 F. Supp. 2d 531, 543 (S.D.N.Y. 2009).
While some courts have taken the position that only the first and third of the five Colon
categories remain viable and can support a finding of supervisory liability, see, e.g., Bellamy v.
Mount Vernon Hosp., No.07 CIV. 1801, 2009 WL1835939, at *6 (S.D.N.Y. June 26, 2009),
aff’d, 387 F. App’x 55 (2d Cir. 2010), others disagree and conclude that whether any of the five
categories apply in any particular case depends upon the particular violations alleged and the
supervisor’s participatory role, see, e.g., D’Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347
(S.D.N.Y. 2010). Nevertheless, the court, until instructed to the contrary, continues to apply
the five factor Colon test.
31
to qualified immunity because: (1) plaintiffs’ constitutional rights were not
violated, and (2) even if a right was violated, the unlawfulness of the
checkpoints was not apparent, and thus it was reasonable for them to
believe no rights were violated. (See Dkt. No. 61, Attach. 2 at 42-44.) The
court agrees with the defendants on both grounds.
Determining whether a government official is entitled to qualified
immunity requires an answer to the following questions: (1) was a
constitutionally protected right violated; and if so, (2) was that right “clearly
established at the time of the defendant’s alleged misconduct.” Doninger v.
Niehoff, 642 F.3d 334, 345 (2d Cir. 2011) (internal quotations and citations
omitted). Although their discretion was previously limited, courts may now
conduct this inquiry in the order they deem appropriate. See id. (citing
Pearson v. Callahan, 555 U.S. 223, 241 (2009)). Accordingly, an official is
shielded by qualified immunity if his conduct either did not infringe on a
“clearly established constitutional right, or if it was objectively reasonable
for [him] to believe his conduct did not violate such a right.” Gilles v.
Repicky, 511 F.3d 239, 244 (2d Cir. 2007).
In deciding whether a right is “clearly established,” the court
considers three factors: (1) “was [it] defined with reasonable clarity,” (2) has
32
the Supreme Court or Second Circuit confirmed its existence, and (3)
“would a reasonable defendant understand that his actions are unlawful.”
Doninger, 642 F.3d at 345 (citing Young v. Cnty. of Fulton, 160 F.3d 899,
903 (2d Cir. 1998)). Simply put, the conduct need not be previously
deemed unlawful, but the unlawfulness, in “light of pre-existing law . . .
must be apparent.” Zeiper v. Metzinger, 474 F.3d 60, 68 (2d Cir. 2007)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
As discussed above, the execution of the motorcycle checkpoints did
not violate plaintiffs’ constitutional rights. However, presuming, without
deciding, that a right was violated, the issue here is not whether that right
was clearly established—as rights protected by the Fourth Amendment are
well settled—but whether defendants reasonably believed their conduct
was lawful. The court concludes that it was.
For over thirty years, the Supreme Court, with limited exceptions, has
affirmed the constitutionality of nearly indistinguishable checkpoints. It
follows that defendants reasonably believed that their conduct was lawful,
and thus, are entitled to qualified immunity for all claims against them in
their individual capacities.
C.
Plaintiffs’ Motion for Class Certification
33
In their cross-motion for summary judgment, plaintiffs seek an order
determining that the action be maintained as a class action under Fed. R.
Civ. P. 23(b). (See Dkt. No. 64.) In light of the court’s decision, the motion
is denied as moot.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
61) is GRANTED; and it is further
ORDERED that plaintiffs’ cross-motion for summary judgment and
class certification (Dkt. No. 64) is DENIED; and it is further
ORDERED that all claims against defendants are DISMISSED; and it
is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 17, 2011
Albany, New York
34
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