Veeder et al v. Nutting et al
Filing
69
MEMORANDUM-DECISION AND ORDER denying 61 Motion for Summary Judgment; granting in part and denying in part 62 Motion for Summary Judgment: ORDERS that Defendants' motion for summary judgment is GRANTED in part and DENIED in part; and the C ourt further ORDERS that Plaintiffs' motion for summary judgment is DENIED; and the Court further ORDERS that Defendants Martin, Strack and McDonald are DISMISSED from this action; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/29/13. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DONNA VEEDER, STACY VEEDER and
BRENDAN VEEDER,
Plaintiffs,
vs.
1:10-cv-665
(MAD/CFH)
STEVEN NUTTING, Individually and in his
Official Capacity as an Investigator for the
New York State Police; DAVID BURNS, Individually
and in their Official Capacity as Investigators for the
New York State Police; ROBERT J. MARTIN, Individually
and in their Official Capacity as Investigators for the New
York State Police; KELLY STRACK, Individually and in
their Official Capacity as Investigators for the New York
State Police; DREW McDONALD, Individually and in their
Official Capacity as Investigators for the New York State
Police; GEORGE PORT, Individually and in their Capacity
as Lieutenants for the New York State Police; STEPHEN
HOGAN, Individually and in their Capacity as an Attorney
for the New York State Police,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
OFFICE OF KEITH F. SCHOCKMEL
4 Atrium Drive
Suite 290, Executive Woods
Albany, New York 12205
Attorneys for Plaintiffs
KEITH F. SCHOCKMEL, ESQ.
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants
KELLY L. MUNKWITZ, AAG
MICHAEL G. McCARTIN, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION1
On June 8, 2010, Plaintiffs commenced this civil rights action pursuant to 42 U.S.C. §
1983, alleging that Defendants acted in violation of the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution. See Dkt. No. 1. On May 6, 2011 and May 17,
2011, respectively, Plaintiffs filed a first and second amended complaint. See Dkt. Nos. 25 and
27.
In a March 2, 2012 Memorandum-Decision and Order, the Court granted in part and
denied in part Defendants' partial motion for judgment on the pleadings. See Dkt. No. 50.
Specifically, the Court dismissed Plaintiffs' claims against the New York State Defendants in their
official capacities and dismissed Defendants Burns, Strack, McDonald, Gilliam, Valoze, Hard and
John Doe1 for lack of personal involvement. See id. at 16. Thereafter, in an April 24, 2012
Memorandum-Decision and Order, the Court denied Plaintiffs' motion for reconsideration, but
allowed Plaintiffs to amend their complaint. See Dkt. No. 54. Specifically, the Court found that
the proposed amended complaint sufficiently alleges the personal involvement of Defendants
Burns, McDonald and Strack, thereby curing the deficiencies discussed in the Court's March 2,
2012 Memorandum-Decision and Order. See id. at 12.
Currently before the Court are Defendants' motion for summary judgment and Plaintiffs'
motion for partial summary judgment on the issue of liability.
To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
1
2
II. BACKGROUND2
A.
Relevant background
On or about May 23, 2008, Plaintiff Donna Veeder awoke between 7:00 and 7:30 a.m.,
and discovered that her husband, Garry Veeder, was not in bed. See Dkt. No. 62-1 at ¶ 5.
Plaintiff Donna Veeder looked for her husband and found a Post-It note on the back door that read
"I am in the garage." See id. at ¶ 6. Plaintiff Donna Veeder exited the house and crossed the deck
to the garage, where she found her husband hanging with a plastic bag over his head. See id. at ¶
7.
At this point, Plaintiff Donna Veeder screamed for her daughter, Plaintiff Stacy Veeder,
who was asleep upstairs in the home. See id. at ¶ 8. Plaintiff Stacy Veeder ran to the garage and
saw her father hanging by a rope. See id. at ¶ 9. At this point, Plaintiff Donna Veeder told her
daughter to call 911, which she did. See id. at ¶ 10. The EMTs and the Albany County Sheriff's
Department were the first to respond to the 911 call at approximately 8:00 a.m. See id. at ¶ 11.
Defendant Steven Nutting was on his way to work on the morning of May 23, 2008, when
he received a call from New York State Police Troop G Headquarters in Loudonville, New York.
See id. at ¶ 13. He was directed to report to the scene of an unattended death of a New York State
Police lab employee, i.e., Garry Veeder. See id. at ¶ 13. As he was responding to the scene,
Defendant Nutting called Defendants Burns and Martin and directed both investigators to report
to the scene. See id. at ¶ 14.
Defendant Burns was the first non-uniformed member of the State Police at the scene. See
id. at ¶ 15. Defendant Burns arrived at approximately 8:50 a.m., almost an hour after members of
Unless otherwise noted, the facts contained in the "Background" section of this
Memorandum-Decision and Order are not in dispute.
2
3
the Albany County Sheriff's Department arrived. See id. When he arrived, he saw Timothy Hard
and various members of the Albany County Sheriff's Department in the driveway. See id.
Members of the Albany County Sheriff's Department briefed Defendant Burns on what
they knew, including the fact that it appeared that Garry Veeder hanged himself in his garage. See
id. at ¶ 16. Further, Defendant Burns was advised that Garry Veeder was a civilian employee of
the New York State Police and that the Sheriff's Department was willing to turn its investigation
over to the State Police. See id. Defendant Burns was also informed that Garry Veeder appeared
to have left letters for the members of his family. See id. at ¶ 17; but see Dkt. No. 67-1 at ¶ 17
(denying any inference indicating that anyone knew at that point the content of the letters because
they were still sealed in their envelopes).
Defendant Nutting arrived at the scene approximately five-to-ten minutes after Defendant
Burns. See id. at ¶ 18. Defendant Burns and Craig Apple, Undersheriff for the Albany County
Sheriff's Department, briefed Defendant Nutting about the situation. See id. at ¶ 19. They
informed Defendant Nutting about the existence of the letters and Undersheriff Apple confirmed
that Garry Veeder was a civilian employee with the State Police. See id.
According to Defendants, because Garry Veeder was a civilian employee with the State
Police, Undersheriff Apple offered to turn the investigation over to Defendant Nutting, which
Defendant Nutting accepted. See id. at ¶ 20. Further, Defendants claim that, "[g]enerally, when
an investigation concerns an employee of a law enforcement agency, that agency assumes control
over the investigation." See id. Defendant Nutting subsequently appointed Defendant Burns as
lead investigator. See id. at ¶ 21.3
At this point, the parties recollections of the events that transpired begin to differ
substantially.
3
4
After being advised that Garry Veeder's wife was in the house, Defendant Burns entered
the house through the back door to speak to her. See id. at ¶ 22. Defendant Burns found Plaintiff
Donna Veeder in her kitchen speaking with Albany County Sheriff Investigator Higgins. See id.
at ¶ 23. Investigator Higgins introduced Defendant Burns to Plaintiff Donna Veeder. See id.
Defendant Burns advised Plaintiff Donna Veeder that the State Police were taking over the
investigation. See id. at ¶ 24. Initially, Plaintiff Donna Veeder was upset to hear that the State
Police were taking over the investigation because of her belief that the State Police drove her
husband to suicide. See id. Defendant Burns explained that he did not know Garry Veeder and
that he merely wanted to rule out criminality in connection with Mr. Veeder's death. See id.
At this point, Plaintiff Donna Veeder had paperwork sitting in front of her on the kitchen
table, which she proceeded to take into another room. See id. at ¶ 25; Dkt. No. 67-1 at ¶ 25.
Defendant Burns was advised that Garry Veeder had left letters to his family and, although the
envelopes were still sealed, they believed that they may be relevant to their investigation. See id.;
Dkt. No. 67-1 at ¶ 25.
When Plaintiff Donna Veeder returned to the kitchen table to continue talking to the
investigators, Defendant Burns informed her that he would need to secure as evidence the folder
with the letters inside in the investigation into her husband's death. See id. at ¶ 26. Plaintiff
Donna Veeder advised Defendant Burns that she would like to contact her attorney and proceeded
to do so. See id. at ¶ 27. Defendant Burns then spoke with Plaintiff Donna Veeder's attorney,4
who advised Defendant Burns that the letters to Plaintiff Donna Veeder and himself were not to
be seized by the State Police. See id. at ¶ 28. Defendant Burns informed Plaintiffs' attorney that
Although Defendants identify the attorney as Steven Kouray, Plaintiffs state that it was
an attorney from Steven Kouray's office, and believe that it was Brian Mercy. See Dkt. No. 62-1
at ¶ 28; Dkt. No. 67-1 at ¶ 28.
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he was "going to secure the stuff" and that the attorney could address the issue with his bosses.
See Dkt. No. 67-1 at ¶ 28 (citation omitted).
At this point, Defendant Burns went outside to advise his supervisor, Defendant Nutting,
about the issues regarding the letters. See Dkt. No. 62-1 at ¶ 30. Defendant Nutting then entered
the house to speak to Plaintiff Donna Veeder and informed her that they needed to secure the
letters as part of their investigation. See id. at ¶ 31; Dkt. No. 67-1 at ¶ 31. Plaintiff Donna Veeder
again objected and argued that securing the letters was unnecessary because her husband's death
was obviously a suicide. See id. at ¶ 32. Defendant Nutting explained to her that all death
investigations are considered homicides until all the evidence is collected and reviewed, and that
such evidence will include letters, physical evidence from the immediate scene and autopsy
results. See id. at ¶ 33.5 At no point did Defendants attempt to obtain a search warrant.
Eventually, Plaintiff Donna Veeder relinquished the folder containing the letters and then
called her attorney. See id. at ¶ 34. Defendant Nutting stepped outside to give Plaintiff Donna
Veeder privacy for her telephone call. See id. at ¶ 35. Upon speaking with her attorney, Steven
Kouray, Mr. Kouray spoke with Defendant Nutting and informed him that "under no
circumstances was that stuff [the letters] to leave the house[.]" See Dkt. No. 67-1 at ¶ 35. Mr.
Kouray asserted spousal and attorney/client privilege as his grounds for denying Defendant
Nutting access to the letters. See id.
Plaintiffs admit that Defendant "Nutting told Donna Veeder that he could take anything
he wanted" but "[d]eny that there was any suspicion on any defendant's part that evidence of a
crime was present at the Veeder residence." See Dkt. No. 67-1 at ¶ 33. Throughout their
response, Plaintiffs repeatedly contend that Defendants inappropriately characterize their presence
at Plaintiffs' home as an "investigation" and complain that Defendants are implying that there was
evidence of criminal activity or that they ever suspected such. Therefore, many of the denials in
Plaintiffs' response to Defendants' statement of material facts do not deny the substance of
Defendants' assertion, but simply object to any implication that they suspected criminal activity in
relation to Garry Veeder's suicide.
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6
According to Defendant Nutting, the objection to his seizure of the letters presented him
with a novel issue and, therefore, he contacted both Division Counsel's Office and the Albany
County District Attorney's Office. See Dkt. No. 62-1 at ¶ 36. Defendant Stephen P. Hogan, First
Deputy Counsel for the New York State Police, does not recall any conversation with Defendant
Nutting concerning Garry Veeder. See id. at ¶ 38. Defendant Hogan stated in his declaration,
however, that it would not be his practice to advise Defendant Nutting, or any member of the State
Police, to search or seize evidence without a warrant, consent, or another exception to the warrant
requirement. See id. at ¶ 39 (citation omitted). Plaintiffs, however, contend that Defendant Port
testified that, pursuant to Defendant Hogan's direction, he searched (opened) Plaintiffs' property.
See Dkt. No. 67-1 at ¶ 39. Further, Plaintiffs claim that Defendant Nutting averred in his answer
to the initial complaint that he "'followed legal advice [in seizing the letters], and placed the
envelopes in a sealed evidence bag,'" and that Defendant Nutting subsequently identified
Defendant Hogan as the individual who provided him with this "legal advice." See id. (quotation
omitted). After the letters were sealed in an evidence bag, Defendant Nutting provided the letters
to Defendant Kelly Strack, a member of the Forensic Identification Team ("FIU"), and did not see
the folder or letters after relinquishing them to her. See Dkt. No. 62-1 at ¶ 41.
B.
The search of the residence
Defendants Drew McDonald and Kelly Strack, members of the FIU, were also assigned to
investigate the unattended death of Garry Veeder. See id. at ¶¶ 42-43. The FIU is a support unit
that assists the State Police, Sheriff's Departments, and local police agencies with documentation,
collection, preservation and processing of physical evidence and crime scenes. See id. at ¶ 44.
When Defendants Strack and McDonald arrived at the Veeders' residence, they were
7
briefed in the driveway by State Police members already at the scene. See id. at ¶ 45. They were
advised that Plaintiff Donna Veeder found a Post-It note on the inside of the back door advising
that her husband was in the garage, and that when she entered the garage, she found her husband
hanging from a rope with a plastic bag over his head. See id.
Prior to processing the scene, Defendant Strack and/or Defendant McDonald asked
Defendant Burns whether they had consent to search or whether they needed a warrant. See id. at
¶ 46. At this point, Defendant Burns returned to the house to ask Plaintiff Donna Veeder if she
would consent to the search. See id. at ¶ 47. Defendant Burns provided Plaintiff Donna Veeder
with the consent form, which she signed. See id. Defendants McDonald and Strack were
provided with Plaintiff Donna Veeder's written consent and began processing the scene at
approximately 9:44 a.m. See id. at ¶¶ 49, 52. Defendants Strack and McDonald commenced by
photographing the property and then proceeded to work their way into the garage and house. See
id. at ¶ 51. During the search, Defendant McDonald discovered and seized an attache case, which,
according to Defendants, "contained documents that appeared to establish that Garry Veeder was
having problems at work. Because problems at work would tend to support a conclusion of
suicide, Investigator McDonald secured the attache case as evidence." See id. at ¶ 53.
Plaintiff Donna Veeder's rendition of the search of her residence differs considerably from
Defendants'. According to Plaintiff Donna Veeder, after her daughter returned to the residence
after giving her statement, Defendants Nutting and Burns informed her that she and her family
needed to leave the residence because "they intended to search [her] home and [she] could not be
present." See Dkt. No. 67-3 (Aff. of Donna Veeder dated Aug. 14, 2012) at ¶ 20. Plaintiff Donna
Veeder claims that she then informed Defendants Nutting and Burns that she believed that they
needed a warrant, "to which Nutting responded, shouting, to the effect that he could do anything
8
he wanted as my house was a 'crime scene.'" See id. at ¶ 21. Moreover, she claims that Defendant
Nutting added that if the Veeders refused to leave, he would "tape off" their home and prevent
their reentry. See id. at ¶ 22. Furthermore, she claims that Defendant Burns "screamed at [her]
that he would go through every room and every item in [their] home and [the Veeders] would be
unable to get back into it for days." See id. at ¶ 23. Plaintiff Donna Veeder claims that, at this
point, she was feeling extremely ill and "no longer able to battle with defendants." See id. at ¶ 24.
Further, Plaintiff Donna Veeder contends that it was clear that "my objections would be
futile, just as they had been with respect to my husband's letters." See id. at ¶ 25. She contends
that no member of the New York State Police asked her if she would grant them permission to
search her home and that, had they asked her permission, she would have denied the request. See
id. at ¶¶ 26-27. Moreover, although Plaintiff Donna Veeder contends that, at no point did she
consent to the search of her home, she concedes that, in response to this litigation, Defendants
have produced a document, containing her signature, granting them permission to search her
home. See id. at ¶¶ 28-30. Plaintiff Donna Veeder claims that, although she signed papers during
the day, such as a statement with respect to the events that had occurred, she was devastated by
what had occurred, rendering her unable to read and simply "signed papers that were placed in
front of me after being told what they were." See id. at ¶ 32. Plaintiff Donna Veeder asserts that
"it is possible that in my distraught condition I signed the purported consent believing it to be
something different[,]" and that, if she did sign the document, she was unaware of its content "and
certainly never informed that it was a document granting New York State Police permission to
search my home." See id. at ¶¶ 33-34. Moreover, she claims that Defendants were aware she did
not consent to a search of her home "because I specifically said so as we were preparing to leave
(after my daughter, Stacy, had returned from the automobile of one of the defendants)." See id. at
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¶ 36. In response to these objections, Plaintiff Donna Veeder asserts that "Defendant[s] Nutting
and Burns both responded that they did not need a warrant, and [that] my home was going to be
searched." See id. at ¶ 39.
C.
Interviews of Plaintiffs Stacy and Donna Veeder
At some point during the investigation, Defendant Martin was directed to take supporting
depositions from Plaintiffs Donna and Stacy Veeder. See id. at ¶ 55. Since Plaintiff Donna
Veeder was otherwise occupied, Defendant Martin, accompanied by another member of the State
Police, informed Plaintiff Stacy Veeder that they needed her to give a statement. See id. at ¶ 56;
Dkt. No. 67-1 at ¶ 56. Plaintiff Stacy Veeder was visibly and understandably upset, but she was
cooperative. See id. at ¶ 57. According to Defendants, because there were so many distractions in
the house, Defendant Martin suggested that he take Plaintiff Stacy Veeder's statement in his
vehicle, which was parked in front of the house. See id. at ¶ 58. Defendant Martin, who sat in the
driver seat, asked Plaintiff Stacy Veeder, who sat in the passenger seat, questions about that
morning and the previous night, which he transcribed on a form known as a "General Deposition."
See id. at ¶ 59.6
During the interview, Defendant Martin asked Plaintiff Stacy Veeder questions about her
father, including issues he was having at work, issues he was having with co-workers, issues
between her parents, and whether her father had a history of mental illness. See id. at ¶ 60. When
the interview was over, Defendant Martin provided Plaintiff Stacy Veeder with a written
statement for her to sign, which she did. See id. at ¶ 61. After signing the deposition, Plaintiff
Plaintiffs admit this allegation, but "[d]eny that his writing was an accurate representation
of her responses." See Dkt. No. 67-1 at ¶ 59.
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Stacy Veeder returned to the house. See id. at ¶ 62. The deposition started at approximately 9:25
a.m., and concluded at approximately 9:45 a.m. See id.
At one point during the interview, a woman approached the car on the passenger side. See
id. at ¶ 63. When Plaintiff Stacy Veeder opened the car door, Defendant Martin leaned over the
console and advised the woman that Plaintiff Stacy Veeder was giving a statement, but that they
were almost done. See id. Although Defendants contend that Plaintiff Stacy Veeder voluntarily
closed the vehicle's door, Plaintiffs contend that Defendant Martin "clearly conveyed to Stacy
Veeder that she could not leave the car until she provided a statement." See id. at ¶ 64; Dkt. No.
67-1 at ¶ 64. Moreover, although Plaintiffs admit that Plaintiff Stacy Veeder never asked to get
out of the car during the interview, "Plaintiffs note, however, that acquiescence to a show of
authority does not constitute consent." See id. at ¶ 65; Dkt. No. 67-1 at ¶ 65. Further, although
Plaintiff Stacy Veeder was permitted to keep her hand on the car door's handle in case she needed
to throw up, Plaintiffs contend that she was "made aware that she was not to leave the vehicle[.]"
See id. at ¶ 66; Dkt. No. 67-1 at ¶ 66.
After finishing Plaintiff Stacy Veeder's interview, Defendant Martin interviewed Plaintiff
Donna Veeder. See id. at ¶ 67. Since the family was getting ready to leave the house to stay with
a friend, Defendant Martin drove to the friend's house in Guilderland, New York to take Plaintiff
Donna Veeder's statement. See id. at ¶ 68. At the conclusion of Plaintiff Donna Veeder's
interview, Defendant Martin provided her with a supporting deposition form that he transcribed
during the interview, which she signed and initialed on both pages. See id. at ¶ 69.
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D.
The suicide notes
May 23, 2008, was the Friday preceding Memorial Day weekend. See id. at ¶ 70. The
following Tuesday, May 27, 2008, Defendant Port, Defendant Hogan, and an Albany County
Assistant District Attorney had a telephone conference concerning Garry Veeder's letters in the
folder, the issue of privilege, and the fact that the family wanted the letters back. See id.
According to Plaintiffs, Defendant Hogan advised Defendant Port to open and photocopy the
letters. See id. at ¶ 71. At this point, Defendant Port asked the FIU team to bring him the folders
containing the letters, which were still sealed in an evidence bag. See id. at ¶ 72. Defendant Port
then opened the bag, reviewed the contents of the letters, found that they were consistent with
suicide notes, and directed that copies be made and the originals returned to the family. See id. at
¶¶ 73-74.
E.
The Court's March 2, 2012 Memorandum-Decision and Order and Plaintiffs' motion
to amend
In its March 2, 2012 Memorandum-Decision and Order, the Court granted in part
Defendants' motion for judgment on the pleadings. See Dkt. No. 50. Specifically, as relevant
here, the Court found that "the only allegation against Defendants Burns, Strack, McDonald,
Gilliam, Valoze, Hard and John Doe1 is that they are all employed, in some capacity, by the New
York State Police. . . . Plaintiffs do not allege that these Defendants engaged in any of the alleged
unconstitutional conduct, or that they engaged in any conduct that would subject them to
supervisory liability." See id. at 9-10. As such, the Court dismissed these Defendants from this
action for lack of personal involvement in the alleged unconstitutional conduct. See id. at 10.
In response to the Court's March 2, 2012 Memorandum-Decision and Order, Plaintiffs
moved for reconsideration and, in the alternative, to amend their complaint. Although the Court
12
denied Plaintiffs' motion for reconsideration, it granted Plaintiffs' motion to amend their
complaint. See Dkt. No. 54. Specifically, the Court found that "Plaintiffs have now sufficiently
alleged the personal involvement of Defendants Burns, McDonald and Strack, curing the
deficiencies discussed in the Court's March 2, 2012 Memorandum-Decision and Order." See id. at
12.
Currently before the Court are Defendants' motion for summary judgment and Plaintiffs'
motion for partial summary judgment as to liability.
III. DISCUSSION
A.
Defendants' motion for summary judgment
1. Summary judgment standard
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the
13
non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party’s Rule 56.1 statement; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
2. Relief under 42 U.S.C. § 1983
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.
Ed. 2d 619 (1979)) (other citation omitted).
3. Personal involvement
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
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complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.
Ed. 2d 619 (1979)) (other citation omitted).
"[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (internal quotation and citations omitted). "'[W]hen monetary damages are sought under §
1983, the [] doctrine of respondeat superior does not suffice and a showing of some personal
responsibility of the defendant is required.'" Id. (quotation omitted). There is a sufficient showing
of personal involvement of a defendant if (1) the defendant directly participated in the alleged
constitutional deprivation; (2) the defendant is a supervisory official who failed to correct the
wrong after learning about it through a report or appeal; (3) the defendant is a supervisory official
who created a policy or custom under which the constitutional deprivation occurred, or allowed
such a policy or custom to continue; or (4) the defendant is a supervisory official that was grossly
negligent in managing subordinates who caused the constitutional deprivation. See Williams v.
Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted).
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a. Stephen P. Hogan – Search & Seizure
Defendants contend that Plaintiffs have failed to substantiate their conclusory allegations
that Defendant Hogan was personally involved in the alleged unconstitutional search and seizure.
See Dkt. No. 62-33 at 12-13. Specifically, Defendants claims that, "[o]ther than plaintiffs'
unsubstantiated allegation, there is no evidence that Attorney Hogan took a telephone call from
Senior Investigator Nutting in connection with the investigation into Garry Veeder's death. Senior
Investigator Nutting has no recollection of speaking with Attorney Hogan on the day of Garry
Veeder's death. . . . Similarly, Attorney Hogan has no recollection of such a telephone call. . . ."
See id. (internal citations omitted).
Plaintiffs, however, contend that, "[n]otwithstanding Nutting's recent amnesia and Hogan's
faulty memory, there is much more than 'plaintiffs' unsubstantiated allegation' that Stephen Hogan
took a telephone call from defendant Nutting; Nutting himself stated Hogan took the call." See
Dkt. No. 67-2 at 6-7. Further, Plaintiffs claim that the evidence shows that Defendant Hogan
advised a member of the New York State Police to "'perform a search without consent'" and that
he admits that he "'may have told then-Lieutenant Port to copy the letters for the file.'" See id. at 7
(citations omitted). Plaintiffs claim that opening and copying the letters constituted a search, that
there was no consent or warrant to justify copying the letters, and argue that just because the
letters were thought to be suicide notes cannot be construed as an exception to the warrant
requirement. See id.
Contrary to Defendants' assertions, questions of fact preclude the Court from granting
Defendant Hogan summary judgment on this ground. Although Defendant Hogan asserts that he
has no recollection of receiving a telephone call from Defendant Nutting on May 23, 2008 and
that he would never advise the State Police to conduct a search without a warrant, consent or other
16
exception, Defendant Nutting asserts that he spoke with "our General Counsel's office" that day.
Moreover, during his deposition, Defendant Nutting testified that, after he spoke with Plaintiffs'
attorney, he called "Division Counsel, our attorneys with the New York State Police." See Dkt.
No. 66-1 at 70-71. Although he stated that he was not sure if he spoke with Defendant Hogan or
another attorney, he stated that it "[c]ould have been Stephen Hogan." See id. at 72. Since a
determination of whether Defendant Hogan was personally involved in this conduct will
necessarily require credibility determinations, it is inappropriate for disposition at the summary
judgment stage.
Based on the foregoing, the Court finds that questions of fact preclude granting
Defendants' motion for summary judgment on this ground.
b. Stephen P. Hogan and George Port – opening the letters
Defendants contend they were "unable to find any legal authority for the proposition that
opening up letters after they were seized constitutes a Constitutional deprivation. Accordingly,
Count XIII does not establish that Attorney Hogan and/or George Port were personally involved in
a constitutional violation." See Dkt. No. 62-23 at 13.
It is clear that Defendants argument on this point does not go to the personal involvement
of Defendants Hogan and Port, but rather to their belief that their act of opening and copying the
suicide notes on May 27, 2008 did not constitute a constitutional violation, regardless of whether
the initial seizure of the notes was a constitutional violation. As such, this argument will be
addressed in the Court's substantive discussion of whether this conduct, construing the facts in
Plaintiffs' favor, was a violation of their Fourth Amendment rights.
17
c. All Defendants other than Investigator Martin as to Count V
Defendants contend that all Defendants other than Defendant Martin should be dismissed
for lack of personal involvement as to Plaintiff Stacy Veeder's false arrest claim based upon
Defendant Martin's questioning of her. See Dkt. No. 62-23 at 13. "Plaintiffs concede that it
appears that defendant Martin acted alone in the seizure of Stacy Veeder." See Dkt. No. 67-2 at 8.
In light of Plaintiffs' concession and in view of the undisputed facts, the Court finds that
Defendant Martin was the only Defendant personally involved in the unconstitutional conduct
alleged in Count V. Therefore, Defendants' motion for summary judgment on this ground is
granted.
d. All Defendants other than Nutting and Burns as to seizure of the letters
Defendants contend that Defendants Nutting and Burns were the only Defendants involved
in seizing the letters. See Dkt. No. 62-23 at 14. Defendants claim that Plaintiff Donna Veeder
objected to Defendant Burns regarding turning over the folder containing the letters and, after
Defendant Burns advised his supervisor about her objection, she eventually relinquished the folder
to Defendant Nutting. See id. (citations omitted). Plaintiffs, however, contend that Defendants
Nutting, Burns, Hogan and Port were all directly involved with seizing the letters. See Dkt. No.
67-2 at 8. Specifically, Plaintiffs contend that Defendant Hogan advised Defendant Nutting, by
telephone, to seize and copy the letters. See id. at 6-7. Further, Plaintiffs claim that "defendant
Port, who was there [in] a supervisory capacity, was apprised at the scene by defendant Nutting
that Garry Veeder had left what appeared to be suicide letters to his family and that Donna Veeder
objected to the State Police seizing them. Nonetheless, Port authorized their seizure." See id. at 8
(citing Port, 46-47).
18
As Plaintiffs' correctly contend, questions of fact preclude granting Defendants motion on
this ground. Defendant Port's statement that he authorized the seizure of the letters, and the
questions of fact discussed above regarding whether Defendant Hogan advised the State Police
that they could search the residence and seize the letters without consent or a warrant preclude the
Court from granting Defendants' motion. See Dkt. No. 66-5 at 43-45.
Based on the foregoing, the Court finds that Plaintiffs' have put forth sufficient evidence
establishing that Defendants Nutting, Burns, Hogan and Port were all directly involved with
seizing the letters.
e. All Defendants other than Defendants Strack and McDonald as to the search
of Plaintiffs' residence
Defendants contend that "[t]here is no evidence that any defendant other than Investigator
McDonald and Investigator Strack, both members of the Forensic Identification Unit, searched the
scene of Garry Veeder's unattended death. Accordingly, all other defendants should be granted
summary judgment on plaintiffs' illegal search claims for lack of personal involvement." See Dkt.
No. 62-23 at 24 (footnote omitted). Plaintiffs, however, contend that Defendant Burns was
personally involved because he "set in motion the illegal search" of their home. See Dkt. No. 67-2
at 8. Further, Plaintiffs argue that Defendant Port conceded that he "went through plaintiffs'
home," and, therefore, he was personally involved in these claims. See id. (citing Port, 38).
Moreover, Plaintiffs argue that, similar to Defendant Burns, Defendant Port was present on the
scene in a supervisory capacity. See id.
Again, issues of fact preclude the Court from granting Defendants' motion on the illegal
search claim as to Defendants Strack, McDonald, Burns and Port. As Plaintiffs correctly argue,
there is evidence in the record that Defendant Burns "set in motion" the allegedly illegal search
19
and perhaps failed to stop the search once it became clear that Plaintiff Donna Veeder no longer
(if at all) wished to consent to a search of her home. See Dkt. No. 62-1 at ¶¶ 46-47. Moreover,
Defendant Port testified that he walked through Plaintiffs' residence, accompanied by Defendant
Nutting and that he was present at the scene in a supervisory capacity. See Dkt. No. 66-5 at 3840.
As such, questions of fact remain as to whether Defendants Burns and Port were
personally involved in the search of Plaintiffs' residence.
4. Illegal search under the Fourth Amendment
The Fourth Amendment protects individuals in their homes "against unreasonable searches
and seizures." U.S. Const. amend. IV. "A warrantless search is 'per se unreasonable . . . subject
to only a few specifically established and well-delineated exceptions.'" United States v. Elliott, 50
F.3d 180, 185 (2d Cir. 1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.
2041, 36 L. Ed. 2d 854 (1973)).
It is firmly established that the Fourth Amendment only proscribes unreasonable searches
and seizures. See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619 (1989) (citations
omitted). The permissibility of a search "'is judged by balancing its intrusion on the individual's
Fourth Amendment interests against its promotion of legitimate governmental interests.'" Id.
(quotation and other citation omitted).
In Ruggiero v. Krzeminski, the Second Circuit held that although a search conducted
without a warrant is
presumptively unreasonable . . . [t]he operation of this presumption
. . . cannot serve to place on the defendant the burden of proving
that the official action was reasonable. Rather, the presumption
20
may cast upon the defendant the duty of producing evidence of
consent or search incident to an arrest or other exceptions to the
warrant requirement. However, the ultimate risk of nonpersuasion
must remain squarely on the plaintiff in accordance with established
principles governing civil trials.
Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991) (internal and other citations omitted).
"To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person's
house as unreasonable per se, . . . one 'jealously and carefully drawn' exception . . . recognizes the
validity of searches with the voluntary consent of an individual possessing authority[.]" Georgia
v. Randolph, 547 U.S. 103, 109 (2006) (internal quotation and citations omitted); accord United
States v. Matlock, 415 U.S. 164, 171 (1974); Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d
Cir. 2002) (citation omitted). Although mere acquiescence to a police officer's order to allow
entry is insufficient to establish consent, voluntary consent can be both express or implied by
actions or conduct. See United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (citations
omitted).
The scope of an individual's consent under the Fourth Amendment is a question of fact.
See United States v. Gandia, 424 F.3d 255, 265 (2d Cir. 2005). The standard for measuring that
scope is objective reasonableness, namely, what would a "reasonable person have understood by
the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991).
Finally, even after a person has expressly consented to a search of his home, he may subsequently
limit or revoke that consent. See Lavin v. Thornton, 959 F. Supp. 181, 190 (S.D.N.Y. 1997)
(citations omitted).
In the present matter, Defendants have produced a consent form signed by Plaintiff Donna
Veeder permitting a search of Plaintiffs' residence. See Dkt. No. 62-8 at 8. This consent provides
Defendant Burns and "member(s) of the New York State Police [permission] to conduct a search
21
of" Plaintiffs' "residence and garage." See id. The consent form further provides that the "State
Police" may search "the entire premises, including the contents of any containers or boxes found
thereon." See id. Further, the form states that consent is being given freely and voluntarily, that
Plaintiff Donna Veeder understands that she does not need to consent to a search, and that "[n]o
threats or force were used by any member of the State Police to obtain my consent." See id. The
consent form is signed by Plaintiff Donna Veeder and indicates that it was signed on May 23,
2008, at 9:34 a.m. See id.
Although Plaintiff Donna Veeder does not recall signing the document, she does admit
that the signature on the consent form appears to be hers. She contends, however, that she never
would have knowingly signed such a document giving the New York State Police authority to
search her premises and that, given the mental state she was in at the time, she may have signed
this document not knowing what it was. Further, Plaintiff Donna Veeder contends that she
repeatedly told Defendants that they she did not consent to them searching her home and that she
believed that a warrant was required for what they were doing. See Dkt. No. 67-3 at ¶¶ 33-37.
Moreover, she contends that in response to her objections, Defendants Nutting and Burns
informed her that they did not need a warrant to conduct the search and that the search would be
going forward. See id. at ¶ 39. Moreover, Plaintiff Donna Veeder contends that, upon talking to
her attorney, both she and her attorney informed Defendants that the letters left by Garry Veeder
were not to be taken because they were privileged.
Although Defendants did obtain a signed consent form to search Plaintiffs' residence and
the items found therein, questions of fact exist as to whether the written consent was freely and
voluntarily given in light of Plaintiff Donna Veeder's emotional state. See United States v. Dunn,
957 F.2d 499, 503 (7th Cir. 1992) (holding that "the fact that a consenting party is extremely upset
22
at the time she consents is not dispositive. . . . [A]bsent a showing that her emotional distress was
so profound as to impair her capacity for self-determination or understanding of what the police
were seeking, it is not enough to tip the balance towards finding that her consent was involuntary"
(internal citations omitted)). Further, questions of fact exist as to when and if Plaintiff Donna
Veeder withdrew her consent for the search, thereby requiring Defendants to obtain a warrant to
continue with the search. See Lavin, 959 F. Supp. at 190 (citations omitted); see also United
States v. O'Brien, 498 F. Supp. 2d 520, 537 (N.D.N.Y. 2007) (holding that "[i]f a defendant later
withdraws consent, the withdrawal is relevant to whether he earlier understood his right to
withhold it" (citations omitted)).
Based on the foregoing, the Court denies Defendants' motion for summary judgment as to
Plaintiffs' Fourth Amendment illegal search claim.
5. Illegal seizure under the Fourth Amendment
Defendants contend that, because they were validly in Plaintiffs' residence, and because
the nature of the suicide notes was readily available, they were entitled to seize the suicide notes
under the "plain view doctrine." See Dkt. No. 62-23 at 16-19. Plaintiffs, however, contend that
Defendants were not validly in their residence and, regardless of whether they were permitted to
be in their residence, the plain view doctrine is inapplicable to the present matter because this was
not a criminal investigation. See Dkt. No. 67-2 at 10-12.
A plain view seizure is authorized if the police are lawfully in a position to view an object,
if the object's incriminating character is readily apparent, and if they have a lawful right of access
to the object. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (citations omitted). The
police must have probable cause to believe that the object in plain view is contraband or
23
constitutes incriminating evidence in order to seize it. See Arizona v. Hicks, 480 U.S. 321, 326
(1987).
First, contrary to Plaintiffs' contention, the plain view doctrine has been held to be
applicable to investigations into an alleged suicide, even when no criminal activity is suspected.
See Earle v. City of Vail, 146 Fed. Appx. 990, 994 (10th Cir. 2005) (finding that the plaintiffs'
Fourth Amendment rights were not violated because the plain view doctrine permitted the police
officers to seize the suicide letters and noting that, "[w]hile the notes were not necessarily
incriminating, they were, on their face, directly relevant to the police officers' investigation of
Michael Earle's death"). Unlike the situation in Earle, however, issues of fact remain as to
whether and when Plaintiff Donna Veeder withdrew or otherwise limited her written consent
permitting Defendants "to search the entire premises, including the contents of any containers or
boxes found thereon." See Dkt. No. 62-8 at 8. If Plaintiff Donna Veeder withdrew or otherwise
limited her consent, then, depending on when this occurred, Defendants may not have been
lawfully in a position to view the object. Moreover, although the letters were addressed to Garry
Veeder's family, it is not clear that the object's nature was readily apparent to Defendants.7
The Court notes that the record is far from clear regarding the time line of events on May
23, 2008. For example, Mr. Kouray testified that he received a call from Plaintiff Donna Veeder
at approximately 8:00 a.m. See Dkt. No. 66-3 at 11. According to Mr. Kouray, during this call,
Plaintiff Donna Veeder informed him that members of the New York State Police were there and
that they intended to take items from her home, including the suicide notes. See id. at 11-12.
However, Defendant Burns, who was the first non-uniformed member of the State Police on
scene, testified that he arrived on scene at approximately 8:50 a.m. See Dkt. No. 62-1 at ¶ 15.
Moreover, Defendant Nutting testified that he arrived shortly after Defendant Burns and that
Uniform Trooper Timothy Hard was there as well. See Dkt. No. 66-1 at 38. According to
Defendants, it was not until after Defendant Nutting arrived and appointed Defendant Burns to
lead the investigation that Defendant Burns entered Plaintiffs' house and spoke with Plaintiff
Donna Veeder. See Dkt. No. 62-1 at ¶¶ 21-25. Defendants claim Plaintiff Donna Veeder went
into another room shortly after Defendant Burns first spoke with her and, when she returned to the
kitchen, Defendant Burns first informed her that he would need to secure as evidence the folder
7
(continued...)
24
Based on the foregoing, the Court denies Defendants' motion for summary judgment on
this ground.
6. Interrogation of Plaintiff Stacy Veeder
As a general matter "[t]here is nothing in the Constitution which prevents a policeman
from addressing questions to anyone on the streets. Absent special circumstances, [however,] the
person approached may not be detained or frisked but may refuse to cooperate and go on his way."
Terry, 392 U.S. at 34 (White, J., concurring). What little authority exists on this question
suggests that police have less authority to detain those who have witnessed a crime for
investigatory purposes than to detain criminal suspects. See 4 Wayne R. LaFave, SEARCH &
SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.2(a), at 289 (4th ed. 2004). Accordingly,
some courts have prohibited the involuntary detention of witnesses to a crime. See United States
v. Ward, 488 F.2d 162, 169-70 (9th Cir. 1973) (en banc); see also United States ex rel. Hampton
v. Fews, 187 F. Supp. 2d 981, 988-90 (N.D. Ill.), rev'd on other grounds, 296 F.3d 560 (7th Cir.
2002); Perkins v. Click, 148 F. Supp. 2d 1177, 1184 (D.N.M. 2001) (citation omitted); Orozco v.
County of Yolo, 814 F. Supp. 885, 893 (E.D. Cal. 1993).
The Fourth Amendment protects people from unreasonable searches and seizures. See
U.S. Const. amend. IV. However, "[n]ot every encounter between a police officer and an
individual is a seizure implicating the fourth amendment's protections." United States v. Lee, 916
F.2d 814, 819 (2d Cir. 1990) (citation omitted). In order to invoke the Fourth Amendment, a
7
(...continued)
with the letters inside. See id. at ¶ 28. It was at this point that Plaintiff Donna Veeder first
attempted to call Mr. Kouray, but he was not there so she instead spoke with another attorney at
his office. See id.; Dkt. No. 67-1 at ¶ 28.
25
plaintiff must demonstrate that, in light of the totality of the circumstances, "a reasonable person
would have believed that [s]he was not free to leave." United States v. Mendenhall, 446 U.S. 544,
554 (1980) (citation omitted). "In other words, a seizure occurs only when a reasonable person
would feel restrained by physical force or a show of authority." Gardiner v. Incorporated Village
of Endicott, 50 F.3d 151, 155 (2d Cir. 1995) (citation omitted). "As long as the person to whom
questions are put remains free to disregard the questions and walk away, there has been no
intrusion upon that person's liberty or privacy as would under the Constitution require some
particularized and objective justification." Mendenhall, 446 U.S. at 554 (citation omitted). As
recently held by this Court, "[i]f . . . the encounter with the police occurs in the plaintiff's home,
the Court must determine whether a reasonable person in the plaintiff's position would have felt
that she was free to disregard the officer and leave her home without consequence." Clarke v.
County of Broome, No. 1:10-CV-399, 2012 WL 1005086, *7 (N.D.N.Y. Mar. 23, 2012) (citation
omitted).
In the present matter, questions of fact prevent the Court from granting Defendants' motion
for summary judgment. Plaintiffs were not suspected of engaging in any criminal activity, but
were simply questioned as witnesses so that Defendants could obtain information for their
investigation. Although Defendants assert that all unattended deaths which appear to be suicides
are investigated as possible homicides, Defendants have not once asserted that Plaintiffs were the
subject of any criminal investigation or that they were suspected of criminal activity. Despite this,
Defendants undoubtedly had an interest in interviewing Plaintiffs for any relevant information
they might have surrounding Garry Veeder's death.
Although a brief interrogation to obtain Plaintiffs' names and other basic information (and
statements if and when they were willing to provide a deposition statement) could be justified,
26
there is no indication in this matter that any exigencies were present that would require a detention
for investigative purposes. See Walker, 451 F.3d at 1149. Although a jury may in fact determine
that Plaintiff Stacy Veeder was not "seized" or that a reasonable person would have felt "that she
was free to disregard the officer and leave . . . without consequence[,]" Clarke, 2012 WL
1005086, at *7, questions of fact exist which preclude the Court from granting Defendants'
motion.
Based on the forgoing, the Court denies Defendants' motion for summary judgment on this
ground.
7. Qualified immunity
Qualified immunity protects government officials from liability when "their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); see also
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (holding that qualified immunity is not merely
immunity from damages but also "immunity from suit"). "[T]he salient question [in determining
qualified immunity] is whether the state of the law . . . gave [the defendants] fair warning that
their alleged treatment of [the plaintiff] was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741
(2002). As qualified immunity is an affirmative defense, the burden of pleading it falls on the
defendants. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (citations omitted); see also Varrone
v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997) (holding that the "defendants bear the burden of showing
that the challenged act was objectively reasonable" (citation omitted)).
The qualified immunity determination consists of two steps, which a court may consider in
either order. See Seri v. Bochicchio, 374 Fed. Appx. 114, 116 (2d Cir. 2010) (citation omitted).
27
The first step is to determine "whether the facts that a plaintiff has alleged . . . make out a
violation of a constitutional right." Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (citations
omitted). The second is a determination of "whether the right at issue was 'clearly established' at
the time of defendant's alleged misconduct." Id. (citation omitted).
A right is "clearly established" if "[t]he contours of the right . . . [are] sufficiently clear that
a reasonable official would understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640 (1987). "To determine whether a right is clearly established, we
look to: (1) whether the right was defined with reasonable specificity; (2) whether Supreme Court
or court of appeals case law supports the existence of the right in question; and (3) whether under
preexisting law a reasonable defendant would have understood that his or her acts were unlawful."
Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (citing Schecter v. Comptroller of City of N.Y.,
79 F.3d 265, 271 (2d Cir. 1996)). "As the qualified immunity defense has evolved, it provides
ample protection to all but the plainly incompetent or those who knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341 (1986).
If there is no dispute as to any material fact, the issue of whether the official's conduct was
objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation
omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting
Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's
decision as to "what the facts were that the officer faced or perceived," the court must then "make
the ultimate legal determination of whether qualified immunity attaches on those facts."
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).
28
a. Defendants Hogan and Port opening the suicide letters
Defendants contend that Defendants Hogan and Port are entitled to qualified immunity for
the alleged unlawful search of Garry Veeder's letters that occurred when they opened the letters
and photocopied them. See Dkt. No. 62-23 at 22. Defendants argue that Plaintiffs cannot
establish that a clearly established right was violated. See id. Plaintiffs, however, contend that
clearly established law establishes that this conduct was an illegal search and, therefore,
Defendants should not be awarded qualified immunity. See Dkt. No. 67-2 at 15-16 (citation
omitted).
In the present matter, the Court agrees with Plaintiffs that Defendants' motion on this
ground should be denied. In United States v. Jacobsen, the Supreme Court held that,
[w]hen the wrapped parcel involved in this case was delivered to the
private freight carrier, it was unquestionably an "effect" within the
meaning of the Fourth Amendment. Letters and other sealed
packages are in the general class of effects in which the public at
large has a legitimate expectation of privacy; warrantless searches
of such effects are presumptively unreasonable. Even when
government agents may lawfully seize such a package to prevent
loss or destruction of suspected contraband, the Fourth Amendment
requires that they obtain a warrant before examining the contents of
such a package.
United States v. Jacobsen, 466 U.S. 109, 114 (1984) (internal footnotes and citations omitted).
In the present matter, the law was clear at the time that warrantless searches of "[l]etters
and other sealed packages" are presumptively unreasonable. See id. Even assuming that
Defendants lawfully seized this evidence in an effort to preserve it for purposes of their
investigation into the death of Garry Veeder, Defendants Hogan and Port's actions cannot be said
to be objectively reasonable in light of the facts in dispute. For example, it is unclear whether
Defendant Hogan actually spoke with Defendants during the search and, if he did, what the
29
content of that conversation was. Defendant Hogan stated in his declaration, however, that it
would not be his practice to advise any member of the State Police to search or seize evidence
without a warrant, consent, or another exception to the warrant requirement. See Dkt. No. 62-1 at
¶ 39 (citation omitted). Further, it is unclear whether Defendants Hogan and Port knew the extent
and time of Plaintiff Donna Veeder's alleged withdrawal of her written consent. Such questions of
fact preclude the Court from granting Defendants' motion for summary judgment on this ground.
b. Seizure of the letter
Defendants argue that Defendant Nutting is entitled to qualified immunity because he
reasonably relied upon the advice of an attorney in securing the letters. See Dkt. No. 62-23 at 22.
Again, since the parties dispute who Defendant Nutting spoke with from the New York
State Police General Counsel's Office and what the content of that conversation was, Defendant
Nutting cannot rely on the argument that he acted under the advice of counsel to warrant the
application of qualified immunity. This outcome is further supported by the fact that Plaintiff
Donna Veeder's attorney informed him that the letters were privileged and that he was not to seize
them and by Plaintiff Donna Veeder's alleged withdrawal of her consent and objection to
Defendant Nutting seizing the letters without a warrant.
Based on the foregoing, the Court denies Defendants' motion for summary judgment on
this ground.
c. Search of Plaintiffs' residence
Defendants argue that Defendants McDonald and Strack reasonably relied upon the signed
consent to search when they undertook their search and seizure of evidence. See Dkt. No. 62-23
30
at 22. Plaintiffs, however, contend that Defendants McDonald and Strack began the search of the
premises prior to receiving the written consent and, therefore, they are not entitled to qualified
immunity. See Dkt. No. 67-2 at 17. Moreover, Plaintiffs claim that they are not entitled to
qualified immunity for their seizure of Plaintiff Donna Veeder's suitcase because "[n]obody could
claim that the purported consent authorized the seizure" of the briefcase since it did not contain
anything relevant to the investigation. See id. Plaintiffs claim that Defendant McDonald admitted
that the only reason he seized the briefcase was because it held papers related to Garry Veeder's
employment. See id. (citation omitted).
Contrary to Plaintiffs' arguments regarding when Defendants Strack and McDonald began
their search, the undisputed evidence makes clear that they did not begin their search until after
Plaintiff Donna Veeder had signed the written consent. According to the crime scene attendance
log, Defendant Strack arrived at the scene at 9:14 a.m., while Defendant McDonald arrived at 9:20
a.m. See Dkt. No. 62-11 at 2. Defendants Strack and McDonald both testified that, upon their
arrival, they were briefed by members of the State Police who were already at the scene. See Dkt.
No. 62-5 at ¶ 5; Dkt. No. 62-10 at ¶ 5. After being briefed, Defendant Burns provided Defendants
Strack and McDonald with a "Voluntary Consent to Search Certain Premises." See id. at ¶ 6; Dkt.
No. 62-10 at ¶ 6. The consent form is dated 9:34 a.m. See Dkt. No. 62-12 at 2. According to the
"Narrative Description" document detailing the search of Plaintiffs' residence, Defendants
McDonald and Strack began to log the scene at 9:43 a.m. See Dkt. No. 62-14 at 2. Further, the
document labeled "Crime Scene Summary – Building" prepared by Defendant Strack, provides
that the "time started" was 9:44 a.m. See Dkt. No. 62-13 at 2.
Both Defendants Strack and McDonald state that, at no point, were they aware that
Plaintiff Donna Veeder objected to the search or to evidence being seized. See Dkt. No. 62-10 at
31
¶ 13; Dkt. No. 62-5 at ¶ 11. Plaintiffs do not contend that they ever personally objected to
Defendants Strack and McDonald regarding the search, and they do not contend that any other
person informed them that Plaintiff Donna Veeder had withdrawn her consent for the search. In
fact, Plaintiffs assert that Defendant Nutting knew that Plaintiff Donna Veeder objected to the
search, knew that Defendants Strack and McDonald were about to search the residence, but
"[r]ather than telling Strack and McDonald that the search would be illegal he permitted [it] to go
forward." See Dkt. No. 67-2 at 9. Plaintiffs only argument on this point provides as follows:
"Plaintiffs concede that they have no direct evidence proving that defendants Strack and
McDonald were not unaware that no consent had been given for the search of their home,
however, . . . by virtue of the discrepancies surrounding when they began the search and the times
indicated by various defendants on documents they prepared, a very strong inference can be drawn
that Strack and McDonald were well aware that legitimate consent to search the home had not
been obtained." See id. The Court, however, disagrees that these alleged inconsistencies create a
"strong inference" that Defendants Strack and McDonald knew that Plaintiff Donna Veeder
objected to the search. Rather, the Court finds that Plaintiffs have failed to put forth any evidence
that precludes the Court from granting summary judgment on this ground. Plaintiffs' conjecture
and theories, unsupported by any admissible evidence, are insufficient to defeat Defendants'
motion for summary judgment.
Moreover, Defendants Strack and McDonald were aware that Defendants had taken
possession of the suicide letters (or what were believed to be suicide letters) prior to their arrival.
Again, nothing in the record suggests that Defendants Strack and McDonald were aware that
Plaintiff Donna Veeder objected to this seizure. Therefore, an objectively reasonable officer
would believe that the consent would permit them to seize evidence they believed to be relevant to
32
their investigation. Further, it was objectively reasonable for them to believe that Plaintiff Donna
Veeder's briefcase, which contained documents related to Garry Veeder's work with the New York
State Police, would be relevant in light of the recent events that caused Garry Veeder to leave his
job.
Based on the foregoing, the Court finds that Defendants Strack and McDonald are entitled
to qualified immunity because the undisputed facts establish that it was objectively reasonable for
them to believe that their conduct did not violate Plaintiffs' constitutional rights.8
d. Interrogation of Plaintiff Stacy Veeder
Defendants contend that Defendant Martin is entitled to qualified immunity regarding his
interview of Plaintiff Stacy Veeder because he "reasonably relied upon plaintiff Stacy Veeder's
acquiescence to give a statement and failure to object or ask to leave." See Dkt. No. 62-23 at 22.
Plaintiffs, however, assert that Plaintiff Stacy Veeder did not "acquiesce" to a request, but rather
"she fearfully submitted to his commands and show of authority." See Dkt. No. 67-2 at 18.
During her deposition, Plaintiff Stacy Veeder indicated that she was in the car for
approximately thirty (30) minutes and that she never asked Defendant Martin if she could exit the
vehicle. See Dkt. No. 62-22 at 7. Although she indicated that she did not ask to exit the vehicle at
Although the Court is granting Defendants' motion as to Defendants Strack and
McDonald on qualified immunity grounds, Defendants have not presented any argument as to
whether Defendants Port and Burns are entitled to qualified immunity for their role in the search
of Plaintiffs' residence. Since the Court has dismissed the illegal search claim against Defendants
Strack and McDonald on qualified immunity grounds and not on the merits, Plaintiffs may still
proceed with their claim relating to the illegal search of their residence against Defendants Port
and Burns. Even had Defendants moved for qualified immunity as to Defendants Burns and Port,
the Court would have denied the motion since Plaintiffs allege that Defendants Burns and Port
knew that they objected to the search of their residence and seizure of any items therein, and yet
these Defendants still permitted the search to go forward without first obtaining a warrant.
8
33
any point during the interview, Plaintiff Stacy Veeder qualified her response as follows:
A.
At one point, my mother's friend, Juliann, came over to the car, and in order
to speak with her since the windows were up, I opened – I attempted to
open the door and the plain-clothed man – I couldn't get anything out to her.
I couldn't talk to her because the plain-clothed man was talking over me
and saying something to the effect of she has to give a statement, she is
almost done, which, to me, I was very afraid and that, to me, meant along
with the fact that I was told I had to make a statement, that I was in that car
to make a statement and that I felt that I was not going to be able to leave
that car until something adequate to whatever he wanted was, you know,
achieved.
Q.
So you said you tried to open the car door?
A.
I did open the car door.
Q.
Okay. And is that when – well, then, what did the investigator say, do you
remember?
A.
He reached across me, because it was the passenger's door, trying to grab
the – you know, like in a motion to grab the bar or handle that you would
open the door with, and then was speaking across me to Juliann, my
mother's friend, who was outside, she had a cup of water or something,
telling her she has to give a statement, you know, she will be done like
soon.
Q.
Okay. Now, when you say he reached across you, what do you mean by
that?
A.
I mean, if he is sitting here and I'm sitting here, his hand coming over as I'm
opening the door to try to indicate to me, you know, that I'm not leaving the
car, because the door – I was in the process of opening the door and I
immediately felt that I was not – that it was not an option for me to be
leaving the car.
*****
Q.
Did he tell you that, that you couldn't leave the car without signing [the
written statement]?
A.
No.
Q.
And at no point in that car did you ask to leave the car, did you?
34
A.
No.
Q.
A.
And did you – other than when Juliann came to the car and said you would
be done shortly, did you make any attempt to exit the car?
I remember having my hand on the handle because I thought I was going to
throw up, and then I later did throw up multiple times, I didn't open the
door, but I remember holding it there.
Q.
Were you prevented from doing that?
A.
No.
See id. at 7-8, 10-11. After Plaintiff Stacy Veeder signed the written statement prepared by
Defendant Martin, she testified that she walked back to the house and proceeded to go upstairs.
See id. at 11.
According to Defendant Martin's affidavit, after being directed to take Plaintiff Stacy
Veeder's statement, he approached her and advised her of his intention. See Dkt. No. 62-2 at ¶ 5.
Further, he states that Plaintiff Stacy Veeder "was visibly and understandably upset, but she was
cooperative. Because there were so many distractions in the house, I suggested that I take her
statement in my car, which was parked in front of the residence. Ms. Veeder agreed." See id. at ¶
6.
In light of Plaintiff Stacy Veeder's testimony and Defendant Martin's uncontested
statements, the Court finds that a reasonable officer in Defendant Martin's position would not
understand that his actions violated Plaintiff Stacy Veeder's rights. As the testimony makes clear,
Defendant Martin acted reasonably throughout the entire interview. Plaintiffs do not contend that
Defendant Martin conducted the interview in his vehicle for any reason other than because there
were so many distractions in the house. Moreover, Plaintiff Stacy Veeder willingly accompanied
him to his vehicle when asked and never requested that she be permitted to leave or that the
interview take place at some other time. Further, Plaintiff Stacy Veeder testified that she was
35
allowed to keep her hand on the door handle, an indication that she could have exited the vehicle
at any time. Any reasonable officer would believe that any uneasiness or anxiety on Plaintiff
Stacy Veeder's part was not due to the officer's actions in conducting the interview, but because of
the traumatic events she witnessed that morning.
Based on the foregoing, the Court finds that a reasonable officer in Defendant Martin's
position would not understand that his actions violated Plaintiff Stacy Veeder's right; and,
therefore, Defendants' motion for summary judgment as to Defendant Martin on qualified
immunity grounds is granted.
B.
Plaintiffs' motion for summary judgment
Since the same factual disputes discussed in the Court's disposition of Defendants' motion
for summary judgment raise triable issues with respect to Plaintiffs' motion, the Court denies
Plaintiffs' motion for summary judgment.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment is GRANTED in part and
DENIED in part;9 and the Court further
ORDERS that Plaintiffs' motion for summary judgment is DENIED; and the Court
Defendants' motion for summary judgment is granted as to the following Defendants and
claims: (1) Plaintiffs' illegal seizure claim relating to the interview of Plaintiff Stacy Veeder by
Defendant Martin (Count V); and (2) the claims against Defendants Strack and McDonald relating
to the search of Plaintiffs' residence.
9
36
further
ORDERS that Defendants Martin, Strack and McDonald are DISMISSED from this
action; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 29, 2013
Albany, New York
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