Barcomb v. Sabo et al

Filing 122

MEMORANDUM-DECISION and ORDER, That Barcomb's fourth, fifth, and sixth causes of action are DISMISSED. That defendants' 94 Motion for Summary Judgment is GRANTED and Barcomb's first, second, and third causes of action are DISMISSED. Signed by Judge Gary L. Sharpe on 5/6/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
DARREN BARCOMB,
Plaintiff,

8:07-cv-877
(GLS/DRH)

v.
ARLENE SABO, et al.,
Defendants.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Ruchelman, Cruikshank Law Firm
49 Clinton Street
Plattsburgh, NY 12901

ALLAN B. CRUIKSHANK, JR.,
ESQ.

Office of Bethany Schumann-McGhee
2465 Riverfront Center
Amsterdam, NY 12010

BETHANY SCHUMANNMCGHEE, ESQ.

Office of Elmer R. Keach, III
1040 Riverfront Center
P.O. Box 70
Amsterdam, NY 12010

ELMER R. KEACH, III, ESQ.

FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

MICHAEL G. MCCARTIN
Assistant Attorney General

Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Darren Barcomb, a police officer for the State University of
New York (SUNY) at Plattsburgh, commenced this action pursuant to 42
U.S.C. § 1983 against defendants Arlene Sabo, Chief of Police at SUNY
Plattsburgh, Jerry Lottie, the Assistant Chief of Police at SUNY Plattsburgh,
and New York State Trooper Shawn Murphy,1 alleging federal claims of
false arrest, malicious prosecution, unreasonable seizure, unlawful
retaliation, due process violations, and failure to supervise. (See Am.
Compl., Dkt. No. 19.) Pending is defendants’ motion for summary
judgment. (Dkt. No. 94.) For the reasons that follow, the motion is
granted.
II. Background
A.

2005 Events
Since 1999, plaintiff Darren Barcomb has worked as a police officer

for SUNY Plattsburgh under the supervision of defendants Arlene Sabo,
Chief of Police at SUNY Plattsburgh, and Jerry Lottie, Assistant Chief of

1

While Barcomb also sued William Laundry, a SUNY Plattsburgh Vice President,
Lawrence Mills, the SUNY Plattsburgh Director of Human Relations, and retired New York
State Trooper Mary Dupell, he has since agreed to dismiss all claims against those individuals.
(See Nov. 12, 2010 Stipulation & Order of Discontinuance, Dkt. No. 116.)

2

Police. (See Am. Compl. ¶ 16, Dkt. No. 19; Defs. SMF ¶¶ 1, 2, Dkt. No.
94:71.)
On June 27, 2005, a member of the Suffolk County Police
Department notified the SUNY Plattsburgh Police Department that
Barcomb’s former girlfriend, Cindy Bednar, filed a criminal complaint
against Barcomb for second-degree menacing with a weapon. (See Am.
Compl. ¶ 17, Dkt. No. 19; Defs. SMF ¶ 9, Dkt. No. 94:71.) According to
Ms. Bednar, Barcomb put a gun to her head and said, “You’re not f***ing
leaving. I’m gonna kill you.” (Defs. SMF ¶ 25, Dkt. No. 94:71.) Given the
nature of this allegation, an Order of Protection was issued, requiring
Barcomb to immediately surrender all firearms. (See id. at ¶ 26.)
In light of Ms. Bednar’s complaint, Barcomb was placed on desk duty
and his firearm was secured from his police locker. (See id. at ¶ 11.) In
addition, on June 29, after consulting with the SUNY Plattsburgh Human
Resources Department, Chief Sabo placed Barcomb on administrative
leave with pay. (See id. at ¶ 13.)
On June 30, Chief Sabo received from Suffolk County Detective
Robert Cassidy a facsimile transmission of a warrant for the arrest of
Barcomb on the misdemeanor charges of menacing in the second degree
3

with a weapon, a violation of New York Penal Law § 120.14(1). (Id. at ¶
16.) The warrant, which was signed on June 28 by a judge of the District
Court of the County of Suffolk, stated: “This warrant may be executed at
anytime and anywhere in the State of New York.” (Id. at ¶¶ 18, 19.) The
warrant was also forwarded to the Suffolk County Police Department’s
Fugitive Section, which is responsible for executing warrants outside of the
Department’s local jurisdiction. (See id. at ¶ 20; Pl. Counter SMF ¶ 2, Dkt.
No. 109.) The Fugitive Section mailed a letter to Barcomb, advising him of
the warrant and that its execution would be held in abeyance for five days.
(See Defs. SMF ¶ 20, Dkt. No. 9471; Pl. Counter SMF ¶ 3, Dkt. No. 109.)
However, Chief Sabo, Assistant Chief Lottie, and Detective Cassidy were
not aware of this letter or the abeyance until after this litigation was
commenced, (see Defs. SMF ¶ 20, Dkt. No. 94:71), and Barcomb did not
learn of it until days after it was sent, (see Defs. Resp. SMF ¶ 3, Dkt. No.
112:2).
Later the same day, June 30, Chief Sabo called Barcomb to the
SUNY Plattsburgh Police Station for a meeting. (See Pl. Counter SMF ¶ 9,
Dkt. No. 109.) During the meeting, Chief Sabo and Assistant Chief Lottie
informed Barcomb of the arrest warrant pending against him. (See id. at ¶
4

12; Defs. Resp. SMF ¶ 12, Dkt. No. 112:2.) According to Barcomb, he
asked whether he could turn himself in by immediately driving to Long
Island, to which Chief Sabo responded, “no, not an option.” (See Pl.
Counter SMF ¶ 13, Dkt. No. 109.) Rather, Barcomb claims that “Chief
Sabo and Assistant Chief Lottie told [him] that either they could take him
down to Long Island, or [he] could be shackled and taken down, as
Assistant Chief Lottie put it, ‘the hard way by the [S]tate [T]roopers.’” (Id.
at ¶ 17.) According to Chief Sabo and Assistant Chief Lottie, they “felt
obligated to be the SUNY personnel to drive him because they were
concerned about “‘what [Barcomb] would do in the meantime.’” (See id. at
¶ 15.)
Barcomb also contends that he “requested to be arraigned locally
before ... a judge of the Plattsburgh City Court, instead of any of the other
options that Chief Sabo put forth.” (Id. at ¶ 18.) According to Barcomb,
however, “Chief Sabo ignored [his] plea, telling him ‘no, you don’t want
that.’” (Id.) Ultimately, Barcomb agreed to be taken to Long Island by
Chief Sabo, but “maintain[s] that he felt obligated to [do so] because it was
a direct order, and if he didn’t obey, he would be written up and charged
with insubordination.” (Id. at ¶ 19.) Thus, at approximately 3:00 p.m on
5

June 30, Chief Sabo and Assistant Chief Lottie left the SUNY station with
Barcomb and headed to Long Island. (See id. at ¶ 20.) Approximately
seven hours later, after driving 350 miles, the three arrived at the Suffolk
County Police Station, where Barcomb was taken into custody by the
Suffolk County Police and ultimately held overnight in Suffolk County Jail.
(See id. at ¶¶ 35, 36, 37.)
Barcomb was arraigned and released the next day, July 1, at
approximately 12:00 p.m. (See Defs. Reply Mem. of Law at 4, Dkt. No.
112.) Barcomb claims that Chief Sabo told him before he was locked up
that she and Assistant Chief Lottie would be in the courthouse for his
arraignment. (See Pl. Counter SMF ¶ 39, Dkt. No. 109.) Barcomb further
contends that Chief Sabo provided him with her cell phone number so that
he could call her and Assistant Lottie when his arraignment was over and
ride back with them to Plattsburgh. (See id. at ¶ 39.) However, after his
arraignment, Barcomb was unable to locate Chief Sabo or Assistant Chief
Lottie in the courthouse, and, after calling Chief Sabo’s cell phone, was told
by Chief Sabo that “she and Assistant Chief Lottie had already left the city,
and were past the bridge.” (Id. at ¶ 41.) Chief Sabo ended the
conversation by telling Barcomb, “good luck on getting home.” (Id. at ¶ 42.)
6

As a result, Barcomb claims, he was forced to buy an airplane ticket for a
flight from New York City to Burlington, Vermont. (Id. at ¶ 43.)
On July 8, based on his arrest and inability to carry a firearm,
Barcomb was formally suspended without pay from the SUNY Plattsburgh
Police Department, pending the outcome of a disciplinary arbitration
hearing.2 (See Defs. SMF ¶ 28, Dkt. No. 94:71; Pl. Counter SMF ¶ 45, Dkt.
No. 109.) Barcomb was also required at some point in July to surrender
his SUNY Police ID and badge. (See Defs. SMF ¶ 30, Dkt. No. 94:71.)
And on July 29, a formal Notice of Discipline letter was issued to Barcomb
by the SUNY Plattsburgh Human Resources Director Lawrence Mills,
which detailed the disciplinary charges against him. (See id. at ¶ 29.)
After receiving the 2005 Notice of Discipline, Barcomb applied for
unemployment benefits through the New York Department of Labor (DOL).
(See Pl. Counter SMF ¶ 45, Dkt. No. 109.) In investigating Barcomb’s
application, the DOL sent to the Human Resources Department of SUNY
Plattsburgh a form requesting information pertaining to Barcomb’s
employment status. (See id. at ¶ 47.) In response to the inquiry, Lawrence

2

“It was SUNY’s contention that among the regular requirements to be a SUNY
Plattsburgh Police Officer I, the position Barcomb held, was the requirement that he be
equipped with a firearm while on duty.” (Defs. SMF ¶ 27, Dkt. No. 94:71.)

7

Mills stated that Barcomb “remained on our payroll but that he was
suspended.” (Id. at ¶ 48.) Mr. Mills then wrote to Maria Zalewska of the
DOL, stating that “it’s my understanding that since he remains our
employee while on suspension, he would be ineligible for benefits from
your agency until ... his disciplinary case is heard and a determination is
made that termination is appropriate.” (Id. at ¶ 49.)
B.

2006 Events
On January 1, 2006, between 1:30 a.m. and 2:00 a.m., Barcomb,

driving alone in his vehicle, approached a sobriety road checkpoint on
State Route 22 in the Town of Plattsburgh. (See Defs. SMF ¶ 37, Dkt. No.
94:71.) Upon observing that Barcomb’s eyes appeared abnormally dilated,
New York State Trooper Shawn Murphy, the officer assigned to the
checkpoint, directed Barcomb to pull to the side of the road. (See id. at ¶
38.)3 Once Barcomb had pulled over, Trooper Murphy approached
Barcomb’s vehicle and asked for Barcomb’s driver’s license and vehicle
registration. (See Murphy Decl. ¶ 10, Dkt. No. 94:35.) According to

3

As part of his training with the New York State Police, Trooper Murphy learned to
recognize individuals who are under the influence of illegal drugs, and was certified by the
North American Highway Traffic & Safety Administration as a drug recognition evaluation
expert. (See Defs. SMF ¶ 39, Dkt. No. 94:71.) Based on that training, Trooper Murphy knows,
for instance, that marijuana use or the use of certain other illegal drugs causes pupil dilation.
(See id. at ¶¶ 39-41.)

8

Trooper Murphy, Barcomb handed him his license and stated, “I’m on the
job,” which Trooper Murphy claims he understood as “conveying ... that
[Barcomb] was actively worked as a police officer.” (Id.) Barcomb denies
ever saying he was “on the job.” (Pl. Resp. SMF ¶ 67, Dkt. No. 109.)
Trooper Murphy told Barcomb that he pulled him over because his
pupils were dilated,4 and asked Barcomb whether he was taking any
medications that would cause his pupils to dilate. (See Murphy Decl. ¶ 12,
Dkt. No. 94:35.) In response, Barcomb told Trooper Murphy that he “was
on thyroid medicine.” (Defs. SMF ¶ 44, Dkt. No. 94:71.)
At some point during his encounter with Barcomb, Trooper Murphy
told Barcomb that he was going to administer the “Horizontal Gaze
Nystagmus” sobriety test. (See id. at ¶ 45.) When Trooper Murphy began
to explain the test, Barcomb stated “I understand how it works, I have been
a cop for six years.” (Id.) After Barcomb made that statement, Trooper
Murphy asked him where he worked, and Barcomb responded
“... at SUNY Plattsburgh, but I have spent some time at SUNY Stony
[B]rook.” (See id. at ¶ 49; Murphy Decl. ¶ 11, Dkt. No. 94:35.) And when

4

Barcomb testified at his deposition that Trooper Murphy told him that his “eyes looked
a little funny to him.” (Defs. SMF ¶ 43, Dkt. No. 94:71.)

9

asked if he had any identification or a badge, Barcomb claims he stated, “I
don’t have any. I’m out of work at the moment.” (Defs. SMF ¶ 51, Dkt. No.
94:71.) Barcomb did not specify that he was suspended, (see id.), and
Trooper Murphy denies that Barcomb told him he was “out of work,” (see
Defs. Mem. of Law at 16, Dkt. No. 94:72).
At one point during their exchange, Trooper Murphy saw an
identification card in Barcomb’s wallet. (Defs. SMF ¶ 52, Dkt. No. 94:71.)
According to Barcomb, it was “a faculty staff library card from Stony
[B]rook, and it said State of New York or SUNY or some kind of a state
designation on the top.” (Id.) When Trooper Murphy asked what the card
was, Barcomb responded that it was “his old SUNY card from SUNY Stony
[B]rook, but I’m not there anymore. I transferred back here in April.” (Id. at
¶ 55.) Defendants claim that the ID card in question depicted Barcomb in
his police uniform with a “walkie talkie” clipped to his shoulder, and did not
indicate that it was a library card. (See id. at ¶¶ 53-54.) Trooper Murphy
did not require Barcomb to hand him the card, nor did he examine it any
further, telling Barcomb that he did not need to see it as Barcomb began to
remove it from his wallet. (See id. at ¶ 56.)
Ultimately, Trooper Murphy permitted Barcomb to leave without
10

undergoing a sobriety test. (See id. at ¶ 59.) According to Trooper
Murphy, he believed that Barcomb was in fact a SUNY Police Officer—and
therefore a trustworthy person—and that Barcomb’s representation that the
thyroid medication was the reason for the pupil dilation was truthful. (See
id. at ¶¶ 56-57, 59.) Trooper Murphy also testified to observing no other
signs of impairment. According to Trooper Murphy, Barcomb did not
appear intoxicated by alcohol, and neither Barcomb nor his vehicle emitted
any odors warranting further suspicion. (See id. at ¶ 58.) For these
reasons, Trooper Murphy concluded that requiring Barcomb to exit his
vehicle and take a full-blown drug recognition evaluation was unnecessary,
ultimately telling him: “Okay, have a good night .... You know how it is, just
checking for drunks.” (Id. at ¶¶ 59, 60 (internal quotation marks omitted);
Defs. Resp. SMF ¶ 64, Dkt. No. 112:2.)
Several days later, while at a training session in Albany, New York,
Trooper Murphy discussed the incident with SUNY Plattsburgh Police
investigator Seth Silver, and learned that Barcomb was suspended from
the SUNY Plattsburgh Police Department at the time of the checkpoint
stop. (Defs. SMF ¶ 61, Dkt. No. 94:71.) Based on this information,
Trooper Murphy claims to have become suspicious of the representations
11

made to him by Barcomb during their encounter. (See id. at ¶¶ 61-63.) In
line with that suspicion, Trooper Murphy claims he spoke with his wife, a
registered nurse, about whether thyroid medication would cause an
individual’s pupils to dilate. (See id. at ¶ 62.) According to Trooper
Murphy, his wife told him that thyroid medication would not have that effect.
(See id.)
On January 26, while at a domestic violence training session,
Trooper Murphy’s Zone Sergeant, Sgt. Mary Dupell, was approached by
Chief Sabo about the checkpoint incident. (See id. at ¶¶ 64-65; Dupell
Decl. ¶ 5, Dkt. No. 94:22.) According to Sgt. Dupell, Chief Sabo told her
that Investigator Silver had learned from Trooper Murphy that Barcomb
was involved in a checkpoint stop, during which Barcomb stated that he
was “on the job.” (See Dupell Decl. ¶ 5, Dkt. No. 94:22.) Chief Sabo also
relayed the fact that although Barcomb indicated he was a police officer “in
good standing in New York State,” he had actually been suspended from
the SUNY Plattsburgh Police since early 2005. (Id.; Pl. Counter SMF ¶ 75,
Dkt. No. 109.) According to Sgt. Dupell, she “recall[s] asking Chief Sabo
what she wanted done about it, and [Chief Sabo] said something like,
‘whatever the law would allow to be done,’ or words to that effect.” (Id.)
12

The next day, Sgt. Dupell spoke with Trooper Murphy about the
checkpoint incident. (See id. at ¶ 6.) During their discussion, Sgt. Dupell
was given the following account: (1) on January 1, 2006, Trooper Murphy
was working at a sobriety road check in the Town of Plattsburgh on State
Route 22; (2) Barcomb drove up to the checkpoint and Trooper Murphy
noticed that he had dilated pupils; (3) Barcomb told Trooper Murphy that he
was “on the job”; (4) when Trooper Murphy asked Barcomb whether he
was taking any medication that would cause his eyes to be dilated,
Barcomb told him that he was taking medication for thyroid problems; and
(5) there were no signs of alcohol use by Barcomb at the checkpoint. (See
Defs. SMF ¶ 66, Dkt. No. 94:71.)
On January 31, following her conversation with Trooper Murphy, Sgt.
Dupell contacted First Assistant District Attorney (FADA) Kristy Sprague
from the Clinton County District Attorney’s Office to determine whether the
events that occurred during the January 1 checkpoint stop—as they were
relayed to her by Trooper Murphy—provided probable cause to arrest
Barcomb for criminal impersonation. (See Defs. SMF ¶¶ 65, 66, Dkt. No.
94:71.) Later that same day, after researching the issue and speaking with
her boss, District Attorney (DA) Andrew Wylie, FADA Sprague emailed Sgt.
13

Dupell, stating that “we agree that this person could be charged with
Criminal Impersonation 2nd Degree pursuant to [N.Y. Penal Law]
190.25(3),”5 and that “[a]s for whether this office would entertain a charge
or arrest for Criminal Impersonation 2nd Degree (PL 109.25 (3)) - Yes, we
will.” (Dupell Decl. ¶ 17, Dkt. No. 94:22.) On February 2, 2006, Sgt. Dupell
forwarded this entire email exchange to Trooper Murphy. (Id. at 18.)
Over the next several weeks, Sgt. Dupell and FADA Sprague
exchanged numerous emails with respect to Barcomb’s potential arrest and
prosecution. (See Defs. SMF ¶ 68, Dkt. No. 94:71.) In those emails, Sgt.
Dupell relayed further facts related to the checkpoint stop, and FADA
Sprague provided legal advice to the State Police. (See id.) The additional
facts relayed to FADA Sprague included a clarification that Barcomb
showed an old Stony Brook Police ID—not a “badge”—which Sgt. DuPell
likened to the IDs carried by members of the State Police, explaining it as
“an actual photo identification that displays ... rank in addition to the usual

5

Under N.Y. PENAL LAW § 190.25(3), “A person is guilty of criminal impersonation in the
second degree when he:... (a) [p]retends to be a public servant, or wears or displays without
authority any uniform, badge, insignia or facsimile thereof by which such public servant is
lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or
is acting with approval or authority of a public agency or department; and (b) so acts with intent
to induce another to submit to such pretended official authority, to solicit funds or to otherwise
cause another to act in reliance upon that pretense.”

14

agency ID, member name, and certifying signatures.” (See Pl Counter
SMF ¶ 80, 81, Dkt. No. 109.)
With respect to the legal advice provided, it appears that much of the
dialogue related to whether Barcomb was still a “police officer” while on
suspension. (See DuPell Decl. ¶¶ 20-29, Dkt. No. 94:22.) In emails
relating to that issue, FADA Sprague explained to Sgt. DuPell that, based
on her research—which was explained in the emails—she believed that
Barcomb’s suspension removed his status as a police officer, thereby
rendering him susceptible to arrest for criminal impersonation based on his
statements to Trooper Murphy. (See id. at ¶¶ 24-25.) In offering this
opinion, FADA Sprague also recommended that Sgt. DuPell “run[] the
issue by [State Police] [D]ivision [C]ounsel and see if their interpretation fits
mine,” which Sgt. DuPell did. (Id. at ¶¶ 25, 28-29 (internal quotation marks
omitted).) Ultimately, Dan Moynihan, an attorney in the State Police
Division Counsel’s Office, concurred with FADA Sprague’s assessment
that probable cause existed to arrest Barcomb. (See id. at ¶ 29.) That
same day, February 15, 2006, Sgt. DuPell relayed Mr. Moynihan’s
response, via email, to FADA Sprague and Chief Sabo. (Id.)
On March 16, 2006, Trooper Murphy prepared a sworn Information
15

charging Barcomb with second-degree criminal impersonation based on
the January 1 checkpoint stop. (See Murphy Info., Dkt. No. 94:41.) In the
Information, Trooper Murphy stated that, at the time of the stop, Barcomb
had dilated pupils; stated he was “on the job”; stated he left his badge and
ID at home when he was asked for them; stated he worked for Plattsburgh
State; stated “I have my Stony Brook ID” and began to show Trooper
Murphy “an ID out of his wallet which looked like a SUNY ID; and stated he
was taking thyroid medication when asked why his pupils were dilated.
(See id. at 1.) The Information further provided that Trooper Murphy did
not conduct a drug recognition evaluation because he believed at the time
that Barcomb was telling him the truth about being a police officer and the
cause of his pupils being dilated. (See id. at 1.)
The Information included a Deposition from Chief Sabo to support the
fact that Barcomb was suspended from the SUNY Plattsburgh Police
Department at the time of the January 1, 2006 checkpoint stop. (See id. at
2.) The Deposition states, in relevant part:
On July 29th, 2005 Darren Barcomb was suspended from his
employment as a University Police [O]fficer at SUNY
Plattsburgh. Mr. Barcomb’s SUNY Plattsburgh University
Police Identification (I.D.), his police badge and his duty
weapon were taken away from him. As of this date Darren
16

Barcomb is still suspended. He is not employed by any SUNY
Police agency at this time and has not been employed by any
SUNY Police agency since his suspension on July 29th, 2005.
(Id.) Prior to submitting her Deposition to Trooper Murphy, Chief Sabo
claims she reviewed it with SUNY Associate Counsel Carolyn Pasley, an
attorney at the SUNY Central Counsel’s Office in Albany. (See Defs. SMF
¶ 75, Dkt. No. 94:71.) Then, Chief Sabo contends, once satisfied that the
Deposition was correct based on her consultation with Ms. Pasely, she
signed it and provided it to Trooper Murphy. (See id. at ¶ 76.) Barcomb
disputes that Ms. Pasely reviewed Chief Sabo’s Deposition.
In addition to Sgt. DuPell’s communications with FADA Sprague, it
appears that Trooper Murphy was also in contact with Clinton County
Assistant District Attorney (ADA) Timothy Blatchley regarding the potential
for charging Barcomb based on his representations. (See Defs. Resp.
SMF ¶ 82, Dkt. No. 112:2.) More specifically, providing ADA Blatchley with
the sworn Information, among other documents, Trooper Murphy appears
to have sought an opinion as to whether there was probable cause to
charge Barcomb with criminal impersonation. (See Blatchley Dep. at 22,
Dkt. No. 103:4.) Based on a review of the statute and a discussion with
fellow ADA Ed Narrow, ADA Blatchley, along with ADA Narrow, “concluded
17

that [the charge] didn’t fit,” and informed Trooper Murphy of that
conclusion. (Id. at 26.)
On March 21, 2006, Sgt. DuPell sent an email to ADA Blatchley
regarding his communications with Trooper Murphy. (See DuPell Decl. ¶
32, Dkt. No. 94:22.) According to Sgt. DuPell, she had learned from
Trooper Murphy that after FADA Sprague and DA Wylie had already given
their opinion that there was probable cause to arrest Barcomb for criminal
impersonation, Trooper Murphy spoke with ADA Blatchley about the case
and received a contrary opinion. (See id.) Sgt. DuPell contends she
contacted ADA Blatchley to “make sure that he was aware of the previous
dealings that I had with the DA’s Office on the issue.” (Id. at ¶ 33.) Along
that line, Sgt. DuPell included in her email a copy of her prior
correspondence with FADA Sprague, which indicated a willingness to
proceed with charging Barcomb. (See id. at ¶ 32.) In response to her
email, Sgt. DuPell received a voicemail message from ADA Blachley,
essentially stating that there was a dispute among the attorneys in the
Clinton County DA’s office as to whether to proceed with the arrest and
prosecution of Barcomb, and that Sgt. DuPell should not do anything until
DA Wylie made the final decision. (See id. at ¶ 34.) Ultimately, on March
18

31, Sgt. DuPell received the following email message from DA Wylie: “I
have been provided the CI 2nd charge against Darren Barcomb for review.
I approve the matter for prosecution. Arrest and get bail set at
$1,000/$2,000.” (Mar. 31 Wylie Email, Dkt. No. 94:34.)
After Sgt. DuPell informed Trooper Murphy of DA Wylie’s decision,
Trooper Murphy filed the charging documents—i.e., the sworn Information
and Chief Sabo’s deposition—with the Town of Plattsburgh Court. (See Pl.
Counter SMF ¶ 97-98, Dkt. No. 109.) Then, on April 4, 2006, after
reviewing the charging documents, Town Judge Kevin M. Patnode issued a
warrant for the arrest of Barcomb on the second-degree criminal
impersonation charge. (See Defs. SMF ¶ 87, Dkt. No. 94:71) Pursuant to
that warrant, Barcomb was arrested by the New York State Police on April
18, 2006. (See Defs. Mem. of Law at 17, Dkt. No. 94:72.)
On June 8, 2006, Barcomb moved to dismiss the charge based on
“exculpatory evidence” from his personnel file; namely, SUNY Plattsburgh
Human Resources documents stating that he technically remained
employed by SUNY Plattsburgh as “Police Officer I” during his

19

suspension.6 (See Defs. SMF ¶ 88, Dkt. No. 94:71; State Mot. to Dismiss,
Dkt. No. 94:67.) After reviewing these materials and the parties’ competing
arguments, Judge Patnode denied Barcomb’s motion, finding that while
Barcomb remained “employed” by SUNY Plattsburgh, he “ha[d] not been
‘on the job’ since his suspension.” (See Defs. SMF ¶ 88, Dkt. No. 94:71;
Judge Patnode Ruling, Dkt. No. 94:69.) Ultimately, however, in light of an
apparent conflict of interest between a member of the Clinton County
District Attorney’s Office and the defense, the charge against Barcomb was
dismissed without prejudice and was never refiled. (See Am. Compl. ¶ 36,
Dkt. No. 19.)
C.

Procedural History
On August 28, 2007, Barcomb commenced the current action against

Chief Sabo, Assistant Chief Lottie, and Trooper Murphy, among others,
alleging claims for false arrest, malicious prosecution, unreasonable
seizure, unlawful retaliation, due process violations, and failure to

6

Sgt. Dupell, Trooper Murphy, and Chief Sabo claim to have had “absolutely no
knowledge of [these or other similar] documents in Barcomb’s personnel file” until after the
initiation of this lawsuit. (See Defs. SMF ¶¶ 84-85, Dkt. No. 94:71.) Had they been made
aware of the documents, they assert, “they would have certainly brought them to the attention
of the attorneys at the DA’s Office and/or the New York State Police Division Counsel’s Office,
and they would have taken any advice that they might have provided as to whether there was
sufficient reason in those documents to not proceed with a prosecution of the case.” (Id. at ¶
86.)

20

supervise. (See Compl., Dkt. No. 1; Am. Compl., Dkt. No. 19.)
On May 20, 2010, defendants moved for summary judgment, seeking
dismissal of Barcomb’s claims and asserting qualified immunity. (See Dkt.
No. 94.)
III. Standard of Review
The standard for the grant of summary judgment is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its previous opinion in Bain v. Town of Argyle,
499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
IV. Discussion
Barcomb has agreed to discontinue his fourth, fifth, and sixth causes
of action, which assert claims for substantive and procedural due process
violations, First Amendment retaliation, and failure to supervise. (See Pl.
Mem. of Law at 1 n.1, Dkt. No. 110; Nov. 12, 2010 Stipulation & Order of
Discontinuance, Dkt. No. 116.) Accordingly, those causes of action are
dismissed.
Barcomb’s remaining first, second, and third causes of action against
Chief Sabo, Assistant Chief Lottie, and Trooper Murphy assert Fourth
Amendment claims for false arrest, “unreasonable seizure,” and malicious
21

prosecution. The court now turns to those claims.
A.

False Arrest and Malicious Prosecution
A claim for false arrest or imprisonment brought pursuant to § 1983

“rest[s] on the Fourth Amendment right of an individual to be free from
unreasonable seizures, including arrest without probable cause.” Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citation omitted). To establish a
false arrest claim under either federal or New York law, a plaintiff must
demonstrate that: “(1) the defendant intended to confine the plaintiff, (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did not consent
to the confinement[,] and (4) the confinement was not otherwise privileged.”
Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (internal
quotation marks and citations omitted).
“An arrest is justified, or otherwise privileged, if there was probable
cause to arrest.” Sulkowska v. City of New York, 129 F. Supp. 2d 274, 287
(S.D.N.Y. 2001) (citations omitted). In other words, “the existence of
probable cause to arrest constitutes justification and is a complete defense
to an action for false arrest.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996) (internal quotation marks and citation omitted). “Thus, a claim for
false arrest must fail if probable cause to arrest existed.” Martinetti v. Town
22

of New Hartford Police, 112 F. Supp. 2d 251, 252 (N.D.N.Y. 2000) (citation
omitted).
“Probable cause exists when an officer has knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution
in the belief that an offense has been committed by the person to be
arrested.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003)
(internal quotation marks and citation omitted). “Whether probable cause
exists depends upon the reasonable conclusion to be drawn from the facts
known to the arresting officer at the time of the arrest.” Devenpeck v.
Alford, 543 U.S. 146, 152 (2004) (citation omitted). Importantly though, an
“officer’s state of mind (except for the facts that he knows) is irrelevant to
the existence of probable cause.” Id. at 153 (citing, inter alia, Whren v.
United States, 517 U.S. 806, 812-13 (1996)). Instead, an arrest is lawful
“as long as the circumstances, viewed objectively, justify that action.” Id.
(internal quotation marks and citation omitted).
Along these lines, “[a]n arrest pursuant to a valid warrant is presumptively
made with probable cause.” Martinetti, 112 F. Supp. 2d at 252-53 (citation
omitted). This presumption “can be rebutted only by a showing of fraud,
perjury, or the misrepresentation or falsification of evidence.” Id. at 253

23

(citation and internal quotations omitted). Ultimately, “[t]he question of
whether or not probable cause existed may be determinable as a matter of
law if there is no dispute as to the pertinent events and the knowledge of
the officers, or may require a trial if the facts are in dispute.” Weyant, 101
F.3d at 852 (citations omitted).
With respect to claims for malicious prosecution, a plaintiff must
establish that: “(1) the defendant commenced a criminal proceeding
against him; (2) the proceeding ended in the plaintiff’s favor; (3) the
defendant did not have probable cause to believe the plaintiff was guilty of
the crime charged; and (4) the defendant acted with actual malice.” Cook
v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). And as with false arrest, the
existence of probable cause is a complete defense to a malicious
prosecution claim. See Savino, 331 F.3d at 72; see also Lewis v. U.S., 388
F. Supp. 2d 190, 195 (S.D.N.Y. 2005). Probable cause to commence a
criminal proceeding exists when a defendant has “knowledge of facts,
actual or apparent, strong enough to justify a reasonable man in the belief
that he has lawful grounds for prosecuting the defendant in the manner
complained of.” Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994).
B.

“False Arrest /Unreasonable Seizure”: The June 2005 Events
24

In his first cause of action, Barcomb alleges a claim of “False
Arrest/Unreasonable Seizure” against Chief Sabo and Assistant Chief
Lottie in connection with the events of June 30, 2005; namely, the arrest7
and transportation of Barcomb from Clinton County to Suffolk County.
(Am. Compl. ¶¶ 57-63, Dkt. No. 19.) More specifically, Barcomb alleges
that “[i]t was not objectively reasonable for [Chief Sabo and Assistant Chief
Lottie] to arrest and transport him the entire length of the State of New York
without complying with the express requirements of New York law, [i.e.,
N.Y. CRIM. PROC. LAW § 120.90(3),]8 including providing [him] with an
opportunity to appear before a local court to be arraigned and released.”
(Am. Compl. ¶¶ 25, 59, Dkt. No. 19.) The court agrees with Chief Sabo

7

Defendants concede, for purposes of this motion, that Barcomb was arrested by Chief
Sabo and Assistant Chief Lottie before being transported to Suffolk County. (See Defs. Reply
at 1, Dkt. No. 112.)
8

In relevant part, N.Y. CRIM. PROC. LAW § 120.90(3) provides:

Upon arresting a defendant for an offense other than a felony pursuant to a
warrant of arrest in a county other than the one in which the warrant is
returnable or one adjoining it, a police officer, if he be one to whom the warrant
is addressed, must inform the defendant that he has a right to appear before a
local criminal court of the county of arrest for the purpose of being released on
his own recognizance or having bail fixed. If the defendant does not desire to
avail himself of such right, the officer must request him to endorse such fact
upon the warrant, and upon such endorsement the officer must without
unnecessary delay bring him before the court in which the warrant is returnable.
If the defendant does desire to avail himself of such right, or if he refuses to
make the aforementioned endorsement, the officer must without unnecessary
delay bring him before a local criminal court of the county of arrest.

25

and Assistant Chief Lottie that this cause of action must be dismissed.
At the threshold, “it is not the province of the Fourth Amendment to
enforce state law.” Virginia v. Moore, 553 U.S. 164, 178 (2008).
“Whether or not [conduct] is reasonable within the meaning of the Fourth
Amendment ... has never depended on the law of the particular State in
which the [conduct] occurs.” Id. at 172 (citations and internal quotation
marks omitted); see also Watson v. City of New York, 92 F.3d 31, 37-38
(2d Cir. 1996) (“Ample precedent establishes that a state rule of criminal
procedure ... does not create a liberty interest that is entitled to protection
under the federal Constitution.”). Thus, while Barcomb may have been
deprived of his state procedural right to be arraigned locally, that
deprivation alone does not entitle him to relief under the Fourth
Amendment. See Watson, 92 F.3d 31, 37-38 (explaining that the specific
arraignment requirements of New York State procedural law were
irrelevant to whether the delay in plaintiff’s arraignment infringed her Fourth
and Fourteenth Amendment rights); see also Young v. Cnty. of Fulton, 160
F.3d 899, 902 (2d Cir. 1998) (“Without more, the fact that defendants
violated New York procedural requirements does not support liability under
§ 1983.”); Robinson v. Via, 821 F.2d 913, 922-23 (2d Cir. 1987) (“[A]

26

violation of state law neither gives [rise to] a § 1983 claim nor deprives
defendants of the defense of qualified immunity to a proper § 1983 claim.”
(citations omitted)). Rather, to succeed on his Fourth Amendment claim,
Barcomb must show that he was deprived of a clearly-established Fourth
Amendment right when he was arrested and transported to the county that
issued the warrant for his arrest. Barcomb cannot make this showing.
As explained above, the existence of probable cause, which is a
“complete defense” to an action for false arrest or wrongful imprisonment,
Weyant, 101 F.3d at 852, is presumed where an arrest is made pursuant to
a valid arrest warrant, Martinetti, 112 F. Supp. 2d at 252. Thus, unless it
can be shown that the warrant was obtained using fraud, perjury, or the
misrepresentation or falsification of evidence, a claim for false arrest or
wrongful imprisonment must fail. See Katz v. Morgenthau, 709 F. Supp.
1219, 1229 (S.D.N.Y. 1989) (“No civil action is available to plaintiff under
Section 1983 for an arrest and subsequent detention made pursuant to a
valid arrest warrant.” (citing Baker v. McCollan, 443 U.S. 137, 145 (1979)).
In this case, Barcomb does not dispute that he was arrested, detained and
transported to Suffolk County pursuant to a valid arrest warrant, (see Pl.
Resp. Mem. of Law at 1, 12, Dkt. No. 110), and does not allege the

27

existence of fraud, perjury, or the misrepresentation or falsification of
evidence in obtaining that warrant. Accordingly, because probable cause
to arrest and detain Barcomb clearly existed, his claim for “false
arrest/unreasonable seizure” is dismissed.9
In an effort to salvage his claim, Barcomb appears to argue that while
his arrest and detention were justified at their inception, his Fourth
Amendment right to be free from unreasonable seizure was nonetheless
violated because he was deprived of the opportunity to be arraigned
locally. (See Pl. Resp. Mem. of Law at 12-14, Dkt. No. 110.) However,
even if the court were to credit the contention that Barcomb, an individual
arrested and detained pursuant to a valid warrant, had a Fourth
Amendment right to a local and more expeditious arraignment, his claim
would nonetheless fail on qualified immunity grounds.
“The doctrine of qualified immunity shields government officials from
liability for civil damages when their conduct does not violate ‘clearly

9

While Barcomb alleges that Chief Sabo and Assistant Chief Lottie’s actions in arresting
and transporting him to Suffolk County “were motivated by bad faith and malice,” (Am. Compl.
¶ 61, Dkt. No. 19), that allegation, even if true, is “constitutionally irrelevant [since] the seizure
[was] supported by probable cause.” Turkmen v. Ashcroft, 589 F.3d 542, 549 (2d Cir. 2009);
see also Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (“The subjective
motivations of the individual officers have no bearing on whether a particular seizure is
‘unreasonable’ under the Fourth Amendment.” (quoting Graham v. Connor, 490 U.S. 386, 397
(1989)).

28

established statutory or constitutional rights of which a reasonable person
would have known.’” African Trade & Info. Ctr., Inc. v. Abromaitis, 294
F.3d 355, 359 (2d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). A right is “clearly established” if: “(1) the law is defined with
reasonable clarity, (2) the Supreme Court or the Second Circuit has
recognized the right, and (3) a reasonable defendant would have
understood from the existing law that his conduct was unlawful.” Anderson
v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (citation and internal quotation
marks omitted.)
In this case, Barcomb has pointed to no Supreme Court or Second
Circuit authority clearly establishing the right now asserted, or to any other
pre-existing law sufficient to give defendants “fair warning” that their
conduct in transporting Barcomb to the warrant-issuing county and
depriving him of a local arraignment would violate federal law.10 Rather, in
10

To the extent Barcomb relies on the Supreme Court’s holdings in Gerstein v. Pugh,
420 U.S. 103 (1975), and Cnty. of Riverside v. McLaughlin, 500 U.S. 44 (1991), for the
proposition that the Fourth Amendment clearly entitled him to an “arraignment without
unreasonable delay,” (see, e.g., Pl. Resp. Mem. of Law at 12, Dkt. No. 110), that reliance is
misplaced. The delay addressed by the Court in those case was pre-arraignment delay in the
context of warrantless arrests. Under those circumstances, that Court held that an arrestee
was entitled to “a [prompt] judicial determination of probable cause,” Gerstein, 420 U.S. at 125,
and set forty-eight hours as the presumptive outside limit for confinement prior to arraignment,
McLaughlin, 500 U.S. at 56. In this case, Barcomb was arrested pursuant to a valid warrant
based on a prior judicial determination of probable case, thereby satisfying the Fourth
Amendment’s “prompt arraignment requirement” and obviating the need for a post-arrest
probable cause determination. Gerstein, 420 U.S. at 125 (“[The] determination must be made

29

a passing attempt to avoid dismissal on qualified immunity grounds,
Barcomb asserts only that the rights of an arrestee “to be free from
unreasonable seizures under the Fourth Amendment, and ... to due
process ... were firmly established at the time [he] was taken into custody.”
(Pl. Resp. Mem of Law at 14, Dkt. No. 110.) As this court has made clear
in the past, however, “[such a] generalized observation does not control.”
Reinhart v. City of Schenectady Police Dep’t, 599 F. Supp. 2d 323, 336
(N.D.N.Y. 2009). Rather, “the question is whether the law was clearly
established in a more particularized sense ... [such] that a reasonable
official would have understood that what [he] was doing violated the law.”
Id. (citation omitted). And given the dearth of authority cited in that respect,
the court must answer that question in the negative. Accordingly, for this
reason and the reasons discussed above, Barcomb’s first cause of action
is dismissed.
C.

False Arrest and Malicious Prosecution: The 2006 Events

either before or promptly after arrest.” (emphasis added)); Baker v. McCollan, 443 U.S. 137,
143 (1979) (explaining that “a person arrested pursuant to a warrant issued by a magistrate on
a showing of probable-cause is not constitutionally entitled to a separate judicial determination
that there is probable cause to detain him pending trial”). Thus, the court declines Barcomb’s
implicit invitation to hold that the Fourth Amendment’s “prompt arraignment requirement,”
which targets warrantless arrests, would have signaled to Chief Sabo and Assistant Chief
Lottie that their conduct in depriving Barcomb of a local and more expeditious arraignment and
release would violate federal law.

30

In his remaining second and third causes of action, Barcomb asserts
claims of false arrest and malicious prosecution against Trooper Murphy,
Chief Sabo, and Assistant Chief Lottie in connection with his 2006 arrest
and prosecution for misdemeanor criminal impersonation in the second
degree. (See Am. Compl. ¶¶ 64-81, Dkt. No. 19.) As an initial matter,
these causes of action are dismissed as against Assistant Chief Lottie
because there is no evidence to suggest that he played any role in
obtaining the arrest warrant or in prosecuting Barcomb for second-degree
criminal impersonation, a fact that Barcomb does not appear to dispute.
See Scott v. Fisher, 616 F.3d 100, 110 (2d Cir. 2010) (“[P]ersonal
involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under [§] 1983.” (citation and internal
quotation marks omitted)).
The remaining defendants, Trooper Murphy and Chief Sabo, argue
that they are entitled to qualified immunity because there was probable
cause, or at least “arguable probable cause,” to support Barcomb’s arrest
and subsequent prosecution. (See Defs. Mem. of Law at 13-14, Dkt. No.
94:72.)
As explained above, the existence of probable cause is a complete

31

defense to actions for false arrest and malicious prosecution. See Weyant,
101 F.3d at 852; Savino, 331 F.3d at 72. And again, “[p]robable cause
exists when an officer has knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.” Savino, 331
F.3d at 76 (internal quotation marks and citation omitted). But “[e]ven if
probable cause to arrest [or charge] is ultimately found not to have existed,
an arresting [or charging] officer will still be entitled to qualified immunity
from a suit for damages if he can establish that there was ‘arguable
probable cause’ to arrest [or charge].” Escalera v. Lunn, 361 F.3d 737, 743
(2d Cir. 2004); see also Reinhart, 599 F. Supp. 2d at 335-36. Arguable
probable cause exists where “either (a) it was objectively reasonable for
the officer to believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test
was met.” Escalera, 361 F.3d at 743 (citations and internal quotation
marks omitted). Thus, this “analytically distinct test for qualified immunity is
more favorable to ... officers than the one for probable cause,” id., as it
shields them from § 1983 liability unless their “judgment was so flawed that
no reasonable officer would have made a similar choice,” see Lennon v.

32

Miller, 66 F.3d 416, 424-25 (2d Cir. 1995) (citation omitted). Whether
arguable probable cause exists may be determined as a matter of law “if
there is no dispute as to the material historical facts.” Zellner v. Summerlin,
494 F.3d 344, 368 (2d Cir. 2007) (citations omitted). But “[e]ven where
factual disputes exist, a § 1983 claim may fail if the plaintiff’s version of
events is sufficient to establish probable cause.” McZorn v. Endicott Police
Dep’t, No. 3:06-CV-0033, 2008 WL 163581, at *7 (N.D.N.Y. Jan. 16, 2008).

In this case, Barcomb was arrested for and charged with
misdemeanor criminal impersonation in the second degree, a violation of
N.Y. PENAL LAW § 190.25(3). As set forth above, the statute provides that:
A person is guilty of criminal impersonation in the second
degree when he... (a) [p]retends to be a public servant, ... or
falsely expresses by his words or actions that he is a public
servant or is acting with approval or authority of a public agency
or department; and (b) so acts with intent to ... cause another to
act in reliance upon that pretense.
N.Y. PENAL LAW § 190.25(3). Therefore, in assessing whether
Trooper Murphy and Chief Sabo are entitled to summary judgment on
Barcomb’s false arrest and malicious prosecution claims, the court must
determine whether, based on the undisputed facts viewed in a light most

33

favorable to Barcomb, there was, as of April 18, 2006,11 probable cause or
arguable probable cause to believe that Barcomb had violated this statute.
With respect to Trooper Murphy, the court concludes that even when
limiting review of the record to Barcomb’s version of events, he is entitled
to qualified immunity. As recounted above, the encounter that later gave
rise to Barcomb’s arrest occurred during the early morning hours at a
sobriety checkpoint when Trooper Murphy stopped Barcomb’s vehicle.
According to Barcomb, Trooper Murphy told Barcomb that his “eyes looked
a little funny to him,” and asked Barcomb whether he was taking any
medications. Barcomb responded that he “was on thyroid medicine.”
Then, when Trooper Murphy told Barcomb that he was going to administer
the “Horizontal Gaze Nystagmus” test, Barcomb responded, according to
him, “I understand how it works, I have been a cop for six years.”
According to Barcomb, this statement prompted Trooper Murphy to ask
Barcomb where he worked and whether he had any identification or a

11

As the parties acknowledge, probable cause is measured at the time of arrest with
respect to false arrest claims, and at the time the criminal action was commenced with respect
to malicious prosecution claims. See Reinhart v. City of Schenectady Police Dep’t, 599 F.
Supp. 2d 323, 328 (N.D.N.Y. 2009). In this case, however, because the factual predicates for
the probable cause remained unchanged from the date the Information was filed—a date not
provided in the parties’ submissions—and April 18, 2006, the date Barcomb was arrested and
deprived of his liberty, the court will use that date, April 18, as the outside controlling date for
purposes of determining whether there was reason to believe that Barcomb committed the
crime charged.

34

badge. Barcomb claims he told Trooper Murphy that he worked “at SUNY
Plattsburgh, but I have spent some time at SUNY Stony [B]rook,” and, with
respect to his ID and badge, he claims he stated: “I don’t have any. I’m out
of work at the moment.” It is undisputed that Trooper Murphy later learned
from Chief Sabo, prior to Barcomb’s arrest, that Barcomb was suspended
from the SUNY Plattsburgh Police Department when he made these
statements.
Based on these facts, Trooper Murphy had at least arguable probable
cause to believe that Barcomb violated § 190.25(3) of the New York Penal
Law. In the court’s view, because Barcomb’s initial volunteered statement
that he “[has] been a cop for six years” could reasonably be construed to
convey that he was currently an active police officer, the court cannot say
that officers of reasonable competence could not disagree as to whether
that statement alone, in light of Barcomb’s suspension, amounted to
conduct proscribed under § 190.25(3). See New York v. Epperson, 179
A.D.2d 92, 94-95 (1st Dep’t 1992) (holding that police officer suspended
but not finally terminated “was no longer entitled to enjoy the privileges of
his profession” and “was not authorized to act as a police officer”), aff’d, 82
N.Y.2d 697 (N.Y. 1993). And while Barcomb focuses much of his

35

opposition on his claim that he told Trooper Murphy he was “out of
work”—apparently to demonstrate that he did not intend to falsely
represent himself as an active police officer—that claim, even if true, does
not negate the reasonableness of Trooper Murphy’s probable cause
assessment. See McGuire v. City of New York, 142 F. App’x 1, 3 (2d Cir.
2005) (“[W]hen an officer has evidence that a defendant has engaged in
conduct proscribed by law ... he has probable cause to arrest the person
even without specific evidence on the elements of knowledge and intent
that will have to be proved to secure a conviction at trial.” (citations
omitted)). This is especially so since Barcomb’s state of mind could have
been reasonably inferred from the “implications of the information known to
[Trooper Murphy].” Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989)
(citation omitted). Indeed, given the context in which the encounter
occurred—a sobriety checkpoint—the fact that Barcomb made a statement
strongly suggesting he was currently an active police officer, only to
somewhat qualify that statement upon further questioning, and the fact that
the administration of a sobriety test appeared, at the time, imminently
forthcoming, Trooper Murphy had a reasonable basis to conclude that
Barcomb attempted to use his status as a police officer to gain favorable

36

treatment from him. Accordingly, because the court discerns no basis
upon which a reasonable jury could conclude that Trooper Murphy’s
“judgment [as to probable cause] was so flawed that no reasonable officer
would have made a similar choice,” see Lennon, 66 F.3d at 424-25 (citation
omitted), Trooper Murphy is entitled to qualified immunity with respect to
Barcomb’s second and third causes of action.
Chief Sabo is also entitled to judgment on Barcomb’s second and
third causes of action. It is undisputed that prior to submitting her
Deposition to Trooper Murphy, Chief Sabo had learned from Tooper
Murphy and Sgt. DuPell that Barcomb was stopped at a sobriety
checkpoint; that he had dilated pupils; that he said he was “on the job”; that
he showed a SUNY Stony Brook ID; and that he said his badge and ID
were left at home. It is also undisputed that Chief Sabo was aware that
Barcomb was suspended without pay from the SUNY Plattsburgh Police
Department when this encounter occurred. Because these facts provide a
reasonable basis to conclude that Barcomb held himself out as an active
police officer, they provide probable cause to believe that Barcomb
engaged in conduct proscribed under § 190.25(3) of the New York Penal
Law. See Epperson, 179 A.D.2d at 94-95. And like Trooper Murphy, Chief

37

Sabo also had at her disposal sufficient information from which to
reasonably infer the requisite intent. More specifically, the context in which
the encounter occurred—a sobriety checkpoint—and Chief Sabo’s
reasonable belief that Barcomb had dilated pupils, displayed a SUNY ID,
and told Trooper Murphy he was “on the job” and “[has] been a cop for six
years” are all circumstances from which Chief Sabo could have reasonably
inferred that Barcomb, in holding himself out as active police officer, was
intending to induce Trooper Murphy to treat him more leniently than he
otherwise would have. Accordingly, Chief Sabo clearly possessed
information and knowledge sufficient to justify the reasonable belief that
Barcomb violated § 190.25(3) of the New York Penal Law. And even if the
court were wrong in this regard and the probable cause test was not met,
Barcomb’s claims against Chief Sabo would nonetheless be subject to
dismissal since the court cannot say, based on the undisputed facts before
it, that no officers of reasonable competence could disagree as to that
conclusion.
In an attempt to save his claims against Chief Sabo, Barcomb
appears to argue that probable cause is lacking and qualified immunity
forfeited because Chief Sabo knew or should have known that Barcomb

38

remained technically “employed” with the SUNY Plattsburgh Police
Department during his suspension, but failed to convey that information to
the State Police or prosecutors. (See Pl. Resp. Mem. of Law at 18-22, Dkt.
No. 110.) The court disagrees.
First, contrary to Barcomb’s assertions, the fact that Barcomb
remained employed during his suspension—a fact necessarily implied by
his “suspended” status—does not alter the conclusion that his conduct in
arguably representing himself as a police officer could have reasonably
been viewed as proscribed under § 190.25(3). See Epperson, 179 A.D.2d
at 93-95 (explaining that a suspended police officer, though not “finally
terminated,” was nonetheless “[un]authorized to act as a police officer”
where, by virtue of his suspension, he was “prohibited from performing
assigned duties” and was required “to surrender his [ID, badge, and
firearm]”). Second, even after examining the charge against Barcomb in
light of Barcomb’s “employed” status, Judge Patnode, the warrant-issuing
judge, found that probable cause remained in tact and therefore denied
Barcomb’s motion to dismiss. (See Judge Patnode Ruling, Dkt. No. 94:69
(finding that while Barcomb remained “employed” by SUNY Plattsburgh, he
“ha[d] not been ‘on the job’ since his suspension”); see also Velardi v.

39

Walsh, 40 F.3d 569, 574 (2d Cir. 1994) (explaining that where there exists
“no genuine dispute that a magistrate would have issued the warrant on the
basis of the ‘corrected affidavits,’ then under the ordinary standard for
summary judgment, a qualified immunity defense must be upheld.” (
citation and emphasis omitted).) And third, while Barcomb’s official
employment status may be relevant to the ultimate inquiry of whether he
acted with the requisite intent, it does not, as Barcomb contends, “void”
probable cause or defeat Chief Sabo’s entitlement to qualified immunity.
See McGuire, 142 F. App’x at 3; Krause, 887 F.2d at 371. Indeed, as
discussed above, Chief Sabo had sufficient information from which to infer
Barcomb’s intent, even considering the employment status information, and
Barcomb offers no facts to demonstrate that Chief Sabo was aware of any
fact that would definitively compel a contrary conclusion.
Accordingly, for the reasons discussed above, Barcomb’s second
and third causes of action are also dismissed as against Chief Sabo.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Barcomb’s fourth, fifth, and sixth causes of action are
DISMISSED; and it is further

40

ORDERED that defendants’ motion for summary judgment (Dkt. No.
94) is GRANTED and Barcomb’s first, second, and third causes of action
are DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
May 6, 2011
Albany, New York

41