Arroyo v. City of Buffalo et al

Filing 51

DECISION AND ORDER. Plaintiff's motion (Dkt. 33) is GRANTED in part, and DENIED in part; Plaintiff's request for sanctions is DENIED. Defendants shall provide the responses to Plaintiff's Interrogatories Nos. 8-12 consistent with this Decision and Order within 30 days; Defendants shall submit documents responsive to Interrogatory No. 14 to the court for in camera review within 14 days. Signed by Hon. Leslie G. Foschio on 9/13/2018. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
ADAM ARROYO,
Plaintiff,

DECISION
and
ORDER

v.
THE CITY OF BUFFALO,
CITY OF BUFFALO POLICE DEPARTMENT,
DANIEL DERENDA, Commissioner of the
City of Buffalo Police Department,
DET. JOHN GARCIA, Buffalo Police Narcotics
Officer,
DET. SGT. BRENDA CALLAHAN, Narcotics Officer,
CITY OF BUFFALO POLICE DEPARTMENT
NARCOTICS DIVISION,
DET. JOSEPH COOK,
MICHAEL DeGEORGE, City of Buffalo Spokesperson,

15-CV-753A(F)

Defendants.
____________________________________
APPEARANCES:

MATTHEW A. ALBERT, ESQ.
Attorney for Plaintiff
254 Richmond Avenue
Buffalo, New York 14222
TIMOTHY A. BALL
CORPORATION COUNSEL, CITY OF BUFFALO
Attorney for Defendants
MAEVE E. HUGGINS,
Assistant Corporation Counsel, of Counsel
1112 City Hall
65 Niagara Square
Buffalo, New York 14202

In this § 1983 civil rights action, Plaintiffs alleged Defendants Garcia (“Garcia”),
Callahan (“Callahan”) and Cook (“Cook”), City of Buffalo Police narcotics detectives,
violated Plaintiff’s Fourth Amendment rights by improperly executing a Buffalo City
Court search warrant (“search warrant” or “warrant”) at Plaintiff’s premises, in the

course of which Defendant Cook shot and killed Plaintiff’s pet dog. Plaintiff also alleged
intentional infliction of mental distress, negligent destruction of Plaintiff’s personal
property and defamation as pendent state law claims. Plaintiff’s Fourth Amendment
claims against Defendant City of Buffalo and its then police commissioner, Daniel
Derenda, were previously dismissed. See Arroyo v. City of Buffalo, 2017 WL 3085835
at * 7 (W.D.N.Y. Jul. 20, 2017), Report and Recommendation (“the R&R”), adopted by
2018 WL 488943 (W.D.N.Y. Jan. 20, 2018). Specifically, Plaintiff alleges that the
warrant, issued May 30, 2013, was directed to “304 Breckenridge Street, Upper,
Buffalo, New York” without specifying which of the two upper units which then existed at
that address, the front unit occupied by a known narcotics trafficker, one Tori Rockmore
(“Rockmore”), or the rear, Plaintiff’s apartment, was the correct target premises to be
searched for evidence of narcotics, specifically cocaine trafficking. According to
Plaintiff, Defendants, as part of Defendants’ application, presented to the issuing Buffalo
City Court judge, Hon. Craig Hannah (“Judge Hannah” or “the issuing judge”), a
confidential informant who had recently engaged in a controlled buy, under the direction
of Defendants Callahan and Garcia, from Rockmore who was describe in the warrant as
a “Black/male appox. 5’10”, 190 lbs, 26-30 yoa and the occupant of 304 Breckenridge
Street-upper.” Dkt. 25-11 at 1. No reference to a front or rear upper dwelling unit at the
address was made in either Defendant Garcia’s application to Judge Hannah or on the
face of the warrant. See Dkt. 33-11 at 1-3; 4-5. According to the application for the
search warrant, the informant appeared before Judge Hannah, in camera, and testified
to the facts of the controlled purchase, and the informant’s testimony was recorded and
“preserved.” Dkt. 33-11 at 1. At Defendant Garcia’s deposition, conducted August 29,

2

2017, Defendant Garcia testified that although the warrant did not particularize which
unit was to be searched, or otherwise indicate the existence of two separate units in the
upper floor at 304 Breckenridge, that because the informant informed Garcia and
testified before Judge Hannah that the controlled buy with the referenced black male
took place in the rear, Plaintiff’s, apartment, Dkt. 33-12 at 3-4; 6, the June 3, 2013
execution of the warrant by Defendants, including Detective Cook, was correctly
directed to Plaintiffs’ rear apartment where Defendant Cook encountered and shot
Plaintiff’s dog, a pit bull. Defendants’ subsequent search of Plaintiff’s apartment, which
also damaged several items of Plaintiff’s personal property, failed to yield any evidence
of the suspected narcotics. Plaintiff also asserts that one of Defendants’ prior attorneys,
Assistant Corporation Counsel David M. Lee, represented in open court that Defendants
had “hit” the “wrong unit” at 304 Breckenridge Street. Dkt. 33 at 7; Dkt. 33-12 at 6.
Before the court is Plaintiff’s motion to compel answers to Plaintiff’s
Interrogatories 8-12, 14, and 30 (“Plaintiff’s interrogatories” or “the interrogatories”),
served January 5, 2016, and for sanctions, filed December 13, 2017 (Dkt. 33). As
relevant, Plaintiffs’ Interrogatory No. 8 seeks the identity of all persons involved in the
investigation leading to obtaining the search warrant, including identification of the
confidential informant and production of the informant’s in camera testimony before
Judge Hannah.1 Interrogatory No. 9 requests similar information regarding execution of
the warrant. Interrogatory No. 10 seeks information concerning the informant’s
reliability, such as prior assistance to police, whether the assistance was substantiated,
and whether the informant’s testimony for the warrant indicated the presence of

1

The court considers Plaintiff’s requested production of the recording and/or transcript of such testimony
as made pursuant to Fed.R.Civ.P. 34(a)(1)(A) (“Rule 34(a)(1)(A)”).
3

“animals at [Plaintiff’s] residence,” i.e., the rear apartment. Interrogatory No. 11
requests information regarding any search warrants directed to 304 Breckenridge
Street, without limitation as to a particular period of time, including the identity of all
persons involved in obtaining and executing such warrants. Interrogatory No. 12 seeks
similar information for search warrants obtained for the address prior to May 2013.
Plaintiff’s Interrogatory No. 14 requests identification of all City of Buffalo Police
Department policies and guidance to police officers concerning the proper procedures
for obtaining and executing search warrants including any guidelines with respect to
avoiding unnecessary injury to animals at a target residence.2 Interrogatory No. 30
requests detailed information with regard to any Police Department policies and
procedures as to police officers’ “treatment of animals encountered in the line of duty”
including the use of force against such animals.
In Defendants’ answers to Plaintiff’s interrogatories served September 2, 2016,
Dkt. 32-9, Defendants objected to Interrogatory No. 8 as overly burdensome, overbroad,
lacking in relevance, and asserted the informant’s privilege. Defendants’ answer to
Interrogatory No. 9 referred Plaintiff to Defendants’ required initial disclosures pursuant
to Fed.R.Civ.P. 26(a)(1) (“Rule 26(a)(1)”). Defendants’ objection to Interrogatory No. 10
asserted the same grounds Defendants raised against Interrogatory No. 8. Defendants
objected to Interrogatory No. 11 on overbreadth, burdensomeness, and relevancy
grounds and again asserted the informant’s privilege. Defendants also objected to
Interrogatory No. 12 arguing it was overly broad, burdensome and lacking in relevancy.
Defendants’ objection to Plaintiff’s Interrogatory No. 14 also asserted overbreadth,

2

Although not specifically requested, the parties’ contention with respect to this interrogatory implies
Plaintiff also seeks production of the relevant documents pursuant to Rule 34(a)(1).
4

burdensomeness, lack of relevancy, and interposed the law enforcement privilege.
Defendants failed to answer any of Plaintiff’s interrogatories beyond Interrogatory No.
25, specifically, as relevant, Interrogatory No. 30, presumably because such
interrogatories exceeded 25, the limit established by Fed.R.Civ.P. 33(a)(1), an issue
unaddressed by the parties as a bar to Plaintiff’s request.
1.

Defendants’ Objections Based on Burdensomeness, Overbreadth and
Relevancy.
As a result of Judge Arcara’s adoption of the R&R, Plaintiff’s remaining claims

include Plaintiff’s § 1983 claims against Defendants Garcia, Callahan and Cook (“the
Individual Defendants”) based on a violation of Plaintiff’s Fourth Amendment rights
against an unreasonable search and seizure, however, as to the loss of Plaintiff’s dog,
the alleged liability is sought against Defendant Cook only (Plaintiff’s First Claim);
Plaintiff’s § 1983 claim against Individual Defendants alleging excessive force during
execution of the warrant in violation of Plaintiff’s Fourth Amendment rights (Plaintiff’s
Third Claim); Plaintiff’s mental distress claim based on state law against Defendants
City of Buffalo, Buffalo Police Department, Buffalo Police Narcotics Division, Derenda,
and Michael DeGeorge (“the City Defendants”), and the Individual Defendants
(Plaintiff’s Fourth Claim);3 Plaintiff’s intentional and negligent damage to property claim
based on state law against the Individual Defendants (Plaintiff’s Fifth Claim); Plaintiff’s
claim of wrongful execution of the search warrant against the Individual Defendants

3
Defendants have not moved against Plaintiff’s Fourth Claim, see Arroyo, 2017 WL 3085835, at * 8, n.
10, nor did Defendants move against Plaintiff’s other state law claims when filing Defendants’ motion
pursuant to Fed.R.Civ.P. 12(c) and 56. Although in Defendants’ recent summary judgment motion, filed
June 29, 2018 (Dkt. 45-1), Defendants state Plaintiff has “agreed to withdraw” Plaintiff’s mental distress
and defamation claims, Dkt. 45-1 at 3, n. 1, no stipulation of discontinuance to this effect appears on the
record to date.

5

based on a violation of the Fourth Amendment (Plaintiff’s Seventh Claim); and Plaintiff’s
state law defamation claim against Defendants Buffalo Police Department Narcotics
Division, Derenda and DeGeorge and the Individual Defendants (Plaintiff’s Ninth Claim).
In this case, Defendants’ objection to Plaintiff’s interrogatories based on the
interrogatories as overly broad, burdensomeness and lacking in relevancy should be
overruled. To be sustained, an objection based on overbreadth requires a showing that
the interrogatory “extends to information not relevant to the claims or defenses in the
matter.” Baicker-McKee, Janssen, Corr, FEDERAL CIVIL RULES HANDBOOK (2018
Thompson Reuters) at 861 (citing Jewish Hosp. Ass’n of Louisville, Ky. v. Struck Const.
Co, Inc., 77 F.R.D. 59, 60 (W.D.Ky. 1978)). See Spin Master Ltd. v. Bureau Veritas
Consumer Products Service, Inc., 2016 WL 690819, at *4 (W.D.N.Y. Feb. 22, 2016)
(denying motion to compel discovery of general ledgers which were not relevant to
claims asserted against requested party such that discovery request was overbroad).
In federal civil actions discovery may seek information relevant to a claim or defense if
the request is proportional to the needs of the case considering such factors, relevant to
this case, the importance of the requested discovery in a determination of the merits.
See Fed.R.Civ.P. 26(b)(1); see also Woodward v. Afify, 2017 WL 279555, at * 1-2
(W.D.N.Y. Jan. 23, 2017) (quoting Fed.R.Civ.P. 26(b)(1) and citing cases). Such
requested information need not be in itself admissible in evidence, id., and includes
information that may be useful for purposes of impeachment of opposition testimony.
Gross v. Lunduski, 304 F.R.D. 136, 147, 161 (W.D.N.Y. 2014) (ordering disclosure of
requested information that may be relevant to impeaching witness). A valid
burdensomeness objection requires a showing under oath by a person with knowledge

6

of a responding party’s records that obtaining the responsive information would require
an undue effort or expense such as where an interrogatory “seeks a high level of detail.”
Baicker-McKee, Janssen, Corr, FEDERAL CIVIL RULES HANDBOOK at 862 (citing caselaw).
See also Brown v. McKinley Mall, LLC, 2017 WL 2332330, at *3 (W.D.N.Y. May 30,
2017) (“Absent an affidavit from a person with personal knowledge of the factual nature
of an alleged undue burden arising from a discovery request pursuant to the Federal
Rules of Civil Procedure, such generalized assertions that a discovery request is unduly
burdensome will be overruled.” (citing Strom v. Nat’l Enterprise Systems, Inc., 2010 WL
1533383, at *4 (W.D.N.Y. Apr. 15, 2010))). Here, Plaintiff’s claims revolve around
Plaintiff’s allegation that the Individual Defendants were negligent in investigating the
alleged narcotics trafficking at the 304 Breckenridge Street address upon which the
search warrant was based such that in applying for the search warrant these
Defendants failed to particularize for the issuing judge the existence of two separate
living quarters in the upper floor of the house and that, as a result, the Individual
Defendants wrongfully executed the warrant at Plaintiff’s apartment resulting in damage
to Plaintiff’s property, particularly the loss of Plaintiff’s pet dog. Plaintiff’s other state
law-based claims for mental distress and defamation (assuming they remain in the
case) also arise from the Individual Defendants’ execution of the warrant at what
Plaintiff alleges was the rear apartment, not the front apartment, at 304 Breckenridge
Street where, according to Plaintiff, the cocaine purchase by the informant, as
represented to Judge Hannah, actually occurred, and Plaintiff’s reaction to Defendants
DeGeorge and Derenda’s public statements in defending the police investigation at
issue suggesting, according to Plaintiff, Plaintiff was engaged in narcotics trafficking.

7

Further, Defendant Garcia testified at his deposition, conducted August 29, 2017, that
when testifying before Judge Hannah, the confidential informant who engaged in the
controlled purchase stated that it occurred in the rear, i.e., Plaintiff’s, apartment. See
Dkt. 33-12 at 3-4 (Garcia Deposition at p. 13, Lines 3-7); Dkt. 33-12 at 3-4, 6. Fairly
construed, Plaintiff’s interrogatories at issue on Plaintiff’s motion seek details regarding
the obtaining and execution of the search warrant at Plaintiff’s premises, particularly
whether the informant in fact advised Garcia and testified to Judge Hannah, as Garcia
represented in his recent deposition, that the controlled cocaine sale took place in
Plaintiff’s upper rear unit, and not the upper front unit where Rockmore, a suspected
narcotics trafficker, according to Plaintiff, resided; whether Individual Defendants had
any prior connection to the residences at 304 Breckenridge Street such that they may
have had reason to have known prior to obtaining the warrant that there were two
separate upper floor dwelling units yet failed to particularize such fact in Garcia’s
application to Judge Hannah, or on the face of the warrant, before it was issued
indicating a violation of the Fourth Amendment’s particularity requirement, see Groh v.
Ramirez, 540 U.S. 551, 557-58 (2011) (facially invalid warrant that failed to sufficiently
describe persons or things to be seized was basis for § 1983 action), as well as official
police procedure relating to obtaining and executing warrants. Such facts together with
Plaintiff’s allegation that Defendants DeGeorge and Derenda should have, or were
aware, of these circumstances also may support that these Defendants’ public
statements, as alleged by Plaintiff, that Plaintiff’s denials of drug trafficking at his
apartment were false thereby constituted defamation causing Plaintiff’s alleged mental
distress damages.

8

It is well-settled that in cases raising claims under the Fourth Amendment of
unauthorized execution of a search warrant “‘[t]he validity of the warrant must be
assessed on the basis of the information that the officers disclosed, or had a duty to
disclose, to the issuing Magistrate.’” Velardi v. Walsh, 40 F.3d 569, 575 n. 2 (2d Cir.
1994) (quoting Maryland v. Garrison, 480 U.S. 79, 85 (1987) (where defendant officers
had made reasonable efforts to ascertain whether third floor of target residence building
contained one or two units, unauthorized entry into plaintiff’s unit not an unreasonable
search)). With regard to the Fourth Amendment’s requirement that a warrant
“particularly describ[e] the place to be searched,” U.S. Const. art. IV, “‘[i]t is enough if
the description is such that the officer[s] armed with a search warrant can with
reasonable effort ascertain and identify the place intended [to be searched].’” Velardi,
50 F.3d at 576 (quoting National City Trading Corp. v. United States, 635 F.2d 1020,
1024 (2d Cir. 1980) (quoting Steele v. United States, 267 U.S. 498, 503 (1925))). Nor is
the warrant invalid for § 1983 purposes “if it is based on seemingly reliable information
which is later found to be erroneous.” Lewis v. City of Mt. Vernon, N.Y., 984 F.Supp.
748, 756 (S.D.N.Y. 1997) (citing Illinois v. Rodriguez, 497 U.S. 177, 184 (1990)).
Officers may avoid § 1983 liability in the course of executing a search warrant at an
incorrect location if the officer acted “‘under the mistaken but reasonable belief that they
were in fact executing the warrant at the correct residence . . .. Conversely, any search
or seizure that took place after the officers knew or reasonably should have known that
they were in the wrong residence . . . [is not immune from liability].” Closure v.
Onondaga County, 2007 WL 446595, at *5 (N.D.N.Y. Feb. 7, 2007) (finding defendants
who entered plaintiff’s home to execute warrant, not the residence where warrant was

9

intended to be executed, entitled to qualified immunity, and quoting Pray v. City of
Sandusky, Ohio, 49 F.3d 1154, 1159 (6th Cir. 1995)). Further, where in the course of
such a mistaken entry officers are “put on notice of risk that they might be in a unit
erroneously included within the terms of the warrant” they are required to terminate the
search. Green v. City of Mt. Vernon (N.Y.), 96 F.Supp.3d 263, 290 (quoting Garrison,
480 U.S. at 87). In other words, the Fourth Amendment is violated where officers in the
course of executing a warrant enter the wrong residence unless the officers “had an
objectively reasonable belief that they were acting in a manner that did not violate the
rights of the occupants of the residence which was mistakenly entered.” Closure, 2007
WL 446595, at *7. Nevertheless, failure by executing officers to take reasonable steps,
such as inspection of premises, checking utility records and debriefing informant, to
ascertain the presence of more than one living unit located at the target premises prior
to obtaining a warrant may create grounds for finding an illegal search. See Garrison,
480 U.S. at 89 n. 13 (search of “entire floor under those circumstances” containing more
than one dwelling may establish a Fourth Amendment violation). See also United
States v. Voustianiouk, 685 F.3d 206, 211 (2d Cir. 2012) (purpose of Fourth
Amendment that premises to be searched be sufficiently described is to assure that
place actually searched is the location intended to be searched by issuing judge and not
one mistakenly searched by executing officers) (citing caselaw and 2 Wayne R. LaFave,
SEARCH AND SEIZURE : A TREATISE ON THE FOURTH AMENDMENT § 4.5 (4th ed.. 2004)).
Here, a fair reading of Plaintiff’s Interrogatories Nos. 8-12 and 14 show they are
directed to whether, in making application for the search warrant, Garcia knew or should
have reasonably been aware based on prior contact with the 304 Breckenridge Street

10

address that the upper floor of 304 Breckenridge Street was comprised of two units, the
front then being occupied by a known narcotics trafficker (where the confidential
informant most likely engaged in the controlled buy), and the rear occupied by Plaintiff
with no criminal record, yet failed to present such information to Judge Hannah when
applying for the search warrant on May 30, 2013, such that Individual Defendants’ later
entry into Plaintiff’s rear apartment to execute the warrant on June 3, 2013 was the
result of the warrant which lacked the required degree of particularity as to the target
premises. In Interrogatory No. 8, Plaintiff specifically requests production of the record
of the in camera proceeding before Judge Hannah, Dkt. 33-8 at 7, which may indicate
whether the existence of the two upper units at the premises, as Plaintiff alleges, was
addressed with Judge Hannah by Garcia and whether, as Garcia testified at his
deposition, the confidential informant identified to Judge Hannah Plaintiff’s rear unit as
the place where the controlled cocaine purchase occurred. Interrogatory No. 14
requests information with regard to official policies and procedures for obtaining search
warrants, and the execution of warrants when officers confront animals on the premises,
including the “process of verification of the premises to be searched.” Although City
Defendants are no longer parties to Plaintiff’s Fourth Amendment claims, if Individual
Defendants during the course of conducting the investigation leading to the search at
issue failed to comply with such official guidance by, for example, failing to check utility
records at 304 Breckenridge Street, conducting proper surveillance of the premises
while the controlled purchase transpired, or sufficiently debrief the informant as to
exactly where in the upper floor of the residence the transaction occurred, see Garrison,
480 U.S. at 81 (describing reasonable efforts by investigating officers including checking

11

utility records to confirm only one apartment existed on third floor area as the target of
the warrant), such deviation may be evidence the Defendants lacked a reasonably
objective, albeit mistaken, belief that Plaintiff’s rear apartment was the proper target of
the search sufficient to defeat a defense of qualified immunity. See Dodd v. City of
Norwich (Conn.), 827 F.2d 1, 4 (2d Cir. 1987) (compliance with police department’s
policy and training regarding holstering of defendant’s weapon while engaged in
handcuffing resident relevant to defendant’s immunity defense). See also Berg v. Kelly,
897 F.3d 99, 109 (2d Cir. 2018) (“‘[T]he qualified immunity defense . . . protects an
official if it was ‘objectively reasonable’ for him at the time of the challenged action to
believe his acts were lawful.’” (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 134
(2d Cir. 2010))). For example, if the informant informed Garcia, as Garcia testified, and
testified to Judge Hannah as Garcia averred, that the transaction took place in the rear
apartment, it is remarkable that such an important particular, one required by the Fourth
Amendment, would not have been conveyed to Judge Hannah or escaped his attention
had it been proffered to him during the in camera proceeding such that the warrant
made no mention of the existence of the rear (or front) apartment as the target
residence as, according to Garcia, the informant had in fact testified. Accordingly, the
court finds Plaintiff’s Interrogatories Nos. 8-12 and 14 seek relevant information, are not
overly broad or burdensome, and Defendants’ objection on such grounds is therefore
overruled. However, in its discretion, the court limits the scope of Interrogatories Nos.
11 and 12 to the period of three years prior to and following May 2013. Plaintiff’s motion
with respect to these interrogatories, as modified, should be GRANTED; Plaintiff’s

12

motion with regard to Interrogatory No. 30 is DENIED as exceeding, without prior court
permission, the limit established by Rule 33(a)(1).
2.

Defendants’ Objections Based on the Informant’s Privilege.
As noted, Defendants also object to Plaintiff’s Interrogatories Nos. 8-12 insofar

as these interrogatories request the identity of the confidential informant who assisted
the Individual Defendants in conducting the investigation and carried out the controlled
buy at 304 Breckenridge Street asserting the informant’s privilege. This privilege
promotes the flow of information helpful to law enforcement, Ayala v. City of New York,
2004 WL 2914085, at *1 (S.D.N.Y. Dec. 16, 2004), however, the privilege must yield
where disclosure is “‘essential to a fair determination of the issues in the case.’” Id.
(quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). The burden is on the
party seeking the identity of the informant. Id. (citing In re United States, 565 F.2d 19,
23 (2d Cir. 1977)). Disclosure is “most appropriate when the informant is ‘a key witness
or . . . is integral in the case.” Id. (quoting United States v. Saa, 859 F.2d 1067, 1073
(2d Cir. 1988)). The availability of other means of discovery, such as through
depositions, weighs against disclosure. Id. (citing caselaw). Further, the privilege
applies only to the informer’s identity, not to his or her statements, id. (citing caselaw),
and requires the court to balance the public’s interest in protecting the flow of law
enforcement information against the public’s interest in a fair determination of the merits
of the case. Id. at *1 (citing Roviaro, 353 U.S. at 64). Here, the record indicates that
the informant’s testimony regarding the specifics of the drug buy at 304 Breckenridge
Street and the location within the house where it allegedly occurred was provided in
testimony to Judge Hannah in camera, recorded and preserved. See Dkt. 33-11 at 1.

13

As such, it potentially constitutes another source by which Plaintiff’s need for the
pertinent information may be obtained without the necessity of a disclosure of the
informant’s identity which would enable Plaintiff to obtain the informant’s testimony in
this action by a non-party deposition pursuant to Fed.R.Civ.P. 45(a). See Ayala, 2004
WL 2914085, at *1. Notably, Defendants do not contend Defendants are unable to
produce a copy of this record for lack of possession, custody or control, either actual or
practical. 4 See Gross, 304 F.R.D. at 142 (lacking physical possession or custody of
requested documents does not excuse production where requested “party is legally
entitled to the documents or had the practical ability to acquire the documents from a
third-party” (citation and italics omitted)). The primary need of Plaintiff on this issue is
Plaintiff’s desire to establish Garcia was neglectful in failing to determine the presence
of two living units on the upper floor of 304 Breckenridge Street and that contrary to
Garcia’s deposition testimony, the informant did not inform Garcia or Judge Hannah that
the narcotics buy took place in the upper floor rear apartment occupied by Plaintiff.
Presumably, a review of such testimony, in the transcript or a recording thereof, by
Plaintiff will provide the necessary information with which Plaintiff can establish
Individual Defendants, particularly Garcia, did not enter Plaintiff’s apartment with an
objectively reasonable belief that they were in the correct location based on the
informant’s information about the location of the buy given to Garcia and Judge Hannah
prior to the search, and that, based on Plaintiff’s asserted contradiction of Garcia’s
deposition testimony on this key issue by the informant’s putative testimony, Garcia’s

4

Defendants state only that “upon information and belief, Defendants do not possession [sic] such
testimony.” Dkt. 43 at 8. Defendants do not claim that Defendants, through counsel, are unable to obtain
possession or control of a copy of the transcript.
14

credibility as a witness is subject to dispute. See United States v. Benedetto, 571 F.2d
1246, 1250 (2d Cir. 1978) (evidence on issue central to merits contradictory to
defendant’s specific testimony, even if arguably collateral, admissible for impeachment
purposes in discretion of trial court); Rosario v. Ercole, 582 F.Supp.2d 541, 597
(S.D.N.Y. 2008) (adopting report and recommendation on habeas petition challenging,
inter alia, trial court’s admitting evidence impeaching alibi testimony because even
where issue is collateral, “‘a defendant should not be allowed to profit by a gratuitously
offered misstatement.’” (quoting United States v. Beno, 324 F.2d 582, 588 (2d Cir.
1963)). The court therefore finds that Defendants must, with redaction of the
informant’s identity, provide a copy of the informant’s in camera testimony before Judge
Hannah.5 In the event such record is, for some unexpected reason, no longer available
to be produced, Plaintiff may renew Plaintiff’s request for the identity of the informant to
enable Plaintiff to attempt to locate and depose the informant on this issue pursuant to
Rule 45(a). Defendants’ objection based on the informant’s privilege should therefore
be sustained in part and overruled in part, and Plaintiff’s motion pertaining to this
request should be DENIED in part and GRANTED in part.
3.

Defendants’ Objections Based on the Law Enforcement Privilege.
As noted, Defendants also object, asserting the law enforcement privilege, to

Plaintiff’s Interrogatory No. 14 which, inter alia, seeks Buffalo Police Department
policies and procedures for its police officers regarding proper procedures for obtaining
and executing search warrants, including the avoidance of unnecessary harm to

5

Should Individual Defendants demonstrate Defendants are in fact unable to do so, Plaintiff may
request such document from Judge Hannah or other custodian by a non-party subpoena issued by
Plaintiff pursuant to Fed.R.Civ.P. 45(a)(3) (“Rule 45(a”) (court admitted attorney to issue and sign Rule
45(a) subpoena).
15

animals present at subject premises. Defendants also contend that given that, based
on the District Judge’s adoption of the R&R, the City Defendants are no longer
defendants under Plaintiff’s § 1983 claim, the request is irrelevant. However, as
discussed, supra, at 12 (citing Dodd, 827 F.2d at 4) because Individual Defendants’
failure to comport with such policies and procedures in obtaining and executing the
warrant at issue may indicate Individual Defendants, in conducting the investigation that
resulted in the issuance of a warrant that failed to comply with the Fourth Amendment’s
particularity requirement also lacked any objectively reasonable ground to believe it was
proper to obtain and execute the warrant lacking in the required degree of particularity
in failing to specify Plaintiff’s apartment as the premises to be searched. As such, the
requested information is relevant to Plaintiff’s Fourth Amendment claims against the
Individual Defendants.6
The law enforcement privilege protects the law enforcement investigative
techniques, confidential witnesses and law enforcement personnel, in order to prevent
interference with investigations. MacNamara v. City of New York, 249 F.R.D. 70, 78
(S.D.N.Y. 2008), vacated on other grds, In re The City of New York, 607 F.3d 923 (2d
Cir. 2010). The privilege covers law enforcement techniques and protocols where
disclosure may harm current or future law enforcement efforts. MacNamara, 249 F.R.D.
at 79. The party asserting the privilege is required to make “‘a substantial threshold

6

Such evidence may not be relevant to Plaintiff’s state law negligence claims. See Pink v. Rome Youth
Hockey Ass’n, Inc., 63 N.E.3d 1148, 1151 (N.Y. 2010) (failure to enforce compliance with defendant’s
internal rules or policies regarding misbehavior by spectators not evidence of negligence; “where an
internal policy exceeds ‘the standard of ordinary care,’ it ‘cannot serve as a basis for imposing liability.’”)
(citing Sherman v. Robinson, 606 N.E.2d 1365, 1369 n. 3 (N.Y. 1992) and quoting Gilson v. Metropolitan
Opera, 841 N.E.2d 747, 749 (N.Y. 2005)); see also Asantewaa v. City of New York, 935 N.Y.S.2d 18, 19
(1st Dep’t. 2011) (violation of defendant’s fire department seat belt requirements in transporting passenger
in defendant’s emergency vehicle no basis for negligence (citing New York caselaw)).
16

showing[ ] that there are specific harms likely to accrue from disclosure of the specific
materials.’” Id. at 85 (quoting Fountain v. City of New York, 2004 WL 941242, at *3
(S.D.N.Y. May 3, 2004)). More specifically, the party asserting the privilege must show
“the documents in question contain (1) information pertaining to ‘law enforcement
techniques and procedures,” In re The City of New York, 607 F.3d at 948 (quoting In re
Dep’t. of Investigation of the City of New York, 856 F.2d 481, 484 (2d Cir. 1988), (2)
information that would undermine ‘the confidentiality of sources,’ id., (3) information that
would endanger ‘witness and law enforcement personnel,’ id., (4) information that would
undermine ‘the privacy of individuals involved in an investigation,’ id., or (5) information
that would seriously impair ‘the ability of a law enforcement agency to conduct future
investigations,’” Morrissey v. City of N.Y., 171 F.R.D. 85, 90 (S.D.N.Y. 1997). There is
“‘a strong presumption against lifting the privilege,’” In re The City of New York, 607
F.3d at 948 (quoting Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir.
1997)). To rebut the presumption, the party seeking disclosure must show its suit is not
frivolous and is brought in good faith, the information is not available from other
sources, and the party has a compelling need for the privileged information. Id. (citing
caselaw) (internal quotation marks omitted). If the court finds the presumption against
disclosure has been rebutted, the court is required to “weigh the public interest in
nondisclosure against the need of the litigant for access to the privileged information.”
Id. “To assess both the applicability of the privilege and the need for disclosure the
court must ordinarily review the documents in question . . . and may require the party in
possession to submit the documents for in camera review without a filing under seal.”
Id. Following such review and a determination of the request, the court will return the

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documents to the custodian to assure their continued confidentiality. Id. at 948-49. If
disclosure is warranted, the court should fashion, pursuant to Fed.R.Civ.P. 26(c)(1)(G),
a protective order to “minimize the effects of disclosure” such as an “attorneys’ eyes
only” review. Id. at 949.
Here, Defendants interpose the privilege in Defendants’ objection to Interrogatory
No. 14 which requests Defendants identify City of Buffalo Police Department “policies
and procedures” and related information regarding the requirement of “what constitutes
probable cause” and the proper execution of a search warrant including entry
techniques such as the use of force, particularly where an animal is found to be on the
target premises, and any procedures to minimize destruction of property during a
search, including such animals, particularly if the animal is “restrained” on the premises
in question. In response, Defendants do not deny the existence of responsive
documents; rather, as discussed, supra, at 4, Defendants contend the request is overly
broad, burdensome and seeks irrelevant information, objections which the court has
rejected, supra, at 5-10, Defendants also assert the law enforcement privilege. Dkt. 43
at 4 (“Interrogatory No. 4 is ambiguous and confusing . . . burden[some] . . . and may
implicate the law enforcement privilege”). Although Defendants do not specify the
prerequisites for application of the privilege, it is apparent to the court that Interrogatory
No. 14 is directed to law enforcement techniques and procedures, i.e., obtaining and
execution of search warrants in narcotics investigations. In re The City of New York,
607 F.3d at 948. Defendants also assert, without specification, that providing the
requested information would seriously impair future investigations. Dkt. 43 at 7-8
(quoting In re The City of New York, 607 F.3d at 944). Revealing how an officer should

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respond to an animal such as a pit bull, a breed sometimes associated with narcotics
traffickers, see Arroyo v. City of Buffalo, 2017 WL 3085835, at * 6-7, report and
recommendation adopted, 2018 WL 488943 (W.D.N.Y. Jan. 20, 2018) (citing narcotics
traffickers use of pit bull dogs to guard against intruders including police executing
warrants) on a target premises during execution of a narcotics search warrant could
conceivably result in compromising future executions of such warrants increasing the
danger to police officers involved in such executions. Thus, although Defendants’
papers on this issue are certainly ‘thin,’ nevertheless, the court finds Plaintiff’s
Interrogatory No. 14’s requests information within the scope of the privilege.
Accordingly, the court considers whether Plaintiff has rebutted the privilege.
Here, Plaintiff’s claim that Defendants improperly executed the warrant at his
apartment in violation of the Fourth Amendment is based on asserted facts indicating
the search warrant was facially defective for lack of a sufficient description of the target
premises and that the Individual Defendants had no reasonable basis to search
Plaintiff’s apartment, and thus is non-frivolous. More specifically, if, contrary to Garcia’s
deposition testimony, the informant did not indicate the controlled cocaine buy occurred
in Plaintiff’s rear apartment, a substantial question of Individual Defendants’ § 1983
liability and a lack of qualified immunity, based on Individual Defendants failure to
reasonably determine the presence of one or two units at 304 Breckenridge Street
upper, is presented. Moreover, Plaintiff’s excessive force claim arising from Cook’s
shooting Plaintiff’s dog is also colorable given Plaintiff’s allegation that Plaintiff’s dog
was tethered when Defendants entered the apartment despite Cook’s deposition
testimony to the contrary. See Dkt. 33-15 at 40-41 (Plaintiff’s “dog was moving forward

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. . . [so Cook] made judgment call dog would be a threat . . . and [Cook] shot the dog.”).
Plaintiff’s Fourth Amendment claim cannot therefore be said to lack a good faith basis.
As to other available sources for the requested information, Defendants point out that
both Garcia and Cook were deposed in August 2017, Dkt. 32-12 at 1-20 (Garcia); Dkt.
33-15 at 1-97 (Cook), thereby affording Plaintiff the opportunity to inquire as to the
existence, i.e., ‘identification of the requested policies and procedures.” This issue was
partially addressed by Cook who indicated in his deposition there was no specific
department policy regarding “encountering Pitbull type dogs.” Dkt. 33-15 at 22.
However, Cook did not deny the existence of such policies or procedures with respect
to the proper procedure for obtaining search warrants and correctly describing the target
premises where more than one residence may be present, or how to generally deal with
pets or animals on subject premises while executing a search warrant; however, Plaintiff
did not further develop the question. The question of such policies or procedures was
not addressed by Plaintiff during Garcia’s deposition. Thus, it is uncertain whether a
sufficient response to Plaintiff’s Interrogatory No. 14 could have been forthcoming
through Defendants Garcia’s and Cook’s deposition testimony; no transcript of
Defendant Callahan’s deposition, if one was taken, is included in the record. Therefore,
it is also uncertain whether another source for the requested information is available.
The court thus turns to the question of whether Plaintiff has demonstrated a sufficient
need for the requested information.
Plaintiff contends that “[w]ith these policies and procedures, Plaintiff will be able
to prove Defendant Cook violated these operating procedures and negligently killed
Plaintiff’s dog.” Dkt. 33 at 12. However, as discussed, supra, at 16 n. 6, under New

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York law mere violations of municipal departmental policies or those of other entities
cannot support a state law negligence claim, and while such a supposed violation is
relevant to a qualified immunity defense in opposition to Plaintiff’s Fourth Amendment
claim, see, supra at 9-12, Defendant Cook’s alleged lack of any objectively reasonable
basis to shoot Plaintiff’s dog turns on the question of fact whether the dog was tethered
inside the apartment, as Plaintiff alleges, when shot by Cook. Nevertheless, the
objective reasonableness of Cook’s decision to shoot Plaintiff’s dog in the
circumstances presented to Cook at that time would certainly be informed by whether
Cook’s action comported with any applicable policy or procedure regarding execution of
the warrant in such circumstances. Accordingly, the court finds Plaintiff’s request may
be based on a compelling need for the requested information. However, in accordance
with the Second Circuit’s guidance as stated in In re The City of New York, 607 F.2d at
948-49, the court will require Defendants produce, ex parte, the documents within the
scope of Interrogatory No. 14 for the court’s in camera review (or an affidavit from a
person with personal knowledge of the facts that no such responsive documents exist)
within 14 days. Defendants’ counsel shall contact the undersigned’s chambers to
schedule the required submission. Following such review, the court will determine
whether the documents should be identified and/or produced to Plaintiff in accordance
with this Decision and Order.
4.

Sanctions.
Plaintiff, as noted, has requested sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(A)

(“Rule 37(b)(2)(A)”). Dkt. 33 at 1. However, Rule 37(b)(2)(A) authorizes sanctions
based on a responding party’s failure to comply with a discovery order and Plaintiffs

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does not allege the court had previously ordered Defendants to provide any discovery
which is subject to Plaintiff’s motion. Moreover, pursuant to Fed.R.Civ.P. 37(a)(1), a
moving party’s expenses in connection with a motion to compel may be granted unless
the failure to provide the requested information was substantially justified, i.e.,
reasonably arguable, see Hinterberger v. Catholic Health System, Inc., 284 F.R.D. 94,
106 (W.D.N.Y. 2012) (granting attorney fees as sanctions where there was no
reasonably arguable basis for failing to comply and such noncompliance thus was not
substantially justified), or if such an award would be unjust. Here, Defendants raised
arguable questions based on lack of relevancy and privileges which required careful
judicial consideration. Accordingly, Plaintiff has failed to show Defendants’ failure to
provide the responsive discovery was not substantially justified, and Plaintiff’s request
for sanctions should therefore be DENIED.

CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt. 33) is GRANTED in part, and
DENIED in part; Plaintiff’s request for sanctions is DENIED. Defendants shall provide
the responses to Plaintiff’s Interrogatories Nos. 8-12 consistent with this Decision and
Order within 30 days; Defendants shall submit documents responsive to Interrogatory
No. 14 to the court for in camera review within 14 days.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: September 13, 2018
Buffalo, New York
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