UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOHN F. DREW, APPELLANT LINDA M. GRASER, PLAINTIFF

Transcription

1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOHN F. DRE, APPELLANT LINDA M. GRASER, PLAINTIFF v. BRIAN CONNOLLY, APPELLEE CITY OF GROTON, GROTON POLICE DEPARTMENT, BRUNO L. GUILINI AND JASON BRUCKER, DEFENDANTS Appeal from the United States District Cort for the District of Connectict BRIEF OF THE APPELLANT, JOHN F. DRE Representing the Appellant: Mary M. Phlick (ct23254) Phlick & Cartier, P.C. 199 est Town Street Norwich, CT 636 Phone: (86) Fax: (86)

2 TABLE OF CONTENTS Table of Cases and Athorities....iii-iv I I!: lij lo :J CIl a:.j :J -, CIl >- lij I!: «m i 'I) Il Ii 8 '" IJJ i= a:: :r «ds I!: lc z J lij J: lij :::> I!: n. CIl CIl lij '" I. II.. IV. V. VI. Jrisdictional Statement Statement of Isses Presented for Review... 2 Statement of the Case... 3 Statement of Facts... 5 Smmary of Argment Isses on Appeal Did the District Cort err in granting smmary jdgment in favor of the defendant City of Groton on the plaintiff s Monell claims when defendant Brian Connolly presented evidence of an nwritten policy of the defendant City of Groton Police Department that violated the plaintiff s Forteenth Amendment Rights and sed this evidence to defeat the plaintiffs claim at trial against him individally, when this evidence was not made available or known by the plaintiff at the time of the rling on the smmary jdgment motion, and if same had been known to the plaintiff, smmary jdgment wold not have been granted and the plaintiff s Monell claims against the City of Groton Police Department and Police Chief Brno Gilini wold have been sccessfl in a trial to a jry? A. Standard of Review... 14

3 B. Legal Argment... ".,..., I :: m ::;: ::> z (/) n:...j.., ::> ( (/) >- \.;:, :: $ g ( ti f;5.:.., Ii 8 w f= II: r <{ U :: x: z :J J: w :J :: a. (/) l- (/) \ 2. hen a police officer sch as the defendant, is fond by a jry to have violated a Forteenth Amendment de process right by violating a clearly established state statte, which violation is plainly incompetent as a matter of law, is he then entitled to the shield of qalified immnity, and, is it error for the Cort to grant his Renewed Motion for Jdgment? A. Standard of Review B. Legal Argment Did the District Cort err in denying the plaintiff's Motion for Attorney's Fees? A. Legal Argment VII. Conclsion Certification of Compliance Certification of Service Addendm

4 TABLE OF CASES AND AUTHORITIES Cases Adickes v. S. H Kress & Co., 398 U.S. 144, ,9 S.Ct. 1598,26 L.Ed.2d 142 (197) Amato v. City of Saratoga Springs, New York 17F.3d311,321 (2dCir. 1999) II:: m :E :::l!!1 «II::..J :::l., «, w _ ' II:: <D o ),8 I ti., 8 It I!!!, It :r «U i II:: o :.:: z U ' - I.J 1: w :::J II::. I (fj o lo w Amore v. Novarro, 624 F.3d 522 (2d Cir. 21)... 26,3 Anderson v. Creighton, 483 U.S. 635, 639, 17 S.Ct. 334, 97 L.Ed.2d 523 (1987)... 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248, 16 S.Ct. 255, 91 L.Ed.2d 22 (1986) Ayers v. Ryan, 152 F.3d 77,8 (2d Cir. 1998) Connick v. Thompson, 131 S.Ct Harlow v. Fitzgerald, 457 U.S. 8, 818, 12 S.Ct. 2727,73 L.Ed.2d 396 (1982) ,3 Hnter v. Bryant, 52 U.S. 224,229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) eF. d T72&1. gf:.t212): Malley v. Briggs, 475 U.S. 335, 341, 16 S.Ct. 192,89 L.Ed.2d 271 (1986) Monell v. New York Dept. o/social Servs., 436 U.S. 658, 692, 98 S.Ct L.Ed. 611 (1978)

5 Pearson v. Callahan, 555 U.S. 223,231, 129 S.Ct. 88, 172 L.Ed.2d 565 (29) Pembar v. Cincinnati, 475 U.S. 469, 479, 16 S.Ct. 1292, 89 L.Ed.2d 452 (1986) Phillips v. Bowen, 278 F.3d 13, 18 (2d. Cir. 22) Athorities Conn. Gen. Stat a Conn. Gen. Stat b Title 42 U.S.C IV

6 I. JURISDICTIONAL STATEMENT A. The plaintiff, John F. Drew, broght this action the State of Connectict District Cort prsant to 28 U.S.C. 1343(a)(3), claiming a violation I Il:!D :l: :J I/) it:...,.j ;:) t- «I/) < II) w >- z Il: I: «! n: o:: 8 w t- i= :: :i «3: a:s Il: :.:: z J I w :> Il: Q. I/) 3< t- I/) w 3< of his Forth and Forteenth Amendment rights secred by the United States Constittion, against the defendant, Police Officer Brian Connolly and also against the City of Groton Police Department and Police Chief Brno Gilini. B. This Cort has jrisdiction to hear this appeal prsant to 28 U.S.D. 1295( a)(1) as the District Cort entered jdgment in favor of the defendant, Brian Connollyl by granting the defendants Renewed Rle 5 Motion following a jry verdict in favor of the plaintiff on his Forteenth Amendment claim. The plaintiff is now appealing both the trial cort's granting of the defendant's motion for smmary jdgment in favor of the City of Groton and Chief of Police Brno Gilini as well as the trial cort's granting of the defendant's Rle 5 Motion postverdict. I The trial cort entered jdgment in favor of the City of Groton and Chief Brno Gilini on Jly 21,211 prsant to its rling on the defendant's smmary jdgment motion. 1

7 9 II: In :!: :l UI ii.j :l...., «UI (;j $ z II: '"... «g!'! U.: a::' 8... i= a:: i «i ds II: z J ttl I :J II:..... C. The plaintiff initiated this appeal by Notice dated Jne 28, 212 and filed his initial appeal docments on Jly 27,212. Thereafter, on October 25,212, the plaintiff amended his Addendm B to the Pre-Argment Statement and also amended the Index to Record on Appeal. D. This appeal is from a final jdgment rendered by the Cort, Arterton, J., on Jly 21, 211 with respect to the City of Groton and Police Chief Brno Gilini and on Jne 5, 212 with respect to the defendant's Renewed Rle 5 Motion, which establishes the jrisdiction of this cort to hear the plaintiff s claims of error. II. STATEMENT OF ISSUES PRESENTED FOR REVIE UI 1. Did the District Cort err in granting smmary jdgment in favor of UI Ol the defendant City of Groton on the plaintiff s Monell claims when defendant Officer Brian Connolly presented evidence of an nwritten policy of the City of Groton Police Department that violated the plaintiff s Forteenth Amendment Rights and sed this evidence to defeat the plaintiff s claim at trial against him individally, when this evidence was not made available or known by the plaintiff at the time of the rling on the smmary jdgment motion, and if same had been 2

8 ;? II: "' m l' :J II> ir..j :J!( >- z It -. < known to the plaintiff, smmary jdgment wold not have been granted and the plaintiff's Monell claims against the City of Groton Police Department and Police Chief Brno Gilini wold have been sccessfl in a trial to a jry? 2. hen a police officer sch as the defendant, is fond by a jry to have violated a Forteenth Amendment de process right by violating a clearly established state statte, which violation is plainly incompetent as a matter of law, II> "' is he then entitled to the shield of qalified immnity, and, did the District Cort i «err in granting his Renewed Motion for Jdgment? U g a.: '" Ii 8 w i= a:: :i «U II: Attorney's Fees? li: z J hi J: :J It Did the District Cort err in denying the plaintiff's Motion for "'. STATEMENT OF THE CASE l- "' Ol The plaintiff, John F. Drew (hereinafter "Drew" or plaintiff), filed a Second Amended Complaint on October 6, 21 (A-16 to A-24) claiming that the defendants, Officer Brian Connolly (hereinafter "Officer Connolly"), City of Groton Police Department (hereinafter "the City") and Police Chief Brno Gilini (hereinafter "Gilini"), sbjected the plaintiff to a false arrest and nlawfl detention in violation of the plaintiff's Forth and Forteenth Amendment rights. 3

9 I a:: w ID ie -,.J <{ f;j z a:: i g The defendants filed an Answer with Affirmative Defenses (A-25 to A-33), which inclded the affirmative defense of qalified immnity on November 13, 29. Thereafter, on November 12, 21, the defendants filed a Motion for Smmary Jdgment (A-34 to A-74) and the plaintiff filed an Opposition to the defendant's motion on December 1,21 (A-75 to A-98). The Cort, Arterton, J., heard oral argment and rendered a Rling (A-99 to A-119) on Jly 21, 211, granting in part and denying in part the defendant's motion. The specific part of the motion for <{ '!! smmary jdgment, which was granted in favor of the City and Gilini, was on the U.: Ii 8 w i= II: i U dj a:: plaintiff's Monell claims and is one of the isses in this appeal. z Thereafter, the plaintiff tried his case against the remaining defendant, J 1: w :> a:: - l- ;t Ol Officer Connolly, on October 13, 14, and 17, 211 to a jry. The jry retrned a verdict in favor of the defendant on the plaintiff's nreasonable seizre and nlawfl arrest claims and in favor of the plaintiff on his Forteenth Amendment de process claim and awarded the plaintiff economic damages in the amont of $1, and non-economic damages in the amont of$3,2. for a total award of $5,99.28 (A-12 to A-122). The Cort then retrned the jry to deliberations regarding the isse of qalified immnity. The jry answered three special 4

10 '" 2 It ::l I/) it..j ::l..., ( (Jl '" co td z '" <b It gj interrogatories (A-123), and the defendant thereafter, renewed his Rle 5 Motion for Jdgment (A-124 to A-144) and arged the defendant was entitled to qalified immnity based pon the responses by the jry to the special interrogatories. Thereafter, the plaintiff filed a Motion for Attorney's Fees (A-145 to A-146) and his Objection to the Motion for Jdgment (A-147 to A-ISS). The Cort, Arterton, J., issed a Rling (A-156 to A-161) granting the defendant's Motion in favor of Officer Connelly and denying the plaintiff's Motion for Attorney Fees. This appeal ( C followed by the plaintiff's Notice of Appeal (A-162) on Jne 28, 212. U a: '" Ii 8 w i «i cts IV. STATEMENT OF FACTS It z On Jly 26, 28, the plaintiff, John Drew, was arrested by the defendant J t;; w I :::> It!l. l- I/) Connolly for operating nder the inflence of alcohol and/or drgs in violation of l- I/) C.G.S a (A-163 to A-17); failre to signal in violation of C.G.S. 14- Ol 242; and failre to drive right in violation ofc.g.s The plaintiff testified at trial that on that evening, he and his girlfriend, Linda Graser2, attended a candle party at a friend's home followed by a fndraiser being held at a restarant called Dano's located in Groton, Connectict. The two 2 Linda Graser, formerly a plaintiff in this action, had her claims dismissed on October 6, 21. 5

11 9 It [!J :> z ii: -,..J :> <t. :!l )- <i> It 18 e met friends, ate dinner, played some pool and danced dring the evening. (A-273 to A-278) hile at Dano's, the plaintiff ordered one beer and one glass of wine and stated the beer was for him and the wine was for Ms. Graser. Additionally, he ordered other beverages that were non-alcoholic. The two remained at this establishment for several hors, then decided to leave and go back to Mr. Drew's apartment, which was located in Groton, Connectict. Mr. Drew was operating his Ford pickp trck and Ms. Graser was a passenger as they proceeded from Dano' s <t. to Mr. Drew's apartment. hile on rote, they were at the intersection of Mitchell U n: Sl '" ::" 8 w l- i «d! It Street, Chicago and Poqonnock Road in Groton, Connectict, when they noticed z emergency vehicles passing throgh the intersection. Mr. Drew stopped so the J t.i J: :::J It n. m emergency vehicles cold pass and then proceeded onto Mitchell Street. It was at this point that Ms. Graser noticed a police criser behind them, casing Mr. Drew to pll into the right hand lane on Mitchell Street in an effort to allow the police criser to pass; however, the criser did not. Needing to make a left hand tm onto Allen Street, Mr. Drew signaled to change lanes and then trned onto Allen Street, which was a short distance ahead. The plaintiff proceeded down Allen Street ntil its intersection with Smith Street, where Mr. Drew stopped his vehicle, signaled 6

12 and trned right onto Smith Street. It was at that point that Officer Connolly trned on his roof strobe lights signaling the plaintiff to pll over. (A-278 to A-283) Mch of what happened next was in dispte at trial; however, Mr. Drew It: m :l: :J ir.j., :J..; )- m '" w z It:..; U a.: Ii * is w 1= :: :r < U It: '" z ::i LU :r: w ::J It: Il.. LU g: testified that Officer Connolly approached his vehicle and reqested that he prodce his license, registration and insrance card. Ms. Graser handed Mr. Drew an envelope fll of docments from the glove compartment, which he then handed to Officer Connolly. Officer Connolly asked the pair if they had been drinking and Mr. Drew indicated they had not been drinking. (A-284 to A-285) Thereafter, Officer Connolly reqested Mr. Drew step ot of the vehicle to ndergo field sobriety testing. The plaintiff complied with all of the reqests, and following the administration of the horizontal gaze nystagms test, the one-leg stand test, and the walk and tm test, the defendant placed Mr. Drew nder arrest for operating nder the inflence of alcohol and/or drgs. Mr. Drew was handcffed and placed in the back of Officer Connolly's criser and driven to the City of Groton Police Department. Once at the police department, Mr. Drew was processed, his Miranda warnings given, and was asked to sbmit to a breathalyzer analysis. Drew testified that he was asked to provide 2 breath samples while 7

13 I Il:: m l;; ::> z ie J.., ::> «(;j Il:: «'" U n: 2 '" Ii 8 w f= It i «d! Il:: Officer Connolly testified that he administered only one breathalyzer test to Drew. The reslts of the breathalyzer analysis indicated the plaintiff had a. blood alcohol content (BAC). Apparently shocked by the reslt of this test, Officer Connolly reqested the plaintiff provide a rine sample to condct a rinalysis. Mr. Drew complied with this reqest and was detained for the better part of an hor before being released by the City of Groton Police Department. In addition, Officer Connolly seized the plaintiffs driver's license. The plaintiff retrieved his license from the Police Department five days later. (A-428) After being released from cstody, Ms. Graser drove Mr. Drew to Lawrence & Memorial Hospital in an effort to have a blood test performed on Mr. Drew to " z J I w :J Il:: [L frther prove his innocence. After the pair left the hospital, they retrned to Mr. '" Drew's apartment. (A-192 to A-193) Mr. Drew was reqired to appear in cort the following week and had a total of five or six cort appearances before all charges against him were dismissed on October 8,28 by the Cort. (A-196 to A-199) Connolly testified at trial that as he was following Mr. Drew, he observed Mr. Drew fail to signal in his tm onto Allen Street and cross over into the wrong lane on Allen Street and that he was operating at a very slow rate of speed dring 8

14 g It w :: ::J «it...j ::J.., «., w z It <Xl >- m this time. He testified that as Mr. Drew attempted his tm onto Smith Street, Mr. Drew's rear right tire traveled over the crb and that is what cased him to stop Mr. Drew's vehicle. Connolly also testified that once he asked Mr. Drew to exit his., vehicle, that he reqested he perform the three field sobriety tests and that based on i the plaintiffs erratic driving and his performance on the field sobriety tests, he placed Mr. Drew nder arrest for operating nder the inflence of alcohol and/or drgs. (A-237 to A-376) «!!! 2 Connolly's testimony with respect to whether he administered one or two U.: C'l Ii 8 w i= a:: I «3: breathalyzer tests to the plaintiff was in dispte at trial. There was no dispte that It the plaintiff was administered at least one breathalyzer test, where the reslts :.:: z :J I;i J: w :J It [l g: reflected a. BAC. Frther, there was no dispte as Connolly testified that Mr. Drew nderwent a rine test. There was also no dispte that Mr. Drew's license was seized by Connolly at the police department. Connolly also testified that he read the A-44 form (See Defendant's Trial Exhibit F in Addendm) to the plaintiff and after reading the form, he revoked Drew's license. Dring Connolly's re-cross was the first time he testified abot an nwritten standard operating procedre (SOP) that was in effect at the time of the plaintiffs 9

15 II: 1O :J ( >- z <b II: l8 ( it -' :J -, fo- 2.: '" Ii fo i «i arrest. The SOP, according to Connolly, was "Anyone arrested for driving nder the inflence, we kept their license for 24 hors in-hose." (A-378) Connolly frther testified that the reason he seized Drew's license that night was his concern of Drew's ability to safely operate a vehicle on the road. ld. Connolly then indicated on re-redirect that the SOP was different from the department policy regarding DI processing. (A-379 to A-38) Connolly acknowledged there was a department policy in effect at the time of the arrest (A-382 to A-384) and the SOP was different and nwritten. Gilini testified that prsant to the Groton Police Department's DI ci:l II: Processing Procedre (A-382 to A-384) and that Mr. Drew did not have a BAC of z J :r: w II:.. CI>.1 or higher nor did he refse chemical testing, Connolly seized the plaintiff's operator's license withot athority to do so. (A-41 to A-42) On cross examination, Gilini confirmed that at some point dring the corse of this litigation, he learned that his officers had implemented an nwritten SOP within the department to seize the operator licenses pon any arrest for Dill, stating, "Up ntil this case, I had no nderstanding of what was being done otside of the fact that the officers were spposed to follow their training... that officers 1

16 :: m ::!: ::l f/j ii:.j ::l..., ( f/j >-w '" z,, :: :ll 1= ( n: 2 '" Ii 8 w i= a: i <{ U were confiscating licenses for 24 hors when in fact, in some cases, they sholdn't have." ld. (Emphasis added.) Finally, Sergeant Scott Sanford testified that he was on dty the night of Drew's arrest as the spervising officer. Sanford testified that Drew's license was "taken and held for the fact that he was arrested for operating nder the inflence of liqor." (A-417 to A-418) He frther testified "That had been or nwritten policy" and that this nwritten policy had been in effect "...it wold be the time frame I've been a spervisor, which is approximately 5 years." ld. The basis of the seizre of the license was "For his safety and the commnity's safety." ld. <is :: Sanford agreed that Drew had complied with the reqest for chemical testing I<: z J I;i :t w ::J :: a.. f/j l- f/j and that he did not have elevated blood alcohol content at the time the test was administered. (A-426 to A-427) Sanford then said "The reason I wold not give the license back is becase I felt that he was nder inflence of some type of drg." (A-427) He then indicated that his seizre of Drew's license was becase "I was going by department policy." However, he agreed that neither he nor Connolly had the athority to seize Drew's operator's license. (A-427 to A-428) 11

17 c:: This nwritten policy or SOP as Gilini, Sanford and Connolly testified to at trial is a contradiction of the basis pon which the former defendants the City and Gilini articlated in their Motion for Smmary Jdgment on the plaintiffs Monell claims. Other facts as necessary will be set forth below. V. SUMMARY OF ARGUMENT :l: ::J 1r..,.J ::J :!l > c:: oil is The District Cort granted smmary jdgment in favor of the defendants City of Groton and Police Chief Brno Gilini on the plaintiffs Monell claims on ( Jne 21, 211 claiming there was no policy and the plaintiff cold not prove at trial 2 cl '" Ii i <{ d! c:: a lack of training on the part of the defendant Connolly. At trial, however, Gilini, I<: z Sanford and Connolly all testified there was an "nwritten policy" at the City of :i l: ::J c:: n. Groton Police Department and therefore, was ample evidence of a policy that was z :t l- :t '"?! in existence and the granting of smmary jdgment was error. Next, the trial cort, Arterton, J., granted the defendant Connolly's postverdict Rle 5 Renewed Motion for Jdgment following a jry verdict in favor of the plaintiff on the plaintiffs Forteenth Amendment claims. The District Cort's reliance pon the testimony of an "nwritten" policy of the City of Groton Police 12

18 '" a:: w m l: ::J I/) a:..j.., ::J «I/) :!l >- w z a:: g; «U f6 a: a: 8 '" w l- f: :: i «d! a:: Department in determining Connolly's actions "reasonable," and granting his reqest for qalified immnity, is error. The City of Groton Police Department and Police Chief Gilini presented evidence and argment one way in order to escape liability on smmary jdgment, and, thereafter at trial, testified to the existence of an nwritten policy in order to dispte liability against Connolly individally and form the basis of qalified immnity. The City, Gilini and Connolly cannot have it both ways. No remand for a new trial oght to be necessary, instead, this Cort shold direct remand to the District Cort to reconsider its rling on smmary jdgment in light of the z testimony at trial regarding the policy in effect at the City of Groton Police J l;j J: w ::> a:: a. l- I/) l- I/) '" Department against the City as well as Chief Gilini and enter jdgment in favor of the plaintiff against Connolly, individally, prsant to the jry verdict and finally, direct the District Cort to hear the plaintiffs Motion for Attorney's Fees. 13

19 VI. ISSUES ON APPEAL I : ID l: :J it J.., :J «:8 : «> 2.: Ii 8 w i= II: :! «d! : :.: z ti J J: w ::J : Q. :t w :t 1. The Trial Cort erred in granting smmary jdgment in favor of the defendant City of Groton on the Plaintiff's Monell claims when, the defendant, Brian Connolly, presented evidence of an nwritten policy of the defendant City of Groton Police Department, which violated the plaintiff's 14th Amendment Rights, and sed this evidence to defeat the plaintiff's claim at trial against him individally, however this evidence was not made available or known by the plaintiff at the time of the rling on the Motion for Smmary Jdgment, and if same had been known to the plaintiff, smmary jdgment wold not have been granted and the plaintiff's claims against the city wold have been sccessfl in a trial to a jry. A. STANDARD OF REVIE: A district cort's rling on smmary jdgment shall be "rendered if the pleadings, the discovery and disclosre materials on the files, and any affidavits show that there is no genine isse as to any material fact and that the movant is entitled to jdgment as a matter of law." Fed.R.Civ.P. 56(c). An isse of fact is genine if "the evidence is sch that a reasonable jry cold retrn a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 16 S.Ct. 255, 91 L.Ed.2d 22 (1986). A fact is material if it "might affect the otcome of the sit nder the governing law." Id. The review of a district cort's decision to grant smmary jdgment is de novo. Ayers v. Ryan, 152 F.3d 77, 8 (2d Cir. 14

20 I : In :li' :l it:..j :l -, ( >- : at to : $ l- i 1998), see also Amato v. City of Saratoga Springs, 17 F.3d 311, 321 (2d Cir. 1999). B. LEGAL ARGUMENT: On November 12, 21, the defendant filed a Motion for Smmary Jdgment, claiming, inter alia that the City and Gilini were entitled to jdgment arging that the plaintiff cold not sstain his Monell claim becase the plaintiff had not provided any evidence of insfficiency in Connolly's training. The ( defendant's argment on smmary jdgment stated that, "A mnicipality may only U.: Ii 8 w :i <{ U ci:l : be liable nder 1983 action where the action that is alleged to be nconstittional z implements or exectes a policy statement, ordinance, reglation, or decision :i :t ::J :. officially adopted by that body's officer." (A-34 to A-74) The defendant's l- argment stems from its claim that the plaintiff did not satisfy the element that at "... the sitation either presents the employee with a difficlt choice of the sort that training or spervision will make less difficlt or that there is a history of employees mishandling the sitation." Id. The defendant frther arged that there was "no evidence that City police officers had a history of mishandling similar sitations involving taking possession of the license of an individal arrested for 15

21 Dill, who failed the field sobriety tests, and appeared to the officer to be impaired bt nonetheless blew a. % BAC on the breathalyzer." Id. Finally, the defendant claimed that, "Becase the plaintiff has not identified any evidence of a deficiency <tj g :: ID ::E :J it'..j., :J..: <tj <tj >- m co :: gj..: U a.: ci 8 w U j: II: i..: in Connolly's training that cold have cased the alleged constittional injries the City is entitled to smmary jdgment on the plaintiffs Monell claim." Id. In the plaintiffs Opposition to the defendant's Motion, he was naware of the nwritten policy later claimed by the defendant at trial. Indeed, it was not ntil the trial on the merits when the defendant first prodced evidence of an nwritten policy or standard operating procedre (SOP), which instrcted officers to take an jc d! :: z operator's license for 24 hors from a citizen who was simply arrested for DI bt J 1: ::l :: n. m had complied with breathalyzer analysis and a reqest for chemical testing, in violation of Conn. Gen. Stat b (A-43 to A-435) and in conflict with the defendant City's own written policy. On October 14, 211 dring the re-cross examination of Connolly, he testified concerning his nderstanding of the City's policy with regard to seizre of a person's license when they had been arrested for driving nder the inflence. 16

22 S It: iii l: ::J ie..j ::J ««) II) >..,.;, It: '!\ U n: '" ::' 8 ljj i= :: i «() 'i' It: ell :.:: z () J iii J: iii ::l It:!L iii > "Q. And yo jst testified that with regard to license seizre. Can yo please describe yor nderstanding regarding the Groton Police Department's policy on Jly 26, 28, with regard to seizre of someone's license when they have been arrested for driving nder the inflence? A. Anyone arrested for driving nder the inflence we keep their license for 24 hors in-hose. Q. And was that - - wold yo describe that as a written directive or something other than that? A. Call it an SOP, standard operating procedre." (A-377 to A-378) The defendant frther provided testimony of an nwritten policy throgh the City of Groton Chief of Police, Brno Gilini. "Q. Can I direct yor attention, Chief, to this case that yo were broght here to testify abot which arises from a Jly 26, 28, DUI arrest. hat is yor nderstanding abot any nwritten SOPS pertaining to the seizre ofa DUI arrestee's license? A. Up ntil this case I had no nderstanding what was being done otside the fact that the officers were spposed to follow their training. Q. And what has come to yor attention since this case with regards to that nwritten SOP? A. That officers were confiscating licenses for 24 hors when, in fact, in some cases they sholdn't have." (A-44) Finally, throgh the testimony of Sergeant Scott Sanford of the City of Groton Police Department, the defendant prodced testimony that this nwritten policy had been in effect for five (5) years. 17

23 9 II: :!O ;:) (/) it:..j ;:)., ( (/) :8 z II: l- ( i.: ri w 8 i= It :i «<i! II:! J t;j J: w ::J II: D.. l- (/) l- (/) 1 "Q. Mr. Drew's - - strike that. Yo nderstand that Mr. Drew's license was taken from him on the evening of his arrest, correct? A. Yes, I do. Q. And what is yor nderstanding abot why it was taken? A. It was taken and held for the fact that he was arrested for operating nder the inflence of liqor. Q. And what was the basis for doing that? Is that something that had an nwritten policy at the department? A. That had been or nwritten policy. Q. How long had - - strike that. How long has Chief Gilini been the chief of the Groton City Police Department? A. Approximately nine years. Q. And how long has that standard operating procedre of taking the license been in effect, to yor knowledge? A. To my knowledge, it wold be the time frame I've been a spervisor, which is approximately five years." (A -417 to A -418) This epiphany on the part of the defendant, that it had an nwritten standard operating procedre, came dring the testimony on re-cross examination of Officer Connolly. The existence of an nwritten policy and procedre followed by the defendant, pertaining to individals stopped for a sspected violation of driving while nder the inflence was inqired into in the plaintiff s interrogatories to the defendant, which stated: "5. Please state, as specifically as possible, the proper policy and procedre according to the gidelines for the City of Groton 18

24 and/or City of Groton Police Department with regard to sspected driving nder the inflence of alcohol and/or drg sitations. ANSER: The proper procedre is to abide by the training provided by POST, the Law Enforcement Concil (LEC), and the City of Groton Police Department." (See Defendant's Responses to Plaintiff's Interrogatories in Addendm) Ir ID :l; :J fil it...j :J -, «>- Ir g «U g a: <'l Ii 8 w U :r «cij Ir :.: z ::i :r w ::> Ir - l- w > e Officer Connolly did not reveal the existence of any nwritten standard operating procedre being provided to him in training nor did he reveal that there was an nwritten policy at any time prior to trial. At Gilini's deposition on October 4, 21, the Chief of Police indicated that he in fact reviewed with Lietenant Martin of the Town of Groton Police Department the procedre of the police department for arrestees who pass the Intoxylzer test. "Q. hat were yo asking Lietenant Martin, if anything, to do with respect to procedres that yo were discssing with him? A. hat procedres do we follow when we give someone two breath tests and both tests indicate absence of alcohol; in other words, the. reslt. Q. hat was his response? A. To ask the arrestee to provide a rine sample and to send the rine sample forward to the state lab for analysis. Q. And did he provide yo with that information by way of a procedre or was it verbal? A. Verbal. (A-38 to A-392) 19

25 Nowhere in this conversation with Lietenant Martin as recalled by Gilini or in Gilini's deposition does he say that the procedre was to then hold the license for 24 hors. A direct qestion as to what athority he had to seize Mr. I [( ::E :J til it.j :J -, til 1:i [( :!l > <i> :8 e..: 1 U a: 2 '" fi 8 I.LI f= It r' < [( ell z J t;; :r w :J [( 11. til l: til l: > Drew's license, the police chief answered as follows: "Q. Now what athority did yor police department have to seize the driver's - - operator's license of Mr. Drew? Attorney TaUberg: Objection to form. Yo can answer. A. Based on his arrest for driving nder the inflence. Q. SO is it yor claim that anytime someone is arrested for driving nder the inflence the police department has the right to seize their license? A. Yes." (A-393 to A-4) At trial, Gilini indicated that he had only learned of the nwritten policy or SOP dring this trial of Mr. Drew and not before. The defendant claimed that there was no policy at the time of its Motion for Smmary Jdgment nder Monell and the cort granted jdgment on that claim. The plaintiff was not aware of this nwritten policy or SOP at the time of the hearing on the Motion, despite the plaintiff s reqests for the policies throghot discovery, the defendant had prior to the time of trial and prior to the time the hearing was held on the defendant's motion for smmary jdgment on the 2

26 plaintiff s Monell claim. Clearly, if the plaintiff was aware of the nwritten policy at the time of the Monell claim, it wold have notified the cort of same. Moreover, if the trial cort had been aware of the nwritten policy which <D contravened state stattes and the defendant's own written policies, smmary a:: w :J it..j :J.., :8 )- m z Il: i jdgment wold not have been granted. On Jly 21, 211, the District Cort rled on the defendant's Motion for Smmary Jdgment. The Cort and the plaintiff were operating nder a theory 2 that the plaintiffs license was taken by Officer Connolly in violation of state!t: '" ri i= : :i <{ U ell statte and the Constittion de to a failre to train, and not prsant to an a:: nwritten policy. As stated above, the policy nder which Connolly was operating J I;j 1: w :J a::.. m did, in fact exist, and was an nwritten policy which had been in existence for z In some time. The nwritten policy was in fact, in violation of Conn. Gen. Stat. 14- w m 227b( c) (A-43 to A-435) and deprived the plaintiff of an adeqate post deprivation remedy, and therefore forms the basis for his Monell claim as the policy deprived the plaintiff of de process. A mnicipality can be held liable nder 1983 if a deprivation of a plaintiff s rights nder federal law is cased by a governmental cstom policy or sage of a mnicipality. Monell v. New York Dept. 21

27 of Social Servs., 436 U.S. 658 (1978); see also Connick v. Thompson, 131 S.Ct. 135; see also Jones v. Town of East Haven, 691 F.3d 72 (2d Cir. 212) Title 42 U.S.C provides in pertinent part: :: OJ l' :J t/) it..j :J.., t/) 1 <Il >- > oil :: gj l- <{ i U Ii (') ci lli i= n: :i «3: <l! :: J l: w ::l ::. l- t/) l- oo > [131 S.Ct. 1359] "Every person who, nder color of any statte, ordinance, reglation, cstom, or sage, of any State... sbjects, or cases to be sbjected, any citizen of the United States or other person within the jrisdiction thereof to the deprivation of any rights, privileges, or immnities secred by the Constittion and laws, shall be liable to the party injred in an action at law, sit in eqity, or other proper proceedings for redress... " "A mnicipality or other local government may be liable nder this section if the governmental body itself "sbjects" a person to a deprivation of rights or "cases" a person "to be sbjected" to sch deprivation." Monell v. New York Dept. of Social Servs., 436 U.S. 658, 692, 98 S.Ct L.Ed. 611 (1978). "Bt, nder 1983, local governments are responsible only for "their own illegal acts."" Pembar v. Cincinnati, 475 U.S. 469, 479, 16 S.Ct. 1292, 89 L.Ed.2d 452 (1986). "Plaintiffs who seek to impose liability on local governments nder 1983 mst prove that "action prsant to official mnicipal policy" cased their injry." Monell, 436 U.S. at 691, 98 S.Ct "Official mnicipal policy incldes the decisions of a government's lawmakers, the acts of its policymaking officials, and 22

28 It l: :J oo ii:.j :J oo >- w z practices so persistent and widespread as to practically have the force of law." Id.; see also Pembar, spra, at ; see also Adickes v. S. H. Kress & Co., 398 U.S. 144, ,9 S.Ct. 1598,26 L.Ed.2d 142 (197) "These are 'action[s] for which the mnicipality is actally responsible.'" Pembar, spra, at , 16 S.Ct , i It t- g U g n: I'l Ii 8 w t- 1= a: i «U <l! There is no qestion bt that the City had an express policy in place, which violated the plaintiff s and other motorists constittional rights. Under the!!! standards set forth in Monell v. Department of Social Services, 436 U.S. 658, (1978), a mnicipality can be held liable prsant to Section 1983 if the It deprivation of the plaintiff s rights nder federal law is cased by a governmental :.:: z J t- :r w ::l It Il. t- oo ;;= t- t- oo ;;= Ol!:' cstom, policy, or sage of the mnicipality. The City of Groton had an express nwritten policy. This policy violated the plaintiffs rights nder Monell, and neither the plaintiff nor the district cort were aware of the policy at the time of the rling on the Motion for Smmary Jdgment. Connolly, Gilini and Sanford all testified at trial as to the existence of an nwritten policy athorizing an officer to seize the license of an arrestee even after said arrestee passed the breathalyzer test by breathing a. on at least one 23

29 occasion. Accordingly, the District Cort erred in finding for the defendant on smmary jdgment, and the plaintiff s appeal mst therefore be sstained.,., Il: l: ::J f/)..j.,..: it: ::J '" oj '" fj) >- 1 Il: :8 g..: < U a.: :Il Ii l- f: :: :i < U Il: :.:: z :J I w :J Il: a. l- f/) l- f/) 1 2. hen a police officer sch as the defendant, is fond by a jry to have violated a Forteenth Amendment de process right by violating a clearly established state statte, which is plainly incompetent as a matter of law, is he then entitled to the shield of qalified immnity, and, it is error for the Cort to grant his Renewed Motion for Jdgment. A. STANDARD OF REVIE: Review of a district cort's rling on a Rle 5 Motion is de novo and the same standards are applied as sed by the District Cort below. See Phillips v. Bowen, 278 F.3d 13,18 (2d. Cir. 22). B. LEGAL ARGUMENT: It is tre the doctrine of qalified immnity protects government officials "from liability for civil damages insofar as their condct does not violate clearly established stattory or constittional rights of which a reasonable person wold have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 88, 172 L.Ed.2d 565 (29) (qoting Harlow v. Fitzgerald, 457 U.S. 8, 818, 12 S.Ct. 2727, 73 L.Ed.2d. 396 (1982)). Qalified immnity gives "government officials breathing room to make reasonable bt mistaken jdgments," and "protects all bt the plainly 24

30 incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335,341, 16 S.Ct. 192,89 L.Ed.2d 271 (1986). "[]hether an official protected by qalified immnity may be held personally liable for an allegedly nlawfl official action generally trns on the '''objective legal reasonableness' of the < action, assessed in light of the legal rles that were 'clearly established' at the time 2 II: l' :J it -,.J :J «>- z II: it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 17 S.Ct. 334, 97 L.Ed.2d 523 (1987)( citation omitted). i «U a.: ci is w i= a:: :i < U Frther, "If the law was sfficiently 'clearly established,' the immnity defense ordinarily shold fail, since a reasonably competent government official II: shold know the law governing his condct." Harlow v. Fitzgerald, 457 U.S. 8, l.: ::J J: :::J II: Q. ;= ;= Ol , 12 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Thogh a mere mistake in the performance of an official dty may not deprive the officer of the defense, the qalified immnity doctrine does not shield performance that either was in violation of clearly established law or was plainly incompetent." See, e.g. Hnter v. Bryant, 52 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). ("The qalified immnity standard 'gives ample room for mistaken jdgments' by protecting 'all bt the plainly incompetent or those who knowingly violate the 25

31 S : In l' :::> z it:.j..., :::> ( (;j z a: i law.'" (qoting Malley v. Briggs, 475 U.S. 335, 343, 341, 16 S.Ct. 192, 89 L.Ed.2d 271 (1986))). The trial cort, Arterton, J., in granting the defendant's Renewed Motion for Jdgment as a matter of law on qalified immnity gronds, relied heavily on the reasoning set forth in Amore v. Novarro, 624 F.3d 522 (2d Cir. 21). The plaintiff claims the trial cort's reliance on the reasoning in Amore is simply misplaced. In Amore, the defendant officer, Navarro, was fond to be entitled to qalified (!Ol immnity on the plaintiff s false arrest claim even thogh the statte nder which U g a: '" ci i= n: :i «<ti : he was arrested had been held nconstittional by the New York Cort of Appeals :.: z 18 years prior to the plaintiffs arrest. Id., at 534. The Second Circit in Amore :J I w :l a: a. l- '" relied on the fact that Novarro was naware that the statte had been held nconstittional and the New York Police Academy and Ithica Police Department both frnished him with copies with the New York penal law that inclded the statte and did not mention its nconstittionality. Id. hat is factally distingishable in the present case, is Conn. Gen. Stat b was a valid and constittional statte that had been enacted in the State of Connectict and a corresponding written policy (A-377 to A-379) existed at the 26

32 City of Groton Police Department mirroring the statte for many years prior to the date of Mr. Drew's arrest. In addition to the statte and the written policy of the City of Groton Police Department, Connolly testified that he had read Drew the ID It: OJ :l ::J it ::J J...,..: ID >- w ll: z It: l-..: i Li g a: '" Ii l- f: Il: :i «dl It: l<:: J I;j J: w :J It: a. ;= l- ;= at langage contained in the A-44 (See Defendant's Trial Exhibit F in Addendm), which read as follows: "Y o are reqested to sbmit to blood, breath or rine test chosen by the police officer. Yo may refse a blood test in which case another test will be selected. If yo elect to sbmit to testing, yo will be reqired to provide two samples. If yo refse to sbmit, the tests will not be given. Yor refsal will reslt in the revocation of yor operator's license for 24 hors and the sspension of yor operator's license for at least six months. If yo sbmit to the tests and the reslts indicate yo have an elevated blood alcohol content, yor operator's license will be revoked for 24 hors and will be sspended for at least 9 days... " (Emphasis added.) Drew had a. BAC and consented to Connolly's reqest to ndergo rinalysis, ths satisfying the reqirements of Conn. Gen. Stat b (A-43 to A-435), the City's policy and the reqirements read ot alod to Drew prior to the admission of the first breathalyzer test. There was simply no athority for Connolly to seize Drew's license. Connolly knew the written policy of the City of Groton Police Department, which was in compliance with the Conn. Gen. Stat. 27

33 : OJ lo ::l f/) ii' oj ::l..., <{ (I) >- w z :: g l- <{ m i i <5 : I') :g '" ci i= :: i «i : <ti b however, opted to follow an nwritten "SOP" of the City of Groton Police Department. It was not ntil the trial on recross of Connolly that this nwritten SOP was broght to the attention of the plaintiff. In fact, Gilini testified at his deposition that the written procedre (A-377 to A-379), was the policy that was in effect at the time Mr. Drew was arrested (and was the only policy prodced dring discovery), however, this new, nwritten, SOP was articlated for the first time at trial. Chief Gilini testified at trial that since this case, he had no nderstanding of what was being done otside of the fact that the officers were spposed to follow :.:: z their training,... and that officers were confiscating licenses for 24 hors when in J :t w :J : D.. Iii fact, in some cases, they sholdn't have (A-393 to A-4) thereby confirming z 3: l- f/) either a policy was in effect on the date of this arrest that violated the Forteenth w 3: Ol Amendment rights of some citizens inclding the plaintiff, or, the Chief, Sergeant and Connolly all fabricated the nwritten policy at trial to ensre Connolly wold not be held liable, individally. The City of Groton Police Department Sergeant Scott Sanford, as well as Connolly, testified at trial that not only was this standard of operating procedre 28

34 nwritten, Gilini was naware of this SOP, and apparently Sergeant Sanford was the one who implemented the policy some five years prior to the date of Drew's arrest. This nwritten SOP, if plasible, was clearly not in compliance with Conn. II: OJ l: :> z (I) i2.....j :> (I) >- OJ II: g m ( < a.: 2 <'l Ii l- f: It i «<il II: :.:: z J OJ J: OJ :J II: n. (I) :: l- (I) OJ :: Ol Gen. Stat b nor the written policy of the City of Groton Police Department, both of which Connolly, Sanford and Gilini were on notice of by virte of their training. It is clear that Conn. Gen. Stat b was a clearly established law of which Gilini, Sanford and Connolly were aware. Frther, the City of Groton Police Department had a written policy in place which mirrored the statte for many years prior to the date of the plaintiffs arrest. Connolly was certainly on notice of the law, yet chose to violate the plaintiffs constittional rights by seizing his license withot athority to do so. After the jry in the District Cort determined that Connolly's actions were reasonable for an officer in Connolly'S position for presmably following the SOP of his department, althogh incorrect, that he or she had the athority to withhold the plaintiffs driver's license following his DUI arrest, the Cort determined that given this procedre, Connolly was not on notice and did not have fair warning, 29

35 I : ::!: ;) UI it.j ;)., «UI >- :B : g i a.: ::' 8 I.IJ 1= :: :[..: <ti : that seizing Mr. Drew's license wold be nlawfl; to the contrary, a reasonable officer in his position wold believe that he or she was reqired to seize the license." (A-156 to A-161) It is pon this basis that the Cort determined Connolly was entitled to qalified immnity. This rling, and the reasoning contained therein, is flawed, is distingishable factally from Amore, and therefore, is error, prsant to the Spreme Cort's holding in Harlow that a reasonably competent pblic official shold know the law governing his condct. It cannot be said in this case, that Connolly was not aware of the statte or the police department's written policy. He testified he knew abot the written policy that was contained in the z book and Connolly's choice not to follow clearly established law as well as his :J I;j ::r:: w :::l : Q. UI l- UI g; department's written policy in spite of some "nwritten SOP" is certainly incompetent. As sch, the trial cort erred in granting the defendant qalified immnity. 3

36 3. The Trial Cort erred in denying the plaintiff's Motion for Attorneys Fees. A. LEGAL ARGUMENT: The plaintiff filed his Motion for Attorney's Fees sbseqent to the jry S : In ::!: ::J a:...,.j ::J < :8 >- 1 z <b : gj 6 < <D U It: '" Ii 8 w 1= : :i «U cij : :.: z J 1: w ::l : II.. 1 rendering its verdict in this matter. The Cort, Arterton, 1., denied the plaintiffs reqest based pon the rling granting qalified immnity to Connolly. Shold this cort find in favor of the plaintiff on either of preceding isses contained herein, the plaintiff reqests the cort direct the trial cort to address the isses contained in the plaintiffs Motion for Attorney's Fees. 31

37 VII. CONCLUSION For the foregoing reasons, the trial cort's granting smmary jdgment in favor of the City and Gilini shold be vacated and the jdgment oght to be 9 : OJ ::!: ::> z!jl it.j ::>...,..:!Jl >- cb : ill l-..: i 5l.: t') " 8 w i= i <{ U <ti : z J :r w ::l : a.!jl 3: l-!jl 3: '" directed in favor of the plaintiff against each defendant based pon the evidence presented at trial. The trial cort's jdgment in favor of the defendant Connolly on the basis of qalified immnity oght to be vacated and jdgment shold enter in favor of the plaintiff prsant to the jry verdict in his favor on his Forteenth Amendment claim and the trial cort shold reconsider the plaintiff s Motion for Attorney's Fees. THE APPELLANT, JOHNF.DRE /s/ Mary M. Phlick, pc5325 Mary M. Phlick (pc5325) Phlick & Cartier, P.C. 199 est Town Street Norwich, CT 636 Phone: (86) Fax: (86) mphlick@norwichlaw.net 32

38 CERTIFICATE OF COMPLIANCE ITH RULE 32 (a)(5) and (7) I hereby certify that this brief complies with the type-volme limitations of F.R.A.P. 32(a)(7)(B) and contains 7,395 words, exclding the parts of the brief I II: ::< :J z til ie..j :J... «<D til II) >- 1 It :8 "' «U g n: <'l a: 8 w l! i= It i «dl II: :.:: z J :r w :::l It n. til 1 exempted by F.R.A.P. 32(a)(7)(b )(iii). I frther certify that this brief complies with the typeface reqirements of F.R.A.P. 32(a)(5) and the type style reqirements of F.R.A.P. 32(a)(6) inasmch as this brief was prepared in a proportionally spaced typeface sing Microsoft Office 28 in Times New Roman type in 14-point font size. /s/ Mary M. Phlick, pc5325 Mary M. Phlick, Esq. Phlick & Cartier, P.C. Attorney for the Appellant Dated Febrary 5,

39 CERTIFICATE OF SERVICE I hereby certify that a tre and correct copy of the foregoing was filed electronically and served by mail on anyone nable to accept electronic filing. (I) a: In l: :J (/) 1i:...,.J :J..: (/) z a:..: :!l '" n: 5l '" ::' 8 w i= :: :i..: dl a: :.: z :J J: ::l a: - (/) :: (/) :: m Notice of this filing will be sent by to all parties by operation of the Cort's electronic filing system or by mail to anyone nable to accept electronic filing. Parties may access this filing throgh the Cort's system. Febrary 5, 213 /s/ Mary M. Phlick, pc5325 Mary M. Phlick (pc5325) Phlick & Cartier, P.C. 199 est Town Street Norwich, CT 636 Phone: (86) Fax: (86) mphlick@norwichlaw.net 34

40 ADDENDUM 35

41 UNITED STATES DISTRICT COURT. _ DISTRICT OF CONNECTICUT JOHN F. DRE, Plaintiff CIV. ACTION NO.: 3:9-CV-1355 (JBA) VS., BRIAN CONNOLLY, n. Defendants. JULY?,21 DEFENDANT BRIAN CONNOLLY'S OBJECTIONS AND RESPONSES TO PLAINTIFF'S INTERROGATORIES AND REOUESTS FOR PRODUCTION Defendant Brian Connolly hereby responds and objects to Plaintiffs Interrogatories and Reqests for Prodction, dated May as follows: I, Please state the following: a. Yor fll name, and any other names by which yo have been known; ANSER: Brian. Connolly b. Yor occpation and bsiness address. ANSER: Police Officer, City of Groton Police Department, 295 Meridian Street, Groton, CT Please state whether yo have in yor possession any statement or statements as defined in'the Federal Rles of Civil Procedre Section 26(b)(3) concerning the sbject matter of the complaint in this law sit. If yor answer to this interrogatory is in the affirmative please state also: ANSER: Refer to docments and reports already prodced by defendants. a, The date on which the statement or statements were taken; ANSER:

42 b. The names and addresses of the person or persons who took sch statement or statements; ANSER: c. The names and addresses of any person present when sch statement or statements were taken; ANSER: d. hether sch statement or statements were written. made by recording device or taken by cort reporter or stenographer; ANSER: -. ANSER: e. The names and addresses of each person having cstody or copies of sch statement or statements. 3. Please state whether yo have taken or participated in any special training with regards to traffic stops. If yor answer to this interrogatory is in the affinnative please also state:. ANSER: Yes. a. The date of sch training; ANSER: POST (Police Officer Standards and Training Concil) Academy training, Fall of 25 DI Enforcement for Patrol, Hidden Compartments In a Motor Vehicle, b. The natre of sch training. specifically what the particlar focs of the training was and what the training taght yo to do or not do with regards to traffic stops;

43 .- ANSER: Refer to Chief Gilini's response to Interrogatory No. 1. c. ho provided and/or sponsored the training; ANSER: POST d. hether the training was volntary or mandatory; ANSER: Both e. hether the training reqired yo to take or pass a written test or other form of evalation. ANSER: ritten tests 4. Please state whether yo have taken or participated in any special training with regards to a driving nder the inflence of drgs and/or alcohol sitation inclding information sch as what to look for or how to handle sch sitations. ANSER: Yes If yor answer to this interrogatory is in the affirmative please also state: a. The date of sch training; ANSER: POST Academy training, Fall of 25 DI Enforcement for Patrol, b. The natre of sch training. specifically what the particlar focs of the training was and what the training taght yo to do or to look for in a driving nder the inflence of alcohol and/or drgs cases, please be as specific as possible; ANSER: Refer to Chief Gilini's response to Interrogatory No. 12..

44 _ c. ho provided the training; ANSER: POST d. hether the training was volntary or mandatory; ANSER: Both e. hether the training reqired yo to take or pass a written test or other form of evalation. ANSER: ritten test 5. Please state, as specifically as possible, the proper policy and procedre according to the gidelines for the City of Groton and/or City of Groton Police Department with regard to sspected driving nder the inflence of alcohol and/or drg sitations. ANSER: The proper procedre is to abide by the training provided by POST, the Law Enforcement Concil (LEC), and the City of Groton Police Department. 6. Please state, as specifically as possible, the proper policy and procedre with regard to incidents when the sspect has taken a breathalyzer test via the breathalyzer machine reslting in reslts of ".." ANSER: The proper procedre is to collect a rine sample from the arrestee and mail it to the State of Connectict Toxicology Lab for analysis. 7. Please state whether the co-defendant Brian Connolly has ever had any kind of grievance or formal complaint filed against him. If yor answer to this interrogatory is in the affirmative please also state: a. The date of any sch grievance or formal complaint; ANSER: Refer to Chief Gllini's response to Interrogatory No. 14

45 . - b. The natre of any sch grievance or formal complaint. specifically why any sch grievance or formal complaint was filed. please be as detailed and specific as possible; ANSER: c. hether any disciplinary action was taken against Officer Connelly by the City of Groton or City of Groton Police Department in response to any sch grievance or formal complaint; ANSER: d. hat disciplinary action, if any, was taken against Officer Connelly by the City of Groton or City of Groton Police Department in response to any grievance or formal complaint; ANSER: e. If no disciplinary action was taken please explain. in as mch detail as possible. why no action was taken. ANSER: 8. Please identify all observations made by yo or any factal bases that cased yo to signal the plaintiff to pll [over] on Jly ANSER: On Friday at approximately 222 hors I; Officer Connolly, was traveling west on Poqonnock Road, located in the City of Groton, CT. I stopped at the red light at the intersection of Mitchell Street and waited ntil the light trned green. Directly in front of my marked police criser was a red Ford F 15 (CT 44CJOJ). e.. Traffic was momentarily stopped as a Groton City Fire Trck responded to a call, lights and siren activated as it traveled throgh the intersection onto Mitchell Street. (Northbond) After the fire trck had passed, traffic resmed and I trned right, as did the red trck. As I began to travel north on Mitchell Street and I noticed the red trck

46 appeared to be traveling slower than the average speed of traffic. The posted speed limit on Mitcbell Street is 3mph and I was traveling at approximately 22mph pacing the red trck. I was traveling in the left hand lane approximately two car lengths behind the red trck, which was In the right hand lane. The red trck maintained a slow speed then signaled properly as it changed lanes, now traveling directly in front of me, in the northbond left hand lane. The tm signal of the trck went oft' and the red trck traveled approximately another 1-15' when it sddenly trned left down Allen Street. (estbond) The trck did not signal when it trned and as I trned it ct the (orner very sbarply crossing into the eastbond lane/doble yellow line of Allen Street by several feet. Now at the intersection of Allen Street and Smith Street I watched as tbe red trck stopped properly at the stop sign, then trned right (northbond) onto Smith Street. As the trck trned Its rear passenger side tire traveled over tbe comer/sidewalk, by approximately 8 1 inches.. e 9. Please identify all observations made by yo or any factal bases that led yo to believe the plaintiff was nder the inflence of alcohol and/or drgs dring the corse of the traffic stop. ANSER: The totality of the circmstances inclding bt not limited to: the reslts of the Field Sobriety Tests, the smell of alcoholic beverage emitting from the plaintiff, his admitting to consming alcohol Jst prior to driving on a pblic road. His erratic/improper driving, his failre to respond to qestions and his odd behavior inclding handing me the wrong paperwork for the vehicle and denying/forgetting that he drove over the crb. 1. Please identify all observations made by yo or any factal bases that led yo to believe the plaintiff was nder the inflence of alcohol and/or drgs even after the plaintiff has taken the breathal yzer test. ANSER: The totality of the circmstances inclding bt not limited to: the reslts of the Field Sobriety Tests, the smell of alcoholic beverage emitting from the plaintiff, his admitting to consming alcohol jst prior to driving on a pblic road. His erratic/improper driving, his failre to respond to qestions and his odd behavior

47 inclding handing me the wrong paperwork for the vehicle and denying/rorgetting that he drove over the crb. 11. Please identify all observations made by yo or any factal bases that led yo to force the plaintiff to sbmit to a rinalysis after the breathalyzer test. OBJECTION: This interrogatory rerers to facts not in evidence. ANSER: ithot waiving the above objection, the plaintiff was not forced to perform a rinalysis test; he sbmitted to the above noted tests volntarily. 12. Please identify all observations made by yor or any factal bases that led yo to place the plaintiff in the holding cell after the breathalyzer reslts proved negative. ANSER: It is normal operating procedre for individals arrested for DUI to be placed in a holding cell. 13. Please describe, as specifically as possible, the proper policy and procedre with regard to handling sspected driving nder the inflence of alcohol and/or drgs cases.' ANSER: See answer to Interrogatory No. S. 14. Please state whether there were any other persons or officers present with yo dring the traffic stop on Jly 26, 28 or any other witnesses present. If yor answer to this interrogatory is in the affirmative please also state: ANSER: omcer Jason Brcker arrived on the scene as a backp officer after the field tests had been given. Linda Graser was a passenger in the plaintiff's vehicle. a. The names and addresses of any sch persons present; ANSER: Officer Jason Brcker, City of Groton Police Department, 295 Meridian Street, Groton City Linda Graser b. The position or title of sch person present;

48 ANSER: Jason Brcker, Police Officer Linda Graser, Passenger In vehicle c. The reason sch person was present. ANSER: Officer Brcker responded to the scene to assist me as a backp omcer, it is normal patrol procedre ror any officer to backp another officer dring motor vehicle stops when possible. Ms. Graser was a passenger In the plaintiff's vehicle..,

49 -- REQUESTS FOR PRODUCTION The plaintiffs hereby reqest that the defendant Brian Connolly provide consel for the plaintiffs with copies of the docments described in the following reqest for prodction, or afford consel for said plaintiffs the opportnity or, if necessary, sfficient written athorization, to inspect. copy. photograph or otherwise reprodce said docments. The prodction of sch docments. copies or written athorization shall take place at the office of the plaintiffs' consel within thirty (3) days hereof. 1. A copy of any non privileged statement. as defined in Federal Rles of Civil Procedre Section 26(b)(3). concerning this action or its sbject matter. RESPONSE: See docments and reports already prodced by defendants. 2. A copy of any reports created or docmented as a reslt of the arrest of the plaintiff John F. Drew or any other activity relating to the sbject matter of this complaint. RESPONSE: See docments and reports already prodced by defendants. 3. A copy of any certification or proof of certification or any other docmentation of any corses. program or training the defendant has attended regarding the proper policy and procedre of traffic stops and/or driving nder the inflence of alcohol andjor drgs sitations. RESPONSE: See attacbed. 4. A copy of any form. literatre or pblication regarding the policies and procedres to be followed by City of Groton Police Officers. RESPONSE: See attached. 5. A copy of any reports, complaints or citations filed against the defendant Brian Connolly in this matter or against the City of Groton Police Department concerning the defendant Brian Connolly. OBJECTION: This reqest seeks Information which is Irrelevant and not reasonably calclated to lead to the discovery of admissible evidence. Frther the reqested information is Improperly invasive to the privacy interests of the derendant and tbird parties inclding tbose whose police or cort records may bave been erased

50 -. -e OfFICER CQNNOLLY'S CERTIFICATION I,..??'!.:!;!:2.A.' (f/. C...,..,...vl,t.e'/j being dly swom. hereby certify that the foregoing responses : 1 nterrcgatories and Reqests for Prodction are tre and accrate to the best of my knowledge: and belief....., c.,(. I Brian Connolly....." t1'iffi/ c-' Sl)s(:ribed and swom to befote me this J If? day of Jly, 21. 1y.+: C-L C::' NOTARY PUBLIC'COMMISSIONER OF THE SUPERIOR COURT '\

51 -e CERTIFICATION f1... I hereby certify that a copy of the foregoing has been mailed, postage prepaid. this1 day of Jly. 21. to the following consel of record: Mary M. Phlick Phlick & Cartier, P.e Town St. Norwich, CT 636 4Ii Kerry. Keeney Crtin.\

52 -- OFFICER'S DUI ARREST AND ALCOHOL TE3T f3ef'ljsal OR FAILURE REPORT A44 REV. 9 8 Th!S,eport 'S issed nder Section b of the Connectict General Stattes INSTRUCTIONS: STATE OF CONNECTICT DEPARTMENT OF MOTOR VEHICLES AOMINISTRA TlVE PER SE UNIT On The eb at ct9v1dmll FOR POLICE USE ONLY CASE NLJMBER(s): AR SUMMONS NUMBER: MB Please type or print clearly I &,- (,..t;". 2 Forward completed form 1 the address below within 72 hors of arrest 3 Attach additional sheets togetner with materials necessary loexplatn portions of Ihis Report Sch attachments are considered part of this Report and are approved by the Commissioner The statements and Informallon contained therein are sbscribed and sworn to nder penalty of false statement. U,A NUMffFR TO: ADMINISTRATIVE PER SE UNIT, OEPARTMENT OF MOTOR VEHICLES, ETHERSFIELD, CT SECTION A: OPERATOR AND VEHICLE INFORMATION I. licenslhg STA TI! OP!RATOII UCENS!: NUMIIJ\ CT AOORESS {N_ """ S"'-I 14 SCHOOL ST VEHICLE INFORMATION MAKE FORD NAMI OF onaa TOil (f.m(, /1;,#,., II ; DRE, JOHN F.! MODEL F-15 IjOPERATOR HOLDS COMMERCIAL DRIVER'S LICENSE :.J VEHICLE TRANSPORTING HAARDOUS MATERIAL Op.,tlon drinq.atnorizeo non '. OOl p"""'t OpeI.don whu. not'f" lepmalon SECTION B: INVESTIGATION INFORMATION 1i-- TIM SI """'./)' (Oty dr Town) DATI! LOCATION SMtTH ST CITY OF GROTON aodvtypi! I PICK UP fruck (Nvmber r SUNl),$111&1 CT I DEfENDANrS l= EXH1BIT.d, SEX RI!GlSTM non Io/V.,IER 44CJ5 (c.ty 1 ro11j CITY OF GROTON ( o UNDER 21 RACE (8J M F hite REG, STAT!! CT FATALITY ) es OPERA TOR HAVE AHY I'HVSICAI. IiANOICAP INJURY " ILLNESS _ICH OULD PRI!VENT THE OPERA TOR F OM PI!RFORMING... NY PART OF THE FIELD PI!ROIUolANCE TEST? 1. REFUSED TO ANSER NO YES (explain) i STANDARDIED FIELD SOBRIE ty TESTS -- TYPE OF TEST CHECK APPROPRIATE BOXES DESCRIBING CONDIT ON OBSERVED o Refsed To Perform Tests - HORIONT AL GAE o Dis/lnd Nyslagms at Maximm Deviation o Onset of Nystagm prior to 45 Degrees o Performed to Standard NYSTAGMUS lack of Smooth Prslt o Other {Explain} J o Refsed to Perlorm - o Loses Balance (8J No Heel To Toe Steps Off Line o Slarts Too Soon Petfo,mlt(1 to Standard ALK-TURN C8l Rals85 Arm$!:8llncorrect Nmber of Staps o Stop, To Ste/y Self (8J Trns Incorrectly Refsed to Perlorm Sways VVhile Balanctng (8J Uses Arms For Salance, RaiSing Over Si InChes (8J Pts Fool Down o Refsed 1 Perform ONE LEG STAND o Hopping o Cannot Perform Test o Performe1 to Standard.' OTHER TESTS i?roeable CAUSE TO ARREST(Ch«'".ppiic'OJ 2SJ OBSERVED ERRATIC DRIVING ODOR OF ALCOHOLIC BEVERAGE ON OPERATOfll'S BREATH FIELD PERFORMANCE (Sobnely) TESTS rj MOTOR VEHICLE CRASH TIME OF CRASH , TIME OF CRASH ESTABLISHED BY ITNESS STATEMENT (Attache1) o ADMISSIO OF OPERATOR OTHER (Explain In Narrative Report) I I DATe OF ARREST loca non Of ARREST (Nvm_.nd $I,",) SMITH ST, GROTON CITY, CT (C"y ' filn) POLICE DEPARTMeNT,.... e City of Groton NAMe OF AAllesTING OFFICER Patrol Brian Connolly BADGE NUMBER 112 -,., ARRESTED BY ARRANT (attached).. OPERATOR AS APPRiSeD OF CONSTITUTIONAL RIGHTS (MIRANDA ARNINGS) : AT 2239 HRS, (MILITARY) SECTION : POST ARREST INTERVIE Refsed to Answer (RTAj' ----, ARE YOU INJURED? IF YES, OESCRlee YOUR INJURV ARE VOIJ Ill7 IF YES, DESCRIBE YOUR IllNESS ClYES NoDRTA DYES NO DRTA

53 _-_... RE YOU A IA8ETle? j YOU TAK! INSULIN? IF YES. HEN 1 YOU UST TAKIINSIN? yo TAKE MEOICAT1ON? I,'F YES._A r TYPE OF EOICA flo;- -- DYES ono RTA DYES ONORTA DRTA DYES DNO RTA ORTA... He... 1 YOU UST T.<J(!; THIS MEOfCA TlON? YOU NEED MEOlCA non NO? I' YES. HICH NPE? ORTA DYES D NO C8:I FlTA ORTA your Elc..,r? I HeN 1 yo START OMINKfNt;1 l- N 1 YOU STOP DRINKING? _j--;';:;;;of ALCOHOl IC BEVRAGE DID Yo '" (8JRTA [8IRTA [8IRT... : I3J RTA - HO 'AUCH DID YOU ORIHl<7._--- RTA INHEN 1 yo LAST EAT AND HAT 1 YOU UT7 C:iSlFHA DID you TAK! DRUGS? DYES ONO (girt... If 5. 'M'AT KINO AND 1... "UCH? [8IR1A SECTION E: IMPLIED CONSENT ADVISORY IIfliE 1 YOU OR/Nil 7 C8:I RTA OPERATOR AS INFORMED OF THE FOLLOING: Yo are reqested to sbmit to a blood. breath. Of rine test chosen by the police officer. Yo may refse a blood test. in which case another test will be selected. If yo elect to sbmit to testing. yo will be reqired to provide.two samples. If yo refse to sbmit. the tests will not be given. Yor refsal will reslt in the revocation of yor operator's license for tweryty-for (24) hors and the sspension of yor operator's license for at least six (6) months. If yo sbmit to the tests. and the reslts indicat that yo have an elevated blood alcohol content. yor operator's license will be revoked tor twenty-for (24) hors and will be sspended for at least ninety (9) days. If yo hold an operator's licen se from a state other than Connectict, yor driving privilege in Connectict is sbject t\> the same rellocation and sspension penalties. T he reslts of the tests or the fact of a refsal may be admissible in evidence ageinst yo in a criminal prosection for driving nder the innence of alcohol and/or drgs, or other offense. and evidence of a refsal may b sed against yo in any criminal prosection,- -_. I o OPERA TOR AS AFFORDED REASONABLE OPPORTUNITY TO TELEPHONE AN A lftorney AT 224 HRS. (MILITARY) I : hich test was selected by the officer? o BREATH D BLOOD D t;jrine e -SECTION F: CHEMICAL ALCOHOL TEST DATA (Breath Test) copy Of TES T RESULTS PROVIDED TO OPERA TOR. - -_. C2J YES DNO IF YES. OA fe AND nm! PROVlOEO TO OPERA TOR 7/ FIRST lime (Atilory) DATE REsLT TEST, STAPLE COPIES /26/28 OF TEST SECOND nme "''''aryl DATE REST TEST "AM. OF TESTING OFFICER (Plea ""nl) Bllan Connolly I POlIce OEPA1TMENT NAME City of Grot9n SECTION G: CHEMICAL ALCOHOL TEST DATA (Blood or Urine Test) o COpy OF ANALYSIS OF BLOOD OR URINE SAMPLE BY STATE TOXICOLOG LABORATORY ATIACHED.! RESUL TS HERE II COp y OF ANALYSIS OF BLOOD OR URINE SAMPLE BY HOSPITAL A TI ACHED. SAMPLE AS TAKEN AND ANALYSIS O E3 TAINED IN ACCORDANCE ITH THE REQUIREMENTS OF SECTION a (k) OF THE CONNECTICUT GENERAL ST.A.TU TE S SECTION H: CHEMICAL ALCOHOL TEST REFUSAL (Mst Complete If efsa/) I The operator named above refsed to sbmit to sch test or analysis when r;qested to do so. The refsal occrred In my presence and my endorsement appears below. : NA"e OF ITNESS TO REfUSAL (PI... tj'ifli) SIGNATVRE OF ITNESS TO REFUSAL BADGE NVMSER (1Iapt>/1,:abllt) x SECTION I: OATH (Mst complete) Th is report of chemical alcohol test or refsal and the attachments hereto, if ny. are sbscribed and sworn to by me. the arrestir officer. nder penalty of false statement as provided in Section 53a-157b of the Connectict General Stattes. before the ndersigned official dly athorized to administer oaths. :, OAfE SIGNED {I 7 -c' 7-.