IN THE llcourt of ~pea15 FOR THE SECOND CIRCUIT. JOHN F. DREW, Plaintiff-Appellant LINDA M. GRASER, Plaintiff,

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1 -cv 1b Be Argued By: JAMES N. TALLBERG, ESQ. mtniteb ~tate5 IN THE llcourt of ~pea15 FOR THE SECOND CIRCUIT JOHN F. DREW, Plaintiff-Appellant LINDA M. GRASER, Plaintiff, v. BRIAN CONNOLLY, Defendant-Appellee, CITY OF GROTON, BRUNO L. GIULINI, GROTON POLICE DEPARTMENT, and JASON BUCKER, Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT (Honorable Janet Bond Arterton, U.S.D.J.) BRIEF OF DEFENDANT-APPELLEE BRIAN CONNOLLY JAMES N. TALLBERG Karsten & TaUberg, LLC 8 Lowell Road West Hartford, CT Tel. (860) Fax (860) jtallberg@kt-lawfi.rm.com

2 TABLE OF CONTENTS Table of Authorities Preliminary Statement 5 Statement of Issues 5 Statement of Facts Procedural History 8 Sununary Argument Argument 13 A. The Ruling Of The District Court Granting Summary Judgment In Favor Of The Defendants City Of Groton And Chief Giulini On The Plaintiff's Monell Claim Should Be Affirmed 13 i. The Court Should Decline To Consider Argument And Evidence Not Before The District Court At The Summary Judgment Stage ii. Evidence Offered By The Plaintiff For The First Time On Appeal Does Not Support The Reversal Of The District Court's Ruling On The Plaintiff's Monell Claim Against The City And Chief Giulini 16 B. The Ruling Of The District Court Granting Officer Connolly's Renewed Rule 50 Motion For Judgment With Respect To The Plaintiff's Fourteenth Amendment Due Process Claim Against Him On Qualified Immunity Grounds Should Be Affirmed 22 C. The Ruling Of The District Court Denying The Plaintiff's Motion For Attorney's Fees Should Be Affirmed Conclusion 28

3 TABLE OF AUTHORITIES Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010) 24, 25 Board of County Corn'rs of Bryan County Oklo v. Brown, 520 U.S. 397, 117 S. Ct ( Bogle-Assegai v. Connecticut, 470 F.3d 498 (2d Cir. 2006)...14 Bracey v. 3d. Of Educ. Of City of Bridgeport, 368 F. 3d 108 (2d Cir. 2004) 27 Butz v. Economou, 438 U.S. 478, S. Ct (1978) 23 Caruso v. Forslund, 47 F.3d 27 (2d Cir City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct (1988) 20,21 Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745 (5th Cir. 1993) 21 Greene v. United States, 13 F.3d 577 (2d Cir Groh v. Ramirez, 540 U.S. 551, 124 S. Ct ( ".. " Harlow v. Fitzgerald, 457 U.S. 808, 102 S. Ct 2727 ( In re Nortel Networks Corp. Securities Litigation, 539 F.3d 129 (2d Cir Marsh v. Butler County, Alabama, 268 F.3d 1014 (11'" Cir Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct ( Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) 22 3

4 Saucier v. Katz, 533 U.S. 194, 121 S. Ct 2151 (2001) 23 Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d th Cir. 2007) 21 Tierney v. Davidson, 133 F.3d 189 (2d Cir. 1998) 23 United States v. Salerno, 481 U.S. 739, 107 S. Ct (1987) Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) Wade v. City of Inglewood, 108 F.3d th Cir. 1997) cert. denied 522 U.S. 866, 118 S. Ct. 175 (1997) 18,19 Statutes Conn. Gen. Stat a 8 Conn. Gen. Stat b 11, 12, 19, 22, U.S.C U.S.C

5 PRELIMINARY STATEMENT The plaintiff-appellant, John F. Drew (hereinafter the ~plaintiff ) appeals from the decision of the Honorable Janet B. Arterton of the United States District Court for the District of Connecticut, dated July 21, 2011, granting a motion for summary judgment in favor of the defendants-appellees, the City of Groton (hereinafter the "City") and Chief of the City of Groton Police Department Bruno L. Giulini (hereinafter "Chief Giulini")l with respect to the plaintiff's Monell claim. In addition, the plaintiff appeals from the decision of Judge Arterton, dated June 5, 2012, granting a Renewed Rule 50 Motion for Judgment in favor of the defendant-appellee, Brian Connolly (hereinafter ~Officer Connolly") on qualified immunity grounds, and denying the plaintiff's motion for attorney's fees. STATEMENT OF ISSUES 1. Can the plaintiff seek review of the order of the district court granting summary judgment in favor of the City and Chief Giulini on the plaintiff's Monell claim based on evidence not before the district court at the time of such order? During the pre-trial conference in this matter a question arose whether the district court's summary judgment ruling applied to both the City and Chief Giulini. A-51? At the time, plaintiff's counsel conceded that the ruling disposed of the plaintiff's Monell claim against both defendants. 5

6 2. Can the plaintiff prevail on a Monell claim against the City of Groton based on trial testimony concerning a facially constitutional standard operating procedure where there is no evidence that the procedure resulted in any prior constitutional deprivations? 3. Did the district court correctly determine that Officer Connolly is entitled to qualified immunity on the plaintiff's Fourteenth Amendment due process claim against him based on the underlying factual finding that Officer Connolly could have reasonably believed that he was authorized to temporarily seize the plaintiff's driver's license following the plaintiff's arrest on charges of driving under the influence ("DUr")? 4. Did the district court correctly deny the plaintiff's Motion for Attorney's Fees? STATEMENT OF FACTS This case arises from a July 26, 2008 investigatory stop of the plaintiff's vehicle and subsequent arrest of the plaintiff by Officer Connolly. On July 26, 2008, at approximately 10:20 p.m., Officer Connolly observed a Ford F-150 pickup truck being driven by the plaintiff traveling slower than the average speed of traffic, making a left hand turn without using a turn signal and making a right hand turn with the vehicle's rear passenger tire traveling over the curb. In view of the plaintiff's 6

7 he smelled alcohol emanating from it. In response to Officer Connolly's inquiry, both the plaintiff and his passenger told Officer Connolly that they consumed some alcohol earlier that night. A , Based on all the foregoing, Officer Connolly asked if the plaintiff would submit to standard field sobriety tests. The plaintiff agreed but, despite the proper instructions given by Officer Connolly, did not pass the horizontal gaze nystagmus, walk-and-turn and one leg stand tests. A , , , As a result, Officer Connolly charged the plaintiff with DUI, placed him in handcuffs and transported him to the City Groton Police Department (hereinafter "GCPD U ) for processing. A-360. At police headquarters, Officer Connolly administered a breathalyzer test to the plaintiff, which did not reveal the presence of alcohol. A , 359. Officer Connolly nonetheless believed that the plaintiff was under the influence of some substance, and administered a urinalysis test. erratic driving, Officer Connolly conducted a motor vehicle stop on Smith Street in Groton, Connecticut. A-247, , ' When Officer Connolly approached the plaintiff's vehicle, A , 331, 343, 361; The plaintiff's urine sample was 2 Numerals in parentheses preceded by ~A- refer to pages of the Joint Appendix. 7

8 sent to the lab for analysis. A However, the results of the urinalysis had to be processed off-site and would not be returned for days. ld. The plaintiff was released on a $500 non-surety bond at approximately 12:10 a.m., on July 27, A-363. Because the plaintiff was charged with DUI, Officer Connolly took possession of the plaintiff's license. A Officer Connolly testified at trial that it was his understanding that it was the GCPD's standard operating procedure to temporarily seize an arrestee's driver's license every time a DUI arrest is made. A , PROCEDURAL HISTORY Based on the foregoing facts, the plaintiff commenced this action on August 26, A-2. In his four-count Second Amended Complaint of October 6, 2010, the plaintiff claimed that Officer Connolly (1) violated his Fourth Amendment right to be free from unreasonable search and seizure, (2) falsely charged him with DUI in violation of Connecticut General Statutes a, and (3) violated his Fourteenth Amendment right to due process by seizing his driver's license, all arising from the ) Following the filing of the plaintiff's initial complaint, the defendants moved to dismiss all claims asserted by Linda Graser, a passenger in the vehicle operated by the plaintiff on the day of the arrest, which was granted by the district court on May 20, A-5. In that ruling, the district court also dismissed all claims against Officer Jason Brucker who had been joined as a defendant after this action was commenced. 8

9 incident on July 26, A The plaintiff also asserted a Monell claim against the City of Groton and Chief Giulini. rd. On November 12, 2010, the City, Chief Giulini and Officer Connolly moved for summary judgment with respect to all of the plaintiff's claims against them. A On July 21, 2011, the district court issued a ruling denying in part and granting in part the defendants' motion. A The district court denied summary judgment with respect to all of the plaintiff's claims asserted against Officer Connolly individually. Id. The court, however, granted summary judgment with respect to the plaintiff's Monell claim against the City and Chief Giu1ini. rd. The plaintiff's claims against Officer Connolly were subsequently tried to a jury with evidence heard on October 13, 14 and 17, The jury found that Officer Connolly was not liable on plaintiff's (1) Fourth Amendment unreasonable seizure claims, or (2) Fourth Amendment unlawful arrest claim. A The jury found, however, that the plaintiff had proved his Fourteenth Amendment due process claim arising from the license seizure. rd. The jury awarded the plaintiff economic damages in the amount of $1, and non-economic damages of $3, rd. Following this verdict, the district court submitted a special verdict form to the jury containing three special 9

10 interrogatories designed to provide the factual basis to enable the court to decide whether Officer Connolly would be entitled to qualified immunity on the due process claim. A-121. The jury found that Officer Connolly was not authorized to keep the plaintiff's license following the plaintiff's arrest and that the plaintiff did not have an opportunity for a meaningful hearing to contest the seizure of his license. Id. The jury, however, answered Yes to the question that asked -[c]ould a reasonable police officer have believed that he or she had the legal authority to seize Mr. Drew's license? Id. On October 27, 2011, Officer Connolly filed his Renewed Rule 50 Motion for Judgment requesting that the Court enter judgment in his favor with respect to the plaintiff's Fourteenth Amendment claim against him on the basis of qualified immunity, and set aside the jury's damage award as legally invalid. A The plaintiff filed a Motion for Attorney's Fees on October 31, 2011 and Objection to Defendant's Motion for Judgment on November 11, A On June 5, 2012, the district court issued an order granting Officer Connolly'S Renewed Rule 50 Motion on qualified immunity grounds, denying the plaintiff's Motion for Attorney's Fees. and A The district court's ruling on the defendant's Renewed Rule 50 Motion for Judgment and the plaintiffs' Motion for Attorney's Fees are also the subject of the present appeal. 10

11 SUMMARY ARGUMENT In his amended complaint of October 6, 2010, the plaintiff asserted a Monell claim against the City and Chief Giulini due to their alleged failure to train the GCPD officers regarding proper driver's license suspension procedures. On June 21, 2011, the district court granted summary judgment in favor of the City and Chief Giulini because the plaintiff offered no evidence of the history of prior instances where an arrestee's license was seized in violation of Connecticut General Statutes b, and therefore could not establish that the supervisory City officials were deliberately indifferent to the rights of those suspected of driving under the influence. The plaintiff does not challenge the district court's grant of summary judgment in favor of the City and Chief Giulini based on the record before the court at the time of such ruling. Rather, he seeks reversal of the district court's ruling by submitting evidence not before the district court at the summary judgment stage. According to the plaintiff, trial testimony about the existence of a standard operating procedure within the GCPD to seize an arrestee's driver's license incident to each Dur arrest was not previously available to him and is all that is necessary to prevail on his Monell claim against the City and Chief Giulini. The plaintiff's argument is without merit. 11

12 First, this Court should decline to consider arguments and/or evidence raised by the plaintiff for the first time on appeal. Second, the order of the district court should be affirmed for the additional reason that the standard operating procedure at issue is constitutional on its face, and the record contains no evidence of prior incidents in which an arrestee's driver's license was seized in violation of Connecticut General Statute b, thereby putting the City and Chief Giulini on notice of this facially constitutional policy's potential unconstitutional effect. In addition, the Court should affirm the district court's grant of Officer Connolly's Renewed Rule 50 Motion for Judgment with respect to the plaintiff's Fourteenth Amendment due process claim. Contrary to the plaintiff's argument, the district court properly determined - as did the jury - that a reasonable officer in Officer Connolly's position would have believed that he had authority, even an obligation, to seize the plaintiff's license following his DUI arrest, and therefore he was entitled to qualified immunity and judgment in his favor. The lack of evidence of any prior incidents during which a DUI arrestee's driver's license was seized for 24 hours in violation of Connecticut General Statutes b demonstrates the unique nature of this case. Chief Giulini was unaware of the standard operating procedure until this litigation, because 12

13 such procedure had never been challenged as improper. In fact, there is no evidence in the record to indicate that any other GCPD officer had ever seized a license under circumstances similar to this case. Accordingly, contrary to the plaintiff's argument, there is no inconsistency between the district court's finding of no liability on the part of the City and Chief Giulini. Rather, the grant of judgment in favor of Officer Connolly who reasonably believed that his temporary license seizure was authorized, should be affirmed. ARGUMENT A. The Ruling Of The District Court Granting Summary.Judgment In Favor Of The Defendants City OfGroton And ChiefGiulini On The Plaintiff's Monell Claim Should Be Affinned. i. The Court Should Decline To Consider Argument And Evidence Not Before The District Court At The Summary Judgment Slage. Before the district court, the plaintiff argued that the City and Chief Giulini should be liable under Monell pursuant to a failure-to-train theory and relied on the deposition testimony of Chief Giulini in support of such claim. A-93-95, On appeal, the plaintiff seeks review of the district court's order summarily dismissing his Monell claim by suggesting a new theory that there existed a policy within the City of Groton Police Department that directly caused his alleged injury, and offering evidence not before the district court in support 13

14 thereof. Appellant's Brief, pp The Court should decline to consider this argument and evidence raised by the plaintiff for the first time on appeal. In re Nortel Networks Corp. Securities Litigation, 539 F.3d 129, (2d Cir. 2008) citing Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006); Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994); Wa1-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d, 96, 124 n. 29 (2d Cir. 2005). In an attempt to circumvent this well-established rule of appellate procedure, the plaintiff has suggested that the defendants withheld evidence necessary to prove his new Monell theory during discovery. Appellant's Brief, pp There is, however, such a claim. absolutely no evidence in the record to support There is no deposition testimony, or other discovery materials, which would establish that the plaintiff had inquired about the GCPD's procedures with respect to seizing an arrestee's driver's license following such arrestee's DUI arrest. In his interrogatories, the plaintiff asked Officer Connolly to identify "proper policy and procedure. with regard to suspected driving under the influence of alcohol and/or drug situations." Appellant's Brief, pp ; Addendum, p. 4. In response to this rather broadly worded inquiry, Officer Connolly answered, "The proper procedure is to 14

15 abide by the training provided by POST, the Law Enforcement Council (LEL), and the City of Groton Police Department.- Id. Officer Connolly's answer is responsive to the plaintiff's inquiry and is not inconsistent with his trial testimony in this case. In addition, the answer was not challenged by the plaintiff while discovery was ongoing. The record therefore indicates that the plaintiff's failure to discover evidence offered for the first time on appeal is not the defendants' fault, but, if anything, because of the plaintiff's own failure to develop a record. In sum, the Court should not permit the plaintiff to sift the trial record for evidence that might have supported his position on an issue decided before trial. Nor should the Court permit the plaintiff to raise a new theory and/or argument not pressed before the district court. Should the plaintiff be permitted to do so, the purpose of Federal Rule of Civil Procedure 56, to narrow trial and define in advance issues to be addressed there, would be defeated. Because the plaintiff does not contest the district court's ruling on his Monell claim based on the record before the district court at the time of such ruling, the Court should affirm the ruling of the district court on this issue without any further analysis. Appellant's Brief, pp

16 ii. Evidence Offered By The Plaintiff For The First Time On Appeal Does Not Support The Reversal Of The District Court's Ruling On The Plaintiff's Monell Claim Against The City And Chief Giulini. Should the Court determine that it can consider the trial testimony offered by the plaintiff in support of his new argument that there existed a policy within the GCPD that directly resulted in a deprivation of his constitutional rights, the Court should nonetheless affirm the ruling of the district court summarily dismissing the plaintiff's Monell claim. The district court found that the record contains no evidence that senior policymakers within the GCPD "knew that officers would be confronted with difficult choices in deciding whether or not to suspend a driver's license for 24 hours and that a wrong choice by those officers would frequently cause the deprivation of due process rights. u A-115. That finding unequivocally defeats the plaintiff's Monell claim irrespective of evidence of the purported policy. Appellant's Brief, pp The plaintiff's newly offered evidence is the trial testimony of Officer Connolly, Chief Giulini and Sergeant Scott Sanford. Officer Connolly testified at trial about his understanding that he had an obligation to seize an arrestee's driver's license for 24 hours incident to each DUl arrest, and denoted this as a "standard operating procedure u (hereinafter "SOPU) : 16

17 Q. And you just testified that with regard to license seizure. Can you please describe your understanding regarding the Groton Police Department's policy on July 26, 2008, with regard to seizure of someone's license when they have been arrested for driving under the influence? A. Anyone arrested for driving under the influence we keep their license for 24 hours in-house. Q. And was that - would you describe that as a written directive or something other than that? A. Call it an SOP, standard operating procedure. A-377 to A-378. Sergeant Sanford, through his trial testimony, further confirmed that in temporarily seizing the plaintiff's license, Officer Connolly was acting pursuant to the SOP: Q. Mr. Drew's - strike that. You understand that Mr. Drew's license was taken from his on the evening of his arrest, correct? A. Yes, I do. Q. What is your understanding about why it was taken? A. It was taken and held for the fact that he was arrested for operating under the influence of liquor. Q. And what was the basis for doing that? Is that something that has an unwritten policy at the department? A. That has been our unwritten policy. Q. How long had - strike that. How long has Chief Guilini been the chief of the Groton City Police Department? A. Approximately nine years. Q. And how long has that standard operating procedure of taking the license been in effect, to your knowledge? 17

18 A. To my knowledge, it would be the time frame I've been a supervisor, which is approximately five years. A Chief Giulini simply testified that he was unaware of the SOP until the litigation was commenced: Q. Can I direct your attention, Chief, to this case that you were brought here to testify about which arises from a July 26, 2008, DUI arrest. What is your understanding about any written SOPs pertaining to the seizure of a DUI arrestee's license? A. Up until this case I had no understanding what was being done outside the fact that the officers were supposed to follow their training. Q. And what has come to your attention since this case with regards to the unwritten SOP? A. That officers were confiscating licenses for 24 hours when, in fact, in some cases they shouldn't have. A-404. Based on the foregoing trial testimony, the plaintiff has argued for the first time on appeal that the existence of the SOP is all that is necessary to establish the City's liability under Monell, and that had he known about the SOP, he would not have proceeded on the failure to train theory at the summary judgment stage. Appellant's Brief, pp For starters, an unwritten oral procedure for carrying out one of the many tasks a police officer must perform on a given day does not constitute a municipal policy for purposes of Monell liability. See Wade v. City of Inglewood, 108 F.3d 1387 (9'h Cir. 1997) cert. denied 18

19 522 U.S. 866, 118 S. Ct. 175 (1997). Plus, even if the Court agrees that the SOP at issue amounts to a municipal policy within the meaning of Monell, as discussed fully below, the plaintiff's argument is without merit because the SOP is constitutional on its face. Pursuant to Monell, in order to prevail on a 1983 claim against municipality, a plaintiff must show that there was a municipal "policy or cllstom U that caused the alleged constitutional violation. Monell v. Department of Social Services of the City of New York, 436 u.s. 658, 694, 98 S. Ct (1977). The clearest way to establish a municipal policy or custom under Monell is to identify an officially promulgated policy endorsed or ordered by the municipality. This was the situation in Monell, which involved a facially unconstitutional policy which the Supreme Court interpreted to require pregnant employees to take unpaid leaves of absence before they were medically necessary. rd., at 260. Here, in contrast, the SOP is facially constitutional as it would produce a valid and proper result in the majority of Dur arrests, specifically in the situations proscribed under Connecticut General Statute b where an arrestee tests positive for alcohol and/or drugs or refuses testing. A See united States v. Salerno, 481 u.s. 739, 745, 107 S. Ct (1987) (for policy to be facially unconstitutional it 19

20 is required "that no set of circumstances exists under which the Act would be valid"). Where such is the case, the prevailing law is that the mere showing of a "municipal policy" that purportedly caused the constitutional violation is not sufficient to establish liability under Monell. Rather, there must be proof that senior policymakers displayed "deliberate indifference" to the possibility that a constitutional violation would result which can be made by showing a pattern of prior incidents of unconstitutional conduct. There was no evidence of such a pattern in this case. "[A] plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate that the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences." Board of County Com'rs of Bryan County Oklo V. Brown, 520 u.s. 397, 407, 117 S. Ct (1997) (internal citation and quotation mark omitted) (emphasis added). Only where a municipality's failure to adopt adequate safeguards was the product of deliberate indifference to the constitutional rights of its inhabitants will the municipality be liable for an constitutional policy under rd. at j see also City of Canton, Ohio V. Harris, 489 U.S. 378, , 109 S. Ct (1988). 20

21 A number of Circuits reviewing the -deliberate indifference- requirement outside the failure to train and failure to supervise context have agreed that it applies in all cases involving a facially constitutional policy. See Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385, 389 (8'" Cir. 2007) ("(A] written policy that is facially constitutional, but fails to give detailed guidance that might have averted a constitutional violation by an employee, does not itself give rise to municipal liability"); Marsh v. Butler County, Alabama, 268 F.3d 1014, 1036 (llili Cir. 2001) (holding that the alleged -policy of releasing sick or injured inmates could be applied in a constitutional manner and therefore rejecting the idea that -the policy, on its face, is 'obviously' a danger to inmates to the degree that the allegation of the policy itself [without alleging of prior release incidents] is an allegation of personal awareness on the Sheriff's part of an excessive risk of serious harm to inmates just because the policy exists."); Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 757 (5th Cir. 1993) (-The circuits have uniformly interpreted Canton's 'deliberate indifference' requirement, announced in the context of a 'failure to train' claim, to apply to all cases involving facially constitutional policies. H). As discussed above, here, the SOP does not affirmatively sanction unconstitutional actions and therefore is a facially 21

22 constitutional municipal policy. However, the record, as found by the district court, contains no evidence of a pattern of prior incidents where an arrestee's driver's license was temporarily seized in violation of Connecticut General Statutes b. Accordingly, the plaintiff cannot establish that this facially constitutional SOP was made or enacted with deliberate indifference to a citizen's constitutional rights. For this additional reason, the ruling of the district court granting summary judgment in favor of the City and Chief Giulini with respect to the plaintiff's Monell claim should be affirmed. B. The Ruling Of Tbe District Court Granting Officer Connolly's Renewed Rule 50 Motion For Judgment With Respect To The Plaintiff's Fourteenth Amendment Claim Against Him On Qualified Immunity Grounds Should Be Affirmed. The plaintiff appeals from the ruling of the district court granting Officer Connolly's Renewed Rule 50 Motion for Judgment with respect to the plaintiff's Fourteenth Amendment due process claim against him on qualified immunity grounds. For the reasons stated below, the ruling of the district court should be affirmed. Qualified immunity shields a police officer from liability so long as his actions do not violate *clearly established rights of which an objectively reasonable officer would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 s. Ct. 808 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 808, 818, 102 s. 22

23 Ct (1982)). The protection of qualified iln11unity applies regardless of whether the government official's error is na mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Grah v. Ramirez, 540 U.S. 551, 567, 124 S. Ct 1284 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 98 S. Ct (1978), for the proposition qualified inununity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law"); see also Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct (2001) (The qualified immunity inquiry. concerns an "officer's mistake as to what the law requires" and acknowledges that "reasonable mistakes can be made as to the legal constraints on particular police conduct"). A qualified immunity defense is established if {a} the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law. n Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998). "The objective reasonableness test is met if officers of reasonable competence could disagree on the legality of the defendant's actions. n Id. In determining whether an officer is entitled to qualified immunity, "[t]he question is not what a lawyer would learn or intuit from researching case law, but was a reasonable person is a defendant's position should know about the constitutionality of 23

24 the conduct." Amore v. Novarro, 624 F.3d 522, (2d Cir. 2010). In this case, taking the plaintiff's license was entirely reasonable in light of the circumstances with which Officer Connolly was presented. Although the results of the plaintiff's breathalyzer test were 0.000% blood alcohol content, based on the traffic violations he observed and the plaintiff's performance on the standard field sobriety tests, Officer Connolly reasonably believed that the plaintiff was under the influence of something other than alcohol. A-375. The jury agreed with this assessment and returned a verdict in Officer Connolly's favor on the unreasonable seizure and unlawful arrest claims. A-lIB. This made it entirely reasonable for Officer Connolly to temporarily take the plaintiff's license in an attempt to prevent the plaintiff from getting behind the wheel impaired and putting himself and others in danger. Further, Officer Connolly seized plaintiff's license based on his belief that he was authorized to do so because he had arrested the plaintiff for DUl. After hearing the trial testimony about the SOP discussed above, the jury answered ~YesN to the special interrogatory that asked ~[c]ouid a reasonable police officer have believed that he or she had the legal authority to seize Mr. Drew's license? A-l2I. As a result, 24

25 Officer Connolly is protected by the doctrine of qualified immunity. The plaintiff's attempt to distinguish this case from Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010), is unpersuasive. The crux of the plaintiff's argument is that, while in Amore the defendant officer was unaware that the statute pursuant to which he had arrested the plaintiff had been held unconstitutional, here, Connecticut General Statutes l4-227b was valid at the time of the plaintiff's arrest, and Officer Connolly therefore should have known that acting pursuant to the SOP, he was acting in contravention of the statute. Appellant's Brief, pp There is, however, no evidence that Officer Connolly was aware of the tension between the SOP and Connecticut General Statutes l4-227b at the time of the plaintiff's arrest. Contrary to the plaintiff's argument, the language contained in the A-44 form, which Officer Connolly read to the plaintiff, does not instruct what an officer should do with respect to the seizure of a driver's license if he suspects that an arrestee is under the influence of something other than alcohol. Appellant's Brief, p. 27. Therefore, the district court correctly found that, [s]imilar to Officer Novarro in Amore, Connolly acted unlawfully in seizing Mr. although Officer Drew's license under Conn. Gen. Stat b, he was following the unwritten 25

26 procedures used by the Groton Police Department at that time, whose inconsistency with the state statute became apparent during this litigation. M A-156. As such, the district court held that a reasonable officer in Officer Connolly's position would have believed that he had authority, even an obligation, to seize the plaintiff's license following his DUI arrest, and therefore was entitled to qualified immunity on the plaintiff's Fourteenth Amendment claim against him. Based on the foregoing, the ruling of the district Court granting Officer Connolly's Renewed Rule 50 Motion for Judgment should be affirmed. C. The Ruling OfThe District Court Denying The Plaintiff's Motion For Attorney's Fees Should Be Affirmed. In his Renewed Rule 50 Motion for Judgment, Officer Connolly requested that the district court set-aside the jury's award of $1, in economic damages and $3, in noneconomic damages as it is inconsistent with the remainder of the verdict and because the plaintiff failed to prove his alleged non-economic damages. A The plaintiff objected to Officer Connolly's argument and, in addition, filed a Motion For Attorney's Fees. A Because the district court granted judgment in Officer Connolly's favor with respect to the plaintiff's remaining Fourteenth Amendment Due Process claim, it did not reach Officer Connolly's argument regarding the damage 26

27 award. A ? The district court, however, affirmatively denied the plaintiff's Motion For Attorney's Fees. A-15? At the outset, should the Court reverse the district court's grant of judgment in Officer Connolly's favor with respect to the plaintiff's Fourteenth Amendment Due Process claim, it should nonetheless set aside the jury's damages award because the plaintiff's economic damages of $1, have nothing to do with the plaintiff's license seizure and are inconsistent with the jury's findings of no liability on the part of Officer Connolly for the stop and Dur arrest of the plaintiff. A-l The Court also should set aside the jury damages award of $3, in non-economic damages because the plaintiff similarly has not proved that these purported injuries were proximately caused by Officer Connolly's seizure of his license. Bracey v. Bd. Of Educ. Of City of Bridgeport, 368 F. 3d 108, (2d Cir. 2004) (~While 'proper compensation for noneconomic damages cannot be computed by a mathematical formula, and there is no precise rule for the assessment of damages[,]... the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate. W ) (internal citation omitted). As discussed above, however, the district court correctly determined that Officer Connolly is entitled to qualified immunity, and therefore the latter step should not be necessary. 27

28 In addition, because the district court correctly determined that the City and Chief Giulini were entitled to summary judgment on the plaintiff's Monell claim, and that Officer Connolly was entitled to qualified immunity on the plaintiff's Fourteenth Amendment due process claim, the plaintiff is not a "prevailing party" for the purposes of 42 U.S.C. 1988, and therefore is not entitled to attorney's fees. Caruso v. Forslund, 47 F.3d 27, 33 (2d Cir. 1994) ("[W]here a plaintiff was awarded only nominal damages, a[n] [attorney's] fee award would normally be inappropriate."). Accordingly, the ruling of the district court on this issue should be affirmed. CONCLUSION For all the foregoing reasons, the defendants, City of Groton and Chief Giulini, respectfully request that the Court affirm the judgment of the district court granting summary judgment with respect to the plaintiff's Monell claim against them. The defendant, Officer Connolly, respectfully requests that the Court affirm the judgment of the district court granting his Renewed Rule 50 Motion for Judgment with respect to the plaintiff's Fourteenth Amendment due process claim. The Court should also affirm the district court's ruling denying the plaintiff's Motion for Attorney's Fees. 28

29 DEFENDANTS-APPELLEES, THE CITY OF GROTON, BRUNO L. GIULINI, and BRIAN CONNOLLY BY/ss/James N. Tallberg JAMES N. TALLBERG Federal Bar Number: ct17849 Karsten & Tallberg, LLC B Lowell Road West Hartford, CT Tel.: ( Fax: ( jtallberg@kt-lawfirm.com Their Attorney 29

30 CERTIFlCATE OF SERVICE I hereby certify that on February 27, 2013, a true and correct copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing. Parties may access this filing through the Court's system. Iss/James N. Tallberg James N. Tallberg 30

31 CERTIFICATE OF COMPLIANCE I, James N. Tallberg, hereby certify that this brief is in compliance with the Federal Rules of Appellate Procedure 32 (a) (7) (B). This brief is in 12 point Courier font with a 2 point or more leading between lines, and contains five thousand seven hundred eighty four words. Iss/James N. Tallberg James N. Tallberg 31