State of New York
Supreme Court : County of Monroe

Plaintiff,

- against -

Defendants,

_______________________________

Andrew V. Siracuse, J.S.C.

On February 27, 1994, a man was shot in MacGregor's bar at Gregory and Cayuga Streets in the City of Rochester. Plaintiff Richard Carvotta, the owner of the bar, was arrested that night for Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) and Resisting Arrest (Penal Law § 205.30), both Class A misdemeanors. The information alleged that Carvotta entered the bar and ignored police commands to leave, passed two officers charged with securing the bar, and attempted to step over the body. The information also alleged that, upon being told he was under arrest, Carvotta took a policeman's hand and removed it from his shoulder and refused to cooperate when he was handcuffed.

Carvotta was tried in Rochester City Court on December 16, 1994, and was granted a trial order of dismissal at the close of the prosecution's case. He subsequently sued the City of Rochester, the Rochester Police Department, and Scott Peters, the arresting officer, for false imprisonment, battery, malicious prosecution, and deprivation of civil rights under 42 USC § 1983.

Plaintiff has now moved for summary judgment on the issue of liability only. The City, in the briefest of responses, argues that the reasonableness of Peters's conduct is a question of fact that must be determined by a jury. For the reasons set out below the Court holds that the issue of probable cause to arrest is one of law, not of fact, and the summary judgment should be granted to plaintiff on his claims for false imprisonment and battery. The Court also holds, however, that questions of fact exist precluding judgment on the claim for malicious prosecution.

False imprisonment and Battery

False imprisonment requires a showing of an intentional and nonconsensual confinement, not otherwise privileged, of which the plaintiff was aware. A warrantless arrest without probable cause is in most every case an appropriate basis for a false imprisonment claim.

Since Peters's arrest of Carvotta was without a warrant, the sole and dispositive issue before the court is that of probable cause; that is, did Peters have reasonable grounds to believe that it was more probable than not that a crime had been committed by Carvotta?

As long as the underlying facts are not in dispute, this question is one of law. The City's assertion that probable cause is a fact question is unsupported by authority, conflicts with black-letter law (see 59 NY Jur, False Imprisonment, § 133, citing cases as early as Burns v Erben, 40 NY 463 [1869]), and is inconsistent with criminal jurisprudence in such areas as warrant law.

In a summary judgment posture the court is not permitted to weigh credibility questions, and the trial testimony of the police officers involved, which is inconsistent with each other and with the information, might appear to present questions not resolvable here. Nonetheless, the court finds that, even giving the defendants' case the benefit of every inconsistency, there was still no probable cause for Carvotta's arrest for Obstructing Governmental Administration. Since the arrest for this crime was improper, Carvotta could not be guilty of resisting arrest, which would be crime only if the arrest itself were lawful.

This conclusion is bolstered by the fact that, once plaintiff shows he was the victim of a warrantless arrest, defendants have the burden of establishing probable cause (see, Barr v County of Albany, 50 NY2d 247, 255; Broughton v State of New York, 37 NY2d 451, 458, cert den sub nom Schanbarger v Kellogg, 423 US 929). The defendants in this motion have presented no evidence on this issue.

Not every refusal to cooperate with police orders is punishable, and a local ordinance requiring compliance with all reasonable orders or requests of the police has been struck down as unconstitutionally vague (People v Flinn, 130 AD2d 877). The Penal Law holds liable for obstructing governmental administration one who

intentionally obstructs, impairs or perverts the administration of law * * * or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service (Penal Law § 195.05).

The Court of Appeals has held that the interference contemplated by the statute must be physical in nature (People v Case, 42 NY2d 98); the final clause of the section, added by the Legislature in response to the Case decision, criminalized non-physical interference only with respect to telecommunications. In addition, it is necessary that the physical interference or intimidation be done with the intent to prevent the performance of an official function.

In the present case the information states nothing more than that Carvotta attempted to enter his bar in defiance of police orders. This assertion (which, it should be noted, was not borne out by the trial testimony) does not establish physical interference with any investigation, any evidence-gathering or -protection functions, or any other police activities. Carvotta was not trespassing and was simply in a place the police did not wish him to be; but unless and until he acted with physical force or interference in such a way as to impede police work he was not guilty of Obstructing Governmental Administration.

The information is facially insufficient, since it alleges neither physical interference nor the activity that was alleged to be impeded (see, People v Clough, 43 AD2d 451). Even assuming its truth, then, the court must conclude that there were no grounds for suspicion that this offense had been committed. Peters had no basis for his warrantless arrest. Since the arrest itself was unlawful, Carvotta did not commit the crime of Resisting Arrest (Penal Law § 205.30). Finally, Peters's physical contact with Carvotta, which included seizing him, handcuffing him, and pushing him to the hood of the police car, was not privileged, was nonconsensual and offensive, and thus constituted a battery. As Peters's employer, the Rochester Police Department and the City of Rochester are jointly and severally liable along with him, as he was acting within the scope of his employment.

Malicious prosecution

The elements of malicious prosecution are different from those of false imprisonment. The plaintiff must show that the defendant ether commenced or continued a proceeding against him which terminated in the plaintiff's favor. He must also show that there was no probable cause for the proceeding and that it was instituted in actual malice (Martin v City of Albany, 42 NY2d 13, 16, referring to Broughton v State of New York, supra, 37 NY2d at 457). Malice for malicious prosecution is much like the cognate concept in defamation law; it requires either improper purpose or knowingly acting upon a falsehood (See, Restatement (2d) Torts, § 668, comment e).

The plaintiff has clearly shown the commencement of a proceeding by Peters which terminated in his favor. In addition, this court finds as a matter of law that the proceeding was instituted without probable cause.

Malice may be presumed by a jury upon a finding of no probable cause; however, a court cannot conclude as a matter of law that this conclusion must follow (see, Martin v City of Albany, supra, at 17; Ellman v McCarty, 70 AD2d 150, 156; Caminito v City of New York, 45 Misc 2d 241, 252, mod on other gds 25 AD2d 848). Thus, this question cannot be resolved on papers. Had the case been based upon the maintenance of the action upon a facially insufficient information, it would have been theoretically possible, at least, to conclude as a matter of law that the prosecution could not have gone forward without malice. Since the defendant's sole involvement with the action was its commencement, however, the court cannot rule out as a matter of law that Peters acted in error but without malice. That error would not insulate him from liability for false imprisonment, where the standards are objective; but the possibility of that error is sufficient to deny the plaintiff summary judgment with respect to this claim.

Plaintiff's counsel may prepare an order granting partial summary judgment on the defendants' liability in false imprisonment and battery, and denying summary judgment for malicious prosecution. A single bill of costs is payable to plaintiff.

Andrew V. Siracuse, J.S.C.