12-2695-cv UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOHN F. DREW, PLAINTIFF-APPELLANT LINDA M. GRASER, PLAINTIFF

v. BRIAN CONNOLLY, DEFENDANT-APPELLEE

CITY OF GROTON, GROTON POLICE DEPARTMENT, BRUNO L. GUILINI AND JASON BRUCKER,

DEFENDANTS

Appeal from the United States District Court for the District of Connecticut

REPL Y BRIEF OF THE PLAINTIFF -APPELLANT JOHNF.DREW

Representing the Appellant:

Mary M. Puhlick (ct23254) Puhlick & Cartier, P.C. 199 West Town Street Norwich, CT 06360 Phone: (860) 886-1986 Fax: (860) 889-9639

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• • TABLE OF CONTENTS

Table of Cases and Authorities ............................................................. .i

A. The Ruling of the District Court Granting Summary Judgment in Favor of the Defendants City of Groton and Chief Guilini on the Plaintiff's Monell Claim Should Be Reversed ........................................................................ 1

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 Claim Against Him on Qualified Immunity Grounds Should Be Reversed ........................................................................ 9

Certification of Service ..................................................................... 12

Certification of Compliance ............................................................... 13

• • TABLE OF CASES AND AUTHORITIES

Cases

Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010) ............................................................... 10

O~ Anderson v. Creighton, II:

~ 483 U.S. 635, 107 S.Ct. 3034,97 L.Ed.2d 523 (1987) .................................. 11 :J z

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~ -: Harlow v. Fitzgerald, (/) :8 ~ ~ 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ................................. 11 II: <D o $ f- ~

~ ~ o ~ Hunter v. Bryant, a: '" a: ~ 502 U.S. 224,112 S.Ct. 534,116 L.Ed.2d 589 (1991) ................................. 11 !:!:! u I- ' 0:: r « u u ~

c!! ~ United State v. Salerno, ~ z U ' ~ m 481 U.S. 739,745 107 S.Ct. 2095 (1987) ................................................. 6 ::l II: n. Iii

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~ Wade v. City of Inglewood, ~ 108 F. 3d 1387 (9th Cir. 1997) ............................................................... 5 g:

Authorities

Conn. Gen. Stat. § 14-227a

Conn. Gen. Stat. § 14-227b

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• • A. The Ruling of the District Court Granting Summary Judgment in Favor

of the Defendants City of Groton and Chief Guilini on the Plaintiff's Monell Claims Should Be Reversed.

The defendants first claim there is no evidence in the Record to support a

claim that the defendants withheld evidence necessary for the plaintiff to prove his

Monell claim during discovery. The defendants in fact either withheld evidence or

created it during the trial following the district court granting Summary Judgment

on the plaintiffs Monell claim. The plaintiff took the deposition of the Chief of

Police, Bruno L. Guilini, and Chief Guilini was requested to provide at his

deposition the City of Groton Police Department policy with respect to operating

under the influence, which he provided. (A383-384) Conn. Gen. Stat. § 14-227b

(A435-440) relates specifically to the issues presented in this case. The City of

Groton Police Department had in place a written policy properly generated

pursuant to Conn. Gen. Stat. § 14-227a (A159-166), which Chief Guilini testified

both at his deposition and at trial, was the written policy in effect at the time of the

plaintiff s arrest.

The written policy of the City of Groton Police Department was in

substantial compliance with Conn. Gen. Stat. § 14-227a. This written policy was

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• • disclosed in discovery. At trial, however, Chief Guilini, Sergeant Scott Sanford as

well as Officer Connolly, all testified that there was a "unwritten standard

operating procedure (SOP)" at the City of Groton Police Department, which in

~ effect was that any citizen who was arrested for operating under the influence

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regardless of their compliance with the breathalyzer request, the breathalyzer J! :J Z

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.J :J results or compliance with providing a urine or blood sample, had their license

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seized for 24 hours. This unwritten SOP was not disclosed in any way, shape or

form throughout the discovery process. Further, this unwritten SOP is in complete U g 0.: t'l

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II: i contradiction to Conn. Gen. Stat. § 14-227b, which states in part, "If the person

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arrested submits to a blood or urine test at the request of the police officer, and the u :J I;j J: w ::l 0: D.. I-en specimen requires laboratory analysis in order to obtain the test results, the police

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person, or, except as provided in this subsection, follow the procedures subsequent

to taking possession of the operator's license as set forth in subsection (c) of this

section." (Emphasis added.) Since the plaintiff had a 0.00 blood alcohol content

(BAC) and did not have an elevated BAC pursuant to the results of the

breathalyzer, Officer Connolly had no authority to seize the operator's license of

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• • the plaintiff pursuant to Connecticut law and the written policy of the City of

Groton Police Department.

Evidence of the unwritten SOP was not before the district court at the

~ summary judgment phase because the unwritten SOP was not disclosed either by

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Officer Connolly or Chief Guilini at any time prior to trial. In fact, the defendants m ~ :J Z

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..J :J argued in their Motion for Summary Judgment that, "The plaintiff has not adduced

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any evidence that the situation presented either a difficult choice of the sort that f-

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other employees. Further, there is no (sic) evidence that City police officers had a « u u ~ c!! (t

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of an individual arrested for DUI who failed the field sobriety test and appeared to z :t 0 f-f-00 LaJ

the officer to be impaired but nonetheless blew a 0.00% BAC on the breathalyzer." ~ Ol

~ (A65-A66) The defendants continue in their Motion concerning Officer

Connolly's training, citing all of the training he had undergone throughout his

tenure as a police officer including DUI training. (A67) What the defendants did

not state was that there existed an unwritten SOP which was not in compliance

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• • with state law and exceeded the authority granted by Conn. Gen. Stat. § 14-227a

and § 14-227b.

At trial, Chief Guilini testified, "Up until this case I had no understanding of

what was being done outside of the fact that the officers were supposed to follow

their training."

"Q And what has come to your attention since this case with regard 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)

The defendants are now asserting that because the Chief of Police was

unaware of an unwritten SOP within his own department that the plaintiff's Monell

claim should fail. As the plaintiff argued in his Appeal, the City cannot have it both

ways. This unwritten SOP is clearly in violation of Connecticut law and since it is

the police department's responsibility to enforce the laws of the State of

Connecticut as they are written, not as they choose to, is clearly a deprivation of a

citizen's Fourteenth Amendment rights of anyone whose license had been seized

prior to this incident without authority to do so. If police departments were granted

the authority "make up" unwritten SOPs that are contrary to Connecticut law and

then justify the behavior on "public policy grounds" then it must be asked, why

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• • have written laws in the first place? It is not as though the Statutes were not clear

and there was no evidence presented that either Chief Guilini, Sergeant Sanford or

Officer Connolly were unable to understand the statutes. The defendants are

~ asking this court to sanction this police department's maintaining a secret

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unwritten SOP that violates state law. The unwritten SOP was not before the trial III l: ::J Z

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..J ::J court when it ruled on the Monell Claim, the plaintiff had asked for policies

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concerning arrest and seizures of licenses, and the defendants failed to produce the

I: « ~ unwritten SOP, or created same after the Monell claim was ruled upon. U g Il (')

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Accordingly plaintiff's appeal must be sustained. « u u ~ c!! 0::

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The defendants claim "for starters, an unwritten oral procedure for carrying u J f-

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Ul out one of the many tasks a police officer must perform on a given day does not

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constitute a municipal policy for purposes under Monell," citing Wade v. City of ;::

m Inglewood, 108 F. 3d 1387 (9th Cir. 1997). The unwritten policy in Wade dealt

with an Inglewood Police Department procedure for dividing its calls among duty

officers, called "officer-assist calls," and conducting themselves professionally

when seizing property. The differences between the Wade case and this case are

glaring. In this case, there was an unwritten SOP, which had been in existence for

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• • at least five years, and which authorized the unconstitutional taking of a person's

license in violation of Connecticut law. Inglewood dealt only with officer assist

calls and the need to be professional when seizing property.

~ The defendant next claims that the unwritten SOP, is "facially

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constitutional," claiming the policy would produce a valid result in the majority of ::l: ::J Z

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under which the Act would be valid, citing United State v. Salerno, 481 U.S. 739, I-

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745 107 S.Ct. 2095 (1987). Salerno was not a Monell case, rather Salerno dealt

with the constitutionality of a legislative Act. The legislative act in Salerno was ~ u U ~ c!! a:

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written, and had been enacted, by a legislature. This is not the situation here. This ::J I-

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case involves an unwritten SOP. One is left wondering who, or by what authority ~ 0 l-I-III W ~

it came into being. One is also left wondering, if this unwritten SOP is allowed to m

circumvent laws the police department dislikes, what other secret unwritten SOPs

which violate state law could be "adopted."

The public policy concern in the defendant's brief of keeping drunks off the

road is not served, by keeping one who tests "clean" off the road in violation of

state law. Moreover, there is in place a procedure for taking a citizen's license if

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• • he has an elevated blood alcohol content. The public policy concern, however, is a

real danger here that each individual police department may simply "enact" verbal

standard operating procedures to circumvent laws that the police department

doesn't like. Moreover, the unwritten policy is not facially constitutional. The

defendant claims that in the vast majority of cases, officers should seize licenses of

arrestees of DWI pursuant to public policy concerns. The fallacy with the

defendants' argument is that this unwritten SOP allows for the seizing of a license

when an arrestee has no evidence of alcohol in a BAC test, and directly conflicts

with Connecticut law creating a taking without due process .

When the plaintiff was arrested he was informed of his rights under Conn.

Gen Stat. §14-227b by Officer Connolly. In fact, Officer Connolly read to the

plaintiff directly from form A-44, Officer's DUI Arrest and Alcohol Report, Drew

Brief, Exhibit F, which states:

OPERATOR WAS INFORMED OF THE FOLLOWING: You are requested to submit to a blood breath or urine test chosen by the police officer. You may refuse a blood test, in which case another test will be selected. If you elect to submit to testing, you will be required to provide two samples. If you refuse to submit, the test will not be given. Your refusal will result in the revocation of your operator's license for twenty-four hours (24) hours and the suspension of you operator's license for at least six (6) months. If you submit to the

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• • tests, and the results indicate that you have an elevated blood alcohol content, your operator's license will be revoked for twenty-four (24) hours and will be suspended for at least ninety (90) days. If you hold an operator's license from a state other than Connecticut, your driving privilege in Connecticut is subject to the same revocation and suspension penalties. The results of the tests or the fact of a refusal may be admissible in evidence against you in a criminal prosecution for driving under the influence of alcohol and/or drugs, or other offense, and evidence of a refusal may be sued against you in any criminal prosecution. (Form A-44, Attached as Addendum to Plaintiff-Appellant's Brief)

The defendants argue that the city did not act with deliberate indifference.

Yet the defendant had a policy in place for five years which allowed for an

unconstitutional taking. The form, A-44 is clear as to when a license may be

seized. Officer Connolly in fact signed the form, indicating that he had informed

the plaintiff as to when the defendant could take Drew's license, and what Drew

was required to do to avoid that from happening. The form does not allow for a

person's license to be taken if the person passed his breathalyzer test and

moreover, Conn. Gen. Stat. § 14-227b( d) clearly forbids the taking of a license if a

citizen does not have an elevated blood alcohol content and submits to chemical

testing.

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• • Accordingly, the ruling of the District Court granting summary judgment in

favor of the defendants' City of Groton and Chief Guilini on the Plaintiff's Monell

claims must be reversed, as the police department had a policy in effect at the time

of the plaintiff's arrest which was contrary to state law .

B. The Ruling of the District Court Granting Officer Connolly's Renewed Rule 50 Motion with Respect to the Plaintiff's Fourteenth Amendment Claim Against Him on Qualified Immunity Grounds should be Reversed.

The defendants next argue 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 on qualified immunity grounds ought to

be affirmed. The defendants argue that Officer Connolly taking the plaintiff's

license was entirely reasonable in light of the circumstances with which Officer

Connolly was presented. See Brief of Defendants-Appellees at 23. The defendants

argue that Officer Connolly'S conduct in seizing the plaintiff's license based solely

on traffic violations he observed and the defendants' claims of the plaintiff's

performance on the field sobriety tests were due to the officers' belief that the

plaintiff was under the influence of "something other than alcohol," even though

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• • his report was void of any such reference. The basis of the defendants' argument

is temporarily taking the plaintiffs license was an attempt to prevent the plaintiff

from getting behind the wheel impaired and putting himself and others in danger.

I This public policy assertion is specifically precluded by Conn. Gen. Stat. § 14-

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227b, which clearly and specifically outlines an occasion that a police officer may ~ ::l Z

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...I ::l seize an operator's license of a motorist. Believing otherwise in terms of "an

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unwritten SOP," public policy, the plaintiffs own danger and the danger of I-

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State of Connecticut. The statute specifically precludes it. Officer Connolly acted « u u ~ <ll 0:

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legislature and be afforded the protections of qualified immunity. ~

'" ~ The plaintiffs distinguishing of this case from the facts m Amore v.

Navarro, 624 F.3d 522 (2d Cir. 2010) is entirely accurate. The defendants'

argument that Officer Connolly was not aware of the "tension" between the

unwritten SOP and Conn. Gen. Stat. § 14-227b at the time of the plaintiffs arrest

ought to be construed as plain incompetence on the part of Officer Connolly as

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• • well as the entire City of Groton Police Department. The language of the statute is

clear and unambiguous and it is clear from the facts of this case that Officer

Connolly acted outside of the scope of his authority. When an officer is plainly

incompetent in the performance of his duties, qualified immunity ought not to

attach. If police officers are charged with enforcing the Connecticut state law, they

should certainly be charged with knowing what the law is to uphold the same.

See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).

For the foregoing reasons, the ruling of the District Court granting Officer

Connolly's Renewed Rule 50 Motion for Judgment should be reversed.

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THE PLAINTIFF -APPELLANT, JOHNF.DREW

/s/ Mary M. Puhlick, pc5325 Mary M. Puhlick (pc5325) Puhlick & Cartier, P.C. 199 West Town Street Norwich, CT 06360 Phone: (860)886-1986 Fax: (860) 889-9639 mpuhlick@norwichlaw.net

• • CERTIFICATE OF SERVICE

I hereby certify that 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 bye-mail 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.

March 13,2013

/s/ Mary M. Puhlick, pc5325 Mary M. Puhlick (pc5325) Puhlick & Cartier, P.C. 199 West Town Street Norwich, CT 06360 Phone: (860) 886-1986 Fax: (860) 889-9639 mpuhlick@norwichlaw.net

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• • CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32

I hereby certify that this brief complies with the type-volume limitations of

F.R.A.P. 32(a)(7)(B) and the typeface requirements of F.R.A.P. 32(a)(5) and the

type style requirements ofF.R.A.P. 32(a)(6) inasmuch as this brief was prepared in

a proportionally spaced typeface using Microsoft Office 2008 in Times New

Roman type in 14-point font size.

March 13, 2013

/s/ Mary M. Puhlick, pc5325 Mary M. Puhlick (pc5325) Puhlick & Cartier, P.C. 199 West Town Street Norwich, CT 06360 Phone: (860)886-1986 Fax: (860) 889-9639 mpuhlick@norwichlaw.net

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