Opinion
FSTCV155014644S
01-27-2017
Harry Francois v. Norwalk Police Dept
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
This is a lawsuit with roots in an incident involving the plaintiff and his mother that occurred on October 11, 2012. The plaintiff was visiting his elderly mother on that occasion, and the nature of the interaction between them resulted in his being arrested on a charge of disorderly conduct, with the dispute being treated as a family/domestic violence incident. A warrant was issued for the plaintiff's arrest on October 12, and he was in fact arrested on October 12 (surrendering at the police station when he learned that the warrant had been issued).
The plaintiff has claimed that his arrest was improper and actionable, that the officer who submitted the application for his arrest, including an affidavit supporting the application, is responsible under what appears to be a claim of false imprisonment or malicious prosecution.
The matter was tried to the court on November 16, 2016 and November 17, 2016. The plaintiff was self-represented; defendants were represented by counsel.
As will be discussed in some detail below, communication itself was a substantial issue in the case. The principal witnesses testifying on behalf of the plaintiff were the plaintiff and his mother. (He also examined a member of the Norwalk Police Department.) The defendants relied chiefly on the testimony of the officer who had prepared the warrant application and who was the principal defendant, as well as testimony from an Assistant State's Attorney, specifically the Assistant State's Attorney who had approved/signed the warrant application in question.
Procedural Issues
During the course of the trial, there were two significant procedural issues that arose. First, at the very Elsa, when court asked the plaintiff to begin putting on his case, the plaintiff indicated that he had thought that there would be a jury and insisted on his constitutional right to a jury trial. The court noted that there had never been a proper claim of the case to a jury (see, General Statutes § 52-215), and that the recent history the case should have emphasized the point. In particular, the defendants had moved to strike the case from the jury trial list (#145.00). That had resulted in an order from the court (#145.01), noting that the case had never been claimed to a jury, presuming that court administrative personnel had tentatively treated the case as if it were a jury case; since the case technically was not on the jury list, the court indicated that it would instruct personnel to remove indications that the case was a jury case as an administrative-type correction, despite the filing of the motion, and despite the court order, the plaintiff had taken no steps to question the motion or order, and had taken no steps to have the case properly claimed to a jury, assuming it were permissible to do so at that late date, i.e., trial commencing with witnesses having been brought to court.
For example, given the need to allow an arbitrator an adequate opportunity to issue a decision (with additional time needed after the decision is issued for further action), a decision as to whether to place the case on a list of cases for arbitration; Practice Book § 23-61 et seq.; cannot await a claim for a jury, if the pleadings have not yet been closed.
The other significant issue occurred after the plaintiff had rested. The defendant moved to dismiss, based on a claimed failure to make out a prima facie case (Practice Book § 15-8), in turn based on the failure of the plaintiff to offer any evidence as to an essential element of his claim, i.e. favorable outcome of the prosecution. Over objection of the defendants, the court allowed the plaintiff to open his case, to allow evidence to be presented relating to the disposition. In particular, the court was satisfied that the failure to offer evidence was inadvertent and it would be an injustice for the court not to allow the plaintiff to offer that evidence. Additionally, the court noted that the issue of the outcome had never really been identified as an issue in dispute, including the inclusion of statements and documentation in that regard by the defendants, in their motion for summary judgment. Further, to the extent that the outcome of the underlying criminal case had been a nolle, the court noted that it was essentially if not actually a matter for which the court could take judicial notice, i.e., but for the fact that a nolle ripens into a dismissal after 13 months which in turn results in erasure, it would be a matter of indisputable court record as to the outcome. Indeed, although not known to the court at that point, the defendants had " lined up" as a witness the very prosecutor who had been involved in the case at the criminal court level, both in terms of the issuance of the warrant and the ultimate disposition, such that there was absolutely no possibility of any claim of surprise or prejudice.
Fitting into the procedural category, the plaintiff initially had included as a party the Norwalk Police Department; the court granted a motion to dismiss, predicated on the notion that the department is not an entity that is capable of being sued in this situation. Conversely, the court did allow the plaintiff to add additional officers as defendants, initially officer Pugliese, the officer who submitted the warrant application (and affidavit) and later officer Kellogg. At the conclusion of the plaintiff's case, the court granted, in part, a motion to dismiss for failure to make out a prima facie case (Practice Book § 15-8) with respect to claims directed to officer Kellogg, as there had been no evidence that officer Kellogg had done anything(much less anything wrong) in connection with the arrest of the plaintiff, other than being present at the time of the investigation and therefore identified in the police report as having been present.
As a result of this winnowing of parties, any reference to " defendant" (singular) will be intended as a reference to officer Pugliese, and any reference to " defendants" (plural) will be intended as a reference to the city and officer Pugliese.
Law
In order to prevail upon a claim of false arrest the plaintiff must prove essentially a claim for malicious prosecution. The difference between an action for false arrest and an action for malicious prosecution being that in the former the issue of probable cause is determined from the facts known by the defendant at the time of arrest and in the latter, the issue is whether the defendant officer either omitted material information or inserted false information in the application for an arrest warrant. The four elements of a false arrest claim are (1) that the defendant instigated a criminal prosecution against the plaintiff; (2) that the defendant acted without probable cause to believe the prosecution could succeed; (3) that the prosecution was begun with malice and (4) that the matter terminated in plaintiff's favor. Stancuna v. Iovene, J.D. New Haven, CV 06 05008100, (February 26, 2009).
Although the plaintiff pleaded a count alleging false arrest and a count sounding in false imprisonment, the applicable law for these two causes of action is identical. False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another. (Internal quotation marks and citation, omitted.) Outlaw v. City of Meriden, 43 Conn.App. 387, 392, 682 A.2d 1112 (1996).
The lack of probable cause is a critical element of both the plaintiff's malicious prosecution claim and false arrest claim under common law . . . and under 42 U.S.C. § 1983. In making a finding of probable cause, the trial court must determine whether the . . . evidence [offered] would warrant a person of reasonable caution to believe that the accused [had] committed the [charged offense]. Evidence is not required to rise to a significant level of trustworthiness in order to meet the probable cause standard. The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.
The issue in this case is whether the affidavit submitted by the defendants in support of their application for an arrest warrant, if corrected by adding the information omitted, and looking at the evidence in a light most favorable to the plaintiff's case, supports a reasonable belief that probable cause did not exist . . . Therefore, the plaintiff's case can succeed only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . (Internal quotation marks and citations, omitted.) Ham v. Greene, 248 Conn. 508, 537-39, 729 A.2d 740 (1999).
The defendants have advanced a number of defenses, including governmental immunity for discretionary acts, qualified immunity. Identifying the law applicable to the asserted defenses is problematic, because most or all of the defenses set forth in the defendants' answer and special defenses (#114.00) are either inapplicable (cannot be applicable) or not truly a defense. Therefore, to the extent these issues actually would need to be addressed in the course of a discussion of the merits of the plaintiff's claims, it is perceived to be appropriate to discuss them at this time, if briefly.
Governmental immunity under General Statutes § 52-557n generally does not apply in cases of intentional or otherwise aggravated misconduct; its focus is on negligence. See, e.g., Villages, LLC v. Longhi, 166 Conn.App. 685, 142 A.3d 1162 (2016) (focusing on subsection (c) which is applicable to boards and commissions). To the extent that the reference to qualified immunity is intended to be a different immunity concept, the same result is required;
In Villages, the court referred to the immunity under § 52-557n as a qualified immunity--presumably to distinguish it from the absolute immunity being claimed.
First, the issue of the application of federal qualified immunity to Tyler's § 1983 claims does not affect the judgments rendered on the common-law causes of actions for false imprisonment, intentional infliction of emotional distress and abuse of process. Qualified immunity may serve as a defense to civil suits brought pursuant to § 1983, but not to common-law actions predicated on intentional torts. Schnabel v. Tyler, 230 Conn. 735, 742, 646 A.2d 152, 158 (1994).
The defendants claim that the existence of probable cause and the existence of a signed warrant constitute a defense. This is not a true defense but rather a negation of an element of the cause of action, particularly when there is an overlay of issues as to the completeness and accuracy of the affidavit submitted in support of the warrant; Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). If, after appropriate " corrections" are made, there was probable cause, Ham, supra, then the plaintiff has failed to prove his case such that it is not necessary to reach any claimed defense.
Similarly, the invocation of the Family Violence Act as a defense serves no purpose as a defense. The purpose of a special defense is to assert facts which, even assuming that the plaintiff's allegations are true, would result in a diminution or total defense to the plaintiff's claims. Practice Book § 10-50; see, also, Practice Book § 10-52. Presumably, the defendants are relying upon General Statutes § 46b-38b(c) which provides: " No peace officer shall be held liable in any civil action regarding personal injury or injury to property brought by any party to a family violence incident for an arrest based on probable cause or for any conditions of release imposed pursuant to subsection (b) of section 54-63c." Again, this " defense" rises or falls upon the existence of probable cause; but if the plaintiff successfully proves the absence of probable cause, the statute clearly is inapplicable. In other words, while the statute is relevant in discussing the merits of the plaintiff's claims, to the extent that the statutory immunity cannot be applicable if the plaintiff has proven the elements of his cause of action because an element of the cause of action necessarily negates applicability of the statutory immunity, it does not serve the purpose of a true defense in this case.
The final (fifth) defense asserts a form of contributory fault: " The Plaintiff's injuries or losses, if any, were caused in whole or in part by its own conduct including negligent, intentional or reckless behavior." At best, it is not clear what this defense attempts to accomplish, assuming it is even a potentially viable defense. No facts are alleged, making the defense technically defective; Practice Book § 10-50. The court is unaware of anything alleged or for which evidence was offered relating to fault-worthy conduct post-arrest or even post-arrest-inducing conduct involving the plaintiff's mother. If the defendants are alluding to the conduct that was claimed to justify the arrest--and assuming that it might be a proper defense in some circumstances--again this would be a " defense" that would be negated if the plaintiff proves his case (unless the defendants believe that the plaintiff can or should be faulted for engaging in conduct that did not rise to the level of probable cause for an arrest).
Facts
Ordinarily, the concept of " facts" is relatively unambiguous--what actually happened? Here, however, the concept of " facts" operates on at least two levels. First, there is the question of what really happened with respect to the interaction between the plaintiff and his mother on October 11, 2012. The second aspect of " facts" relates to the involvement of the defendant police officer, and his preparation of an affidavit leading to the eventual arrest of the plaintiff--what were the " facts" surrounding his preparation of the affidavit, ostensibly establishing probable cause for the arrest of the plaintiff, which includes his sources of information which may or may not have been reliable with respect to the " facts" in the first sense? Indeed, each iteration of the " facts" from each side reflects material changes. The appropriate starting point (benchmark) is the affidavit submitted in support of the warrant application--for reasons that will become apparent, the entire affidavit, including boilerplate allegations in the first paragraph, needs to be recited:
1. The affiant, Officer Michael Pugliese, is a regular member of Norwalk Department of Police Services as of September 20, 2012, and is currently assigned to the Patrol Division. The affiant graduated from the P.O.S.T.C. in Meriden, Connecticut. The affiant has investigated numerous violations of Connecticut General Statues that have lead successfully to arrests and convictions. The following facts and circumstances are stated from personal knowledge and observations, as well as information received from fellow police officers acting in their official capacity and from statements made by credible witnesses.
2. This affiant, responded to 26 Monroe Street, for the report of the assault between son and mother. Upon arrival, this affiant met with complainant, Calimene Valcourt DOB [redacted]. Valcourt did not speak English and was also deaf so the events that occurred prior to our arrival were translated by her granddaughter, Vanessa Andre DOB [redacted].
3. That, Andre stated that Valcourt's son, Harry Francois DOB [redacted] was at his mother's residence to help move furniture. Andre stated that Harry had grabbed Valcourt by her sweater and had spun her around the room. Andre stated that Valcourt did not know the reason of what enraged Francois. Andre stated that Valcourt stated that she lost her breath when Francois was spinning her by her shirt.
4. That, Andre stated that Valcourt is scared for her safety if Francois returns. Andre stated that Valcourt expresses she is concerned for her safety because this is not the first time that an incident like this has occurred and that Francois has mental problems.
5. That, Andre stated that Francois left the scene approximately 10 minutes prior to our arrival. Andre stated that she did not know where Francois was living but was able to provide this affiant with a telephone number of [redacted]. This affiant attempted to contact Francois with negative results. This affiant left Francois a voicemail and is waiting to hear back.
6. That, this affiant respectfully requests that an arrest warrant for violation of C.G.S. 53a-182: Disorderly Conduct under CT Domestic Violence for a one, Harry Francois [redacted], last known address is 26 Monroe Street.
Focusing on " absolute" facts, the warrant application, including the above affidavit, was submitted to a prosecutor who signed off on it (indicating that it should be submitted to a judge), and it eventually was approved by a judge who issued the requested warrant. Eventually, the charges against the plaintiff were nolled, with the plaintiff being cautioned that the charges could be reinstated if he were to do anything inappropriate in the ensuing 13 months. (The plaintiff did not demand a trial or dismissal, as authorized by Practice Book § 39-30.)
After this action was commenced, and after the two individual officers were added as parties, a motion for summary judgment was filed on behalf of all of the then-defendants (#115.00). In support of that motion, an affidavit executed by officer Pugliese was submitted (#117.00 and #132.00 (redacted version)), and the recitation of event-related facts is almost identical to that set forth in his affidavit. One possible material difference relates to the information concerning the plaintiff's mental health--in the affidavit submitted in support of the motion for summary judgment, the defendant stated: " They related to us that this was not the first such occurrence involving Mr. Francois. It was stated that Mr. Francois had 'mental problems' though she declined to elaborate on this point." (It is not clear who " she" is in this statement, as there were three females at the scene while the officer was there--the plaintiff's mother, the plaintiff's sister, and the plaintiff's niece.) By contrast, in the warrant-affidavit, there is no indication of a refusal to " elaborate on this point."
In opposition to the motion for summary judgment, the plaintiff filed an affidavit, facially appearing to have been executed by his mother (the alleged victim). The affidavit, the substance of which is set forth below, effectively says (and perhaps oversimplified terms) that the incident described in the warrant application/affidavit did not occur, that the affiant ((the purported victim) never said to anyone that it had happened, and that the manner in which information was claimed to have been conveyed to the officer was an impossibility due to language-related issues. On this last point: although the affidavits executed by the defendant indicate that the alleged victim was communicating through her granddaughter, Vanessa, the affidavit of the alleged victim states that she and Vanessa have problems in communicating. The defendants do not seem to seriously dispute the fact that the actual chain of communication was through an unidentified (in either affidavit) intermediary, Vanessa's mother who is the alleged victim's daughter--who is deaf. Therefore, prior to trial, it appeared that the actual mechanism for communication--to the extent that there was any direct back-and-forth between the alleged victim and the officer--involved the alleged victim talking in Creole to her daughter who would read her lips, and the daughter in turn would translate from Creole into English, then communicating via sign language to Vanessa, who would convey the information obtained via sign language to the officer. (At trial, there was an additional overlay; the alleged victim indicated that she could speak and understand English to a limited extent and during her testimony exhibited a limited ability to understand and speak English (e.g., on at least one occasion, trying to answer a question in English).) The affidavit of the victim states:
She could not read English, relevant to the discussion, below, relating to the significance of her affidavit.
This is to testify that I have never told anyone, not Vanessa Andre, not my son, Dante Francois, not the Police, and certainly not the court that my son, Harry Francois, had choked me or has attempted to choke me on October 11, 2012. (1) Every statement Vanessa Andre made regarding the incident that took place on October 11, 2012 is absolutely false. (2) Vanessa Andre was not present at the time of the incident; she is not a witness to the incident and does not have any firsthand knowledge about the incident. (3) In addition, Vanessa Andre was not translating for me on October 11, 2012, and when she spoke to the Norwalk Police, she was telling them her own story, Vanessa Andre does not speak Creole and she cannot communicate well with me. (4) The Incident
On October 11, 2012, my son Harry Francois visited me at my residence located at 26 Monroe Street apt 4k, Norwalk, CT 06854. My son asked me to join him in prayer, as he usually does, I agreed, but I asked him not to touch my forehead when he prays for me. (5) However, my son Harry Francois insisted and as he prayed, he closed his eyes and put his right hand firmly on my left shoulder, which made me somewhat uncomfortable. 6) The prayer session ended without incident. (7) Shortly after Harry left, my son Dante, who resides in Queens, N.Y. called me to say Hallo and during the course of our casual conversation I mentioned to him how Harry insisted in praying for me today and that was when Dante became enraged and hung up the phone. (8) Shortly thereafter, about 25 to 30 minutes later, my daughter Marie Andre who is deaf, her husband, Alex Andre, who is also deaf, and her daughter, Vanessa Andre, showed up at my place and immediately they called Dante; as they were talking to Dante on the phone the Police knocked on the door, apparently, Vanessa had called the Police, but I never asked Vanessa to call the Police. (9) Vanessa is not a witness to any incident of violence between me and my son Harry Francois, and I have never told Vanessa that Harry had choked me or attempted to choke me. (10) The Police officers have ignored me completely, they did not attempt to talk to me at all, and my daughter Marie Andre told me to shut-up or I would be arrested. (11) However, before the Police officers left, I gave them my son Harry Francois' cell phone number, hoping they would contact him so he would explain things to them. (12) The Police also told me before they left not to speak to my son Harry Francois. (13) And finally, I have never told the Police that I was afraid of my son.
The plaintiff also contended, in opposing the summary judgment motion, that despite the officer's recitation of no response to his telephone call to the plaintiff, the plaintiff actually had called the police department on numerous occasions, and provided telephone records which he claimed represented the numerous efforts he made, immediately after receiving a message from officer Pugliese, to return the call. This discrepancy also was claimed to establish the lack of forthrightness of the officer in preparing his affidavit.
At trial, the version of events relating to transmission of information changed yet again (if modestly). Officer Pugliese testified that the line of communication was not strictly between Vanessa and the officer, but that some information was conveyed directly by the alleged victim, through broken English (essentially confirming the testimony of the alleged victim). He described something of a free-form discussion. To the extent that the alleged victim claimed in her affidavit (and her testimony at trial) that her daughter had told her to remain silent or that she might be arrested, the officer indicated that there had been at least somewhat limited communication from the alleged victim, i.e., she had not been totally silent. Conversely, there was no indication that he was aware that there had been any " intimidation" which might have impeded the candid flow of information from the alleged victim.
This issue relating to the alleged victim being afraid to speak was claimed to be significant to the extent that the alleged victim was aware that the officer was going to try to arrest the plaintiff (her son), yet the alleged victim remained silent, when speaking up (denying/challenging what Vanessa, her granddaughter, was saying) might have prevented her son from being arrested. This included both her claimed silence at the scene, and her testimony concerning her failure to call the police, later, to correct any misapprehension that they might have had. In a purely objective sense, the court might have great difficulty accepting that the alleged victim reasonably did/could have such a fear, but in a hybrid subjective-objective sense, the court has less difficulty in accepting the notion that the alleged victim, given her circumstances, might have reasonably believed that the possibility of her arrest was a matter of legitimate concern. (The court may understand how the threat might have impacted her, but that does not diminish the distortions caused by the claimed (unchallenged) misinformation conveyed to the officer.)
A proper understanding of what, if any, misinformation was conveyed requires the court to consider what really happened. Focusing particularly on what the alleged victim stated in her testimony at trial, and considering what she purportedly had said in her affidavit, the situation becomes murkier still.
The court used the phrase " what she purportedly had said in her affidavit" above, because the testimony at trial raised serious questions as to whether that affidavit actually was her sworn statement. The affidavit is written in English, and the undisputed testimony was that the alleged victim does not read English. She did not recall someone having read it to her. She was unsure where it was signed, initially saying that it had been signed in a bank, followed by testimony and colloquy involving the plaintiff suggesting it might have been in the courthouse (there is a typed reference to a court clerk as involved in the oath), with the overarching ultimate answer seemingly being that the document had been given to her by " the government" and therefore she signed it. The witness recognized her signature of the document, but everything else about her testimony indicated that she did not know what she had signed, where she had signed, etc. and apparently simply signed it because someone had asked her to sign it.
There is such a typed notation on the document. The document also appears to have a notary seal and an indication of an expiration of a notary's authority, suggesting that the reference to the court clerk had been simply a matter of copying a form with the actual oath being administered by a notary.
Further, there are discrepancies between the purported affidavit and her testimony--while the court is not surprised at having such discrepancies in general, those discrepancies take on a greater significance due to the multi-tiered language issues and the uncertainty (at best) as to how and when the affidavit actually was executed and whether the affiant actually knew what she was signing and whether she knew that she was signing under oath.
Most critical in terms of knowing what actually happened was the testimony relating to the interaction with the plaintiff, after he had asked his mother to pray with him, which she had indicated she did not want to do. (For the plaintiff, praying also usually involve laying on of hands.) In her testimony, she stated that in connection with the praying, the plaintiff had touched her on her right shoulder and also put his hand on her forehead. She stated that her reaction to this was that she had been upset at being touched. When Vanessa and her daughter Maria (Vanessa's mother) later arrived (along with Maria's husband), she had explained to them what had happened, including the fact that she had been upset with the plaintiff.
At trial, she seemed certain that it had been the right shoulder. The purported affidavit bearing her signature states that it had been her left shoulder.
The plaintiff was charged with disorderly conduct. General Statutes § 53a-182 provides, in relevant part, that " a person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: . . . by offensive or disorderly conduct, annoys or interferes with another person . . ." According to the plaintiff's mother, the alleged victim, she had made it clear that she did not want to pray with the plaintiff, he had insisted on laying hands on her as part of his prayer activity, and she had been upset by his doing so. It may be open to question as to whether the conduct was sufficiently extreme to rise to the level of criminal conduct to a beyond-a-reasonable-doubt standard--was it " grossly offensive, under contemporarycommunity standards, to a person who actually overhears it or sees it" P--but for purposes of probable cause, and especially in a family violence context, the evidence from the alleged victim, attempting to minimize the event if not exonerate the plaintiff, creates a baseline at which the lower threshold appears to have been satisfied.
State v. Musumano, 76 Conn.App. 724, 822 A.2d 261 (2003); State v. Andriulaitis, 169 Conn.App. 286, 150 A.3d 720 (2016).
Looking beyond the generally favorable-to-the-plaintiff testimony of the plaintiff's mother, and especially focusing on the seemingly reliable information provided at the scene, the existence of probable cause is more apparent. Before addressing those on-the-scene facts, a brief digression is appropriate.
The court, in evaluating the defendants' motion for summary judgment, may have come across as critical of the police officer's report and affidavit. The court recognizes that the preparation of police reports and affidavits is not the likely to be the same as the process by which commercial publications and judicial decisions are polished, repeatedly reviewed and revised, proof-read, etc. In the highly unusual situation presented here, where there were numerous possible or actual levels of interpretation, where there was a denial not only of the events but even the act of communication, etc., the court was required, and especially in the context of summary judgment, to give the plaintiff, as the non-moving party, the benefit of every possible (reasonable) inference. In that context, the lack of accuracy and completeness as to the chain of communication (with an explicit assertion that the (partial) chain identified in the affidavit could not have been used), the challenged claim of a lack of any response from the plaintiff to the telephone message left by the officer (with a claim of objective evidence that repeated efforts had been made to return the call), reinforced by a victim denying that anything had happened, potentially undercut the ability of the court to rely upon the officer's affidavit as establishing probable cause for purposes of this litigation, to a summary judgment standard. The court is now proceeding on a more complete evidentiary record, allowing the materiality of claimed or seeming discrepancies to be accurately gauged, and the standard of proof is more modest (and the actual burden of proof is on the plaintiff).
To the extent that General Statutes § 46b-38c is a central theme in this case (at least from the defendants' perspective), a brief review of the statute and its origins is in order. The statute is indicative of a strong public policy as reflected by the history that led to the initial enactment of § 46b-38c. As recited in State v. Fernando A., 294 Conn. 1, 53-55, 981 A.2d 427 (2009):
The present statutory scheme . . . reflects the very type of careful balancing of society's interests--in this context, the interest in protecting victims of family violence from further intimidation and abuse--against the rights of the accused that Patterson deemed to be appropriately the province of state legislatures. Section 46b-38c was passed as part of Public Acts 1986, No. 86-337, entitled, " An Act Concerning Family Violence Prevention and Response" (act). The legislative history of the act makes clear that its primary purpose was to implement a comprehensive system that would most effectively intervene in instances of domestic violence to protect victims from further harm, but not at the expense of the rights of defendants. The act effected a significant change in the state's criminal law, creating many procedural safeguards and services, both for victims of family violence and offenders, that had not before been available in this state. Astrida Olds, the chair of the governor's task force on family violence, testified before the judiciary committee that the act was " intended to create an environment for effective intervention in cases that clearly have become official public matters." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1986 Sess., p. 509. The act mandated " uniform procedure[s] for every police department to govern their responses to family violence incidents, " created family violence intervention units that " would immediately take on each case, assess it and provide recommendations to judges on prosecution and victim services, " required that a defendant's court appearance take place at the next court date, and instituted, for the first time, " offender services in the form of a program of education for batterers." Id., at p. 511, remarks of Astrida Olds. In his summary of the proposed legislation, Representative William L. Wollenberg stated succinctly that " it's an attempt to prevent family violence." 29 H.R. Proc., Pt. 14, 1986 Sess., p. 5254. Speaking in support of the bill, Representative Pauline R. Kezer stated that the law would make " a meaningful change in public policy that will reduce and prevent domestic violence. It has been shown that similar measures in other states that have been taken have indeed reduced the rate of return visits by policemen to the homes in terms of domestic violence." Id., at p. 5259. Representative Patricia A. Dillon, also speaking in support of the bill, recognized that " [it is] a very, very delicate balance and I'm sure that we're doing this without endangering the rights of the defendant . . ." Id., at p. 5269. The statutory scheme constructed by the legislature is an example of careful and subtle balancing in response to the peculiar difficulties presented to the state criminal justice system by victims and offenders who often live together, are married and intimately involved with each other. The solution crafted by the state legislature evidences precisely the state expertise that persuaded the United States Supreme Court, in Patterson and Medina, that matters of criminal procedure, in the absence of a showing that those procedural rules offend some deeply rooted principle of justice, are properly the task of the state legislature, not the courts.
Earlier in Fernando, the court had noted that § 46b-38c " was enacted in 1986 in response to the domestic abuse of Tracey Thurman, a woman whose local police department had failed to aid her after repeated beatings by her former husband, " 294 Conn. at 18. See also, Thurman v. City of Torrington, 595 F.Supp. 1521 (D.Conn. 1984). Historically, a decision concerning whether to arrest was entrusted to the broad discretion of the police officer on the scene, based on the circumstances presented (assuming that there was probable cause), see, e.g. Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982); Public Acts 1986, No. 86-337 changed--effectively eliminated--that discretion in the context of domestic violence, enacting what is now codified as General Statutes § 46b-38b(a):
Whenever a peace officer determines upon speedy information that a family violence crime has been committed within such officer's jurisdiction, such officer shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime. The decision to arrest and charge shall not (1) be dependent on the specific consent of the victim, (2) consider the relationship of the parties, or (3) be based solely on a request by the victim . . .
Thus, § 46b-38b, incorporating definitions from § 46b-38a, mandates an arrest when there is probable cause (" shall arrest"), superseding the otherwise generally-applicable discretion of an officer as to whether to make an arrest or take other appropriate action; Shore, supra . Although not technically accurate, the statute and the underlying public policy seem to encourage an arrest in borderline circumstances, circumstances where absent a statutory mandate to arrest, the tendency might be to err on the side of non-arrest. The statute specifically identifies and largely negates considerations that historically/anecdotally often had been the rationale for non-arrests in the past--the nature of the relationship between the parties and whether the (alleged) victim wanted or affirmatively did not want the (alleged) assailant arrested.
Synthesizing all of the foregoing, the court must conclude that based on the information known and available to the officer at the time of the arrest, based on the complete record presented at trial, there was probable cause for the arrest.
The police department (E-911 center) had received a call reciting that assaultive conduct had occurred. On arrival, the officer was given information from a relative of the alleged victim, confirming an assault. The alleged victim was present, communicated at least to a limited extent directly with the officer, was aware that the police were likely to arrest her son based on the information being provided to the officer by other family members, and remained silent with respect to correcting any misstatements perceived to have been made (as to what actually had happened). At trial, the victim confirmed that the plaintiff had touched her (laying on of hands) against her wishes as part of his praying, and that she had been upset by his doing so.
The officer generally-accurately wrote up what had happened and what he had been told (with the notable exception of gaps and errors in reciting the manner of transmission of information) and made a reasonable effort to contact the plaintiff by telephone. The normal process of having the affidavit/warrant-application reviewed by a prosecutor before submission to a judge had been followed, and the application for a warrant had been approved by a judge.
Many of the errors identified by the plaintiff are immaterial, without any bearing on the existence of probable cause. The misspelling of the victim's name on occasion, for example, is of no consequence, as was a possible error in a date of birth. The errors and omissions in the report relating to the chain of communications and the different communication impediments was a source of problems but did not directly impact what was told to the officer in substance. In other words, the recitation of information possessed was substantially correct but the recitation of the manner of acquisition of the information was substantially flawed prior to trial.
The reference in the affidavit to " negative results" relating to the attempt to contact the plaintiff by telephone was not inherently indicative of a claim of more than one attempt to contact the plaintiff--it is a colloquial expression for the absence of anything positive as a consequence of some antecedent conduct. Similarly, the plaintiff points to the boilerplate in the first paragraph of the affidavit, and its limited applicability to the facts of this case (e.g. the reference to information from other officers), as indicative of inaccuracies in the affidavit, rather than recognizing it for the introductory boilerplate that it actually was. (There was some exploration, via testimony, of the actual experience and background of the defendant/affiant.) These and other criticisms by the plaintiff reflect a proofreading-level quality of review of the affidavit, perhaps idealistic but not necessarily practical, and except as noted, not material.
More substantively, the plaintiff questioned the lack of response to his multiple telephone calls to the police department, after he learned that the defendant officer had called him. The officer testified, credibly, that none of the numbers called by the plaintiff, as reflected in telephone records, was a direct line to him or a general departmental number. There may have been literal as well as metaphorical communications problems, but the situation does not undercut the validity of the recitation of the officer about not having heard back from the plaintiff, prior to submission of the warrant application.
The affidavit from the alleged victim, substantially recanting much of what she supposedly had said through family members on the date of the incident, has been discussed, above. Aside from the inherent questions that may arise concerning the weight to be given to a document that effectively was a recantation of a prior (claimed) statement, Shabazz v. State, 259 Conn. 811, 830, 792 A.2d 797, 808 (2002), the affidavit, itself, is suspect. As already noted, the alleged victim, herself, testified in a manner undercutting the credibility of the contents of that document, given her lack of understanding of what it was that she had signed (the substance of the affidavit, that it was signed under oath, its purpose, etc.). In submitting the affidavit to court in opposition to the defendants' motion for summary judgment, the plaintiff effectively had adopted it--and under the circumstances, it seems that the only plausible inference is that the plaintiff had drafted it.
The court cannot overstate the importance of the testimony at trial that the alleged victim had understood at least some of what had been said to the officer and had communicated, at least in part, to the officer. If the alleged victim had been unaware of what was being told to the officer (in English) and was unable to communicate at all to the officer (in English), then her failure to question or dispute what had been told to the officer by family members would be understandable and innocuous. But the evidence was that she did understand at least some of what was being said, including accusations of conduct that she understood likely would lead to the plaintiff's arrest, and she did participate in at least a limited fashion in discussions--making it reasonable for the officer to treat the information provided by family members as reliable, at least to the extent of not being disputed by the alleged victim herself who had been present during the family member recitation.
The determination of probable cause for a warrant is based on a " totality-of-the-circumstances analysis" where the reliability of the source(s) of information plays a key role. State v. Johnson, 286 Conn. 427, 437, 944 A.2d 297, 305 (2008). These events occurred in the alleged victim's apartment, and the alleged victim is not accused of wrongdoing, but the facts otherwise have many of the indicia of an adoptive admission--statements were made in her presence asserting events that she now disputes, the import of which she then understood, and of a nature that she would have been expected to dispute promptly when the statements were made if she had disputed them. See, e.g., State v. Canady, 297 Conn. 322, 341-42, 998 A.2d 1135, 1147 (2010). If this were a trial on the merits of what actually happened, the weight, if any, to be given to her silence is uncertain (as would be the relevance of her silence). But in connection with the issue of what the officer reasonably believed, given the totality of the circumstances, the silence, for whatever reason, could only tend to confirm the belief that the events recited by the alleged victim's granddaughter were reasonably accurate and reliable.
The court, then, must conclude that the plaintiff has failed to establish a lack of probable cause associated with his arrest--the defendant officer who prepared the warrant application, including an affidavit supporting the application, had probable cause to follow through with that process, which defeats the plaintiff's claim for relief (while perhaps redundantly establishing the defenses that are premised on the existence of probable cause).
Conclusion
The court does not know what actually happened, in an absolute sense, on October 11, 2012. Further, the court does not have to make findings as to what (probably) actually occurred on October 11, 2012. The task of the court, in connection with this proceeding, is to determine whether the defendant police officer had probable cause when he submitted an arrest warrant application which ultimately was issued. While ordinarily the court might simply look to the fact that a judge actually signed the warrant application as establishing probable cause for this purpose, as identified in prior pleadings and motions, enough questions were raised that the court could not rely on such an earlier determination, given the Franks implications of the plaintiff's version of what did and didn't happen as seemingly supported by the purported affidavit from the alleged victim.
The court was not presented with any evidence relating to the family dynamics that led to the situation presented to the court. Did the alleged victim accurately recite/report what had happened to her family members, who in turn reported to the police officer, such that the affidavit was based on what actually had happened, necessarily implying that only later did the alleged victim change her story? Or, is there sufficient hostility within the family that the alleged victim's daughter and granddaughter exaggerated the truth (or fabricated a story) that implicated the plaintiff in criminal activity (even if only minimally), i.e., an assault on the alleged victim, downgraded by the officer to disorderly conduct? Or. were the events somewhere in between? The family dynamics appear to be almost as complex as the lines of communication encountered by the officer in the course of this investigation.
The criminal justice system is not perfect, and only in the most egregious circumstances (false arrest, malicious prosecution, etc.) can a wrongfully-accused party obtain recourse. (In the scenarios described in the preceding paragraph, if there had been fabrication, then the individuals--the plaintiff's relatives--involved in such a fabrication might have been amenable to such recourse.) Here, the investigating officer had probable cause for the arrest, and however imperfectly he may have prepared the relevant paperwork, those errors would seem to be attributable to nothing more than possible carelessness/inadvertence (or work-overload)--certainly not malice.
For all these reasons, then, judgment enters in favor of all defendants.
One of the complaints of the plaintiff with respect to the police report and affidavit submitted in support of the warrant application is that the role of officer Kellogg had been minimized to the extent that the plaintiff felt it might have been intentional. The evidence at trial indicated that officer Kellogg did, in fact, play a truly minimal role in these events.