search and seizure

Here's a piece I wrote for the Connecticut Law Tribune about a lawsuit alleging a police officer in Connecticut went too far when stopping two black men:

When two black brothers were pulled over by a cop in the city of New London, the officer frisked them both, allegedly touching their genitals and their buttocks. When one of them protested and turned around during the pat down, he was arrested for interfering with the police officer.

Now four years later after that October 2011 traffic stop, U.S. District Judge Janet C. Hall has ruled that there is enough evidence to to go to trial on the allegations that what happened to Donald Gilbert, the driver of the vehicle pulled over by Officer Roger Newton, and Andre Gilbert, the passenger in his brother's vehicle, were part of policy by New London police to arbitrarily stop motor vehicles and arbitrarily arrest people.

Hall found that the two brothers' case could survive summary judgment because they have produced evidence of several New London residents complaining of how they were treated by police during traffic stops and that their cars were searched without any justifiable legal reason. Newton also is being sued individually.

Donald Gilbert complained that Newton had touched him inappropriately during a search in May 2010—almost a year-and-a-half before his brother and he were pulled over and allegedly molested by Newton. Another man also alleged that a different officer, when stopping him while he was driving in New London in 2014, "put his hand underneath my crotch and squeezed my testicles." The plaintiffs also argued that the video of the stop by the two Gilbert brothers has been used by state prosecutors to train the police officers in New London how not to do pat downs.

"A reasonable jury could find that New London was deliberately indifferent to its officers' practice of making traffic stops without reasonable suspicion of any wrongdoing, following such traffic stops with overzealous (to put it gently) pat-down searches, and searching citizens' cars without a legal basis for doing so," Hall opined.

The issue of law enforcement stopping minorities without reasonable suspicion and arresting them without probable cause has come into the national limelight after the U.S. Department of Justice found that racial bias was endemic in how the Ferguson Police Department in Missouri treated black residents. The issue previously arose in Connecticut, where East Haven police were accused of profiling Latino drivers for traffic stops and subsequent arrents. Those allegations led to federal investigations, criminal prosecutions and civil lawsuits.

In Newton's affidavit filed with the police department about the 2010 stop, he stated he had been sitting in his parked car talking on his cell phone. But Newton had him step out of the car to be frisked and "'patted me down twice sticking his fingers in my a-- … I do not believe that the officer had the right to violate me."'

New London Captain Steven Crowley said that Newton had gone over the line in the 2010 incident, even though Newton said he thought Gilbert might be involved in drug-dealing. "If [Gilbert] had consented to the initial actions, he clearly had made his feeling well know during the pat down that he was not comfortable with being touched by Newton," Crowley concluded, according to court papers.

In an interview, Newton's counsel, Elliot B. Spector of Hassett & George, said that his client recognized the Gilberts as "well-known drug dealers" and that it is known that people can conceal weapons near their private parts.

When the case goes to the jury, it will be an issue of whether it was reasonable for Newton to conduct the patdowns on the Gilberts in the way he did, Spector said. And whether it was reasonable will be "left to an issue of credibility," he said

The plaintiffs also showed that the New London deputy police chief, when reviewing another man's complaint against Newton, said "the enforcement of seemingly minor motor vehicle offenses is a proven tool in the efforts to curb crime and [drug] trafficking."

New London officials acknowledged providing training to Newton about the legal basis for using force, stopping motor vehicles and search and seizure. The city said it had no knowledge that there was any practice by its police officers of conducting arbitrary motor vehicle stops or arbitrarily arresting people without probable cause.

Hall also said that the plaintiffs are entitled to damages if they can prove at trial that their state constitutional rights to be free from unreasonable searches and seizures and to not be arrested unless "clearly warranted by law" were violated.

The federal judge rejected a ruling by the Connecticut Appellate Court that only "egregious" violations of people's rights under the state Constitution are compensable. She noted that federal judges in Connecticut have been of different minds on whether the Connecticut Supreme Court's 1998 ruling in Binette v. Sabo means that citizens can sue for money damages every time their rights to be free of unreasonable searches and seizures and illegal arrests are violated.

Hall predicted that the Connecticut Supreme Court would rule that all constitutional violations "give rise to a private cause of action, whether the offending conduct is egregious or merely unreasonable."

Discovery has closed in the case, and the judge said that the Gilberts' counsel did not produce enough evidence that they were being racially profiled or that the police department intentionally discriminates against minorities.

Spector said there was no evidence of discriminatory motivation by his client and he is gratified that claim was dismissed. Newton has moved out of state and is longer with the police department, Spector said.

The brother who was arrested by Newton with interfering with an officer had that charge nolled.

John W. Cannavino Jr. and Jonathan C. Zellner, of Ryan Ryan Deluca, in Stamford are representing the city. Cannavino declined comment. The Gilberts are being represented by Conrad O. Seifert, of Seifert & Hogan in Old Lyme. Seifert declined comment.