throbber
Case 2:08-cv-03225-DRH-WDW Document 95 Filed 04/16/14 Page 1 of 68 PageID #: 1547
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`------------------------------------X
` AMENDED*
`MARTIN TRETOLA, MARBLES ENTERPRISES,
`INC. d/b/a T&T GUNNERY, MEMORANDUM AND ORDER
` 08-CV-3225 (DRH)(WDW)
`Plaintiffs,
`
`-against-
`COUNTY OF NASSAU, POLICE OFFICER
`FALTINGS,
`
`Defendants.
`
`------------------------------------X
`A P P E A R A N C E S:
`For Plaintiffs:
`Friedman, Harfenist, Kraut
`& Perlstein LLP
`3000 Marcus Avenue
`Suite 2E1
`Lake Success, New York 11042
` By: Charles H. Horn, Esq.
` Steven J. Harfenist, Esq.
`For Defendants:
`Nassau County Attorney's Office
`One West Street
`Mineola, New York 11501
` By: Joseph Nocella, Esq.
` Ralph J. Reissman, Esq.
`HURLEY, Senior District Judge
`Martin Tretola, Marbles Enterprises, Inc. d/b/a T&T
`Gunnery, brought suit against the County of Nassau and "Police
`Officer Faltings," alleging that he was falsely arrested for
`reckless endangerment on June 1, 2007 and was thereafter
`maliciously prosecuted for that purported offense. The case
`1
`
`* The caption of this opinion has been modified to name "County
`of Nassau" instead of "County of Suffolk" as a defendant.
` The amended complaint filed on December 2, 2011 contained a
`1
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`

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`was tried before a jury over a period of six days in August of
`2012, at the conclusion of which the jury returned a verdict in
`plaintiffs' favor for $5,000,000, consisting of $2,000,000 in
`compensatory damages and $3,000,000 in punitive damages.
`Presently before the Court is defendants' motion, made
`pursuant to Fed. R. Civ. P. 50(b), seeking a vacatur of that
`judgment in toto as a matter of law or, in the alternative, for
`either a new trial pursuant to Rule 59 or a conditional order of
`remittitur to reduce as excessive the compensatory and punitive
`damage awards. For the reasons set forth below, defendants' Rule
`50(b) and Rule 59 motions are denied. However, the application
`for a conditional order of remittitur is granted.
`BACKGROUND
`Martin Tretola ("plaintiff" or "Tretola") is the owner
`2
`and operator of Marbles Enterprises, Inc. d/b/a T&T Gunnery ("T&T
`Gunnery") which is in the business of selling and repairing
`firearms. It has two places of business, one being in Seaford
`and the other in Garden City, both in Nassau County, New York.
`
`number of additional claims asserted against both the County of
`Nassau as well as the individual officer. However, for reasons
`not presently germane, only the two above listed causes of action
`were pursued by plaintiffs and submitted to the jury. Tr. at
`218.
`
`2
`
` Although both Tretola and Marbles Enterprises, Inc. are
`listed in the caption as plaintiffs, I will use the singular term
`"plaintiff" henceforth throughout this decision referring to
`Tretola for simplicity sake since he, as distinct from the
`corporation, is the primary aggrieved party.
`
`-2-
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`

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`Given the nature of T&T Gunnery's business, its stores are
`subject to unannounced inspections being conducted by, inter
`alia, members of the Pistol Licensing Bureau of the Nassau County
`Police Department. Tr. at 136.
`I. Facts Pertaining to Tretola's Arrest for Reckless
` Endangerment
`"Police Officer Faltings," whose first name is Eric,
`(hereinafter "Faltings"), is a Nassau County police officer,
`assigned to the Pistol Licensing Bureau. On May 9, 2007
`Faltings, as well as representatives from (a) the Nassau County
`Fire Marshal's Office, (b) the Federal Bureau of Alcohol Firearms
`and Tobacco ("ATF"), (c) the Hempstead Building Department and
`(d) the Nassau County Bomb Squad conducted a joint inspection of
`T&T Gunnery's Seaford facility. As a result of that inspection,
`a number of summonses were issued including one by Fire Marshal
`Szymanski charging Marbles Enterprises, Inc. with having
`"Numerous Portable Fire Extinguishers Throughout the Premises
`That Have not Been Serviced as Required." (Defs.' Ex. A at 3.)
`Marble Enterprises, Inc. pled guilty to a lesser included offense
`in the Hempstead District Court of Nassau County on June 26,
`2007. (Defs.' Ex. B.) The disposition of the other summons
`issued on May 9th is unclear.
`Principal among the observations made by Faltings on
`May 9th was the location of what appeared to be a gas heater –
`seemingly fueled by an active gas line – in close proximity and
`
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`on the same wall as two "bullet traps" with surrounding
`3
`indentations evidencing "bullet strikes." Tr. at 172. Faltings
`perceived that combination as "an extremely hazardous condition."
`Id. at 170. Based on that perception, considered in conjunction
`with Tretola's acknowledgment that he used the bullet traps in
`operating his business, id. at 179-81, Faltings believed he had
`probable cause to arrest plaintiff for reckless endangerment in
`the first degree in violation of New York Penal Law Section
`120.25. For some unexplained reason, the arrest was not made on
`4
`the date of the inspection, i.e. May 9th, but rather three weeks
`thereafter on June 1st.
`In making the arrest, Faltings assumed that the gas
`heater was operational. Tr. at 178-79. In fact, it was not. It
`had been disconnected from the outside gas meter more than a
`decade earlier. Tr. at 229. That fact, however, was not
`communicated verbally or otherwise to Faltings on or before May
`9, 2007.
`As to the period from the May 9th inspection to the
`June 1st arrest, defendants state that "there was never any
`
`3
`
` As explained by Tretola, a bullet trap is "about 16
`inches square" and is used primarily "to shoot shotgun[s] and . .
`. handgun[s] into" it for test firing purposes. Tr. at 313-14.
` New York Penal Law § 120.25 provides: "A person is guilty
`of reckless endangerment in the first degree when, under
`circumstances evincing a depraved indifference to human life, he
`recklessly engages in conduct which creates a grave risk of death
`to another person."
`
`4
`
`-4-
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`

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`testimony at trial that Faltings was ever made aware [during that
`time frame] that the gas line may have been inactive, if indeed
`it was." (Defs.' Mem. in Supp. at 12.) However that statement,
`although not controverted by plaintiff, is incorrect. Tretola
`testified that when he was contacted while upstate by Faltings
`after May 9th and told to return to Nassau County by June 1st so
`that he could be arrested for reckless endangerment, plaintiff
`stated, albeit cryptically and to no avail, that the contemplated
`charge was bogus since "there is no gas in the pipe." Tr. at
`353-54. Be that as it may, however, Faltings, based on his
`observations of May 9th at T&T Gunnery, arranged for Tretola to
`be arrested at the Seventh Precinct on that June 1st date absent
`any effort on his part to determine the validity of Tretola's
`assertion about the operational status of the heater.
`The core of the background information thus far recited
`is largely undisputed. The same may not be said of the events
`triggering the May 9, 2007 multiple agency inspections.
`Defendants produced evidence suggesting that (1) law
`enforcement's focus on T&T Gunnery started with Detective Loretta
`Brennan's ("Brennan") inspection of the business's "second hand
`dealers book" on April 10, 2007 during which she discovered
`certain bookkeeping errors regarding two weapons that Tretola had
`not "put into his long gun book" id. at 709; (2) since the "long
`gun book is what pistol licensing checks," id., she provided
`
`-5-
`
`

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`"Officer Leahy" of the Pistol Licensing Bureau with "a copy of
`the pages of the secondhand book where [she] found the two
`purchases that weren't in the long gun book" id. at 710; (3)
`Detective Kevin Haig ("Haig"), then "a supervisor in pistol
`licensing" remembered Faltings receiving the materials from
`Brennan, rather than Officer Leahy; in any event, Haig testified
`that he, not Faltings, was primarily responsible for the May 9,
`2007 inspections at T&T Gunnery. Id. at 734-38.
`Plaintiff's view of the evidence and corresponding
`arguments to the jury painted a totally different picture with
`Faltings orchestrating the May 9th "raid" with the overriding
`purpose being, pure and simple, to punish Tretola. And "raid,"
`construing the evidence most favorably to plaintiff, is an apt
`term. As explained by Hank Brehl ("Brehl"), Tretola's landlord,
`the "whole street" upon which T&T Gunnery fronted was cordoned
`off and "there were all sorts of agencies going into the store."
`Tr. at 234. The scene was one of "[c]haos" with "ATF", "DEC" and
`"the building department" among the multiple agencies on hand.
`Id. at 235. "[E]veryone," Brehl opined, "was following it on the
`news. It was kind of a big happening." Id. at 237.
`Ample evidence is in the trial record to support
`plaintiff's view, beginning with a heated verbal exchange between
`Tretola and Faltings said to have occurred in "late 2006." Tr.
`at 330. At that time, Faltings asked Tretola to condense the
`
`-6-
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`paperwork in a particular case by eliminating one step in the
`process that Tretola believed was legally required for an out-of-
`state permit holder to possess a weapon in New York State. Id.
`at 330-32. Faltings felt that Tretola's position was unsound,
`id. at 99, but rather than arguing the point further, he gave
`Tretola "permission" to proceed absent the document which was the
`subject of the dispute, a so-called "purchase document." Id. at
`332. Tretola refused to do so unless furnished with written
`authorization, which Faltings declined to provide. In the end,
`Tretola's understanding of the necessary procedure was
`implemented by the out-of-state gun owner and the matter
`seemingly concluded. Id. at 99-100. However, such was not the
`case.
`
`Afer Tretola spoke to Faltings, Faltings understood
`that Tretola told a T&T Gunnery employee that Faltings, in
`effect, did not know what he was talking about and was a "fucking
`asshole." Tr. at 103. That employee inexplicably relayed
`Tretola's assessment to Faltings. Id.
`Several months later, sometime in "February 2007,"
`Tretola had occasion to be in the public area of the "pistol
`licensing section" of the police department. Id. at 183.
`Faltings, upon spotting Tretola, called him into a different
`section of the office, whereupon he pronounced "you will not
`refer to me as a fucking asshole or anybody else in this office
`
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`

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`as a fucking asshole. Am I making myself perfectly clear?" Id.
`at 125-126. Such utterances and conduct, Faltings explained
`would "not be tolerated." Id. at 126. Indeed, at trial,
`Faltings characterized his February 7th conversation with Tretola
`as an "admonish[ment]," much like he had given to "many other
`licensees" previously. Id. at 130.
`Less than two months after Faltings took it upon
`himself to scold Tretola, Officer Brennan checked T&T Gunnery's
`records as previously explained. Although she took no immediate
`action herself in response to the irregularity encountered, she
`relayed the information to the pistol licensing section. That
`event, plaintiff posits, was the catalyst that permitted Faltings
`to severely punish Tretola for his temerity in (1) vociferously
`refusing to consummate a gun transaction absent a required
`purchase document and (2) in thereafter challenging the officer's
`competence.
`Faltings's conduct at T&T Gunnery on May 9, 2007 cannot
`be written-off as all in a days work. From the time he started
`in pistol licensing in "January of 2001," Tr. at 82, through to
`the time of his deposition in this case, to wit October 28, 2009,
`Faltings had made only one arrest, that being the arrest of
`Tretola on June 1, 2007. Id. at 164-65. He had, of course,
`conducted a number of inventory inspections of licensed premises
`over the years. But in none of those did he ask members of ATF
`
`-8-
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`

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`or of the local building department to join him in a joint
`inspection as he did here. Id. at 150-52. In fact, it appears
`that the intensity and scope of May 9th inspections were
`unprecedented in Faltings's experience as a member of the pistol
`licensing section.
`II. Facts Pertaining to Tretola's Malicious Prosecution Claim
`Who arranged for the May 9th inspections at T&T Gunnery
`was disputed at trial. The thrust of Haig's testimony was that
`he, as a supervisor in the pistol licensing section, was
`responsible. However, there was abundant evidence as earlier
`outlined, demonstrating that the May 9th inspections were
`attributable, in least in significant part if not totally, to
`Faltings.
`
`It is undisputed that Faltings was the "arresting
`officer" for, as he explained, he signed the June 1, 2012 felony
`complaint and swore to its accuracy. Tr. at 164; see also Tr. at
`131. Faltings also took it upon himself to direct Tretola to
`return to Nassau County from upstate New York for purpose of
`being arrested at 7:00 a.m. on June 1st at the Seventh Precinct.
`Tr. at 353-54.
`At this point and against the above background
`information, attention will now be directed to the legal
`standards governing the relief sought by defendants, followed by
`statements of the parties' respective positions and the Court's
`
`-9-
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`

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`analysis of those position.
`
`DISCUSSION
`
`I.
`
`Legal Standards
`A.
`Motion for Judgment as a Matter of Law – Rule 50(b)
`"The standard governing motions for judgment as a
`matter of law [ ] pursuant to Rule 50 [of the Federal Rules of
`Civil Procedure], formerly denominated motions for directed
`verdict or motions for judgment notwithstanding the verdict, is
`well established." Galdieri-Ambrosini v. Nat’l Realty & Dev.
`Corp., 136 F.3d 276, 289 (2d Cir. 1998)(internal citation
`omitted). A Rule 50 motion "'may only be granted if there exists
`such a complete absence of evidence supporting the verdict that
`the jury’s findings could only have been the result of sheer
`surmise and conjecture, or the evidence in favor of the movant is
`so overwhelming that reasonable and fair-minded [persons] could
`not arrive at a verdict against [him].'" Kinneary v. City of New
`York, 601 F.3d 151, 155 (2d Cir. 2010)(alterations in
`original)(quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127,
`133 (2d Cir. 2008)). In considering the motion, "[a] court 'must
`give deference to all credibility determinations and reasonable
`inferences of the jury,' and may not weigh the credibility of
`witnesses or otherwise consider the weight of the evidence."
`Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir.
`2000)(quoting Galdieri-Ambrosini, 136 F.3d at 289); see also
`
`-10-
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`

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`This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998)(The
`issue on a Rule 50 motion is whether "'the evidence is such that,
`without weighing the credibility of the witnesses or otherwise
`considering the weight of the evidence, there can be but one
`conclusion as to the verdict that reasonable [persons] could have
`reached.'")(quoting Cruz v. Local Union No. 3, Int’l Bd. of Elec.
`Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994)).
`B.
`Motion for a New Trial – Rule 59
`A "motion for a new trial 'ordinarily should not be
`granted unless the trial court is convinced that the jury has
`reached a seriously erroneous result or that the verdict is a
`miscarriage of justice.'" Patrolmen’s Benevolent Ass’n of City
`of New York v. City of New York, 310 F.3d 43, 54 (2d Cir. 2002)
`(quoting Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.
`1998)). "A new trial may be granted, therefore, when the jury’s
`verdict is against the weight of the evidence." DLC Mgmt. Corp.
`v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998). "Unlike
`judgment as a matter of law, a new trial may be granted even if
`there is substantial evidence supporting the jury’s verdict."
`Id. at 134; accord Manley v. AmBase Corp., 337 F.3d 237, 244 (2d
`Cir. 2003). On a motion for a new trial pursuant to Rule 59, a
`court may weigh the evidence and need not view the evidence in a
`light most favorable to the party that prevailed at trial. See
`Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992).
`
`-11-
`
`

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`Indeed, "the district court is permitted to 'examine the evidence
`through its own eyes.'" Green v. City of New York, 359 Fed.
`App'x 197, 199 (2d Cir. 2009) (summary order) (quoting Meloff v.
`New York Life Ins. Co., 240 F.3d 138, 147 (2d Cir. 2001)). "A
`court considering a Rule 59 motion for a new trial must bear in
`mind, however, that the court should only grant such a motion
`when the jury’s verdict is egregious. Accordingly, a court
`should rarely disturb a jury’s evaluation of a witness’s
`credibility." DLC Mgmt., 163 F.3d at 134 (internal quotation
`marks and citations omitted).
`II. Listing (With Analyses to be Provided, Infra)
` of Parties' Arguments Regarding Jury's Liability
` Determinations
`
`A.
`Defendants' Arguments as Movant
`In seeking relief from the jury's liability finding,
`defendants advance two alternative arguments with respect to the
`false arrest claim: (1) Tretola's June 26, 2007 plea of guilty to
`a lesser included offense under the Fire Code appearance ticket
`issued to Marbles Enterprises, Inc. by Fire Marshal Szymanski on
`May 9, 2007 provides probable cause for the reckless endangerment
`arrest ("First Argument"), and (2) the bullet strikes on the wall
`near what appeared to be a gas-fired heater and accompanying fuel
`line also provided probable cause for that arrest ("Second
`Argument"). Should the Court conclude otherwise, arguable
`probable cause existed to arrest Tretola thereby, defendants
`
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`argue, insulating Faltings from personal liability under the
`federal causes of action.
`With respect to the malicious prosecution claim,
`defendants contend "that the District Attorney's Office, not
`Faltings, determined to prosecute, and continued to prosecute,
`Tretola after the arrest on June 1, 2007." (Defs.' Mem. at 17.)
`B. Plaintiff's Arguments in Opposition
`Plaintiff contests the substance of defendants' First
`Argument regarding the false arrest claim on several disjunctive
`grounds, including that the corporation Marbles Enterprises, Inc.
`was the sole named defendant in People v. Marbles Enterprises,
`Inc., and, accordingly, its plea to the charge does not represent
`an admission by the plaintiff Tretola. That ground, as discussed
`infra, is dispositive of the issue thereby rendering plaintiff's
`alternate arguments academic.
`With respect to defendants' Second Argument directed at
`plaintiff's false arrest claim, plaintiff contends that
`defendants' probable cause argument concerning the reckless
`endangerment arrest is flawed because (1) it fails to address the
`elements of the crime charged including its mens rea requirement,
`(2) absent from the record is evidence indicating that Tretola
`discharged firearms in close proximity to the perceived gas meter
`and gas lines, (3) allowing others to utilize a firearm testing
`facility does not permit a reckless endangerment charge being
`
`-13-
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`leveled against the owner or operator of the facility, and (4)
`the reckless endangerment charge was fatally flawed from the
`outset due to "factual impossibility" attributable to the absence
`of gas in the lines.
`In addition to the just listed arguments highlighted in
`plaintiff's post-trial Memorandum of Law in Opposition,
`plaintiff, in opposing defendants' Rule 50(a) motion at trial,
`articulated the position that it was for the jury to decide
`whether a reasonable police officer would have endeavored to
`determine whether there was gas in the lines as part of the
`probable cause assessment instead of arresting plaintiff without
`such further investigation. As will be explained infra, the
`answer to this last question is pivotal to a resolution of the
`present dispute particularly with respect to the legitimacy of
`the jury's false arrest determination.
`Plaintiff's position concerning the availability of
`qualified immunity vis-a-vis Faltings's involvement in Tretola's
`false arrest is essentially as follows: (1) the defense is
`procedurally barred for failure to be advanced as part of
`defendants' Rule 50(a) motion at trial, and (2) in any event, he
`has failed to demonstrate an entitlement to such protection even
`if the claim is addressed on its merits.
`Finally, as to the malicious prosecution claim,
`plaintiff underscores that "Tretola was arrested on June 1, 2007
`
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`based on Faltings [sic] actions" and thereafter was "prosecuted
`by the Nassau County District Attorney with significant
`assistance from Faltings." (Pl.'s Mem. in Opp'n at 14-15.)
`III. The Guilty Plea of Marble Enterprises, Inc.
`to a Fire Code Violation Does not Provide
`Probable Cause for the Arrest of Tretola on
`June 1st for Reckless Endangerment as Urged by
` Defendants in Their First Argument Directed to
` the False Arrest Verdict
`"An officer has probable cause to arrest when he or she
`has 'knowledge or reasonably trustworthy information of facts and
`circumstances that are sufficient to warrant a person of
`reasonable caution in the belief that the person to be arrested
`has committed or is committing a crime.'" Jaegly v. Coach, 439
`F.3d 149, 152 (2d Cir. 2006)(quoting Weyant v. Okst, 101 F.3d
`845, 852 (2d Cir. 1996). The existence of probable cause is a
`complete defense to an action for false arrest "whether that
`action is brought under state law or under § 1983." Weyant, 101
`F.3d at 852. A party may not legitimately complain if, on the
`date of his arrest, the arresting officer or another officer
`involved at the scene had probable cause to arrest that party for
`any offense. See Jaegly, 439 F.3d at 154 ("[A] claim for false
`arrest turns only on whether probable cause existed to arrest a
`defendant, and that it is not relevant whether probable cause
`existed with respect to each individual charge, or, indeed, any
`charge actually invoked by the arresting officer at the time of
`the arrest."); see also Marcavage v. City of New York, 689 F.3d
`
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`98, 110 (2d Cir. 2012)("Defendants [will] prevail [on their
`probable cause to arrest position] if there was probable cause to
`arrest Plaintiffs for any single offense."). And a guilty plea,
`even if to a lesser included offense under a charged violation,
`is fatal to a false arrest claim. That is so because such a
`plea, in essence, bars the supposedly aggrieved party from
`alleging the absence of sufficient grounds for his or her arrest.
`In defendants' view, as articulated in their First Argument,
`Marbles' June 26, 2007 plea to fire code violation eviscerates
`Tretola's false arrest claim as a matter of law. That argument
`lacks merit.
`Marbles Enterprises, Inc., was the entity charged in
`the appearance ticket issued by Fire Marshal Szymanski on May 9th
`and the corresponding guilty plea was entered by Tretola on
`behalf of the corporation. Tretola, of course, was the arrestee
`on June 1, 2007, not the corporation. Yet defendants, in their
`well crafted post-verdict submissions, fail to explain how a
`corporate plea binds an individual plaintiff. Perhaps the
`thought is that their joinder as plaintiffs provides the
`necessary nexus. If so, the logic of that possible argument is
`problematic at best. Cf. UCAR Intern., Inc. v. Union Carbide
`Corp., 2004 WL 137073, at *13 (S.D.N.Y. Jan. 26, 2004)("A basic
`tenant of American corporate law is that the corporation and its
`shareholders are distinct entities")(internal quotation marks and
`
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`citations omitted).
`Also unexplained by defendants is the logic behind the
`proposition that the probable cause for the May 9th fire code
`violation, with the concomitant issuance of an appearance ticket,
`furnishes a legally cognizable predicate for Tretola's arrest for
`reckless endangerment three weeks thereafter. It is one thing to
`say that the existence of probable cause for a fire code
`violation on May 9th may serve as the basis for plaintiff's
`arrest on that date for reckless endangerment, and something all
`together different to claim, as defendants implicitly do, that
`the May 9th probable cause for the fire code violation provides
`an "open-ended" basis to arrest plaintiff without a warrant and
`without offense-specific probable cause sometime thereafter.
`Here the "sometime thereafter" was June 1st, but if defendants'
`argument is sound the later arrest presumably could have occurred
`three months thereafter or anytime within the applicable statute
`of limitations. Not surprisingly, defendants have provided no
`authority for that notion.
`In sum, defendants' argument that Marble Enterprises,
`Inc.'s guilty plea provided probable cause for Tretola's arrest,
`presented devoid of authority or a convincing rationale, is
`unconvincing.
`IV. The Jury's Implicit Finding That Faltings Lacked
` Probable Cause to Arrest Tretola on June 1, 2007
` is Neither Contrary to Applicable Law nor the
` Facts Adduced at Trial
`
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`By way of format, initially certain basic principles of
`probable cause jurisprudence are set forth in this segment of the
`opinion. That is followed by an analysis of whether Faltings
`had probable cause to arrest Tretola, utilizing May 9th as the
`operative date in keeping with the arguments of both counsel.
`After May 9th, however, and shortly before his arrest,
`Tretola told Faltings, in essence, that the heater was not
`operational. But for some unexplained reason that post-May 9th
`conversation is not mentioned in the parties' post trial
`submissions. Possibly that brief but critical portion of the
`testimony was overlooked, leading to the problematic date
`selection. In any event, given the Court's belief that the
`appropriate date for present purposes was when Tretola was
`actually arrested on June 1st, defendants' attack on the false
`arrest verdict is also evaluated under that scenario.
`A. Probable Cause is Determined Solely on an Objective
` Basis
`Construing all the evidence in the light most favorable
`to plaintiff, as must be done in a Rule 50 context, Faltings's
`conduct was outrageous. For a police officer to utilize the
`awesome power of arrest for vendetta purposes represents an
`abhorrent abuse of the public trust. That point was driven home
`repeatedly by plaintiff's counsel throughout the trial. However,
`Faltings's motivation is not germane in assessing the presence or
`absence of probable cause. As explained by the Supreme Court in
`
`-18-
`
`

`
`Case 2:08-cv-03225-DRH-WDW Document 95 Filed 04/16/14 Page 19 of 68 PageID #: 1565
`
`Brigham City, Utah v. Stuart:
`An action is "reasonable" under the Fourth
`Amendment, regardless of the individual
`officer's state of mind, "as long as the
`circumstances viewed objectively justify
`[the] action." Scott v. United States, 436
`U.S. 128, 138 (1978)(emphasis added). The
`officer's subjective motivation is
`irrelevant. See Bond v. United States, 529
`U.S. 334, 338 n.2 (2000)("The parties
`properly agree that the subjective intent of
`the law enforcement officer is irrelevant in
`determining whether that officer's actions
`violate the Fourth Amendment . . .; the issue
`is not his state of mind, but the objective
`effect of his actions."); Whren v. United
`States, 517 U.S. 806, 813 (1996)("[W]e have
`been unwilling to entertain Fourth Amendment
`challenges based on the actual motivations of
`individual officers."); Graham v. Connor, 490
`U.S. 386, 397 (1989)("[O]ur prior cases make
`clear" that "the subjective motivations of
`the individual officers . . . ha[ve] no
`bearing on whether a particular seizure is
`'unreasonable' under the Fourth Amendment.).
`547 U.S. 398, 404 (2006)(emphasis in original).
`For analytical purposes, therefore, Faltings's thought
`processes must be divorced from the assessment and the focus
`confined to "whether an objectively reasonable officer could
`conclude that the historical facts at the time of the arrest
`amount[ed] to probable cause." Cortez v. McCauley, 478 F.3d
`1108, 1116 (10th Cir. 2007).
`B. Faltings's Observations on May 9, 2007 Provided
` Probable Cause to Arrest Tretola for Reckless
` Endangerment as of That Date
`On May 9th, Faltings saw what he believed to be a gas-
`fired heater and accompanying gas lines on the same wall, and in
`
`-19-
`
`

`
`Case 2:08-cv-03225-DRH-WDW Document 95 Filed 04/16/14 Page 20 of 68 PageID #: 1566
`
`close proximity to an apparent firing range. He knew, as earlier
`noted, that Tretola was the operator of T&T Gunnery and had
`discharged weapons into the bullet traps in the facility. The
`then current and repeated use of those traps for testing and
`possibly other purposes was evident from, inter alia, the
`hundreds, if not thousands of spent shells on the floor and by
`the multiple sets of ear and eye protectors on site. Tr. at 170-
`72.
`
`Plaintiff argues that those observations were
`inadequate to establish probable cause on the several grounds
`detailed previously. But some of those grounds, viz. factual
`impossibility and absence of the evidence as to mens rea, are
`patently flawed due to their proponent conflating what is
`required to establish probable cause and the proof necessary to
`convict. The standards are distinct. See, e.g., Draper v.
`United States, 358 U.S. 307, 312 (1959)("There is a large
`difference between the two things to be proved" [referring to
`guilt and probable cause]); Criss v. City of Kent, 867 F.2d 259,
`n.1 at 262 (6th Cir. 1988)("The quantum of proof required to
`establish probable cause is significantly lower than that
`required to establish guilt. The issue in this case is not
`whether sufficient evidence exists to support a conviction for
`receipt of stolen property but simply whether the City of Kent
`police officers, at the time they arrested the plaintiff, had
`
`-20-
`
`

`
`Case 2:08-cv-03225-DRH-WDW Document 95 Filed 04/16/14 Page 21 of 68 PageID #: 1567
`
`probable cause to believe that plaintiff had violated the Ohio
`statute (internal citation omitted)(emphasis in original); Cf.
`Coogan v. City of Wixom, 820 F.2d 170, 173 (6th Cir. 1987)("the
`standard of proof of guilt beyond a reasonable doubt has no
`relevance to the issue of probable cause to institute a
`prosecution").
`Based on Faltings's observations made on May 9th, he
`had "knowledge . . . of facts and circumstances . . . sufficient
`to warrant a person of reasonable caution in the belief that
`[Tretola had] or [was] committing a crime," Jaegly, 439 F.3d at
`152. In urging a contrary result, plaintiff insists that a
`precondition to finding probable cause was an investigation to
`assure that the heater was operational even though Faltings at
`that time had no information to suggest that it was not.
`However, common sense suggests that it is reasonable for a person
`entering an established place of business to assume that an
`apparently intact heating system is operational, just as, for
`example, an individual visiting someone's home, absent contrary
`evidence, would assume that bathroom fixtures were in working
`order. Incidently, Fire Marshal Szymanski assumed that the gas
`heater at T&T Gunnery was operational as of May 9, 2007. Tr. at
`673-74 and 686-89.
`To determine whether the heater was connected to an
`established gas line would have required the officer to go
`
`-21-
`
`

`
`Case 2:08-cv-03225-DRH-

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