14-1208-cv
Berg v. Sorbo
 
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of March, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 GERARD E. LYNCH,
                                 Circuit Judges.
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ERICA BERG,
                                 Plaintiff-Appellee,

                v.                                                         No. 14-1208-cv

MICHAEL SORBO,
                                 Defendant-Appellant.
----------------------------------------------------------------------
FOR APPELLEE:                                     Kevin Smith, Esq. New Haven, Connecticut;
                                                  Glenn Mead Conway, Conway Law Firm, LLC,
                                                  New Haven, Connecticut.

APPEARING FOR APPELLANT:                         JOHN F. CONWAY, (James E. Ringold, on the
                                                 brief), Loughlin FitzGerald, P.C., Wallingford,
                                                 Connecticut.

          Appeal from an order of the United States District Court for the District of

Connecticut (Michael P. Shea, Judge).


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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.

       Defendant Michael Sorbo, an East Haven, Connecticut police officer, appeals

from a March 19, 2014 order denying him summary judgment based on qualified

immunity from plaintiff Erica Berg’s claims under federal and state law for, inter alia,

false arrest, malicious prosecution, and violations of First and Fourteenth Amendment

rights. We review a district court’s denial of summary judgment on qualified immunity

grounds de novo. See Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012). We assume

the parties’ familiarity with the facts and procedural history of this case, which we

reference only as necessary to explain our decision to dismiss for lack of jurisdiction.

       Under the collateral order doctrine, we have jurisdiction to review a denial of

summary judgment based on qualified immunity “to the extent that the district court has

denied the motion as a matter of law.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d

29, 38 (2d Cir. 2003). For that doctrine to apply, “the qualified-immunity denial must

present a legal issue that can be decided with reference only to undisputed facts and in

isolation from the remaining issues of the case.” Britt v. Garcia, 457 F.3d 264, 271 (2d

Cir. 2006) (internal quotation marks omitted). This “review extends to whether a given

factual dispute is ‘material’ for summary judgment purposes, . . . not . . . whether a

dispute of fact identified by the district court is ‘genuine.’” Escalera v. Lunn, 361 F.3d

737, 743 (2d Cir. 2004); accord McColley v. Cnty. of Rensselaer, 740 F.3d 817, 822 (2d

Cir. 2014). Thus, we may exercise appellate jurisdiction “if the defendant contests the

existence of a dispute or the materiality thereof, or contends that he is entitled to qualified

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immunity even under plaintiff’s version of the facts.” Cowan ex rel. Estate of Cooper v.

Breen, 352 F.3d 756, 761 (2d Cir. 2003) (internal quotation marks and alterations

omitted). That is not this case.

       Berg, then a confidential assistant to the Mayor of East Haven, contends that

Sorbo knowingly misrepresented facts to secure a warrant for her arrest on the

misdemeanor offense of interfering with a police officer. See Conn. Gen. Stat. § 53a-

167a. The alleged interference pertained to Sorbo’s orders to tow vehicles obstructing

the movement of cars parked near an East Haven restaurant. Sorbo does not contest the

existence of material issues of disputed fact respecting two grounds for Berg’s arrest:

(1) her alleged removal of police-issued tickets from certain cars designated for towing,

and (2) her alleged taking of another ticket from a woman in the parking lot. Rather, he

contends that, even assuming resolution of these disputes in Berg’s favor, the district

court was compelled to grant him qualified immunity on a third ground:              Berg’s

instruction to tow truck driver John Conway that he was not to remove any vehicles until

the Mayor of East Haven arrived on the scene. Sorbo submits that a reasonable officer

could have thought such conduct constituted the misdemeanor offense of interfering with

a police officer, providing at least arguable probable cause to support qualified immunity.

See Escalera v. Lunn, 361 F.3d at 743 (stating that arguable probable cause exists if “it

was objectively reasonable for the officer to believe that probable cause existed,” or

“officers of reasonable competence could disagree on whether the probable cause test

was met”).



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       The problem with Sorbo’s argument, as the district court recognized, is that his

warrant affidavit does not say that Berg instructed Conway not to move cars. Sorbo’s

affidavit states only that Berg asked Conway to await the mayor’s arrival before doing so.

The difference between a directive and a request is material given Connecticut precedent

holding that merely questioning police authority or even protesting police actions does

not constitute proscribed interference with an officer. See State v. Williams, 534 A.2d

230, 238 (Conn. 1987) (construing statute to “exclude[] situations in which a defendant

merely questions a police officer’s authority or protests his or her action”).

       In urging otherwise, Sorbo invokes the “corrected affidavits” doctrine.        See

Escalera v. Lunn, 361 F.3d at 743–44 (stating that, under “corrected affidavits doctrine,”

“we look to the hypothetical contents of a ‘corrected’ application to determine whether a

proper warrant application, based on existing facts known to the applicant, would still

have been sufficient to support arguable probable cause to make the arrest as a matter of

law” and thereby entitle officer to qualified immunity).         He submits that his own

affidavit’s report of what Conway told him should be “corrected” to comport with

Conway’s affidavit, which states, inter alia, that Berg “instructed” him not to move cars

before the mayor arrived.

       To be sure, Conway, not Sorbo, had first-hand knowledge of what Berg said to

him. But the material dispute for purposes of our qualified immunity review is not what

Berg said to Conway, but rather what Conway later told Sorbo Berg had said. See

Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (holding that officer claiming

qualified immunity can rely on eyewitness statement when making probable cause

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determination). Sorbo was as competent as Conway to speak to this issue. At the

conclusion of his affidavit, Conway states that he told Sorbo the facts contained therein.

While this might be understood to include the fact of Berg’s purported instruction not to

move cars, nowhere does Conway expressly say so. Meanwhile, Sorbo himself, in

reporting what Conway told him to the issuing judge, attributed to Berg only a request,

not an instruction. To the extent Sorbo now seeks to adopt Conway’s version of their

conversation as his own, he raises a credibility issue that cannot be determined as a

matter of law.

      We express no view as to how the identified factual disputes may be resolved at

trial. We conclude only that, on summary-judgment review, there is a material factual

discrepancy about what Sorbo knew of Berg’s interactions with Conway that prevents

arguable probable cause and qualified immunity from being decided as a matter of law.

      We have considered Sorbo’s remaining arguments and conclude that they are

without merit. Accordingly, the appeal is DISMISSED for lack of appellate jurisdiction.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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