3. 56.1 Statement


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3. 56.1 Statement

  1. 1. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 1 of 11 PageID #: 252 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X NANCY GENOVESE, 10 CV 3470 Plaintiff, 56.1 STATEMENT - against - TOWN OF SOUTHAMPTON; COUNTY OF SUFFOLK (Bianco, J.) Southampton Town Police LIEUTENANT ROBERT IBERGER, Suffolk County Undersheriff JOSEPH T. (Tomlinson, MJ) CARACAPPA; Suffolk County Sheriff Lieutenant FREDERICK LUETE; and “JOHN and/or JANE DOES” 1 through 10 (whose identities are currently unknown to Plaintiff but who are believed to be employees of the Suffolk County Sheriff’s Office), all of whom are sued in their individual and official capacities, Defendants. ----------------------------------------------------------------------X Defendants, TOWN OF SOUTHAMPTON and SOUTHAMPTON TOWN POLICE LIEUTENANT ROBERT IBERGER, as and for their statement pursuant to Local Rule 56.1, states as follows:1 1. On July 30, 2009, the plaintiff pulled her car to the side of the road by Gabreski Airport, half of which is a United States Air Force Base, to take a picture of a restored helicopter (50-h Statement of March 16, 2010, pp. 16-17; Iberger transcript, p. 53, l. 3-4). 2. The plaintiff had stopped to take pictures of the helicopter because she was making a web page to support the troops for Christmas (50-h Transcript, p. 18, l. 7-13). 3. Plaintiff was on her way home from a shooting range in Ridge to her home in Quogue at the time she stopped to take the pictures (50-h Transcript, p. 16, l. 12-23). 1 All items of evidence cited herein are appended to the Declaration of David H. Arntsen in support of the motion for summary judgment.
  2. 2. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 2 of 11 PageID #: 253 4. The helicopter was outside of the fenced-in portion of the airport “on the roads” as you pull into the airport (50-h Transcript, p. 20, l. 15-23). 5. Plaintiff successfully took one or two pictures of the helicopter (50-h Transcript, p. 23, l. 21-26). 6. After taking photographs of the helicopter, plaintiff attempted to put her car in reverse when she heard “stop”; the plaintiff was driving a convertible and had the top down (50- h Transcript, p. 25, l. 7-15). 7. The person who said “stop” was parked in a gold minivan behind her (50-h Transcript, pp. 26-27, l. 19). 8. The person then showed the plaintiff a badge and told her to move her car up (50- h Transcript, pp. 27-28, l. 7). 9. The individual with the badge asked the plaintiff what she was doing and she told him she was taking pictures (50-h Transcript, p. 28, l. 19-25). 10. Off duty Southampton Town Police Lieutenant Robert Iberger was the individual who initially questioned the plaintiff and identified himself as a Southampton Town police officer (50-h Transcript, p. 34, l. 15-24). 11. After speaking about the photographs the plaintiff was taking, Iberger made a phone call on his cell phone, the content of which was not heard by the plaintiff (50-h Transcript, p. 35, l. 2-13). 12. Thereafter, somebody from the Gabreski Air Base wearing a uniform came out to the scene (50-h Transcript, p. 35, l. 14-23). 13. Thereafter, several marked Suffolk County Sheriff’s Department vehicles arrived at the scene (50-h Transcript, p. 37, l. 12-26). 2
  3. 3. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 3 of 11 PageID #: 254 14. Iberger was given plaintiff’s camera by the plaintiff who then took it back from him because she believed he was breaking it; she asked him to give it back to her so she could take the memory card out to put it in the computer which she did and then handed Iberger the memory card (50-h Transcript, pp. 43-44). 15. Three weeks before this incident occurred, plaintiff also went to take a picture of the facility and was waved over by a guard from whom she inquired about the contents of certain containers on the premises (50-h Transcript, pp. 50-52). 16. The plaintiff was carrying a semiautomatic assault rifle kept in a case, which was in plain view when it was taken by Iberger out of the vehicle (50-h Transcript, pp. 56-57). 17. The rifle in the hard case which said “Bushmaster” on it was visible from outside of the car, a convertible with its top down (50-h Transcript, p. 202, l. 19 - p. 203, l. 5). 18. Neither Iberger nor any other Town employee searched the trunk of the plaintiff’s car where a second firearm was stored; this was done after the plaintiff had been arrested by the Suffolk County Sheriff’s Office (50-h Transcript, pp. 74-76). 19. Southampton Town off-duty police officer Iberger never told the plaintiff that she was under arrest (50-h Transcript, p. 204, l. 8-11). 20. Suffolk County Deputy Sheriff Robert Carlock arrested the plaintiff (Carlock transcript, pp. 27, l. 2-7). 21. Plaintiff was not assaulted or battered by the Southampton Town Police (50-h Transcript, pp. 226-227). 22. The only physical contact between any Southampton officer and the plaintiff occurred when plaintiff tried to stop the officer from removing the case containing the rifle from the car (50-h Transcript, p. 206, l. 13 - p. 207, l. 14). 3
  4. 4. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 4 of 11 PageID #: 255 23. Iberger came into contact with the plaintiff only when he was pulling the rifle case up off the car floor and opening her car door; at this time his elbow and shoulder came into contact with the right side of her body; she did not fall down though she lost her balance (Plaintiff’s transcript of deposition taken August 25, 2011, p. 131). 24. Bruises suffered by the plaintiff with respect to the incident in question occurred while she was being processed inside the jail by Suffolk County (Plaintiff’s transcript of deposition taken August 25, 2011, p. 13, l. 10-22). 25. The Southampton Town Police were not involved in bringing charges against the plaintiff and did not appear in court referencing the charges brought by the County (50-h Transcript, pp. 208-209). 26. Iberger never told the plaintiff that she was under arrest (Plaintiff’s transcript of deposition taken August 25, 2011, p. 132, l. 10-12). 27. Iberger never handcuffed the plaintiff (Plaintiff’s transcript of deposition taken August 25, 2011, p. 132, l. 13-14). 28. No other officer of the Southampton Town Police Department was at the scene (Carlock transcript, pp. 97 l. 25- 98 l. 4) 29. Southampton Town Police Lieutenant Iberger has over 30 years of experience with the Southampton Town Police, rising from the rank of police officer to that of lieutenant, the position he currently holds (Iberger transcript, p. 7, l. 2-10). 30. Iberger was trained in the field and at the Suffolk County Police Academy where he successfully completed the requirements of the Academy to receive his New York State Police Officer Certification (Iberger transcript, p. 7, l. 16-22). 4
  5. 5. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 5 of 11 PageID #: 256 31. Gabreski Airport is included within the jurisdiction of the Southampton Town Police Department (Iberger transcript, p. 16, l. 8-12). 32. Lt. Iberger has had specific training in tactics, investigation of suspicious vehicles and persons, the search of motor vehicles and persons, how to check potential trouble spots, preliminary investigations, the interview of suspects and the preparation of reports of investigations (Iberger transcript, pp. 16-17, l. 13-15). 33. Lt. Iberger is certified as a counterterrorism awareness instructor, certified by the United States Department of Homeland Security (Iberger transcript, p. 23, l. 8-14). 34. Lt. Iberger used that training and certification to instruct other officers in counterterrorism awareness (Iberger transcript, p. 24, l. 7-13). 35. Lt. Iberger has ongoing training in field intelligence for which he also provides training to other members of the law enforcement agency (Iberger transcript, p. 24, l. 14-24). 36. In evaluating persons from a counterterrorism standpoint, Lt. Iberger looks for individuals that appear to be surveilling critical and/or important facilities or facilities of interest, particularly individuals who appear to be gathering information regarding the particular facilities, entrances, egresses, various locations within the facility, activities within the facility, comings and goings within the facility and/or may be eliciting information regarding operations within the facility, probing security of the facility and/or making some type of documentation regarding the facility (Iberger transcript, p. 28, l. 13 - p. 29, l. 18). 37. Lt. Iberger uses those investigational tools (the investigation of potential surveilling persons) on a daily basis, and has twice had to involve himself with people that appeared to be potentially surveilling critical facilities (Iberger transcript, p. 30, l. 5-17). 5
  6. 6. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 6 of 11 PageID #: 257 38. The second of those two incidents involved the plaintiff, Nancy Genovese (Iberger transcript, p. 31, l. 5-7). 39. On July 30, 2009, Lt. Iberger was employed by the Southampton Town Police Department but was on vacation (Iberger transcript, p. 49, l. 17-25). 40. In July of 2009, there were warning signs on the fence at Gabreski Airport warning that it was a military facility and also signs warning that photographing the facility was in violation of Federal Code (Iberger transcript, p. 59, l. 22 - p. 60, l. 16; Carlock transcript, p. 46, l. 11 - p. 47, l. 16). 41. On July 30, 2009, while he was driving south on County Road 31, Lt. Iberger drove past a vehicle parked to the north of the military entrance for Gabreski Airport with a female subject inside who appeared to be photographing the Gabreski Airport fence line (Iberger transcript, p. 61, l. 15-25). 42. The approximate time that Lt. Iberger encountered the plaintiff was 6:40 p.m. (Iberger transcript, p. 61, l. 9-16). 43. At the time of the initial encounter, the top of the convertible vehicle was down, it was daylight and a clear day (Iberger transcript, p. 62, l. 11-23). 44. Lt. Iberger drove past the vehicle and pulled over down the road with the intent of waiting for the vehicle to pass him so he could record the license plate to forward that information to Suffolk County Criminal Intelligence (Iberger transcript, p. 63, l. 25 - p. 64, l. 14). 45. Lt. Iberger observed the plaintiff’s vehicle moving slowly forward in increments followed by a stop, which happened continuously (Iberger transcript, p. 65, l. 9-18). 46. The plaintiff’s vehicle then turned into the entrance access road for the Gabreski Airport (Iberger transcript, p. 65, l. 21 - p. 66, l. 24). 6
  7. 7. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 7 of 11 PageID #: 258 47. When Lt. Iberger saw the vehicle turn onto the access road, he turned his vehicle, headed north and proceeded to follow on that road and then pulled up alongside the plaintiff’s vehicle (Iberger transcript, p. 71, l. 15-22). 48. While she was in the entrance access area, the plaintiff was observed by Lt. Iberger with the camera out as if she was taking photos (Iberger transcript, p. 127, l. 12-17). 49. Lt. Iberger rolled down his window, identified himself to the female driver as being a Southampton Town police officer, showed her his badge and asked her what she was doing, whereupon she advised that she was taking a photo of the helicopter (Iberger transcript, p. 72, l. 2-20). 50. Lt. Iberger then got out of his vehicle and asked the plaintiff if she saw the signs prohibiting photography, to which the plaintiff responded that she “was a patriot”, and she was just taking pictures of the helicopter for her daughter, that it was her daughter’s camera and that she really didn’t know how to use it (Iberger transcript, p. 72, l. 21 - p. 72, l. 6). 51. The plaintiff gave Lt. Iberger her camera so he could view the photographs she took, which included photographs of the signs indicating the name of the airport, of the fence, of the barbed wire areas and security features on the fence, consisting of a cable that ran along the fence (Iberger transcript, p. 73, l. 20 - p. 74, l. 21). 52. After unsuccessfully trying to get the attention of the guard in the security booth, and further unsuccessfully trying to telephone Gabreski Airport directly, Lt. Iberger called his office (Iberger transcript, p. 77). 53. When in contact with his office dispatcher, he requested that she contact Gabreski security and advise that he had an individual he believed was taking surveillance photos of the 7
  8. 8. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 8 of 11 PageID #: 259 base and to have somebody from the booth, from security, come out (Iberger transcript, p. 80, l. 5-12). 54. A couple of minutes after that phone call, security guards from Gabreski came out (Iberger transcript, p. 80, l. 19-25). 55. After showing the guards the photographs, one of them approached him and inquired as to what the gun case in the front seat of the vehicle was and if Lt. Iberger was aware that there was a gun case in the front seat (Iberger transcript, p. 83, l. 4-18). 56. Until he had been made aware by the security officer from Gabreski of the existence of the gun case, he had not noticed it (Iberger transcript, p. 85, l. 7-15). 57. When he walked over with the security officer from Gabreski, the gun case was leaning against the passenger door on the floor of the open topped convertible (Iberger transcript, p. 85, l. 4-6). 58. Lt. Iberger then inquired of the plaintiff what was in the case and she told him a shotgun; she then began to advise that it was a rifle, but that she didn’t know what kind it was at which point he advised her he was securing the gun case for officer safety (Iberger transcript, p. 85, l. 16-25). 59. Lt. Iberger next took the case to see if there was a weapon inside and tried to distance himself from the plaintiff who had exited her vehicle (Iberger transcript, p. 86, l. 7-25). 60. Lt. Iberger had to tell the plaintiff twice while he was securing the gun case, to stand back as he was securing it for officer safety (Iberger transcript, p. 101, l. 4-6). 61. Lt. Iberger walked a short distance, opened the case and observed what appeared to be the stock of an M4 type AR15 assault rifle (Iberger transcript, p. 87, l. 18 - p. 88, l. 4). 8
  9. 9. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 9 of 11 PageID #: 260 62. After making the determination of the type of gun that the plaintiff had, Lt. Iberger advised the plaintiff that it would be secured temporarily for officer safety and he then handed the gun to one of the Gabreski security officers who placed it in the back of a pick-up truck (Iberger transcript, p. 90, l. 8-16). 63. Lt. Iberger inquired of the plaintiff as to why she had the weapon, and she replied that she had been coming from a range in Ridge (Iberger transcript, p. 91, l. 2-11). 64. After the gun was secured in the military vehicle, Lt. Iberger observed that two Suffolk County Sheriffs arrived on the scene (Iberger transcript, p. 92, l. 19-23). 65. Lt. Iberger did not place the plaintiff in handcuffs (Iberger transcript, p. 93, l. 14- 16). 66. Lt. Iberger did not contact the Suffolk County Sheriff’s office and does not know how it came about that the Suffolk County Sheriff’s office was contacted and arrived at the scene (Iberger transcript, p. 94, l. 25 - p. 95, l. 17). 67. Within 30-40 minutes after his initial arrival on the scene, Lt. Iberger left the scene, at approximately 7:16 p.m., reflecting that he was on the scene in question for a total of 30-40 minutes (Iberger transcript, p. 96, l. 12-25). 68. When the sheriffs arrived, Lt. Iberger advised them of what his observations had been and what had occurred to that point (Iberger transcript, p. 97, l. 19-23). 69. Lt. Iberger was not armed at the time of the subject occurrence (Iberger transcript, p. 98, l. 8-9). 70. Lt. Iberger gave the sheriffs his business card and left (Iberger transcript, p. 98, l. 10-19). 9
  10. 10. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 10 of 11 PageID #: 261 71. Lt. Iberger left the scene within moments after the arrival of the sheriff (Iberger transcript, p. 99, l. 12-14). 72. Lt. Iberger never called the plaintiff a “t-bagger” or a “right-winger” (Iberger transcript, p. 100, l. 7-12). 73. Lt. Iberger had never met or seen the plaintiff before that day (Iberger transcript, p. 101, l. 7-9). 74. Lt. Iberger was not aware of the fact that the plaintiff had previously appeared at the base to “inquire about certain things” (Iberger transcript, p. 101, l. 10-14). 75. Lt. Iberger did not, nor was it ever his intention to, arrest the plaintiff (Iberger transcript, p. 105, l. 6-9). 76. Lt. Iberger did not know at the time that he left the scene that there was another firearm in the trunk of plaintiff’s vehicle (Iberger transcript, p. 113, l. 23 - p. 114, l. 2). 77. All physical force that was used against the plaintiff alleges was done by the Suffolk County employees and/or Sheriffs/Deputy Sheriffs (50-h Transcript, p. 181, l. 17-24). 78. The bruising allegedly suffered by the plaintiff was incurred while she was being arrested by the Suffolk County Sheriffs (50-h Transcript, p. 88, l. 3-12). 79. The plaintiff never asked Lt. Iberger for medical attention (Iberger transcript, p. 116, l. 18-20). 80. Lt. Iberger did not conduct any search of the plaintiff’s vehicle (Iberger transcript, p. 117, l. 13-16). 81. Lt. Iberger did not know until reading it later in the newspaper that the plaintiff 10
  11. 11. Case 2:10-cv-03470-JFB-AKT Document 49-1 Filed 05/25/12 Page 11 of 11 PageID #: 262 had a substantial amount of cash on her at the time of the incident (Iberger transcript, p. 123, l. 24 - p. 124, l. 8). Dated: Smithtown, New York May 25, 2012 Yours, etc., DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendants 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 By: _________/S/______________________ David H. Arntsen TO: Law Offices of Frederick K. Brewington 556 Peninsula Boulevard Hempstead, NY 11550 (516) 489-6959 Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, NY 10016 (212)490-0400 Richard T. Dunne Suffolk County Department of Law H. Lee Dennison Building 100 Veterans Memorial Highway Hauppauge, NY 11788 (631) 853-5678 11