Free Motion for Judgment - District Court of Connecticut - Connecticut

Case 3:00-cv-00052-RNC

Document 194

Filed 07/25/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MARGARET COWAN, ADMINISTRATRIX OF THE ESTATE OF VICTORIA COOPER v. MICHAEL BREEN : : : : : : :

NO.: 3:00 CV 0052 (RNC)

MARGARET COWAN, ADMINISTRATRIX OF THE ESTATE OF VICTORIA COOPER v. NORTH BRANFORD

: : : : : : :

NO.: 3:01 CV 0229 (RNC)

JULY 25, 2005

DEFENDANTS' MOTION FOR JUDGMENT OF QUALIFIED IMMUNITY The defendant, MICHAEL BREEN, hereby moves this court for judgment on the defendant's affirmative defense based on qualified immunity, a question specially reserved by the court. In support of this motion the defendant states: 1. At the trial of this matter the Court determined that the jury would decide the issue of whether the Defendant violated the plaintiff's Fourth Amendment rights, and specifically reserved to itself the determination of whether the Defendant was entitled to qualified immunity. 2. Following trial on the Fourth Amendment issue, the jury answered two questions as follows:

Case 3:00-cv-00052-RNC

Document 194

Filed 07/25/2005

Page 2 of 3

At the moment Officer Breen irrevocably decided to fire the second shot, did he have an objectively reasonable belief that he was in immediate danger of serious injury or death because the driver of the car was trying to hit him? YES__X____ NO_______ At the moment Officer Breen irrevocably decided to pull the trigger to fire the second shot, did he have an objectively reasonable belief that he could not safely get out of the way. YES_______ 3. NO___X___

Based on the above responses the court entered a plaintiff's verdict on the Fourth Amendment claim against officer Breen.

4.

The defendant now moves for a determination that he is entitled to qualified immunity, given that no constitutional violation occurred and the law that formed the basis for the finding of Fourth Amendment liability against him was not clearly established at the time of his use of force; and, even if such law was clearly established, it was objectively reasonable for Officer Breen to believe that his conduct and decisions met constitutional standards existing at the time of his use of force.

A memorandum of law is filed simultaneously with this motion.

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Case 3:00-cv-00052-RNC

Document 194

Filed 07/25/2005

Page 3 of 3

RESPECTFULLY SUBMITTED, THE DEFENDANTS, MICHAEL BREEN and TOWN OF NORTH BRANFORD By__/s/ Thomas R. Gerarde____ Thomas R. Gerarde, ct5640 John J. Radshaw, III, ct19882 Jeffery E. Potter, ct26356 HOWD & LUDORF 65 Wethersfield Avenue Hartford, CT 06114 (860) 249-1361 (860) 249-7665 (fax)

CERTIFICATION This is to certify that a copy of the foregoing has been sent, handling charges prepaid, via U.S. Mail to the following counsel of record this 25th day of July 2005. David N. Rosen, Esquire 400 Orange Street New Haven, CT 06511

____/s/ Thomas R. Gerarde____ Thomas R. Gerarde John J. Radshaw, III Jeffery E. Potter

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