Free Response - District Court of Connecticut - Connecticut

Case 3:01-cv-02374-CFD

Document 134

Filed 08/25/2008

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

: : : v. : : TOWN OF STONINGTON, : ET AL, : Defendants :

EDWARD BROWN, Plaintiff,

3:01-CV-02374 (CFD)

August 25, 2008

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO RECONSIDER

Defendant Desmond filed a motion to reconsider, seeking to have the First Amendment retaliation claim against him dismissed. Defendant Desmond points to no intervening change in the controlling law, new evidence, or clear error that equates to a manifest injustice. Instead, the Defendant seeks to re-litigate the issue upon which he failed to prevail. When considering the motion for summary judgment, the Court had the deposition transcript of Plaintiff. (The crux of the testimony is on pages 70-71 of the Plaintiff's deposition. The Defendants provided page 70 of the Plaintiff's deposition, and the Plaintiff provided pages70-71. Plaintiff also cited to the Plaintiff's complaint withdrawal letter, which was entered into the record by the Defendants as defense Exhibit I.) The Plaintiff's testimony, and the withdrawal letter, clearly indicates a factual dispute surrounding the First Amendment retaliation issue. The excerpt of Plaintiff's deposition cited by the Defendant regarding the parking of the police car in front of Plaintiff's house was not dispositive per the Court's decision, and the reference thereto is nothing more than a red herring.

1

Case 3:01-cv-02374-CFD

Document 134

Filed 08/25/2008

Page 2 of 3

Therefore, because the Court had all the evidence before it when it denied the motion on this issue, the motion for reconsideration is inappropriate and should be denied. However, even if the Court were to reconsider the ruling, a position the Plaintiff in no way advocates, it is clear that the decision was proper, as specified in the ruling. Defendant's attempt to prevail upon a qualified immunity argument is misplaced. Clearly established law informs a police officer that it is unconstitutional for him to retaliate against an individual for that individual's exercising his First Amendment rights. Retaliation and harassment can take many forms. If a plaintiff is required to provide a prior court ruling on the specific factual issue in the case, that requirement would place form over substance and thereby eviscerate the law of First Amendment retaliation. Thus, whether there is case-law on the specific issue of slamming down a phone and intimidation is not the question. Instead, the question for the jury is whether the act of slamming down the phone and breaking it, and the intimidation exhibited by Defendant, was retaliation. Furthermore, if "specific intent of a defendant is an element of plaintiff's claim under clearly established law, and plaintiff has adduced sufficient evidence of that intent to defeat summary judgment, summary judgment on qualified immunity grounds in inappropriate." Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). See also, Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)(as facts underlying qualified immunity defense remained in dispute, the district court properly allowed the case to proceed to trial).

2

Case 3:01-cv-02374-CFD

Document 134

Filed 08/25/2008

Page 3 of 3

Therefore, for the foregoing reasons it is respectfully requested that the Defendants' Motion to Reconsider be denied.

RESPECTFULLY SUBMITTED, THE PLAINTIFF, EDWARD BROWN, BY: /s/ John F. Geida /s/ John F. Geida, Esq. Fed. Bar No. ct27468 The Law Offices of Norman A. Pattis, LLC 649 Amity Road, PO Box 280 Bethany, CT 06524 Tel. 203-393-3017 Fax. 203-393-9745

CERTIFICATION I hereby certify that on August 25, 2008, a copy of the foregoing PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO RECONSIDER was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System. /s/ John F. Geida /s/ John F. Geida Fed. Bar No. ct27468 Law Offices of Norman A. Pattis LLC 649 Amity Road, PO Box 280 Bethany, CT 06524 Tel: (203) 393-3017 Fax: (203) 393-9745

3