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.
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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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