U.S. District Court for the Western Dist. of NY: Excessive police

Daily Record (Rochester, NY), Aug 26, 2008

Jennejahn v. Village of Avon, 06-CV-6054T, U.S. District Court for the Western District of New York; written by Judge Marian W. Payson

Must a civil rights claim based on a police officer's use of excessive force fail if an injury is not alleged? What evidence is sufficient to sustain an allegation of selective prosecution?

Since the early 1990s, when Jay and Joyce Brown moved into the house across the street from the Jennejahn residence, acrimony has beset South Avenue in Avon.

Almost immediately after the Browns moved to the neighborhood, they and the Jennejahns, who have lived there for more than 35 years, experienced a turbulent relationship resulting in numerous calls from both sides to the Village of Avon Police Department. Plaintiff Arthur Jennejahn eventually was arrested on a harassment charge following one of the many exchanges between the households.

The arrest was preceded by the Browns filing a complaint against Jennejahn alleging he honked his car horn at all hours of the night, yelled obscenities and harassed guests who entered and exited the Browns' residence. A dispute that occurred on the afternoon of June 14, 2004, prompted the complaint. On that day, Jennejahn and his wife were at home planting flowers in the front yard when tempers flared after the Browns' dog began to bark. Jennejahn remarked to his wife, "I guess we have to listen to the dog while we are out here."

After overhearing the comment, Joyce Brown appeared from around the corner of a fence on her property, waved her finger and said the Browns' dog could bark if it wanted to. Jennejahn responded that the dog couldn't keep barking "like that." Joyce Brown replied: "[W]e'll see about that," before taking the dog into her house.

The Jennejahns later dined out while the Browns filed a complaint over Arthur Jennejahn's behavior, which they characterized as harassing. A police officer arrived at the Jennejahn residence and arrested Mr. Jennejahn, from which the claim of excessive force follows. In the lawsuit, under 42 U.S.C. [section]1983 against the arresting officer, the police chief and the Village of Avon, Jennejahn alleges the arresting officer used excessive force in making the arrest and he was selectively prosecuted. The defendants moved for summary judgment bringing the issues fully within the court's purview.

The plaintiff detailed how the officer, also named as a defendant along with Police Chief James Carney, "violently grabbed" his arm and "aggressively grabbed" his shoulders. According to Jennejahn, the officer "clamped my shoulders and twisted me around."

The plaintiff was charged with harassment in the second degree, a violation of Section 240.26(3) of state Penal Law. Following his arrest, Jennejahn was transported to court, where he was arraigned before a judge on the violation charge. The judge issued an order of protection requiring Jennejahn to stay away from the Browns, and the case was adjourned in contemplation of dismissal. The charge against Jennejahn was dismissed six months later.

In evaluating the plaintiff's excessive force claim, Judge Payson found that no genuine dispute exists that the defendants were acting under color of state law, but notes that claims arising from the use of force during an arrest are judged by the "objective reasonableness" standard of the Fourth Amendment. Jennejahn conceded that probable cause existed for his arrest, and Judge Payson finds the plaintiff "implicitly concedes" the officer was authorized to use some degree of force to effect the arrest.

Apparently sealing the fate of the excessive force claim, the plaintiff alleged no injuries as a result of the excessive force. The court cites the case of Roundtree v. City of New York where it was found that "a 'push' that does not cause the slightest of physical injuries" to a plaintiff cannot be actionable without the courts necessarily creating a standard whereby "any physical contact by an arresting officer with the arrested person is actionable." Therefore, the court dismissed the excessive force claims.

The plaintiff's selective prosecution allegation demonstrates that the intrigue on South Avenue ran deeper than a simple poor relationship between neighbors. The Equal Protection Clause of the U.S. Constitution demands that all persons similarly situated should be treated alike. The plaintiff argues the police department selectively enforced the law against him when he was arrested on a harassment violation and his neighbors were not. Jennejahn testified that he wanted to swear out a complaint against the Browns on numerous other occasions, but was not permitted to do so.

Jennejahn offered his theory as to why this was so. He had observed Jay Brown's father, Fred Brown, exit the building housing the Avon Police Department "many times." Brown's father is a retired New York State trooper, who improperly exerted "political influence" over the Avon Police Department, according to the plaintiff. He testified that some hours after a disagreement he had with Jay Brown, Brown's father followed his car into his driveway and, within a short time, Chief Carney arrived.