New Haven Independent

That question is the subject of a lawsuit filed Monday by an attorney for Norval Falconer (pictured).

The state cop and FBI agent were conducting an undercover corruption of New Haven narcotics detectives when they saw Falconer being framed for a crime he didn’t commit in 2006. They kept investigating the cops for months afterward — and didn’t stop Falconer from spending four weeks in jail.

They should have intervened with a prosecutor, argues New Haven civil rights attorney Diane Polan, who filed the suit in U.S. District Court Monday against state cop Blake Stine and FBI agent James McGoey. By not intervening, they violated Falconer’s civil rights under the Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, the suit charges. It seeks $1 million in damages.

Click here to read the complaint.

The suit revives an episode that New Haven has worked hard to put behind it: A federal corruption investigation that led to the jailing of three detectives, the disbanding and reconstitution of the police narcotics unit, the hiring of a new chief from out of town, and a wholesale reorganization of the department.

The unfinished business, and the central legal question, in Falconer vs. Stine: What happens to an innocent person caught in the path of that investigation?

The suit presents the court with an “absolutely fascinating” question about how law enforcement should conduct itself in the midst of a corruption investigation, observed New Haven criminal defense attorney John Williams.

Williams is not involved in the case; his law firm won a different lawsuit more than a quarter-century ago that figures prominently in this one. He said that he believes Polan has a strong argument based on that prior case, in which a federal panel ruled that law enforcement agents who witness a false arrest have an obligation to take action.

“It raises in an acute way an incredibly important public policy question,” Williams said. “Is it OK to commit a crime in order to solve another crime? Is there a point where it’s not OK? To what extent are police allowed to injure an innocent bystander to lock up a criminal?”

Another observer, Quinnipiac University law professor and former federal prosecutor Jeffrey Meyer, suggested that “a court might be reluctant to second-guess” the agents in this case since they were in the midst of a corruption probe.

Spokesmen for the state police and the FBI Tuesday said they hadn’t yet seen the lawsuit and couldn’t comment.

What Happened

Norval Falconer spent four weeks in the Whalley Avenue jail after New Haven Detective Justen Kasperzyk and Lt. Billy White conducted a raid on a house on Truman Street on Nov. 9, 2006.

Falconer was visiting the house. Kasperzyk found drugs in the basement of the house. Then he went upstairs and claimed he found the drugs on Falconer.

Falsely charged with eight felonies, Falconer languished in jail, unable to make bond, until his public defender advised him to plead guilty so he could be home by Christmas.

He lost his job, became temporarily homeless, and continues to suffer economic, emotional and psychological distress from the incident, according to the lawsuit.

Read about his case here.

Meanwhile, state cop Stine was working alongside White and Kasperzyk, supposedly as a fellow narcotics investigator, but in truth compiling a corruption case. He planted money at scenes that White then stole. Stine reported regularly to the FBI’s point man for the investigation, Agent McGoey. He reported to McGoey about witnessing the incident in which Kasperzyk framed Falconer, according to the lawsuit filed Monday.

The following March the FBI finally busted White and Kasperzyk on a long list of theft and bribery charges, including charges connected to Falconer’s arrest. They both went to jail.

So did New Haven Detective Jose Silva. He had been present at the Truman Street frame job on Falconer. He eventually pleaded guilty in federal court to depriving Falconer of his civil rights by writing a false report corroborating the charges.

A Gagnon Test

Now attorney Polan’s suit accuses the state and federal agents of doing the same thing, albeit with a twist. They didn’t write false reports. They were in the process of trying to nab corrupt cops. But by not intervening to prevent the imprisonment of an innocent man, they deprived Falconer of his rights under the Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, the suit charges.

“A law enforcement officer is equally responsible for violation of a citizen’s civil rights if he stands by when another officer falsely arrests someone, which is what happened here,” Polan (pictured) said in an interview Monday.

She cited a landmark case (argued by Sue Wise, then-partner of New Haven’s John Williams), Gagnon vs. Ball. It involved a Milford woman, Doris Gagnon, who’d been falsely arrested. A jury held not just the arresting officer liable — but another officer who watched him conduct the arrest, too. The officers appealed the verdict on several grounds, including the argument that the second cop shouldn’t be held liable for not intervening on behalf of the wrongly arrested woman. In a landmark decision, the Second Circuit of the U.S. Court of Appeals upheld the verdict, and the idea that cops are responsible for intervening in false arrests.

Polan’s suit will test how far that precedent extends.

Polan used the government’s own documents from the prosecutions of the New Haven detectives to make her case in the new lawsuit.

“It’s clear from Blake Stine’s reports that he was standing there when Kasperzyck planted the drugs,” she said.

Professor Meyer, who handled civil-rights cases as a New Haven-based federal prosecutor, said that at first glance he believes Polan has “a tough case
to win.”

The agents will “likely assert the defense of qualified immunity, which would require plaintiff to show not merely that the agents were negligent in failing to intercede with the prosecutor but that they violated clearly established law of which a reasonable officer would have been aware in failing to tell the prosecutor,” Meyer argued.

“If the agents believed in good faith that disclosing the investigation to a state prosecutor could jeopardize the ongoing investigation, a court might be reluctant to second-guess the decision of the agents.”

Polan said Monday that she’s not suggesting that the feds and the state should have ended or jeopardized their corruption investigation in order to protect Norval Falconer. They didn’t need to, she argued. “All they had to do with pick up the phone, call the prosecutor and say, ‘We don’t want to take down our investigation yet, but give the guy a PTA [promise to appear].’”

Polan filed a separate $10 million lawsuit last November against New Haven police brass arguing that blame for Falconer’s false arrest extended higher up the chain of command. The city responded that the criminal behavior began and ended with three bad apples. (That case is ongoing.)