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AUREGUY v. TOWN OF TIBURON

June 24, 1993

EUGENE P. AUREGUY and CRAIG M. AUREGUY, Plaintiffs,
v.
TOWN OF TIBURON, TIBURON POLICE DEPARTMENT, et al., Defendants.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

 Plaintiffs and defendants have filed cross-motions for partial summary judgment. Plaintiffs seek a ruling that defendants are not entitled to assert a defense of qualified immunity in this matter. Defendants' cross-motion seeks a ruling that they have qualified immunity for their actions on the date in question. Upon consideration of the briefs and arguments of the parties in support of and in opposition to the motions, and good cause appearing therefrom, plaintiffs' motion for partial summary judgment is DENIED; defendants' cross-motion is GRANTED.

 FACTS AND BACKGROUND

 On October 17, 1990 at approximately 11:34 p.m., Officers McVeigh and Comfort were parked in separate marked police vehicles conversing on Tiburon Boulevard. Both vehicles were facing eastbound. The officers observed a vehicle drive by with a broken left taillight. Officer McVeigh told officer Comfort that he was going to talk to the driver about the taillight. Officer McVeigh activated his red light and pulled the vehicle over in front of 1550 Tiburon Boulevard adjacent to the Boardwalk Shopping Center.

 Officer McVeigh left his police car and approached the driver's side window. Officer McVeigh explained to the driver that he stopped him regarding his rear light and requested to see his driver's license, registration and insurance. The driver quietly produced the requested information. Officer McVeigh then directed the driver to wait in his vehicle while he conducted police business in the patrol car.

 When Officer McVeigh looked up from his patrol car to observe the vehicle's occupants he noticed that the vehicle's registration was expired. Officer McVeigh removed his ticket book from the car and started writing a ticket for the taillight and expired registration. Shortly thereafter, Officer Comfort arrived to assist.

 Officer McVeigh placed the driver's license on a clip on his ticket book. Officer Comfort observed the license and said he recognized the name Aureguy as someone that was involved in an altercation with a Tiburon police officer in 1982.

 Officer McVeigh radioed police dispatch and requested a warrant check, a 3 x 5 card check, and a driver's license check on Craig Aureguy's driver's license number. The amount of time involved in conducting these checks is in dispute. Officer McVeigh states that he requested the additional 3 x 5 card check for purposes of officer safety in light of Officer Comfort's statement regarding a prior altercation.

 The police dispatcher notified Officer McVeigh that Craig Aureguy had no warrants, and provided the driver's license status and information from Craig Aureguy's 3 x 5 card regarding previous contacts with the Tiburon police speeding and altered driver's license. Thereafter, Belvedere Police Officer Christopher Poole, who was driving in a separate patrol vehicle, advised over the radio that three days earlier he dealt with a Eugene Aureguy, who was involved in a previous assault on an officer. The police dispatcher radioed back and confirmed the information provided by Officer Poole. Officer Poole also informed McVeigh that Eugene Aureguy had been drinking and that he had given him a ride to a residence.

 Officer McVeigh completed the citation and approached the driver's side of the vehicle. As McVeigh approached the vehicle, the driver's door opened and Craig began to get out, yelling loudly, questioning the delay. McVeigh instructed Aureguy to get back in the vehicle and closed the door.

 Officer McVeigh began explaining to Craig Aureguy that the vehicle's registration had expired; Craig argued that it had not. After McVeigh explained that he was issuing a "fix it" ticket and that he if he signed it he could be on his way, Craig yelled, "Fuck you, my registration is not expired" and opened the door on Officer McVeigh's leg. Officer McVeigh closed the door and asked Craig to stay in the car until they were done.

 Craig continued yelling that his registration had not expired. As he was yelling, Officer McVeigh detected a moderate odor of alcohol on Craig's breath. Officer McVeigh again gave Craig the ticket and the opportunity to sign it and be on his way. Craig, however, continued arguing about the registration at which point Officer McVeigh put his ticket book on the roof of the car and asked, "Would you like to come out and take a look at it?" Craig got out of his vehicle, went to the rear, and continued yelling, using profanity, stating that there was a lien on the vehicle. As Craig continued to yell, McVeigh detected a stronger odor of alcohol from Craig. McVeigh requested Craig to perform field sobriety tests because of the odor of alcohol on his breath. Shortly thereafter, a dispute arose which escalated into a physical altercation between plaintiffs and defendant officers.

 DISCUSSION


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