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UWY-CV-21-5028294-S
NANCY BURTON SUPERIOR COURT
JUDICIAL DISTRICT
Vv. OF WATERBURY
DAVID PHILIP MASON
ETAL. DECEMBER 8, 2021
PLAINTIFF'S OBJECTION TO
STATE DEFENDANTS’ MOTION TO STRIKE
INTRODUCTION
Pursuant to Practice Book §10-39, the State of Connecticut Department of
Agriculture (“DOAG’). Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner’)
and Charles DellaRocco, DOAG Animal Control Officer (collectively, “State
Defendants’), have moved to strike Count Seven from the Second Amended Complaint
(“Complaint”)(#120.00)",
The Seventh Count alleges as follows:
SEVENTH COUNT: 42 U.S. CODE §1983
117. Paragraphs 1-90 of the First Count are incorporated herein as Paragraph 117 of
the Seventh Count.
118. The defendants, some or all of them, have acted under color of state law to deprive
plaintiff of her rights and protections guaranteed by the U.S. Constitution, including her
rights to due process, First Amendment guarantees and the Fourth Amendment
protection against illegal searches and seizures.
119. Such deprivations have caused plaintiff to suffer harm and financial loss.
WHEREFORE, plaintiff seeks compensatory and punitive damages in the amount of
$65 million and injunctive relief.
The State Defendants argue that Count Seven fails to allege facts to support a claim
for which relief may be granted and is therefore legally insufficient. (The State
' Plaintiff filed her Second Amended Complaint on June 14, 2021, two days prior to
June 16, 2021, the date the Connecticut Judicial Department reopened its law libraries
to patrons, while limiting computer use, including legal research databases, to one two-
hour session per person per day. The law libraries had been closed in 2021 and
remained closed until June 26, 2021 due to the COVID-19 pandemic outbreak. See
attached Judicial Department notice. The law library shutdown seriously prejudiced
Plaintiff (and doubtless many others) in this matter and in the related case of State of
Connecticut ex rel. Jeremiah Dunn v. 65 Goats et al., HHD-CV-21-6139702-S, as it!
made it very difficult to engage in necessary legal research during that period.
1
Defendants waived their right to file a request to revise in advance of their motion to
strike.)
Plaintiff counters that Count Seven alleges facts and such facts as are necessarily
implied from the allegations sufficient to support the cause of action alleged in the
Seventh Count and therefore the motion to strike must be denied.
Standard of Review
In considering a motion to strike, the Court takes the facts to be those alleged in the
complaint and construe the complaint in the manner most favorable to sustaining its
legal sufficiency. Thus, if facts provable in the complaint would support a cause of
action, the motion to strike must be denied. What is necessarily implied in an allegation!
need not be expressly alleged. It is fundamental that in determining the sufficiency of a
complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those
facts necessarily implied from the allegations are taken as admitted. Pleadings must be
construed broadly and realistically rather than narrowly and technically. Lawrence v. O
& G Indus., Inc., 319 Conn. 641, 648-649 (2015). All facts in the complaint must be
construed in the manner most favorable to the non-moving party. Sienkiweicz v.
Ragalia, 2008 WL 2096864 (CV-03-401770-S)(May 5, 2008) There is a significant
difference between asserting that a plaintiff cannot state a cause of action and
asserting that a plaintiff has not stated a cause of action, and therein lies the difference
between the motion to dismiss and the motion to strike. Egri v. Foisie, 83 Conn. App..
243, 247 (2004).
Most if not all supposed deficiencies in the Complaint as cited by the State
Defendants are and were curable by means of a request to revise and/or repleading.
Sienkiweicz v. Ragalia, supra. However, by not filing a request to revise,
A “speaking” motion to strike — imparting facts outside the pleading — is
disallowed. Doe v. Marselle, 38 Conn. App. 360, 364, reversed on other grounds, 236
Conn. 845 (1996). Therefore, the State Defendants’ insertion of “facts” — truthful or not —
Should not be countenanced and such insertions stricken and disregarded.
Factual Background
The Complaint principally focuses on events leading up to and occurring on March 10,
2021, when the State Defendants and others[1] participated in an unannounced raid on
Plaintiffs home and property and (1) seized some 65 goats ostensibly pursuant to a
warrant, (2) invaded her home ostensibly pursuant to a warrant and (3) stole from inside
her home various items of Plaintiff's irreplaceable and valuable personal
property beyond the stated scope of the warrant. Complaint Paragraphs 80, 82.
The Complaint asserts in Paragraph 81G that as of the time of their seizure on
March 10, 2021:
The Plaintiff's goats were in good health, were well-nourished, had access
to plentiful water, were appropriately sheltered, had access to spacious
exercise and grazing areas, received veterinary care when and where
appropriate and were loved and well cared for by Plaintiff, their devoted
caretaker.
Accepting the allegations of Paragraph 81G as true, as the Court must in
accordance with the standards governing its consideration of a motion to strike,
the State Defendants lacked probable cause to seize the goats within the meaning
of the governing statute, Conn. Gen. Stat. §22-329a, as the statute requires
commission of an act of cruelty or neglect by the owner/caretaker as a raison|
d’etre in an application for a warrant to seize domesticated animals from their
owner and Plaintiff was never cruel nor neglectful toward her goats, as
Defendants were fully aware. Therefore, the search and seizure beyond any doubt
violated the Fourth Amendment of the U.S. Constitution and thereby 42 U.S.C
§1983, the basis of the Seventh Count.
The Complaint further asserts in Paragraph 82 that contemporaneous with the goat
seizure on March 10, 2021:
Beginning prior to 8 AM on March 10, 2021, defendant DellaRocco and
other DOAG agents and members of the defendant Redding Police Department
converged unannounced on plaintiff's property and some or all of them unlawfully
removed items of Plaintiff's personal property inside and outside her home
including personal items of great value which are irreplaceable . . .
Accepting the allegations of Paragraph 82 as above-recited as true, as the Court
must in accordance with the standards governing its consideration of a motion to strike,
the alleged theft of Plaintiff's personal property by individuals under Officer
DellaRocco’s supervision and Officer DellaRocco himself from inside her home violated
the Fourth Amendment of the United States Constitution and, because the theft was
unreasonable, unlawful and without probable cause, as was the invasion of her home,
thereby in violation of 42 U.S.C. §1983, the basis of the Seventh Count.
The goat seizure put a temporary end to and chilled Plaintiff's First Amendment-
protected (and thereby, by virtue of the Fourth Amendment, Fourteenth Amendment-
protected) Mothers Milk Project,[2] as she no longer possessed goats on her property
and therefore had no goat milk produced on her property to sample and analyze for the
presence of radioactive contamination; thereby, the goat seizure violated the Fourteenth
Amendment in this respect. Additionally the State Defendants chilled Plaintiffs exercise
of her First Amendment rights of free speech, to free association, and to petition the
government for a redress of grievances when the Office of the Attorney General,
assertedly on behalf of the State Defendants, interfered with her right to inspect the
grounds of the state facility where the State Defendants have kept her goats illegally
confined in deplorable conditions since March 10, 2021, from the vantage point of public
property near the facility, by threatening her and blocking her access to public records
concerning the goats illegally and without cause.?
Indeed, the State Defendants’ true raison d'etre for the goat-seizure-and-home-4
invasion has been to retaliate against Plaintiff and end her decades-long acts of public-
spirited, pro bono publico judicial and governmental whistleblowing. But for this|
flagrantly unconstitutional retaliatory fever, the State Defendants would have had no
interest in seizing the healthy, happy goats, treating them cruelly in deplorable
conditions, harassing Plaintiff and invading her home to steal invaluable personal
objects of great value, even forcing her to leave her home of 35 years out of fear of their
terror tactics. See, e.g., Complaint Paragraphs 38 (Redding First Selectman Julia
Pemberton “actively feeding] a frenzy of manufactured goat hysteria in the community
through social media without having discussed any issues of concern with Plaintiff about
her goats and without meeting the goats or making any effort to become informed and
aware of the goats’ natural behavior or contribution to the Mothers Milk Project.”), 51
(Redding Chief of Police widely disseminating his press release falsely accusing Plaintiff
of being responsible for “severe harm” to a goat)[3].
The entire matter of the goat seizure and home invasion achieved the primary result
intended as it culminated in a torrent of false and sensational negative attention in the
national and even international news media and social media fomented by the State,
Town and private Defendants in this case.
As the Complaint sets forth in Paragraph 87, this matter
2 This misconduct by the Office of the Attorney General and the State Defendants will
be pursued in filings soon to be submitted concerning this case.
3 The first act of judicial retaliation Plaintiff experienced as a just-sworn-in Connecticut
attorney occurred in 1985, when Plaintiff appeared before the late Hon. Howard J.
Moraghan as pro se plaintiff in Nancy Burton v. Anne Guitar, her first lawsuit brought
seeking a writ of mandamus to require the Redding Board of Selectmen to convene a
town’ meeting to consider whether a study committee should be appointed to consider
whether a “Mark Twain Historic District’ should be created in the neighborhood of
historic homes and vistas where Mark Twain, the celebrated writer, chose to make his
last home and where he died. The Selectmen opposed such a study and dismissed
Plaintiffs petition signed by 21 registered voters which, by virtue of an ancient
Connecticut statute, mandated a town meeting to consider the issue. When Plaintiff
made her first appearance in the Connecticut Superior Court, it was before Hon Howard
J. Moraghan, who summoned Plaintiff to the bench to tell her she needed to hire an
attorney if she wished to pursue the suit as he would not allow her to pursue it as a pro
se litigant. Attorneyless, she argued the case before Hon. William Sullivan, later Chief
Justice of the Connecticut Supreme Court, and he ruled in Plaintiff's favor, finding the
Selectmen abused their power in dismissing the petition. The name of the First
Selectman who denied the petition, Mary Anne Guitar, later appeared on a printed
program naming dozens of “friends of Judge Moraghan” honoring him on his retirement.
4
constitute[s] an elaborate and reprehensible ruse by the defendants and the
Office of the Attorney General to harm and humiliate plaintiff, cause her crushing
heartbreak and despair, divert her from her important public-interest endeavors,
subject her to great and unnecessary expense, by which Plaintiff's goats have
been made to suffer cruelty, abuse, brutality and other perverse practices by the
State of Connecticut and its agents and by the Town of Redding and its agents
and by their co-defendants in this action.
As Paragraph 88 points out, such conduct by the State Defendants and their co-
Defendants constitutes clear and outright retaliation for [Plaintiff's] bold and courageous
public-interest endeavors in which she has spoken truth to power; such conduct is inter
alia a severe interference with plaintiff's First Amendment and other Constitutionally
protected rights that shocks the conscience.
Regarding the State Defendants’ invasion of her home on March 10, 2021, the State
Defendants justify such act on the fact that at their request Judge Robert D’Andrea of
the Danbury Superior Court signed a search and seizure warrant purportedly
authorizing them to invade Plaintiff's home in search of tangible items relating to goat
care and feeding.
Although the State Defendants argue that the law accords a “presumption of legal
validity” from the fact that a judge in the position of a “magistrate” signed a search
warrant based on an application by an animal control officer, in this case there can be
no such presumption. For example, in assessing the factual and legal sufficiency of a
search and seizure warrant application supported by the officer's affidavit, the
magistrate’s focus is on the affiant, not his informants. In this case the affiant, Charles
DellaRocoo, is self-disqualified by his criminal history (including arrest on felony charges
of larceny and forgery while assigned as a police officer to safeguard the safety and
security of the justices of the Connecticut Supreme Court), forced resignation from
coaching a girls’ soccer team in light of an investigation of viewing pornographic videos,
as reported by the Hartford Courant and other unsavory misconduct, not to mention his
frequent acts of prevarication, committing fraud upon the court in this matter and directly
engaging in acts of animal cruelty and abuse. For these and a multitude of other
reasons (see further discussion infra), the search and seizure warrant was of no legal
force or effect; accordingly, the goats must be released from state custody without
further delay and items of personal property stolen from Plaintiff's home returned.
Plaintiff was accorded neither prior notice nor a hearing prior to the seizure, although
such procedural protections are mandated by the due process clause of the Fourteenth
Amendment. It is the essence of Fourteenth Amendment protections that the state may
not lawfully deprive an individual of lie, liberty or property without due process of law.
This case presents no exception to such rule. This case presents the obvious anomaly,
of the State of Connecticut seizing healthy, happy, well-cared-for goats without cause,
let alone probable cause, for lengthy confinement in deplorable conditions and actual,
acknowledged acts of animal cruelty and neglect, as well as other factors which weigh
in the state’s need to provide Plaintiff with prior notice and a hearing.
The Complaint asserts in Paragraphs 29-30 that the then-state veterinarian, Mary
Jane Lis DVM, personally inspected each of Plaintiff's goats and the entirety of her
property and the conditions in which they were cared for and concluded in her report
dated June 15, 2018 as follows: “At the time of this investigation, all goats on the
property appear to be in good condition with food and water available.” Pursuant to
Conn. Gen. Stat. §19-341, such investigation carried out by the state’s official
veterinarian accords Plaintiff freedom from a bad-faith, arbitrary and harassing search-
and-seizure operation such as was carried out on March 10, 2021: By operation of the
statute, Plaintiff was insulated from the March 10, 2021 goat seizure on grounds it wag
undertaken without prior notice and a hearing.
The Complaint asserts at Paragraph 811:
That DOAG lacked probable cause or any other proper or valid cause to search
Plaintiff's property and seize her goats, invade her home and steal valuable items of
personal property from inside her home.
The warrant application was prepared by Defendant Charles DellaRocco
(“DellaRocco”), the DOAG animal control officer who plotted and oversaw the March 10,
2021 raid. Neither the warrant application nor the affidavit provided by DellaRocco in
support of the warrant application mentions his arrest on Class D felony counts of
forgery and larceny while serving as a police officer assigned to provide security for the
justices of the Connecticut Supreme Court. DellaRocco withheld such information from
the search and seizure warrant application he submitted to Superior Court Judge Robert
D’Andrea on March 9, 2021. DellaRocco also withheld.from the application any mention
of his forced resignation as coach of the Old Saybrook girls’ soccer team in light of a
pornography investigation, as reported by the Hartford Courant. Complaint Paragraph
58. DellaRocco also withheld from the application his failure to investigate a complaint
of acts of animal cruelty and other misconduct by Defendants David Philip Mason,
Elinore Carmody and Dennis Gibbons as filed with Commissioner Hurlburt by Plaintiff,
although he had been directed by Commissioner Hurlburt to investigate it. Complaint
Paragraphs 55-57, 59-61, 65-69. Later, in sworn testimony before a judge of the
Superior Court, DellaRocco testified falsely that Plaintiff's complaint to Defendant
Hurlburt was “unfounded.”
DellaRocco’s sworn affidavit accompanying the search and seizure warrant
application was otherwise “replete with recklessly uttered and knowingly false
statements,” and reliant on unidentified “informants” possessing malice and lacking
credibility, honesty and “evidencing ignorance of plaintiff, the goats, plaintiff's care and
treatment of the goats and pertinent facts such as to render the affidavit an abuse of the
police power.” Complaint Paragraph 75
Judge Robert D’Andrea while assigned the case of Nancy Burton v. Animal
Nation, Inc. Paragraphs 27, 28, 31, 32, 50, in which he gave improper directives to
defendants; counsel, and did not qualify as a neutral and dispassionate magistrate,
nevertheless signed the search and seizure warrant presented to him by DellaRocco.
DellaRocco withheld from his affidavit the fact that one of his unidentified “informants”
was Lea Alba, a volunteer with Animal Nation, Inc.
Plaintiff was endeavoring to rehome many of her goats and did with the help of
Animal Nation, Inc. Complaint Paragraph 31
Responding to an anonymous complaint in 2017, DOAG assigned an animal control
officer to investigate Plaintiff's goats and their care and living conditions in 2017.
Complaint Paragraph 30.
At the conclusion of the investigation, which included two visits personally
supervised by Mary Jane Lis, DVM, then-state veterinarian, DOAG animal control
officers concluded in a written report dated June 15, 2018:
At the time of this investigation, all goats on the property appear to be in good
condition with food and water available.
Complaint Paragraph 30.
Legal Argument
A. The Complaint states a claim for constitutional injury by the Commissioner
of Agriculture Hurlburt
A “Constitutional injury” sufficient to set forth a 1983 claim requires a violation of a
right secured by the Constitution and laws of the United States and such deprivation
committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48)
(1988).
“In order to state a cause of action under §1983, the plaintiff must allege an abuse
of governmental power which is sufficiently egregious as to be constitutionally
tortious.” McLaughlin v. City of Shelton, CV 92-040331, 1995 Conn. Super. LEXIS 1548,
at “3 (Super. May 23, 1995).
The State Defendants agree that Commissioner Hurlburt “is an agent of the State of
Connecticut whose official acts are taken under the color of state law.” Memorandum in
Support of Motion to Strike at page 4.
They identify the remaining inquiry in their Motion to Strike is “to determine what
official actions the Commissioner took that caused an alleged deprivation of Plaintiff's
Constitutional rights.”
State Defendants assert that “nothing in Plaintiff's complaint indicates any action by
the Commissioner that resulted in a constitutional deprivation at all, and Plaintiff has
failed to state a claim thereby.”
However, contrary to State Defendants’ argument, Plaintiffs allegations directed at
Commissioner Hurlburt do identify his extensive, specific personal responsibility for a
wide range of alleged injury. Sienkiewicz v. Ragalia, Docket No. CV 03 0401770 S,
2008 Conn. Super. LEXIS 1090, at *14-15 (Super. May 5, 2008), citing Arroyo v.
Schaefer, 548 F.2d 47, 51 (2d Cir. 1977).
Contrary to the State Defendants’ arguments, the Complaint sets forth substantial
allegations of Commissioner Hurlburt’s conduct as an individual and as an individual in
charge of the Department of Agriculture allegations. See Paragraphs 41, 55-85, 87-89
and which, considered in light of what is necessarily implied from said allegations and
reasonable inferences to be drawn from them, and considered in the light most
favorable to Plaintiff, overwhelmingly suffice to overcome the motion to strike.
His outlier conduct is “sufficiently egregious to be constitutionally tortious.”
McLaughlin, Id. This conduct includes:4
1 The Commissioner’s awareness and allowance of seizure of Plaintiff's goats,
known by him to have been healthy, robust and well cared for and therefore
beyond the scope of a permissible §22-329a seizure, and without prior notice and
without a prior hearing and in knowing violation of Plaintiffs due process rights
pursuant to the Connecticut right-to-farm law as well as her then-pending First|
Amendment right-of-access-to-the-courts litigation (Nancy Burton v. Redding
Zoning Commission and Nancy Burton v. Julia Pemberton)(See Complaint
Paragraph 81E), which, if successful, would have allowed Plaintiff the legal right
to keep more than the nine goats otherwise allowed as-of-right on her property!’
The Commissioner's awareness and allowance of the search-and-seizure
warrant application and affidavit prepared by Charles DellaRocco for submission
to Judge Robert D’Andrea despite the disqualifying and uncorrectable criminal
history of Mr. DellaRocco involving his arrest on felony charges of larceny and
forgery while assigned to safeguard the safety and security of the justices of the
Connecticut Supreme Court, and his penchant for deceit and dishonesty as
exemplified inter alia in his failure to carry out the investigation he was ordered by
Commissioner Hurlburt to undertake (Complaint 56-57, 62, 65-69).
The Commissioner's awareness and allowance of cruel, abusive and deplorable
conditions of confinement Plaintiff's goats were subject to in temporary state
custody, leading to the unnecessary and preventable deaths of some of Plaintiff's
goats — tantamount to criminal acts of animal cruelty - and the suffering of all of
them.
4 It is noted that this incomplete listing is expected to be substantially enlarged in a
further-amended and/or substitute complaint to incorporate new revelations and
disclosures as have occurred since June 14, 2021, the date of the operative Second
Amended Complaint.
The Commissioner’s awareness and allowance of a policy of leaving Plaintiff's
goats without human attendance for 17 hours straight every day while in state
custody and the unnecessary death of a goat pregnant with three kids during one
such periods — tantamount to criminal acts of animal cruelty.
The Commissioner’s awareness and allowance of retaliatory action taken by
DOAG and other state agencies against Plaintiff's exercise of First Amendment
rights in her lawful attempt to view the DOAG confinement facility from nearby
public property for purposes of engaging in other protected free
speech/assembly/petitioning activities protected by the First Amendment and to
conceal deliberate misconduct and abuse on his part and on the part of his
subordinates from the news media and the public.
Conspiring with certain private individuals, including the Commissioner’s co-
Defendants in this action to impede, frustrate and circumvent Plaintiff's
Constitutional rights.
The Commissioner's awareness and allowance of a subordinate, Charles
DellaRocco, to fraudulently and in bad faith apply for a search and seizure
warrant to seize Plaintiff's goats and invade her home while concealing his
criminal background from the magistrate judge and providing statements he knew
to be false and misleading and omitting material facts.
The Commissioner’s refusal to allow Plaintiff to inspect her goats and the
conditions of their state confinement to frustrate, impede and prevent her
exercise of her Constitutional rights of free speech, association and petitioning
the government in retaliation for her judicial and government whistle-blowing.
The Commissioner's refusal to allow the release of Plaintiff's goats to qualified
and willing goat sanctuaries as identified by Plaintiff on April 16, 2021 to enable
fulfillment of an improper objective (to force Plaintiff to pay hundreds of
thousands of dollars for the months and months of feed and other care of the
goats while in state confinement while subjecting the goats to inhumane and
cruel mistreatment and abuse while in state custody) when rehoming the goats to
such private sanctuaries would cost the state nothing and be in the best interest
of the goats.
10. The Commissioner's awareness that Officer DellaRocco was believed by Plaintiff
to have stolen valuable items of valuable personal and irreplaceable property
property from her home on March 10, 2021 and his failure to take appropriate
action to have the property returned to Plaintiff.
11. The Commissioner's awareness and allowance of an illegal “black market”
scheme operating out of the DOAG confinement facility and on the Internet
whereby individuals arranged to sabotage and violate certain provisions of §22-
329a concerning goat auctions and adoptions.
12. The Commissioner's awareness, allowance and prosecution of administrative
and criminal proceedings to be instituted against Plaintiff without lawful or
probable cause and aware that Plaintiff lacked both mens rea and actus reus to
commit the alleged unlawful acts.
13. The Commissioner's awareness and allowance and prosecution of Plaintiff]
pursuant to §22-329a and §53-247 with the knowledge that such statutes are
facially unconstitutional and as applied to Plaintiff for failure inter alia of due
process protections.
14. The Commissioner's abuse of power and scheming with the co-Defendants, as
detailed above and in other ways, for the primary purpose of harassing, terrifying
and retaliating against Plaintiff for her judicial and legal whistleblowing and
thereby causing her severe distress and other harms.
“It is well settled that a police supervisor [in a position of authority commensurate
with Commissioner Hurlburt’s] whose deliberately indifferent supervision of a
subordinate contributed to the subordinate’s violation of a person’s constitutional rights
could be held liable for those violations. Estate of Davis, Headnote 40
Thus, for example, an official such as Commissioner Hurlburt who, while acting
under color of state law, caused Plaintiff to be subjected to deprivation of rights under
the Constitution or federal law, may be liable under §1983 for his own actions but also,
in certain circumstances, for the actions of his subordinates if
1 He may have directly participated in the infraction;
2 After learning of the violation through a report or appeal may have failed to
remedy the wrong;
He created a policy or custom under which unconstitutional practices occurred, or
allowed such a policy or custom to continue; or
He was grossly negligent in managing subordinates who caused the unlawful
condition or event.
Wright, 21 F.3d at 501; Spencer v. Doe, 139 F.3d 107 (2d Cir. 1998). The Complaint
alleged directly and inferentially all of the above.
While the doctrine of respondeat superior cannot form a basis for a claim under
§1983, Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999), as argued by State
Defendants, it is not applicable here “because the alleged conduct is specific and the
state actor is directly involved with the constitutional violation. See Wright v. Smith, 21
F.3d 496, 501 (2d Cir.1994)(‘“it is well settled in this Circuit that personal involvement of
Defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under §1983’).
10
Liability under §1983 turns on a defendant's personal involvement in the alleged
constitutional deprivations.” Williamsv. Smith, 781 F.2d 319, 323 (2d Cir. 1986)
While plaintiff must plead that each Government-official Defendant, through the|
Official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009) (“each Government official, his or her title notwithstanding, is only
liable for his or her own misconduct”), further pleading awaits adjudication of the motion
to strike.§
In the nearly six (6) months since the operative Second Amended Complaint was
filed, new revelations regarding Commissioner Hurlburt and his personal role in this
case have surfaced, giving rise to the need to amend the complaint to incorporate these
facts and circumstances, which include his actions which evidence his indifference to
the cruelty and abuse which have been inflicted on Plaintiff's goats while in state
confinement under his supervision, his failure to adequately monitor and supervise
DOAG employees under his authority, his failure to correct such conditions and
accomplish what is best for the goats’ future welfare: agreeing with Plaintiff to release
the goats to the care and custody of goat rescue sanctuaries identified by Plaintiff and
willing to accept them and care for them for the duration of their natural lives.
It is also clear that Commissioner Hurlburt made no arrangements, and neglected to|
assign DOAG staff to make appropriate arrangements, to provide Plaintiff with prior
notice and a prior hearing to avoid depriving Plaintiff of her fundamental due process
rights, particularly in light of Dr. Mary Jane Lis’s (then-state veterinarian) on June 15
2018 investigation report providing Plaintiff with immunity from goat seizure and
invasion without prior notice and a hearing under the state’s right-to-farm law, Conn.
Gen. Stat, §19-341
Under his watch, DellaRocco and his co-agents knowingly confined Goat “#6” (not
even bothering to learn her true name and accord her a small measure of dignity) to
overcrowded, dingy quarters, deliberately left unattended by human beings 17 hours out
of every day, with inadequate water and food while she was pregnant with three kids
and nearing labor. She was left by Commissioner Hurlburt to suffer and die, her remains
incinerated to conceal and destroy evidence of their crime of animal cruelty and thereby
withhold the truth of his misconduct and that of his co-Defendants from the public.
This misconduct goes beyond egregious; it is beyond unconscionable. Plaintiff's
pleadings have more than satisfied the standards of the Practice Book to adequate
plead a cause of action.
5 It must be noted that State Defendants’ attorney, the Office of the Attorney General
has obstructed, interfered with and delayed discovery since March 10, 2021 in part to
conceal the names of the individuals engaged with State Defendants Hurlburt,
DellaRocco, Jeremiah Dunn and Tanya Wescovich iin the activities which are the
subject of this litigation.
11
B. The Complaint sufficiently states a claim of constitutional injury by
DellaRocco
The Complaint references Officer DellaRocco by name at Paragraphs 42, 57, 59-65,
70 and inferentially in all Paragraphs concerning allegations relating to the First
Amendment, Fourth Amendment and Fourteenth Amendment.
a. Plaintiff has sufficiently stated a claim under the First Amendment
As a general matter, the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions for engaging in protected speech. Hartman
v. Moore, 547 U.S. 250, 256 (2006). If an official takes adverse action against someone
based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to
provoke the adverse consequences, the injured person may generally seek relief by
bringing a First Amendment claim. Plaintiff must establish a causal connection between
the government defendant retaliatory animus and the plaintiff's subsequent injury. It is
not enough to show that an official acted with a retaliatory motive and that the plaintiff
was injured — the motive must cause the injury. It must be a “but-for’ cause, meaning
that the adverse action against plaintiff would not have been taken absent the retaliatory
motive.
In this case, prior to the State Defendants’ goat seizure on March 10, 2021,
The Plaintiff's goats were in good health, were well-nourished, had access
to plentiful water, were appropriately sheltered, had access to spacious
exercise and grazing areas, received veterinary care when and where
appropriate and were loved and well cared for by Plaintiff, their devoted
caretaker.
Complaint Paragraph 81G.
Given the facts set forth in Paragraph 81G, which are true and must be accepted as
truthful in the Court's consideration of the motion to strike, Officer DellaRocco and his
fellow State Defendants had no cause to seize them. Moreover, the DOAG
Commissioner, acting by and through the then-state veterinarian, had “immunized”
Plaintiff from such a seizure in the future without prior notice and hearing by virtue of
application of Conn. Gen. Stat. 19-341.
Nevertheless, on the alert for any opportunity to retaliate against Plaintiff for her
decades-long public-interest and judicial/governmental whistleblowing,® the State
8 The most recent involved argument presented to the Connecticut Supreme Court in
September 2020 in Nancy Burton v. Regina McCarthy, SC 20466, decided on January
21, 2021. Plaintiff filed a motion for reargument en banc on February 8, 2021 setting
forth how the Connecticut Department of Energy and Environmental Protection, per its|
attorney Matthew Levine, the State Defendants’ counsel herein, argued successfully in
12
Defendants and their counsel, the Office of the Attorney General, seized upon the false
and malicious accusations by a neighbor (Defendant Elinore Carmody) that the goats
were “underfed” and lacking veterinary care, to place Plaintiff under a bogus period of
“surveillance” to try to discover any shortcoming in Plaintiff's care of her goats which
might form the basis of a ruse to seize the goats as an extreme act of retaliation against
Plaintiff. They were unable to verify the neighbor’s ignorant assertions and settled on a
scheme to present a search-and-seizure warrant and “affidavit” bearing Officer
DellaRocco’s signature and present it to a judge who was conflicted because he was
also presiding judge in Nancy Burton v. Animal Nation, Inc., then pending in the
Superior Court. Complaint Paragraph 28. The affidavit was replete with false
statements; “informants” were not identified, nor was evidence of their “credibility”
submitted. Necessary and material facts were omitted, most noticeably and notably any
mention of Officer DellaRocco’s prior arrest on felony charges of larceny and forgery
(both implicating honesty and integrity) while he was assigned as a police officer to
safeguard the safety and security of the justices of the Connecticut Supreme Court}
Thereby, State Defendants’ motive — to retaliate against Plaintiff for her
judicial/governmental whistleblowing/First Amendment - “protected” expression -
caused the injury: the State Defendants’ submission of the search-and-seizure warrant
application and subsequent seizure of Plaintiffs goats without probable cause and their
invasion of her home without probable cause and their theft of Plaintiffs valuable and
irreplaceable objects from inside her home outside the stated scope of the warrant.
Nieves v. Bartlett, 139 S.Ct. 1715 (2018).
The State Defendants and their attorney knew that without her goats, Plaintiff could
not carry on her public interest-motivated Mothers Milk Project. They chilled and froze
her First Amendment rights to collect her goats’ milk, have it analyzed and thence to
speak out on the subject and to continue to petition the government for redress over the
continuing radioactive contamination as evidenced in the goat milk samples.
Furthermore, they chilled her First Amendment rights when they brought retaliatory
measures to bear to stop her from observing the state goat confinement facility from a
public road. The facts of this egregious mistreatment will be further developed and
exposed in forthcoming pleadings.
The governmental participants in this scheme are all culpable. Law enforcement
officers have an affirmative duty to intervene to protect against the infringement of
constitutional rights committed by other officers in their presence. Curley v. Village of
Suffern, 268 F.3d 65, 72 (2001); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)
The Supreme Court has held that no higher probable cause standard applies when
the First Amendment is implicated by a Fourth Amendment search or seizure}
support of releases of radioactive waste into the Long Island Sound in violation of the
Clean Water Act.
13
Plaintiff has established that State Defendants’ conduct has brought about an
egregious violation of her First Amendment rights, which is continuing. She has alleged
specific present objective harm and threat of specific future harm. Laird v.Tatum, 408
U.S. 1, 13-14 (1972).
b. Plaintiff has sufficiently stated a claim under the Fourth Amendment to the
United States Constitution and a lack of probable cause
The Complaint Paragraph 82 and its six subsections state that the State Defendants
lacked probable cause to search Plaintiff's property and seize her goats. In the absence
of probable cause, State Defendants including Officer DellaRocco violated Plaintiff's
Fourth Amendment right to be from an unreasonable search and seizure by agents of
the state.
As to the Home Invasion
The State Defendants’ invasion of Plaintiffs home in pursuit of items identified in the
warrant — “all animal health and ownership records; photographs of animals; receipts
and bills related to animal care and feeding; and medication related to animal care”-
was just another manufactured ruse that failed to give rise to probable cause for the
following reasons:
4
Commissioner Hurlburt and his subordinates, prior to March 10, 2021, had
communicated requests to Plaintiff for animal health records; in response,
Plaintiff had provided such information and records to them. On March 10, 2021,
they took no such materials from Plaintiff's home.
Notwithstanding the above, Commissioner Hurlburt and his subordinates had
contacted Plaintiff's veterinarians and obtained any and all information they may
have wanted from them.
Plaintiff has no animal ownership records and if they had asked she would have,
told them so. On March 10, 2021, to plaintiff's knowledge, they took no such
materials from Plaintiff's home.
If Commissioner Hurlburt and his subordinates had asked Plaintiff for
“photographs of animals, receipts and bills related to animal care and feeding and
medication related to animal care,” she would have provided such as she had.
On March 10, 2021, to plaintiff's knowledge, they took no such materials from
Plaintiff's home.
The request “photographs of animals” is incomprehensibly overly broad”; it is not
even limited to goats. Plaintiff once went on a safari to Africa: Did Commissioner
14
Hurlburt want her pictures of grazing giraffes? On March 10, 2021, to plaintiff's
knowledge, they took no such materials from Plaintiff's home
Commissioner Hurlburt’s subordinates frequently photographed Plaintiff's goats
during the numerous occasions when they trespassed on her property and from
neighboring properties. Nothing they photographed was used to support the
warrant. On March 10, 2021, to plaintiffs knowledge, they took no such materials
from Plaintiffs home
While the home invasion was underway on March 10, 2021, and Plaintiff's goats
were being loaded onto enormous animal vans as Plaintiff watched from the
street, Plaintiff persisted in trying to interest the State and Town Defendants and
their agents carrying out the raid in reviewing the goats’ medical records and
prescribed medications which Plaintiff maintained inside her home so they would
be able to provide the goats with continuity of care during their temporary)
absence, completely unaware that at the very same time Officer DellaRocco
and DOAG agents and Town of Redding police officers and employees were
inside her home rifling through her personal possessions under the protective
cover” of a search-and-seizure warrant for the very same items, as she was
left uninformed of this fact and all persons under Officer DellaRocco’s supervision
had been told not to engage in communications with Plaintiff.
Although Officer DellaRocco produced a court form on which he wrote that he had
seized 65 live goats and one deceased goat from Plaintiff's property, the form makes no
mention of any other of Plaintiff's property that he seized from her property or home on
that day. Bottom line: Officer DellaRocco, affidavit affiant, had no legitimate interest or
need for any of the items of personal property identified in the warrant
The warrant application concerning objects to be seized from inside Plaintiffs home
was obviously a ruse to “legalize” an otherwise forbidden invasion of Plaintiff's home.
Its fraudulence dictates exclusion and suppression of the warrant and everything
seized pursuant to the warrant.
As the Complaint asserts at Paragraph 82, during Officer DellaRocco’s invasion of
Plaintiff's home on March 10, 2021, numerous “personal items of great value which are
irreplaceable” were “unlawfully removed” by “some or all of them” [State and Town
Defendants participating in the invasion], which took place during Officer Della Rocco's
direct supervision.” Although the State and Town Defendants have been served with
notice as to the stolen property, none of it has been returned.
“In determining whether the warrant was based upon probable cause, courts may
consider only the information that was actually before the issuing judgeat the time he or
she signed the warrant, and the reasonable inferences to be drawn therefrom. State v.
Mordowanec, 259 Conn. 94, 110 (2002)
15
“Probable cause, broadly defined, comprises such facts as would reasonably
persuade an impartial and reasonable mind not merely to suspect or conjecture, but to’
believe that criminal activity has occurred . . . Probable cause to search exists if: (1)
there is probable cause to believe that the particular items sought to be seized are
connected with criminal activity; and (2) there is probable cause to believe that the items
named will be found in the place to be searched. [Citations go off the page!!!!!] State v.
Mordowanec, 259 Conn. 94, 109-110 (2002)
As the warrant application and affidavit presented no cause to invade Plaintiff's
home, and in fact the invasion did not result in seizure of any of the “warrant-authorized
items,” the invasion was a unconstitutional travesty.
In Kyllo v. United States, 533 U.S. 27 (2001), the U.S. Supreme Court analyzed the,
seminal case of Katz v. United States, 389 U.S. 347 (1967): “Whether the individual has
an expectation of privacy that society is prepared to recognize as reasonable . . .121
S.Ct. 2043. "... in the home . . . all details are intimate details because the entire area
is held safe from prying government eyes,” 121 S. Ct. at 2045 and that is acknowledged
to be reasonable.
“And because we are faced today with only the question of the integrity of the
affiant’s representations as to his own activities .. . “438 U.S. 154, 171.
Under Franks, the truthfulness of the affiant, and not the informant, is the issue. Federal
precedent limits the Franks challenge to the veracity of the affiant. See State v. Glenn,
251 Conn. 567, 574-75 (1999), quoted from State v. Mordowanec, 259 Conn. 94, 108
(2002)
The Fourth Amendment requires reasonableness not only as to whether a search
should be conducted at all, but also to ensure reasonableness in the manner and scope
of searches and seizures that are carried out at all. Lauro v. Charles, 219 F.3d 202, 211
(2d Cir. 2000). The reasonableness of the police actions in conducting a search or
seizure must be judged, in part, through an assessment of the degree to which those
actions further the legitimate law enforcement purposes behind the search or seizure.”
Id.
As to the Goat Seizure
Concerning the warrant’s “authorization” of the goat seizure and the underlying
application and affidavit, it is clear that Officer DellaRocco (and co-signer Tanya
Wescovich) failed to present probable cause for the goat seizure as well.
16
In a doubtful or marginal case the constitutional preference for a judicial
determination of probable cause leads the court to afford deference to the issuing
judge’s determination. State v. Parowski, 2012 Conn. Super. LEXIS 754 (2012)
Probable cause is a bona fide belief in the existence of facts essential under the law
for the action and such as would warrant a man of ordinary caution, prudence and
judgment, under the circumstances, in entertaining it. Probable cause is a flexible
common sense standard. It deals with probabilities and the application of the factual
and practical considerations of everyday life on which reasonable and prudent men act.
Adriani v. Commission on Human Rights and Opportunities, 228 Conn. 545, 550 (1994)
An officer can lose his “shield of immunity” if he swears to a warrant affidavit that is
so lacking in indicia of probable cause as to render official belief in its existence
unreasonable. The question in qualified immunity is not whether the officers had
probable cause but rather whether they acted recklessly in swearing a warrant based on
the information they possessed. Estate of Davis v. City of N. Richmond Hills, 2003 U.S.
Dist. LEXIS 17579 (2003). A search warrant based on information from an anonymous)
informant was not supported by probable cause where the affidavit provided no
indication of the informant’s truthfulness or reliability besides the officer's conclusory
description of informant as a “concerned citizen” and a “mature person” and the officer|
only corroborated that the directions that the informant gave to the defendant’s home
were correct. “The mere confirmation of innocent static details is insufficient to support
an anonymous tip.
Officer DellaRocco withheld the following:
1. Arrest
The truthfulness of the affiant, not the informant, is the issue. State v. Parowski,
2012 Conn. Super. LEXIS754
Officer DellaRocco sacrificed any future claim to credibility as a search-and-seizure|
warrant affiant when he withheld the fact of his arrest from the four cornerss of the
document.
Where an officer knows, or has reason to know, that he has materially misled a
magistrate on the basis for a finding of probable cause, as where a material omission is
intended to enhance the contents of the affidavit as support for a conclusion of probable
cause, the shield of qualified immunity is lost. Golino v. New Haven, 950 F.2d 864, 871
(1991); See also United States v. Strini, 658 F.2d 593, 597 (1981)
2 Investigation Report of June 15, 2018 which has special significance pursuant to
§19-341 as constituting prima facie proof that
The same standard applies as to Officer DellaRocco’s omission of this information.
17
That DOAG agent co-signed the affidavit is irrelevant. In the context of the Fourth
Amendment, the government cannot insulate one agent’s deliberate or reckless
misstatement in an affidavit merely by relaying it through another agent personally
ignorant of its falsity. United States v. Perez, 247 F. Supp. 2d 459, 478 (2003)
Suppression is an appropria
Preview
UWY-CV-21-5028294-S NANCY BURTON SUPERIOR COURT JUDICIAL DISTRICT Vv. OF WATERBURY DAVID PHILIP MASON ETAL. DECEMBER 8, 2021 PLAINTIFF'S OBJECTION TO STATE DEFENDANTS’ MOTION TO STRIKE INTRODUCTION Pursuant to Practice Book §10-39, the State of Connecticut Department of Agriculture (“DOAG’). Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner’) and Charles DellaRocco, DOAG Animal Control Officer (collectively, “State Defendants’), have moved to strike Count Seven from the Second Amended Complaint (“Complaint”)(#120.00)", The Seventh Count alleges as follows: SEVENTH COUNT: 42 U.S. CODE §1983 117. Paragraphs 1-90 of the First Count are incorporated herein as Paragraph 117 of the Seventh Count. 118. The defendants, some or all of them, have acted under color of state law to deprive plaintiff of her rights and protections guaranteed by the U.S. Constitution, including her rights to due process, First Amendment guarantees and the Fourth Amendment protection against illegal searches and seizures. 119. Such deprivations have caused plaintiff to suffer harm and financial loss. WHEREFORE, plaintiff seeks compensatory and punitive damages in the amount of $65 million and injunctive relief. The State Defendants argue that Count Seven fails to allege facts to support a claim for which relief may be granted and is therefore legally insufficient. (The State ' Plaintiff filed her Second Amended Complaint on June 14, 2021, two days prior to June 16, 2021, the date the Connecticut Judicial Department reopened its law libraries to patrons, while limiting computer use, including legal research databases, to one two- hour session per person per day. The law libraries had been closed in 2021 and remained closed until June 26, 2021 due to the COVID-19 pandemic outbreak. See attached Judicial Department notice. The law library shutdown seriously prejudiced Plaintiff (and doubtless many others) in this matter and in the related case of State of Connecticut ex rel. Jeremiah Dunn v. 65 Goats et al., HHD-CV-21-6139702-S, as it! made it very difficult to engage in necessary legal research during that period. 1 Defendants waived their right to file a request to revise in advance of their motion to strike.) Plaintiff counters that Count Seven alleges facts and such facts as are necessarily implied from the allegations sufficient to support the cause of action alleged in the Seventh Count and therefore the motion to strike must be denied. Standard of Review In considering a motion to strike, the Court takes the facts to be those alleged in the complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency. Thus, if facts provable in the complaint would support a cause of action, the motion to strike must be denied. What is necessarily implied in an allegation! need not be expressly alleged. It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Pleadings must be construed broadly and realistically rather than narrowly and technically. Lawrence v. O & G Indus., Inc., 319 Conn. 641, 648-649 (2015). All facts in the complaint must be construed in the manner most favorable to the non-moving party. Sienkiweicz v. Ragalia, 2008 WL 2096864 (CV-03-401770-S)(May 5, 2008) There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the difference between the motion to dismiss and the motion to strike. Egri v. Foisie, 83 Conn. App.. 243, 247 (2004). Most if not all supposed deficiencies in the Complaint as cited by the State Defendants are and were curable by means of a request to revise and/or repleading. Sienkiweicz v. Ragalia, supra. However, by not filing a request to revise, A “speaking” motion to strike — imparting facts outside the pleading — is disallowed. Doe v. Marselle, 38 Conn. App. 360, 364, reversed on other grounds, 236 Conn. 845 (1996). Therefore, the State Defendants’ insertion of “facts” — truthful or not — Should not be countenanced and such insertions stricken and disregarded. Factual Background The Complaint principally focuses on events leading up to and occurring on March 10, 2021, when the State Defendants and others[1] participated in an unannounced raid on Plaintiffs home and property and (1) seized some 65 goats ostensibly pursuant to a warrant, (2) invaded her home ostensibly pursuant to a warrant and (3) stole from inside her home various items of Plaintiff's irreplaceable and valuable personal property beyond the stated scope of the warrant. Complaint Paragraphs 80, 82. The Complaint asserts in Paragraph 81G that as of the time of their seizure on March 10, 2021: The Plaintiff's goats were in good health, were well-nourished, had access to plentiful water, were appropriately sheltered, had access to spacious exercise and grazing areas, received veterinary care when and where appropriate and were loved and well cared for by Plaintiff, their devoted caretaker. Accepting the allegations of Paragraph 81G as true, as the Court must in accordance with the standards governing its consideration of a motion to strike, the State Defendants lacked probable cause to seize the goats within the meaning of the governing statute, Conn. Gen. Stat. §22-329a, as the statute requires commission of an act of cruelty or neglect by the owner/caretaker as a raison| d’etre in an application for a warrant to seize domesticated animals from their owner and Plaintiff was never cruel nor neglectful toward her goats, as Defendants were fully aware. Therefore, the search and seizure beyond any doubt violated the Fourth Amendment of the U.S. Constitution and thereby 42 U.S.C §1983, the basis of the Seventh Count. The Complaint further asserts in Paragraph 82 that contemporaneous with the goat seizure on March 10, 2021: Beginning prior to 8 AM on March 10, 2021, defendant DellaRocco and other DOAG agents and members of the defendant Redding Police Department converged unannounced on plaintiff's property and some or all of them unlawfully removed items of Plaintiff's personal property inside and outside her home including personal items of great value which are irreplaceable . . . Accepting the allegations of Paragraph 82 as above-recited as true, as the Court must in accordance with the standards governing its consideration of a motion to strike, the alleged theft of Plaintiff's personal property by individuals under Officer DellaRocco’s supervision and Officer DellaRocco himself from inside her home violated the Fourth Amendment of the United States Constitution and, because the theft was unreasonable, unlawful and without probable cause, as was the invasion of her home, thereby in violation of 42 U.S.C. §1983, the basis of the Seventh Count. The goat seizure put a temporary end to and chilled Plaintiff's First Amendment- protected (and thereby, by virtue of the Fourth Amendment, Fourteenth Amendment- protected) Mothers Milk Project,[2] as she no longer possessed goats on her property and therefore had no goat milk produced on her property to sample and analyze for the presence of radioactive contamination; thereby, the goat seizure violated the Fourteenth Amendment in this respect. Additionally the State Defendants chilled Plaintiffs exercise of her First Amendment rights of free speech, to free association, and to petition the government for a redress of grievances when the Office of the Attorney General, assertedly on behalf of the State Defendants, interfered with her right to inspect the grounds of the state facility where the State Defendants have kept her goats illegally confined in deplorable conditions since March 10, 2021, from the vantage point of public property near the facility, by threatening her and blocking her access to public records concerning the goats illegally and without cause.? Indeed, the State Defendants’ true raison d'etre for the goat-seizure-and-home-4 invasion has been to retaliate against Plaintiff and end her decades-long acts of public- spirited, pro bono publico judicial and governmental whistleblowing. But for this| flagrantly unconstitutional retaliatory fever, the State Defendants would have had no interest in seizing the healthy, happy goats, treating them cruelly in deplorable conditions, harassing Plaintiff and invading her home to steal invaluable personal objects of great value, even forcing her to leave her home of 35 years out of fear of their terror tactics. See, e.g., Complaint Paragraphs 38 (Redding First Selectman Julia Pemberton “actively feeding] a frenzy of manufactured goat hysteria in the community through social media without having discussed any issues of concern with Plaintiff about her goats and without meeting the goats or making any effort to become informed and aware of the goats’ natural behavior or contribution to the Mothers Milk Project.”), 51 (Redding Chief of Police widely disseminating his press release falsely accusing Plaintiff of being responsible for “severe harm” to a goat)[3]. The entire matter of the goat seizure and home invasion achieved the primary result intended as it culminated in a torrent of false and sensational negative attention in the national and even international news media and social media fomented by the State, Town and private Defendants in this case. As the Complaint sets forth in Paragraph 87, this matter 2 This misconduct by the Office of the Attorney General and the State Defendants will be pursued in filings soon to be submitted concerning this case. 3 The first act of judicial retaliation Plaintiff experienced as a just-sworn-in Connecticut attorney occurred in 1985, when Plaintiff appeared before the late Hon. Howard J. Moraghan as pro se plaintiff in Nancy Burton v. Anne Guitar, her first lawsuit brought seeking a writ of mandamus to require the Redding Board of Selectmen to convene a town’ meeting to consider whether a study committee should be appointed to consider whether a “Mark Twain Historic District’ should be created in the neighborhood of historic homes and vistas where Mark Twain, the celebrated writer, chose to make his last home and where he died. The Selectmen opposed such a study and dismissed Plaintiffs petition signed by 21 registered voters which, by virtue of an ancient Connecticut statute, mandated a town meeting to consider the issue. When Plaintiff made her first appearance in the Connecticut Superior Court, it was before Hon Howard J. Moraghan, who summoned Plaintiff to the bench to tell her she needed to hire an attorney if she wished to pursue the suit as he would not allow her to pursue it as a pro se litigant. Attorneyless, she argued the case before Hon. William Sullivan, later Chief Justice of the Connecticut Supreme Court, and he ruled in Plaintiff's favor, finding the Selectmen abused their power in dismissing the petition. The name of the First Selectman who denied the petition, Mary Anne Guitar, later appeared on a printed program naming dozens of “friends of Judge Moraghan” honoring him on his retirement. 4 constitute[s] an elaborate and reprehensible ruse by the defendants and the Office of the Attorney General to harm and humiliate plaintiff, cause her crushing heartbreak and despair, divert her from her important public-interest endeavors, subject her to great and unnecessary expense, by which Plaintiff's goats have been made to suffer cruelty, abuse, brutality and other perverse practices by the State of Connecticut and its agents and by the Town of Redding and its agents and by their co-defendants in this action. As Paragraph 88 points out, such conduct by the State Defendants and their co- Defendants constitutes clear and outright retaliation for [Plaintiff's] bold and courageous public-interest endeavors in which she has spoken truth to power; such conduct is inter alia a severe interference with plaintiff's First Amendment and other Constitutionally protected rights that shocks the conscience. Regarding the State Defendants’ invasion of her home on March 10, 2021, the State Defendants justify such act on the fact that at their request Judge Robert D’Andrea of the Danbury Superior Court signed a search and seizure warrant purportedly authorizing them to invade Plaintiff's home in search of tangible items relating to goat care and feeding. Although the State Defendants argue that the law accords a “presumption of legal validity” from the fact that a judge in the position of a “magistrate” signed a search warrant based on an application by an animal control officer, in this case there can be no such presumption. For example, in assessing the factual and legal sufficiency of a search and seizure warrant application supported by the officer's affidavit, the magistrate’s focus is on the affiant, not his informants. In this case the affiant, Charles DellaRocoo, is self-disqualified by his criminal history (including arrest on felony charges of larceny and forgery while assigned as a police officer to safeguard the safety and security of the justices of the Connecticut Supreme Court), forced resignation from coaching a girls’ soccer team in light of an investigation of viewing pornographic videos, as reported by the Hartford Courant and other unsavory misconduct, not to mention his frequent acts of prevarication, committing fraud upon the court in this matter and directly engaging in acts of animal cruelty and abuse. For these and a multitude of other reasons (see further discussion infra), the search and seizure warrant was of no legal force or effect; accordingly, the goats must be released from state custody without further delay and items of personal property stolen from Plaintiff's home returned. Plaintiff was accorded neither prior notice nor a hearing prior to the seizure, although such procedural protections are mandated by the due process clause of the Fourteenth Amendment. It is the essence of Fourteenth Amendment protections that the state may not lawfully deprive an individual of lie, liberty or property without due process of law. This case presents no exception to such rule. This case presents the obvious anomaly, of the State of Connecticut seizing healthy, happy, well-cared-for goats without cause, let alone probable cause, for lengthy confinement in deplorable conditions and actual, acknowledged acts of animal cruelty and neglect, as well as other factors which weigh in the state’s need to provide Plaintiff with prior notice and a hearing. The Complaint asserts in Paragraphs 29-30 that the then-state veterinarian, Mary Jane Lis DVM, personally inspected each of Plaintiff's goats and the entirety of her property and the conditions in which they were cared for and concluded in her report dated June 15, 2018 as follows: “At the time of this investigation, all goats on the property appear to be in good condition with food and water available.” Pursuant to Conn. Gen. Stat. §19-341, such investigation carried out by the state’s official veterinarian accords Plaintiff freedom from a bad-faith, arbitrary and harassing search- and-seizure operation such as was carried out on March 10, 2021: By operation of the statute, Plaintiff was insulated from the March 10, 2021 goat seizure on grounds it wag undertaken without prior notice and a hearing. The Complaint asserts at Paragraph 811: That DOAG lacked probable cause or any other proper or valid cause to search Plaintiff's property and seize her goats, invade her home and steal valuable items of personal property from inside her home. The warrant application was prepared by Defendant Charles DellaRocco (“DellaRocco”), the DOAG animal control officer who plotted and oversaw the March 10, 2021 raid. Neither the warrant application nor the affidavit provided by DellaRocco in support of the warrant application mentions his arrest on Class D felony counts of forgery and larceny while serving as a police officer assigned to provide security for the justices of the Connecticut Supreme Court. DellaRocco withheld such information from the search and seizure warrant application he submitted to Superior Court Judge Robert D’Andrea on March 9, 2021. DellaRocco also withheld.from the application any mention of his forced resignation as coach of the Old Saybrook girls’ soccer team in light of a pornography investigation, as reported by the Hartford Courant. Complaint Paragraph 58. DellaRocco also withheld from the application his failure to investigate a complaint of acts of animal cruelty and other misconduct by Defendants David Philip Mason, Elinore Carmody and Dennis Gibbons as filed with Commissioner Hurlburt by Plaintiff, although he had been directed by Commissioner Hurlburt to investigate it. Complaint Paragraphs 55-57, 59-61, 65-69. Later, in sworn testimony before a judge of the Superior Court, DellaRocco testified falsely that Plaintiff's complaint to Defendant Hurlburt was “unfounded.” DellaRocco’s sworn affidavit accompanying the search and seizure warrant application was otherwise “replete with recklessly uttered and knowingly false statements,” and reliant on unidentified “informants” possessing malice and lacking credibility, honesty and “evidencing ignorance of plaintiff, the goats, plaintiff's care and treatment of the goats and pertinent facts such as to render the affidavit an abuse of the police power.” Complaint Paragraph 75 Judge Robert D’Andrea while assigned the case of Nancy Burton v. Animal Nation, Inc. Paragraphs 27, 28, 31, 32, 50, in which he gave improper directives to defendants; counsel, and did not qualify as a neutral and dispassionate magistrate, nevertheless signed the search and seizure warrant presented to him by DellaRocco. DellaRocco withheld from his affidavit the fact that one of his unidentified “informants” was Lea Alba, a volunteer with Animal Nation, Inc. Plaintiff was endeavoring to rehome many of her goats and did with the help of Animal Nation, Inc. Complaint Paragraph 31 Responding to an anonymous complaint in 2017, DOAG assigned an animal control officer to investigate Plaintiff's goats and their care and living conditions in 2017. Complaint Paragraph 30. At the conclusion of the investigation, which included two visits personally supervised by Mary Jane Lis, DVM, then-state veterinarian, DOAG animal control officers concluded in a written report dated June 15, 2018: At the time of this investigation, all goats on the property appear to be in good condition with food and water available. Complaint Paragraph 30. Legal Argument A. The Complaint states a claim for constitutional injury by the Commissioner of Agriculture Hurlburt A “Constitutional injury” sufficient to set forth a 1983 claim requires a violation of a right secured by the Constitution and laws of the United States and such deprivation committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48) (1988). “In order to state a cause of action under §1983, the plaintiff must allege an abuse of governmental power which is sufficiently egregious as to be constitutionally tortious.” McLaughlin v. City of Shelton, CV 92-040331, 1995 Conn. Super. LEXIS 1548, at “3 (Super. May 23, 1995). The State Defendants agree that Commissioner Hurlburt “is an agent of the State of Connecticut whose official acts are taken under the color of state law.” Memorandum in Support of Motion to Strike at page 4. They identify the remaining inquiry in their Motion to Strike is “to determine what official actions the Commissioner took that caused an alleged deprivation of Plaintiff's Constitutional rights.” State Defendants assert that “nothing in Plaintiff's complaint indicates any action by the Commissioner that resulted in a constitutional deprivation at all, and Plaintiff has failed to state a claim thereby.” However, contrary to State Defendants’ argument, Plaintiffs allegations directed at Commissioner Hurlburt do identify his extensive, specific personal responsibility for a wide range of alleged injury. Sienkiewicz v. Ragalia, Docket No. CV 03 0401770 S, 2008 Conn. Super. LEXIS 1090, at *14-15 (Super. May 5, 2008), citing Arroyo v. Schaefer, 548 F.2d 47, 51 (2d Cir. 1977). Contrary to the State Defendants’ arguments, the Complaint sets forth substantial allegations of Commissioner Hurlburt’s conduct as an individual and as an individual in charge of the Department of Agriculture allegations. See Paragraphs 41, 55-85, 87-89 and which, considered in light of what is necessarily implied from said allegations and reasonable inferences to be drawn from them, and considered in the light most favorable to Plaintiff, overwhelmingly suffice to overcome the motion to strike. His outlier conduct is “sufficiently egregious to be constitutionally tortious.” McLaughlin, Id. This conduct includes:4 1 The Commissioner’s awareness and allowance of seizure of Plaintiff's goats, known by him to have been healthy, robust and well cared for and therefore beyond the scope of a permissible §22-329a seizure, and without prior notice and without a prior hearing and in knowing violation of Plaintiffs due process rights pursuant to the Connecticut right-to-farm law as well as her then-pending First| Amendment right-of-access-to-the-courts litigation (Nancy Burton v. Redding Zoning Commission and Nancy Burton v. Julia Pemberton)(See Complaint Paragraph 81E), which, if successful, would have allowed Plaintiff the legal right to keep more than the nine goats otherwise allowed as-of-right on her property!’ The Commissioner's awareness and allowance of the search-and-seizure warrant application and affidavit prepared by Charles DellaRocco for submission to Judge Robert D’Andrea despite the disqualifying and uncorrectable criminal history of Mr. DellaRocco involving his arrest on felony charges of larceny and forgery while assigned to safeguard the safety and security of the justices of the Connecticut Supreme Court, and his penchant for deceit and dishonesty as exemplified inter alia in his failure to carry out the investigation he was ordered by Commissioner Hurlburt to undertake (Complaint 56-57, 62, 65-69). The Commissioner's awareness and allowance of cruel, abusive and deplorable conditions of confinement Plaintiff's goats were subject to in temporary state custody, leading to the unnecessary and preventable deaths of some of Plaintiff's goats — tantamount to criminal acts of animal cruelty - and the suffering of all of them. 4 It is noted that this incomplete listing is expected to be substantially enlarged in a further-amended and/or substitute complaint to incorporate new revelations and disclosures as have occurred since June 14, 2021, the date of the operative Second Amended Complaint. The Commissioner’s awareness and allowance of a policy of leaving Plaintiff's goats without human attendance for 17 hours straight every day while in state custody and the unnecessary death of a goat pregnant with three kids during one such periods — tantamount to criminal acts of animal cruelty. The Commissioner’s awareness and allowance of retaliatory action taken by DOAG and other state agencies against Plaintiff's exercise of First Amendment rights in her lawful attempt to view the DOAG confinement facility from nearby public property for purposes of engaging in other protected free speech/assembly/petitioning activities protected by the First Amendment and to conceal deliberate misconduct and abuse on his part and on the part of his subordinates from the news media and the public. Conspiring with certain private individuals, including the Commissioner’s co- Defendants in this action to impede, frustrate and circumvent Plaintiff's Constitutional rights. The Commissioner's awareness and allowance of a subordinate, Charles DellaRocco, to fraudulently and in bad faith apply for a search and seizure warrant to seize Plaintiff's goats and invade her home while concealing his criminal background from the magistrate judge and providing statements he knew to be false and misleading and omitting material facts. The Commissioner’s refusal to allow Plaintiff to inspect her goats and the conditions of their state confinement to frustrate, impede and prevent her exercise of her Constitutional rights of free speech, association and petitioning the government in retaliation for her judicial and government whistle-blowing. The Commissioner's refusal to allow the release of Plaintiff's goats to qualified and willing goat sanctuaries as identified by Plaintiff on April 16, 2021 to enable fulfillment of an improper objective (to force Plaintiff to pay hundreds of thousands of dollars for the months and months of feed and other care of the goats while in state confinement while subjecting the goats to inhumane and cruel mistreatment and abuse while in state custody) when rehoming the goats to such private sanctuaries would cost the state nothing and be in the best interest of the goats. 10. The Commissioner's awareness that Officer DellaRocco was believed by Plaintiff to have stolen valuable items of valuable personal and irreplaceable property property from her home on March 10, 2021 and his failure to take appropriate action to have the property returned to Plaintiff. 11. The Commissioner's awareness and allowance of an illegal “black market” scheme operating out of the DOAG confinement facility and on the Internet whereby individuals arranged to sabotage and violate certain provisions of §22- 329a concerning goat auctions and adoptions. 12. The Commissioner's awareness, allowance and prosecution of administrative and criminal proceedings to be instituted against Plaintiff without lawful or probable cause and aware that Plaintiff lacked both mens rea and actus reus to commit the alleged unlawful acts. 13. The Commissioner's awareness and allowance and prosecution of Plaintiff] pursuant to §22-329a and §53-247 with the knowledge that such statutes are facially unconstitutional and as applied to Plaintiff for failure inter alia of due process protections. 14. The Commissioner's abuse of power and scheming with the co-Defendants, as detailed above and in other ways, for the primary purpose of harassing, terrifying and retaliating against Plaintiff for her judicial and legal whistleblowing and thereby causing her severe distress and other harms. “It is well settled that a police supervisor [in a position of authority commensurate with Commissioner Hurlburt’s] whose deliberately indifferent supervision of a subordinate contributed to the subordinate’s violation of a person’s constitutional rights could be held liable for those violations. Estate of Davis, Headnote 40 Thus, for example, an official such as Commissioner Hurlburt who, while acting under color of state law, caused Plaintiff to be subjected to deprivation of rights under the Constitution or federal law, may be liable under §1983 for his own actions but also, in certain circumstances, for the actions of his subordinates if 1 He may have directly participated in the infraction; 2 After learning of the violation through a report or appeal may have failed to remedy the wrong; He created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; or He was grossly negligent in managing subordinates who caused the unlawful condition or event. Wright, 21 F.3d at 501; Spencer v. Doe, 139 F.3d 107 (2d Cir. 1998). The Complaint alleged directly and inferentially all of the above. While the doctrine of respondeat superior cannot form a basis for a claim under §1983, Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999), as argued by State Defendants, it is not applicable here “because the alleged conduct is specific and the state actor is directly involved with the constitutional violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)(‘“it is well settled in this Circuit that personal involvement of Defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §1983’). 10 Liability under §1983 turns on a defendant's personal involvement in the alleged constitutional deprivations.” Williamsv. Smith, 781 F.2d 319, 323 (2d Cir. 1986) While plaintiff must plead that each Government-official Defendant, through the| Official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“each Government official, his or her title notwithstanding, is only liable for his or her own misconduct”), further pleading awaits adjudication of the motion to strike.§ In the nearly six (6) months since the operative Second Amended Complaint was filed, new revelations regarding Commissioner Hurlburt and his personal role in this case have surfaced, giving rise to the need to amend the complaint to incorporate these facts and circumstances, which include his actions which evidence his indifference to the cruelty and abuse which have been inflicted on Plaintiff's goats while in state confinement under his supervision, his failure to adequately monitor and supervise DOAG employees under his authority, his failure to correct such conditions and accomplish what is best for the goats’ future welfare: agreeing with Plaintiff to release the goats to the care and custody of goat rescue sanctuaries identified by Plaintiff and willing to accept them and care for them for the duration of their natural lives. It is also clear that Commissioner Hurlburt made no arrangements, and neglected to| assign DOAG staff to make appropriate arrangements, to provide Plaintiff with prior notice and a prior hearing to avoid depriving Plaintiff of her fundamental due process rights, particularly in light of Dr. Mary Jane Lis’s (then-state veterinarian) on June 15 2018 investigation report providing Plaintiff with immunity from goat seizure and invasion without prior notice and a hearing under the state’s right-to-farm law, Conn. Gen. Stat, §19-341 Under his watch, DellaRocco and his co-agents knowingly confined Goat “#6” (not even bothering to learn her true name and accord her a small measure of dignity) to overcrowded, dingy quarters, deliberately left unattended by human beings 17 hours out of every day, with inadequate water and food while she was pregnant with three kids and nearing labor. She was left by Commissioner Hurlburt to suffer and die, her remains incinerated to conceal and destroy evidence of their crime of animal cruelty and thereby withhold the truth of his misconduct and that of his co-Defendants from the public. This misconduct goes beyond egregious; it is beyond unconscionable. Plaintiff's pleadings have more than satisfied the standards of the Practice Book to adequate plead a cause of action. 5 It must be noted that State Defendants’ attorney, the Office of the Attorney General has obstructed, interfered with and delayed discovery since March 10, 2021 in part to conceal the names of the individuals engaged with State Defendants Hurlburt, DellaRocco, Jeremiah Dunn and Tanya Wescovich iin the activities which are the subject of this litigation. 11 B. The Complaint sufficiently states a claim of constitutional injury by DellaRocco The Complaint references Officer DellaRocco by name at Paragraphs 42, 57, 59-65, 70 and inferentially in all Paragraphs concerning allegations relating to the First Amendment, Fourth Amendment and Fourteenth Amendment. a. Plaintiff has sufficiently stated a claim under the First Amendment As a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim. Plaintiff must establish a causal connection between the government defendant retaliatory animus and the plaintiff's subsequent injury. It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured — the motive must cause the injury. It must be a “but-for’ cause, meaning that the adverse action against plaintiff would not have been taken absent the retaliatory motive. In this case, prior to the State Defendants’ goat seizure on March 10, 2021, The Plaintiff's goats were in good health, were well-nourished, had access to plentiful water, were appropriately sheltered, had access to spacious exercise and grazing areas, received veterinary care when and where appropriate and were loved and well cared for by Plaintiff, their devoted caretaker. Complaint Paragraph 81G. Given the facts set forth in Paragraph 81G, which are true and must be accepted as truthful in the Court's consideration of the motion to strike, Officer DellaRocco and his fellow State Defendants had no cause to seize them. Moreover, the DOAG Commissioner, acting by and through the then-state veterinarian, had “immunized” Plaintiff from such a seizure in the future without prior notice and hearing by virtue of application of Conn. Gen. Stat. 19-341. Nevertheless, on the alert for any opportunity to retaliate against Plaintiff for her decades-long public-interest and judicial/governmental whistleblowing,® the State 8 The most recent involved argument presented to the Connecticut Supreme Court in September 2020 in Nancy Burton v. Regina McCarthy, SC 20466, decided on January 21, 2021. Plaintiff filed a motion for reargument en banc on February 8, 2021 setting forth how the Connecticut Department of Energy and Environmental Protection, per its| attorney Matthew Levine, the State Defendants’ counsel herein, argued successfully in 12 Defendants and their counsel, the Office of the Attorney General, seized upon the false and malicious accusations by a neighbor (Defendant Elinore Carmody) that the goats were “underfed” and lacking veterinary care, to place Plaintiff under a bogus period of “surveillance” to try to discover any shortcoming in Plaintiff's care of her goats which might form the basis of a ruse to seize the goats as an extreme act of retaliation against Plaintiff. They were unable to verify the neighbor’s ignorant assertions and settled on a scheme to present a search-and-seizure warrant and “affidavit” bearing Officer DellaRocco’s signature and present it to a judge who was conflicted because he was also presiding judge in Nancy Burton v. Animal Nation, Inc., then pending in the Superior Court. Complaint Paragraph 28. The affidavit was replete with false statements; “informants” were not identified, nor was evidence of their “credibility” submitted. Necessary and material facts were omitted, most noticeably and notably any mention of Officer DellaRocco’s prior arrest on felony charges of larceny and forgery (both implicating honesty and integrity) while he was assigned as a police officer to safeguard the safety and security of the justices of the Connecticut Supreme Court} Thereby, State Defendants’ motive — to retaliate against Plaintiff for her judicial/governmental whistleblowing/First Amendment - “protected” expression - caused the injury: the State Defendants’ submission of the search-and-seizure warrant application and subsequent seizure of Plaintiffs goats without probable cause and their invasion of her home without probable cause and their theft of Plaintiffs valuable and irreplaceable objects from inside her home outside the stated scope of the warrant. Nieves v. Bartlett, 139 S.Ct. 1715 (2018). The State Defendants and their attorney knew that without her goats, Plaintiff could not carry on her public interest-motivated Mothers Milk Project. They chilled and froze her First Amendment rights to collect her goats’ milk, have it analyzed and thence to speak out on the subject and to continue to petition the government for redress over the continuing radioactive contamination as evidenced in the goat milk samples. Furthermore, they chilled her First Amendment rights when they brought retaliatory measures to bear to stop her from observing the state goat confinement facility from a public road. The facts of this egregious mistreatment will be further developed and exposed in forthcoming pleadings. The governmental participants in this scheme are all culpable. Law enforcement officers have an affirmative duty to intervene to protect against the infringement of constitutional rights committed by other officers in their presence. Curley v. Village of Suffern, 268 F.3d 65, 72 (2001); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) The Supreme Court has held that no higher probable cause standard applies when the First Amendment is implicated by a Fourth Amendment search or seizure} support of releases of radioactive waste into the Long Island Sound in violation of the Clean Water Act. 13 Plaintiff has established that State Defendants’ conduct has brought about an egregious violation of her First Amendment rights, which is continuing. She has alleged specific present objective harm and threat of specific future harm. Laird v.Tatum, 408 U.S. 1, 13-14 (1972). b. Plaintiff has sufficiently stated a claim under the Fourth Amendment to the United States Constitution and a lack of probable cause The Complaint Paragraph 82 and its six subsections state that the State Defendants lacked probable cause to search Plaintiff's property and seize her goats. In the absence of probable cause, State Defendants including Officer DellaRocco violated Plaintiff's Fourth Amendment right to be from an unreasonable search and seizure by agents of the state. As to the Home Invasion The State Defendants’ invasion of Plaintiffs home in pursuit of items identified in the warrant — “all animal health and ownership records; photographs of animals; receipts and bills related to animal care and feeding; and medication related to animal care”- was just another manufactured ruse that failed to give rise to probable cause for the following reasons: 4 Commissioner Hurlburt and his subordinates, prior to March 10, 2021, had communicated requests to Plaintiff for animal health records; in response, Plaintiff had provided such information and records to them. On March 10, 2021, they took no such materials from Plaintiff's home. Notwithstanding the above, Commissioner Hurlburt and his subordinates had contacted Plaintiff's veterinarians and obtained any and all information they may have wanted from them. Plaintiff has no animal ownership records and if they had asked she would have, told them so. On March 10, 2021, to plaintiff's knowledge, they took no such materials from Plaintiff's home. If Commissioner Hurlburt and his subordinates had asked Plaintiff for “photographs of animals, receipts and bills related to animal care and feeding and medication related to animal care,” she would have provided such as she had. On March 10, 2021, to plaintiff's knowledge, they took no such materials from Plaintiff's home. The request “photographs of animals” is incomprehensibly overly broad”; it is not even limited to goats. Plaintiff once went on a safari to Africa: Did Commissioner 14 Hurlburt want her pictures of grazing giraffes? On March 10, 2021, to plaintiff's knowledge, they took no such materials from Plaintiff's home Commissioner Hurlburt’s subordinates frequently photographed Plaintiff's goats during the numerous occasions when they trespassed on her property and from neighboring properties. Nothing they photographed was used to support the warrant. On March 10, 2021, to plaintiffs knowledge, they took no such materials from Plaintiffs home While the home invasion was underway on March 10, 2021, and Plaintiff's goats were being loaded onto enormous animal vans as Plaintiff watched from the street, Plaintiff persisted in trying to interest the State and Town Defendants and their agents carrying out the raid in reviewing the goats’ medical records and prescribed medications which Plaintiff maintained inside her home so they would be able to provide the goats with continuity of care during their temporary) absence, completely unaware that at the very same time Officer DellaRocco and DOAG agents and Town of Redding police officers and employees were inside her home rifling through her personal possessions under the protective cover” of a search-and-seizure warrant for the very same items, as she was left uninformed of this fact and all persons under Officer DellaRocco’s supervision had been told not to engage in communications with Plaintiff. Although Officer DellaRocco produced a court form on which he wrote that he had seized 65 live goats and one deceased goat from Plaintiff's property, the form makes no mention of any other of Plaintiff's property that he seized from her property or home on that day. Bottom line: Officer DellaRocco, affidavit affiant, had no legitimate interest or need for any of the items of personal property identified in the warrant The warrant application concerning objects to be seized from inside Plaintiffs home was obviously a ruse to “legalize” an otherwise forbidden invasion of Plaintiff's home. Its fraudulence dictates exclusion and suppression of the warrant and everything seized pursuant to the warrant. As the Complaint asserts at Paragraph 82, during Officer DellaRocco’s invasion of Plaintiff's home on March 10, 2021, numerous “personal items of great value which are irreplaceable” were “unlawfully removed” by “some or all of them” [State and Town Defendants participating in the invasion], which took place during Officer Della Rocco's direct supervision.” Although the State and Town Defendants have been served with notice as to the stolen property, none of it has been returned. “In determining whether the warrant was based upon probable cause, courts may consider only the information that was actually before the issuing judgeat the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom. State v. Mordowanec, 259 Conn. 94, 110 (2002) 15 “Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to’ believe that criminal activity has occurred . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched. [Citations go off the page!!!!!] State v. Mordowanec, 259 Conn. 94, 109-110 (2002) As the warrant application and affidavit presented no cause to invade Plaintiff's home, and in fact the invasion did not result in seizure of any of the “warrant-authorized items,” the invasion was a unconstitutional travesty. In Kyllo v. United States, 533 U.S. 27 (2001), the U.S. Supreme Court analyzed the, seminal case of Katz v. United States, 389 U.S. 347 (1967): “Whether the individual has an expectation of privacy that society is prepared to recognize as reasonable . . .121 S.Ct. 2043. "... in the home . . . all details are intimate details because the entire area is held safe from prying government eyes,” 121 S. Ct. at 2045 and that is acknowledged to be reasonable. “And because we are faced today with only the question of the integrity of the affiant’s representations as to his own activities .. . “438 U.S. 154, 171. Under Franks, the truthfulness of the affiant, and not the informant, is the issue. Federal precedent limits the Franks challenge to the veracity of the affiant. See State v. Glenn, 251 Conn. 567, 574-75 (1999), quoted from State v. Mordowanec, 259 Conn. 94, 108 (2002) The Fourth Amendment requires reasonableness not only as to whether a search should be conducted at all, but also to ensure reasonableness in the manner and scope of searches and seizures that are carried out at all. Lauro v. Charles, 219 F.3d 202, 211 (2d Cir. 2000). The reasonableness of the police actions in conducting a search or seizure must be judged, in part, through an assessment of the degree to which those actions further the legitimate law enforcement purposes behind the search or seizure.” Id. As to the Goat Seizure Concerning the warrant’s “authorization” of the goat seizure and the underlying application and affidavit, it is clear that Officer DellaRocco (and co-signer Tanya Wescovich) failed to present probable cause for the goat seizure as well. 16 In a doubtful or marginal case the constitutional preference for a judicial determination of probable cause leads the court to afford deference to the issuing judge’s determination. State v. Parowski, 2012 Conn. Super. LEXIS 754 (2012) Probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. Probable cause is a flexible common sense standard. It deals with probabilities and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act. Adriani v. Commission on Human Rights and Opportunities, 228 Conn. 545, 550 (1994) An officer can lose his “shield of immunity” if he swears to a warrant affidavit that is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. The question in qualified immunity is not whether the officers had probable cause but rather whether they acted recklessly in swearing a warrant based on the information they possessed. Estate of Davis v. City of N. Richmond Hills, 2003 U.S. Dist. LEXIS 17579 (2003). A search warrant based on information from an anonymous) informant was not supported by probable cause where the affidavit provided no indication of the informant’s truthfulness or reliability besides the officer's conclusory description of informant as a “concerned citizen” and a “mature person” and the officer| only corroborated that the directions that the informant gave to the defendant’s home were correct. “The mere confirmation of innocent static details is insufficient to support an anonymous tip. Officer DellaRocco withheld the following: 1. Arrest The truthfulness of the affiant, not the informant, is the issue. State v. Parowski, 2012 Conn. Super. LEXIS754 Officer DellaRocco sacrificed any future claim to credibility as a search-and-seizure| warrant affiant when he withheld the fact of his arrest from the four cornerss of the document. Where an officer knows, or has reason to know, that he has materially misled a magistrate on the basis for a finding of probable cause, as where a material omission is intended to enhance the contents of the affidavit as support for a conclusion of probable cause, the shield of qualified immunity is lost. Golino v. New Haven, 950 F.2d 864, 871 (1991); See also United States v. Strini, 658 F.2d 593, 597 (1981) 2 Investigation Report of June 15, 2018 which has special significance pursuant to §19-341 as constituting prima facie proof that The same standard applies as to Officer DellaRocco’s omission of this information. 17 That DOAG agent co-signed the affidavit is irrelevant. In the context of the Fourth Amendment, the government cannot insulate one agent’s deliberate or reckless misstatement in an affidavit merely by relaying it through another agent personally ignorant of its falsity. United States v. Perez, 247 F. Supp. 2d 459, 478 (2003) Suppression is an appropria