Swartz, et al v. Insogna, et al, No. 11-2846 (2d Cir. 2013)

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Plaintiff and his wife appealed the district court's grant of summary judgment to defendants, two officers. The suit sought damages for the seizure of plaintiffs who were ordered to return to their automobile, a disorderly conduct arrest, and an alleged malicious prosecution, all claimed to have been precipitated by plaintiff's "giving the finger" to a police officer. The court held that there was a question of whether a motor vehicle stop occurred; there was a question of whether there was probable cause for the arrest for disorderly conduct; and it was error for the district court to dismiss the malicious prosecution claim based on dictum in Burg v. Gosselin. Accordingly, the court vacated the judgment dismissing all three of plaintiffs' claims and remanded for further proceedings.

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11-2846-cv Swartz v. Insogna UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2012 Heard: October 2, 2012 Decided: January 3, 2013 Docket No. 11-2846-cv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 - - - - - - - - - - - - - - - - - - - - - John Swartz, Judy Mayton-Swartz, Plaintiffs-Appellants, v. Richard Insogna, Kevin Collins, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, LYNCH, and LOHIER, Circuit Judges. Appeal from the July 8, 2011, judgment of the United States 15 District Court for the Northern District of New York (David N. Hurd, 16 District Judge), dismissing a suit seeking damages for the seizure of 17 two persons ordered to return to an automobile, a disorderly conduct 18 arrest, and an alleged malicious prosecution, all claimed to have been 19 precipitated by an automobile passenger s giving the finger to a 20 police officer. 21 22 23 24 25 26 27 28 29 30 31 32 Vacated and remanded. Elmer Robert Keach, III, Law Office of Elmer Robert Keach, III, PC, Amsterdam, N.Y., for Appellants. Catherine Ann Barber, Murphy, Burns, Barber & Murphy, LLP, Albany, N.Y. (Thomas K. Murphy, Murphy, Burns, Barber & Murphy, LLP, Albany, N.Y. on the brief), for Appellees. 1 2 JON O. NEWMAN, Circuit Judge: An irate automobile passenger s act of giving the finger, a 3 gesture of insult known for centuries,1 to a policeman has led to a 4 seizure of two persons ordered to return to an automobile, an arrest 5 for disorderly conduct, a civil rights suit, and now this appeal. 6 Plaintiffs-Appellants John Swartz ( John ) and his wife, Judy Mayton- 7 Swartz ( Judy ), appeal the July 8, 2011, judgment of the United 8 States District Court for the Northern District of New York (David N. 9 Hurd, District Judge) granting summary judgment to Defendants- 10 Appellees Richard Insogna, a St. Johnsville, New York, police officer, 11 and Kevin Collins, an officer with the Montgomery, New York, Sheriff s 12 Department. 13 Accepting, as we must at this stage of the litigation, the 14 Plaintiffs version of the facts, we vacate the judgment and remand 15 for further proceedings. 16 17 Background In his deposition John gave the following account of the 18 incident. In May 2006, he and Judy were driving through the Village 19 of St. Johnsville on their way to the home of Judy s son. 1 Judy was See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008). -2- 1 driving; John was in the passenger seat. At an intersection, John saw 2 a local police officer, Defendant Insogna, in a police car using a 3 radar device, of which John became aware because he had a radar 4 detector. 5 doing by reaching his right arm outside the passenger side window and 6 extending his middle finger over the car s roof. 7 were not speeding or committing any other traffic violation, continued 8 to the home of Judy s son. 9 Street, the Plaintiffs got out of the car and saw a police car with 10 its lights flashing approaching from the corner of the street they 11 were on, ultimately stopping behind Judy s car. 12 the trunk of the car, Insogna ordered him and Judy to get back in the 13 car. 14 driving the car. 15 stating that this was a traffic stop. 16 the car, and they both did so. John expressed his displeasure at what the officer was The Plaintiffs, who Upon reaching their destination on Monroe When John walked to John initially refused, telling Insogna that he had not been Insogna again told John to get back in the car, Judy then urged John to reenter 17 Insogna then asked to see Judy s license and registration. 18 then told her not to show the officer anything, prompting Insogna to 19 say, Shut your mouth, your ass is in enough trouble. 20 collected Judy s license and registration, returned to his police car 21 to check the documents, and called for backup. 22 soon appeared. 23 24 John Insogna then Three other officers Insogna returned to Judy s car, gave her back the documents, and told the Plaintiffs they could go. -3- John then got out of the car and 1 asked if he could speak to Insogna, saying I d like to speak to you 2 man to man. 3 20 feet away, three other officers stepped in front of him. 4 stopped, walked away from the officers, and said to himself in a voice 5 apparently too low for his words to be understood, I feel like an 6 ass. 7 repeated his remark loud enough to be heard. 8 Collins said, That does it, you re under arrest, but did not say for 9 what. As he started walking toward Insogna, who was more than John One of the other officers asked John what he had said, and John At that point Defendant 10 John was then handcuffed, placed in a police car, and driven to 11 the police station, where he was given an appearance ticket and 12 released. 13 disorderly conduct. 14 he filed in the local criminal court, charging Swartz with violation 15 of New York s disorderly conduct statute. 16 complaint [s]erves as a basis . . . for the commencement of a 17 criminal action. N.Y. Crim. Proc. Law § 100.10(1). 18 home, John retained an attorney. 19 several years, during which John made three court appearances. 20 charge was ultimately dismissed on speedy trial grounds. 21 At the station, he was told he had been arrested for Insogna subsequently swore out a complaint, which Under New York law, such a After he returned The charge remained pending for The officers gave a different account. The In his deposition, 22 Insogna said that after he saw John give him the finger, he decided to 23 follow the car to initiate a stop on it. 24 John s gesture appeared to me he was trying to get my attention for -4- As reasons he stated: (1) 1 some reason, (2) I thought that maybe there could be a problem in 2 the car. 3 (3) I was concerned for the female driver, if there was a domestic 4 dispute. I just wanted to assure the safety of the passengers, and 5 Insogna said he followed the car and attempted to have it stop, 6 but it continued to Monroe Street and did not stop until he drove up 7 behind it. 8 and called him various vulgar names. 9 into their car, Insogna obtained and checked Judy s license and At that point John got out of the car, ran at Insogna, After John and Judy got back 10 registration, and then called for backup for my safety. 11 officers arrived. 12 car and identified himself after John asked who he was. 13 yelling and described Insogna to Cuddy with some of the vulgar terms 14 he had previously used. 15 free to go, John got out of the car and told Insogna he wanted to talk 16 to him man to man. 17 at which point John walked away shouting that he, John, felt like an 18 asshole. 19 20 21 Other One of them, Officer Cuddy, approached John in the John started After Insogna told John and Judy they were Insogna told him that would not be a good idea, At that point, Insogna arrested John. Collins in his deposition essentially confirmed Insogna s account of the episode preceding the arrest. The District Court granted the Defendants motion for summary 22 judgment and dismissed the Plaintiffs suit. 23 accepting Insogna s third reason for the automobile stop, ruled that 24 the stop was legal because Swartz s odd and aggressive behavior 25 directed at a police officer created a reasonable suspicion that -5- The District Court, 1 Swartz was either engaged in or about to be engaged in criminal 2 activity, such as violence against the driver of the vehicle. 3 Court next ruled that the Defendants were entitled to qualified 4 immunity on the false arrest claim because an objectively reasonable 5 officer could have believed that there was probable cause for a 6 disorderly conduct arrest. 7 that John had to make three court appearances did not amount to a 8 post-arraignment seizure, a necessary component of a malicious 9 prosecution claim. 10 11 The Finally, the Court ruled that the fact Discussion I. Legal Standards 12 This Court reviews de novo a district court s order for summary 13 judgment, see Wachovia Bank, National Association v. VCG Special 14 Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011), the 15 standards for which are well settled, see Celotex Corp. v. Catrett, 16 477 U.S. 317, 322 (1986); 17 F.3d at 171; John Street Leasehold LLC v. FDIC, 196 F.3d 379, 382 (2d 18 Cir. 1999), including the principle, especially pertinent to this 19 appeal, that the facts are to be viewed on appeal in the light most 20 favorable to the non-moving party, see, e.g., Jaegly v. Couch, 439 21 F.3d 149, 151 (2d Cir. 2006). 22 are also well settled. 23 officials from liability for civil damages insofar as their conduct 24 does not violate clearly established statutory or constitutional 25 rights of which a reasonable person would have known. Pearson v. 26 Callahan, 555 U.S. 223, 231 (2009) (internal citations and quotation Wachovia Bank, National Association, 661 The standards for qualified immunity [Q]ualified immunity protects government -6- 1 marks omitted). A police officer who has an objectively reasonable 2 belief that his actions are lawful is entitled to qualified immunity. 3 Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415, 4 433 (2d Cir. 2009). 5 II. Substantive Analysis The motor vehicle stop. Initially we note that there is a 6 7 question whether a motor vehicle stop occurred. 8 facts favorable to the Plaintiffs, appropriate for assessing the 9 Defendants motion for summary judgment, Judy On a view of the stopped the car 10 voluntarily upon arriving at her son s home. Moments later a police 11 car pulled up behind her car. 12 evidence, the police did not stop the car. 13 of the car after the car had stopped and were then told by Insogna to 14 get back into the car, which they did. 15 car might be considered a component of a motor vehicle stop because in 16 a typical automobile stop occupants would be told to remain in their 17 car. 18 that Insogna insists that he did cause Judy s car to stop), the 19 instruction to reenter the car was a sufficient interference with 20 liberty to constitute a Fourth Amendment seizure. See Terry v. Ohio, 21 392 U.S. 1, 16 (1968) ( [W]henever a police officer accosts an 22 individual and restrains his freedom to walk away, he has seized 23 that person. ); cf. Whren v. United States, 517 U.S. 806, 809-10 24 (1996) ( Temporary detention of individuals during the stop of an 25 automobile by the police, even if only for a brief period and for a 26 limited purpose, constitutes a seizure of persons within the On the Plaintiffs view of the They contend they got out The instruction to reenter the But even if an automobile stop did not occur (although we note -7- 1 meaning of [the Fourth Amendment]. ). 2 order someone to stop unless the officer reasonably suspects the 3 person 4 Jenkins, 452 F.3d 207, 212 (2d Cir. 2006) (internal quotation marks 5 omitted). 6 of being engaged in illegal An officer may not lawfully activity. United States v. The issue then becomes whether, on the Plaintiffs version of the 7 facts, Insogna had reasonable suspicion that criminal activity or a 8 traffic violation was afoot. 9 to the stop that prompted him to initiate the stop was John s giving- The only act Insogna had observed prior 10 the-finger gesture. Insogna acknowledged in his deposition that he 11 had not observed any indication of a motor vehicle violation. 12 stated, somewhat inconsistently, that he thought John was trying to 13 get my attention for some reason and that he was concerned for the 14 female driver. He 15 Perhaps there is a police officer somewhere who would interpret 16 an automobile passenger s giving him the finger as a signal of 17 distress, 18 automobile warranted investigation. 19 is what prompted Insogna to act, as he claims. 20 universal recognition that this gesture is an insult deprives such an 21 interpretation of reasonableness. 22 not the basis for a reasonable suspicion of a traffic violation or 23 impending criminal activity. 24 wrongful conduct toward another occupant of an automobile would call 25 attention to himself by giving the finger to a police officer. 26 there might be an automobile passenger somewhere who will give the creating a suspicion that something occurring in the And perhaps that interpretation But the nearly This ancient gesture of insult is Surely no passenger planning some -8- And if 1 finger to a police officer as an ill-advised signal for help, it is 2 far more consistent with all citizens protection against improper 3 police apprehension to leave that highly unlikely signal without a 4 response than to lend judicial approval to the stopping of every 5 vehicle from which a passenger makes that gesture. 6 On the Plaintiffs version of the facts, the stop was not lawful, 7 and it was error to grant the Defendants summary judgment on the 8 Plaintiffs claim concerning the stop. Cf. Sandul v. Larion, 119 F.3d 9 1250, 1254-57 (6th Cir. 1997) (vacating grant of summary judgment to 10 police 11 disorderly conduct for shouting obscenity and giving the finger to 12 police officer); Cook v. Board of County Commissioners, 966 F. Supp. 13 1049, 14 automobile passenger arrested for disorderly conduct for giving the 15 finger to a group of protesters, which included to police officer). 16 Nor were the Defendants entitled to qualified immunity on this claim 17 because a reasonable police officer would not have believed he was 18 entitled to initiate the law enforcement process in response to giving 19 the finger. Cf. Sandul, 119 F.3d at 1256-57; Cook, 966 F. Supp. at 20 1052. 21 officers 1052 (D. in Kan. suit by 1997) automobile (denying The disorderly conduct arrest. passenger motion to arrested dismiss suit for by On the Plaintiffs version of the 22 facts, John s conduct preceding his arrest for disorderly conduct 23 consisted only of the followings events. 24 20 feet, he stated in a normal voice that he wanted to speak to -9- From a distance of more than 1 Insogna man to man ; when other officers stood in his way, he 2 retreated and said in a tone too low for his words to be understood by 3 the officers next to him, I feel like an ass ; in response to an 4 officer s request to repeat what he had said, John did so; Collins 5 then said, That does it, you re under arrest. 6 A police officer has probable cause for an arrest when he has 7 knowledge 8 circumstances that are sufficient to warrant a person of reasonable 9 caution in the belief that the person to be arrested has committed or 10 is committing a crime, Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 11 1996), 12 objectively reasonable belief that his actions are lawful, Okin, 577 13 F.3d at 433. and or is reasonably entitled to trustworthy qualified information immunity of where facts he has and an 14 Even with the wide range of conduct subsumed under New York s 15 expansive definition of disorderly conduct,2 John s conduct, on the 2 A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting threatening behavior; or or in violent, tumultuous or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or -10- 1 Plaintiffs version of the facts, could not create a reasonable 2 suspicion that a disorderly conduct violation had been or was being 3 committed. 4 whose report says he made the arrest, had observed any disruptive 5 conduct, any threatening conduct, any shouting, or anything that 6 risked a public disturbance. 7 properly considered an obscene gesture, neither Collins, who had not 8 observed the gesture, nor Insogna, who had observed it and was likely 9 piqued by having seen it, makes any claim on appeal that the gesture Neither Collins, whom John says arrested him, nor Insogna, Whether or not giving the finger is 10 was disorderly conduct. Indeed, such a gesture alone cannot establish 11 probable cause to believe a disorderly conduct violation has occurred. 12 The disorderly conduct statute at issue here does not circumscribe 13 pure speech directed at an individual. 14 words and utterances coupled with an intent to create a risk of public 15 disorder . . . . 16 (citations omitted). 17 not exist for an arrest for disorderly conduct. Rather, it is directed at People v. Tichenor, 89 N.Y.2d 769, 775 (1997) On the Plaintiffs version, probable cause did And because an 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose. N.Y. Penal Law § 240.20. -11- 1 objectively reasonable police officer would not have believed that 2 probable cause existed, neither Defendant was entitled to the defense 3 of qualified immunity on a motion for summary judgment. 4 the defense of qualified immunity and the lawfulness of the arrest 5 itself will appropriately be in issue at trial, where both versions of 6 the episode will be presented. The malicious prosecution claim. 7 Of course, The elements of a malicious 8 prosecution claim under section 1983 are derived from applicable state 9 law. See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 10 1984). We have stated these elements, under New York law, to be (1) 11 commencement of a criminal proceeding, (2) favorable termination of 12 the proceeding, (3) lack of probable cause, and (4) institution of the 13 proceedings with actual malice. See Jocks v. Tavernier, 316 F.3d 128, 14 136 (2d Cir. 2003); Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). 15 Additionally, we have said, to be actionable under section 1983 there 16 must 17 ultimately on the Fourth Amendment s prohibition of unreasonable 18 seizures. See Jocks, 316 F.3d at 136. be a post-arraignment seizure, the claim being grounded 19 We have consistently held that a post-arraignment defendant who 20 is obligated to appear in court in connection with [criminal] charges 21 whenever his attendance [i]s required suffers a Fourth Amendment 22 deprivation of liberty. See Murphy, 118 F.3d at 947; Jocks, 316 F.3d 23 at 136 (concluding that the requirements of attending criminal 24 proceedings and obeying the conditions of bail constitute a post- 25 arraignment seizure); Rohman v. New York City Transit Authority, 215 26 F.3d 208, 215-16 (2d Cir. 2000) (finding Fourth Amendment implicated -12- 1 where plaintiff alleged that he was required, as a condition of his 2 post-arraignment 3 occasions before the charges against him were ultimately dropped, and 4 where he was obliged by New York statute to render himself at all 5 times amenable to the orders and processes of the court ) (internal 6 quotation marks omitted). 7 John and filed it in a criminal court, he commenced a criminal action. 8 See N.Y. Crim. Proc. Law §§ 100.05, 100.10. 9 proceedings that rendered the defendant at all times subject to the 10 orders of the court, see § 510.40(2), and foreseeably required him to 11 incur the expense of a lawyer and the inconvenience and perhaps 12 expense of multiple court appearances. release, to return to court on at least five When Insogna swore out a complaint against He thus put in motion 13 The District Court relied on dictum in Burg v. Gosselin, 591 F.3d 14 95, 98 (2d Cir. 2010), to dismiss the malicious prosecution claim. 15 However, there was no claim for malicious prosecution in Burg, see id. 16 at 96 n.3, the plaintiff having sought damages only for the issuance 17 of a summons, see id. at 96. 18 arraignment, non-felony summons requiring a later court appearance, 19 without further restrictions, does not constitute a Fourth Amendment 20 seizure. Id. at 98. 21 court only once. See id. 22 appearances may bear upon whether there was a seizure, adding in 23 dictum, however, that it is hard to see how multiple appearances 24 required by a court, or for the convenience of the person answering 25 the summons, can be attributed to the conduct of the officer who 26 issues it. Id. We ruled that the issuance of a pre- The plaintiff in Burg was required to appear in We observed that the number of [court] Burg s dictum is questionable unless the multiple -13- 1 appearances were for the arrestee s convenience, but, in any event, we 2 decline to apply that dictum to the different context of a plaintiff 3 who was required to appear in court in connection with criminal 4 proceedings initiated by the defendant police officer. 5 6 7 8 9 Dismissal of the claim for malicious prosecution on motion for summary judgment was error. Conclusion We vacate the judgment dismissing all three of the Plaintiffs claims and remand for further proceedings. -14-

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