Mitchell v. The City of New York, No. 14-0767 (2d Cir. 2016)
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Plaintiffs filed suit alleging 42 U.S.C. 1983 claims for false arrest, malicious prosecution, abuse of process, and excessive force. Plaintiffs were arrested at a party after officers suspected that plaintiffs were trespassing, loitering for the purpose of using narcotics, and endangering the welfare of a child because there was a 12 year-old child present. Charges against plaintiffs were later dropped. The court held that there is a genuine dispute of material fact as to whether the defendant police officers had probable cause to arrest plaintiffs for trespass. Therefore, the court vacated the judgment. The court remanded the false arrest claim and defendants' claim of qualified immunity related to the false arrest. Finally, the court affirmed the dismissal of the malicious prosecution, abuse of process, and municipal liability claims.
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14-0767-cv Mitchell et al. v. The City of New York et al. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2014 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 (Argued: February 20, 2015 Decided: October 28, 2016) Docket No. 14-0767-cv - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MELINDA MITCHELL, individually and on behalf of a class of all others similarly situated, HARVEY MITCHELL, individually and on behalf of a class of all others similarly situated, Plaintiffs-Appellants, v. THE CITY OF NEW YORK, a municipal entity, NYC POLICE OFFICER JAMES SCHUESSLER, Shield No. 28718, RICHARD ROES, 1-50 NEW YORK CITY POLICE SUPERVISORS AND COMMANDERS, JOHN DOES, 1-50 NEW YORK CITY POLICE OFFICERS, individually, and in their official capacities, jointly and severally, POLICE OFFICER JOSEPH BRINADZE, NYPD CAPTAIN JOSEPH GULOTTA, NYPD SERGEANT DANIELLE ROVENTINI, and NYPD LIEUTENANT KATHLEEN CAESAR, Defendants-Appellees. - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - B e f o r e: WINTER, POOLER, and SACK, Circuit Judges. Appeal from a judgment of the United States District Court 31 for the Southern District of New York (Lewis A. Kaplan, Judge), 32 granting appellees’ motion for summary judgment and dismissing 33 appellants’ claims. 34 material fact as to whether the New York City Police officers had 35 probable cause to arrest appellants for trespass. 36 court therefore improperly dismissed appellants’ false arrest 37 claim. We hold that there is a genuine issue of We affirm as to all other claims. 1 The district 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JEFFREY A. ROTHMAN (Jonathan C. Moore & Joshua S. Moskovitz, Beldock Levine & Hoffman LLP, New York, NY, on the brief) New York, NY, for Plaintiffs-Appellants. DRAKE A. COLLEY, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for DefendantsAppellees. WINTER, Circuit Judge: Melinda Mitchell and Harvey Mitchell -- we will refer to 15 them as Melinda and Harvey because they are not related -- along 16 with other similarly situated individuals, appeal from Judge 17 Kaplan’s dismissal of their complaint on a grant of summary 18 judgment to appellees. 19 of material fact as to whether the appellee police officers had 20 probable cause to arrest appellants for trespass. 21 vacate the judgment. 22 appellees’ claim of qualified immunity related to the false 23 arrest. 24 abuse of process, and municipal liability claims. We hold that there is a genuine dispute We therefore We remand the false arrest claim and We affirm the dismissal of the malicious prosecution, 25 BACKGROUND 26 This appeal is from a grant of summary judgment, and the 27 following recitation of facts, therefore, views the evidentiary 28 record in the light most favorable to appellants, the non-moving 29 party. 30 (citation omitted). Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) 2 1 In December 2010, Lieutenant Kathleen Caesar of the New York 2 City Police Department (“NYPD”) responded to a report of a sexual 3 assault at a brownstone located at 2142 Atlantic Avenue, in 4 Brooklyn, New York. 5 officer, she saw two women, one of whom said she was robbed in 6 the brownstone. 7 front door, Caesar entered the premises through the back door. 8 She found no one inside. 9 area next to the kitchen, a room with a dance pole, and a living When Caesar arrived with another police After no one responded to her knocks at the On the first floor, she observed a bar 10 room with no furniture. 11 abandoned. 12 this and later made it a point to drive by the brownstone during 13 her patrol shifts since she believed the brownstone might have 14 been “being used for parties.” 15 Caesar concluded that the house was She told her colleague Lieutenant John Hopkins of J. App’x at 104. About a month later, on January 9, 2011, Melinda and Harvey 16 attended a party at the 2142 Atlantic Avenue brownstone. 17 both were invited by acquaintances, neither knew who was hosting 18 the party or who owned the property. 19 they opened a small unlocked gate, and proceeded through the 20 front door. 21 building. 22 property. 23 24 While To enter the brownstone, There were no signs prohibiting entrance to the There was, however, a realtor’s for-sale sign on the At about 2:15 a.m. on January 9, 2011, Caesar was driving by the brownstone when she saw three people standing on its stoop. 3 1 She called Hopkins to inform him that suspicious activity might 2 be taking place at the premises. 3 Gulotta, and other officers arrived, Caesar knocked at the front 4 door but no one answered. 5 locked. 6 the property and entered the brownstone through the back door. 7 Caesar then made her way through the brownstone, past “about 30 8 kids” to the front door to let in more officers. 9 After Hopkins, Captain Joseph She tried to open the door, but it was She and some of the officers proceeded to the rear of Id. at 127-128. Inside, the officers found at least 30 people. According to 10 appellants, space was set up for a party, with a bar, a projector 11 screen, disco lights, running water, working heat, DJ equipment, 12 and an area with a big TV and some couches. 13 his deposition that he saw that electricity was being routed in 14 from outside the house via extension cords. 15 testified at his deposition that he smelled marijuana upon 16 entering the brownstone, and another officer, James Schuessler, 17 testified at his deposition that he recalled seeing six or eight 18 “nickel” or “dime” bags containing what looked to be marijuana 19 and crack cocaine on the floor of the brownstone. 20 Gulotta testified at Gulotta also Upon entering the brownstone, the police told everyone to be 21 quiet and then repeatedly asked who owned the property and who 22 was hosting the party. 23 know who the owner was. 24 Gulotta ordered the arrest of everyone present. Some people replied that they did not When no one revealed the owner or host, 4 The arrests were 1 based on Gulotta’s belief that everyone at the party had: (i) 2 “trespass[ed]”; (ii) “loiter[ed] for the purpose of using 3 narcotics”; and (iii) “endanger[ed] the welfare of a child 4 because there was a 12 year-old child present.” 5 only issue raised in this appeal with regards to the arrests is 6 whether there was probable cause for the arrests for trespass. Id. at 582. The 7 Melinda and Harvey were arrested and both were handcuffed. 8 Melinda was handcuffed for approximately one hour by an officer 9 who refused to loosen the handcuffs when she complained they were 10 too tight. 11 required her to take Advil and use an ice pack for two days. 12 Harvey was handcuffed for 20 to 30 minutes; he alleged the 13 handcuffs left marks on his arms but required no medical 14 treatment. 15 The handcuffs caused bruising to her wrist that All arrestees were processed at the precinct and their 16 fingerprints and mug shots taken. 17 “Desk Appearance Ticket” (“DAT”), which required her to appear in 18 court at a later date. 19 Central Booking facility and arraigned. 20 Melinda was released with a Harvey was processed through the Brooklyn After the arrests, several police officers each submitted 21 statements entitled, “Supporting Deposition – Trespass in a 22 Dwelling and Resisting Arrest,” to the Kings County District 23 Attorney’s Office. 24 understanding that the brownstone was categorized as a Formal The statements attested to the officers’ 5 1 Trespass Affidavit Program (“FTAP”) dwelling and that the NYPD 2 was the lawful custodian of the property.1 3 officers’ statement at the time of the arrest, it is now 4 undisputed that the brownstone was not part of FTAP. 5 does not illuminate whether the building was privately owned or 6 abandoned to City custody, although demonstrating City custody 7 would have helped the defense to show probable cause for the 8 trespass arrests. 9 Notwithstanding the The record The Kings County District Attorney’s Office later declined 10 to prosecute Melinda and others who received a DAT following the 11 arrests at the brownstone. 12 Harvey pursuant to an Adjournment in Contemplation of Dismissal. 13 On April 6, 2012, appellants filed their original complaint It also dropped all charges against 14 in the present action, in which they assert Section 1983 claims 15 for false arrest, malicious prosecution, abuse of process, and 16 excessive force. 17 amended complaint asserting the same Section 1983 claims. 18 19 On November 5, 2012, appellants filed their After discovery, both parties moved for summary judgment. Appellees moved for summary judgment on all of appellants’ 1 The FTAP was developed to allow tenants and landlords to complain of drug-related activity occurring in the common areas of multi-dwelling apartment buildings. Landlords participating in the FTAP are asked to sign an affidavit authorizing the police to perform vertical patrols in their buildings. The police are also given keys to common areas and a list of tenant residents. See, e.g., Charles J. Hynes, Ask the DA: Preventing Illegal Activity in Apartment-Building Hallways, Brooklyn Daily Eagle (Sept. 19, 2012), www.brooklyneagle.com/articles/ask-da-preventing-illegal-activityapartment-building-hallways-2012-09-19-090000; N.Y. Cty. Dist. Atty.’s Office, Trespass Affidavit Program, http://manhattanda.org/trespass-affidavit-program (last visited Oct. 26, 2016). 6 1 claims, whereas appellants moved for partial summary judgment 2 only on their federal and state law claims for false arrest and 3 their state law claims for battery. 4 under New York law became moot, however, when the New York 5 Appellate Division, Second Department, reversed the decision of 6 the Kings County Supreme Court that granted appellants leave to 7 file late notices of their claims. 8 N.Y.S.2d 368, 370 (2013). 9 court granted appellees’ motion for summary judgment in its The battery claim arising Mitchell v. City of N.Y., 977 On February 11, 2013, the district 10 entirety. 11 WL 535046, at *6 (S.D.N.Y. Feb. 11, 2014). 12 followed. 13 14 Mitchell v. City of N.Y., No. 12 CIV. 2674 LAK, 2014 This timely appeal DISCUSSION We review de novo a district court’s grant of summary 15 judgment, “construing the evidence in the light most favorable to 16 the non-moving party and drawing all reasonable inferences in its 17 favor.” 18 2011)(citation omitted). “[I]t is well-settled that [this court] 19 may affirm on any grounds for which there is a record sufficient 20 to permit conclusions of law, including grounds nor relied upon 21 by the district court.” Holcomb v. Lykens, 337 F.3d 217, 223 (2d 22 Cir. 2003) (internal quotation marks and citation omitted). Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 23 24 7 1 2 3 4 5 6 a) False Arrest 1) Probable Cause We first address the district court’s holding that the 7 police had probable cause to arrest appellants. See Mitchell, 8 2014 WL 535046, at *3-*4. “The existence of probable cause to 9 arrest constitutes justification and is a complete defense to an 10 action for false arrest” brought under Section 1983. Jenkins v. 11 City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007) (internal quotation 12 marks and citations omitted). “Probable cause . . . exists when 13 the [arresting] officers have knowledge or reasonably trustworthy 14 information of facts and circumstances that are sufficient to 15 warrant a person of reasonable caution in the belief that the 16 person to be arrested has committed or is committing a crime.” 17 Id. at 84-85 (internal quotation marks and citations omitted). 18 court deciding whether probable cause existed must “examine the 19 events leading up to the arrest, and then decide whether these 20 historical facts, viewed from the standpoint of an objectively 21 reasonable police officer, amount to probable cause.” 22 v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks 23 omitted). 24 warrant, the defendant in a false arrest case bears the burden of 25 proving probable cause as an affirmative defense.” 26 Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) (citation omitted). A Maryland Where “an arrest is not made pursuant to a judicial 27 8 Dickerson v. 1 On this record, it appears that no member of the NYPD made 2 serious efforts to verify the legal status of the brownstone, 3 i.e., the existence of a person or entity with a claim of 4 occupancy of ownership, the property’s status under the FTAP, or 5 the lack of any claim or other status. 6 first visited the property in December 2010, she failed to 7 investigate the ownership status of the brownstone and assumed it 8 was abandoned, even though there were signs of use. 9 evidence in the record, a trier of fact could find that, when When Lieutenant Caesar Based on the 10 Caesar re-entered the brownstone in the early morning of the day 11 of the arrests, she did so based solely on her earlier 12 conjectures that the brownstone was abandoned and that appellants 13 were therefore trespassing. 14 this belief was unreasonable, given the for-sale sign in the 15 front yard. 16 of a real estate sign suggested that someone claimed ownership of 17 the brownstone. 18 A trier of fact could further find Indeed, as Captain Gulotta conceded, the existence Other officers stated (inconsistently) that they believed 19 the brownstone to be part of the FTAP or to be abandoned. 20 conceded that these beliefs were mistaken. 21 record, the only basis, if any, for these beliefs appears to be 22 word of mouth among the officers. 23 24 It is Moreover, on this Furthermore, in finding that the officers had probable cause to believe the brownstone was abandoned and that those present 9 1 were trespassing, the district court also relied heavily on the 2 police officers’ observation once they were inside the brownstone 3 that there were extension cords running from the brownstone to 4 another property as well as the fact that when asked, no one 5 attending the party told the officers who owned the brownstone. 6 Mitchell, 2014 WL 535046, at *4. 7 of the appellants, as we must, we conclude to the contrary that 8 these facts are insufficient to establish on summary judgment as 9 a matter of law that the officers had probable cause to believe 10 11 Drawing all inferences in favor that the house was abandoned.2 After the arrests, Officer Girard Moscato, having seen the 12 for-sale sign outside the brownstone, tried to call Weichert 13 Realty to inquire about the brownstone, but, after leaving a 14 voice message, he did not follow up. 15 455 N.E.2d 1248, 1250 (N.Y. 1983) (“[T]he failure to make a 16 further inquiry when a reasonable person would have done so may 17 be evidence of lack of probable cause.”) (citation omitted). 18 Indeed, as Captain Gulotta conceded, the existence of a real 19 estate sign suggested that someone claimed ownership. See Colon v. City of N.Y., 20 2 The use of extension cords might have been for one of many reasons apart from the fact that the brownstone was abandoned and the attendees were trespassing, such as to avoid blowing a fuse or tripping a circuit breaker on the property, or because there was insufficient power available from the brownstone’s electrical system without the addition of more from another source. Similarly, the silence of those present does not necessarily establish that the officers had a reasonable factual basis for thinking that the brownstone was abandoned. 10 1 Under New York law, one commits the crime of trespass if one 2 “knowingly enters or remains unlawfully in or upon premises.” 3 N.Y. Penal Law § 140.05. The law provides: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. Id. § 140.00(5). 20 the state’s burden to prove that an invitee does not have 21 privilege or license to remain on the premises. 22 element of the crime, officers must have probable cause to 23 believe that a person does not have permission to be where she is 24 before they arrest her for trespass.” 25 F. Supp. 2d 405, 426 (S.D.N.Y. 2012) (discussing New York v. 26 Brown, 254 N.E.2d 755, 756-57 (N.Y. 1969)). 27 arrest for trespass, on this record, could easily be found to 28 have been based entirely on baseless and unreasonable conjectures 29 and assumptions as to the ownership of the property or its FTAP 30 status. The New York Court of Appeals has held “it is Because it is an Davis v. City of N.Y., 902 Appellees’ mass 31 Under these circumstances, viewing the record in the light 32 most favorable to appellants, a dispute of material fact exists 11 1 as to whether the police officers could have reasonably believed 2 the appellants were trespassers. 3 for the belief that the building was in the FTAP, and the for- 4 sale sign belied abandonment. 5 asserting legal occupancy of the premises on this record may 6 eliminate any claim of unlawful entry by the police, but it 7 provides no corresponding individualized probable cause to arrest 8 appellants for trespass. 9 10 There was no reasonable basis The lack of any known claimant Accordingly, we vacate the dismissal of appellants’ false arrest claims. 11 2) Qualified Immunity 12 We leave open for decision in the first instance by the 13 district court on remand the question of whether the appellees 14 are entitled to qualified immunity with respect to the false 15 arrest claim. See Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 16 2000)(“Because qualified immunity is an affirmative defense,... 17 the defendants bear the burden of showing that the challenged act 18 was objectively reasonable in light of the law existing at the 19 time.”). 20 c) 21 Malicious Prosecution We next address the district court’s dismissal of appellant 22 Melinda’s federal and state malicious prosecution claims. 23 Mitchell, 2014 WL 535046, at *5. In order to prevail on such a 24 claim under both Section 1983 and New York State law, a plaintiff 12 See 1 is required to demonstrate: (i) the commencement or continuation 2 of a criminal proceeding against her; (ii) the termination of the 3 proceeding in her favor; (iii) “that there was no probable cause 4 for the proceeding”; and (iv) “that the proceeding was instituted 5 with malice.” 6 2003) (citations omitted); see also Colon, 60 N.Y.2d at 82 7 (similar). When raising a malicious prosecution claim under 8 Section 1983, a plaintiff must also show a “seizure or other 9 perversion of proper legal procedures implicating the claimant’s Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 10 personal liberty and privacy interests under the Fourth 11 Amendment.” 12 (2d Cir. 2004) (internal quotation marks and citation omitted). 13 Washington v. Cty. of Rockland, 373 F.3d 310, 316 We first address Melinda’s state law and federal law claims 14 under the Kinzer test. We have held that, under New York law, 15 the issuance of a DAT constitutes a criminal proceeding 16 initiation. 17 199 (2d Cir. 2014) (“[W]e adhere to the position we took in 18 Rosario that, under New York law, the issuance of a DAT 19 sufficiently initiates a criminal prosecution to sustain a claim 20 of malicious prosecution.”); Rosario v. Amalgamated Ladies' 21 Garment Cutters' Union, Local 10, 605 F.2d 1228, 1250 (2d Cir. 22 1979) (“[W]e believe that if a New York court faced the question 23 before us it would rule that the issuance of [a DAT] commences a 24 prosecution for purposes of determining whether an action for See Stampf v. Long Island R.R. Co., 761 F.3d 192, 13 1 malicious prosecution lies.”). Accordingly, we find that Melinda 2 has met the first Kinzer prong. 3 two and three by showing, respectively, that the proceeding 4 terminated in her favor when the District Attorney’s Office 5 declined to prosecute her, and, as discussed supra, that there 6 was no probable cause for her arrest. 7 however, is at the fourth prong, because she has not alleged or 8 proffered any facts that the DAT was issued with malice. 9 her malicious prosecutions, therefore, fail. She has also satisfied prongs Where her claim fails, Both of 10 As Melinda fails to state a malicious prosecution claim 11 under the Kinzer test, we need not reach the question of whether 12 her single court appearance constituted a seizure under the 13 Fourth Amendment for purposes of her Section 1983 malicious 14 prosecution claim, and we leave the question for another day. 15 We therefore hold the district court properly dismissed 16 Melinda’s state and federal malicious prosecution claims. 17 d) Abuse of Process 18 We now turn to appellants’ abuse-of-process claim. 19 successfully state such a claim, “it is not sufficient for a 20 plaintiff to allege that the defendants were seeking to retaliate 21 against him by pursuing his arrest and prosecution. 22 must claim that they aimed to achieve a collateral purpose beyond 23 or in addition to his criminal prosecution.” Savino v. City of 24 N.Y., 331 F.3d 63, 77 (2d Cir. 2003). 14 To Instead, he 1 Whether or not the police officers may have sought to 2 retaliate against appellants by arresting them, appellants have 3 proffered no evidence that the police officers attempted to 4 achieve any other collateral purpose beyond arresting appellants 5 for trespass. 6 that the district court correctly dismissed appellants’ abuse-of- 7 process claim. 8 e) 9 We hold, therefore, albeit for different reasons, Municipal Liability We turn finally to the district court’s dismissal of 10 appellants’ municipal liability claim. See Mitchell, 2014 WL 11 535046, at *6. To prevail, a plaintiff must identify the 12 existence of a municipal policy or practice that caused the 13 alleged constitutional violation. 14 Servs. of City of N.Y., 436 U.S. 658, 694-95 (1978). 15 must also demonstrate a sufficient causal relationship between 16 the violation and the municipal policy or practice. 17 See Monell v. Dep’t of Soc. A plaintiff Id. As discussed supra, while appellants have sufficiently 18 supported their claim that their arrests lacked individual 19 probable cause, they have not supported their claim of municipal 20 liability. 21 the arrests occurred pursuant to a city policy or practice. See 22 City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 23 (1985)(plurality) (“Proof of a single incident of 24 unconstitutional activity is not sufficient to impose liability Appellants have proffered no evidence to show that 15 1 under Monell, unless proof of the incident includes proof that it 2 was caused by an existing, unconstitutional municipal policy[] 3 [that] can be attributed to a municipal policymaker.”) 4 (plurality); accord Fenner v. City of N.Y., No. 08 Civ. 5 2355(BMC)(LB), 2009 WL 5066810, at *4 (E.D.N.Y. Dec. 21, 2009) 6 (“At most, plaintiff has identified a single incident of a 7 constitutional violation. 8 occurred . . . the Supreme Court has squarely held that this is 9 insufficient to create liability under Monell.”) (citation Even assuming such a violation 10 omitted), aff’d, 392 F. App’x 892, 894 (2d Cir. 2010) (summary 11 order). 12 appellants’ Monell claim. 13 14 Therefore, the district court correctly dismissed CONCLUSION For the reasons stated, we vacate and remand the lower 15 court’s summary judgment rulings as to the false arrest claims 16 and the question of qualified immunity. 17 court’s remaining summary judgment rulings. 16 We affirm the district
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