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 (Argued: February 20, 2015 Decided: October 28, 2016)
6
7 Docket No. 14-0767-cv
8 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
9 MELINDA MITCHELL, individually and on behalf of a class of all
10 others similarly situated, HARVEY MITCHELL, individually and on
11 behalf of a class of all others similarly situated,
12
13 Plaintiffs-Appellants,
14
15 v.
16
17 THE CITY OF NEW YORK, a municipal entity, NYC POLICE OFFICER
18 JAMES SCHUESSLER, Shield No. 28718, RICHARD ROES, 1-50 NEW YORK
19 CITY POLICE SUPERVISORS AND COMMANDERS, JOHN DOES, 1-50 NEW YORK
20 CITY POLICE OFFICERS, individually, and in their official
21 capacities, jointly and severally, POLICE OFFICER JOSEPH
22 BRINADZE, NYPD CAPTAIN JOSEPH GULOTTA, NYPD SERGEANT DANIELLE
23 ROVENTINI, and NYPD LIEUTENANT KATHLEEN CAESAR,
24
25 Defendants-Appellees.
26 - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - -
27
28 B e f o r e: WINTER, POOLER, and SACK, Circuit Judges.
29
30 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. We hold that there is a genuine issue of
34 material fact as to whether the New York City Police officers had
35 probable cause to arrest appellants for trespass. The district
36 court therefore improperly dismissed appellants’ false arrest
37 claim. We affirm as to all other claims.
1
1 JEFFREY A. ROTHMAN (Jonathan C. Moore &
2 Joshua S. Moskovitz, Beldock Levine &
3 Hoffman LLP, New York, NY, on the brief)
4 New York, NY, for Plaintiffs-Appellants.
5
6 DRAKE A. COLLEY, for Zachary W. Carter,
7 Corporation Counsel of the City of New
8 York, New York, NY, for Defendants-
9 Appellees.
10
11
12 WINTER, Circuit Judge:
13
14 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. We hold that there is a genuine dispute
19 of material fact as to whether the appellee police officers had
20 probable cause to arrest appellants for trespass. We therefore
21 vacate the judgment. We remand the false arrest claim and
22 appellees’ claim of qualified immunity related to the false
23 arrest. We affirm the dismissal of the malicious prosecution,
24 abuse of process, and municipal liability claims.
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. Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016)
30 (citation omitted).
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. When Caesar arrived with another police
5 officer, she saw two women, one of whom said she was robbed in
6 the brownstone. After no one responded to her knocks at the
7 front door, Caesar entered the premises through the back door.
8 She found no one inside. On the first floor, she observed a bar
9 area next to the kitchen, a room with a dance pole, and a living
10 room with no furniture. Caesar concluded that the house was
11 abandoned. She told her colleague Lieutenant John Hopkins of
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.” J. App’x at 104.
15 About a month later, on January 9, 2011, Melinda and Harvey
16 attended a party at the 2142 Atlantic Avenue brownstone. While
17 both were invited by acquaintances, neither knew who was hosting
18 the party or who owned the property. To enter the brownstone,
19 they opened a small unlocked gate, and proceeded through the
20 front door. There were no signs prohibiting entrance to the
21 building. There was, however, a realtor’s for-sale sign on the
22 property.
23 At about 2:15 a.m. on January 9, 2011, Caesar was driving by
24 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. After Hopkins, Captain Joseph
3 Gulotta, and other officers arrived, Caesar knocked at the front
4 door but no one answered. She tried to open the door, but it was
5 locked. She and some of the officers proceeded to the rear of
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. Id. at 127-128.
9 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. Gulotta testified at
13 his deposition that he saw that electricity was being routed in
14 from outside the house via extension cords. Gulotta also
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 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. Some people replied that they did not
23 know who the owner was. When no one revealed the owner or host,
24 Gulotta ordered the arrest of everyone present. The arrests were
4
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.” Id. at 582. The
5 only issue raised in this appeal with regards to the arrests is
6 whether there was probable cause for the arrests for trespass.
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. The handcuffs caused bruising to her wrist that
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 All arrestees were processed at the precinct and their
16 fingerprints and mug shots taken. Melinda was released with a
17 “Desk Appearance Ticket” (“DAT”), which required her to appear in
18 court at a later date. Harvey was processed through the Brooklyn
19 Central Booking facility and arraigned.
20 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. The statements attested to the officers’
24 understanding that the brownstone was categorized as a Formal
5
1 Trespass Affidavit Program (“FTAP”) dwelling and that the NYPD
2 was the lawful custodian of the property.1 Notwithstanding the
3 officers’ statement at the time of the arrest, it is now
4 undisputed that the brownstone was not part of FTAP. The record
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 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. It also dropped all charges against
12 Harvey pursuant to an Adjournment in Contemplation of Dismissal.
13 On April 6, 2012, appellants filed their original complaint
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. On November 5, 2012, appellants filed their
17 amended complaint asserting the same Section 1983 claims.
18 After discovery, both parties moved for summary judgment.
19 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-activity-
apartment-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. The battery claim arising
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. Mitchell v. City of N.Y., 977
8 N.Y.S.2d 368, 370 (2013). On February 11, 2013, the district
9 court granted appellees’ motion for summary judgment in its
10 entirety. Mitchell v. City of N.Y., No. 12 CIV. 2674 LAK, 2014
11 WL 535046, at *6 (S.D.N.Y. Feb. 11, 2014). This timely appeal
12 followed.
13 DISCUSSION
14 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.” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.
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).
23
24
7
1
2 a) False Arrest
3
4 1) Probable Cause
5
6 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). A
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.” Maryland
22 v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks
23 omitted). Where “an arrest is not made pursuant to a judicial
24 warrant, the defendant in a false arrest case bears the burden of
25 proving probable cause as an affirmative defense.” Dickerson v.
26 Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) (citation omitted).
27
8
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. When Lieutenant Caesar
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. Based on the
9 evidence in the record, a trier of fact could find that, when
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. A trier of fact could further find
14 this belief was unreasonable, given the for-sale sign in the
15 front yard. Indeed, as Captain Gulotta conceded, the existence
16 of a real estate sign suggested that someone claimed ownership of
17 the brownstone.
18 Other officers stated (inconsistently) that they believed
19 the brownstone to be part of the FTAP or to be abandoned. It is
20 conceded that these beliefs were mistaken. Moreover, on this
21 record, the only basis, if any, for these beliefs appears to be
22 word of mouth among the officers.
23 Furthermore, in finding that the officers had probable cause
24 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. Drawing all inferences in favor
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 that the house was abandoned.2
11 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. See Colon v. City of N.Y.,
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.
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 A person ‘enters or remains unlawfully’ in or
5 upon premises when he is not licensed or
6 privileged to do so. A person who, regardless
7 of his intent, enters or remains in or upon
8 premises which are at the time open to the
9 public does so with license and privilege
10 unless he defies a lawful order not to enter
11 or remain, personally communicated to him by
12 the owner of such premises or other authorized
13 person. A license or privilege to enter or
14 remain in a building which is only partly open
15 to the public is not a license or privilege to
16 enter or remain in that part of the building
17 which is not open to the public.
18
19 Id. § 140.00(5). The New York Court of Appeals has held “it is
20 the state’s burden to prove that an invitee does not have
21 privilege or license to remain on the premises. Because it is an
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.” Davis v. City of N.Y., 902
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)). Appellees’ mass
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.
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. There was no reasonable basis
3 for the belief that the building was in the FTAP, and the for-
4 sale sign belied abandonment. The lack of any known claimant
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 Accordingly, we vacate the dismissal of appellants’ false
10 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) Malicious Prosecution
21 We next address the district court’s dismissal of appellant
22 Melinda’s federal and state malicious prosecution claims. See
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
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.” Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.
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
10 personal liberty and privacy interests under the Fourth
11 Amendment.” Washington v. Cty. of Rockland, 373 F.3d 310, 316
12 (2d Cir. 2004) (internal quotation marks and citation omitted).
13 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. See Stampf v. Long Island R.R. Co., 761 F.3d 192,
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
13
1 malicious prosecution lies.”). Accordingly, we find that Melinda
2 has met the first Kinzer prong. She has also satisfied prongs
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. Where her claim fails,
7 however, is at the fourth prong, because she has not alleged or
8 proffered any facts that the DAT was issued with malice. Both of
9 her malicious prosecutions, therefore, fail.
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. To
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. Instead, he
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
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. We hold, therefore, albeit for different reasons,
6 that the district court correctly dismissed appellants’ abuse-of-
7 process claim.
8 e) Municipal Liability
9 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. See Monell v. Dep’t of Soc.
14 Servs. of City of N.Y., 436 U.S. 658, 694-95 (1978). A plaintiff
15 must also demonstrate a sufficient causal relationship between
16 the violation and the municipal policy or practice. Id.
17 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. Appellants have proffered no evidence to show that
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
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. Even assuming such a violation
8 occurred . . . the Supreme Court has squarely held that this is
9 insufficient to create liability under Monell.”) (citation
10 omitted), aff’d, 392 F. App’x 892, 894 (2d Cir. 2010) (summary
11 order). Therefore, the district court correctly dismissed
12 appellants’ Monell claim.
13 CONCLUSION
14 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. We affirm the district
17 court’s remaining summary judgment rulings.
16