22-3008
Williams v. Olsen
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 7th day of November, two thousand twenty-three.
PRESENT: RAYMOND J. LOHIER, JR.,
WILLIAM J. NARDINI,
BETH ROBINSON,
Circuit Judges.
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ELLAZAR WILLIAMS,
Plaintiff-Appellee,
v. No. 22-3008
JAMES OLSEN, CITY OF ALBANY
POLICE DETECTIVE,
CHRISTOPHER CORNELL, CITY
OF ALBANY POLICE DETECTIVE,
LAWRENCE HEID, CITY OF
ALBANY POLICE DETECTIVE,
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Defendants-Appellants,
JOHN DOES 23-25, CITY OF ALBANY,
Defendant.
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FOR PLAINTIFF-APPELLEE: Julie A. Nociolo, James C.
Knox, E. Steward Jones Hacker
Murphy, LLP, Troy, NY
FOR DEFENDANTS-APPELLANTS: Stephen J. Rehfuss, The
Rehfuss Law Firm, P.C.,
Latham, NY
Appeal from an order of the United States District Court for the Northern
District of New York (Lawrence E. Kahn, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is REVERSED in part, the
appeal is DISMISSED in part, and the case is REMANDED for further
proceedings consistent with this order.
Appellants Detective James Olsen, Detective Christopher Cornell, and
Detective Lawrence Heid appeal from a November 1, 2022 order of the United
States District Court for the Northern District of New York (Kahn, J.) denying
Appellants’ motion for summary judgment premised on a qualified immunity
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defense and permitting Plaintiff-Appellee Ellazar Williams’ § 1983 claims of
excessive force and false arrest to proceed. On interlocutory appeal, Appellants
argue that the District Court incorrectly determined that genuine disputes of
material fact exist as to whether Appellants used constitutionally excessive force
against Williams and had probable cause, or at least arguable probable cause, to
arrest him. We assume the parties’ familiarity with the underlying facts and the
record of prior proceedings, to which we refer only as necessary to explain our
decision to reverse in part and dismiss in part.
DISCUSSION
We review a district court’s summary judgment ruling de novo and in the
light most favorable to the non-moving party. Garcia v. Hartford Police Dep't, 706
F.3d 120, 126 (2d Cir. 2013). Summary judgment is appropriate “only if there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Id. (quotation marks omitted).
I. Excessive Force
Appellants first argue that, contrary to the District Court’s order, they are
entitled to qualified immunity on Williams’ excessive force claim. We have
“jurisdiction to review an interlocutory order denying qualified immunity so
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long as defendants pursue the appeal on stipulated facts, or on the facts that the
plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial
judge concluded the jury might find.” Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir.
2019) (quotation marks omitted). But we lack “jurisdiction to review a denial of
qualified immunity to the extent it is based on a district court’s finding that there
is enough evidence in the record to create a genuine issue as to factual questions
that are, in fact, material to resolution of the qualified immunity claim.”
Doninger v. Niehoff, 642 F.3d 334, 352 (2d Cir. 2011).
We lack jurisdiction to consider the District Court’s order relating to the
excessive force claim because Appellants’ entitlement to qualified immunity as to
that claim turns on disputed facts. As the District Court noted, the parties
dispute the following facts, among others: whether Williams was holding a
weapon in his hand such that it would have been visible to the officers at any
point during the pursuit, ignored Detective Olsen’s instructions to get on the
ground and drop the weapon, and ran toward Detective Olsen at any point. On
appeal, the parties also continue to dispute the distance between Detective Olsen
and Williams when Detective Olsen shot Williams. Appellants thus have not
argued that they would be entitled to qualified immunity as a matter of law
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under Williams’ version of the facts. See Tierney v. Davidson, 133 F.3d 189, 194 (2d
Cir. 1998) (noting that for the court of appeals to have appellate jurisdiction, a
defendant must show that “he is entitled to qualified immunity even under
plaintiff’s version of the facts”). We therefore dismiss the appeal with respect to
Williams’ excessive force claim for lack of appellate jurisdiction.
II. False Arrest
Appellants next contend that the District Court erred in denying summary
judgment on Williams’ false arrest claim. We agree. Because Appellants invoke
a qualified immunity defense, they need only show “arguable” probable cause
for Williams’ arrest. Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016). Arguable
probable cause to arrest exists “if either (a) it was objectively reasonable for the
officer[s] to believe that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test was met.” Id.
(quotation marks omitted).
Here, it is undisputed that Appellants had knowledge of a 911 call in
which a witness reported that a man wearing a “grey hoodie and dark faded
jeans,” who had a gun, “was threatening people” outside of a store “and threw
glass and water bottles at the front door” of the store. App’x at 27. It is also
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undisputed that Williams matched the physical description of the suspect; that
Williams was seen by the officers on a street corner near the store shortly after
the 911 call; that Williams ran away when the officers approached him; that the
officers later learned before arresting Williams that the store owner and another
store employee each made a statement to police that the suspect flashed a gun
and told the store owner that he would “put a burner in [him],” id.; and that the
store owner later identified Williams in a photo lineup as the suspect. We
conclude that these facts gave officers at least arguable probable cause to arrest
Williams for criminal possession of a weapon in the fourth degree based on his
threatening the store owner with a gun under New York Penal Law § 265.01(2),
which provides in relevant part that a person is guilty of that offense when “[h]e
or she possesses any . . . dangerous or deadly instrument or weapon with intent
to use the same unlawfully against another.” N.Y. Penal Law § 265.01(2); see
Triolo v. Nassau County, 24 F.4th 98, 108 (2d Cir. 2022). And because this
determination is based solely on undisputed facts, we have jurisdiction over this
aspect of the appeal. See Francis, 942 F.3d at 139. We therefore reverse the
judgment of the District Court denying summary judgment to Appellants on
Williams’ false arrest claim.
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CONCLUSION
For the foregoing reasons, the order of the District Court is REVERSED in
part, the appeal is DISMISSED in part, and the case is REMANDED for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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