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Defendant NYC Police Officers are not entitled to Qualified Immunity for the mass arrests that occur

Garcia v. Jane and John Doe, 12-2634-cv (Aug. 21 2014)

In their complaint, the Plaintiffs attached video footage and photographs that became part of the complaint and, therefore, were considered on appeal. The Plaintiffs allege violations of their First, Fourth and Fourteenth Amendments. While the District Court denied the motion to dismiss these claims against the individual officers, the District Court granted the motion to dismiss claims against the NYC, Mayor Bloomberg and Police Commissioner Kelly. “The district court further held that while plaintiffs had clearly violated the law by entering the Bridge roadway and blocking vehicular traffic, based on the facts alleged, no reasonable police officer could believe that plaintiffs had received fair warning that their behavior was illegal, as required by law.”

The Court narrowed the issue to “whether a reasonable police officer (in the position of the officers who decided to arrest plaintiffs) should have known that under the totality of the circumstances, the conduct of the police could have been reasonably understood by plaintiffs as an implicit invitation to enter the Bridge roadway, and thus should have known that additional, louder, or clearer instructions were required.” Here, “[a]s the dissent concedes, however, Cox holds that when demonstrators have been given police permission to be where they are, they cannot be found guilty of a crime absent clear warning that permission has been revoked. If a person cannot as a matter of law be guilty of a crime, an officer aware of the facts establishing the applicable defense cannot have probable cause to make an arrest.”

Qualified Immunity is a mechanism whereby the Court can quickly dispose of a claim against a state actor where the actor was acting objectively reasonable under the circumstances or the defendant’s action “did not violate clearly established law.” Defendants bear the burden of establishing Qualified Immunity and the Supreme Court has made clear that such questions should be resolved at “the earliest possible stage of the litigation.” While Courts often evaluate whether a police officer was acting objectively reasonable under the circumstances, whether a police officer violated clearly established law poses an entirely different question which the dissent heavily emphasized. Additionally, the dissent greatly admonished the majority’s use of the precedent set forth in both Cox and Papinea to the facts here; the Defendants’ failure to give the protestors fair warning that the protestor’s conduct would subject the protestor to arrest.

An officer is entitled to qualified immunity against a suit for false arrest if he can establish that he had “arguable probable cause” to arrest the plaintiff. Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (internal quotation marks omitted). “‘Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’” Id., quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “In deciding whether an officer’s conduct was objectively reasonable . . . , we look to the information possessed by the officer at the time of the arrest, but we do not consider the subjective intent, motives, or beliefs of the officer.” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (internal quotation marks omitted).

[We reiterated the need for fair warning in Papineau. 465 F.3d at 60‐61. There, the plaintiffs were protesting on private property bordering a public highway. A handful of protesters violated state law by briefly entering the highway to distribute pamphlets. Later, once the protesters were all back on private property, police officers marched onto the property and began arresting protesters without giving any warning. Id. at 53. We affirmed the district court’s denial of qualified immunity to the officers, holding that even if the officers had a lawful basis to interfere with the demonstration, the plaintiffs “still enjoyed First Amendment protection, and absent imminent harm, the troopers could not simply disperse them without giving fair warning.” Id. at 60, citing City of Chicago v. Morales, 527 U.S. 41, 58 (1999) (“[T]he purpose of the fair notice requirement [in disorderly conduct statutes] is to enable the ordinary citizen to conform his or her conduct to the law.” (alteration in original)). Papineau also suggested in dictum that if the police had granted permission to demonstrate in a certain fashion, as in Cox, “even an order to disperse would not divest demonstrators of their right to protest.” Id. at 60 n.6.]

The Second Circuit here held that “had the officers explicitly invited protestors onto the bridge, they could not have arrested the protestors without fair warning of the revocation of such permission.” The majority held that “we cannot say at this stage whether or not defendants had sufficient knowledge of plaintiffs’ perception of the officers’ actions such that they acted unreasonably in arresting plaintiffs.” The Second Circuit affirmed the District Court while the Dissent would have reversed on the limited record (limited by there being no discovery beyond the facts and record as set forth by the Plaintiffs).

The Dissent accuses the majority of misreading Papineau – a case, as the dissent characterizes, which is distinguished because the exercise of excessive force and interference with First Amendment rights took place on private as opposed to public property. Citing Supreme Court precedent, the Dissent finds that the officers acted objectively reasonable here and that the abovementioned issue calls for a quick resolve in Defendants’ favor at the earliest stage of litigation.

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