11-818-cv
Pearce v. LaBella
                      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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22nd day of March, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
           GERARD E. LYNCH,
           CHRISTOPHER F. DRONEY,
                            Circuit Judges.
__________________________________________________

GINA M. PEARCE, as Guardian of distributees of Kristin Mary
Palumbo Longo (deceased) and Administratix of the Estate of
Kristin Mary Palumbo Longo (deceased), STEVEN L. PEARCE,
as Guardian of distributees of Kistin Mary Palumbo Longo
(deceased), JOSEPH LONGO, as a distributee of Kristin Mary
Palumbo Longo (deceased),
                                   Appellee,

                     v.                                               No. 11-818-cv

DANIEL LABELLA, Ind. and as a member of the City of Utica
Police Department, and as Commissioner of Public Safety, DAVID
R. ROEFARO, individually and as Mayor of the City of Utica,
                               Defendants-Appellants,

ESTATE OF OFFICER JOSEPH A. LONGO, JR., Ind. and as
a former member of the City of Utica Police Department, CITY
OF UTICA, CITY OF UTICA POLICE DEPARTMENT,
JANE/JOHN DOE,
                                 Defendants.
__________________________________________________
FOR APPELLANTS:             JOHN P. ORILIO, Assistant Corporation Counsel, City of
                            Utica Law Department, Utica, New York.

FOR APPELLEE:               JOHN W. DILLON, New Hartford, New York.

       Appeal from the United States District Court for the Northern District of New York

(David N. Hurd, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part and REVERSED

in part.

       Defendants-appellants Daniel LaBella and David R. Roefaro appeal from the district

court’s denial of their Rule 12(b)(6) motions to dismiss. See Pearce v. Estate of Longo, 766

F. Supp. 2d 367 (N.D.N.Y. 2011). We assume the parties’ familiarity with the underlying

facts and procedural history of the case.

       The plaintiffs are representatives of the estate of Kristin Longo, who was murdered

by her husband, Joseph Longo, a Utica, New York, police officer, who killed himself after

the murder. LaBella was the chief of police in Utica at the time; Roefaro was the mayor. On

appeal, LaBella and Roefaro argue that they are entitled to qualified immunity from the

plaintiffs’ 42 U.S.C. § 1983 substantive due process claims, brought under the “state created

danger” theory. See, e.g., Pena v. DePrisco, 432 F.3d 98, 107-12 (2d Cir. 2005).

       “When, as here, the district court resolves a qualified immunity issue on a motion to

dismiss, we review the court’s determination de novo, accept as true all the material

allegations of the complaint, and draw all reasonable inferences in the plaintiff’s favor.”

Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003).


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       The district court concluded that the plaintiffs had sufficiently stated a “state created

danger” claim, see Pearce, 766 F. Supp. 2d at 375, and that neither LaBella nor Roefaro was

entitled to qualified immunity. The court held that the “plaintiffs’ amended complaint

sufficiently alleges that [LaBella and Roefaro] implicitly communicated to Longo that his

abusive and threatening behavior would go unpunished and unimpeded. This conduct

created, or at the very least increased, the danger to Kristin and violated a constitutional right

that was clearly established at the time.” Id. at 377.

       The district court was correct with respect to LaBella but incorrect with respect to

Roefaro.

       As to LaBella, the amended complaint alleged, inter alia, that (1) he was unqualified

for the job of police chief and had obtained the position “wrongfully and surreptitiously,” see

Am. Compl. ¶¶ 10-13; (2) he and Joseph Longo “had been close friends for several years”

prior to LaBella’s appointment as chief “and had been partners for many years” in the Utica

Police Department, id. ¶ 14; (3) after word of Joseph Longo’s domestic violence began to

spread throughout the police department, another officer “urged” LaBella “to take action,

including but not limited to confiscating” Joseph Longo’s weapons, but LaBella “denied

these requests, and directly ordered” that Officer Longo “be allowed to keep his weapons,

and remain on duty without psychiatric and/or mental health intervention, notwithstanding

the representations [by a Utica police official] to [Kristin Longo] that his weapons would be

confiscated and that all measures would be taken to protect” Kristin Longo “and her

children,” id. ¶ 26; (4) the Utica Police Department “had a policy, custom and practice,”

either established or approved by LaBella, “of turning a blind eye to incidents of police

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officers involved in domestic violence,” “discourag[ing] victims from reporting abusive

behavior on the part of police officers,” and telling “lie[s] to victims so as to protect

officers,” id. ¶¶ 47, 70; and (5) LaBella and the police department “failed to properly

supervise” or train officers, including “in the legal limits regarding use of force,” id. ¶ 69.

       At least at the pleading stage, these allegations suffice to defeat LaBella’s claim of

qualified immunity. They sufficiently state a claim under the “state created danger” doctrine

because these facts, if true, would permit a jury to conclude that LaBella “communicate[d]

to a private person” – Joseph Longo – “that he or she will not be arrested, punished, or

otherwise interfered with while engaging in misconduct that is likely to endanger the life,

liberty or property of others.” See Pena, 432 F.3d at 111. As this conclusion is based on

caselaw that was well established at the time of LaBella’s actions in 2009, qualified

immunity would not apply if the allegations are successfully proven. See id. at 110-12; Okin

v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 429-34 (2d Cir. 2009). The

district court was therefore correct to reject LaBella’s motion to dismiss.

       However, the allegations against Roefaro as mayor are plainly insufficient to establish

liability or defeat qualified immunity. As to Roefaro, the amended complaint alleged merely

that (1) he appointed his friend LaBella as police chief, even though LaBella was not

qualified for the job and other applicants had achieved equal or higher scores on the

qualifying civil-service exam, Am. Compl. ¶¶ 10-12; (2) Roefaro hired LaBella as police

chief despite knowing that LaBella “lacked the requisite education, qualifications, and

experience to serve competently” as chief,” id. ¶ 13; (3) LaBella’s appointment constituted



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a “wrongful and illegal conspiracy” between Roefaro, LaBella, and other unspecified

members of the Utica city government, carried out “with reckless disregard,” that “created

a danger to” Kristin Longo because it made her “vulnerable to the dangers posed by” her

husband, id. ¶¶ 42, 44, 45; and (4) Kristin Longo’s “great pain and suffering,” “apprehension

of death,” and death were all “foreseeable consequences of the appointment of an unqualified

individual to act as chief of police,” id. ¶ 50.

       These allegations do not allege a violation of any “clearly established” constitutional

or statutory right. Plaintiffs do not allege that Roefaro knew or should have known about

Joseph Longo’s violent behavior, or knew or should have known that LaBella, as police

chief, would ignore such behavior, or refused to take appropriate steps once he learned (if

he ever did) of Joseph Longo’s domestic violence or of LaBella’s inaction. Rather, the only

reasonably specific allegations against the mayor are that he knowingly hired an unqualified

police chief, and that at some later point the unqualified chief failed to prevent a subordinate

from murdering his wife.

       These allegations do not come close to clearing the two hurdles required to overcome

qualified immunity: establishing that (1) the mayor’s “conduct violated a constitutional

right,” Saucier v. Katz, 533 U.S. 194, 201 (2001); and (2) that the right was “clearly

established” – that is, that it “would be clear to a reasonable [mayor] that his conduct” in

hiring an unqualified friend as police chief “was unlawful,” see id. at 202.

       As to the first prong of the test, the plaintiffs have not alleged that Roefaro “created

a serious danger by acting with deliberate indifference to it.” See Pena, 432 F.3d at 114.



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Indeed, the complaint does not contain any non-conclusory allegations that the mayor knew

or should have known of the danger that Joseph Longo posed to Kristin Longo, or knew or

should have known that LaBella would be ill-equipped to supervise an officer like Joseph

Longo. Instead, the complaint alleges merely that the mayor knew that LaBella “lacked the

requisite education, qualifications, and experience to serve competently as Chief of Police

for a paramilitary organization the size of the Utica Police Department.” Am. Compl. ¶ 13.

       Furthermore, even if the complaint had properly made out an allegation of a

substantive due process violation, the mayor would nonetheless be entitled to qualified

immunity under the second prong of the qualified immunity test, because the purported

mayoral “duty” asserted by the plaintiffs – a duty to prevent officers like Joseph Longo from

committing domestic violence by assuring that the candidate most qualified to prevent such

is hired as police chief – cannot be said to have been a “clearly established” one. See

Anderson, 317 F.3d at 197. Elected executives on occasion appoint cronies of questionable

qualification to important government positions, and such appointments have not been held

to implicate the Fifth or Fourteenth Amendments to the U.S. Constitution. Indeed, we know

of no case, in our circuit or any other, that contemplates the existence of a duty like the one

that the plaintiffs assert here. Such a duty certainly was not “clearly established” when

Roefaro hired LaBella as police chief or when Joseph Longo killed his wife.

       In addition to the allegations listed above, the amended complaint contains several

conclusory allegations against “the defendants” collectively that do not distinguish between

the individual defendants. For example, the plaintiffs allege:


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               The defendants had a policy, custom and practice of turning a
               blind eye to incidents of police officers involved in domestic
               violence. Upon information and belief, supervisors often
               discouraged victims from reporting abusive behavior on the part
               of police officers and/or lied to victims so as to protect police
               officers. . . . This policy, custom and practice amounted to
               either express or implicit consent to police officers to continue
               to engage in domestic violence.

Am. Compl. ¶ 47. The qualified immunity doctrine certainly does not permit government

officials to turn a blind eye to or encourage such conduct. See, e.g., Okin, 577 F.3d at 434

(concluding that “the state-created danger theory, at the time of defendants’ actions here,

clearly established that police officers are prohibited from affirmatively contributing to the

vulnerability of a known victim by engaging in conduct, whether explicit or implicit, that

encourages intentional violence against the victim, and as that is the substantive due process

violation alleged here, qualified immunity does not apply”). But in the present case, the

plaintiffs’ broad and conclusory allegations against “the defendants” as a group do not

suffice to overcome Roefaro’s individual qualified immunity.

       Accordingly, Roefaro was entitled to qualified immunity, and the district court should

have granted his Rule 12(b)(6) motion.

       For the foregoing reasons, the judgment is AFFIRMED with respect to LaBella but

REVERSED with respect to Roefaro. The case is remanded with directions to enter judgment

for Roefaro.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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