     13-2870
     Schwartz v. Marcantonatos

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       PAULINE SCHWARTZ,
13                Plaintiff-Appellee,
14
15                    -v.-                                               13-2870
16
17       JAMES MARCANTONATOS, JONATHAN CHIN,
18       Shield No. 240, JULIO SANTIAGO, Shield
19       No. 23556, Individually and in Their
20       Official Capacities, MICHAEL VOSS,
21       Shield No. 25617, Individually and in
22       Their Official Capacities,
23                Defendant-Appellants,
24
25       THE CITY OF NEW YORK, JOHN DOES 1-10,
26       Individually and in Their Official
27       Capacities, JANE DOES 1-10,
28       Individually and in Their Official

                                                  1
 1   Capacities, (the name Jane Doe being
 2   fictitious as the true name are
 3   presently unknown),
 4            Defendants.
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANTS:            VICTORIA SCALZO (Kristin M.
 8                              Helmers and Andrew Lucas, on the
 9                              brief), for Michael A. Cardozo,
10                              Corporation Counsel of the City
11                              of New York, New York, New York.
12
13   FOR APPELLEE:              GABRIEL P. HARVIS (Scott A.
14                              Korenbaum, on the brief), Harvis
15                              Wright & Fett LLP, New York, New
16                              York.
17
18        Appeal from a judgment of the United States District
19   Court for the Southern District of New York (Hellerstein,
20   J.).
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23   AND DECREED that the judgment of the district court be
24   AFFIRMED.
25
26        Officers Marcantonatos, Chin, Santiago, and Voss appeal
27   from the judgment of the United States District Court for
28   the Southern District of New York (Hellerstein, J.), denying
29   their motions for summary judgment on the ground of
30   qualified immunity. We assume the parties’ familiarity with
31   the underlying facts, the procedural history, and the issues
32   presented for review.
33
34        For purposes of this interlocutory appeal, we must
35   accept as true the plaintiff’s version of the facts. See,
36   e.g., Loria v. Gorman, 306 F.3d 1271, 1280 (2d Cir. 2002)
37   (“[E]ven if the district court finds that material issues of
38   fact exist, we may still exercise interlocutory jurisdiction
39   if the defendant . . . contends that he is entitled to
40   qualified immunity even under plaintiff’s version of the
41   facts.” (quotation marks omitted)). On May 29, 2011, police
42   officers in New York’s Central Park precinct conducted a
43   “lucky bag” operation as part of a program to deter
44   unattended-property crimes. In these operations,
45   plainclothes police leave an unattended bag or wallet in the
46   open and wait to see if somebody picks it up. Arrest is

                                  2
 1   made if the finder exhibits an intent to steal it; usually
 2   this involves “separation,” that is, the suspect discards
 3   the bag after removing something from the bag.
 4
 5        On May 29, 2011, the defendant police officers left an
 6   unattended bag near a bench in the Poets’ Walk area of the
 7   park. Pauline Schwartz sat on the bench, noticed the bag,
 8   picked up the bag, and placed it in a plastic grocery bag.1
 9   At no point did she open the bag or look inside. There were
10   no uniformed police officers nearby and Schwartz began to
11   walk in the direction of the nearby Dairy Visitor Center.
12
13        Because there was no “separation,” Lieutenant
14   Marcantonatos employed a ruse to determine whether Schwartz
15   intended to steal the bag. He approached her on a bicycle–-
16   in an area of the park where bicycle riding is prohibited--
17   and asked Schwartz if she happened to pick up his wife’s
18   bag. Schwartz replied in the negative. In Marcantonatos’s
19   experience, the suspect usually asks for a description of
20   the bag and hands it over if an accurate description is
21   provided. This was the first time Marcantonatos encountered
22   a denial. But a reasonable officer should consider that,
23   with no “wife” in sight, Schwartz would have been reluctant
24   to hand the bag to any man who demands it.
25
26        At that point, Schwartz started to walk a few steps;
27   the other officers approached and Schwartz noticed that one
28   was wearing a badge. Schwartz claimed to be taking the bag
29   to the Dairy Visitor Center to turn it in, but the officers
30   decided to arrest her. Schwartz spent four hours in custody
31   at a nearby police station and had to defend a criminal
32   charge for petit larceny until such time as she agreed to
33   accept an adjournment in contemplation of dismissal.
34
35        In this § 1983 action against the City of New York and
36   the individual officers, Schwartz claims they violated her


         1
           Schwartz claims the unattended bag was filthy and
     that she put it in a bag to keep from having to hold it in
     her hands. The officers acknowledge the bag has been used
     in similar operations for some time and has, on occasion,
     been thrown in the trash. Nevertheless, probable cause is
     based only on the facts known to the officers in making
     their decision to arrest–-any explanation Schwartz had for
     placing the bag in another bag is irrelevant to our
     analysis.
                                  3
 1   Fourth and Fourteenth Amendment rights. The district court
 2   denied the motion by the individual officers for summary
 3   judgment on the ground of qualified immunity, ruling that
 4   there were genuine issues of material fact regarding the
 5   exchange between Schwartz and Marcantonatos; this
 6   interlocutory appeal followed. We review a district court’s
 7   summary judgment decision de novo, construing the evidence
 8   in the light most favorable to the non-moving party. See
 9   Vincent v. The Money Store, 736 F.3d 88, 96 (2d Cir. 2013).
10
11        “Qualified immunity protects officials from liability
12   for civil damages as long as ‘their conduct does not violate
13   clearly established statutory or constitutional rights of
14   which a reasonable person would have known.’” Gilles v.
15   Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (quoting Harlow v.
16   Fitzgerald, 457 U.S. 800, 818 (1982)). “[A] police officer
17   is entitled to qualified immunity where (1) his conduct does
18   not violate clearly established statutory or constitutional
19   rights of which a reasonable person would have known, or (2)
20   it was objectively reasonable for him to believe that his
21   actions were lawful at the time of the challenged act.”
22   Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)
23   (quotation marks omitted).
24
25        “There is no doubt that the right to be free from
26   arrest without probable cause was clearly established at the
27   time of [Schwartz’s] arrest.” Id. “Probable cause to
28   arrest exists when the authorities have knowledge or
29   reasonably trustworthy information sufficient to warrant a
30   person of reasonable caution in the belief that an offense
31   has been committed by the person to be arrested.” Lennon v.
32   Miller, 66 F.3d 416, 424 (2d Cir. 1995) (quotation marks
33   omitted). “While probable cause requires more than a mere
34   suspicion of wrongdoing, its focus is on probabilities, not
35   hard certainties.” Walczyk v. Rio, 496 F.3d 139, 156 (2d
36   Cir. 2007) (internal citations and quotation marks omitted).
37   “[O]ur inquiry is an objective that focuses on the facts
38   available to the arresting officer at the time of the
39   arrest.” See Finigan v. Marshall, 574 F.3d 57, 61-62 (2d
40   Cir. 2009).
41
42        The issue is whether the probable cause determination
43   was reasonable; accordingly “‘arguable probable cause’ will
44   suffice to confer qualified immunity for [an] arrest.”
45   Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2007). This
46   test is “more favorable to the officers than the one for
47   probable cause,” id.; however, “‘[a]rguable’ probable cause

                                  4
 1   should not be misunderstood to mean ‘almost’ probable
 2   cause,” Jenkins, 478 F.3d at 87. “Arguable probable cause
 3   exists if either (a) it was objectively reasonable for the
 4   officer to believe that probable cause existed, or (b)
 5   officers of reasonable competence could disagree on whether
 6   the probable cause test was met.” Escalera, 361 F.3d at
 7   743.
 8
 9        The officers claim they had probable cause (actual or
10   arguable) because Schwartz: 1) picked up the bag; 2) placed
11   it inside another bag; 3) walked away; and 4) denied having
12   the bag. However, other circumstances known to the officers
13   prior to their decision to arrest Schwartz militate against
14   granting them qualified immunity. Schwartz took nothing out
15   of the bag (no “separation”), and never opened it or looked
16   inside. The officers relied on Schwartz denying possession,
17   and not asking Marcantonatos to describe the bag. However,
18   that reaction to what could have been a scam does not
19   bespeak theft. In the scenario, created by the officers, a
20   woman in possession of an apparently lost handbag refuses to
21   turn it over to a stranger illegally riding a bicycle, who
22   claims it belongs to his wife, with no apparent spouse in
23   view. By disclaiming possession of the bag, Schwartz
24   reduced the risk that a real thief would snatch it, or would
25   take it even if he could not describe it.
26
27        Schwartz told the arresting officers that she planned
28   to take the bag to the visitor center. Common sense and
29   police experience confirm that a thief will often tell
30   police that they intended to turn the bag over to the
31   authorities. However, the officers failed to consider the
32   honest alternative. Cf. Provost v. City of Newburgh, 262
33   F.3d 146, 158 (2d cir. 2001) (“[A]n officer who concedes the
34   possibility that there were justifiable reasons for
35   disruptive conduct underlying a plaintiff’s arrest is hard-
36   pressed to establish that he had probable cause as a matter
37   of law on the intent element of [the disorderly conduct
38   statute].”). Schwartz walked away from the bench in the
39   direction of the Dairy Visitor Center, and was mere steps
40   away from it.
41
42        Based only on the plaintiff’s version of the facts, the
43   officers had neither probable cause nor arguable probable
44   cause. Therefore, we conclude that at this stage of the
45   litigation they do not enjoy qualified immunity. In so
46   concluding, we of course do not preclude the possibility


                                  5
 1   that factual findings made later in the litigation resolving
 2   the disputed material facts may justify qualified immunity.
 3
 4        For the foregoing reasons, and finding no merit in the
 5   officers’ other arguments, we hereby AFFIRM the judgment of
 6   the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10
11
12
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