                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 20, 2014                   518629
________________________________

ANGELA MARIE BROWN,
                      Appellant-
                      Respondent,
     v                                      MEMORANDUM AND ORDER

G. A. HOFFMAN,
                    Respondent-
                    Appellant.
________________________________


Calendar Date:   October 7, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

                             __________


      Jonathan Wood, County Attorney, Ithaca, for respondent-
appellant.

     Edward E. Kopko, Ithaca, for appellant-respondent.

                             __________


Clark, J.

      Cross appeals from an order of the Supreme Court (Mulvey,
J.), entered July 24, 2013 in Tompkins County, which partially
denied defendant's motion for summary judgment dismissing the
complaint.

      As a result of events related to a disagreement between
plaintiff and employees at the Tompkins County Regional Airport,
defendant, a Tompkins County Sheriff, arrested plaintiff after
she refused to leave the premises. By information, plaintiff was
charged with disorderly conduct pursuant to Penal Law § 240.20
(3). However, that charge was dismissed. Plaintiff subsequently
commenced this action pursuant to 42 USC § 1983, seeking damages
as a result of the allegations that defendant, among other
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things, made an unlawful arrest in violation of the 4th
Amendment, used excessive force in violation of the 4th Amendment
and arrested plaintiff in retaliation for her use of protected
speech in violation of the 1st Amendment. Defendant thereafter
moved for summary judgment dismissing the complaint. Supreme
Court denied defendant's motion as to plaintiff's cause of action
relating to unlawful arrest, but granted defendant's motion as to
the remaining causes of action. Plaintiff and defendant
cross-appeal.

      Beginning with defendant's contentions, we disagree that
Supreme Court erred in partially denying the motion for summary
judgment as to the cause of action based on false arrest. Based
upon the record before us, we find that defendant failed to meet
his burden of establishing, as a matter of law, that he had
arguable probable cause to arrest plaintiff for either criminal
trespass or disorderly conduct.

      An arresting officer is immune from a suit for damages if
he or she had arguable probable cause to arrest a plaintiff (see
Escalera v Lumn, 361 F3d 737, 743 [2d Cir 2004]). This is so
even if probable cause exists with respect to an offense other
than the one actually invoked at the time of arrest (see
Devenpeck v Alford, 543 US 146, 153 [2004]). Pursuant to this
test, "an officer sued under the Fourth Amendment for false
arrest is 'entitled to immunity if a reasonable officer could
have believed that probable cause existed'" (Zellner v Summerlin,
494 F3d 344, 370 [2d Cir 2007] [emphasis omitted], quoting Hunter
v Bryant, 502 US 224, 228 [1991]). As is relevant here, Penal
Law § 140.05 states that "[a] person is guilty of trespass when
he [or she] knowingly enters or remains unlawfully in or upon
premises." Regardless of intent, "[a] person who . . . enters or
remains in or upon premises which are at the time open to the
public does so with license and privilege unless he [or she]
defies a lawful order not to enter or remain, personally
communicated to him [or her] by the owner of such premises or
other authorized person" (Penal Law § 140.00 [5]; accord People v
Brown, 25 NY2d 374, 376 [1969]).

      The undisputed proof in the record demonstrates that, on
the day in question, plaintiff was lawfully at the airport to
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pick up her teenaged daughter who was scheduled to arrive on an
incoming flight. When the daughter did not depart the plane as
expected, however, plaintiff approached Jody Achilles, a US
Airways customer service representative, for assistance.
Achilles informed plaintiff that her daughter's flight had made
an unexpected stop causing the daughter to miss her connecting
flight, and Achilles advised plaintiff that her daughter would
likely be on the next arrival from that airport. Other than to
supply her with a telephone number, neither Achilles nor Melissa
Abbott, another customer service representative, were able to
further assist plaintiff, who admittedly became agitated and
upset. Defendant thereafter appeared on the scene and, at a
subsequent point, demanded that plaintiff leave the airport.
When she refused to leave, defendant placed plaintiff under
arrest. The facts, otherwise, remain largely in dispute.

      In assessing whether defendant met his initial burden of
establishing that he had arguable probable cause to arrest
plaintiff for trespass, proof of defendant's authority to issue
the blanket order directing plaintiff to leave the public
facility must be examined. This is so because the "right to
exclude 'has traditionally been considered one of the most
treasured strands in an owner's bundle of property rights'"
(Seawall Assoc. v City of New York, 74 NY2d 92, 103 [1989], certs
denied 493 US 976 [1989], quoting Loretto v Teleprompter
Manhattan CATV Corp., 458 US 419, 435 [1982]) and, unless
otherwise authorized, police do not have the inherent and general
rights of a property owner (see e.g. US Const 4th Amend). The
record demonstrates that, on the day in question, defendant was a
county employee working in the county airport, a public facility.
In support of his motion, defendant provided no proof that he was
either prescribed by law or directed by the Tompkins County
legislature to exercise any authority to lawfully order a citizen
to leave this public property (see County Law § 650; see
generally People v Brown, 25 NY2d at 376). Nor did defendant's
proffer demonstrate that he was asked to remove plaintiff from
the airport property by someone with the authority to do so
(compare Matter of Max X., 278 AD2d 774, 775 [2000]). Therefore,
defendant did not establish as a matter of law that he had
arguable probable cause to arrest plaintiff for criminal trespass
because issues of fact exist as to whether, at the time of
                              -4-                518629

arrest, it was reasonable for defendant to believe that plaintiff
was disobeying a lawful order (see Penal Law § 140.00 [5]).

      Defendant's alternative argument that he was entitled to
summary judgment on this cause of action because he had arguable
probable cause to arrest plaintiff for disorderly conduct
likewise fails. A person is guilty of disorderly conduct when he
or she "with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof" either "makes
unreasonable noise" (Penal Law § 240.20 [2]) or "uses abusive or
obscene language, or makes an obscene gesture" in a public space
(Penal Law § 240.20 [3]). According to the proof submitted by
defendant in support of his motion, although Achilles explained
to plaintiff that she did not know why the plane had to stop or
why it was late, plaintiff began to repeatedly and aggressively
demand that Achilles tell her where her daughter was and why the
plane was diverted. Achilles explained that she gave plaintiff a
1-800 telephone number to call for further inquiries and told her
that, beyond the information already provided, the number was the
only recourse. Abbott likewise stated that plaintiff was
behaving irrationally and was berating her loudly and accusing
her of withholding information when she was unable to answer
plaintiff's questions to her satisfaction. At that point,
defendant arrived at the scene and Abbott explained the situation
to him. Achilles described that, when defendant attempted to
hand the piece of paper with the telephone number to plaintiff,
plaintiff threw it on the ground. Abbott further explained that
defendant informed plaintiff that she needed to cease her
disruptive behavior or defendant would have to escort her from
the building. When plaintiff refused to leave the airport,
defendant proceeded to arrest her.

      Bryan Grider, who was also present on the day in question,
described the events in a manner largely consistent with Abbott's
description while adding that plaintiff was acting in a
threatening manner toward defendant. Likewise, according to
defendant, after receiving a request for assistance, he proceeded
to the customer service counter and observed plaintiff acting in
an aggressive, loud, confrontational and abusive manner toward
Abbott and Achilles. After advising plaintiff that, if she did
not calm down, he would have to escort her from the building, she
                              -5-                518629

neither calmed down nor willingly left the airport with him and
so defendant placed her under arrest.

      These accounts differ dramatically from plaintiff's version
of events as she contends that there was no probable cause for
her arrest for any crime. According to plaintiff, after
receiving limited assistance and a telephone number from
Achilles, she approached Abbott in the hopes of speaking to an
actual person in an effort to locate her daughter. When Abbott
refused to provide additional help other than to again refer her
to the 1-800 number, plaintiff requested that Abbott direct her
to another airline employee expecting that, if Achilles and
Abbott were unable to assist her, they should at least let her
speak, in person, to someone who could. While remaining at the
counter and continuing to ask for help, plaintiff testified that
she did not raise her voice or use profanities. Plaintiff also
explained that she was the only person in line for customer
service, although other passengers were present in the general
area and/or passing through the vicinity.

      Upon defendant's arrival at the customer service counter,
plaintiff declined his offer to help saying that what she needed
instead was assistance from the airline. Defendant then demanded
that she leave the airport. After she refused to leave without
knowing the whereabouts of her daughter, defendant then walked
around the customer service counter, grabbed plaintiff's right
arm, twisted it behind her back, put a handcuff on her and pinned
her against a planter while attempting to gain control over her
left arm. Plaintiff explained that, because of the way her body
was positioned against the planter with defendant's weight behind
her, she was unable to immediately free her left arm. After
arresting her, defendant then marched plaintiff to his police car
and brought her to the Sheriff's Department, where she was
detained for approximately three hours.

      Thus, the record before us demonstrates that material
issues of fact also persist as to whether or not defendant had
arguable probable cause to arrest plaintiff for disorderly
conduct. We therefore agree with Supreme Court that defendant
failed to adequately demonstrate his prima facie entitlement to
summary judgment with respect to plaintiff's claim for unlawful
                              -6-                518629

arrest (see Penal Law § 240.20 [2], [3]).

      We do, however, find that Supreme Court erred in granting
defendant summary judgment on the causes of action based on the
allegations of the excessive use of force and retaliation based
on the use of protected speech. "To establish that [a]
plaintiff's excessive force claim lacks merit, [a] defendant[]
must demonstrate that [he or she] used objectively reasonable
force when taking [the] plaintiff into custody" (Higgins v City
of Oneonta, 208 AD2d 1067, 1070 [1994], lv denied 85 NY2d 803
[1995]). Turning to the record, defendant averred that he
attempted to arrest defendant, but that she fought and resisted
making him unable to handcuff her until he received the
assistance of another person. Both Abbott, Grider and another
employee gave sworn statements that plaintiff physically resisted
defendant's attempt to place her in handcuffs. In his police
report, defendant specifically described that, when he attempted
to place plaintiff in handcuffs, she continued to fight and
resist and that he placed her up against a planter next to the
ticket counter, resulting in her left arm being tucked under her
against the planter.

      Conversely, however, we find that plaintiff's submissions
raise an issue of fact as to the reasonableness of the force
used. Specifically, plaintiff denies resisting defendant's
attempts to arrest her and testified that she did not attempt to
physically pull away from defendant. Notably, plaintiff
submitted medical evidence that indicated that, as a result of
defendant's actions in placing plaintiff under arrest, she
suffered, among other things, a sprained wrist and a neck injury.
In our view, the evidence that plaintiff was injured as a result
of the manner of arrest, as well as plaintiff's testimony that
she did not resist defendant's arrest, raise a material issue of
fact as to the reasonableness of defendant's use of force.
Accordingly, Supreme Court erred in granting summary judgment
dismissing the cause of action based on the allegation of
excessive use of force.

      Lastly, inasmuch as plaintiff alleged that defendant
arrested her in retaliation for her use of constitutionally
protected speech, which is a violation of the 1st Amendment (see
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generally City of Houston v Hill, 482 US 451, 461 [1987]),
defendant was required to establish that plaintiff's speech was
not constitutionally protected, that there was no adverse
consequence for plaintiff, or that there was no causal connection
between any protected speech and any adverse consequence to
plaintiff in order to be entitled to summary judgment (see Posr v
Court Officer Shield No. 207, 180 F3d 409, 418 [2d Cir 1999];
Kline v Town of Guilderland, 289 AD2d 741, 742-743 [2001]).

      We determine that summary judgment was inappropriate with
respect to this cause of action for a variety of reasons. First,
defendant conceded that he arrested plaintiff, establishing an
adverse consequence. Further, as defendant failed to establish
arguable probable cause that the content or manner in which
plaintiff was speaking was or could be criminal or that it was
otherwise properly prohibited in accordance with the 1st
Amendment, he did not establish that any speech by plaintiff was
unprotected. Finally, defendant failed to establish that there
was no issue of fact as to whether he arrested plaintiff as a
result of her speech. Notably, defendant accused plaintiff of
disorderly conduct, describing plaintiff as loud and boisterous
and stating that plaintiff caused annoyance and alarm while also
stating that she refused to answer any questions. When viewing
the record in the light most favorable to plaintiff, as we must,
and considering that there are issues of fact as to whether any
such expression or speech could be criminalized or was instead
protected speech, defendant's proof in support of his motion
fails to exclude, as a matter of law, the possibility that he
arrested plaintiff because of her use of protected speech.
Accordingly, defendant failed to meet his prima facie burden and
Supreme Court erred in granting defendant's motion dismissing
this cause of action.

     Lahtinen, J.P., Stein, McCarthy and Rose, JJ., concur.
                              -8-                  518629

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendant's motion
for summary judgment dismissing the causes of action related to
excessive use of force and retaliation against protected speech;
motion denied to that extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
