17-2670-cv(L)
Antic v. City of New York


                            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
ASUMMARY ORDER@). A PARTY CITING TO 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
19th day of July, two thousand eighteen.

PRESENT:
            PIERRE N. LEVAL,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                   Circuit Judges.
_____________________________________

PERO ANTIC,

                             Plaintiff-Appellant,

                   v.                                              17-2670-cv(L),
                                                                   17-2674-cv(CON)
CITY OF NEW YORK, POLICE OFFICER PAUL
GIACONA, individually and in his capacity as a
member of the New York City Police Department,
POLICE OFFICER DANIEL DONGVORT, individually
and in his capacity as a member of the New York
City Police Department, JOHN/JANE DOES, said
names being fictitious and intended to represent
individual officers, members, agents, servants
and/or employees of the New York City Police
Department in their individual and official
capacity, POLICE OFFICER RICHARD CASTER,
individually and in his capacity as a member of the
New York City Police Department, POLICE
OFFICER MICHAEL O’SULLIVAN, individually and
in his capacity as member of the New York City
Police Department,

                  Defendants-Appellees.*
_____________________________________

For Plaintiff-Appellant:                               NORMAN A. OLCH, ESQ., New York, New
                                                       York; Derek S. Sells, The Cochran Firm, PC,
                                                       New York, New York.

For Defendants-Appellees:                              MAX O. MCCANN (Richard Dearing, on the
                                                       brief), for Zachary W. Carter, Corporation
                                                       Counsel of the City of New York, New York,
                                                       New York.

          Appeal from a judgment of the United States District Court for the Southern District of

New York (Furman, J.) entered July 28, 2017.

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

DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-Appellant Pero Antic appeals from a July 28, 2017 judgment of the United States

District Court for the Southern District of New York granting Defendants-Appellees’ motion for

summary judgment. This civil rights action arises out of Antic’s arrest in the early morning hours

of Wednesday, April 8, 2015, around 4:30 a.m., while police officers attempted to clear crowds

from the area following a violent stabbing (that was unrelated to Antic) outside of 1 OAK, a

Chelsea nightclub. Antic’s conduct in the stabbing’s immediate aftermath, including his failure

to comply with a police instruction to move out of the area, prompted his arrest and prosecution

for, among other charges, obstruction of governmental administration (“OGA”), under N.Y. Penal

Law § 195.05. The prosecution was dismissed. Antic then brought several claims against



*
    The Clerk of the Court is respectfully directed to amend the caption as set forth above.

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Defendants-Appellees – various police officers and the City of New York – including false arrest

and malicious prosecution.     On appeal, Antic challenges only the district court’s award of

summary judgment to Defendants-Appellees on Antic’s false arrest and malicious prosecution

claims, contending principally that genuine disputes of material fact precluded the district court

from concluding that Defendants-Appellees had arguable probable cause to arrest and prosecute

Antic for OGA. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       We review de novo a district court’s grant of summary judgment, “construing all the

evidence in the light most favorable to the non-movant and drawing all reasonable inferences in

that party’s favor.” McBride v. BIC Consumer Prod. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.

2009). We affirm only where “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“The non-moving party may not rely on conclusory allegations or unsubstantiated speculation.”

Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citation omitted). In deciding a summary

judgment motion, a district court considers “only admissible evidence.” Nora Beverages, Inc. v.

Perrier Grp. of Am., Inc., 269 F.3d 114, 123 (2d Cir. 2001).

       Qualified immunity protects officials from damages liability if their conduct “does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (citations omitted).

“‘Clearly established’ means that, at the time of the officer’s conduct, the law was sufficiently

clear that every ‘reasonable official would understand that what he is doing’ is unlawful.” D.C.

v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)); see

                                                 3
also Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (“That determination is made not from

the perspective of courts or lawyers, but from that of a reasonable officer in the defendant’s

position.” (citations omitted)). After determining that a legal rule was clearly established, we

ask whether “the legal principle clearly prohibit[s] the officer’s conduct in the particular

circumstances before him.” Wesby, 138 S. Ct. at 590. The “specificity” of the rule a plaintiff

seeks to apply is “especially important in the Fourth Amendment context.” Id. (quoting Mullenix,

136 S. Ct. at 308). This is because “[p]robable cause ‘turn[s] on the assessment of probabilities

in particular factual contexts’ and cannot be ‘reduced to a neat set of legal rules.’” Id. (quoting

Illinois v. Gates, 462 U.S. 213, 232 (1983)) (second alteration in original).

        A police officer is entitled to qualified immunity in the context of a false arrest claim if

there was at least “arguable probable cause” at the time the officer arrested the plaintiff, see

Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016), and a police officer likewise is entitled to

qualified immunity on a malicious prosecution claim if there was “arguable probable cause” at the

time the criminal proceeding commenced and continued, see Betts v. Shearman, 751 F.3d 78, 82,

83 (2d Cir. 2014). In assessing arguable probable cause, the inquiry is “whether any reasonable

officer, out of the wide range of reasonable people who enforce the laws in this country, could

have determined that the challenged action was lawful.” Figueroa, 825 F.3d at 100 (emphases in

original).

        Turning to Antic’s arrest and prosecution, Antic argues that genuine disputes of material

fact should have prevented the district court from concluding that Defendants-Appellees had

arguable probable cause to arrest and prosecute him for OGA. The applicable New York statute

defining OGA provides that “[a] person is guilty of obstructing governmental administration when

                                                 4
he intentionally . . . attempts to prevent a public servant from performing an official function, by

means of intimidation, physical force or interference, or by means of any independently unlawful

act . . . .” N.Y. Penal Law § 195.05. OGA has four elements: “(1) prevention or attempt to

prevent (2) a public servant from performing (3) an official function (4) by means of intimidation,

force or interference.” Cameron v. City of New York, 598 F.3d 50, 68 (2d Cir. 2010) (quoting

Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995)). With respect to the fourth element, actionable

“interference can consist of ‘inappropriate and disruptive conduct at the scene of the performance

of an official function even if there is no physical force involved.’” Kass v. City of New York,

864 F.3d 200, 209–10 (2d Cir. 2017) (quoting People v. Romeo, 9 A.D.3d 744, 745 (3d Dep’t

2004) (citations and internal quotation marks omitted)), cert. denied sub nom. Kass v. City of New

York, N.Y., 138 S. Ct. 487 (2017); see also In re Davan L., 91 N.Y.2d 88, 91 (1997) (“[C]riminal

responsibility should attach to minimal interference set in motion to frustrate police activity.”).

       Here, there is no genuine dispute that police officers specifically ordered Antic to evacuate

the crime scene outside of 1 OAK (located on West 17th Street near Tenth Avenue) on numerous

occasions and even to leave the street corner closest to the nightclub on the northeast side of West

17th Street and Tenth Avenue (the “Corner”). And, in fact, in response to these clear and repeated

police commands, Antic initially complied by entering a car to depart the crime scene. But,

critically, and notwithstanding the police directives to the contrary, Antic later exited the car,

returned to the Corner, and swiftly approached and made at least slight physical contact with a

police officer involved in the arrest of Antic’s friend, who was physically struggling with multiple

nearby officers.



                                                  5
       In the qualified immunity context, this failure to obey the police’s instructions, even if

short-lived, provided Defendants-Appellees with arguable probable cause to arrest and prosecute

Antic for OGA. Indeed, several OGA cases have demonstrated that an arrestee’s noncompliance

with lawful police orders – including, as here, orders to move away from a designated area –

constitutes arguable probable cause to arrest and prosecute the arrestee for OGA. See Kass, 864

F.3d at 204, 210 (holding that a reasonable officer could have concluded that the arrestee, a passer-

by who resisted verbal and physical commands to move away from police barricades, interfered

with police activity); see also In re Isaiah C., 96 A.D.3d 617, 618 (1st Dep’t 2012) (upholding an

OGA interference finding where, as “court officers attempted to subdue and arrest [the arrestee’s]

companion following a courtroom disruption,” the arrestee “approach[ed] them in a belligerent

manner with raised hands despite their repeated directives to stay away, and intentionally sought

to interfere with the officers’ performance of their duties”); Romeo, 9 A.D.3d 744–45 (upholding

an OGA interference finding where, while “two officers were attempting to transfer [the arrestee’s]

girlfriend from one police car to another when she became belligerent, uncooperative and struggled

with them[,]” the arrestee “kept approaching despite several requests by one of the officers that he

stay away and remain in a certain spot[,]” and “repeatedly ignored the requests”); In re Joshua C.,

289 A.D.2d 1095, 1095 (4th Dep’t 2001) (mem.) (upholding an OGA interference finding where,

while officers attempted to address a domestic dispute, the arrestee “refused to leave and instead

continued his disruptive behavior”).

       In sum, given the undisputed facts in the record, the OGA precedents recounted above, and

the “broad shield” provided by the qualified immunity defense, Kass, 864 F.3d at 206, we conclude

that Antic failed to raise a material issue of fact as to whether Defendants-Appellees had arguable

                                                 6
probable cause to arrest and prosecute him for OGA. We thus discern no error in the district

court’s award of summary judgment to Defendants-Appellees on Antic’s false arrest and malicious

prosecution claims.1

       Accordingly, we AFFIRM the judgment of the district court.


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




1
  Because our arguable probable cause determination suffices to resolve Antic’s appeal, we need
not reach the district court’s discussion of the other malicious prosecution elements, such as
favorable termination and actual malice.

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