     14-0767-cv
     Mitchell et al. v. The City of New York et al.

 1                         UNITED STATES COURT OF APPEALS

 2                             FOR THE SECOND CIRCUIT

 3                               August Term, 2014

 4
 5   (Argued: February 20, 2015                       Decided: October 28, 2016)
 6
 7                         Docket No. 14-0767-cv
 8   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
 9   MELINDA MITCHELL, individually and on behalf of a class of all
10   others similarly situated, HARVEY MITCHELL, individually and on
11   behalf of a class of all others similarly situated,
12
13               Plaintiffs-Appellants,
14
15                  v.
16
17   THE CITY OF NEW YORK, a municipal entity, NYC POLICE OFFICER
18   JAMES SCHUESSLER, Shield No. 28718, RICHARD ROES, 1-50 NEW YORK
19   CITY POLICE SUPERVISORS AND COMMANDERS, JOHN DOES, 1-50 NEW YORK
20   CITY POLICE OFFICERS, individually, and in their official
21   capacities, jointly and severally, POLICE OFFICER JOSEPH
22   BRINADZE, NYPD CAPTAIN JOSEPH GULOTTA, NYPD SERGEANT DANIELLE
23   ROVENTINI, and NYPD LIEUTENANT KATHLEEN CAESAR,
24
25             Defendants-Appellees.
26   - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - -
27
28   B e f o r e:        WINTER, POOLER, and SACK, Circuit Judges.
29
30         Appeal from a judgment of the United States District Court

31   for the Southern District of New York (Lewis A. Kaplan, Judge),

32   granting appellees’ motion for summary judgment and dismissing

33   appellants’ claims.      We hold that there is a genuine issue of

34   material fact as to whether the New York City Police officers had

35   probable cause to arrest appellants for trespass.           The district

36   court therefore improperly dismissed appellants’ false arrest

37   claim.   We affirm as to all other claims.

                                           1
 1                              JEFFREY A. ROTHMAN (Jonathan C. Moore &
 2                              Joshua S. Moskovitz, Beldock Levine &
 3                              Hoffman LLP, New York, NY, on the brief)
 4                              New York, NY, for Plaintiffs-Appellants.
 5
 6                              DRAKE A. COLLEY, for Zachary W. Carter,
 7                              Corporation Counsel of the City of New
 8                              York, New York, NY, for Defendants-
 9                              Appellees.
10
11
12   WINTER, Circuit Judge:
13
14        Melinda Mitchell and Harvey Mitchell -- we will refer to

15   them as Melinda and Harvey because they are not related -- along

16   with other similarly situated individuals, appeal from Judge

17   Kaplan’s dismissal of their complaint on a grant of summary

18   judgment to appellees.   We hold that there is a genuine dispute

19   of material fact as to whether the appellee police officers had

20   probable cause to arrest appellants for trespass.   We therefore

21   vacate the judgment.   We remand the false arrest claim and

22   appellees’ claim of qualified immunity related to the false

23   arrest.   We affirm the dismissal of the malicious prosecution,

24   abuse of process, and municipal liability claims.

25                                BACKGROUND

26        This appeal is from a grant of summary judgment, and the

27   following recitation of facts, therefore, views the evidentiary

28   record in the light most favorable to appellants, the non-moving

29   party.    Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016)

30   (citation omitted).



                                       2
 1        In December 2010, Lieutenant Kathleen Caesar of the New York

 2   City Police Department (“NYPD”) responded to a report of a sexual

 3   assault at a brownstone located at 2142 Atlantic Avenue, in

 4   Brooklyn, New York.    When Caesar arrived with another police

 5   officer, she saw two women, one of whom said she was robbed in

 6   the brownstone.   After no one responded to her knocks at the

 7   front door, Caesar entered the premises through the back door.

 8   She found no one inside.   On the first floor, she observed a bar

 9   area next to the kitchen, a room with a dance pole, and a living

10   room with no furniture.    Caesar concluded that the house was

11   abandoned.    She told her colleague Lieutenant John Hopkins of

12   this and later made it a point to drive by the brownstone during

13   her patrol shifts since she believed the brownstone might have

14   been “being used for parties.”   J. App’x at 104.

15        About a month later, on January 9, 2011, Melinda and Harvey

16   attended a party at the 2142 Atlantic Avenue brownstone.   While

17   both were invited by acquaintances, neither knew who was hosting

18   the party or who owned the property.   To enter the brownstone,

19   they opened a small unlocked gate, and proceeded through the

20   front door.    There were no signs prohibiting entrance to the

21   building.    There was, however, a realtor’s for-sale sign on the

22   property.

23        At about 2:15 a.m. on January 9, 2011, Caesar was driving by

24   the brownstone when she saw three people standing on its stoop.


                                       3
 1   She called Hopkins to inform him that suspicious activity might

 2   be taking place at the premises.       After Hopkins, Captain Joseph

 3   Gulotta, and other officers arrived, Caesar knocked at the front

 4   door but no one answered.    She tried to open the door, but it was

 5   locked.   She and some of the officers proceeded to the rear of

 6   the property and entered the brownstone through the back door.

 7   Caesar then made her way through the brownstone, past “about 30

 8   kids” to the front door to let in more officers.       Id. at 127-128.

 9        Inside, the officers found at least 30 people.       According to

10   appellants, space was set up for a party, with a bar, a projector

11   screen, disco lights, running water, working heat, DJ equipment,

12   and an area with a big TV and some couches.       Gulotta testified at

13   his deposition that he saw that electricity was being routed in

14   from outside the house via extension cords.      Gulotta also

15   testified at his deposition that he smelled marijuana upon

16   entering the brownstone, and another officer, James Schuessler,

17   testified at his deposition that he recalled seeing six or eight

18   “nickel” or “dime” bags containing what looked to be marijuana

19   and crack cocaine on the floor of the brownstone.

20        Upon entering the brownstone, the police told everyone to be

21   quiet and then repeatedly asked who owned the property and who

22   was hosting the party.    Some people replied that they did not

23   know who the owner was.     When no one revealed the owner or host,

24   Gulotta ordered the arrest of everyone present.       The arrests were


                                        4
 1   based on Gulotta’s belief that everyone at the party had:    (i)

 2   “trespass[ed]”; (ii) “loiter[ed] for the purpose of using

 3   narcotics”; and (iii) “endanger[ed] the welfare of a child

 4   because there was a 12 year-old child present.”    Id. at 582.     The

 5   only issue raised in this appeal with regards to the arrests is

 6   whether there was probable cause for the arrests for trespass.

 7        Melinda and Harvey were arrested and both were handcuffed.

 8   Melinda was handcuffed for approximately one hour by an officer

 9   who refused to loosen the handcuffs when she complained they were

10   too tight.   The handcuffs caused bruising to her wrist that

11   required her to take Advil and use an ice pack for two days.

12   Harvey was handcuffed for 20 to 30 minutes; he alleged the

13   handcuffs left marks on his arms but required no medical

14   treatment.

15        All arrestees were processed at the precinct and their

16   fingerprints and mug shots taken.    Melinda was released with a

17   “Desk Appearance Ticket” (“DAT”), which required her to appear in

18   court at a later date.   Harvey was processed through the Brooklyn

19   Central Booking facility and arraigned.

20        After the arrests, several police officers each submitted

21   statements entitled, “Supporting Deposition – Trespass in a

22   Dwelling and Resisting Arrest,” to the Kings County District

23   Attorney’s Office.   The statements attested to the officers’

24   understanding that the brownstone was categorized as a Formal


                                      5
 1   Trespass Affidavit Program (“FTAP”) dwelling and that the NYPD

 2   was the lawful custodian of the property.1          Notwithstanding the

 3   officers’ statement at the time of the arrest, it is now

 4   undisputed that the brownstone was not part of FTAP.            The record

 5   does not illuminate whether the building was privately owned or

 6   abandoned to City custody, although demonstrating City custody

 7   would have helped the defense to show probable cause for the

 8   trespass arrests.

 9         The Kings County District Attorney’s Office later declined

10   to prosecute Melinda and others who received a DAT following the

11   arrests at the brownstone.       It also dropped all charges against

12   Harvey pursuant to an Adjournment in Contemplation of Dismissal.

13         On April 6, 2012, appellants filed their original complaint

14   in the present action, in which they assert Section 1983 claims

15   for false arrest, malicious prosecution, abuse of process, and

16   excessive force.     On November 5, 2012, appellants filed their

17   amended complaint asserting the same Section 1983 claims.

18         After discovery, both parties moved for summary judgment.

19   Appellees moved for summary judgment on all of appellants’

           1
             The FTAP was developed to allow tenants and landlords to complain of
     drug-related activity occurring in the common areas of multi-dwelling
     apartment buildings. Landlords participating in the FTAP are asked to sign an
     affidavit authorizing the police to perform vertical patrols in their
     buildings. The police are also given keys to common areas and a list of
     tenant residents. See, e.g., Charles J. Hynes, Ask the DA: Preventing Illegal
     Activity in Apartment-Building Hallways, Brooklyn Daily Eagle (Sept. 19,
     2012), www.brooklyneagle.com/articles/ask-da-preventing-illegal-activity-
     apartment-building-hallways-2012-09-19-090000; N.Y. Cty. Dist. Atty.’s Office,
     Trespass Affidavit Program, http://manhattanda.org/trespass-affidavit-program
     (last visited Oct. 26, 2016).

                                           6
 1   claims, whereas appellants moved for partial summary judgment

 2   only on their federal and state law claims for false arrest and

 3   their state law claims for battery.    The battery claim arising

 4   under New York law became moot, however, when the New York

 5   Appellate Division, Second Department, reversed the decision of

 6   the Kings County Supreme Court that granted appellants leave to

 7   file late notices of their claims.     Mitchell v. City of N.Y., 977

 8   N.Y.S.2d 368, 370 (2013).     On February 11, 2013, the district

 9   court granted appellees’ motion for summary judgment in its

10   entirety.     Mitchell v. City of N.Y., No. 12 CIV. 2674 LAK, 2014

11   WL 535046, at *6 (S.D.N.Y. Feb. 11, 2014).     This timely appeal

12   followed.

13                                 DISCUSSION

14        We review de novo a district court’s grant of summary

15   judgment, “construing the evidence in the light most favorable to

16   the non-moving party and drawing all reasonable inferences in its

17   favor.”     Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.

18   2011)(citation omitted). “[I]t is well-settled that [this court]

19   may affirm on any grounds for which there is a record sufficient

20   to permit conclusions of law, including grounds nor relied upon

21   by the district court.” Holcomb v. Lykens, 337 F.3d 217, 223 (2d

22   Cir. 2003) (internal quotation marks and citation omitted).

23

24


                                        7
 1
 2   a)   False Arrest
 3
 4        1) Probable Cause
 5
 6        We first address the district court’s holding that the

 7   police had probable cause to arrest appellants.   See Mitchell,

 8   2014 WL 535046, at *3-*4. “The existence of probable cause to

 9   arrest constitutes justification and is a complete defense to an

10   action for false arrest” brought under Section 1983.     Jenkins v.

11   City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007) (internal quotation

12   marks and citations omitted). “Probable cause . . . exists when

13   the [arresting] officers have knowledge or reasonably trustworthy

14   information of facts and circumstances that are sufficient to

15   warrant a person of reasonable caution in the belief that the

16   person to be arrested has committed or is committing a crime.”

17   Id. at 84-85 (internal quotation marks and citations omitted).       A

18   court deciding whether probable cause existed must “examine the

19   events leading up to the arrest, and then decide whether these

20   historical facts, viewed from the standpoint of an objectively

21   reasonable police officer, amount to probable cause.”     Maryland

22   v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks

23   omitted).   Where “an arrest is not made pursuant to a judicial

24   warrant, the defendant in a false arrest case bears the burden of

25   proving probable cause as an affirmative defense.”     Dickerson v.

26   Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) (citation omitted).

27

                                      8
 1        On this record, it appears that no member of the NYPD made

 2   serious efforts to verify the legal status of the brownstone,

 3   i.e., the existence of a person or entity with a claim of

 4   occupancy of ownership, the property’s status under the FTAP, or

 5   the lack of any claim or other status.   When Lieutenant Caesar

 6   first visited the property in December 2010, she failed to

 7   investigate the ownership status of the brownstone and assumed it

 8   was abandoned, even though there were signs of use.   Based on the

 9   evidence in the record, a trier of fact could find that, when

10   Caesar re-entered the brownstone in the early morning of the day

11   of the arrests, she did so based solely on her earlier

12   conjectures that the brownstone was abandoned and that appellants

13   were therefore trespassing.   A trier of fact could further find

14   this belief was unreasonable, given the for-sale sign in the

15   front yard.   Indeed, as Captain Gulotta conceded, the existence

16   of a real estate sign suggested that someone claimed ownership of

17   the brownstone.

18        Other officers stated (inconsistently) that they believed

19   the brownstone to be part of the FTAP or to be abandoned.    It is

20   conceded that these beliefs were mistaken.   Moreover, on this

21   record, the only basis, if any, for these beliefs appears to be

22   word of mouth among the officers.

23        Furthermore, in finding that the officers had probable cause

24   to believe the brownstone was abandoned and that those present


                                      9
 1   were trespassing, the district court also relied heavily on the

 2   police officers’ observation once they were inside the brownstone

 3   that there were extension cords running from the brownstone to

 4   another property as well as the fact that when asked, no one

 5   attending the party told the officers who owned the brownstone.

 6   Mitchell, 2014 WL 535046, at *4.           Drawing all inferences in favor

 7   of the appellants, as we must, we conclude to the contrary that

 8   these facts are insufficient to establish on summary judgment as

 9   a matter of law that the officers had probable cause to believe

10   that the house was abandoned.2

11         After the arrests, Officer Girard Moscato, having seen the

12   for-sale sign outside the brownstone, tried to call Weichert

13   Realty to inquire about the brownstone, but, after leaving a

14   voice message, he did not follow up.           See Colon v. City of N.Y.,

15   455 N.E.2d 1248, 1250 (N.Y. 1983) (“[T]he failure to make a

16   further inquiry when a reasonable person would have done so may

17   be evidence of lack of probable cause.”) (citation omitted).

18   Indeed, as Captain Gulotta conceded, the existence of a real

19   estate sign suggested that someone claimed ownership.

20


           2
            The use of extension cords might have been for one of many reasons
     apart from the fact that the brownstone was abandoned and the attendees were
     trespassing, such as to avoid blowing a fuse or tripping a circuit breaker on
     the property, or because there was insufficient power available from the
     brownstone’s electrical system without the addition of more from another
     source. Similarly, the silence of those present does not necessarily
     establish that the officers had a reasonable factual basis for thinking that
     the brownstone was abandoned.

                                           10
 1        Under New York law, one commits the crime of trespass if one

 2   “knowingly enters or remains unlawfully in or upon premises.”

 3   N.Y. Penal Law § 140.05.   The law provides:

 4             A person ‘enters or remains unlawfully’ in or
 5             upon premises when he is not licensed or
 6             privileged to do so. A person who, regardless
 7             of his intent, enters or remains in or upon
 8             premises which are at the time open to the
 9             public does so with license and privilege
10             unless he defies a lawful order not to enter
11             or remain, personally communicated to him by
12             the owner of such premises or other authorized
13             person. A license or privilege to enter or
14             remain in a building which is only partly open
15             to the public is not a license or privilege to
16             enter or remain in that part of the building
17             which is not open to the public.
18
19   Id. § 140.00(5).   The New York Court of Appeals has held “it is

20   the state’s burden to prove that an invitee does not have

21   privilege or license to remain on the premises.   Because it is an

22   element of the crime, officers must have probable cause to

23   believe that a person does not have permission to be where she is

24   before they arrest her for trespass.”   Davis v. City of N.Y., 902

25   F. Supp. 2d 405, 426 (S.D.N.Y. 2012) (discussing New York v.

26   Brown, 254 N.E.2d 755, 756-57 (N.Y. 1969)).    Appellees’ mass

27   arrest for trespass, on this record, could easily be found to

28   have been based entirely on baseless and unreasonable conjectures

29   and assumptions as to the ownership of the property or its FTAP

30   status.

31        Under these circumstances, viewing the record in the light

32   most favorable to appellants, a dispute of material fact exists


                                     11
 1   as to whether the police officers could have reasonably believed

 2   the appellants were trespassers.     There was no reasonable basis

 3   for the belief that the building was in the FTAP, and the for-

 4   sale sign belied abandonment.   The lack of any known claimant

 5   asserting legal occupancy of the premises on this record may

 6   eliminate any claim of unlawful entry by the police, but it

 7   provides no corresponding individualized probable cause to arrest

 8   appellants for trespass.

 9        Accordingly, we vacate the dismissal of appellants’ false

10   arrest claims.

11        2) Qualified Immunity

12        We leave open for decision in the first instance by the

13   district court on remand the question of whether the appellees

14   are entitled to qualified immunity with respect to the false

15   arrest claim. See Tellier v. Fields, 280 F.3d 69, 84 (2d Cir.

16   2000)(“Because qualified immunity is an affirmative defense,...

17   the defendants bear the burden of showing that the challenged act

18   was objectively reasonable in light of the law existing at the

19   time.”).

20   c)   Malicious Prosecution

21        We next address the district court’s dismissal of appellant

22   Melinda’s federal and state malicious prosecution claims.     See

23   Mitchell, 2014 WL 535046, at *5. In order to prevail on such a

24   claim under both Section 1983 and New York State law, a plaintiff



                                     12
 1   is required to demonstrate:    (i) the commencement or continuation

 2   of a criminal proceeding against her; (ii) the termination of the

 3   proceeding in her favor; (iii) “that there was no probable cause

 4   for the proceeding”; and (iv) “that the proceeding was instituted

 5   with malice.”     Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.

 6   2003) (citations omitted); see also Colon, 60 N.Y.2d at 82

 7   (similar). When raising a malicious prosecution claim under

 8   Section 1983, a plaintiff must also show a “seizure or other

 9   perversion of proper legal procedures implicating the claimant’s

10   personal liberty and privacy interests under the Fourth

11   Amendment.”     Washington v. Cty. of Rockland, 373 F.3d 310, 316

12   (2d Cir. 2004) (internal quotation marks and citation omitted).

13        We first address Melinda’s state law and federal law claims

14   under the Kinzer test.    We have held that, under New York law,

15   the issuance of a DAT constitutes a criminal proceeding

16   initiation.     See Stampf v. Long Island R.R. Co., 761 F.3d 192,

17   199 (2d Cir. 2014) (“[W]e adhere to the position we took in

18   Rosario that, under New York law, the issuance of a DAT

19   sufficiently initiates a criminal prosecution to sustain a claim

20   of malicious prosecution.”); Rosario v. Amalgamated Ladies'

21   Garment Cutters' Union, Local 10, 605 F.2d 1228, 1250 (2d Cir.

22   1979) (“[W]e believe that if a New York court faced the question

23   before us it would rule that the issuance of [a DAT] commences a

24   prosecution for purposes of determining whether an action for



                                       13
 1   malicious prosecution lies.”).    Accordingly, we find that Melinda

 2   has met the first Kinzer prong.    She has also satisfied prongs

 3   two and three by showing, respectively, that the proceeding

 4   terminated in her favor when the District Attorney’s Office

 5   declined to prosecute her, and, as discussed supra, that there

 6   was no probable cause for her arrest.   Where her claim fails,

 7   however, is at the fourth prong, because she has not alleged or

 8   proffered any facts that the DAT was issued with malice.    Both of

 9   her malicious prosecutions, therefore, fail.

10        As Melinda fails to state a malicious prosecution claim

11   under the Kinzer test, we need not reach the question of whether

12   her single court appearance constituted a seizure under the

13   Fourth Amendment for purposes of her Section 1983 malicious

14   prosecution claim, and we leave the question for another day.

15        We therefore hold the district court properly dismissed

16   Melinda’s state and federal malicious prosecution claims.

17   d)   Abuse of Process

18        We now turn to appellants’ abuse-of-process claim.     To

19   successfully state such a claim, “it is not sufficient for a

20   plaintiff to allege that the defendants were seeking to retaliate

21   against him by pursuing his arrest and prosecution.   Instead, he

22   must claim that they aimed to achieve a collateral purpose beyond

23   or in addition to his criminal prosecution.” Savino v. City of

24   N.Y., 331 F.3d 63, 77 (2d Cir. 2003).



                                       14
 1        Whether or not the police officers may have sought to

 2   retaliate against appellants by arresting them, appellants have

 3   proffered no evidence that the police officers attempted to

 4   achieve any other collateral purpose beyond arresting appellants

 5   for trespass.    We hold, therefore, albeit for different reasons,

 6   that the district court correctly dismissed appellants’ abuse-of-

 7   process claim.

 8   e)   Municipal Liability

 9        We turn finally to the district court’s dismissal of

10   appellants’ municipal liability claim. See Mitchell, 2014 WL

11   535046, at *6. To prevail, a plaintiff must identify the

12   existence of a municipal policy or practice that caused the

13   alleged constitutional violation.     See Monell v. Dep’t of Soc.

14   Servs. of City of N.Y., 436 U.S. 658, 694-95 (1978).     A plaintiff

15   must also demonstrate a sufficient causal relationship between

16   the violation and the municipal policy or practice.    Id.

17        As discussed supra, while appellants have sufficiently

18   supported their claim that their arrests lacked individual

19   probable cause, they have not supported their claim of municipal

20   liability.   Appellants have proffered no evidence to show that

21   the arrests occurred pursuant to a city policy or practice. See

22   City of Okla. City v. Tuttle, 471 U.S. 808, 823-24

23   (1985)(plurality) (“Proof of a single incident of

24   unconstitutional activity is not sufficient to impose liability



                                      15
 1   under Monell, unless proof of the incident includes proof that it

 2   was caused by an existing, unconstitutional municipal policy[]

 3   [that] can be attributed to a municipal policymaker.”)

 4   (plurality); accord Fenner v. City of N.Y., No. 08 Civ.

 5   2355(BMC)(LB), 2009 WL 5066810, at *4 (E.D.N.Y. Dec. 21, 2009)

 6   (“At most, plaintiff has identified a single incident of a

 7   constitutional violation.   Even assuming such a violation

 8   occurred . . . the Supreme Court has squarely held that this is

 9   insufficient to create liability under Monell.”) (citation

10   omitted), aff’d, 392 F. App’x 892, 894 (2d Cir. 2010) (summary

11   order).   Therefore, the district court correctly dismissed

12   appellants’ Monell claim.

13                               CONCLUSION

14        For the reasons stated, we vacate and remand the lower

15   court’s summary judgment rulings as to the false arrest claims

16   and the question of qualified immunity.   We affirm the district

17   court’s remaining summary judgment rulings.




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