     09-0460-cv
     Williams v. Wood

 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 8   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 9   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
10   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
11   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
13   COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th
17   day of April, two thousand ten.
18
19   Present:
20               PIERRE N. LEVAL,
21               ROBERT A. KATZMANN,
22               BARRINGTON D. PARKER,
23                          Circuit Judges.
24
25   ________________________________________________
26
27   JEFFREY WILLIAMS,
28
29              Plaintiff-Appellant,
30
31                      v.                                           No. 09-0460-cv
32
33   JAMES WOOD, Albany Police Officer,
34
35              Defendant-Appellee.
36
37   ________________________________________________
38
39   For Plaintiff-Appellant:          THOMAS F. RINALDI, L.A.R. 46(e), ANDRIY R. PAZUNIAK,
40                                     L.A.R. 46(e) (John Romberg, on the brief), Seton Hall
41                                     University School of Law, Center for Social Justice, Newark,
42                                     New Jersey
43
 1   For Defendant -Appellee:   ANDREW H. WOOD , Assistant Corporation Counsel for John J.
 2                              Reilly, Corporation Counsel, City of Albany, Department of
 3                              Law, Albany, New York
 4   ________________________________________________
 5
 6        Appeal from the United States District Court for the Northern District of New York
 7   (McAvoy, J.).
 8
 9          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

10   DECREED that the judgment of the district court dated January 23, 2009, be and hereby is

11   VACATED in part and REMANDED to the district court for trial.

12          Plaintiff Jeffrey Williams appeals from the order of the United States District Court for

13   the Northern District of New York (McAvoy, J.) granting the motion of Defendant James Wood

14   for summary judgment on Williams’s claims under 42 U.S.C. § 1983. Williams argues that the

15   district court erred in granting summary judgment on his claims of unlawful arrest and excessive

16   force by failing to construe the facts in the light most favorable to him. Williams does not appeal

17   the grant of summary judgment on his claim of racial profiling. We assume the parties’

18   familiarity with the underlying facts, procedural history, and issues on appeal.

19          “We review a district court’s grant of summary judgment de novo . . . .” Fabozzi v.

20   Lexington Ins. Co., __ F.3d __, 2010 WL 1291985, at *2 (2d Cir. Apr. 6, 2010) (internal

21   quotation marks omitted). A court may grant summary judgment only where “there is no genuine

22   issue as to any material fact.” Fed. R. Civ. P. 56(c)(2). A genuine issue of material fact exists

23   where “a reasonable jury could return a verdict for the nonmoving party.” Redd v. Wright, 597

24   F.3d 532, 536 (2d Cir. 2010) (internal quotation marks omitted). To make this determination, a

25   court must “construe the facts in the light most favorable to the non-moving party and must


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 1   resolve all ambiguities and draw all reasonable inferences against the movant.” Williams v. R.H.

 2   Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).

 3          The doctrine of qualified immunity holds that “government officials performing

 4   discretionary functions generally are shielded from liability for civil damages insofar as their

 5   conduct does not violate clearly established statutory or constitutional rights.” Harlow v.

 6   Fitzgerald, 457 U.S. 800, 818 (1982). The right violated is “clearly established” if “it would be

 7   clear to a reasonable officer [in the position of the defendant] that the conduct was unlawful in

 8   the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “This inquiry turns on

 9   the objective legal reasonableness of the action, assessed in light of the legal rules that were

10   clearly established at the time it was taken.” Pearson v. Callahan, 129 S.Ct. 808, 822 (2009)

11   (internal quotation marks omitted).

12          Williams first objects to the district court’s grant of summary judgment on his claim that

13   Wood stopped him without reasonable suspicion and arrested him without probable cause in

14   violation of the Fourth Amendment of the Constitution. See Brown v. Texas, 443 U.S. 47, 51

15   (1979); Gilles v. Repicky, 511 F.3d 239, 245 (2d Cir. 2007). The district court granted summary

16   judgment on this claim because it determined that Wood had probable cause to arrest Williams,

17   and, alternatively, that Wood was immune from suit under the doctrine of qualified immunity

18   because he “had arguable probable cause” for the arrest. Williams v. Wood, No. 9:06-CV-0911,

19   2009 WL 211072, at *4 (N.D.N.Y. Jan. 23, 2009). The court explained that Williams “was in a

20   vehicle with [another person], the vehicle stopped in front of a group of people sitting in front of

21   a house [at which police had found drugs and a shotgun thirteen days earlier], Plaintiff got out of


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 1   the vehicle and ‘briefly’ spoke with [persons in front of the house, and then] he returned to the

 2   vehicle.” Id. at *4.

 3           This explanation, however, did not construe the facts in the light most favorable to

 4   Williams. Wood stated only that he saw Williams “at or around” the house. Id. at *2. He

 5   testified that he did not see Williams get out of the vehicle or speak with anyone. Although

 6   Williams admitted speaking to persons in front of the house, this fact is not relevant to the

 7   question whether Wood had reasonable suspicion, because no evidence suggests that at the time

 8   Wood stopped Williams he had any knowledge of Williams having spoken to persons in front of

 9   the house. See Florida v. J.L., 529 U.S. 266, 271 (2000) (“The reasonableness of official

10   suspicion must be measured by what the officers knew . . . .”). Construing the facts in the light

11   most favorable to Williams, therefore, Wood stopped Williams merely on the basis of seeing him

12   get into a vehicle in the vicinity of a house where drugs and a shotgun had been found thirteen

13   days earlier.

14           Under clearly established law, these facts are insufficient to give rise to reasonable

15   suspicion that would justify a traffic stop, much less probable cause to support an arrest. See

16   Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s presence in an area of expected

17   criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion

18   that the person is committing a crime.”). In a case exhibiting far greater grounds for suspicion

19   than here – where a man was seen to drive up to a known drug house, enter the house, leave a

20   short time later, and drive away – this court stated that a stop was not justified. United States v.

21   Swindle, 407 F.3d 562, 569 (2d Cir. 2005). Because the facts in the light most favorable to


                                                      -4-
 1   Williams fail, under clearly established law, to provide Wood reasonable suspicion to justify

 2   stopping Williams, much less arresting him, we conclude that genuine issues of material fact

 3   remain and summary judgment should not have been granted on the claim of unconstitutional

 4   seizure of Williams.

 5          Williams also objects to the district court’s grant of summary judgment on his claim that

 6   Wood subjected him to excessive force. The district court granted summary judgment on this

 7   claim because it concluded that Wood used a level of force that was objectively reasonable given

 8   the circumstances, and, alternatively, that Wood was immune from suit because “officers of

 9   reasonable competence could disagree about whether Defendant’s use of force was excessive.”

10   Williams, 2009 WL 211072, at *5. These conclusions were based on Williams’s conversation

11   with persons in front of the house where police had found narcotics and a shotgun thirteen days

12   earlier, Wood’s testimony that Williams refused Wood’s request to make his right hand visible,

13   and a statement by Szot, the owner and driver of the vehicle, that he thought Williams was

14   “being wise” and said “‘F-you’ or something like that.” Id.

15          This again failed to construe the facts in the light most favorable to Williams. Wood

16   testified that he did not see Williams speak to anyone in front of the house. Williams

17   furthermore denied there was any communication between him and Wood before Wood pulled

18   him out of the vehicle and hit and pushed him. He denied having been directed to show his right

19   hand and denied resisting arrest in any way. The facts in the light most favorable to Williams,

20   therefore, required the court to decide whether Wood’s use of force was justified by the fact that

21   he saw Williams get into a truck “around” a house where drugs and a shotgun had been found


                                                     -5-
1    thirteen days earlier. Under clearly established law, the facts seen in that light did not justify the

2    use of force. See Graham v. Connor, 490 U.S. 386, 396 (1989) (requiring that circumstances

3    such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the

4    safety of the officers or others, and whether he is actively resisting arrest or attempting to evade

5    arrest by flight” justify an officer’s use of force). The district court therefore erred in granting

6    Wood’s motion for summary judgment on this claim.1

7            For the foregoing reasons, the judgment of the district court is hereby VACATED in part

8    and REMANDED to the district court for trial.

9

10                                                      FOR THE COURT:
11                                                      CATHERINE O’HAGAN WOLFE, CLERK
12
13




             1
              Nor was summary judgment justified by the fact that Williams did not specify how
     many times or where Wood hit him and how severe his injuries were nor by the fact that
     Williams described the encounter as “a light little rough up.” Pl.’s Dep. 35:6, June 17, 2008. An
     unjustified use of force by the police violates the Fourth Amendment even if it does not cause
     serious injury. Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987).

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