15-3113-cv
Karina Garcia, et al. v. Michael R. Bloomberg, et al.


                                    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.

       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 13th day of October, two thousand sixteen.

PRESENT: GERARD E. LYNCH,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 CHRISTINA REISS,
                                 Chief District Judge.
----------------------------------------------------------------------
KARINA GARCIA, AS CLASS REPRESENTATIVE ON BEHALF
OF HERSELF AND OTHERS SIMILARLY SITUATED, YARI
OSORIO, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, BENJAMIN
BECKER, AS CLASS REPRESENTATIVE ON BEHALF OF
HIMSELF AND OTHERS SIMILARLY SITUATED, CASSANDRA
REGAN, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, YAREIDIS
PEREZ, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, STEPHANIE
JEAN UMOH, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, TYLER SOVA,
AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND
OTHERS SIMILARLY SITUATED, MICHAEL CRICKMORE, AS


    Chief Judge Christina Reiss, United States District Court for the District of Vermont, sitting by designation.


                                                              1
CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND
OTHERS SIMILARLY SITUATED, BROOKE FEINSTEIN, AS
CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND
OTHERS SIMILARLY SITUATED,

                                 Plaintiffs-Appellants,

MARCEL CARTIER, AS CLASS REPRESENTATIVE ON BEHALF OF
HIMSELF AND OTHERS SIMILARLY SITUATED,

                                 Plaintiff.

                        v.                                                   No. 15-3113-cv

MICHAEL R. BLOOMBERG, IN HIS OFFICIAL CAPACITY AND
INDIVIDUALLY, RAYMOND W. KELLY, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY, CITY OF NEW YORK, JANE AND JOHN DOES 1-40,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,

                                 Defendants-Appellees.
----------------------------------------------------------------------

 FOR PLAINTIFFS-APPELLANTS:                               CARL MESSINEO (Mara Verheyden-
                                                          Hilliard, on the brief), Partnership for
                                                          Civil Justice Fund, Washington, D.C.

 FOR DEFENDANTS-APPELLEES:                                RICHARD         DEARING,      Assistant
                                                          Corporation Counsel (Melanie T. West,
                                                          Deborah A. Brenner, on the brief), for
                                                          Zachary W. Carter, Corporation Counsel
                                                          of the City of New York, New York City
                                                          Law Department, New York, New York.

        Appeal from a September 10, 2015 judgment of the United States District Court

for the Southern District of New York (Rakoff, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

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        Plaintiffs-Appellants (“Plaintiffs”) appeal from an order of the district court

denying their request for leave to file a proposed Third Amended Complaint.1 Plaintiffs’

proposed Third Amended Complaint asserts claims of false arrest against Defendants

Michael Bloomberg, City of New York, Raymond Kelly (Commissioner of the New

York Police Department (NYPD)), Joseph Esposito (Chief of the Department for the

New York Police Department), Thomas Purtell (Assistant Chief of the Department), as

well as other named and unnamed individual officers who were present at or participated

in the mass arrest of marchers who blocked the Brooklyn Bridge roadway during an

October 2011 Occupy Wall Street protest march. Plaintiffs participated in that march and

were arrested by the NYPD. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

        We review a district court’s denial of leave to amend for abuse of discretion. See

United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016). Leave to amend

should be “freely give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), but

“‘should generally be denied in instances of futility, undue delay, bad faith or dilatory

motive, repeated failure to cure deficiencies by amendments previously allowed, or

undue prejudice to the non-moving party.’” Ladas, 824 F.3d at 28 (quoting Burch v.

Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)). “[W]hen denial of


1
 This Court previously reversed and remanded the District Court’s denial of defendants’ motion to dismiss with
instructions to dismiss the Second Amended Complaint. See Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (as
amended).


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leave to file a revised pleading is based on a legal interpretation, such as futility, a

reviewing court conducts a de novo review.” Balintulo v. Ford Motor Co., 796 F.3d 160,

164 (2d Cir. 2015). Plaintiffs sought to amend their complaint to add additional

allegations in support of their state and federal law claims of false arrest against the

individual officers as well as City and NYPD officials under the Monell doctrine. The

plaintiffs newly allege, based largely on testimony from police depositions in other cases,

that defendants Purtell and Esposito did not deploy appropriate police tactics to prevent

marchers from following the line of officers down the roadway portion of the Bridge.

Plaintiffs further allege that Chief Esposito directly participated in the false arrests of the

marchers and that Raymond Kelly, Commissioner of the NYPD, failed to supervise him.

Plaintiffs additionally allege de facto policies of the City and the NYPD allowing and

even facilitating unpermitted marches and then, without warning, performing mass arrests

of marchers.

       Vicarious liability is not applicable in § 1983 suits. Littlejohn v. City of New York,

795 F.3d 297, 314 (2d Cir. 2015). Thus, “to impose liability on a municipality under

§ 1983, a plaintiff must identify a municipal ‘policy’ or ‘custom’ that caused the

plaintiff’s injury.” Newtown v. City of New York, 779 F.3d 140, 152 (2d Cir. 2015) (citing

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). The “City

cannot be liable under Monell where [a plaintiff] cannot establish a violation of his

constitutional rights.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (internal


                                              4
quotation marks omitted).

       Plaintiffs here assert false arrest as their underlying cause of action for the Monell

claim. Probable cause is a complete defense to a claim of false arrest under New York

law. See Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012). This Court

previously held, Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (as amended) (“Garcia III”),

that the arresting officers were entitled to qualified immunity for the claim of false arrest

because the officers had probable cause to effect the seven hundred arrests. See id. at 92,

96.

       We determined in Garcia III that “defendants in this case had, from their personal

observations, sufficient evidence to establish probable cause on each of the elements of a

disorderly conduct violation,” and noted that “the law of probable cause” does not

“require[] police officers to engage in an essentially speculative inquiry into the potential

state of mind of (at least some) of the demonstrators.” Id. at 96. Therefore, the question

before us now is whether the proposed additions to the Third Amended Complaint

plausibly allege facts that vitiates probable cause for the arrests of the marchers for

violating N.Y. Penal Law § 240.20(5).

       Plaintiffs have not added sufficient allegations in the proposed Third Amended

Complaint to show lack of probable cause for the underlying arrests. Taking Plaintiffs’

new allegations as true, Plaintiffs’ main contentions are (1) that Chief Esposito was on

the scene and knew that many of the marchers did not hear the instructions to disperse,


                                             5
yet made the decision to arrest anyway, (2) that actions of Esposito and other officers

conveyed implicit permission to march on the roadway, (3) that Esposito, the City, and

the NYPD had other methods to prevent Plaintiffs from proceeding on the bridge and

chose not to use them, and (4) that the City and NYPD had policy of escorting

unpermitted protests but then arresting the participants without notice. But none of these

allegations defeats probable cause for the arrests.

       “An officer has probable cause to arrest when he or she has knowledge or

reasonably trustworthy information of facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that the person to be arrested has

committed . . . a crime.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (internal

quotation marks omitted). The demonstrators were arrested for disorderly conduct under

N.Y. Penal Law § 240.20(5), which prohibits “obstruct[ing] vehicular or pedestrian

traffic.” Id. As we previously noted, “[t]he essential flaw in plaintiffs’ logic . . . is the

extent to which it requires police officers to engage in an essentially speculative inquiry

into the potential state of mind of (at least some of) the demonstrators. Neither the law of

probable cause nor the law of qualified immunity requires such speculation.” Garcia III,

779 F.3d at 96.

       The proposed Third Amended Complaint does not alter our conclusions in Garcia

III. Rather, it only asserts that Esposito had better knowledge of the state of mind of the

demonstrators than the other individual officers had, namely that Plaintiffs lacked the


                                              6
intent to violate the law. 2 But the state of mind of the demonstrators—whether they

thought that they were participating in a sanctioned, First-Amendment-protected roadway

march or whether they were intentionally or recklessly blocking traffic—is irrelevant to the

question of probable cause, although it is a potential defense to the underlying criminal

charge. See Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“[T]he arresting

officer does not have to prove plaintiff’s version wrong before arresting him.”).

          While an officer may not “deliberately disregard facts known to him which

establish justification,” Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003), even the facts

alleged in the Third Amended Complaint, if true, do not plausibly plead that Esposito

deliberately ignored facts known to him that justified the marchers’ takeover of the

roadway. As this Court has already explained, the scene was chaotic, the retreat of police

officers on the Bridge was not an unambiguous invitation to follow, and many marchers

continued to funnel onto the sidewalk path. See Garcia III, 779 F.3d at 93–94.

          The Third Amended Complaint alleges that there were no unambiguous

instructions given to the marchers not to follow the officers, but does not assert any facts in

support of instructions to follow the officers beyond the conclusory claim that “the clear

communicative message of the ongoing police lead and escort was that it was permissible

for marchers to continue in the police escorted march” onto the roadway. Joint App’x at

103. But the video evidence considered by this panel and by the previous panel
2
  It is relevant to note that Esposito was one of the named individual officer defendants at the time we considered
defendants’ previous appeal.


                                                          7
incontrovertibly shows the absence of a clear message that their conduct was lawful.

Absent the allegation of specific facts to support a direct communication from police to

marchers that the marchers were permitted to occupy the road, the Third Amended

Complaint fails to change our prior conclusion that the defendants had probable cause to

arrest Plaintiffs for violating N.Y. Penal Law § 240.20(5).

         Because Plaintiffs’ constitutional rights were not violated by the arrests, the

plaintiffs’ Monell claims are also barred. “Liability under section 1983 is imposed on the

municipality when it has promulgated a custom or policy that violates federal law and,

pursuant to that policy, a municipal actor has tortiously injured the plaintiff.” Askins, 727

F.3d at 253. Thus, the simple existence of a policy, without the corresponding violation,

may not be challenged under § 1983.

         Insofar as Plaintiffs allege that Esposito acted as a policymaker who failed to use

sound police tactics (such as deploying scooters or installing orange mesh) to prevent the

demonstrators from entering the bridge roadway, mere negligence is insufficient to

establish a Monell claim. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d

Cir. 2004). Furthermore, the allegation that Kelly failed to supervise Esposito similarly

fails, as Esposito did not violate Plaintiffs’ constitutional rights for the reasons stated

above.




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      We have considered Garcia’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

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




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