12-4214-cv
Harwe v. Floyd



                          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 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 17th day of October, two thousand thirteen.

PRESENT: REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                         Circuit Judges,
                 JOHN F. KEENAN,
                         District Judge.*
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BRITTMARIE HARWE, JANET LEVY,
                         Plaintiffs-Appellants,

                 v.                                                      No. 12-4214-cv

RONALD FLOYD,
                         Defendant-Appellee.
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FOR APPELLANTS:                                   NORMAN A. PATTIS, The Pattis Law Firm,
                                                  LLC, Bethany, Connecticut.




          *
         The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
APPEARING FOR APPELLEE:                     JAMES N. TALLBERG, Karsten & Tallberg,
                                            LLC, West Hartford, Connecticut.

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

Connecticut (Mark R. Kravitz, Judge).

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

DECREED that the judgment entered on October 4, 2012, is AFFIRMED.

       Plaintiffs Brittmarie Harwe and Janet Levy appeal from a judgment in favor of

defendant police officer Ronald Floyd, which reflects both an award of summary judgment

in favor of Floyd on plaintiffs’ Fourth Amendment claim of unreasonable seizure and a jury

verdict in favor of Floyd on plaintiffs’ claim of excessive force. See 42 U.S.C. § 1983.

Plaintiffs here challenge only the summary judgment award, claiming that they raised triable

issues of fact as to the basis for, scope of, and duration of their traffic stop detention, which

precluded the district court from finding as a matter of law that Floyd was entitled to

qualified immunity from liability for damages. We review an award of summary judgment

de novo, resolving all ambiguities and drawing all inferences in favor of the nonmovant, and

we will affirm only if the record reveals no genuine dispute of material fact. See Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Nagle v. Marron,

663 F.3d 100, 104–05 (2d Cir. 2011). We assume the parties’ familiarity with the underlying

facts and the record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.


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       Qualified immunity shields police officers from § 1983 liability for damages as long

as their conduct does not violate clearly established constitutional rights of which a

reasonable person should have been aware. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

(2011); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Zalaski v. City of Hartford, 723 F.3d

382, 388 (2d Cir. 2013). Thus, in considering a qualified immunity claim, a court first

considers whether the facts demonstrate a constitutional violation. If the answer to that

question is clearly no, further inquiry is unnecessary because where there is no viable

constitutional claim, a defendant has no need of immunity. See Zalaski v. City of Hartford,

723 F.3d at 388–89. If, however, the answer to the question is yes, or not definitely no, a

court must then consider whether the right was clearly established at the time of defendant’s

conduct. See id. Here, the district court determined that both questions had to be answered

in favor of defendant. We agree.

1.     Fourth Amendment Violation

       Plaintiffs submit that there are disputed issues of fact as to whether Floyd’s decision

to stop them was supported by reasonable suspicion of a traffic violation. See United States

v. Stewart, 551 F.3d 187, 191 (2d Cir. 2009) (“[A] traffic stop based on a reasonable

suspicion of a traffic violation comports with the Fourth Amendment.”). Because plaintiffs

did not so contend in the district court, see Harwe v. Floyd, No. 3:09-cv-1027 (MRK), 2011

WL 674024, *9 (D. Conn. Feb. 17, 2011) (“The parties do not dispute that Officer Floyd’s

initial decision to stop Ms. Levy and Ms. Harwe was reasonable.”); Harwe Mem. In Opp. to

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Motion to Dismiss at 3, Supplemental App. at 3 (“Neither plaintiff here contends that there

was no justification for the stop of the vehicle driven by Ms. Levy.”), the argument is

forfeited on appeal and we do not address it further, see Oneida Indian Nation v. Madison

County, 665 F.3d 408, 441 (2d Cir. 2011).

       Plaintiffs did challenge the scope and duration of the stop in the district court. See

Gilles v. Repicky, 511 F.3d 239, 245 (2d Cir. 2007) (recognizing temporary detention of

person during traffic stop as Fourth Amendment seizure, which “must be temporary and last

no longer than is necessary to effectuate the purpose of the stop” to be reasonable (internal

quotation marks omitted)). Upon an independent review of the record, however, we

conclude, as the district court did, that plaintiffs failed to adduce evidence sufficient to raise

material disputes of fact on these points.

       First, although plaintiffs testified at their depositions that the stop lasted an hour, we

agree with the district court that no reasonable jury could credit that account in light of other

evidence—from plaintiffs themselves and their cell phone records, as well as from police

department records—conclusively showing that the stop lasted no more than half an hour.

Accordingly, we assess the reasonableness of the stop assuming a half-hour duration. See

Scott v. Harris, 550 U.S. 372, 380 (2007) (recognizing that when opposing parties provide

different accounts of events at issue, one of which is flatly contradicted by record so that no

reasonable jury could credit it, “court should not adopt that version . . . for purposes of ruling

on a motion for summary judgment”).

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       Second, once Floyd stopped plaintiffs’ car for a suspected traffic violation, the officer

was entitled to inquire into matters that could have informed the violation. Thus, Floyd’s

observations of Levy swerving her car without signaling, together with her admission to

alcohol consumption at dinner, made it reasonable for him to continue the stop beyond the

time necessary to issue a traffic citation in order to assuage reasonable suspicions as to driver

sobriety. See United States v. Jenkins, 452 F.3d 207, 214 (2d Cir. 2006); see also United

States v. Simmons, 560 F.3d 98, 103 (2d Cir. 2008) (recognizing existence of reasonable

suspicion where officer has “particularized and objective basis for suspicion of legal

wrongdoing under the totality of the circumstances” (internal quotation marks omitted)).

Levy’s failure of two field sobriety tests would reasonably exacerbate, rather than assuage,

Floyd’s suspicions, despite her innocent explanations. In these circumstances, Floyd’s

decision to investigate further by briefly questioning Levy and Harwe separately—a

technique that in fact dispelled his suspicions—cannot be deemed more intrusive than

necessary. See United States v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992) (stating that

courts “should not indulge in unrealistic second-guessing as to the means law enforcement

officers employ to conduct their investigations” (alteration and internal quotation marks

omitted)). Nor can such actions be found to have unnecessarily prolonged the stop. See,

e.g., United States v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995) (upholding 30-minute detention

based on reasonable suspicion); see also United States v. Branch, 537 F.3d 328, 338–39 (4th

Cir. 2008) (same).

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       No different conclusion is warranted because Levy submits that Floyd should instead

have investigated her “proof” that she was a stroke victim, which explained her inability to

satisfy the physical requirements of the sobriety tests. “The question . . . ‘is not simply

whether some other alternative was available, but whether the police acted unreasonably in

failing to recognize or to pursue it.’” United States v. Tehrani, 49 F.3d at 61 (quoting United

States v. Sharpe, 470 U.S. 675, 687 (1985)). No reasonable jury could so conclude where

the interview means Floyd employed yielded a result favorable to plaintiffs in the course of

a stop lasting a total of half an hour.

       Nor could a jury find the stop to have been unreasonably lengthy based on plaintiffs’

testimony that Floyd conferred with other officers who purportedly laughed and pointed at

Levy. As an initial matter, plaintiffs do not contend that the observed discussion was

unrelated to the investigation. To the contrary, they assert that Floyd “engage[d] in leisurely

skull sessions with fellow officers about whether to arrest or to issue a citation.” Appellants

Br. 13. A brief discussion on the proper course of action to take with respect to an

investigation cannot be deemed to have unreasonably prolonged a stop. See United States

v. Glover, 957 F.2d at 1011. Even assuming that the discussion was unrelated to the

investigation and that the officers’ conduct was unprofessional, the record precludes a

finding that it was anything other than a very brief part of a half-hour stop during which

Floyd (1) approached plaintiffs’ car, (2) conducted preliminary questioning of plaintiffs,

(3) administered four field sobriety tests to Levy, (4) placed Levy in the police car,

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(5) separately questioned Levy and Harwe, (6) filled out a citation, and (7) issued that

citation to Levy. On this record, no factfinder could reasonably conclude that Floyd’s

conversation with his fellow officers so unreasonably extended the stop’s duration as to

violate plaintiffs’ constitutional rights. See United States v. Harrison, 606 F.3d 42, 45 (2d

Cir. 2010) (observing that stops extended up to 17 minutes by inquiries into unrelated matters

have been found reasonable).

       Accordingly, because Floyd’s detention of plaintiffs could not be found unreasonable

under the Fourth Amendment, the district court properly granted summary judgment to Floyd

at the first step of qualified immunity analysis.

2.     Clearly Established Right

       Even if there were a material question as to the reasonableness of the scope and

duration of plaintiffs’ stop, we would conclude, as the district court did, that Floyd was

entitled to qualified immunity on the second step of analysis because at least some officers

of reasonable competence in Floyd’s position could have believed that the half-hour stop in

this case “was within the bounds of appropriate police responses.” Saucier v. Katz, 533 U.S.

194, 208 (2001) (holding qualified immunity warranted in such circumstances); see Zalaski

v. City of Hartford, 723 F.3d at 388–89.

       Thus, we conclude that the district court correctly awarded summary judgment to

Floyd on plaintiffs’ Fourth Amendment seizure claim.



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      We have considered plaintiffs’ remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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