     16-3940
     Wiles v. City of New York 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.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   6th day of March, two thousand eighteen.
 4
 5   Present:          ROSEMARY S. POOLER
 6                     RICHARD C. WESLEY,
 7                     PETER W. HALL,
 8                                Circuit Judges.
 9
10   _____________________________________________________
11
12   JOSHUA WILES
13
14                                        Plaintiff-Appellant,
15
16                              v.                                                16-3940
17
18   CITY OF NEW YORK, A MUNICIPAL
19   ENTITY, BRIAN PASTULA, NEW YORK CITY
20   POLICE OFFICER, SERGEANT JOHN SLAYNE,
21   NEW YORK POLICE DEPARTMENT, LIEUTENANT
22   ZIELINSKI, NEW YORK POLICE DEPARTMENT,
23   POLICE OFFICER JOHN MCNAMARA
24
25                           Defendants-Appellees.1
26   _____________________________________________________
27
28   Appearing for Appellant:             David A. Thompson, Stecklow & Thompson (Jon Avins, on the
29                                        brief), New York, N.Y.
30

     1
         The Clerk of Court is directed to amend the caption as above.
 1   Appearing for Appellee:        Jonathan A. Popolow (Pamela Seider Dolgow, on the brief) for
 2                                  Zachary W. Carter, Corporation Counsel of the City of New York,
 3                                  New York, N.Y.
 4
 5   Appeal from the United States District Court for the Southern District of New York (Griesa, J.).
 6
 7        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 8   AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
 9
10           Joshua Wiles appeals from an October 27, 2016 judgment of the United States District
11   Court for the Southern District of New York (Griesa, J.) granting summary judgment to
12   Defendants on all claims. Wiles v. City of New York, 2016 WL 6238609 (S.D.N.Y. Oct. 25,
13   2016). We assume the parties’ familiarity with the underlying facts, procedural history, and
14   specification of issues for review.
15
16          We review grants of summary judgment de novo, drawing all inferences in favor of the
17   non-moving party where no material facts are genuinely disputed. See Amore v. Novarro, 624
18   F.3d 522, 529 (2d Cir. 2010).
19
20            A police officer is entitled to qualified immunity for false arrest at the summary judgment
21   stage “if the court determines that the only conclusion a rational jury could reach is that
22   reasonable officers would disagree about the legality of the defendants’ conduct under the
23   circumstances.” Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995). In other words, “[a]n officer
24   is entitled to qualified immunity against a suit for false arrest if he can establish that he had
25   arguable probable cause to arrest the plaintiff.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015)
26   (citation and internal quotation marks omitted). “Arguable probable cause exists if either (a) it
27   was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of
28   reasonable competence could disagree on whether the probable cause test was met.” Id. (citation
29   and internal quotation marks removed). It “protects all but the plainly incompetent or those who
30   knowingly violate the law.” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (citing Pearson
31   v. Callahan, 555 U.S. 223, 231 (2009)). It also renders an officer immune from First Amendment
32   retaliation claims. See Mangino v. Inc. Village of Patchogue, 808 F.3d 951, 956 (2d Cir. 2015)
33   (“The existence of probable cause will defeat…a First Amendment claim that is premised on the
34   allegation that defendants prosecuted a plaintiff out of a retaliatory motive….” (citation and
35   internal quotation marks omitted)).
36
37           We agree with the district court that Officer Pastula is entitled to qualified immunity in
38   this case. Video evidence indicates that Wiles was part of a group of protestors packed so tightly
39   onto the sidewalk that bystanders attempting to pass through could hardly do so. Officer Pastula
40   ordered this group to back away from the intersection. After taking a few steps back, Wiles
41   stopped in the middle of the sidewalk and began to chant in protest of the order. Officer Pastula
42   arrested him for disorderly conduct in violation of New York Penal Law § 240.20(6). We do not
43   think a reasonable juror could find that Officer Pastula lacked arguable probable cause to do so.
44   See Garcia, 779 F.3d at 92.
45
46



                                                      2
1           We have considered the remainder of Wiles’s arguments and find them to be without
2   merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
3   own costs.
4                                                          FOR THE COURT:
5                                                          Catherine O’Hagan Wolfe, Clerk
6




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