15-3841
Meyers v. City of New York

                           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, at 40 Foley Square, in the City of New York, on
the 2nd day of February, two thousand seventeen.

Present:       ROBERT A. KATZMANN,
                    Chief Judge,
               RALPH K. WINTER,
                    Circuit Judge,
               SIDNEY H. STEIN,
                    District Judge.*


CHARLES MEYERS, JOHN BAKER, JUSTIN
STREKAL, MILES WALSH,

       Plaintiffs-Appellees,

               -v-                                   No. 15-3841

CITY OF NEW YORK, MICHAEL
BLOOMBERG, individually and in his official
capacity as former Mayor of the City of New York,
CHIEF OF DEPARTMENT JOSEPH J.
ESPOSITO, Individually and in his official
capacity, NYPD COMMISSIONER RAYMOND
KELLY, individually and in his official capacity,

       Defendants-Appellants,

                                                       
*
   Judge Sidney H. Stein of the United States District Court for the Southern District of New
York, sitting by designation.

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OFFICER DOES 1 THROUGH 100, NYPD
PATROL OFFICER FREDDY YNOA, NYPD
Patrol Officer, Shield # 18851; HANS FRANCOIS,
Shield #25825, JOHN ZARANIS, Shield # 09645,
VASILE DUBOVICI, Shield # 28892,

        Defendants.


For Plaintiffs-Appellees:                              PAUL L. MILLS, Law Office of Paul L. Mills,
                                                       New York, NY.

For Defendants-Appellants:                             MAX MCCANN, Assistant Corporation
                                                       Counsel, (Richard Dearing and Devin Slack,
                                                       on the brief), for Zachary W. Carter,
                                                       Corporation Counsel of the City of New
                                                       York, New York, NY.

        Appeal from the United States District Court for the Southern District of New York

(Carter, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is VACATED and REMANDED.

        Plaintiffs-appellees, participants in an Occupy Wall Street protest, were arrested and

charged with trespass and disorderly conduct after they refused a police order to vacate Zuccotti

Park in lower Manhattan. Plaintiffs brought this suit challenging the lawfulness of their removal

from Zuccotti Park and the decisions of defendants-appellants, New York City officials at the

time, to arrest and charge plaintiffs. The district court dismissed several of plaintiffs’ claims but

left intact plaintiffs’ Fourth Amendment claims for false arrest and malicious prosecution and

First Amendment retaliation claims. The district court also denied qualified immunity to

defendants-appellants, which allowed defendants-appellants to bring the present interlocutory

appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.


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       “We review a district court’s denial of qualified immunity on a motion to dismiss de

novo, accepting as true the material facts alleged in the complaint and drawing all reasonable

inferences in plaintiffs’ favor.” Garcia v. Does, 779 F.3d 84, 91 (2d Cir. 2014) (internal

quotation marks omitted).

       “Qualified immunity protects public officials from liability for civil damages when one of

two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or

(b) it was objectively reasonable for the defendant to believe that his action did not violate such

law.” Id. at 92. For instance, “[a]n officer is entitled to qualified immunity against a suit for false

arrest if he can establish that he had arguable probable cause to arrest the plaintiff.” Id. (internal

quotation marks omitted).

       Although the district court considered the issue of probable cause, the district court

needed also to conduct adequate analysis of arguable probable cause and of whether qualified

immunity protects defendants-appellants – a more “forgiving” standard than the probable cause

inquiry. Amore v. Novarro, 624 F.3d 522, 530, 536 (2d Cir. 2010). In particular, we respectfully

think the district court did not sufficiently take into account our holding in Garcia:

       police officers [are not required] to engage in an essentially speculative inquiry
       into the potential state of mind of . . . [arrestees]. Neither the law of probable
       cause nor the law of qualified immunity requires such speculation. Whether or not
       a suspect ultimately turns out to have a defense, or even whether a reasonable
       officer might have some idea that such a defense could exist, is not the question.
       An officer still has probable cause to arrest, and certainly is entitled to qualified
       immunity, so long as any such defense rests on facts that are so unclear, or a legal
       theory that is not so clearly established, that it cannot be said that any reasonable
       officer would understand that an arrest under the circumstances would be
       unlawful.

Garcia, 779 F.3d at 96 (citations omitted).




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        Upon remand, the district court should undertake a complete analysis of the qualified

immunity issue. The district court should do so in light of the Amended Complaint filed in this

case.

        We have considered the parties’ remaining arguments on appeal and find in them no basis

for altering our decision. For the foregoing reasons, the judgment of the district court is

VACATED and REMANDED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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