18-588
Mitchell 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, 40 Foley Square, in the City of New York on the
31st day of January, two thousand nineteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

MELINDA MITCHELL, individually and on behalf of a class
of all others similarly situated, HARVEY MITCHELL, individually
and on behalf of a class of all others similarly situated,

                                                Plaintiffs-Appellants,

                                 v.                                        No. 18-588

CITY OF NEW YORK, a municipal entity, NYC POLICE
OFFICER JAMES SCHUESSLER, Shield No. 28718,
POLICE OFFICER JOSEPH BRINADZE, NYPD
CAPTAIN JOSEPH GULOTTA, NYPD SERGEANT
DANIELLE ROVENTINI, NYPD LIEUTENANT
KATHLEEN CAESAR, RICHARD ROES 1-50, NEW YORK
CITY POLICE SUPERVISORS AND COMMANDERS,
JOHN DOES, 1-50 NEW YORK CITY POLICE OFFICERS,
individually, and in their official capacities, jointly and severally,

                                    Defendants-Appellees.
_____________________________________________________
Appearing for Appellants:     Jeffrey A. Rothman (Jonathan C. Moore, Beldock Levine &
                              Hoffman LLP, Joshua S. Moskovitz, Bernstein Clarke &
                              Moskovitz, on the brief), New York, N.Y.

Appearing for Appellees:      Melanie T. West, Assistant Corporation Counsel, (Richard
                              Dearing, Devin Slack, on the brief), for Zachary W. Carter,
                              Corporation Counsel of the City of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Kaplan, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellants Melinda Mitchell and Harvey Mitchell, putatively on behalf of themselves
and all others similarly situated (APlaintiffs@), appeal from the February 1, 2018 judgment of the
United States District Court for the Southern District of New York (Kaplan, J.) granting
summary judgment to defendant police officers (“City Defendants@) regarding claims of false
arrest because the officers were protected by qualified immunity. Mitchell v. City of New York,
2018 WL 671257 (S.D.N.Y. Jan. 31, 2018). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        The facts are drawn from our previous opinion in Mitchell v. City of New York, 841 F.3d
72 (2d Cir. 2016) (“Mitchell II”), where they are recited in more detail. Melinda and Harvey (we
refer to them by their first names as they are unrelated) were among those attending a house
party at a brownstone in Brooklyn that the police believed to be abandoned. After the police
arrived, officers asked the partygoers to identify who owned the house, or who was hosting the
party. When no one identified the owner or host, Deputy Inspector Joseph Gulotta ordered all
those present arrested.

        Melinda and Harvey sued, bringing a putative class action alleging Section 1983 claims
for false arrest, malicious prosecution, abuse of process, and excessive force. After discovery, the
parties cross-moved for summary judgment. On February 11, 2013, the district court granted
appellees’ motion for summary judgment in its entirety. Mitchell v. City of New York, 14 WL
535046, at *6 (S.D.N.Y. Feb. 11, 2014) (“Mitchell I”). The Plaintiffs appealed, and this Court
affirmed on all grounds but one: “whether the appellee police officers had probable cause to
arrest appellants for trespass.” Mitchell II, 841 F.3d at 75. We remanded for the district court to
consider the false arrest claim and the appellee’s claim of qualified immunity as it related to the
false arrest. The City Defendants moved for summary judgment on qualified immunity grounds,
and the district court granted that motion. Plaintiffs timely appealed.

        We affirm. After remand, the Supreme Court considered the case of District of Columbia
v. Wesby, 138 S. Ct. 577 (2018). Wesby is a party-house case: the question before the Court was
whether there was probable cause for District of Columbia police officers to arrest 16 partygoers
“who were arrested for holding a raucous, late-night party in a house they did not have
permission to enter.” Id. at 582. As here, the arrestees brought Section 1983 false arrest claims
against the District of Columbia and the arresting police officers. The Supreme Court concluded



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that based on the circumstances, the officers had probable cause to arrest the partygoers, and also
exercised its discretion to find that the officers were entitled to qualified immunity. Id. at 589.

        Because the district court assumed the absence of probable cause for the arrests, the only
issue on appeal is the question of whether Wesby dictates that the officers here were entitled to
qualified immunity. Qualified immunity protects officials from damages liability if their conduct
“does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations omitted).
“‘Clearly established’ means that, at the time of the officer’s conduct, the law was sufficiently
clear that every ‘reasonable official would understand that what he is doing’ is unlawful.” Wesby,
138 S. Ct. at (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). “That determination is
made not from the perspective of courts or lawyers, but from that of a reasonable officer in the
defendant’s position.” Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (citations omitted).
After determining that a legal rule was clearly established, the next question is whether “the legal
principle clearly prohibit[s] the officer’s conduct in the particular circumstances before him.”
Wesby, 138 S. Ct. at 590. The “specificity” of the rule a plaintiff seeks to apply is “especially
important in the Fourth Amendment context,” id. (citation omitted), because “[p]robable cause
turns on the assessment of probabilities in particular factual contexts and cannot be reduced to a
neat set of legal rules.” Id. (citation and alterations omitted).

       A police officer is entitled to qualified immunity in the context of a false arrest claim if
there was at least “arguable probable cause” at the time the officer arrested the plaintiff. See
Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016). In assessing arguable probable cause, the
inquiry is “whether any reasonable officer, out of the wide range of reasonable people who
enforce the laws in this country, could have determined that the challenged action was lawful.”
Id. (emphases in omitted).

        Mitchell II found Plaintiffs raised a question of material fact as to the issue of probable
cause, and the district court assumed for the purposes of its analysis that probable cause did not
exist. But the question in determining whether the City Defendants are protected by qualified
immunity turns on the question of arguable probable cause—a lesser showing. The only truly
distinguishing fact between this case and Wesby is that in Wesby, the police officers made more
of an effort to determine if the house was truly abandoned. 138 S. Ct. at 583-84. That is not
enough of a difference to deny the City Defendants qualified immunity.

        Wesby emphasized that qualified immunity is appropriate unless a court can “identify a
case where an officer acting under similar circumstances . . . was held to have violated the Fourth
Amendment.” Wesby, 138 S. Ct. at 590 (citation omitted). The case need not be directly on point,
“but the existing precedent must place the lawfulness of the particular arrest beyond debate.” Id.
(internal quotation marks omitted). Thus, there must be a “body of relevant case law [that]
clearly establish[es] the answer with respect to probable cause.” Id. Plaintiffs identify no such
case here.




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       We have considered the remainder of Plaintiffs’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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