     08-5388-cv
     Crenshaw v. City of Mount Vernon, et al.



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER
     R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER
     FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE
     P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A
     DOCUM ENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel
 2   Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 21st day of
 3   April, two thousand and ten.
 4
 5   PRESENT:
 6               JOHN M. WALKER, JR.,
 7               DEBRA ANN LIVINGSTON,
 8                                 Circuit Judges,
 9               LEWIS KAPLAN,
10                                 District Judge.*
11   _______________________________________________
12
13   RODNEY CRENSHAW,
14
15                                      Plaintiff-Counter-Defendant-Appellee,
16
17                    v.                                                   No. 08-5388-cv
18
19   CITY OF MOUNT VERNON, MICHAEL GUTTMAN,
20   Police Officer # 86, CHRISTOPHER HUTCHINS, Police
21   Officer # 29, CHRISTOPHER KOEHNLEIN, Detective,
22   KEN PERRY, Police Officer, WAYNE VANDEERPOOL,
23   Detective, RICHARD CASTELHANO, Police Officer,
24   JASON CONNLEY, Police Officer, JOHN AND JANE DOES


             *
            The Hon. Lewis Kaplan, of the United States District Court for the Southern District of
     New York, sitting by designation.

                                                         1
 1   1-10, the names being fictitious as the identities of those
 2   individuals are presently unknown, individually and in their
 3   official capacities as City of Mount Vernon Police Officers, and
 4   DRISCOLL, Detective,
 5
 6                                     Defendants-Counter-Claimant-Appellants,
 7
 8   ALEX DELLA DONNA, Police Officer,
 9
10                                     Defendant-Appellant,
11
12   CYNTHIA THOMPSON, Detective,
13
14                           Defendant.**
15   ______________________________________________
16
17   FOR APPELLANTS:                                   NICHELLE A. JOHNSON , for Helen M. Blackwood,
18                                                     Corporation Counsel, City of Mount Vernon,
19                                                     Mount Vernon, NY
20
21   FOR APPELLEE:                                     PAUL M. VILLANUEVA ,Villanueva & Villanueva,
22                                                     PLLC, Scarsdale, NY
23
24
25            Appeal from a judgment of the United States District Court for the Southern District of New

26   York (Yanthis, M.J.).

27            UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

28   DECREED that the appeal be DISMISSED IN PART and that the judgment of the district court

29   be REVERSED IN PART and REMANDED.

30            Defendants-Appellants, individual officers of the police force of the City of Mt. Vernon,

31   New York, appeal from a September 30, 2008 memorandum and order of the United States District

32   Court for the Southern District of New York (Yanthis, M.J.), granting in part and denying in part

33   Defendants’ motions for summary judgment on Plaintiff-Appellee Rodney Crenshaw’s claims under


              **
                   The Clerk of Court is respectfully directed to amend the official caption as it appears
     above.
                                                          2
 1   42 U.S.C. §§ 1983, 1986, and 1988 for false arrest, malicious prosecution, false imprisonment,

 2   denial of free speech, and retaliation. At issue in this appeal is the district court’s denial of summary

 3   judgment based on qualified immunity to four officers: Appellant Officer Guttman for Crenshaw’s

 4   claims relating to his arrest on November 14, 2003; Appellant Officer Perry for Crenshaw’s claims

 5   relating to his arrest on February 4, 2004; Appellant Detective Driscoll for Crenshaw’s claims

 6   relating to his detention on July 6, 2005; and Appellant Officer Hutchins for Crenshaw’s claims

 7   relating to his detention on November 30, 2005.1 We assume the parties’ familiarity with the

 8   underlying facts, procedural history, and issues presented for review.

 9           We review a district court’s grant of summary judgment de novo, construing all facts in favor

10   of the non-moving party. See, e.g., Caiozzo v. Koreman, 581 F.3d 63, 68 (2d Cir. 2009). Summary

11   judgment is appropriate upon a showing “that there is no genuine issue as to any material fact and

12   that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “We have

13   jurisdiction to review a denial of qualified immunity under the collateral order doctrine if the denial

14   ‘turns on an issue of law.’” Warney v. Monroe County, 587 F.3d 113, 120 (2d Cir. 2009) (quoting

15   Ashcroft v. Iqbal, 129 S. Ct. 1937, 1946 (2009)) (internal quotation marks omitted). When facts are

16   disputed, we must view the facts in the light most favorable to the non-movant, and we may only

17   resolve whether any dispute of fact is “material” as a matter of law, not whether it is “genuine.” We

18   may only decide whether the “stipulated facts, facts accepted for purposes of the appeal, or the



             1
              The district court also denied qualified immunity to Officer Della Donna on Crenshaw’s
     claims relating to his arrest on March 3, 2004. Because Appellants do not mention this incident
     or make any arguments relevant to claims against Officer Della Donna in their briefs on appeal,
     we deem any challenge to this aspect of the district court’s decision to be waived. See Norton v.
     Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). Likewise, Crenshaw has not cross-appealed
     challenging the district court’s grant of summary judgment in favor of the other defendants in the
     case, including the City of Mount Vernon, and the dismissal of his remaining claims.
                                                       3
 1   plaintiff’s version of the facts that the district judge deemed available for jury resolution” support

 2   the Appellants’ immunity defense as a matter of law. Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996);

 3   see also Finigan v. Marshall, 574 F.3d 57, 60 n.2 (2d Cir. 2009).

 4          A plaintiff may not recover for false arrest when the arresting officer had probable cause.

 5   Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).2 Probable cause to arrest “exists

 6   when one has knowledge of, or reasonably trustworthy information as to, facts and circumstances

 7   that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or

 8   is being committed by the person to be arrested.” Williams v. Town of Greenburgh, 535 F.3d 71,

 9   79 (2d Cir. 2008) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)) (internal

10   quotation marks and alterations omitted). Our inquiry focuses on the “facts known to the arresting

11   officer at the time of the arrest,” Zellner, 494 F.3d at 369 (quoting Devenpeck v. Alford, 543 U.S.

12   146, 152 (2004)) (internal quotation mark omitted), and we determine whether probable cause

13   existed based on the “totality of the circumstances,” Illinois v. Gates, 462 U.S. 213, 230 (1983).

14   “[A] mistake about relevant facts . . . does not undermine the existence of probable cause.”

15   Williams, 535 F.3d at 79.

16          Even when probable cause for arrest did not exist, an officer is entitled to qualified immunity

17   if he can show that there was “arguable probable cause” for the arrest. “Arguable probable

18   cause . . . exists when a reasonable police officer in the same circumstances and possessing the same

19   knowledge as the officer in question could have reasonably believed that probable cause existed in

20   the light of well established law.” Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (per


            2
              The existence of probable cause is also a defense to a malicious prosecution claim under
     § 1983. See, e.g., Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (elements
     of malicious prosecution under New York law include whether the defendant initiated a
     prosecution “without probable cause to believe the proceeding can succeed”).
                                                       4
 1   curiam) (quoting Zellner, 494 F.3d at 369) (internal quotation marks omitted). In deciding whether

 2   arguable probable cause existed, we look to whether “(a) it was objectively reasonable for the officer

 3   to believe that probable cause existed, or (b) officers of reasonable competence could disagree on

 4   whether the probable cause test was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)

 5   (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)) (internal quotation marks

 6   omitted). Even in situations in which an officer reasonably but mistakenly concludes that probable

 7   cause exists, “the officer is nonetheless entitled to qualified immunity.” Caldarola v. Calabrese,

 8   298 F.3d 156, 162 (2d Cir. 2002).

 9             1. The November 14, 2003 Arrest: Claims Against Officer Guttman

10             The parties dispute several of the underlying facts of this incident, in which Crenshaw was

11   arrested for disorderly conduct and Obstruction of Governmental Administration. See N.Y. Penal

12   Law §§ 195.05; 240.20. It is undisputed, however, that Crenshaw told his niece not to cooperate

13   with the officers’ request for her identification, and that when Officer Guttman asked Crenshaw to

14   leave the scene, Crenshaw refused, despite warnings from Guttman that if Crenshaw did not stop

15   interfering with the officers’ questioning of Crenshaw’s niece, he would be arrested. It is also

16   undisputed that a crowd of some thirty people had gathered at the scene by the time of Crenshaw’s

17   arrest.

18             An officer presented with these undisputed facts would have a reasonable belief that there

19   was probable cause to arrest Crenshaw for disorderly conduct. The New York disorderly conduct

20   statute forbids, among other conduct, “congregat[ing] with other persons in a public place and

21   refus[ing] to comply with a lawful order of the police to disperse” while “recklessly creating a risk”

22   of “public inconvenience, annoyance or alarm.” N.Y. Penal Law § 240.20(6). Under this statute

23   a person is guilty of committing disorderly conduct if he refuses to obey an officer’s order to move,
                                                        5
 1   unless the order was “purely arbitrary” and “not calculated in any way to promote the public order.”

 2   People v. Galpern, 181 N.E. 572, 574 (N.Y. 1932); see also Rivera v. City of N.Y., 836 N.Y.S.2d

 3   108, 112 (1st Dep’t 2007) (failure of protestors to disperse after lawful order to do so, even when

 4   protestors asserted right to remain, supported probable cause for disorderly conduct arrest); cf.

 5   Zellner, 494 F.3d at 375 (no probable cause existed for disorderly conduct arrest when there was no

 6   evidence in the record that plaintiff had received order to disperse). Crenshaw admits that he failed

 7   to leave when Officer Guttman requested that he do so. Crenshaw cannot argue that the Officer’s

 8   request was arbitrary or not calculated to achieve public order, particularly because the request was

 9   in response to Crenshaw’s admitted attempts to prevent his niece from answering the officers’

10   questions. Officer Guttman therefore had “reasonably trustworthy information” to warrant a

11   reasonable belief that Crenshaw had committed disorderly conduct, supporting probable cause to

12   arrest him. Williams, 535 F.3d at 79. Officer Guttman was therefore entitled to qualified immunity.

13          2. The February 4, 2004 Arrest: Claims Against Officer Perry

14          At oral argument in this Court, counsel for Crenshaw indicated that he was “not contesting”

15   Appellants’ challenge to the district court’s determination that Officer Perry was not entitled to

16   qualified immunity. We independently conclude that the undisputed facts indicate that Perry did

17   not violate Crenshaw’s constitutional rights. Officer Perry is therefore entitled to qualified

18   immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (defendant is entitled to qualified

19   immunity if “no constitutional right would have been violated were the allegations established”).

20          3. The November 30, 2005 Detention: Claims Against Officer Hutchins

21          On this occasion, it is undisputed that Officer Hutchins recalled seeing an outstanding

22   warrant for Crenshaw’s arrest at police headquarters, and radioed to confirm that a warrant existed.


                                                      6
 1   The dispatcher responded that it was “possible,” and, while the warrant’s existence was confirmed,

 2   Hutchins detained Crenshaw for approximately twenty minutes.

 3          An officer’s reasonable belief in the existence of an outstanding warrant justifies an

 4   investigatory stop of a person while the warrant’s existence is confirmed. See, e.g., United States

 5   v. Santa, 180 F.3d 20, 27 (2d Cir. 1999) (officer’s objectively reasonable belief that outstanding

 6   warrant existed was probable cause for arrest); cf. United States v. Hensley, 469 U.S. 221, 232

 7   (1985) (officers who stop a suspect in reliance on a flyer or bulletin that was issued on the basis of

 8   facts supporting reasonable suspicion themselves are justified in making the stop); Whiteley v.

 9   Warden, 401 U.S. 560, 568 (1971) (officers who stopped suspect in reliance on radio broadcast that

10   was itself not supported by probable cause were “entitled” to act based on bulletin). Here, Officer

11   Hutchins’s testimony that he had seen the warrant for Crenshaw signed at police headquarters

12   supports the conclusion that he reasonably believed the warrant existed; this belief was confirmed

13   and bolstered by the dispatcher’s statement that it was “possible” that the department had an

14   outstanding warrant for Crenshaw. Hutchins’s detention of Crenshaw while the dispatcher checked

15   for the warrant was objectively reasonable under the circumstances, and therefore Hutchins was

16   entitled to qualified immunity.

17          4. The July 6, 2005 Detention: Claims Against Detective Driscoll

18          In the July 6, 2005 incident, Crenshaw was detained by police after Detective Driscoll

19   allegedly observed a narcotics transaction take place between Crenshaw and another man. Driscoll

20   avers that he observed “what appeared to be a drug transaction” take place between the two men:

21   the two men “engage[d] in a hand to hand transaction” in which “[Crenshaw] [took] cash in

22   exchange for what appeared to be drugs . . . .” Driscoll Aff. ¶¶ 12-13. Driscoll radioed a description

23   of the buyer to officers in a “pick-up team,” who were unable to locate the man described. Driscoll
                                                       7
 1   then radioed a description of the seller to the pick-up team and directed the team to Crenshaw’s

 2   location; the team then stopped Crenshaw, who matched Driscoll’s description of the seller, as he

 3   was crossing a street, and searched him for narcotics. Crenshaw was not arrested. Crenshaw, for

 4   his part, testified that he was riding a bicycle in the street at the location where he was detained, and

 5   that officers stopped him in the street and forcibly searched him. He denies “receiv[ing] drugs or

 6   pass[ing] drugs to any individuals” or “receiv[ing] currency in exchange for anything” at any time

 7   “at or around the location” of this incident. Crenshaw Aff. ¶ 17.

 8           Here, the record only contains a sworn statement from Detective Driscoll that he observed

 9   a hand-to-hand transaction in which Crenshaw received cash. Crenshaw admits he was in the area,

10   but denies the remainder of Driscoll’s allegations, and, in particular, that he engaged in a transaction

11   with another man and that he received any cash that day. Although normally a well-supported

12   motion for summary judgment cannot be defeated by mere conclusory statements or denials of

13   supported facts, see, e.g., Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996), in an

14   interlocutory appeal of a denial of summary judgment based on qualified immunity, we have

15   jurisdiction over the appeal only “to the extent it is based on either the undisputed facts or the

16   version of the facts presented by [the plaintiff], and we will disregard any disputed facts or facts that

17   contradict [the plaintiff’s] version of the events,” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d

18   756, 761 (2d Cir. 2003) (emphasis added); see also O’Bert ex rel. Estate of O’Bert v. Vargo, 331

19   F.3d 29, 38 (2d Cir. 2003). A police officer’s observation of what he reasonably believes to be a

20   drug transaction in progress clearly supports a reasonable suspicion sufficient to stop the suspect for

21   further investigation, see, e.g., United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000); see also

22   Terry v. Ohio, 392 U.S. 1, 21-23 (1968), even if the officer is ultimately mistaken as to a fact

23   underlying the stop, United States v. Jenkins, 452 F.3d 207, 212 (2d Cir. 2006) (vehicle stop
                                                        8
 1   resulting in part from officers’ mistaken belief that it lacked license plates was reasonable).

 2   Disregarding those allegations of Driscoll that contradict Crenshaw’s version of the events, however,

 3   we are unable to conclude on the undisputed facts that Driscoll had reasonable suspicion to order

 4   the stop of Crenshaw, because whether reasonable suspicion existed necessarily depends on the

 5   disputed factual question of what Driscoll observed taking place on that day. See, e.g., Francis v.

 6   Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (dispute regarding facts necessary to establish

 7   constitutional violation precluded summary judgment based on qualified immunity). We therefore

 8   lack appellate jurisdiction over the district court’s decision denying qualified immunity to Detective

 9   Driscoll and must dismiss that portion of the appeal.

10          5. Conclusion

11          For the foregoing reasons, the portion of the appeal relating to the denial of summary

12   judgment to Detective Driscoll is DISMISSED. As to all other Appellants herein discussed, the

13   judgment of the district court is REVERSED. The case is REMANDED for further proceedings

14   consistent with this order.
15
16                                                           FOR THE COURT:
17                                                           Catherine O’Hagan Wolfe, Clerk
18
19




                                                       9
