Simon v. City of New York , 727 F.3d 167 ( 2013 )

11-5386-cv
Simon v. City of New York, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Argued: February 6, 2013 Decided: August 16, 2013)
Docket No. 11-5386-cv
ALEXINA SIMON,
Plaintiff-Appellant,
— v. —
CITY OF NEW YORK, ADA FRANCIS LONGOBARDI, DETECTIVE EVELYN ALEGRE,
DETECTIVE DOUGLAS LEE,
Defendants-Appellees.
B e f o r e:
WALKER, KATZMANN, and LYNCH, Circuit Judges.
__________________
Plaintiff-appellant Alexina Simon appeals from an order of the United States
District Court for the Eastern District of New York (Eric N. Vitaliano, Judge) denying her
motion for reconsideration of a previous order and judgment granting defendants-
appellees’ motion for summary judgment on the basis of absolute immunity. Simon
1
argues that the district court erred in finding that detaining an individual for two days
pursuant to a material witness warrant is a prosecutorial function entitled to absolute
immunity. We agree, and vacate the judgment of the district court and remand this case
for further proceedings consistent with this opinion.
VACATED AND REMANDED.
UGOCHUKWU UZOH, Ugo Uzoh, P.C., Brooklyn, New York, for Plaintiff-
Appellant.
SUZANNE K. COLT, Assistant Corporation Counsel (Pamela Seider Dolgow, of
counsel), for Michael A. Cardozo, Corporation Counsel of the City of
New York, New York, New York, for Defendants-Appellees.
KATHERINE DESORMEAU (Lee P. Gelernt, Esha Bhandari, on the brief), ACLU
Foundation Immigrants’ Rights Project, San Franciso California; Joel
B. Rudin, Vice-Chair, Amicus Curiae Committee, National Association
of Criminal Defense Lawyers, New York, New York; Richard D.
Willstatter, President, New York State Association of Criminal Defense
Lawyers, for Amici Curiae in support of Plaintiff-Appellant.
Matthew M. Collette, Attorney, Appellate Staff, Civil Division, for Stuart F.
Delery, Assistant Attorney General, United States Department of
Justice, Washington, D.C.; Varuni Nelson, Assistant United States
Attorney, for Loretta E. Lynch, United States Attorney, Eastern District
of New York, Brooklyn, New York, for Amici Curiae in support of
Defendants-Appellees.
GERARD E. LYNCH, Circuit Judge:
This case requires us to consider whether detaining an individual pursuant to a
material arrest warrant is a prosecutorial function entitled to absolute immunity. We hold
2
that it is not. As the record is insufficient to determine whether defendants are entitled to
qualified immunity, we vacate the judgment of the United States District Court for the
Eastern District of New York (Eric N. Vitaliano, Judge) and remand this case for further
proceedings consistent with this opinion.
BACKGROUND
Plaintiff-appellant Alexina Simon commenced this action under 42 U.S.C. § 1983following her arrest and detention pursuant to a material witness warrant. This case was
dismissed on grounds of absolute immunity before Simon was able to depose defendants-
appellees or otherwise conduct discovery. For purposes of this appeal, therefore, we take
as true the facts set forth in Simon’s complaint and deposition testimony. See Rolon v.
Henneman, 517 F.3d 140, 142 (2d Cir. 2008).
I. Simon’s Arrest and Detention
The chain of events leading to Alexina Simon’s detention began with an
investigation of whether a police officer named Shantell McKinnies falsely reported her
car stolen. Police sought to interview McKinnies’s friend “Alexandra Griffin,” allegedly
the last person to have seen the car. Over the course of the investigation, officials
confused Alexandra Griffin, McKinnies’s friend, with Alexina Simon, Alexandra’s
mother who lives at the same residence and is the plaintiff in this case. The confusion
may have arisen because Alexandra Griffin allegedly informed an NYPD detective that
she goes by the name “Alexandra Simon,” not “Alexandra Griffin.”
3
After “Alexandra Simon” did not respond to a subpoena left in that name at the
women’s shared residence, Assistant District Attorney Francis Longobardi of the Queens
District Attorney’s Office (“Queens DA”) obtained a material witness warrant and order
for “Alexina Simon” on August 8, 2008. The material witness order instructed Simon to
appear before the court on August 11, 2008, at 10:00 a.m. for a hearing to establish
whether she possessed information material to the inquiry regarding McKinnies. As the
court determined that Simon would be unlikely to respond to an order demanding her
presence at the hearing, it also issued an “Arrest Warrant for Material Witness”
authorizing “any police officer in the State of New York” to “take the above-named
Alexina Simon into custody within the State of New York and bring her before this Court
in order that a proceeding may be conducted to determine whether she is to be adjudged a
material witness.” The arrest warrant specified that the hearing was to take place on
August 11, 2008 at 10:00 a.m.
Detective Douglas Lee and Sergeant Evelyn Alegre1 (“the officers”) executed the
material witness warrant on the morning of August 11, 2008, at Simon’s workplace. The
parties’ accounts of the execution of the warrant differ dramatically. The officers
maintain that Simon consented to accompany them for questioning, while Simon
maintains that she accompanied the officers against her will. Simon testified at her
deposition that the investigators appeared at her workplace, asked if she was “Alexina
1
Although various documents in the record refer to this defendant as Sergeant
Allegre, defendants’ appellate brief clarifies that the correct spelling of her name is Alegre.
4
Simon,” and told her that they had a warrant for her arrest and that she needed to come
with them. When asked at her deposition if she had agreed to go with the investigators,
she stated: “I asked them if I have to go. They said ‘Yes.’” Simon said that she asked to
see the warrant, and was shown “some paper with [her] name on it” that she didn’t read
closely. Simon testified that when she went with them she “assumed that [she] was under
arrest and [she] was going to jail, to be locked up or whatever,” and that she thought this
because the male investigator “told [her] that [she] was under arrest and if [she didn’t]
want them to put handcuffs on [her], [she] would come with them.”
Simon stated that she was first taken to “the precinct” for several hours, during
which she waited in a room, then taken to another building that defendants identify as the
Queens District Attorney’s Office. There, she spoke briefly with “the district attorney or
something like that,” whom defendants identify as Longobardi. She testified that
Longobardi asked her about a stolen car, and that she told him that she didn’t know
anything. At approximately 8:00 p.m. that evening, the officers told Simon that she could
leave, but that she “ha[d] to be back the next day to answer some more questions.” The
next day, August 12, the officers picked her up at 9:00 a.m. at her house and brought her
back to “the precinct,” where they further questioned her. Simon did not meet with
Longobardi that day, and was allowed to leave at approximately 5:00 p.m. At no point
during the two days of detention was Simon brought before a grand jury or judge.2
2
Defendants, in contrast, claim that “when informed in person of the material witness
order and warrant, [Simon] agreed to accompany” them to the District Attorney’s Office for
5
II. District Court Proceedings
Simon began the present action on March 27, 2009, and filed an amended
complaint on August 13, 2009, naming the City of New York, Lee, Alegre, and
Longobardi as defendants. The amended complaint, asserting various claims under 42
U.S.C. § 1983 and state law, alleged that defendants violated Simon’s rights by
“arresting, threatening, harassing and detaining [her] without justification, probable cause
or reasonable suspicion.”3 The amended complaint sought compensatory and punitive
damages, as well as any other relief that the court deemed necessary in the interest of
justice.
Defendants moved for summary judgment arguing, in part, that they were entitled
to absolute immunity for the acts of obtaining and executing a material witness warrant,
and that in the alternative, they had qualified immunity for their actions. In an order
entered October 19, 2011, the district court granted defendants’ motion and dismissed the
complaint, holding that the individual defendants had absolute immunity or, in the
alternative, qualified immunity, and that Simon had not stated a cognizable claim against
the City under Monell v. Department of Social Services, 436 U.S. 658 (1978). Simon v.
questioning. Defendants claim that at the end of the first day of questioning, Simon
voluntarily agreed to return to the office for a second day. As with all the factual disputes,
for the purposes of this motion we take Simon’s testimony, which a jury would be entitled
to credit, as true.
3
Simon later withdrew all but her claims of “false arrest and [M]onell/municipal
liability” in an April 16, 2011 letter to the court.
6
City of New York, 819 F. Supp. 2d 145 (E.D.N.Y. 2011). The district court concluded
that Longobardi had absolute prosecutorial immunity as an “official[] performing
discretionary acts of a judicial nature,” which also extended to the officers because their
actions “were executed under the direction of the prosecutor in the course of performing
functions closely tied to the judicial process as opposed to police functions.” Id. at 151(internal quotation marks omitted).
Simon moved for reconsideration, arguing that defendants were not entitled to
absolute immunity because they were engaged in investigatory activities. On December
16, 2011, the district court orally denied Simon’s motion for reconsideration, reiterating
its view that a prosecutor when “seeking a material witness order and executing a material
witness order is acting as advocate and therefore is entitled to absolute immunity.” On
December 27, 2011, Simon timely appealed the district court’s denial of her motion for
reconsideration as to the individual defendants.4
DISCUSSION
I. Standard of Review
We review a district court’s denial of a motion for reconsideration for abuse of
discretion. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011).
4
Simon did not appeal the district court’s denial of her motion for reconsideration as
to the City of New York. While Simon stated that she was also appealing the district court’s
original October 19 order, her notice of appeal was untimely and we do not have jurisdiction
to consider it as to that order. See Fed. R. App. P. 4(a)(1); Johnson v. Univ. of Rochester
Med. Ctr., 642 F.3d 121, 124 (2d Cir. 2011).
7
“A court abuses it[s] discretion when (1) its decision rests on an error of law or a clearly
erroneous factual finding; or (2) cannot be found with the range of permissible decisions.”
Id. The issue on appeal is one of law, which we review de novo. See Giraldo v. Kessler,
694 F.3d 161, 165 (2d Cir. 2012).
II. Absolute Immunity
To determine whether an official enjoys absolute immunity we take a “functional
approach,” examining “the nature of the function performed, not the identity of the actor
who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal
quotation marks omitted). A prosecutor acting in the role of an advocate in connection
with a judicial proceeding is entitled to absolute immunity for all acts “intimately
associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S.
409, 430 (1976); see also Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (noting that
prosecutors receive absolute immunity “only when acting as advocates and when their
conduct involves the exercise of discretion”). These functions include deciding whether
to bring charges and presenting a case to a grand jury or a court, along with the tasks
generally considered adjunct to those functions, such as witness preparation, witness
selection, and issuing subpoenas. See Imbler, 424 U.S. at 431 n.33. Absolute immunity
also extends to persons “who act under [a prosecutor’s] direction in performing functions
closely tied to the judicial process.” Hill v. City of New York, 45 F.3d 653, 660 (2d Cir.
1995).
8
By contrast, prosecutors receive only qualified immunity when performing
“administrative duties and those investigatory functions that do not relate to an advocate’s
preparation for the initiation of a prosecution or for judicial proceedings.” Buckley, 509
U.S. at 273; see also Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502 (2d Cir. 2004).
Investigation, arrest, and detention have historically and by precedent been regarded as
the work of police, not prosecutors, and “‘they do not become prosecutorial functions
merely because a prosecutor has chosen to participate.’” Day v. Morgenthau, 909 F.2d
75, 77-78 (2d Cir. 1990), quoting Robison v. Via, 821 F.2d 913, 918 (2d Cir. 1987).
Absolute immunity is also not available “for the act of giving legal advice to the police in
the investigative phase of a criminal case, or for assisting in a search and seizure or
arrest.” Hill, 45 F.3d at 661 (citation omitted); see also Kalina v. Fletcher, 522 U.S. 118,
130-31 (1997) (holding that prosecutor was not entitled to absolute immunity for acting
as a complaining witness); Buckley, 509 U.S. at 277-78 (holding that prosecutor was not
entitled to absolute immunity for holding a press conference); Barr v. Abrams, 810 F.2d
358, 362 (2d Cir. 1987) (recognizing “meaningful” distinction “between filing the
criminal information and procuring an arrest warrant, on the one hand, and executing the
arrest warrant, on the other”).
“[T]he official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question,” Burns v. Reed, 500 U.S. 478, 486
(1991), and “[t]he ultimate question [] is whether the prosecutors have carried their
burden of establishing that they were functioning as advocates when they engaged in the
9
challenged conduct,” Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996) (internal
quotation marks omitted).
III. Absolute Immunity for Simon’s Detention
We have previously held that when a prosecutor seeks a material witness warrant,
he does so as an advocate and is immune from suit. Flagler, 663 F.3d at 548-49. Any
alleged misstatements by Longobardi in his application for the material witness warrant
therefore cannot form the basis for liability.
However, defendants do not have absolute immunity for their detention of Simon
against her will for two full days.5 The execution of a material witness warrant is a police
function, not a prosecutorial function, as New York’s material witness statute, and the
warrant issued in this case, explicitly state. While under New York law a prosecutor is
responsible for seeking a material witness warrant, only police officers, not prosecutors,
are authorized to execute the warrant by arresting people. See N.Y. Crim. Proc. Law §
620.30(2)(b) (“[T]he court may issue a warrant directed to a police officer, directing such
officer to take such prospective witness into custody . . . .”). Accordingly, the warrant
issued by the court in this case was directed to “any police officer in the State of New
York.” The arrest of Simon and her detention for questioning were thus police functions,
not prosecutorial ones.
5
Defendants contend that Simon consented to accompany them for questioning on
August 11 and to return on August 12. At this stage of the proceeding, however, we look
only to the complaint and Simon’s deposition, which consistently allege that Simon was
brought to the District Attorney’s office against her will.
10
Far from taking actions “intimately associated with the judicial phase of the
criminal process,” Imbler, 424 U.S. at 430, defendants were actively avoiding the court-
ordered material witness hearing. New York procedure requires that an arrested material
witness be brought “before the court forthwith,” N.Y. Crim. Proc. Law § 620.30(2)(b),
and the warrant here directed the executing officers to arrest Simon and bring her before
the court at 10:00 a.m. on August 11 for a hearing on whether she could properly be
considered a material witness. In arresting Simon and taking her into custody, the
officers acted under the protection of the warrant; had they complied with the terms of the
warrant by bringing her promptly before the court, no liability could attach to their
actions, regardless of whether Simon assented to accompany them. Under New York
law, when an individual apprehended pursuant to a material witness warrant is presented
before the court, the court must inform him of the nature and purpose of the proceeding
and afford him the opportunity to obtain counsel, seek bail, call other witnesses, and
move to vacate the warrant order. Id. §§ 620.40-60. Because the defendants did not
comply with the terms of the material witness order and warrant and never presented
Simon before the court, she had no way of contesting her detention.
Once defendants decided that Simon should be detained for questioning by
Longobardi and the officers, however, and compelled her attendance at the Queens DA
for two days of intermittent questioning, rather than bringing her before the court to have
her status settled, their actions fell outside the protection of the warrant. They were not
acting in the role of advocate in connection with a judicial proceeding. A material
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witness warrant secures a witness’s presence at a trial or grand jury proceedings; it does
not authorize a person’s arrest for purposes of subjecting that person to extrajudicial
interrogation by a prosecutor.
Longobardi’s participation in the detention does not transform Simon’s detention
into a prosecutorial function.6 See Day, 909 F.2d at 77-78; Barr, 810 F.2d at 361. The
prosecutorial function may encompass questioning a witness for a brief period before
presentation to determine whether, in the prosecutor’s judgment, the witness’s testimony
should still be pursued or whether the witness should be released without further action.
Based on Simon’s testimony, however, a reasonable jury could find that the detention and
interrogation went beyond what could reasonably be construed as clarifying Simon’s
status or “preparing” her for a grand jury appearance, and became an investigative
interview.7 Under New York law, as under federal law, a prosecutor has no power to
subpoena a witness to appear outside of judicial proceedings to answer questions from the
prosecution or the police. A material witness warrant serves the purpose of securing a
6
Giraldo does not hold otherwise. There, we held that officials who detained and
interviewed a victim of domestic violence were entitled to absolute immunity because “legal
decisions at the core of prosecutorial function – pursuit of the charges, arraignment, bail, etc.
– had to be made [by the officials] and made quickly.” 694 F.3d at 167. But there is nothing
in this case to indicate that Longobardi was making a decision that was similarly at the core
of the prosecutorial function. See id. at 166 (“To be sure . . . even the presence of probable
cause does not guarantee a prosecutor absolute immunity from liability for all actions taken
afterwards.”).
7
Indeed, on Simon’s account, the entire second day of her detention involved
interrogation only by the officers, without any further questioning by the prosecutor.
12
witness’s presence at a trial or grand jury proceeding. It does not authorize a person’s
arrest and prolonged detention for purposes of investigative interrogation by the police or
a prosecutor.
That Simon might eventually have been called to testify in a judicial proceeding
does not make her detention a prosecutorial function.8 See Buckley, 509 U.S. at 275-76(noting that a prosecutor cannot receive absolute immunity for investigative work merely
because the work may later “be retrospectively described as ‘preparation’” for a judicial
proceeding). As the Supreme Court has pointed out, “[a]lmost any action by a prosecutor,
including his or her direct participation in purely investigative activity, could be said to be
in some way related to the ultimate decision whether to prosecute,” but absolute
immunity is not so expansive. Burns, 500 U.S. at 495.
Therefore, the officers are not entitled to absolute immunity for their execution of
the material witness warrant, even if they were following Longobardi’s instructions.
Police officers and a prosecutor who engage in extended detention and interrogation –
including requiring attendance for a second full day – of a material witness whom the
court has ordered to be brought before the court to determine whether she should be
8
Defendants contend that Longobardi was preparing Simon to testify before a grand
jury. Simon argues that no grand jury was empaneled, and that the grand jury subpoenas
issued by Longobardi, stating that she was to appear before the grand jury on the mornings
of August 11 and 12, 2008, were not give to her until after her detention ended on the
evening of August 12. It is not for us to resolve this factual dispute, but it makes no
difference to our disposition of this appeal. Detaining a witness for two days, even to prepare
for the possibility of bringing her before a grand jury, is not a prosecutorial function.
13
detained or bailed as a material witness are, as a matter of law, engaged in an
investigative function that entitles them to, at most, qualified immunity.
We emphasize the limited nature of the question we address today. We do not
decide, and express no view regarding, the legality of defendants’ actions under federal or
New York law. Nor do we decide whether some or all of the defendants are entitled to
qualified immunity.9 In the absence of any discovery by Simon, the record is
insufficiently developed at this stage of the case to permit a ruling on that question. We
hold only that defendants are not entitled to absolute prosecutorial immunity with respect
to Simon’s allegation that she was unlawfully detained for investigative interrogation.
CONCLUSION
Accordingly, the judgment is VACATED and REMANDED for further
proceedings consistent with this opinion.
9
The district court ruled that defendants had qualified immunity, but its analysis was
limited to the execution of the arrest pursuant to the warrant, and did not address Simon’s
continued detention and interrogation.
14