Karina Garcia v. Michael R. Bloomberg , 662 F. App'x 50 ( 2016 )

15-3113-cv
Karina Garcia, et al. v. Michael R. Bloomberg, 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.
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 13th day of October, two thousand sixteen.
PRESENT: GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges,
CHRISTINA REISS,
Chief District Judge.
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KARINA GARCIA, AS CLASS REPRESENTATIVE ON BEHALF
OF HERSELF AND OTHERS SIMILARLY SITUATED, YARI
OSORIO, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, BENJAMIN
BECKER, AS CLASS REPRESENTATIVE ON BEHALF OF
HIMSELF AND OTHERS SIMILARLY SITUATED, CASSANDRA
REGAN, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, YAREIDIS
PEREZ, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, STEPHANIE
JEAN UMOH, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, TYLER SOVA,
AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND
OTHERS SIMILARLY SITUATED, MICHAEL CRICKMORE, AS

Chief Judge Christina Reiss, United States District Court for the District of Vermont, sitting by designation.
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CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND
OTHERS SIMILARLY SITUATED, BROOKE FEINSTEIN, AS
CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
MARCEL CARTIER, AS CLASS REPRESENTATIVE ON BEHALF OF
HIMSELF AND OTHERS SIMILARLY SITUATED,
Plaintiff.
v. No. 15-3113-cv
MICHAEL R. BLOOMBERG, IN HIS OFFICIAL CAPACITY AND
INDIVIDUALLY, RAYMOND W. KELLY, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY, CITY OF NEW YORK, JANE AND JOHN DOES 1-40,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
Defendants-Appellees.
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FOR PLAINTIFFS-APPELLANTS: CARL MESSINEO (Mara Verheyden-
Hilliard, on the brief), Partnership for
Civil Justice Fund, Washington, D.C.
FOR DEFENDANTS-APPELLEES: RICHARD DEARING, Assistant
Corporation Counsel (Melanie T. West,
Deborah A. Brenner, on the brief), for
Zachary W. Carter, Corporation Counsel
of the City of New York, New York City
Law Department, New York, New York.
Appeal from a September 10, 2015 judgment of the United States District Court
for the Southern District of New York (Rakoff, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
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Plaintiffs-Appellants (“Plaintiffs”) appeal from an order of the district court
denying their request for leave to file a proposed Third Amended Complaint.1 Plaintiffs’
proposed Third Amended Complaint asserts claims of false arrest against Defendants
Michael Bloomberg, City of New York, Raymond Kelly (Commissioner of the New
York Police Department (NYPD)), Joseph Esposito (Chief of the Department for the
New York Police Department), Thomas Purtell (Assistant Chief of the Department), as
well as other named and unnamed individual officers who were present at or participated
in the mass arrest of marchers who blocked the Brooklyn Bridge roadway during an
October 2011 Occupy Wall Street protest march. Plaintiffs participated in that march and
were arrested by the NYPD. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
We review a district court’s denial of leave to amend for abuse of discretion. See
United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016). Leave to amend
should be “freely give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), but
“‘should generally be denied in instances of futility, undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed, or
undue prejudice to the non-moving party.’” Ladas, 824 F.3d at 28 (quoting Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)). “[W]hen denial of
1
This Court previously reversed and remanded the District Court’s denial of defendants’ motion to dismiss with
instructions to dismiss the Second Amended Complaint. See Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (as
amended).
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leave to file a revised pleading is based on a legal interpretation, such as futility, a
reviewing court conducts a de novo review.” Balintulo v. Ford Motor Co., 796 F.3d 160,
164 (2d Cir. 2015). Plaintiffs sought to amend their complaint to add additional
allegations in support of their state and federal law claims of false arrest against the
individual officers as well as City and NYPD officials under the Monell doctrine. The
plaintiffs newly allege, based largely on testimony from police depositions in other cases,
that defendants Purtell and Esposito did not deploy appropriate police tactics to prevent
marchers from following the line of officers down the roadway portion of the Bridge.
Plaintiffs further allege that Chief Esposito directly participated in the false arrests of the
marchers and that Raymond Kelly, Commissioner of the NYPD, failed to supervise him.
Plaintiffs additionally allege de facto policies of the City and the NYPD allowing and
even facilitating unpermitted marches and then, without warning, performing mass arrests
of marchers.
Vicarious liability is not applicable in § 1983 suits. Littlejohn v. City of New York,
795 F.3d 297, 314 (2d Cir. 2015). Thus, “to impose liability on a municipality under
§ 1983, a plaintiff must identify a municipal ‘policy’ or ‘custom’ that caused the
plaintiff’s injury.” Newtown v. City of New York, 779 F.3d 140, 152 (2d Cir. 2015) (citing
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). The “City
cannot be liable under Monell where [a plaintiff] cannot establish a violation of his
constitutional rights.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (internal
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quotation marks omitted).
Plaintiffs here assert false arrest as their underlying cause of action for the Monell
claim. Probable cause is a complete defense to a claim of false arrest under New York
law. See Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012). This Court
previously held, Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (as amended) (“Garcia III”),
that the arresting officers were entitled to qualified immunity for the claim of false arrest
because the officers had probable cause to effect the seven hundred arrests. See id. at 92,
96.
We determined in Garcia III that “defendants in this case had, from their personal
observations, sufficient evidence to establish probable cause on each of the elements of a
disorderly conduct violation,” and noted that “the law of probable cause” does not
“require[] police officers to engage in an essentially speculative inquiry into the potential
state of mind of (at least some) of the demonstrators.” Id. at 96. Therefore, the question
before us now is whether the proposed additions to the Third Amended Complaint
plausibly allege facts that vitiates probable cause for the arrests of the marchers for
violating N.Y. Penal Law § 240.20(5).
Plaintiffs have not added sufficient allegations in the proposed Third Amended
Complaint to show lack of probable cause for the underlying arrests. Taking Plaintiffs’
new allegations as true, Plaintiffs’ main contentions are (1) that Chief Esposito was on
the scene and knew that many of the marchers did not hear the instructions to disperse,
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yet made the decision to arrest anyway, (2) that actions of Esposito and other officers
conveyed implicit permission to march on the roadway, (3) that Esposito, the City, and
the NYPD had other methods to prevent Plaintiffs from proceeding on the bridge and
chose not to use them, and (4) that the City and NYPD had policy of escorting
unpermitted protests but then arresting the participants without notice. But none of these
allegations defeats probable cause for the arrests.
“An officer has probable cause to arrest when he or she has knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has
committed . . . a crime.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (internal
quotation marks omitted). The demonstrators were arrested for disorderly conduct under
N.Y. Penal Law § 240.20(5), which prohibits “obstruct[ing] vehicular or pedestrian
traffic.” Id. As we previously noted, “[t]he essential flaw in plaintiffs’ logic . . . is the
extent to which it requires police officers to engage in an essentially speculative inquiry
into the potential state of mind of (at least some of) the demonstrators. Neither the law of
probable cause nor the law of qualified immunity requires such speculation.” Garcia III,
779 F.3d at 96.
The proposed Third Amended Complaint does not alter our conclusions in Garcia
III. Rather, it only asserts that Esposito had better knowledge of the state of mind of the
demonstrators than the other individual officers had, namely that Plaintiffs lacked the
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intent to violate the law. 2 But the state of mind of the demonstrators—whether they
thought that they were participating in a sanctioned, First-Amendment-protected roadway
march or whether they were intentionally or recklessly blocking traffic—is irrelevant to the
question of probable cause, although it is a potential defense to the underlying criminal
charge. See Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“[T]he arresting
officer does not have to prove plaintiff’s version wrong before arresting him.”).
While an officer may not “deliberately disregard facts known to him which
establish justification,” Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003), even the facts
alleged in the Third Amended Complaint, if true, do not plausibly plead that Esposito
deliberately ignored facts known to him that justified the marchers’ takeover of the
roadway. As this Court has already explained, the scene was chaotic, the retreat of police
officers on the Bridge was not an unambiguous invitation to follow, and many marchers
continued to funnel onto the sidewalk path. See Garcia III, 779 F.3d at 93–94.
The Third Amended Complaint alleges that there were no unambiguous
instructions given to the marchers not to follow the officers, but does not assert any facts in
support of instructions to follow the officers beyond the conclusory claim that “the clear
communicative message of the ongoing police lead and escort was that it was permissible
for marchers to continue in the police escorted march” onto the roadway. Joint App’x at
103. But the video evidence considered by this panel and by the previous panel
2
It is relevant to note that Esposito was one of the named individual officer defendants at the time we considered
defendants’ previous appeal.
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incontrovertibly shows the absence of a clear message that their conduct was lawful.
Absent the allegation of specific facts to support a direct communication from police to
marchers that the marchers were permitted to occupy the road, the Third Amended
Complaint fails to change our prior conclusion that the defendants had probable cause to
arrest Plaintiffs for violating N.Y. Penal Law § 240.20(5).
Because Plaintiffs’ constitutional rights were not violated by the arrests, the
plaintiffs’ Monell claims are also barred. “Liability under section 1983 is imposed on the
municipality when it has promulgated a custom or policy that violates federal law and,
pursuant to that policy, a municipal actor has tortiously injured the plaintiff.” Askins, 727
F.3d at 253. Thus, the simple existence of a policy, without the corresponding violation,
may not be challenged under § 1983.
Insofar as Plaintiffs allege that Esposito acted as a policymaker who failed to use
sound police tactics (such as deploying scooters or installing orange mesh) to prevent the
demonstrators from entering the bridge roadway, mere negligence is insufficient to
establish a Monell claim. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d
Cir. 2004). Furthermore, the allegation that Kelly failed to supervise Esposito similarly
fails, as Esposito did not violate Plaintiffs’ constitutional rights for the reasons stated
above.
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We have considered Garcia’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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