Mercedes v. City of New York ( 2023 )

22-1776-cv
Mercedes v. City of New York, 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 12th day of December, two thousand twenty-three.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
Jonathan Mercedes,
Plaintiff-Appellant,
v. No. 22-1776-cv
City of New York, Police Officer Richard
Evans Shield No. 25177, John Does,
Richard Roes, Police Officer Anthony
Amirally, Police Officer Kevin Treacy,
Police Officer Christopher Boland,
Defendants-Appellees.*
_____________________________________
FOR PLAINTIFF-APPELLANT: JEFFREY A. ROTHMAN, New York, NY
*
The Clerk is respectfully directed to update the caption to conform to the above.
FOR DEFENDANTS-APPELLEES: CHLOE MOON, Assistant Corporation
Counsel (Richard P. Dearing, Jane L.
Gordon, and Jeremy Pepper, of Counsel, on
the brief), for Hon. Sylvia O. Hinds-Radix,
Corporation Counsel of the City of New
York, New York, NY
Appeal from a judgment of the United States District Court for the Southern District of
New York (Alvin K. Hellerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED
IN PART, and the case is REMANDED for further proceedings consistent with this order.
Plaintiff-Appellant Jonathan Mercedes appeals from an order of the United States District
Court for the Southern District of New York entered on October 4, 2019, denying his Motion for
Partial Summary Judgment and granting partial summary judgment for Defendants-Appellees the
City of New York (“City”) and Police Officers Richard Evans, John Does, Richard Roes,
Anthony Amirally, Kevin Treacy, and Christopher Boland (collectively, “Defendant Officers”)
on his claims of unlawful seizure, false arrest, excessive force, and failure to intervene under 42
U.S.C. § 1983 and New York state law, stemming from events that occurred in June 2016.1
Mercedes argues that the district court erred in its summary judgment rulings, and in declining to
find that Defendants spoliated various materials. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
1
The district court did not grant summary judgment on the excessive force claim for tight
handcuffing against the Defendant Officers. The parties settled the remaining claims, and the
district court entered final judgment on July 22, 2022. Mercedes filed a timely Notice of Appeal
on August 15, 2022.
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I. Standard of Review
“We review de novo a district court’s decision to grant summary judgment, construing
the evidence in the light most favorable to the party against whom summary judgment was
granted and drawing all reasonable inferences in that party’s favor.” Covington Specialty Ins. Co.
v. Indian Lookout Country Club, Inc., 62 F.4th 748, 752 (2d Cir. 2023) (internal quotation marks
and citations omitted). “Summary judgment is required if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Id. (internal quotation
marks and citations omitted).
II. Unlawful Seizure and False Arrest
Mercedes first argues that the district court erred by granting summary judgment for the
Defendant Officers on his unlawful seizure and false arrest claims. The Fourth Amendment
guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable
searches and seizures.” U.S. Const. amend. IV. This protection “adheres whether the seizure is
for purposes of law enforcement or due to an individual’s mental illness.” Myers v. Patterson,
819 F.3d 625, 632 (2d Cir. 2016). Probable cause to arrest “exists when the arresting officer 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 or is committing a crime.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)
(internal quotation marks and citation omitted). To handcuff and detain a person for mental-
health reasons, an officer must have “probable cause to believe that the person presented a risk
of harm to himself or others.” Kerman v. City of New York, 261 F.3d 229, 237 (2d Cir. 2001)
(citation omitted).
3
Even if there was no probable cause, “an arresting officer is entitled to qualified
immunity so long as arguable probable cause was present when the arrest was made.” Figueroa
v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (internal quotation marks and citation omitted).
Arguable probable cause exists if “either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of reasonable competence could disagree on
whether the probable cause test was met.” Id. (internal quotation marks and citation omitted). In
other words, qualified immunity will protect an arresting officer unless “no reasonably
competent officer could have concluded, based on the facts known at the time of arrest, that
probable cause existed.” Id. (internal quotation marks and citation omitted).
The district court concluded that the Defendant Officers had arguable probable cause to
arrest Mercedes under New York Mental Hygiene Law (“NY MHL”) § 9.41. We do not reach
that issue, as we conclude that there was arguable probable cause to arrest under New York
Penal Law (“NYPL”) § 240.26(1).2 The Defendant Officers arrived at Mercedes’s address in
response to a radio dispatch reporting that there was an emotionally disturbed male at that
address who had a psychiatric history, was off his medication, and could become violent. After
arriving at Mercedes’s address, the officers stopped him as he attempted to leave the building
because, according to Mercedes, they recognized him from an earlier encounter. The officers had
2
Although we recently held that “[p]robable cause to arrest for a criminal violation . . . is
not a sufficient basis to arrest an individual for an emergency mental health evaluation,” it was
“not clearly established” at the time of Mercedes’s arrest “that where police officers had
probable cause to arrest a person for a criminal offense, they had to make a separate probable
cause determination to arrest the person for an emergency psychiatric evaluation.” Guan v. City
of New York, 37 F.4th 797, 807-09 (2d Cir. 2022). Accordingly, the arresting officers were
entitled to qualified immunity if they had probable cause to arrest Mercedes for a criminal
violation, without an independent probable cause assessment under NY MHL § 9.41.
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a reasonable suspicion that Mercedes was the troubled individual mentioned in the report; they
were thus justified in stopping him to inquire further.
Mercedes did not submit to the stop, but instead tried to get past the officers by pushing
down on Officer Evans’s arms. In response, Officer Evans forcibly handcuffed him. No matter
how “delicately” Mercedes contends he pushed, he nonetheless pushed down on Officer Evans’s
arms, and at that point, the Defendant Officers had at least arguable probable cause to arrest him
for harassment in the second degree. See NYPL § 240.26(1) (“A person is guilty of harassment
in the second degree when, with intent to . . . alarm another person,” he “subjects such other
person to physical contact”); People v. Bartkow, 96 N.Y.2d 770, 772 (2001) (“The crux of
section 240.26 (1) is the element of physical contact: actual, attempted, or threatened.”). In light
of the surrounding circumstances, including the information reported on the dispatch and
Mercedes initiating physical contact with Officer Evans (a battery that Mercedes does not argue
was accidental), the on-scene Defendant Officers could infer intent to alarm. See People v.
Caulkins, 919 N.Y.S.2d 597, 599 (3d Dep’t 2011) (“[I]ntent can be inferred from the act itself or
from the defendant’s conduct and the surrounding circumstances.”).3 Accordingly, we affirm the
district court’s grant of summary judgment on the unlawful seizure and false arrest claims.
III. Excessive Force
Next, Mercedes argues that the district court erred in granting Defendants summary
judgment on his excessive force claim. Claims that law enforcement officers used excessive
force “in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen” are
3
We therefore do not reach whether the Defendant Officers had arguable probable cause
under NY MHL § 9.41.
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“analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor,
490 U.S. 386, 395 (1989). In analyzing excessive force claims, courts ask “whether the officers’
actions are objectively reasonable in light of the facts and circumstances confronting them.”
Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241 (2021) (internal quotation marks omitted),
quoting Graham, 490 U.S. at 397. Specifically, the excessive force inquiry “requires careful
attention to the . . . severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.
2004) (internal quotation marks omitted), quoting Graham, 490 U.S. at 396. “[I]n light of the
fact-specific nature of . . . an excessive force claim,” “granting summary judgment against a
plaintiff on [such a claim] is not appropriate unless no reasonable factfinder could conclude that
the officers’ conduct was objectively unreasonable.” Rogoz v. City of Hartford, 796 F.3d 236,
246 (2d Cir. 2015) (alteration in original) (internal quotation marks and citation omitted).
To be accorded qualified immunity, the Defendant Officers must show that their conduct
“d[id] not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation
marks and citation omitted). For a right to be “clearly established,” there does not need to be a
“case directly on point,” but there must be existing precedent that “place[s] the statutory or
constitutional question beyond debate.” Id. (internal quotation marks and citation omitted). Since
years before the incident at issue here, there has been a “well established” principle that the “use
of entirely gratuitous force is unreasonable and therefore excessive.” Tracy v. Freshwater, 623
F.3d 90, 99 n.5 (2d Cir. 2010) (citation omitted) (noting that “no reasonable officer could have
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believed that he was entitled to use pepper spray gratuitously against a restrained and unresisting
arrestee”); see also Lennox v. Miller, 968 F.3d 150, 156-57 (2d Cir. 2020) (denying qualified
immunity because a jury could find that an officer used significant force in taking down an
arrestee, kneeling on top of her with his full body weight, and slamming her head into the ground
all while the arrestee was not resisting).
The district court held that no reasonable factfinder could conclude that Officer Evans’s
takedown of Mercedes constituted excessive force. We disagree. Mercedes’s mother Lisette
Wigintton witnessed her son’s takedown and described that the arresting officers “slammed
[Mercedes] on the floor” and then the “big officer” (whom Mercedes identified as Officer
Evans), stepped on his stomach. Joint Appendix 492-93. Wigintton then told Officer Evans that
Mercedes has liver problems and a hernia, and in response, Officer Evans allegedly “picked up
his foot and stomped his foot harder.” Id. at 493. The parties dispute when exactly Mercedes
stopped resisting and whether Officer Evans stomped on Mercedes at all. However, drawing all
reasonable inferences in Mercedes’s favor, we conclude that a reasonable jury could determine
that Officer Evans exerted gratuitous and significant force in his second stomp if Mercedes was
no longer actively resisting. See Jones v. Treubig, 963 F.3d 214, 230 (2d Cir. 2020) (explaining
that when an arrestee was no longer actively resisting, “no reasonable officer could believe that
the use of the taser a second time . . . was lawful.” (emphasis added)). Accordingly, we vacate
and remand for further proceedings on the excessive force claim as to Officer Evans.4
4
Because “[t]he elements of New York assault and battery and Section 1983 excessive
force claims are substantially identical,” and we apply a reasonableness standard to both, see
Tardif v. City of New York, 991 F.3d 394, 410 (2d Cir. 2021) (internal quotation marks and
citations omitted), we vacate and remand on the state-law assault and battery claims as well.
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IV. Failure to Intervene
Finally, Mercedes argues that Officers Amirally, Treacy, and Boland failed to intervene
in the alleged constitutional violations. “In order for a law enforcement officer to be held liable
for another officer’s use of excessive force, there must have been a realistic opportunity [for the
former] to intervene to prevent the harm from occurring.” Rogoz, 796 F.3d at 251 (alteration in
original) (internal quotation marks and citations omitted). Based on his own recollection of the
underlying events, Mercedes was on the ground when he believed Officer Evans jumped on him,
but that he jumped off right away, suggesting that the alleged excessive force happened quickly.
Mercedes has not proffered any evidence from which a juror could reasonably infer that Officers
Amirally, Treacy, and Boland observed Officer Evans stomp on Mercedes or had a realistic
opportunity to prevent his actions. Thus, we affirm the district court on this issue.
* * *
We have considered all of Mercedes’s remaining arguments and find them to be without
merit. For the foregoing reasons, the judgment of the district court is VACATED to the extent it
dismissed Mercedes’s excessive force and assault and battery claims; in all other respects the
judgment is AFFIRMED. The matter is remanded for further proceedings consistent with this
order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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