DocketNumber： 14-4116-cv
Filed Date： 6/3/2016
Status： Precedential
Modified Date： 6/7/2016
14‐4116‐cv
Figueroa v. Mazza et al.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 14‐4116‐cv
ELI SAMUEL FIGUEROA, A/K/A ELI SAMUEL,
Plaintiff‐Appellant,
v.
DONNA MARIE MAZZA, INDIVIDUALLY AND AS A DETECTIVE WITH THE
NEW YORK CITY POLICE DEPARTMENT, CHRISTOPHER KAROLKOWSKI,
INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE
DEPARTMENT, TODD NAGROWSKI, INDIVIDUALLY AND AS A DETECTIVE
WITH THE NEW YORK CITY POLICE DEPARTMENT, JOSEPH FAILLA,
INDIVIDUALLY AND AS A DETECTIVE WITH THE NEW YORK CITY POLICE
DEPARTMENT, AND DETECTIVE DENNIS CHAN, INDIVIDUALLY AND AS A
DETECTIVE WITH THE NEW YORK CITY POLICE DEPARTMENT,
Defendants‐Appellees.*
________
Appeal from the United States District Court
for the Eastern District of New York
______
* The Clerk of Court is directed to amend the official caption to conform
with the caption above.
ARGUED: OCTOBER 22, 2015
DECIDED: JUNE 3, 2016
AMENDED: JUNE 3, 2016
________
Before: KEARSE, WALKER, and CABRANES, Circuit Judges.
________
We consider here whether defendants‐appellees are, as the
District Court determined, entitled to judgment as a matter of law
on plaintiff‐appellant’s claims for false arrest, excessive force,
assault, failure to intervene, and unlawful entry. We conclude that
defendants‐appellees are entitled to the protection of qualified
immunity with respect to the false arrest claims and that they did
not use excessive force or commit an assault in arresting plaintiff‐
appellant. We also conclude, however, that the claims of failure to
intervene and unlawful entry present issues of fact that must be
resolved by a jury.
Plaintiff‐appellant Eli Samuel Figueroa appeals a September
30, 2014 judgment of the United States District Court for the Eastern
District of New York (Jack B. Weinstein, Judge) entering judgment as
a matter of law in favor of defendants‐appellees Donna Marie
Mazza, Christopher Karolkowski, Todd Nagrowski, Joseph Failla,
and Dennis Chan, each a detective with the New York City Police
Department.
In the proceeding below, plaintiff asserted claims under 42
U.S.C. § 1983 and state law for false arrest, excessive force, assault,
failure to intervene, and unlawful entry, all arising out of his arrest
2
on June 30, 2010. The District Court granted summary judgment as
to the claims of unlawful entry. The other claims were tried to a
jury. Following a verdict in plaintiff’s favor on the counts of false
arrest, excessive force, and assault, and a mistrial on the count of
failure to intervene, the District Court granted judgment to
defendants under Federal Rule of Civil Procedure 50(b). Plaintiff
appeals the judgment as to each claim and further asserts that the
District Court “abused its discretion” in dismissing unnamed
defendants from the case and closing discovery.
We agree with the District Court’s disposition of plaintiff’s
false arrest claims. The trial record establishes that a reasonable law
enforcement officer could have concluded that there existed
probable cause to arrest plaintiff on the evening of June 30, 2010;
accordingly, defendants can claim the protection of qualified
immunity. We also conclude, as did the District Court, that the force
used in effecting plaintiff’s arrest was reasonable as a matter of law,
and we find no error in the District Court’s dismissal of unnamed
defendants or discovery rulings. We thus AFFIRM the judgment
insofar as it disposed of plaintiff’s claims for false arrest, excessive
force, and assault, dismissed unnamed defendants, and refused to
permit further discovery.
We do not agree, however, with the District Court’s
disposition of plaintiff’s claims for failure to intervene and unlawful
entry. The District Court erred in concluding, as a matter of law,
that defendants had no realistic opportunity to intervene in an
alleged assault on plaintiff by an unidentified police officer and that
3
plaintiff lacked a legitimate expectation of privacy in his mother’s
apartment. Accordingly, we VACATE so much of the judgment as
rejected plaintiff’s failure‐to‐intervene and unlawful‐entry claims as
a matter of law and REMAND for such further pretrial proceedings
as may be appropriate in the circumstances, or for trial.
Judge KEARSE concurs in part and dissents in part in a
separate opinion.
________
ROBERT MILTON RAMBADADT (Rosa Barreca, on the
brief), The Rambadadt Law Office, New York, NY,
for Plaintiff‐Appellant.
ELIZABETH S. NATRELLA (Pamela Seider Dolgow,
on the brief), for Zachary W. Carter, Corporation
Counsel of the City of New York, New York, NY,
for Defendants‐Appellees.
________
JOSÉ A. CABRANES, Circuit Judge:
We consider here whether defendants‐appellees are, as the
District Court determined, entitled to judgment as a matter of law
on plaintiff‐appellant’s claims for false arrest, excessive force,
assault, failure to intervene, and unlawful entry. We conclude that
defendants‐appellees are entitled to the protection of qualified
immunity with respect to the false arrest claims and that they did
not use excessive force or commit an assault in arresting plaintiff‐
4
appellant. We also conclude, however, that the claims of failure to
intervene and unlawful entry present issues of fact that must be
resolved by a jury.
Plaintiff‐appellant Eli Samuel Figueroa (“Samuel”) appeals a
September 30, 2014 judgment of the United States District Court for
the Eastern District of New York (Jack B. Weinstein, Judge) entering
judgment as a matter of law in favor of defendants‐appellees Donna
Marie Mazza (“Mazza”), Christopher Karolkowski (“Karolkowski”),
Todd Nagrowski (“Nagrowski”), Joseph Failla (“Failla”), and
Dennis Chan (“Chan”) (jointly, “defendants”), each a detective with
the New York City Police Department.
In the proceeding below, Samuel asserted claims under 42
U.S.C. § 1983 and state law for false arrest, excessive force, assault,
failure to intervene, and unlawful entry, all arising out of his arrest
on June 30, 2010. The District Court granted summary judgment as
to the claims of unlawful entry. The other claims were tried to a
jury. Following a verdict in Samuel’s favor on the counts of false
arrest, excessive force, and assault, and a mistrial on the count of
failure to intervene, the District Court granted judgment to
defendants under Federal Rule of Civil Procedure 50(b). Samuel
appeals the judgment as to each claim and further asserts that the
District Court “abused its discretion” in dismissing unnamed
defendants from the case and closing discovery.
We agree with the District Court’s disposition of Samuel’s
false arrest claims. The trial record establishes that a reasonable law
5
enforcement officer could have concluded that there existed
probable cause to arrest Samuel on the evening of June 30, 2010;
accordingly, defendants can claim the protection of qualified
immunity. We also conclude, as did the District Court, that the force
used in effecting Samuel’s arrest was reasonable as a matter of law,
and we find no error in the District Court’s dismissal of unnamed
defendants or discovery rulings. We thus AFFIRM the judgment
insofar as it disposed of Samuel’s claims for false arrest, excessive
force, and assault, dismissed unnamed defendants, and refused to
permit further discovery.
We do not agree, however, with the District Court’s
disposition of Samuel’s claims for failure to intervene and unlawful
entry. The District Court erred in concluding, as a matter of law,
that defendants had no realistic opportunity to intervene in an
alleged assault on Samuel by an unidentified police officer and that
Samuel lacked a legitimate expectation of privacy in his mother’s
apartment. Accordingly, we VACATE so much of the judgment as
granted judgment to defendants on Samuel’s failure‐to‐intervene
and unlawful‐entry claims and REMAND for such further pretrial
proceedings as may be appropriate in the circumstances, or for trial.
6
BACKGROUND
I. The Facts1
On June 29, 2010, a Duane Reade pharmacy in Brooklyn
received eleven phone calls from an unidentified woman. App. 222,
679‐81; SPA 8.2 The calls, which were fielded by an employee
named Esteban Arias, concerned an order for photographs that had
been placed at the pharmacy. App. 222, 230‐33. The caller
“plead[ed]” that Arias locate the order in Duane Reade’s system and
delete it without developing the photos. App. 222.
Arias tracked down the photos, which apparently had already
been developed. He intended to throw them away, as the caller had
directed, but hesitated when he discerned their subject matter. App.
232. The photos appeared to have been taken in a public restroom.
They depicted a young boy, perhaps two years old, naked and
apparently distressed. Some showed close‐up images of the boy’s
genitals and anus. App. 124‐30, 222, 1040‐57. In each, a date‐
stamped money order and a copy of the June 25, 2010 New York
Daily News appeared in the background. App. 124‐25, 222.
Arias called the police. Officers responded and viewed the
photos themselves. Some, noting the presence of the date‐stamped
1 We view the facts in the light most favorable to Samuel. See Runner v.
N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009).
2 References to “App.” are to plaintiff‐appellant’s appendix. References to
“SPA” are to the special appendix.
7
money order and newspaper, suspected that they were so‐called
“proof‐of‐life” photos—that is, photos taken to establish that a
missing child is still alive, with the aim of securing a ransom. App.
510. Others thought that the photos might be related to sex
trafficking, App. 261, or child pornography, App. 222. Concluding
that “urgent[ ]” action was needed to locate the child and ensure his
safety, App. 260‐61, 275, a number of officers (including the five
named defendants) from numerous divisions began investigating.
By the next day police had viewed security footage from the
pharmacy showing that a young woman had ordered the photos on
June 26, 2010.3 App. 244‐45.
In the meantime, other officers tried to determine who owned
the phone that had been used to call the pharmacy. They learned
that on June 28, 2010, a complaint had been lodged with the
department under the same phone number. App. 271, 303, 620. The
complainant had identified himself as “Eli Samuel.”
Samuel had filed the complaint on behalf of a woman named
Shirley Saenz (“Saenz”) on the ground that Saenz had recently
reported to the police suspected child abuse, but her claim had not
been taken seriously. App. 595‐96. More particularly, Saenz had
told police that she thought her son’s father was abusing the boy
during weekend visits. App. 105, 111‐12. Suspecting abuse, she had
documented her son’s pre‐visitation physical condition by taking
3 Police had also ascertained that the photos had been taken in the
restroom of a McDonald’s restaurant. App. 264‐65.
8
photos of him while he was unclothed.4 App. 104. But the police
had been of little help, prompting Samuel—a rabbi and spiritual
advisor who was providing financial aid and guidance to Saenz,
App. 102‐03, 536‐40—to complain. Samuel’s complaint also accused
Saenz’s mother, Beatrice Saenz (“Beatrice”), of harassment.5 App.
304, 596.
Although this information might have suggested that the
Duane Reade photos had not been taken for a nefarious purpose,
police continued to investigate the case as a potential kidnapping.
App. 416. Detective Nagrowski used the information in Samuel’s
complaint to locate Beatrice.6 Along with six members of the
Brooklyn South Homicide Task Force (the “Task Force”), he
interviewed her at her residence around 8:00 p.m. on June 30, 2010.
App. 270‐71, 311. Beatrice told Nagrowski that Saenz was her
daughter and, having been shown the photos from Duane Reade,
4 In April 2010, a judge of the Kings County Family Court, having learned
that Saenz was taking explicit photographs of her son for this purpose, had
directed that she stop the practice lest she be “prosecuted for child pornography”
and lose custody of the child. App. 150‐54. But this was not known to the
officers at the time of Samuel’s arrest and was not relied on by the District Court
in ruling on defendants’ Rule 50 motion. Figueroa v. Mazza, 59 F. Supp. 3d 481,
491 (E.D.N.Y. 2014).
5 With one exception, discussed below in note 6, defendants do not
contest that all relevant officers had knowledge of Samuel’s complaint and
Saenz’s report at all relevant times. See Defs.’ Br. 33.
6 Though defendants suggest otherwise, see Defs.’ Br. 15; App. 309, it
appears that, at the time Nagrowski interviewed Beatrice, he was aware that
Samuel had lodged a complaint against her, see App. 998.
9
that the child was her grandson. App. 272‐74. She went on to say
that she had recently kicked Saenz out of her home and that Saenz
had joined a cult led by someone named “Eli Samuel.” App. 274.
According to Beatrice, she had noticed one day that her daughter
had sustained a number of bruises. Confronted about her injuries,
Saenz had said that Samuel had inflicted them while exorcising
demons from her. Id. Beatrice also informed Nagrowski that she
and Saenz were engaged in a legal battle for visitation rights
concerning her grandson, App. 307, and that Saenz was currently
living with a friend named Isabel Romero, App. 311‐12.
Nagrowski and the other officers proceeded to Romero’s
apartment. There they found Romero, who told them that Saenz
and her child had been in the apartment that morning; at the time,
however, she did not know where they were. App. 280, 999.
While Nagrowski and the members of the Task Force were
interviewing Beatrice and Romero, other officers were trying to
locate Samuel. They tracked the location of his phone to an
apartment in Manhattan (which turned out to be Samuel’s
mother’s). App. 417, 619. Officers headed to the apartment around
10:00 p.m. At the same time—having not yet discounted the
possibility that Saenz’s child had been kidnapped—a hostage
negotiator called Samuel’s phone. App. 416‐18, 620‐22.
Samuel answered, and the negotiator asked him about the
complaint he had filed with the department. Samuel stated, as he
had in the complaint, that Saenz’s child was being abused and the
10
police were failing to appropriately respond. App. 621. The
negotiator told Samuel that Saenz and her child had been kidnapped
and asked him to come to the 72nd Precinct; Samuel responded that
they had not been kidnapped and that he would not come to the
precinct willingly. He then hung up. App. 621‐24.
A short time later, officers knocked on the door of Samuel’s
mother’s apartment. According to Samuel, his mother opened the
door a foot or two; Samuel, seeing Detectives Karolkowski and
Failla, stepped in front of her and tried to shut it, but Karolkowski
forced it open. App. 627‐28. According to defendants, Samuel
invited them in. App. 428.
Karolkowski and Failla, along with Detective Mazza, entered
the apartment, and Karolkowski and Failla approached Samuel.
App. 629. Karolkowski “gripped” Samuel’s shoulder. Id. Without
placing him in handcuffs, officers led Samuel out of the apartment
and down a flight of stairs to the street. App. 636. Samuel did not
fight back, but by his own admission he “resist[ed],” App. 640, by
stiffening his legs as the officers “pushed” him along, App. 633.
This use of light force caused Samuel no injury. App. 726.
Once outside, the officers placed Samuel in the backseat of an
unmarked police car. Failla and Detective Chan were sitting in
front. App. 640‐41. According to Samuel’s trial testimony, an
unidentified officer suddenly opened the cruiser’s back door,
grabbed Samuel, and punched him a number of times. App. 643‐44.
Samuel reenacted this event during trial. Based on his
11
demonstration, Judge Weinstein stated on the record that the assault
lasted between ten and twenty seconds, nearer to ten than twenty.
App. 931. But another witness testified that the assault lasted at
least one minute and as many as two. App. 562. Neither Failla nor
Chan, sitting in front, tried to intercede. App. 643‐44.
Shortly after Samuel’s arrest, police located the child in the
Duane Reade photos. He had not been kidnapped or, indeed,
harmed at all; he had been with his mother. The two were found
safe late at night on June 30, 2010. App. 505‐06. The lone charge
against Samuel—endangering the welfare of a child, in violation of
N.Y. Penal Law § 260.10—was eventually dropped. Figueroa v.
Mazza, 59 F. Supp. 3d 481, 485 (E.D.N.Y. 2014); Pl.’s Br. 19.
II. The District Court Proceeding
Samuel filed suit against the City of New York and a number
of individual officers, bringing claims under 42 U.S.C. § 1983 and
New York law for Fourth Amendment and state‐law violations.7 As
7 Title 42 of the United States Code, section 1983, creates a private right of
action for damages against a person who, acting under color of state law,
deprives another of a right secured by the laws of the United States. Rehberg v.
Paulk, 132 S. Ct. 1497, 1501 (2012). It provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
12
relevant here, he sought relief on four theories: that (1) Mazza,
Nagrowski, Karolkowski, Failla, and Chan arrested him without
probable cause; (2) Karolkowski and Failla used excessive force (and
committed an assault under state law) while arresting him; (3) Failla
and Chan failed to intervene when an unidentified officer assaulted
him following his arrest; and (4) Mazza, Karolkowski, Failla, and
Chan unlawfully entered his mother’s apartment without a warrant.
See Figueroa, 59 F. Supp. 3d at 485; Third Am. Compl. at 22‐25,
Figueroa v. Mazza, No. 11 Civ. 3160 (JBW) (E.D.N.Y. Apr. 25, 2014),
ECF No. 107.
Defendants moved for summary judgment. See Mem. Supp.
Mot. Summ. J., Figueroa v. Mazza, No. 11 Civ. 3160 (JBW) (E.D.N.Y.
July 31, 2014), ECF No. 146. The District Court granted their
motions as to the § 1983 unlawful‐entry claims on the ground that
Samuel did not reside in his mother’s apartment and consequently
lacked a reasonable expectation of privacy in the property. Tr. Oral
Ruling at 9, Figueroa v. Mazza, No. 11 Civ. 3160 (JBW) (E.D.N.Y.
Aug. 21, 2014), ECF No. 220. The remaining claims were tried to a
jury, which returned verdicts against all defendants on the § 1983
false arrest claims and against Karolkowski and Failla on the § 1983
excessive force and state‐law assault claims. Figueroa, 59 F. Supp. 3d
at 487. The jury failed to reach a verdict on the § 1983 failure‐to‐
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.
13
intervene claims against Failla and Chan, and a mistrial was
declared with respect to those claims only. Id.
Following the verdict, defendants moved for relief under
Federal Rule of Civil Procedure 50(b). Concluding that the evidence
submitted to the jury was insufficient to support a verdict as to any
of the claims, including the failure‐to‐intervene claims on which the
jury could not reach a verdict, the District Court granted defendants’
motions and entered judgment in their favor.
III. Samuel’s Appeal
Samuel timely appealed the District Court’s September 30,
2014 judgment. He contends that the District Court erred in
entering judgment as a matter of law in favor of defendants on his
claims for (1) false arrest, (2) excessive force and assault, (3) failure
to intervene, and (4) unlawful entry. He also challenges a May 1,
2014 order of the District Court denying his request for further
discovery.
We find no error in the District Court’s decision to deny
Samuel further discovery, and we agree with the District Court that
defendants were entitled to judgment as a matter of law on Samuel’s
false arrest, excessive force, and assault claims. We conclude,
however, that the District Court erred in (1) granting summary
judgment in defendants’ favor on Samuel’s unlawful‐entry claims,
and (2) granting Rule 50(b) relief in defendants’ favor on Samuel’s
failure‐to‐intervene claims. As to these claims, we vacate the
judgment and remand for further proceedings.
14
DISCUSSION
We review de novo both the District Court’s grant of summary
judgment and its grant of relief under Rule 50(b), “construing all
facts in favor of the nonmoving party.” Runner v. N.Y. Stock Exch.,
Inc., 568 F.3d 383, 386 (2d Cir. 2009). Summary judgment may be
granted only “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is one
capable of influencing the case’s outcome under governing
substantive law, and a “genuine” dispute is one as to which the
evidence would permit a reasonable juror to find for the party
opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “The standard for post‐verdict judgment as a matter of
law is the same as for summary judgment under Fed. R. Civ. P. 56.”8
8 We pause to note that, although the standard applied is the same in each
case, Rule 50 motions and summary‐judgment motions are decided on different
evidentiary records. Because “summary judgment motions are usually made
before trial,” they are “decided on documentary evidence.” Anderson, 477 U.S. at
251 (internal quotation marks omitted). It follows from the purpose of the
summary‐judgment device—to determine whether there exists a genuine issue of
material fact for trial—that any evidence considered on summary judgment must
be reducible to admissible form. See Fed. R. Civ. P. 56(c)(2); Santos v. Murdock,
243 F.3d 681, 683 (2d Cir. 2001). By examining such documentary evidence as
could be admitted at trial, a court adjudicating a summary‐judgment motion
determines whether any reasonable juror could, if presented with that evidence
at trial, find for the nonmovant.
The Rule 50 inquiry differs. Because “[Rule 50] motions are made at
trial,” they are decided not on what evidence could have been admitted, but on
“the evidence that has been admitted.” Anderson, 477 U.S. at 251 (emphasis
supplied) (internal quotation marks omitted); see Rothstein v. Carriere, 373 F.3d
15
Runner, 568 F.3d at 386 (internal quotation marks omitted); see Fed.
R. Civ. P. 50(a)‐(b).
The District Court’s discovery order is reviewed with a lighter
touch. District courts have “wide latitude to determine the scope of
discovery”; a discovery ruling will warrant relief on appeal only if it
constitutes an “abuse of discretion.” In re “Agent Orange” Prod. Liab.
Litig., 517 F.3d 76, 103 (2d Cir. 2008).
I. False Arrest
The District Court granted Rule 50(b) relief on Samuel’s false
arrest claims on the ground that defendants had probable cause to
275, 284 (2d Cir. 2004) (“[O]nce a trial has occurred, the focus is on the evidence
that was actually admitted at trial, not on the earlier summary judgment
record.”). What we care about at the Rule 50 stage is not whether the nonmovant
has managed to collect evidence sufficient to support his cause, but whether he
has actually put that evidence before the jury charged with deciding the dispute.
Evidence kept hidden under a bushel, never brought out to enlighten the
factfinder, does not figure in the calculus.
For that reason, we are unable to endorse our dissenting colleague’s view
that “[the record that] should properly be considered on the issue of arguable
probable cause [as to Samuel’s false arrest claims] . . . includes all relevant
evidence in the district court’s record, not just the evidence admitted at trial.”
Dissenting Op. at 2. Samuel brought his false arrest claims to trial and, at trial,
offered evidence to support them. In considering defendants’ Rule 50 motion as
to those claims, the District Court properly confined its review to the trial record,
see Figueroa, 59 F. Supp. 3d at 486‐87, and we must do the same in considering the
claims on appeal. Accordingly, our analysis of Samuel’s false arrest claims does
not take account of evidence—such as a series of written reports from a Detective
Hawkins concerning Saenz’s mid‐June complaint to police—that was never put
before the jury, but on which our dissenting colleague thinks it appropriate to
rely. See Dissenting Op. at 3.
16
arrest him. We need not determine whether probable cause was
indeed present. See Sudler v. City of New York, 689 F.3d 159, 168 (2d
Cir. 2012) (“We may affirm on any ground supported by the
record.”). Even if it was not, defendants are entitled to judgment as
a matter of law on the basis of qualified immunity because, in light
of the facts known to police at the time of Samuel’s arrest, an officer
“of reasonable competence” could have concluded that the arrest
was justified by probable cause. See Malley v. Briggs, 475 U.S. 335,
341 (1986).
The existence of probable cause to arrest—even for a crime
other than the one identified by the arresting officer—will defeat a
claim of false arrest under the Fourth Amendment. Devenpeck v.
Alford, 543 U.S. 146, 152‐54 (2004). “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 omitted).
Probable cause is a “fluid” standard that “does not demand hard
certainties or mechanistic inquiries”; nor does it “demand that an
officer’s good‐faith belief that a suspect has committed or is
committing a crime be correct or more likely true than false.” Zalaski
v. City of Hartford, 723 F.3d 382, 389, 390 (2d Cir. 2013) (citations and
internal quotation marks omitted). Rather, it requires only facts
establishing “the kind of fair probability” on which a “reasonable
and prudent” person, as opposed to a “legal technician[ ],” would
17
rely. Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (internal quotation
marks omitted).
Even if we determine that an officer made an arrest without
probable cause, our inquiry concerning that officer’s individual
liability is not at an end. The defense of qualified immunity “shields
law enforcement officers from § 1983 claims for money damages
provided that their conduct does not violate clearly established
constitutional rights of which a reasonable person would have been
aware.” Zalaski, 723 F.3d at 388. The doctrine aims to give officials
room to act with confidence in gray areas by absolving from
personal liability “all but the plainly incompetent or those who
knowingly violate the law.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (quoting Malley, 475 U.S. at 341).
In the context of § 1983 actions predicated on allegations of
false arrest, we have held that an arresting officer is entitled to
qualified immunity so long as “arguable probable cause” was
present when the arrest was made. Zalaski, 723 F.3d at 390 (internal
quotation marks omitted). A police officer has arguable probable
cause “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 omitted). Put another way, an
arresting officer will find protection under the defense of qualified
immunity unless “no reasonably competent officer” could have
concluded, based on the facts known at the time of arrest, that
probable cause existed. See Malley, 475 U.S. at 341.
18
This point merits emphasis. When a plaintiff alleges that a
law enforcement officer’s official conduct renders him personally
liable in damages, our inquiry is not whether the officer should have
acted as he did. Nor is it whether a singular, hypothetical entity
exemplifying the “reasonable officer”—a creature akin to the
“reasonable man” of the law of torts, see Restatement (Second) of
Torts § 283 cmt. c (Am. Law Inst. 1975)—would have acted in the
same way. It is instead 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. See Malley, 475 U.S. at 341; compare Walczyk v. Rio, 496 F.3d
139, 154 n.16 (2d Cir. 2007), with id. at 169‐70 (Sotomayor, J.,
concurring).
Applying this standard, we hold that defendants are entitled
to qualified immunity on Samuel’s claims of false arrest. We
address, first, why it was reasonable for the arresting officers to have
concluded that a crime had been committed; and, second, why it
was reasonable for them to have concluded that Samuel committed
it.
A. Defendants’ Belief that a Crime Had Been Committed
Samuel does not appear to contest—and at all events, we have
no trouble concluding—that, early in their investigation, defendants
developed evidence sufficient to warrant a reasonable officer in the
belief that the child in the Duane Reade photos had been the victim
of a crime. Karolkowski testified that he had believed the pictures to
19
be proof‐of‐life photos—that is, photos taken to establish that a
kidnapped person is still alive and can be saved through payment of
a ransom. See App. 510. Absent some competing explanation for the
presence of the newspaper and date‐stamped money order—and
taking into account the photos’ disturbing content—the officers had
probable cause to believe that the boy had been kidnapped. We do
not understand Samuel to argue otherwise.
Other officers, in the early going, formed the conclusion that
the Duane Reade photos were examples of child pornography. See
App. 222‐23. That view was also justified. Though Samuel does not
appear to argue to the contrary, we pause to explain why.
Under New York law in effect at the time of the arrest, a
person would commit the offense of “promoting a sexual
performance by a child” if, “knowing the character and content
thereof, he produces, directs or promotes any performance which
includes sexual conduct by a child less than seventeen years of age,”
N.Y. Penal Law § 263.15 (McKinney 2001); a person would commit
the offense of “possessing a sexual performance by a child” if,
“knowing the character and content thereof, he knowingly has in his
possession or control any performance which includes sexual
conduct by a child less than sixteen years of age,” id. § 263.16
(McKinney 1996). As used in each statute, the term “performance”
includes photographs, id. § 263.00(4) (McKinney 2003), and the term
“sexual conduct” includes “lewd exhibition of the genitals,” id. §
263.00(3). The statute does not define “lewd exhibition of the
genitals,” but the New York courts have used a six‐factor test to
20
determine whether a given exhibition qualifies as “lewd”:
(1) whether the focal point of the visual depiction is on
the child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or a pose generally
associated with sexual activity;
(3) whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of the
child;
(4) whether the child is fully or partially clothed, or
nude;
(5) whether the visual depiction suggests sexual coyness
or a willingness to engage in sexual activity; [and]
(6) whether the visual depiction is intended or designed
to elicit a sexual response in the viewer.
People v. Horner, 752 N.Y.S.2d 147, 149‐50 (3d Dep’t 2002) (quoting
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub
nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)). Not all
of the elements described in the foregoing factors need be present
for a depiction to qualify. Id. at 150. A court must consider “the
combined effect of the setting, attire, pose and emphasis on the
genitals and whether it is designed to elicit a sexual response in the
viewer, albeit perhaps not the average viewer, but perhaps in the
pedophile viewer.” Id. (internal quotation marks omitted).
Applying this standard to the Duane Reade photos, we
conclude that the officers who viewed them at the outset of the
21
investigation had probable cause to believe that they constituted
child pornography (or, in the language of the New York statute, a
“sexual performance by a child”). In a number of the photos, the
child’s genitals are the primary object of focus; indeed, some photos
show nothing else save the child’s lower torso and upper thighs.
See, e.g., App. 1039, 1047; cf. United States v. Rivera, 546 F.3d 245, 249‐
50 (2d Cir. 2008) (applying the Dost factors and observing that the
photographic subject was depicted with “his genitals prominent at
or about the center of the frame”). In some, the child appears to be
unnaturally posed and the shot taken to capture only his genitalia,
perineum, and anus. See App. 1048‐50; cf. People v. Bimonte, 726
N.Y.S.2d 830, 836 (N.Y. Crim. Ct. 2001). In each photo, the child is
nude. The suggestion vel non of sexual “coyness” is, of course,
inapplicable in the case of a subject so young, see Wiegand, 812 F.2d
at 1244 (“The district court noted the unlikelihood of the 10‐year‐old
girl intending any sexual invitation by her pose.”), and though
officers had no direct way to divine whether the photographer
intended the photos to elicit a sexual response in the viewer, the
photos’ content permitted an inference of such intent.
Thus, when officers first viewed the Duane Reade photos,
they were justified in concluding that the photos qualified as
unlawful child pornography and that a violation of § 263.15,
§ 263.16, or both had been committed. Moreover, the determination
that an unknown person had produced child pornography would
easily have supported a reasonable conclusion that that person had
committed a separate offense, that of endangering the welfare of a
22
child, by “knowingly act[ing] in a manner likely to be injurious to
the physical, mental or welfare of” the boy in the photographs. N.Y.
Penal Law § 260.10(1); see People v. Pinkoski, 752 N.Y.S.2d 421, 425 (3d
Dep’t 2002).
Samuel’s principal argument is that, irrespective of what
defendants might reasonably have thought at the beginning of their
investigation, they had, by the time of his arrest, uncovered new
information that vitiated probable cause. More particularly, Samuel
argues that when the officers learned from Isabel Romero that Saenz
and her child had been together at Romero’s apartment on the
morning of June 30, it fatally undermined the hypothesis that the
child had been kidnapped (and proof‐of‐life photos taken) days
earlier. He also argues that, when officers came to realize that Saenz
had taken similar photos in the past for the avowed purpose of
demonstrating that the child’s father was abusing him, it should
have negated any reasonable belief that the images were
pornographic. See Pl.’s Br. 26‐27.
Samuel is correct in noting that an officer making a probable‐
cause determination is not at liberty to ignore evidence tending to
exculpate the suspect, see Panetta v. Crowley, 460 F.3d 388, 395 (2d
Cir. 2006), and that the officers were accordingly not entitled to
disregard the information from Romero or their knowledge of
Saenz’s earlier photos. But we nevertheless conclude that, even after
learning that Saenz had recently told police that she took nude
photos of her son to show that the boy’s father was abusing him,
officers of reasonable competence could have (1) disbelieved Saenz’s
23
explanation and concluded that there was probable cause to think
that the photos constituted child pornography, or (2) accepted
Saenz’s explanation but nevertheless concluded that those
responsible for the photos had endangered the welfare of a child.9
We turn first to whether the officers who arrested Samuel
could reasonably have doubted the truth of Saenz’s description of
the photos’ purpose. Her explanation plainly bears to some degree
on the reasonableness of the conclusion that the photos were
pornographic in nature. The question is whether that explanation so
thoroughly and reliably accounted for the officers’ earlier suspicions
that it negated any reasonable belief that probable cause existed.
We conclude that it did not. Probable cause does not
necessarily disappear simply because “an innocent explanation may
be consistent with” facts that an officer views as suspicious.10
Panetta, 460 F.3d at 395. The officers were not required to accept
Saenz’s account on faith. Rather, they were entitled to weigh her
explanation (along with its context: that Saenz included it in a report
to police doubtless lent it some credibility) against the facts on the
other side of the ledger.
9 In light of these conclusions, we need not determine whether a
reasonable officer could have determined that, notwithstanding Romero’s
statement that she had seen Saenz and her child on June 30, 2010, there was
probable cause to believe that the boy had been kidnapped.
10 We discuss below whether Saenz’s explanation was indeed “innocent”
or must necessarily have been viewed as such by a reasonable officer.
24
Those facts were unsettling. As discussed above, the photos,
considered by themselves, appeared to be examples of child
pornography. A person had called Duane Reade—eleven times—
“pleading” that the photographic order be deleted and the photos
not developed. SPA 8. From this, a police officer could have
inferred that the caller was desperate to ensure that nobody viewed
the photos—an inference consistent with the hypothesis that they
were contraband.
Of course, such agitation might also have resulted from
Saenz’s fear that the explicit photos of her son would not remain
private, and to that extent her calls to the pharmacy arguably
comported with her explanation of the photos’ purpose. But other
facts known to the officers did not. An officer might have
questioned, for instance, why a person legitimately concerned with
the child’s welfare would have forced him to submit to a series of
elaborately staged nude photos when the child was obviously in
some distress. See App. 1036‐57. So too might an officer have asked
why a person looking after the child’s interests would have stripped
him naked in the restroom of a McDonald’s, of all places, to
participate in the photo session. See App. 264‐65. Indeed, an officer
might well have hesitated to believe that a concerned mother would
have delivered such explicit photos of her child to be developed at a
pharmacy, where they were likely to be viewed by third parties
during processing. All in all, the photos of the child were so
disturbing, and the circumstances so bizarre, that it cannot be said
that no reasonable officer could have rejected Saenz’s explanation
25
notwithstanding its arguable consistency with the known facts.
Furthermore, even if defendants had been constrained to
accept Saenz’s account of the photos’ purpose—and thus could not
have concluded that they constituted child pornography11—a
reasonable officer could nonetheless have determined that those
responsible for the photos had endangered the child’s welfare in
violation of § 260.10(1). Viewed without knowledge of the
circumstances surrounding their creation, the photos appear to be
examples of child pornography. Even if Saenz’s subjective intent in
creating the photos took them outside the ambit of New York’s child
pornography statutes (and any and all reasonable officers would
have to so conclude), the fact remains that Saenz not only produced,
but took to a pharmacy for development, photos of her child that
were by all appearances pornographic.
An officer could have concluded that in so doing, Saenz
(along with anyone who had aided her) created a serious risk to the
child’s welfare in violation of § 260.10(1)—even if she did not intend
to do so, see People v. Fernandez, 5 N.Y.S.3d 436, 436 (1st Dep’t 2015)
(specific intent to cause injury is not an element of endangering the
11 We will assume that if a reasonable officer were to view these photos
knowing why they were produced, he would be forced to conclude that they are
not pornographic, see Horner, 752 N.Y.S.2d at 149 (reviewing court must consider
“whether the visual depiction is intended or designed to elicit a sexual response
in the viewer” (internal quotation marks omitted)), and that, accordingly, an
officer required to accept Saenz’s explanation of the photos’ provenance could
not reasonably have determined that § 263.15 or § 263.16 had been violated.
26
welfare of a child); People v. Vega, 712 N.Y.S.2d 283, 286 n.3 (N.Y.
Crim. Ct. 2000) (same), and even if the risk did not materialize into
actual harm, People v. Simmons, 699 N.E.2d 417, 418 (N.Y. 1998)
(“Actual harm to the child need not result for liability under
[§ 260.10(1)] to attach . . . .”). It should have been clear to Saenz that
Duane Reade employees would likely see the photos in the normal
course of developing them and that, in taking the photos to the
pharmacy, she was sharing with perfect strangers a series of images
of her son that bore the objective indicia of child pornography. We
cannot say that no reasonable officer could have concluded that
these facts, viewed in the light of governing law, provided probable
cause to believe that Saenz had “knowingly act[ed] in a manner
likely to be injurious to the physical, mental or moral welfare of” her
son. See N.Y. Penal Law § 260.10(1); Pinkoski, 752 N.Y.S.2d at 422,
425 (reversing trial court’s dismissal of indictment and reinstating
count of endangering the welfare of a child where the defendant
took explicit photographs of her five‐year‐old daughter and brought
them to be developed at a Wal‐Mart); cf. Ashcroft v. Free Speech Coal.,
535 U.S. 234, 249 (2002) (observing that the circulation of images that
constitute child pornography causes continuing harm to the children
portrayed).
In sum, we conclude that prior to arresting Samuel,
defendants could reasonably have concluded that they possessed
probable cause to believe that a crime had been committed.
27
B. Defendants’ Belief That Samuel Committed the Crime
Samuel argues that, even if defendants could reasonably have
concluded that Saenz’s child had been the victim of a crime, they
had no basis on which to conclude that Samuel had committed it.
We disagree.
At the time of Samuel’s arrest, officers possessed several
independent items of evidence linking him to the Duane Reade
photos and the suspected crime (or crimes). First, on the morning of
June 29, 2010, someone used Samuel’s phone to call Duane Reade—
eleven times—to request that the photos of Saenz’s son be deleted.
App. 222, 679‐81. It is true, as the District Court noted, that
defendants did not know that Samuel was present when these calls
were made (although he was). Figueroa, 59 F. Supp. 3d at 490. But
“for the purpose of qualified immunity and probable cause,” we do
not deny officers the benefit of “reasonable inferences [drawn] from
the facts they possess at the time of a seizure.” Cerrone v. Brown, 246
F.3d 194, 203 (2d Cir. 2001). Defendants, knowing that someone had
used Samuel’s phone to place a number of calls to the pharmacy,
could reasonably have concluded that Samuel was in some way
connected with the photos and probably had knowledge of the order
the caller was attempting to cancel.
The particulars of Samuel’s complaint to the police on June 28,
2010—particulars which, as he emphasizes, were known to the
officers, Pl.’s Br. 14, 24‐25—fortified this conclusion. Samuel had
lodged the complaint on behalf of Saenz, the mother of the child in
28
the Duane Reade photos. App. 272‐74, 596. Samuel had referred to
the police report made by Saenz in which she had disclosed to
officers her practice of photographing her son nude; he had also
revealed his awareness that explicit photographs of the boy had
been taken in the recent past. App. 596—597. This information
strengthened the link between Samuel and the photos.
Finally, during an interview with Detective Nagrowski,
Saenz’s mother Beatrice confirmed the connections between Samuel,
Saenz, and the child. Beatrice told Nagrowski that Saenz was the
mother of the boy in the photos and that Samuel not only knew
Saenz, but was a strong source of malign influence in her life. She
claimed that Saenz had become a member of his cult, and Samuel
had physically harmed her during the course of an exorcism. App.
272‐74. To be sure, defendants were not at liberty to accept these
assertions uncritically. Beatrice was, by her own admission,
involved in a custody fight with her daughter, App. 307, and
Nagrowski was aware that Samuel had filed a complaint with police
concerning Beatrice, App. 998. Accordingly, Beatrice had reason to
speak ill of Saenz and Samuel, and a reasonable officer might have
recognized that this bore on her credibility. But, at a minimum,
Nagrowski’s interview with Beatrice provided further confirmation
that Samuel was closely linked with Saenz and with the child in the
Duane Reade photos.
We need not decide whether this information, taken as a
whole, provided probable cause to conclude that Samuel had
committed the crimes discussed above by participating in the
29
creation of the photos or the attempt to have them developed. We
decide only that, at the time of his arrest, reasonable police officers
could have disagreed on the point. In view of Samuel’s close
association with Saenz, his knowledge of the explicit photos, and the
repeated use of his phone in the attempt to cancel the order at
Duane Reade, we cannot say that the officers who participated in his
arrest were either “plainly incompetent” or “knowingly violat[ing]
the law.” Mullenix, 136 S. Ct. at 308 (quoting Malley, 475 U.S. at 341).
Those officers are therefore entitled to the protection of qualified
immunity.
II. Excessive Force and Assault
The District Court granted Rule 50(b) relief in favor of
Karolkowski and Failla on Samuel’s excessive force and state‐law
assault claims,12 concluding that the force applied by the officers was
reasonable as a matter of law.13 Samuel argues that the Court erred
in so concluding. We disagree.
Whether the force used to effect an arrest is “reasonable” or
“excessive” turns on “a careful balancing of the nature and quality
12 These claims pertain to the conduct of defendants in apprehending
Samuel within his mother’s apartment and escorting him outside. They do not
relate to the incident during which Samuel allegedly was punched while sitting
in the police cruiser; the officer who is said to have perpetrated that assault has
never been identified.
13 A lawful arrest is not an assault or battery under New York law,
provided the force used is reasonable. See Cunningham v. United States, 472 F.
Supp. 2d 366, 381 (E.D.N.Y. 2007) (collecting New York cases).
30
of the intrusion on the individual’s Fourth Amendment interests
against the countervailing government interests at stake.” Graham v.
Connor, 490 U.S. 386, 396 (1989) (internal quotation marks omitted).
In conducting this balancing, we look to a number of factors,
including “the need for the application of force, the relationship
between the need and the amount of force that was used, the extent
of injury inflicted, and whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Johnson v.
Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251‐52 (2d Cir. 2001)
(internal quotation marks omitted).
Here, defendants did nothing more than “grip[ ]” Samuel’s
shoulders, App. 629, and “push[ ]” him out of his mother’s
apartment to the waiting police car, App. 633. The officers had need
to push Samuel along because he lightly resisted by stiffening his
legs, App. 639‐40, and their pushing caused him no injury, App. 726.
There is no suggestion in the record that this application of light
force was actuated by malice or a desire to cause harm.
Accordingly, every factor enumerated in Johnson weighs against
Samuel, who complains basically of the kind of de minimis physical
contact common to virtually every custodial arrest. See Graham, 490
U.S. at 396 (“[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.”). The District Court did not
err in overriding the jury’s verdict and entering judgment for
defendants on these claims.
31
III. Failure to Intervene
On Samuel’s failure‐to‐intervene claim, on which the jury
failed to reach a verdict, the District Court entered judgment for
Failla and Chan. Samuel argues that this was error, and we agree.
A police officer is under a duty to intercede and prevent
fellow officers from subjecting a citizen to excessive force, and may
be held liable for his failure to do so if he observes the use of force
and has sufficient time to act to prevent it. O’Neill v. Krzeminski, 839
F.2d 9, 11‐12 (2d Cir. 1988). Liability attaches on the theory that the
officer, by failing to intervene, becomes a “tacit collaborator” in the
illegality. See id.
The District Court concluded that, as a matter of law,
defendants did not have sufficient time to intercede when an
unidentified officer allegedly assaulted Samuel in the back of the
police cruiser. In support, it pointed to Samuel’s testimony
describing the attack. On the stand, Samuel made hand gestures
while stating, “boom boom boom boom boom.” App. 644. The
Court timed this description at roughly ten seconds (perhaps a bit
longer, but at all events “well under” twenty seconds). App. 931.
When an assault “take[s] place in ‘less than thirty seconds,’” wrote
the Court, officers who are present lack “sufficient time to intercede
in order to prevent the assault.” Figueroa, 59 F. Supp. 3d at 490
(quoting Sash v. United States, 674 F. Supp. 2d 531, 545 (S.D.N.Y.
2009)).
For three reasons, we conclude that this was error. First,
32
Samuel never claimed that he was reenacting the duration of the
attack. He was asked to describe what happened after the officers
placed him in a police car. App. 642. In construing the evidence in
the light most favorable to Samuel, the District Court should not
have interpreted his hand gestures as a formal demonstration or
reenactment of the total time frame of the punches.
Second, although Samuel’s gestures at trial apparently lasted
less than twenty seconds, a separate witness present during the
event testified that the assault went on for at least one minute and as
many as two. See App. 562. Defendants do not argue that Samuel’s
demonstration qualifies as a judicial admission that conclusively
establishes the duration of the alleged assault. See Hoodho v. Holder,
558 F.3d 184, 191 (2d Cir. 2009) (defining judicial admissions as
“formal concessions in the pleadings in the case or stipulations by a
party or counsel that have the effect of withdrawing a fact from
issue and dispensing wholly with the need for proof of the fact”
(quoting 2 McCormick on Evidence § 254 (6th ed. 2006))). Nor is
there any basis for treating it as such. A party that admits on the
witness stand a fact damaging to his case is ordinarily free to
contradict that fact through the testimony of other witnesses and
argue that their testimony should be believed over his own. Such an
argument might cut no ice with the finder of fact, but the matter lies
squarely in the jury’s province. Lee v. Smith & Wesson Corp., 760 F.3d
523, 528 (6th Cir. 2014) (holding that a plaintiff’s testimony did not
qualify as a judicial admission and observing that a party “should be
able to testify honestly to his memory of what happened and still
33
have his lawyer argue that on the evidence as a whole it is more
probable than not that the memory was faulty”); Keller v. United
States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (“When a party testifying
at trial or during a deposition admits a fact which is adverse to his
claim or defense, it is generally preferable to treat that testimony as
solely an evidentiary admission [rather than a conclusive judicial
admission].”); cf. Keepers, Inc. v. City of Milford, 807 F.3d 24, 34‐35 (2d
Cir. 2015) (stating that deposition testimony given pursuant to
Federal Rule of Civil Procedure 30(b)(6) does not “bind a corporate
party irrevocably to whatever its designee happens to recollect
during her testimony”). Here, in holding Samuel to his own
testimony, construing that testimony unfavorably, and disregarding
more favorable evidence given by a different witness, the District
Court strayed into the realm of improper fact‐finding.
The District Court again strayed into that realm when stating
that the assault consisted of only five punches. See Figueroa, 59 F.
Supp. 3d at 487. Samuel presented eyewitness testimony at trial that
the assault involved between six and twelve punches, App. 555, and
that it included not only the period of punching but an additional
period during which the unidentified officer screamed obscenities at
him, grabbed him by the neck, choked him, and shook him, App.
647. To consider the evidence in the light most favorable to Samuel,
the District Court should have analyzed the attack as a one‐to‐two‐
minute incident, consisting of as many as twelve punches following
a period of choking and shaking.
These conclusions require us to vacate so much of the
34
judgment as dismissed Samuel’s failure‐to‐intervene claims and
remand to the District Court.14 We pause, however, to address a
third error in the District Court’s analysis, on the theory that it may
prove instructive should Samuel’s claims be retried.
Having found that the alleged assault on Samuel lasted less
than twenty seconds, the District Court granted judgment for Failla
and Chan because “[a]ssaults that take place in ‘less than thirty
seconds’ do not offer police officers sufficient time to intercede in
order to prevent the assault.” Figueroa, 59 F. Supp. 3d at 490
(quoting Sash, 674 F. Supp. 2d at 545). We think this bright‐line rule
unsupportable. Failure‐to‐intervene claims can arise out of a
limitless variety of factual circumstances. In each case, the question
whether a defendant had a realistic chance to intercede will turn on
such factors as the number of officers present, their relative
placement, the environment in which they acted, the nature of the
assault, and a dozen other considerations. Among these
considerations, of course, the assault’s duration will always be
relevant and will frequently assume great importance. See, e.g.,
O’Neill, 839 F.2d at 11‐12 (holding that the defendant officer lacked
time to intervene because a different officer hit the plaintiff three
times in “rapid succession”). But this does not permit distillation of
a hard‐and‐fast temporal cutoff of the kind relied on by the District
Court. Instead, courts must evaluate each case on its own facts,
14 Failla and Chan do not argue that, if a constitutional violation indeed
occurred, they are entitled to qualified immunity.
35
keeping in mind that circumstances other than an assault’s duration
might bear significantly on an officer’s ability to stop it from
happening. The essential inquiry is whether, under the
circumstances actually presented, an officer’s failure to intervene
permits a reasonable conclusion that he became a “tacit
collaborator” in the unlawful conduct of another. See id.
Turning to the facts before us, we conclude that Samuel’s
failure‐to‐intervene claims—even assuming that the assault lasted
less than twenty seconds—were for the jury to decide. Taking into
account all the circumstances and viewing them favorably to
Samuel, as required in reviewing a trial court’s decision to override
the role assigned to the jury, we cannot hold that the assault
occurred so quickly that the defendant officers lacked time to
intercede as a matter of law. Samuel testified that, at the time he
was assaulted, he was sitting in the back of a police cruiser and
Failla and Chan were sitting in front. App. 643‐44. Nothing in the
record suggests that they would have for any reason found it
difficult to reach into the backseat, exit the vehicle to assist Samuel,
or communicate with the officer who committed the assault. Yet—
according to Samuel’s testimony—both officers sat passively
through the entire event. App. 643‐44, 931. In light of the officers’
placement relative to Samuel, the apparent absence of any obstacles
that might have hindered their ability to intercede, and the assault’s
stated duration, a reasonable juror could infer that defendants
became, by their inaction, “tacit collaborator[s]” in the unlawful
conduct alleged.
36
In sum, in entering judgment for defendants on Samuel’s
failure‐to‐intervene claims, the District Court erred by engaging in
improper fact‐finding and by misapplying the relevant legal
standard. As to those claims, the judgment will be vacated and the
cause remanded.
IV. Unlawful Entry into Samuel’s Mother’s Apartment
On Samuel’s claim of unlawful entry, the District Court
granted judgment for defendants on the ground that Samuel lacked
a legitimate expectation of privacy in his mother’s apartment. We
hold that this was error.
A person’s ability to assert a claim of unlawful entry under
the Fourth Amendment depends on whether he “has a legitimate
expectation of privacy in the invaded place.” Rakas v. Illinois, 439
U.S. 128, 143 (1978). Though a person might subjectively expect
privacy in a particular location, that “subjective expectation of
privacy is legitimate” only “if it is one that society is prepared to
recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 95‐96
(1990) (internal quotation marks omitted).
The Fourth Amendment specifically provides that “the
people” shall be secure against “unreasonable searches” in “their”
houses, U.S. Const. amend. IV, but it has long been recognized that a
person may claim a legitimate expectation of privacy in a dwelling
other than his own. The Supreme Court held in Minnesota v. Olson,
495 U.S. at 98, that an “overnight guest” can legitimately expect
privacy in his host’s home. The Court has never extended this
37
holding to embrace all social guests, but it is clear that “overnight”
status is not a precondition to a guest’s ability to contest a search of
his host’s dwelling. See Minnesota v. Carter, 525 U.S. 83, 90 (1998)
(holding that a guest lacked a legitimate expectation of privacy in his
host’s apartment because there was nothing “similar to the overnight
guest relationship in Olson to suggest a degree of acceptance into the
household” (emphasis supplied)); United States v. Fields, 113 F.3d
313, 321 (2d Cir. 1997) (“Although Olson establishes that status as an
overnight guest can give rise to a legitimate expectation of privacy, it
does not suggest that such status is required before a guest can have
privacy in the home.” (citation omitted)).
In determining whether a guest who is not an “overnight
guest” may legitimately expect privacy in his host’s home, we look
to a number of different factors. In Minnesota v. Carter, for example,
the Supreme Court focused on whether the guest’s visit was social
or commercial in nature, the length of time the guest spent on the
premises, and the presence or absence of a previous connection
between the guest and the householder. 525 U.S. at 90‐91. Courts
have also considered whether the guest possesses a key to the
dwelling, is permitted to make use of the premises in the
householder’s absence, Fields, 113 F.3d at 320, or keeps belongings in
the host’s home, see United States v. Rhiger, 315 F.3d 1283, 1287 (10th
Cir. 2003). These and related considerations shed useful light on our
ultimate inquiry: whether the host has so liberally shared his own
privacy interest with his guest that it shelters the guest against
unreasonable government intrusion.
38
With these principles in mind, we turn to the particulars of
Samuel’s relationship with his mother’s apartment. During his
deposition, Samuel stated that he was “visiting” his mother on the
evening of June 30, 2010 and did not live in her apartment (or,
indeed, in the same borough), but he would not say where he did
live. Dep. Eli Samuel at 18‐20, Figueroa v. Mazza, No. 11 Civ. 3160
(JBW) (E.D.N.Y. July 31, 2014), ECF No. 148‐1. He also stated that he
was about to leave the apartment at the time the officers arrived, but
he did not say whether he intended to return that night. Id. at 24.
After defendants moved for summary judgment, Samuel submitted
an affidavit—which the District Court did not exclude—
supplementing this information. In the affidavit, he stated that for
more than a year prior to his arrest, he had been staying at his
mother’s apartment three nights a week.15 Decl. Eli Samuel at 2 ¶ 11,
Figueroa v. Mazza, No. 11 Civ. 3160 (JBW) (E.D.N.Y. Aug. 18, 2014),
ECF No. 157‐9.
The District Court concluded that this information, even
viewed in the light most favorable to Samuel, did not demonstrate
that he possessed a legitimate expectation of privacy in his mother’s
apartment. In an oral ruling granting defendants’ motion for
summary judgment, the Court observed that Samuel “was not a
15 A party may not create an issue of fact that will defeat summary
judgment by submitting an affidavit that contradicts the party’s prior deposition
testimony, but it is permissible to clarify by affidavit ambiguous or incomplete
deposition testimony. Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir.
2004). Nothing in Samuel’s affidavit contradicts the testimony he gave at his
deposition.
39
resident” of the apartment, “temporarily or any other way,” and that
“he was about to leave the apartment” at the time of his arrest. Tr.
Oral Ruling at 9, Figueroa v. Mazza, No. 11 Civ. 3160 (JBW)
(E.D.N.Y. Aug. 21, 2014), ECF No. 220. For several reasons, we
cannot agree with the District Court’s analysis.16
First, the Court’s emphasis that Samuel did not “reside[ ]” in
his mother’s apartment was misplaced. A person need not “reside”
in a particular dwelling, in the sense of living primarily at that
location, to enjoy a legitimate expectation of privacy when he is on
the premises. As we have already discussed, a social guest can,
under some circumstances, legitimately expect privacy in his host’s
home. See Olson, 495 U.S. at 98.
Second—though the District Court’s oral ruling is not
perfectly clear on the point—it appears that the Court might have
concluded that because Samuel “was about to leave the apartment”
when he was arrested, he did not qualify as an “overnight guest”
and thus could not claim a legitimate expectation of privacy in the
property. Tr. Oral Ruling at 9, Figueroa v. Mazza, No. 11 Civ. 3160
(JBW) (E.D.N.Y. Aug. 21, 2014), ECF No. 220. (The Court might have
reasoned that if Samuel was leaving the apartment at 10:00 p.m., the
time of his arrest, he was not likely to come back that night.) Even if
the Court correctly concluded that Samuel was not an “overnight
16 As is true of Samuel’s failure‐to‐intervene claims, defendants do not
argue that they are entitled to qualified immunity on the unlawful‐entry claims if
their conduct violated the Fourth Amendment.
40
guest” as the case law uses the term—a question we need not
decide17—it nonetheless erred in determining that, as a matter of
law, he did not legitimately expect privacy in his mother’s
apartment.
The Fourth Amendment looks with favor on “overnight
guests” not because there is something talismanic about a person’s
intent to stay in a dwelling on a particular night, but because a host’s
willingness to take in a guest to sleep—slumber being a vulnerable
state during which privacy is cherished—indicates that the guest has
been accepted into the private sphere of the household. Carter, 525
17 The cases do not define the phrase. In Olson, for instance, the defendant
had slept in the searched dwelling the night prior to the search (which occurred
late in the afternoon). Olson, 495 U.S. at 93‐94, 97 n.6. But for “several days”
before that, he had been sleeping someplace else, id. at 97 n.6, and the Court did
not discuss whether he had ever slept in the relevant dwelling before or had
planned to sleep there the night after the search occurred. (The facts suggested
that the defendant had not planned to sleep in the dwelling a second night: the
police had been told that he planned to “leave town.” Id. at 93.) The Supreme
Court nevertheless characterized the defendant as an “overnight guest” and held
that he was entitled to claim the protection of the Fourth Amendment in his
hosts’ home.
We need not determine what this says about whether Samuel—who often
stayed in his mother’s apartment, but might not have stayed there the night
before his arrest and might not have planned to stay there the night of his
arrest—was an “overnight guest.” Nor do we think such an exercise would be
particularly useful. As discussed below, a person’s status as an “overnight
guest” matters because sleeping in a dwelling says much about one’s connection
with the property and one’s expectations while present there; the law can take
account of these considerations without drawing hard lines concerning what
kind of guest counts as an “overnight” one.
41
U.S. at 90; Olson, 495 U.S. at 99‐100. Construing the record in the
light most favorable to Samuel, we conclude that (“overnight guest”
or not) he enjoyed a degree of acceptance into his mother’s home
sufficient to trigger Fourth Amendment protection. Indeed, each
factor mentioned in Carter weighs strongly in Samuel’s favor. His
visit was social in nature. He had, in the past, spent a great deal of
time at the apartment, sleeping there nearly as frequently as he slept
at his own dwelling. He had a close relationship—indeed, a familial
one—with the apartment’s tenant. We have found no case denying
Fourth Amendment standing on similar facts, and have found a
number of cases finding Fourth Amendment standing on less
convincing facts. See, e.g., Fields, 113 F.3d at 321 (concluding that the
defendant possessed a legitimate expectation of privacy in an
apartment to which he was invited by a guest of the tenant, and
where he spent “several hours before being interrupted by [a] police
intrusion”); Rhiger, 315 F.3d at 1285‐87 (finding Fourth Amendment
standing in the case of a guest who had known his host for “about
two weeks,” had slept at the host’s home two to four times, and had
once entered the home unannounced to take a nap).
Accordingly, we conclude that Samuel’s unlawful‐entry
claims should have survived a motion for summary judgment.18 We
18 Defendants also argue that, even if Samuel enjoyed a legitimate
expectation of privacy in his mother’s apartment, this portion of the judgment
can stand because the trial record shows that Samuel’s mother consented to
defendants’ entry. We disagree. The officers so testified, but Samuel testified
that his mother did nothing more than open the door a foot or two before Samuel
stepped in front of her. App. 627‐28. If Samuel is believed, his mother did not
42
thus vacate so much of the judgment as dismissed those claims and
remand to the District Court for such further pretrial proceedings as
may be appropriate in the circumstances, or for trial.
V. Dismissing the Unnamed Defendants and Closing Discovery
In an order announced on May 1, 2014, the District Court
dismissed from the case all unnamed defendants, reasoning that the
case had been pending for several years and that Samuel still had
not identified the unnamed individuals. Tr. Proceedings at 46‐47,
Figueroa v. Mazza, No. 11 Civ. 3160 (JBW) (E.D.N.Y. May 1, 2014),
ECF No. 119. Samuel states that in this same order, the District
Court closed discovery. We are unable to locate any such language
in the order, but it is clear that on several occasions the District
Court refused Samuel’s requests for further discovery of documents.
See, e.g., Order at 2, Figueroa v. Mazza, No. 11 Civ. 3160 (JBW)
(E.D.N.Y. Mar. 3, 2014), ECF No. 87.
Samuel asserts that the District Court erred or “abused its
discretion” in entering these orders. He argues that the District
Court dismissed the unnamed defendants and closed discovery
because counsel for defendants represented that all relevant
documents had been produced. See id. After the May 1, 2014 order,
however, defendants supplemented discovery by producing 200
pages of new documents—most of it in the month before trial. Pl.’s
consent to defendants’ entering her apartment. See United States v. Vasquez, 638
F.2d 507, 527 (2d Cir. 1980) (concluding that merely opening a door when officers
knock is not consent).
43
Br. 39. Samuel appears to argue that if he had received these
documents earlier, he could have used the information they
contained to depose new witnesses and uncover the identity of some
unnamed defendants.
This argument is unpersuasive. Samuel does not explain why,
in his view, the District Court was wrong to rely on defense
counsel’s statements that all documents had been turned over. He
does not argue, for instance, that at the time it made its rulings the
District Court had been made aware of information throwing doubt
on the accuracy of counsel’s representations.19 Rather, he appears to
suggest that the mere fact of defendants’ late production renders the
District Court’s order infirm. But if the Court had no reason to think
that defendants possessed additional documents—and, indeed, had
excellent reason (counsel’s representations) to think they did not—it
cannot now be faulted for closing discovery and moving the case
toward a conclusion. Accordingly, we find no error in the District
Court’s discovery rulings.
CONCLUSION
To summarize, we hold as follows:
(1) Defendants are entitled to qualified immunity with respect
to Samuel’s false arrest claims, because we cannot say that, in
the circumstances obtaining at the time of Samuel’s arrest, no
19 Samuel does not appear to have sought additional discovery after the
new documents were produced. See Pl.’s Br. 39‐40; Pl.’s Reply Br. 47‐50.
44
reasonable police officer could have concluded that probable
cause existed.
(2) The force employed by Detectives Karolkowski and Failla
in effecting Samuel’s arrest was reasonable as a matter of law.
(3) On the basis of the evidence presented at trial, a reasonable
juror could have determined that Detectives Failla and Chan
had a realistic opportunity to intervene in the alleged assault
on Samuel but failed to do so.
(4) The facts in the summary‐judgment record would have
allowed a reasonable juror to conclude that Samuel enjoyed a
legitimate expectation of privacy in his mother’s apartment.
(5) The District Court did not err or “abuse its discretion”
when it entered rulings dismissing unnamed defendants from
the case and refusing Samuel’s requests for further discovery.
Accordingly, we AFFIRM the District Court’s September 30,
2014 judgment insofar as it (1) granted judgment in defendants’
favor on Samuel’s claims for false arrest, excessive force, and assault,
(2) denied further discovery, and (3) dismissed unnamed defendants
from the case. We VACATE so much of the judgment as granted
judgment in defendants’ favor on Samuel’s claims for failure to
intervene and unlawful entry and REMAND the cause to the
District Court for such further pretrial proceedings as may be
appropriate in the circumstances, or for trial.
45
14-4116
Figueroa v. Mazza
1 KEARSE, Circuit Judge, dissenting in part:
2 I respectfully dissent from so much of the majority's opinion as rules that "[t]he trial
3 record establishes" "as a matter of law," Majority Opinion, ante at 5, 16, that the defendant detectives,
4 most of them from the New York City Police Department's 72nd Precinct (or "Precinct"), who
5 arrested plaintiff Eli Samuel Figueroa ("Samuel") on a charge of endangering the welfare of a child,
6 are entitled to qualified immunity with respect to Samuel's false arrest claims, on the basis that a
7 reasonable law enforcement official in their position could have concluded that there existed probable
8 cause to arrest Samuel on the night of June 30, 2010, giving them "arguable" probable cause. My
9 disagreement has several sources, among them the following: First, the record in this case shows that
10 the defendants' relevant knowledge consisted not just of their observations of the Duane Reade
11 photographs of a nude boy on June 29 but rather included repeated complaints about suspected sexual
12 abuse of the boy, complaints made by Samuel and the boy's mother Shirley Saenz ("Saenz") to the
13 police department--beginning at the 72nd Precinct--over the preceding two weeks. Second, the
14 majority opinion does not, although it claims to, "view the facts in the light most favorable to
15 Samuel," id. at 6 n.1, which is required in awarding his opponents judgment as a matter of law. Third, 16 the majority appears to ignore the fact that it is granting judgment as a matter of law on the basis of 17 qualified immunity, an affirmative defense. In taking issue with this dissent, the majority focuses on 18 "Samuel's . . . false arrest claims" and the evidence "Samuel . . . offered . . . to support them" and 19 states, "our analysis of Samuel's false arrest claims does not take account of evidence--such as a series 20 of written reports from a Detective Hawkins concerning Saenz's mid-June complaint to police--that 21 was never put before the jury," Majority Opinion at 15 n.8 (emphases added). However, the proper 22 focus for the majority's decision is not whether Samuel presented sufficient evidence on the elements 1 of his false arrest claims (including the absence of probable cause--an absence that the properly 2 instructed jury presumably found proven in finding defendants liable to Samuel on these claims). For 3 the grant of judgment as a matter of law to these defendants on the basis of qualified immunity, the 4 proper question is whether the evidence compels the conclusion that it was objectively reasonable for 5 a police officer in their position to believe there was probable cause to arrest Samuel--an affirmative 6 defense on which defendants have the burden of proof. 7 Fourth, in my view, what should properly be considered on the issue of arguable 8 probable cause in the present appeal includes all relevant evidence in the district court's record, not 9 just the evidence admitted at trial. Although the majority states that "[i]n considering defendants' Rule 10 50 motion as to [Samuel's] claims, the District Court properly confined its review to the trial record, 11 . . . and we must do the same in considering the claims on appeal," Majority Opinion at 15 n.8, this 12 position suffers a major flaw: The Rule 50 motion granted by the district court was based on the 13 position that Samuel had failed to prove the absence of probable cause as an element of false arrest, 14 see Figueroa v. Mazza,59 F. Supp. 3d 481
, 490-91 (E.D.N.Y. 2014); that decision indeed was to be
15 made on the basis of the evidence admitted at trial. But this is not the basis for the majority's grant
16 of judgment as a matter of law. The majority's decision is that defendants are entitled to judgment
17 as a matter of law on the basis of qualified immunity because it views probable cause as "arguable."
18 The qualified immunity defense was never submitted to the jury; there is thus no reason to limit
19 consideration to the evidence that was admitted. Further, the reports by Detective Deborah Hawkins,
20 which the majority chooses not to consider, are in the district court record. (See, e.g., Trial Transcript
21 ("Tr.") 551 (statement of defense counsel to the court: "There are documents that explicitly say--that
22 are listed as plaintiff's exhibits that explicitly say Detective Hawkins looked at the reports from the
23 pediatrician . . . and that, in fact, the police department called the pediatrician and said you indicated
2
1 in this letter that you thought that there might have been some sort of anal penetration. What
2 made you say that? And he said I don't know, it's possible." (emphases added)).) The Detective
3 Hawkins reports were in fact offered in evidence at trial--by each side--but were excluded
4 (erroneously each time, in my view: erroneously when offered by Samuel, since the reports (a)
5 showed that the pediatrician confirmed to Detective Hawkins Saenz's statement that the doctor himself
6 thought "some sort of anal penetration" was "possible," and (b) confirmed that the police department
7 had in its possession a letter from the doctor to that effect; and erroneously when offered by
8 defendants to show that Hawkins had in fact investigated before reaching a different conclusion).
9 Finally, even if consideration of defendants' entitlement to the defense of qualified
10 immunity as a matter of law is limited to the evidence that was admitted at trial, there was ample
11 evidence that in the two weeks preceding Samuel's arrest Saenz had complained to the police at the
12 72nd Precinct and to Detective Hawkins of suspected sexual abuse of her son by the boy's father;
13 evidence that the police and Detective Hawkins were well aware of Saenz's attempts to document her
14 suspicion with before-and-after pictures; evidence that Saenz had informed Detective Hawkins that
15 two doctors had opined that such molestation was possible; and, in the words of defendants' own
16 attorney, evidence "that there are doctor reports that indicate that abuse was happening" (Tr. 550).
17 There was evidence that Samuel complained to the police department's Internal Affairs
18 Bureau ("IAB") asserting that Detective Hawkins had failed to investigate; in that complaint Samuel
19 detailed Saenz's complaints to the police and her submission to the police of before-and-after pictures;
20 and defendants, prior to arresting Samuel, were indisputably aware of Samuel's IAB complaint. The
21 police department records of these repeated attempts by Samuel and Saenz to get the police to prevent
22 what the boy's mother and doctors thought could be sexual abuse eliminated any objectively
3
1 reasonable basis for any officer to believe there was probable cause to arrest Samuel for child
2 pornography or child endangerment.
3 A. The Trial Evidence
4 It is undisputed that for some two weeks prior to the arrest of Samuel, Shirley Saenz,
5 accompanied by Samuel, had repeatedly complained to the police that, when her son had an overnight
6 visit with his father, the boy was returned to her with bruises and swelling in his anal area and that
7 doctors said it was possible that the boy was being sexually molested. Saenz testified at trial: "[O]n
8 June 5th of 2010, my son came back to me with red anal swelling"; "I took him to Methodist
9 Hospital"; "I showed the doctor, Doctor Farebrothers [sic], and she said it looks like my son was
10 getting molested, so she made a report to the state central registry." (Tr. 58-59; see, e.g., id. at 119
11 ("the hospital told me on June 5th that it was possible that my son was getting molested").) When her
12 son "continued to come back" from visits with his father "with anal traumas," Saenz complained to
13 the police and began to document the boy's changed condition with pictures of him before and after
14 his visits with his father; she was allowed to take such pictures in the police station. (Tr. 57 ("at the
15 precinct . . . the police officer said it was fine to do it like away from the public in the backroom").)
16 Other sets of pictures were taken in the office of the boy's pediatrician; Saenz testified that that doctor
17 too "had told me that it looked like my son was getting possibly anally penetrated and he wrote a letter
18 to the Family Court" (Tr. 58; see also id. at 118-19 ("Doctor Hassan, my son's ped[iatric]ian, said that
19 it was possible my son was getting molested. That's what he said and he wrote it in a letter . . . .")).
20 On June 15, two weeks before the police department's June 29 receipt of the Duane
21 Reade photos on which they based their arrest of Samuel, Saenz--accompanied by Samuel--had
4
1 informed police at the 72nd Precinct and Detective Hawkins at the police department's Brooklyn
2 Child Advocacy Center ("Child Advocacy Center") of her suspicion that her son was being molested
3 by his father, and had given them pictures that like, the Duane Reade photos, were before-and-after
4 pictures of the boy's body. (See, e.g., Tr. 64-65 (testimony of Saenz); 533-37, 541-42 (testimony of
5 Samuel).) Saenz testified:
6 I went to the 72nd Precinct. I told them that I was taking the photographs on
7 the advise [sic] of my attorney and according to Social Service laws 415, 416,
8 419, and then I told them that I was concerned that my son could have been
9 getting molested and they didn't let me write a report. They just took a copy
10 of everything that I had, like the hospital record, the photographs and they
11 faxed it over to Brooklyn Child Advocacy Center and they made copies and
12 I spoke with--spoke with Lieutenant Jaime Ortiz . . . . And there was like
13 another officer there, and they actually put me on the phone with Detective
14 Deborah Hawkins . . . .
15 (Tr. 64-65 (emphases added).) In that telephone conversation, Saenz told Detective Hawkins "I think
16 my son is getting molested, this is what the doctor said . . . ." (Tr. 65; see also id. at 542 (testimony
17 of Samuel that 72nd Precinct officers faxed to Detective Hawkins "[t]he doctor's report--before-and-
18 after doctor's report").)
19 On June 16, Saenz went to the Child Advocacy Center and met with Detective
20 Hawkins, who had received the materials--including the photos--sent to her by the officers at the 72nd
21 Precinct. Saenz testified that when Detective Hawkins asked "why do you think your son is getting
22 molested. I told her it was based on what my doctor said, based on what the hospital said." (Tr. 66.)
23 Saenz testified that Detective Hawkins would not allow her to make a formal complaint
24 of child abuse. Saenz complained that the police department and Detective Hawkins, "didn't do
25 anything." (Tr. 59.)
5
1 On June 28, Samuel telephoned IAB, identified himself, and complained that Hawkins
2 had not allowed Saenz to file a child-abuse complaint against the boy's father. (See Tr. 544-48.)
3 Samuel's IAB complaint was "[v]ery detailed" (Tr. 547) as to Saenz's efforts, including her showing
4 the police the pictures she had taken to document her concerns. He provided addresses and telephone
5 numbers for the boy's father, as well as for Saenz's mother Beatrice Saenz ("Beatrice"), about whom
6 Samuel also complained.
7 Defendants plainly were aware of the contents of Samuel's June 28 complaint to IAB:
8 It was only by means of information in that complaint that they located Beatrice, whom they
9 interviewed prior to arresting Samuel. And, as the majority opinion notes, in all other respects
10 "defendants do not contest that all relevant officers had knowledge of Samuel's complaint and Saenz's
11 report at all relevant times," Majority Opinion at 9 n.5 (emphasis added); see id. at 9 n.6. 12 B. The "Arguable Probable Cause" Standard Is Not Met 13 When determining whether actual probable cause existed, we "look to the totality of 14 the circumstances" as to what the officers knew at the time of the arrest; we "must consider those facts 15 available to the officer at the time of the arrest and immediately before it," bearing in mind that "an 16 officer may not disregard plainly exculpatory evidence." Fabrikant v. French,691 F.3d 193
, 214 (2d 17 Cir. 2012) (internal quotation marks omitted) (emphases mine); see also Hunter v. Bryant,502 U.S. 18
224, 229 (1991) (qualified immunity does not protect "the plainly incompetent" (internal quotation 19 marks omitted)). "Review for probable cause should encompass plainly exculpatory evidence 20 alongside inculpatory evidence to ensure the court has a full sense of the evidence that led the officer 21 to believe that there was probable cause to make an arrest." Stansbury v. Wertman,721 F.3d 84
, 93 22 (2d Cir. 2013) (internal quotation marks omitted) (emphasis mine). 6 1 In determining whether there was "arguable" probable cause, for purposes of qualified 2 immunity, our focus is no narrower; "we examine the same evidence under the same circumstances," 3id. at 89
n.3, for arguable probable cause does not "mean 'almost' probable cause," Jenkins v. City of 4 New York,478 F.3d 76
, 87 (2d Cir. 2007). Rather, the test for arguable probable cause is "whether 5 it was objectively reasonable for the officer to conclude that probable cause existed."Id. 6 The
majority acknowledges that "an officer making a probable-cause determination 7 is not at liberty to ignore evidence tending to exculpate the suspect . . . and that the officers [here] 8 were accordingly not entitled to disregard . . . their knowledge of Saenz's earlier photos," Majority 9 Opinion at 23. The majority finds arguable probable cause, however, on the basis that "officers of 10 reasonable competence could have . . . disbelieved Saenz's explanation"--apparently referring to her 11 reason for taking photos of her unclothed son--and that "[t]he officers were not required to accept 12 Saenz's account on faith," Majority Opinion at 23, 24 (emphases added). This would be far more 13 persuasive if defendants were considering an explanation given after-the-fact and if ample support 14 for Saenz's "account" were not already in police records weeks before receipt of the Duane Reade 15 photos. As the police had no contact with Saenz between their June 29 receipt of the Duane Reade 16 photos and Samuel's June 30 arrest, the reference to a Saenz "explanation" apparently refers to Saenz's 17 proffers of such photographs earlier. But police department records clearly documented that Saenz 18 had submitted such photos to the police in mid-June in an effort to provide evidentiary support for her 19 suspicions of child abuse by the boy's father. And whether or not her suspicions were correct, it is 20 undisputed that Saenz repeatedly told Detective Hawkins that both the boy's pediatrician and Doctor 21 Fairbrother at Methodist Hospital had stated that it was possible that the boy had been subjected to 22 some type of anal penetration. 7 1 Officers of course are not required to take a complainant's assertions "on faith," and 2 defendants here certainly were not required to believe that Saenz's son had in fact been abused by his 3 father. But nor were defendants entitled to conclude without any investigation that Saenz's repeated 4 communications of her concerns to the police department were a sham. And the most obvious line 5 of inquiry would have quickly shown that her concern was genuine. As defendants "at all relevant 6 times" "had knowledge of Samuel's complaint and Saenz's report," Majority Opinion at 9 nn.5-6, the 7 most obvious course would have been to inquire of Detective Hawkins, who was most sharply 8 criticized in Samuel's complaint to IAB about the handling of Saenz concerns. Had they inquired, 9 defendants would have learned that Detective Hawkins's file included a copy of the letter from the 10 pediatrician indicating that he thought that there might have been some sort of anal penetration (see 11 Tr. 542 (72nd Precinct officers faxed to Detective Hawkins "[t]he doctor's report--before-and-after 12 doctor's report")). Further, if defendants had read Detective Hawkins's reports, they would have seen 13 that the pediatrician reiterated to Detective Hawkins that "it's possible" that "there might have been 14 some sort of anal penetration" (Tr. 551 (statement of defense counsel)). 15 This record--whether or not Detective Hawkins's reports are considered--does not 16 allow defendants to prevail on a defense of arguable probable cause, for they were not entitled to 17 ignore the record of Saenz's efforts, with Samuel's assistance, to protect her son. Defendants knew 18 of the complaints to--and about--Detective Hawkins. If they asked what was in Detective Hawkins's 19 files or what her investigation had turned up, they could not "disbelieve[]" Saenz's "explanation" 20 except by arbitrarily ignoring this clearly exculpatory evidence that resided in the relevant police 21 records. And if they failed to inquire, their investigation clearly was not competent. Qualified 22 immunity does not protect "the plainly incompetent."Hunter, 502 U.S. at 229
(internal quotation 23 marks omitted). 8 1 The majority's view that a reasonable officer could have concluded that the photos 2 constituted crimes of child pornography or child endangerment on the theory that Saenz was willing 3 to share nude pictures of the boy "with perfect strangers," to wit, the "Duane Reade employees [who] 4 would likely see the photos in the normal course of developing them," Majority Opinion at 26, 5 improperly draws inferences contrary to Samuel and the record. The Duane Reade surveillance tape 6 that police officers reviewed on June 30 showed that Saenz in fact had attempted to have the pictures-- 7 taken with a digital camera--printed not by Duane Reade employees but rather by a Duane Reade 8 computerized self-service printer. The photos were eventually retrieved from the printer by a Duane 9 Reade employee only because the self-service system had malfunctioned. Saenz's thwarted attempt 10 to print the pictures herself in no way indicated a willingness to have them seen by strangers. 11 In my view, in light of these facts that were known to the police, and were known or 12 available to defendants prior to Samuel's arrest, no reasonable officer could have concluded that there 13 was probable cause to believe that the crime of either child pornography or child endangerment had 14 been committed. 15 I note that the majority does not actually specify the crime as to which it concludes 16 defendants had arguable probable cause to arrest Samuel; if they had arguable probable cause as to 17 any crime, even if there was not agreement among the defendants as to which crime, they were 18 entitled to that defense, cf. Devenpeck v. Alford,543 U.S. 146
, 152-56 (2004). For the reasons stated 19 above, I see no basis for arguable probable cause as to child pornography or child endangerment. Nor 20 was there a basis to arrest Samuel for kidnaping. Although the majority opinion suggests that 21 defendants, having viewed the June 25 Duane Reade photos, did not know Saenz's son was not being 22 held as a "kidnap[]" victim until "[s]hortly after Samuel's [June 30] arrest," Majority Opinion at 11-12 23 (emphasis added), they in fact knew he was not being so held before Samuel was arrested. Police 9 1 records show that at 9 p.m. on June 30, defendant Todd Nagrowski and other officers interviewed 2 Saenz's roommate, who told them, inter alia, that she had left Saenz and the boy asleep in the living 3 room that morning. As the majority concedes, defendants were "not entitled to disregard th[is] 4 information from [Saenz's roommate]," Majority Opinion at 23. Thus, when Nagrowski and others 5 proceeded to arrest Samuel after 10 o'clock that night, defendants had no reason to believe there had 6 been a kidnaping. 7 Finally, even if there had been arguable probable cause to believe a crime had been 8 committed, there was no evidence to warrant a person of reasonable caution in the belief that the 9 crime had been committed by Samuel. The police had no evidence that Samuel had any role in the 10 taking of the Duane Reade pictures, or was present when they were taken, or participated in the 11 attempt to have them printed. The police reviewed the Duane Reade surveillance tape of the person 12 attempting to have the pictures printed; that person was a woman. The 11 telephone calls to Duane 13 Reade thereafter, asking that the pictures not be printed, were all made by a woman. In addition, the 14 photos included an image of a dated money order, and the police were able to obtain a surveillance 15 picture of its purchase; they saw that the purchaser of the money order was also a woman. 16 The only objective evidence the police had of any conduct by Samuel in connection 17 with the Duane Reade photos was that he had accompanied Saenz when she gave similar pictures to 18 the police in an effort to prevent further harm to her son, that he complained to IAB when the police 19 refused to assist Saenz in that effort, and that he apparently loaned the woman who called Duane 20 Reade his phone. 21 Given the totality of the circumstances, including the documentation in the police files 22 as to Saenz's intense communications with the police about her suspicion that her son was being 23 abused, accompanied by her report of multiple doctors' statements and a copy of least one doctor's 10 1 written opinion that her suspicion could be correct--all of which defendants knew or should have 2 known--I dissent from so much of the majority opinion as rules that defendants are entitled to 3 qualified immunity on Samuel's false arrest claims as a matter of law. 11
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