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Grice v. McVeigh

United States Court of Appeals, Second Circuit

September 29, 2017

GREGORY A. GRICE, III, Plaintiff-Cross Defendant-Appellee,
ANTHONY MCVEIGH, FRANK FARINA, Individually, Defendants-Appellants, DEREK HOSEIN, Individually, MICHAEL ALFALLA, Individually, KENNETH STEWART, Individually, DONALD HEAGLE, Individually, KEVIN MADDINE, Individually, JONATHAN PISCATELLI, Individually, MICHAEL SACHAR, Individually, MARK DELIA, Individually, HERMAN KILLEBREW, Individually, ROBERT BARNETT, Individually, THOMAS MCCORMACK, Individually, JOSEPH HORESKY, Individually, KATHLEEN CRISTIANO, Individually, BRIAN SCOTT, Individually, and JAMES LUCIANO, Individually, Defendants, TOWN OF NORTH CASTLE, NEW YORK, Defendant-Cross Claimant-Cross Defendant, WESTCHESTER COUNTY, JOHN HOSEIN, JOHN AND JANE DOE 1-15, and TOWN OF GREENBURGH, NEW YORK, Defendants-Cross Defendants, METROPOLITAN TRANSIT AUTHORITY, Defendant-Cross Defendant-Cross Claimant.

          Argued: April 4, 2017

         Plaintiff-Appellee Gregory A. Grice, III, a teenaged train enthusiast, was stopped and handcuffed after police received a report that someone holding an electronic device was bending down by the tracks at a rail crossing. The United States District Court for the Southern District of New York (Román, J.), denied a motion by the police seeking qualified immunity. We reverse.

          THOMAS J. TROETTI, White Plains, New York, for Appellants Anthony McVeigh and Frank Farina.

          BRETT H. KLEIN, (Lissa Green-Stark, on the brief) New York, New York for Appellee Gregory A. Grice, III.

          Before: WALKER, JACOBS, and PARKER, Circuit Judges.

          DENNIS JACOBS, Circuit Judge.

         Plaintiff-Appellee Gregory A. Grice, III, a 16 year old train enthusiast, was stopped and handcuffed after the Greenburgh Police Department received a 911 report that someone holding an electronic device was bending down by the tracks at a rail crossing. After a search of the tracks by the Metropolitan Transit Authority ("MTA"), the Greenburgh officers turned Grice over to the MTA officers, who detained him and charged him with trespass.

         When the trespass charge was dismissed, Grice sued all concerned. The only remaining defendants are Sergeant Anthony McVeigh and Lieutenant Frank Farina of the Greenburgh police. Grice alleges false arrest, failure to intervene, and failure to supervise. The United States District Court for the Southern District of New York (Román, J.) denied their motion for qualified immunity. On this interlocutory appeal, we reverse. It cannot be said that every reasonable officer in their circumstances would know that the conduct complained of violated clearly established law.


         The facts are undisputed for the purpose of this appeal. Grice's cellphone (set to record the trains) taped audio of his encounter with the police, and the two officers have (necessarily) agreed to accept Grice's version of the facts. "Once a defendant asserting qualified immunity has agreed to be bound by the plaintiffʹs version of the facts, the issues become purely legal and we have jurisdiction over an interlocutory appeal from a denial of immunity." Loria v. Gorman, 306 F.3d 1271, 1280 (2d Cir. 2002). Defendants may try to "evade their agreement by spinning the facts in their favor"; but we simply ignore any factual contentions that contradict the plaintiff's version of the facts. Id.

         In the evening on June 6, 2011, Grice was lawfully watching trains at the Virginia Road railroad crossing in Greenburgh, New York. He was seen by a passing driver, Mary Andrachik, who told a 911 dispatcher that someone with a red shirt "was actually on the train tracks" and was holding "a little controller." Joint App'x at 521-22. She said his behavior seemed "suspicious" and "bizarre." Id. at 521. The dispatcher directed police units to investigate "a male white, wearing a red shirt bending down by the tracks with a remote control object in his hands" at "Virginia Road, by the train tracks crossing." Id. at 524.

         Sergeant Anthony McVeigh of the Greenburgh police arrived at the scene first, alone. A police officer since 1995, he was commander for some years of Greenburgh's Special Operations Unit, which includes the SWAT team. Over the course of a year, he had received several briefings and bulletins about the possibility that terrorists would attempt to sabotage railroad tracks; about a month before the encounter with Grice, McVeigh received a circular on attempted rail sabotage in a nearby town.

         When McVeigh arrived at the crossing, Grice was wearing a red shirt, was holding a camera, and was standing approximately 12-15 feet from the tracks, next to a barricade. A backpack was on the ground, and two electronic devices- -one with an antenna--were next to him on top of the barricade. One device was a cell phone; the other, a radio scanner. The only deviation from the radioed description of Grice was his race: the dispatcher said he was white, while Grice is African-American.

         McVeigh asked Grice what he was doing, and seemed puzzled when Grice said he was taking pictures of the trains and listening to Metro North broadcasts. Grice told McVeigh that he had a letter from the MTA explaining that what he was doing was "okay." Id. at 558. Grice then suggested that he or McVeigh could retrieve that letter from his backpack. But McVeigh was concerned that there might be a sabotage device that could be activated remotely; so he told Grice a few minutes into their conversation, "Right now I'm going to cuff you for my safety and your safety . . . Until I find out what's going on here." Id. at 559.

         Lieutenant Frank Farina and several other Greenburgh police officers arrived shortly after. Grice explained to them that he was a "rail fan" who had watched the trains at Virginia Road several times. McVeigh responded:

We don't know what you're doing out here. It's very unusual to do what you're doing. We don't get complaints like this . . . You're the first guy in my career that's ever been sitting next to a train with a radio looking at trains and taking pictures[.]

Id. at 566-67.

         MTA officers arrived approximately 15 minutes after McVeigh cuffed Grice. They began questioning Grice anew, and the tracks were searched for a bomb by officers and a dog. When the search turned up nothing, McVeigh asked the MTA officers if he could switch out his handcuffs with the MTA's, and an MTA officer agreed. Grice was in McVeigh's handcuffs for about 33 minutes.[1]When the involvement of McVeigh and Farina ended at this point, MTA officers took Grice to an MTA facility, placed him in a cell, interrogated him, and gave him a summons for trespass. The trespass charge was ultimately dropped.

         Grice sued several police officers and government entities, including the MTA, seeking damages for his handcuffing, arrest, and prosecution. He settled his claims against most of the defendants for a total of $24, 000. Remaining are claims for false arrest, failure to intercede, and supervisory liability against (variously) McVeigh and Farina. The district court denied the officers' motion for summary judgment, and they appeal, arguing that they are entitled to qualified immunity.


         "Qualified immunity protects officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (internal quotation marks omitted). Rights must be clearly established in a "particularized" sense, rather than at a high level of generality; and such rights are only clearly established if a court can "identify a case where an officer acting under similar circumstances" was held to have acted unconstitutionally. White v. Pauly, 137 S.Ct. 548, 552 (2017). The qualified immunity standard is "forgiving" and "protects all but the plainly incompetent or those who knowingly violate the law." Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010) (internal citations omitted).

         A. The Unlawful Arrest Claim Against McVeigh

         Grice's unlawful arrest claim fails because his handcuffing was an "investigatory detention" (otherwise known as a "Terry stop") that never ripened into an arrest and was supported by reasonable suspicion. Police stops fall into two categories: arrests and Terry stops. Arrests require probable cause, while a police officer may make a Terry stop "as long as the officer has reasonable suspicion that the person to be detained is committing or has committed a criminal offense." United States v. Compton, 830 F.3d 55, 61 (2d Cir. 2016). The standard for reasonable suspicion is "not high, " and is less than what probable cause requires. United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (internal citation omitted). Whether an officer's suspicion is "reasonable" is an objective inquiry based on the totality of the circumstances as they would appear through the eyes of a reasonable and cautious police officer, guided by his experience and training. United States v. Singletary, 798 F.3d 55, 60 (2d Cir. 2015).

         McVeigh had reasonable suspicion to stop Grice, either for unlawful interference with a train or for trespass. N.Y. R.R. Law § 53-e; N.Y. Penal Law § 140.05. McVeigh had been ordered to look out for sabotage on the railroad. Less than a month earlier, he had received a training circular advising that someone had attempted to sabotage a railroad in nearby Patterson, New York, using "a homemade device, wrapped in black tape with a radio-control antenna affixed." Joint App'x at 101. The dispatcher called in a tip from an observer that someone was "bending down by the tracks with a remote control object in his hands, " id. at 524, and McVeigh saw someone matching the observer's description with various electronic devices, some more familiar than others.

         McVeigh was unaware of any plausible innocent reason that could explain why someone would be taking photos of trains and listening to the railroad's radio broadcasts. Grice told McVeigh he was a train buff and that he had received permission from the MTA to take photographs as long as he was not on MTA property, but McVeigh had never heard of trainspotting until the encounter at the railroad crossing. He was not required to credit an innocent explanation that seemed implausible given his knowledge at the time. "Suspicious circumstances may have innocent explanations; but the availability of an innocent explanation does not create an issue of fact as to the reasonableness of the suspicion." Holeman ...

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