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
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
J. TROETTI, White Plains, New York, for Appellants Anthony
McVeigh and Frank Farina.
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.
JACOBS, Circuit Judge.
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.
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.
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.
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.
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.
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
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.
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.
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.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
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.
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).
The Unlawful Arrest Claim Against McVeigh
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).
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.
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 ...