Berg v. Kelly

          Argued: October 4, 2017

          Appeal from the United States District Court for the Southern District of New York No. 12-cv-3391 - Thomas P. Griesa, Judge.

          Kathy Chang Park, Assistant Corporation Counsel (Richard Dearing and Claude S. Platton, on the brief), on behalf of Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York, for Defend- ants-Appellants.

          David B. Rankin, Beldock Levine & Hoff- man LLP, New York, New York, for Plain- tiffs-Appellees.

          Before: Raggi, Hall, and Carney, Circuit Judges.

         Members of Occupy Wall Street ("OWS protesters" or "protesters") assert that a group of New York City Police Officers (the "Officers") unlaw- fully detained them during a protest outside the Sheraton Hotel where Pres- ident Obama was attending a fundraising dinner. The protesters claim that this detention violated their First, Fourth, and Fourteenth Amendment rights. Concluding that the Officers' motivation for the detention was a ma- terial fact in dispute and that a finding as to the Officers' motivation affected the determination of the objective reasonableness of the Officers' actions, the district court denied the Officers summary judgment on the protesters' First, Fourth, and Fourteenth Amendment claims, and denied the Officers quali- fied immunity. The Officers appealed. This court denied the protesters' mo- tion to dismiss this appeal for lack of subject matter jurisdiction. The Officers argue before us that the limited detention that occurred was permissible un- der the special needs exception to the Fourth Amendment so as not to vio- late the protesters' constitutional rights and, in any event, they are entitled to qualified immunity.

         We identify disputes of fact that do not permit a court to conclude as a matter of law that the protesters' two-hour detention was permissible under the special needs exception to the Fourth Amendment's warrant requirement. We nonetheless conclude that the officers are entitled to qualified immunity. The district court erred in concluding that the Officers' subjective intent in temporarily detaining the protesters was relevant to whether the Officers are entitled to qualified immunity. Considered objectively, we conclude that, at the time of the challenged actions, reasonable officers could have believed that the approximately two-hour detention of the protesters in response to concerns for the President's security was justified in light of then established law. Because the Officers could have reason- ably believed the temporary detention was lawful, they are also entitled to qualified immunity on the OWS protesters' First Amendment and Fourteenth Amendment claims.

         Reversed And Remanded.

          Hall, Circuit Judge:

         This is an appeal from an order entered on August 10, 2016, in the Southern District of New York (Griesa, J.), denying summary judgment in part to Defendants-Appellants Police Officers (the "Officers"), who claimed qualified immunity from suit by Plaintiffs Appellees, participants in an Occupy Wall Street protest.^[2] The named protesters assert that the Officers unlawfully detained them and other putative class members during a protest outside the Sheraton Hotel where President Obama was attending a fund raising dinner on November 30, 2011. Before us on appeal are the protesters' claims that this detention violated their Fourth Amendment rights, that the detention was in retaliation for their exercise of First Amendment rights, that they were subjected to selective enforcement in violation of the Fourteenth Amendment, and that certain officers failed to intervene to protect their constitutional rights.^[3] The Officers argue that they are entitled to summary judgment based on qualified immunity because: (1) under the special needs exception to the Fourth Amendment, there was no constitutional violation; and (2) even if the detention that occurred were determined to be unconstitutional, there was no clearly established law doing so at the time their actions were taken.

         On the record before us, we conclude that the Officers have not demonstrated that, as a matter of law, the protesters' two-hour detention was justified under the "special needs" exception to the Fourth Amendment's warrant requirement. This is not to dismiss the possibility of additional evidence being introduced at a trial to support such a conclusion. But no such trial is warranted here because, as to the second argument, we conclude that the Officers are entitled to qualified immunity. At the time of the detentions at issue, it was not clearly established that the Fourth Amendment did not permit officers protecting the President of the United States to detain protesters as occurred in this case. We further conclude that because the Officers have qualified immunity from the OWS protesters' Fourth Amendment claims, they are also entitled to qualified immunity on the OWS protesters' related First Amendment and failure to intervene claims. As to the OWS protesters' Fourteenth Amendment claims for selective enforcement, the Officers are entitled to qualified immunity because reasonable officers could disagree as to whether the plaintiffs' status as protesters presented unique concerns that non-protesters on the scene did not. We proceed to explain these conclusions.

         I.

         On the night of November 30, 2011, the OWS protesters planned to protest a fundraising dinner for President Obama at the Sheraton Hotel in midtown Manhattan. Because part of the protesters' message was aimed at keeping money out of politics, the point of that night's protest was to bring attention to the President's fundraiser. Through various social media accounts, the OWS protesters had advertised the protest using hashtags such as #OccupyObama and #DinnerWithBarack.

         The President's visit occurred the same night as the annual Christmas tree lighting at Rockefeller Center, less than a quarter mile from the Sheraton. The New York City Police Department ("N.Y.P.D.") had responded to a bomb threat at Rockefeller Center approximately one hour prior to President Obama's arrival at the Sheraton.

         The OWS protest began in Bryant Park, at 42nd Street and 6th Avenue. The protesters intended to march about ten blocks northwest toward the Sheraton Hotel at 53rd Street and 7th Avenue to confront the President. As the protesters marched toward the Sheraton, they first stopped on 51st Street and 7th Avenue, in an area the N.Y.P.D. had previously designated as the "demonstration area." The protesters, however, opted not to remain in the demonstration area, but continued to march toward the Sheraton, ultimately stopping at approximately 8:00 p.m., on the southwest corner of 53rd Street and 7th Avenue. The protesters stopped there because the N.Y.P.D. had restricted pedestrian traffic any closer to the Sheraton. This landed the OWS protesters directly across the street from the hotel and within the President's line of sight as he entered and exited.

         According to the N.Y.P.D. plans, the area near the southwest corner of 53rd Street and 7th Avenue was designated the "press pen." Partially enclosed by barriers on three sides, the press pen was reserved for individual press members holding certain security credentials. Although not members of the press, much less credentialed, OWS protesters chose to gather in the press pen because it was closer to the President than their designated demonstration area at 51st Street and 7th Avenue.

         Shortly before the President's arrival at approximately 8:50 p.m., the N.Y.P.D. established a "frozen zone" for a period of time during which vehicular and pedestrian traffic was restricted in the area surrounding the hotel. The "frozen zone" extended from 6th Avenue to Broadway and from West 52nd Street to West 53rd Street. Dump trucks were also placed in front of the Sheraton to prevent cars from driving into the hotel and to protect against explosives.

         At some point, the Officers placed an additional barricade on the "press pen," enclosing it on all four sides. It is unclear whether this closure occurred before or after the President's arrival, and the Officers cannot identify who ordered the closure. After the last barricade was put in place, OWS protesters learned that they were not permitted to leave the area because the area had been ordered "frozen." The Officers advised the protesters that they could expect to be released from the press pen once President Obama was safely inside the Sheraton. Subsequently, the Officers advised the protesters that they would be released after President Obama left the vicinity. The protesters could not leave the press pen until the N.Y.P.D. permitted them to do so.^[4]

         After the President arrived at the Sheraton and while he was inside the hotel, the Officers allowed traffic and pedestrians to flow freely on 7th Avenue. The OWS protesters, however, were required to remain in the press pen. Indeed, the Officers threatened to arrest any OWS protesters who tried to leave the press pen. Meanwhile, tourists and journalists in the press pen were allowed to leave. During the President's time at the Sheraton, two protesters in the press pen developed health issues, and the Officers offered to call for an ambulance. One of those protesters chose to stay; the other left by ambulance. Shortly after the President departed the hotel at 10:25 p.m., the protesters were permitted to leave the press pen.

         The OWS protesters filed this lawsuit asserting federal claims under 42 U.S.C. § 1983 that the Officers had violated their First, Fourth, and Fourteenth Amendment rights, both directly by detaining them and indirectly by failing to intervene to stop the constitutional violations. The protesters further asserted state law claims based on the same conduct. The Officers moved for summary judgment on the grounds that the protesters' constitutional challenges failed as a matter of law and that, even if they did not fail, the Officers were entitled to qualified immunity.^[5]

         The district court determined there was a dispute of material fact with respect to the Officers' motive for fully enclosing the press pen. On the basis of that factual dispute, which the court determined precluded recognition of qualified immunity, it denied the Officers summary judgment on the OWS protesters' federal claims. According to the district court, if the Officers had detained the protesters due to a motivation "more sinister" than "presidential security," a proposition the court had to assume on summary judgment, then "clearly established law at the time of [the] detention could support" each of the OWS protesters' § 1983 claims. Berg et al. v. New York City Police Comm'r Raymond Kelly et al., No. 12-cv-3391 (TPG), 2016 WL 4257525, at *6 (S.D.N.Y. Aug. 10, 2016).

         The Officers appealed from the district court's ruling denying them qualified immunity. Before this Court the protesters moved to dismiss for lack of appellate jurisdiction. We denied the OWS protesters' motion and concluded that we have jurisdiction over this appeal "to the extent that [the Officers] can support their defense on [the protesters'] 'version of the facts that the district judge deemed available for jury resolution.'" Order, No. 163146 (Jan 11, 2017) (quoting Lynch v. Ackley, 811 F.3d 569, 576 (2d Cir. 2016)).

         The gravamen of Appellant Officers' argument is that the special needs exception applicable to the analysis of Fourth Amendment seizures, see Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 449 - 50 (1990), justified their almost two-hour-long detention of the OWS protesters in the vicinity of where the President was attending a fundraising dinner. According to the Officers, the circumstances requiring them to focus their attention on the President's security were a sufficient basis to except the detention of the protesters from the Fourth Amendment's requirement that their seizure be supported by probable cause, and in any event, it was reasonable for the Officers to believe that their actions were lawful given existing precedent. Appellee OWS protesters, on the other hand, would have us ignore whether it was objectively reasonable for the Officers to believe, under the circumstances, that they were acting within the dictates of the law. Instead, the protesters want this Court to hold, regardless of the objective reasonableness of the Officers' actions, that the Officers are not entitled to qualified immunity once we determine they violated a clearly established right. In so urging, Appellees argue that the Officers' subjective intent in applying the special needs exception is in dispute, and thus the Officers are not entitled to qualified immunity on summary judgment. The OWS protesters dispute, in any event, whether a special needs exception should apply in the context of what occurred in this case.

         In the analysis that follows, we address first the question of jurisdiction and conclude that we have jurisdiction to resolve the Officers' appeal in the procedural posture presented. We then consider whether the Officers are entitled to summary judgment because there was no violation of the protesters' Fourth Amendment rights. Because that conclusion cannot be reached as a matter of law on the present record, we proceed to consider whether the Officers are entitled to qualified immunity in any event because then-existing law did not clearly establish the unconstitutionality of the challenged detentions. We conclude that the Officers do have ...