Phoebe Berg, individually and on behalf of a class of all others similarly situated, Toshiro Kida, individually and on behalf of a class of all others similarly situated, John Rivera, individually and on behalf of a class of all others similarly situated, Dayna Rozental, individually and on behalf of a class of all others similarly situated, Jonathan Jet- ter, individually and on behalf of a class of all others similarly situated, Plaintiffs - Appellees,
v.
NYCP Commissioner Raymond Kelly, Chief of NYC P.D. Joseph Esposito, James McNamara, Deputy Chief, in his individual and official capacities, Peter Loehle, Inspector, in his individual and official capacities, Stephen Latalardo, Lieutenant, in his individual and official capacities, John Doe, New York City Police Department, (whose identity is not currently known but who are known to be police officers and/or supervisory personnel of the New York City Police Department); in his individual and official capacities, [1]Defendants - Appellants.
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 ...