Vives v. City of New York

• Citation: 524 F.3d 346
• Decision Date: 01 May 2008
• Docket Number: Docket No. 05-1664-cv.
• Parties: Carlos VIVES, Plaintiff-Appellee, v. The CITY OF NEW YORK and Raymond Kelly, Commissioner of the New York City Police Department,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

524 F.3d 346

Carlos VIVES, Plaintiff-Appellee, v. The CITY OF NEW YORK and Raymond Kelly, Commissioner of the New York City Police Department,^* Defendants-Appellants.

Docket No. 05-1664-cv.

United States Court of Appeals, Second Circuit.

Argued: December 16, 2005.

Decided: May 1, 2008.

Elizabeth I. Freedman, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Francis F. Caputo and Caryn Rosencrantz, Assistant Corporation Counsels, on the brief), New York, NY, for Defendants-Appellants.

Christopher Dunn (Arthur Eisenberg and Corey Stoughton on the brief), New York Civil Liberties Union Foundation, New York, NY, for Plaintiff-Appellee.

Before: POOLER, KATZMANN, and PARKER, Circuit Judges.

POOLER, Circuit Judge:

INTRODUCTION

Carlos Vives sent a New York City ("City") politician written materials that were likely to cause her alarm and that did alarm her. As a result, he was arrested for violating New York Penal Law § 240.30(1), which criminalizes such actions, and detained for several hours. In a decision that has not been appealed, the United Stated District Court for the Southern District of New York (Scheindlin, J.) held that Section 240.30(1) is unconstitutionally overbroad on its face. In the determination now under review, the district court held that the City promulgated a policy within the meaning of Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), by choosing to enforce Section 240.30(1). Damages were then tried to a jury, which awarded Vives $3,300. On appeal, the City argues that its enforcement of Section 240.30(1) cannot be construed as a Monell policy. We find that the record before the district court did not justify a grant of summary judgment and therefore vacate and remand for further proceedings that could include additional discovery, briefing by New York's Solicitor General, and a new decision by the district court.

BACKGROUND

Vives, a resident of the City, sometimes sends press clippings and written statements to "people of the Jewish faith with the intent to alarm them about current world events that have been prophesied in the Bible, including the unification of the European countries into a single political and military entity." Vives v. City of New York, 305 F.Supp.2d 289, 294 (S.D.N.Y. 2003) ("Vives I") (quoting August 21, 2003, affidavit of Carlos Vives ¶ 4), rev'd in part, 405 F.3d 115 (2d Cir.2004) ("Vives II"). He sent one such packet to Jane Hoffman, who was then a candidate for Lieutenant Governor. Although City police officers found no threatening statements in the packet, they were instructed by their supervising lieutenant to arrest Vives for aggravated harassment in violation of Section 240.30, which provides that "[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . [1] communicates with a person, anonymously or otherwise, by . . . mail . . ., in a manner likely to cause annoyance or alarm."

As a result of this arrest, Vives was held in a cell for several hours. Ultimately, the district attorney declined to prosecute.

Vives sued the City, the two detectives who arrested him, and Raymond Kelly, the police commissioner, alleging, inter alia, that his arrest and subsequent detention violated his First and Fourth Amendment rights. He sought damages, a declaration that Section 240.30(1) is unconstitutional insofar as it prohibits merely "annoying or alarming" speech, and injunctive relief.

The parties cross-moved for summary judgment. The district court held that (1) because Section 240.30(1) violated the First Amendment, the officers lacked probable cause to arrest Vives and violated the Fourth Amendment, Vives I, at 301-02; (2) the officers did not establish that they were entitled to qualified immunity as a matter of law, id. at 303; and (3) injunctive relief would issue against Kelly prohibiting him from enforcing the objectionable portion of the statute against Vives but not against others, id. at 304.

Defendants brought an interlocutory appeal challenging the qualified immunity determination. Without deciding whether the statute was constitutional, we reversed, holding "that defendants did not have fair notice of section 240.30(1)'s purported unconstitutionality." Vives II, 405 F.3d at 118. In a separate partial concurrence and partial dissent, Judge Cardamone argued that the court should have reached the issue of Section 240.30(1)'s constitutionality and found it to be unconstitutional. See id. at 119-24 (Cardamone, J., concurring in part and dissenting in part).

Even before our decision in Vives II, the City moved for judgment pursuant to Federal Rule of Civil Procedure 12(c), contending that Vives could not establish that any City policy caused him harm because Section 240.30(1) was enacted by the state legislature. The district court denied the City's motion in an oral decision. The district court held that there was a dispositive difference between state statutes that a municipality is required to enforce and state statutes that a municipality is merely authorized to enforce. The district court concluded that a municipality cannot be liable for enforcing a mandatory state statute but it can be liable for enforcing statutes that merely authorize enforcement by municipalities. Having denied the Rule 12(c) motion, the court allowed the parties to pursue discovery to determine whether New York required or commanded the city to enforce state penal laws.

After discovery, the parties cross-moved for summary judgment on municipal liability. The district court granted summary judgment to plaintiffs because it was undisputed that the City had a practice and policy of enforcing Section 240.30(1) and the City offered no evidence that it was mandated to enforce the statute. Vives v. City of New York, No. 02-Civ-6646, 2004 WL 2997947, at *2-3 (S.D.N.Y. Dec.27, 2004).

Following a jury trial on damages, the City appealed, contending solely that the district court erred when it held that the City's policy of enforcing Section 240.30(1) is a municipal policy within the meaning of Monell.

DISCUSSION

Where a plaintiff claims a constitutional violation as a consequence of the decision of a municipality to enforce an unconstitutional state statute, blame could theoretically be allocated three ways: first, to the state that enacted the unconstitutional statute; second, to the municipality that chose to enforce it; and third, to the individual employees who directly violated plaintiff's rights. As a practical matter, however, damages are not available against the state because it is not a person within the meaning of Section 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Moreover, like the individual defendants in this case, individual employees will often be able to successfully assert qualified immunity. Thus, the plaintiff will often be left to assert his damages claim only against the municipality.

Unlike a state, a municipality is a person within the meaning of Section 1983, see Monell, 436 U.S. at 690, 98 S.Ct. 2018, and, unlike individual defendants, a municipality may not assert qualified immunity based on its good faith belief that its actions or policies are constitutional, see Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). The Owen Court explained its decision not to extend qualified immunity to municipalities as follows:

We believe that today's decision, together with prior precedents in this area, properly allocates [the costs of official misconduct] among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him for personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy."

Owen, 445 U.S. at 657, 100 S.Ct. 1398 (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018). Thus, a municipality is liable for even its good faith constitutional violations presuming that the municipality has a policy that causes those violations. See id.

"[T]he word `policy' generally implies a course of action consciously chosen from among various alternatives." Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Policy, in the Monell sense, may of course be made by the municipality's legislative body, see Owen, 445 U.S. at 628-29, 100 S.Ct. 1398, but it also may be made by a municipal official "possess[ing] final authority to establish municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). In identifying the official having authority with respect to a particular issue, federal courts must analyze state law. McMillian v. Monroe County, 520 U.S. 781, 786, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997).

The crux of the City's argument is that although it has a "policy in fact" of enforcing the Penal Law, it is the State's enactment of Section 240.30(1) that caused Vives's constitutional violation. The City contends that "[a] municipality does not implement or execute a policy officially adopted and promulgated by its officers when it merely enforces the Penal Law of...