728 F.3d 149 (2nd Cir. 2013), 11-5403, Gonzalez v. City of Schenectady

Docket Nº:11-5403
Citation:728 F.3d 149
Opinion Judge:DENNIS JACOBS, Chief Judge:
Party Name:JONATHAN GONZALEZ, Plaintiff-Appellant, - v. CITY OF SCHENECTADY; JOHN MALONEY, individually and in his capacity as an employee of the City of Schenectady, New York, Police Department; SEAN DALEY, individually and in his capacity as an employee of the City of Schenectady, New York, Police Department; ERIC PETERS, individually and in his capacity as
Attorney:JAMES BRIAN LeBOW, LeBow and Associates, PLLC, New York, New York, for Appellant. MICHAEL JOSEPH MURPHY, Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, New York, for Appellees.
Judge Panel:Before: JACOBS, Chief Judge, POOLER and CHIN, Circuit Judges. POOLER, Circuit Judge, dissenting. POOLER POOLER, Circuit Judge, dissenting:
Case Date:August 28, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 149

728 F.3d 149 (2nd Cir. 2013)

JONATHAN GONZALEZ, Plaintiff-Appellant, -

v.

CITY OF SCHENECTADY; JOHN MALONEY, individually and in his capacity as an employee of the City of Schenectady, New York, Police Department; SEAN DALEY, individually and in his capacity as an employee of the City of Schenectady, New York, Police Department; ERIC PETERS, individually and in his capacity as an employee of the City of Schenectady, New York, Police Department; COUNTY OF SCHENECTADY, Defendants-Appellees

No. 11-5403

United States Court of Appeals, Second Circuit

August 28, 2013

Submitted January 7, 2013.

Page 150

[Copyrighted Material Omitted]

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Jonathan Gonzalez appeals from the judgment of the United States District Court for the Northern District of New York (Hurd, J.) dismissing on summary judgment Gonzalez's § 1983 complaint alleging false arrest and unlawful search. Because there was " arguable" probable cause to arrest Gonzalez and the law relevant to the body cavity search at issue was not clearly established, we affirm the grant of qualified immunity. In a separate opinion, Judge Pooler concurs in part and dissents in part.

JAMES BRIAN LeBOW, LeBow and Associates, PLLC, New York, New York, for Appellant.

MICHAEL JOSEPH MURPHY, Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, New York, for Appellees.

Before: JACOBS, Chief Judge, POOLER and CHIN, Circuit Judges. POOLER, Circuit Judge, dissenting.

OPINION

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DENNIS JACOBS, Chief Judge:

Jonathan Gonzalez brought suit against the City and County of Schenectady and three Schenectady police officers under 42 U.S.C. § 1983 and state law alleging arrest without probable cause and conduct of a visual body cavity search in violation of the Fourth Amendment. In an area known for drug activity, Gonzalez told a confidential informant (who was wearing a wire), " What do you need? I can get you whatever you need." Gonzalez was arrested, taken to the police station, and subjected to a visual body cavity search. Gonzalez was required to take off his clothes and stand against a wall, where he spread his legs and spread his buttocks. Officers saw a protruding plastic bag, which contained crack cocaine.

Gonzalez was charged with criminal possession of a controlled substance and, after losing his suppression motion, was convicted by a jury and sentenced to two-and-a-half years' imprisonment followed by two years' post-release supervision. The New York Supreme Court, Appellate Division, Third Department, reversed the conviction on the ground that the visual body cavity search was unlawful, relying on a New York Court of Appeals case, People v. Hall, that was decided after the search took place.

Gonzalez brought suit in the Northern District of New York, under 42 U.S.C. § 1983,

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alleging false arrest and unlawful search, and naming the City, the County, and the three officers involved with the search. The district court granted summary judgment in favor of defendants on the ground of qualified immunity. Gonzalez appeals, and for the following reasons, we affirm.

BACKGROUND

On May 16, 2006, the Schenectady Police Department was conducting a buy-and-bust operation using a confidential informant who was wearing a wire. The confidential informant drove to a parking lot in an area of Schenectady known as a drug mart. With him were a woman and her boyfriend Matt. The pair got out of the car while the confidential information stayed inside.

In a conversation heard by police via the wire, Gonzalez approached Matt and asked, " What's up?" Matt said he was " trying to get something." Gonzalez responded: " What do you need? I can get you whatever you need." Because the buy and bust was targeting a different dealer, the woman said, " We are all set," and Gonzalez walked away.

Officers John Maloney and Sean Daley, defendants here, had observed the encounter but did not hear the conversation. Detective Christopher Cowell, who had listened in, radioed to tell them that Gonzalez had just attempted to sell drugs. Gonzalez then walked to the bus station to buy a ticket to the Bronx to visit his mother. At the bus station, two other officers__ Robert Dashnow and defendant Eric Peters--approached Gonzalez with guns drawn, told him to get on the ground outside the station, and searched him. After finding nothing, they placed him in a van, and Officer Daley began to question him and search him again.

At the police station, Officers Peters and Maloney elicited Gonzalez's background information, and then told him to take his clothes off. When Gonzalez was undressed, Officer Maloney instructed him to stand against the wall, spread his legs, and spread his buttocks so they could see inside. The officers observed a " little plastic bag sticking out . . . of [his] rectum." Gonzalez alleges that one of the officers then " put his fingers in [Gonzalez's] rectum penetrating [his] rectum" and removed a bag containing drugs. He claims that this (as opposed to the storage) caused him to bleed for approximately a year afterwards. Defendants assert that Gonzalez pulled it out himself.

Gonzalez was charged with criminal possession of a controlled substance. The trial court denied his motion to suppress the drugs found in the search, focusing almost exclusively on whether there was probable cause to arrest Gonzalez, and concluding that there was. The court made only a passing remark about the legality of the search itself: " Subsequent to [Gonzalez's] arrest, a lawfully conducted strip search did in fact reveal that [he] possessed cocaine."

A jury convicted Gonzalez of Criminal Possession of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fourth Degree, and he was sentenced to two-and-a-half years' imprisonment and two years' post-release supervision.

On December 24, 2008, the New York Supreme Court, Appellate Division, Third Department, reversed the conviction, concluding that " there was no specific, articulable factual basis supporting a reasonable suspicion for conducting the visual cavity inspection here. . . . [A]nd the evidence related to the inspection should have been suppressed." People v. Gonzalez, 57 A.D.3d 1220, 1222, 870 N.Y.S.2d 529 (3d Dep't 2008).

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The Third Department cited People v. Hall, 10 N.Y.3d 303, 886 N.E.2d 162, 856 N.Y.S.2d 540 (2008), in support of its conclusion that the police needed reasonable suspicion that they would find contraband in Gonzalez's body cavity.

Gonzalez filed a summons in New York Supreme Court on July 27, 2009, against the City of Schenectady, the County of Schenectady, and Officers Maloney, Daley, and Peters under 42 U.S.C. § 1983, arguing that the arrest and visual body cavity search violated Gonzalez's Fourth Amendment right to be free from unreasonable searches and seizures.1 Defendants removed the case to the Northern District of New York (Hurd, J.). The district court dismissed the case on summary judgment in November 2011, concluding that the officers were entitled to qualified immunity for the arrest because there was " arguable probable cause." It also concluded that they were entitled to qualified immunity for the search because the law on body cavity searches was not clearly established when the search occurred, Hall having been decided (in 2008) two years after the search. The claims against the City and County were dismissed because Gonzalez alleged only vicarious liability.2

DISCUSSION

The Court reviews de novo a decision on a motion for summary judgment. Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 763 (2d Cir. 2002); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Miller, 321 F.3d at 300. In assessing a motion for summary judgment, a Court is " required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment [was granted]." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted).

I

The doctrine of qualified immunity protects government officials from suit if " their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The issues on qualified immunity are: (1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was " clearly established" ; and (3) even if the right was " clearly established," whether it was " objectively reasonable" for the officer to believe the conduct at issue was lawful. Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d Cir. 2010).

To be clearly established, " [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In this way, qualified immunity shields official conduct that is " 'objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken.'"

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X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (alterations omitted) (quoting Anderson, 483 U.S. at 639); see also Taravella, 599 F.3d at 134-35.

II

A § 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). " The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Id. (internal quotation marks omitted); see also Broughton v. State, 37 N.Y.2d 451,...

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