Salmon v. Blesser

• Decision Date: 10 September 2015
• Docket Number: No. 14–1993–cv.,14–1993–cv.
• Parties: Oliver SALMON, Plaintiff–Appellant, v. Thomas BLESSER, individually and in his Official Capacity as an Albany, New York Police Officer, Albany Police Department, City of Albany, New York, Defendants–Appellees, John Doe, 1 and 2, the Name Being Fictitious but Intended to Represent One or More Employees of the Albany Police Department, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

802 F.3d 249

Oliver SALMON, Plaintiff–Appellant

v. Thomas BLESSER, individually and in his Official Capacity as an Albany, New York Police Officer, Albany Police Department, City of Albany, New York, Defendants–AppelleesJohn Doe, 1 and 2, the Name Being Fictitious but Intended to Represent One or More Employees of the Albany Police Department, Defendants.

No. 14–1993–cv.

United States Court of Appeals, Second Circuit.

Submitted: June 15, 2015.

Decided: Sept. 10, 2015.

Keith Frank Schockmel, Esq., Albany, N.Y., for Plaintiff–Appellant.

Eric Sugar, Assistant Corporation Counsel, Albany, N.Y., for John J. Reilly, Corporation Counsel, Albany, N.Y., for Defendants–Appellees.

Before: JACOBS, RAGGI, and LYNCH, Circuit Judges.

Opinion

REENA RAGGI, Circuit Judge:

Plaintiff Oliver Salmon sued the City of Albany, the Albany Police Department, Police Officer Thomas Blesser, and two “John Doe” employees of the Police Department under 42 U.S.C. § 1983 and New York State law for alleged constitutional and tort injuries resulting from the use of physical force to eject him from the Albany City Court. Salmon now appeals from a judgment entered on May 29, 2014, in the United States District Court for the Northern District of New York (Mae A. D'Agostino, Judge ) dismissing his complaint in all respects. See Salmon v. Blesser, No. 1:13–cv–1037(MAD/RFT), 2014 WL 1883552 (N.D.N.Y. May 12, 2014). Specifically, Salmon appeals from the dismissal of his claims against Officer Blesser, in his individual capacity, under the First and Fourth Amendments as incorporated by the Fourteenth Amendment and under state law prohibiting intentional infliction of emotional distress. See Fed.R.Civ.P. 12(b)(6).¹

On de novo review, see, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d 25, 26 (2d Cir.2015), we affirm the challenged dismissal of Salmon's First Amendment and emotional distress claims, but we vacate dismissal of his Fourth Amendment claim. To the extent the district court relied on Sheppard v. Beerman, 18 F.3d 147 (2d Cir.1994), to conclude that removals from courthouses do not constitute “seizures” subject to the Fourth Amendment, we explain herein that Sheppard states a general rule that a police order to leave an area, without more, does not effect a seizure of the person so ordered. Nevertheless, where, as here, an official uses physical force to effect the ejection, so that for a time, however brief, he intentionally restrains the person and controls his movements, a plaintiff can plausibly plead a seizure subject to the Fourth Amendment's reasonableness requirement. Accordingly, we affirm in part, vacate in part, remand the case to the district court for further proceedings consistent with this opinion.

I. Background

A. Salmon's Removal from the Courthouse

The following facts are drawn from Salmon's complaint and are presumed to be true for purposes of this appeal. See Diaz v. Paterson, 547 F.3d 88, 91 (2d Cir.2008).

On September 1, 2010, Salmon accompanied his attorney to the Albany City Court to examine a court file. Because only lawyers were permitted into the clerk's office where the file was kept, Salmon waited in a public area outside the office while his attorney went inside. As Salmon waited, Officer Blesser approached and ordered persons to leave the area. Salmon explained that he was waiting for his attorney and offered to summon counsel to confirm that fact. According to Salmon, Blesser “became enraged ..., and without warning, grabbed [Salmon] by the collar and violently twisted his arm up behind his back and began shoving [him] toward the door.” Compl. ¶ 23. When Salmon complained that Blesser was hurting him, Blesser twisted Salmon's arm further. Blesser then “physically threw [Salmon] out the door and threatened [him] with arrest” if he reentered the building. Id. ¶ 28. Salmon asserts that these actions caused him permanent physical injury.

B. Procedural History

On August 23, 2013, Salmon filed this federal action. Defendants moved to dismiss, which motion the district court granted on May 12, 2014. See Salmon v. Blesser, 2014 WL 1883552. As to the Fourth Amendment claim of unreasonable seizure, the district court concluded that Salmon failed plausibly to plead a seizure of his person in light of Sheppard v. Beerman, wherein this court held that a fired law clerk was not seized when court officers ordered him to leave his formerly employing judge's chambers and escorted him out of the courthouse. See id. at *6–7. Sheppard explained that no seizure occurred because the clerk remained “free to go anywhere else that he desired, with the exception of [the judge's] chambers and the court house.” Sheppard v. Beerman, 18 F.3d at 153 (internal quotation marks omitted). To the extent Salmon also complained of excessive force, the district court held that such a claim was not cognizable absent a seizure. See Salmon v. Blesser, 2014 WL 1883552, at *7.

The district court afforded Salmon 14 days to amend his complaint. Rather than amend, however, Salmon let the deadline pass, whereupon he filed notice of this appeal.²

II. Discussion

A. Fourth Amendment Claim

Salmon's appeal from the dismissal of his Fourth Amendment claim against Blesser presents us with a single question: Did he allege facts sufficient to plead a plausible “seizure” of his person? See County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (noting that “Fourth Amendment covers only ‘searches and seizures' ”). We conclude that he did.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court ruled that a person is seized “when [an] officer, by means of physical force or show of authority, ... in some way restrain[s] the liberty of a citizen.” Id. at 19 n. 16, 88 S.Ct. 1868. Determining when “physical force” effects such restraint has normally been straightforward. See, e.g., id. at 7, 88 S.Ct. 1868 (describing seizure in which officer “grabbed ... Terry, spun him around ..., and patted down the outside of his clothing”); United States v. Freeman, 735 F.3d 92, 96 (2d Cir.2013) (concluding that suspect was seized when officer “grabb[ed him] around the waist ... placing him in a ‘bear hug’ ”). To explain when a sufficient “show of authority” effects restraint, the Supreme Court has relied on a totality-of-the-circumstances test, asking whether a reasonable person would believe that he was “not free to leave.” INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (internal quotation marks omitted); accord Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ; United States v. Simmons, 560 F.3d 98, 105 (2d Cir.2009). Indeed, we referenced this “free to leave” test in Sheppard v. Beerman, identifying no seizure where a fired law clerk “was free to go anywhere else that he desired with the exception of [the judge's] chambers and the court house.” 18 F.3d at 153 (internal quotation marks omitted) (observing that if authorities had retained Sheppard's car keys or wallet, he arguably would have been seized because that would have prevented him from being free to leave).

As the Supreme Court has recognized, the “free to leave” test may not be the best measure of a seizure where a person has no desire to leave the location of a challenged police encounter. See Florida v. Bostick, 501 U.S. 429, 434–36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (observing, in context of bus sweep, that “when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel he or she could leave is not an accurate measure of the coercive effect of the encounter”). Thus, Bostick framed the seizure inquiry as “whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.” Id. at 436, 111 S.Ct. 2382.³ The “request” at issue in the Bostick encounter was for a seated passenger to answer questions and allow his luggage to be searched. See id. at 431–32, 111 S.Ct. 2382. Noting that such requests, by themselves, would not effect a seizure if posed in a terminal lobby to passengers who could walk away, the Supreme Court remanded for consideration of whether any different conclusion obtained when the “free to decline/terminate” standard was applied to the bus sweep at issue. See id. at 434–35, 437, 111 S.Ct. 2382.

The circumstances in this case are not analogous to either Bostick or Delgado. Blesser was not looking to question or search Salmon at a site where he wished to remain. Nor was he seeking to prevent Salmon from leaving the courthouse. To the contrary, Blesser actively sought Salmon's departure from the courthouse. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(c), at 619 (5th ed.2012) (noting distinction between police conduct conveying “not that the person was ‘not free to leave,’ but rather that he was ‘not free to stay’ ” (emphasis in original)).

Police officers frequently order persons to leave public areas: crime scenes, accident sites, dangerous construction venues, anticipated flood or fire paths, parade routes, areas of public disorder, etc. A person may feel obliged to obey such an order. Indeed, police may take a person by the elbow or employ comparable guiding force short of actual restraint to ensure obedience with a departure order. Our precedent does not view such police conduct, without more, as a seizure under the Fourth Amendment as long as the person is otherwise free to go where he wishes. That is the crux of Sheppard v. Beerman, which concluded that a person who is ordered to leave a judge's chambers and then escorted out of the courthouse has not been seized because the person remains free to go anywhere else that he wishes.See 18 F.3d at 153 ; see generally Stephen E. Henderson, “Move on Orders” as Fourth Amendment Seizures, 2008 B.Y.U. L.Rev. 1, 45 (2008) (arguing that “move on” orders are generally not Fourth Amendment seizures). Thus, if Blesser...