Berg v. Kelly, 072518 FED2, 16-3146-cv

Docket Nº:16-3146-cv
Opinion Judge:Hall, Circuit Judge:
Party Name: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, ...
Attorney: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,...
Judge Panel:Before: Raggi, Hall, and Carney, Circuit Judges.
Case Date:July 25, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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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, 1Defendants - Appellants.

No. 16-3146-cv

United States Court of Appeals, Second Circuit

July 25, 2018

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...

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