Simon v. City of N.Y.

• Decision Date: 21 June 2018
• Docket Number: August Term, 2017,Docket No. 17-1281
• Parties: Alexina SIMON, Plaintiff–Appellant, v. CITY OF NEW YORK, Francis Longobardi, Queens County Assistant District Attorney, Detective Evelyn Alegre, Detective Douglas Lee, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

893 F.3d 83

Alexina SIMON, Plaintiff–Appellant,

v.CITY OF NEW YORK, Francis Longobardi, Queens County Assistant District Attorney, Detective Evelyn Alegre, Detective Douglas Lee, Defendants–Appellees.^*

Docket No. 17-1281

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: March 1, 2018

Decided: June 21, 2018

Ugochukwu Uzoh, Ugo Uzoh, P.C., Brooklyn, NY, for Plaintiff–Appellant.

Elina Druker (Richard Dearing, Devin Slack, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants–Appellees.

Cody H. Wofsy, ACLU Foundation Immigrants’ Rights Project, San Francisco, CA; Lee Gelernt, ACLU Foundation Immigrants’ Rights Project, New York, NY; Joel B. Rudin, Vice Chair, Amicus Committee, National Association of Criminal Defense Lawyers, New York, NY; Richard D. Willstatter, Chair, Amicus Curiae Committee, New York State Association of Criminal Defense Lawyers, White Plains, NY; Mariana Kovel, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, American Civil Liberties Union Foundation, New York Civil Liberties Union Foundation, in support of Plaintiff–Appellant.

Before: Katzmann, Chief Judge, Chin, Circuit Judge, and Nathan, District Judge.^**

Katzmann, Chief Judge:

This case takes us to the intersection of an allegedly wrongful arrest and detention on a material witness warrant, the Fourth Amendment, and qualified immunity. Plaintiff Alexina Simon brought this action in the United States District Court for the Eastern District of New York (Vitaliano, J .) under 42 U.S.C. § 1983, claiming that a state prosecutor and two police officers falsely arrested and imprisoned her in violation of the Fourth Amendment. Simon alleges that the defendants unlawfully detained her for 18 hours over two days on the authority of a warrant that, on its face, directed police officers to bring Simon to court at a fixed date and time to determine whether she should be adjudged a material witness and detained. Simon was never presented to the court. The district court, relying chiefly on the lack of case law analyzing the constitutionality of material witness seizures and detentions, held that the defendants are entitled to qualified immunity and granted summary judgment in their favor.

We conclude that, with the facts taken in the light most favorable to Simon, the defendants violated the Fourth Amendment. A warrant must be executed in conformity with its terms. See, e.g. , Miller v. Kennebec Cty. , 219 F.3d 8, 11 (1st Cir. 2000) ("[I]t is self-evident that a seizure conducted pursuant to an arrest warrant must conform to the terms of that warrant."). Here, the warrant required the defendants to produce Simon to court on August 11, 2008, at 10:00 a.m., but they instead detained her for 18 hours over August 11 and 12, occasionally interrogated her about a crime, and never presented her to a judge.

We further conclude that the unlawfulness of the defendants’ conduct was clearly established when they acted. This is an uncommon " ‘obvious case’ " in which "the unlawfulness of the [defendants’] conduct is sufficiently clear even though existing precedent does not address similar circumstances." District of Columbia v. Wesby , ––– U.S. ––––, 138 S.Ct. 577, 590, 199 L.Ed.2d 453 (2018) (quoting Brosseau v. Haugen , 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) ). No officer who is executing a warrant that requires that a prospective material witness be brought before a judge at a fixed date and time to determine whether the witness should be detained can reasonably believe that she is free instead to detain and interrogate the witness for hours on end outside of court supervision.

We are also unpersuaded by the defendants’ contention that they are entitled to qualified immunity from claims arising out of the second day’s events because reasonable officers could disagree about whether Simon consented to accompany them. A long line of cases holds that securing someone’s presence at a police station using coercive tactics like those employed by the defendants here—including entering Simon’s home and telling her that her attendance is mandatory—is constitutionally indistinguishable from a traditional arrest.

Accordingly, the judgment of the district court is VACATED and this case is REMANDED for further proceedings consistent with this decision.

BACKGROUND

New York State’s material witness statute provides that a court, upon an appropriate application, may order that a person who has information material to a criminal proceeding be detained to secure her attendance at the proceeding. See N.Y. Crim. Proc. Law §§ 620.10 –50. The statute affords significant procedural protections to prospective material witnesses.

First, the applicant—here, the government—must apply for a "material witness order," which is "a court order (a) adjudging a person a material witness in a pending criminal action and (b) fixing bail to secure his future attendance thereat." Id. §§ 620.10, 620.30. Such an order may be issued if there is "reasonable cause to believe" that a prospective witness in a criminal action "[p]ossesses information material to the determination of such action" and "[w]ill not be amenable or responsive to a subpoena at a time when his attendance will be sought." Id. § 620.20(1); see also People v. Maldonado , 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 (1995) ("Reasonable cause means probable cause."). If presented with a "well founded" application, a court may convene a hearing to determine whether "[someone] should be adjudged a material witness." N.Y. Crim. Proc. Law § 620.30(2)(a). If there is also reasonable cause to believe that "the witness would be unlikely to respond" to an order to appear at said hearing (or has already flouted one), then the court may issue "a warrant ... directing [a police] officer to take such prospective witness into custody within the state and to bring him before the court forthwith in order that a proceeding may be conducted to determine whether he is to be adjudged a material witness." Id. § 620.30(2)(b).

Once the prospective material witness has been brought before the court, the judge "must inform him of the nature and purpose of the proceeding, and that he is entitled to a prompt hearing upon the issue of whether he should be adjudged a material witness." Id. § 620.40(1). The hearing can be held immediately or adjourned to allow the witness to arrange for counsel. Id. § 620.40(2). The applicant must show by "a preponderance of the evidence all facts essential to support a material witness order," i.e. , that the person has information material to a criminal proceeding and will not respond to a subpoena requiring her attendance thereat. Id. § 620.50(1)(a). An adjudged material witness may either be released on bail or committed to state custody. Id. § 620.50(3).

In 2008, Shantell McKinnies, an officer of the New York Police Department (NYPD), was under investigation for potential insurance fraud.¹ McKinnies’ car, which she had reported stolen, had turned up in a "chop shop" covertly run by the NYPD. According to McKinnies, her friend "Alexandra Griffin" was the last person to drive her car. But "Alexandra Griffin" told an NYPD officer that she had never been given the vehicle, was not the last person to drive it, and did not even have a driver’s license, raising suspicions that McKinnies had filed a false report. "Alexandra Griffin" also told the officer that her surname was not Griffin, but Simon. It would eventually become clear that her real name is Alexandra Dormoy, and that Dormoy is the daughter of plaintiff Alexina Simon.

The McKinnies investigation was assigned to defendant Francis Longobardi, who was at the time an Assistant District Attorney in the Public Integrity Bureau of Queens County District Attorney’s Office. By June 2008, Longobardi, who wanted to speak with Dormoy about the investigation, had come to believe that her name was not Alexandra Simon or Alexandra Griffin, but Alexina Simon. Longobardi sent Dormoy several subpoenas that went unanswered and spoke with Dormoy a handful of times by telephone. On August 8, 2008, Longobardi and Dormoy had a telephone conversation during which Longobardi stated, "I’m trying to reach Alexina Simon" and asked, "Is this Alexina Simon?" J. App’x 351. Dormoy did not answer the question but continued to speak as though she were Simon. Dormoy refused to appear for an interview or say anything about the case and told Longobardi that the subpoenas were harassing.

Left with few options, Longobardi sought to compel Dormoy to disclose what she knew. On August 8, 2008, he applied to Queens County Supreme Court for a hearing on August 11, 2008, at 10:00 a.m. "for the purpose of adjudging Alexina Simon a material witness" and an arrest warrant to secure Alexina Simon’s attendance at the hearing. J. App’x 31. Justice Kenneth C. Holder entered an order convening such a hearing at the requested date and time. Justice Holder also issued a warrant for Simon’s arrest. In relevant part, the warrant recited that "an order having been granted ... directing ... ALEXINA SIMON to appear at a hearing at the Queens County Courthouse in the City of New York on August 11, 2008 at 10:00 in the forenoon to determine whether ALEXINA SIMON should be adjudged a material witness," police officers were "commanded forthwith to take the above-named ALEXINA SIMON into custody ... and bring her before this Court in order that a proceeding may be conducted to determine whether she is to be adjudged a material witness." Id. at 27 (emphasis omitted). Longobardi gave the warrant to defendants Evelyn Alegre and Douglas Lee, both NYPD detectives.

On the morning of August 11, 2008, Simon was working her housekeeping shift at the Millennium Broadway Hotel. A little after 10:00 a.m., a...