Washington Square Post No. 1212 American Legion v. Maduro

• Decision Date: 28 June 1990
• Docket Number: D,No. 890,890
• Citation: 907 F.2d 1288
• Parties: WASHINGTON SQUARE POST # 1212 AMERICAN LEGION, Edward Semenza, Nicholas Compiglia, Patrick Petrucelli, William Genovese, Steven J. Gambino, Thomas Stio, John De Dominici, Joseph Gigliano, and Salvatore Ianniello, Jr., Plaintiffs-Appellees, v. Denis MADURO, Paul Meyer, Susan Schnitzer, Michael Luzzo, Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry, William Jenkins, and David Stone, Agents of the Federal Bureau of Investigation, Defendants-Appellants, The City of New York, Benjamin Ward, Police Commissioner, City of New York, Denis Maduro, Paul Meyer, Susan Schnitzer, Michael Luzzo, Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry, William Jenkins, and David Stone, Agents of the Federal Bureau of Investigation, Lt. William J. Shannon, Sgt. Joseph Caiola, Det. Carl Babara, Det. Patrick Purcell, Det. Steve Gilbert, Det. Joseph Blik, Det. William Pavone, and Det. Jose Flores, Police Officers of the City of New York, Defendants. ocket 89-6243.
• Court: U.S. Court of Appeals — Second Circuit

Page 1288

907 F.2d 1288

WASHINGTON SQUARE POST # 1212 AMERICAN LEGION, Edward Semenza, Nicholas Compiglia, Patrick Petrucelli, William Genovese, Steven J. Gambino, Thomas Stio, John De Dominici Joseph Gigliano, and Salvatore Ianniello, Jr., Plaintiffs-Appellees, v. Denis MADURO, Paul Meyer, Susan Schnitzer, Michael Luzzo Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry William Jenkins, and David Stone, Agents of the Federal Bureau of Investigation, Defendants-Appellants The City of New York, Benjamin Ward, Police Commissioner, City of New York, Denis Maduro, Paul Meyer, Susan Schnitzer, Michael Luzzo, Cynthie Sumner, Stanley Nye, Thomas Finn, Richard McHenry, William Jenkins, and David Stone, Agents of the Federal Bureau of Investigation, Lt. William J. Shannon, Sgt. Joseph Caiola, Det. Carl Babara, Det. Patrick Purcell, Det. Steve Gilbert, Det. Joseph Blik, Det. William Pavone, and Det. Jose Flores, Police Officers of the City of New York, Defendants.

No. 890, Docket 89-6243.

United States Court of Appeals, Second Circuit.

Argued March 8, 1990.

Decided June 28, 1990.

Jed Rubenfeld, Asst. U.S. Atty., Southern District of New York, New York City (Otto G. Obermaier, U.S. Atty., for the Southern District of New York, Marla Alhadeff, Asst. U.S. Atty., Southern District of New York, New York City, of counsel), for defendants-appellants.

William M. Kunstler, Center for Constitutional Rights, New York City (Ronald L. Kuby, Center for Constitutional Rights, New York City, of counsel), for plaintiffs-appellees.

Before KAUFMAN, MESKILL and ALTIMARI, Circuit Judges.

MESKILL, Circuit Judge:

Ten Special Agents of the Federal Bureau of Investigation appeal from that portion of an order of the United States District Court for the Southern District of New York, Leisure, J., denying their motion for summary judgment on the issue of qualified immunity from civil liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for their warrantless entry into Washington Square Post # 1212. Summary judgment was denied because the district court concluded that defendants-appellants' knowledge concerning the selective admission policy of Post # 1212 was in dispute.

Reversed and remanded.

BACKGROUND

This action arises out of a joint federal/state investigation into the January 1986 murder of New York City police Detective Anthony Vendetti. As the facts of this case are thoroughly set forth in the district court's opinion, reported at 720 F.Supp. 337 (S.D.N.Y.1989), we shall recount only those relevant to the present appeal.

On January 21, 1986, Detective Anthony Vendetti and his partner Detective Kathleen Burke, both of whom were on assignment with the Federal Bureau of Investigation (FBI)--New York City Police Department (NYPD) Joint Organized Crime Task Force (JOCTF), were shot while conducting surveillance of Frederick Giovanelli, an alleged member of the Genovese organized crime family. Vendetti died of his wounds. Burke, who was seriously wounded, later identified Giovanelli and Carmine Gaultiere, also allegedly associated with the Genovese family, as two of the perpetrators.

In an effort to apprehend Gaultiere, a list of so-called "social clubs" allegedly frequented by members of the Genovese family was compiled and searches of approximately thirty such locations, including American Legion Post # 1212 (the Post), were planned by members of the JOCTF. Although Rule 11 of the Post's Rules and Regulations specifically limits admittance to "members," search warrants were considered to be unnecessary because, in the experience of the JOCTF members and their supervisors, social clubs like the Post generally did not enforce their selective admission policies.

At approximately 6:00 p.m. on January 23, 1986, JOCTF Squad Four members, all wearing blue windbreakers with either the letters "FBI" or "NYPD" prominently displayed, entered the Post, allegedly with their guns drawn, and orally identified themselves. Post patrons were then lined up against the walls, frisked for weapons and identification, and were interviewed and photographed. Upon completion of the search between 6:40 and 6:45 p.m., the JOCTF members learned that Gaultiere had been arrested approximately one hour earlier.

Thereafter, on June 6, 1986, certain members of the Post who were present during the search, filed suit against various federal and city defendants alleging, inter alia, that their constitutional rights were violated as a result of the warrantless entry and subsequent search. See Bivens, 403 U.S. 388, 91 S.Ct. 1999; 42 U.S.C. Sec. 1983. The federal defendants are John Hogan, Special Agent in charge of the New York JOCTF office, ten Special Agents of the FBI who were involved in the JOCTF search (the Agents) and FBI photographer Jin Moy. The city defendants are the City of New York, Police Commissioner Benjamin Ward and eight members of the NYPD. The federal and city defendants responded by filing a motion to dismiss or, in the alternative, for summary judgment challenging the sufficiency of each of plaintiffs' numerous claims on one or more grounds.

In an opinion and order dated August 31, 1989, Judge Leisure dismissed all claims against the City of New York, Commissioner Ward and Special Agent Hogan. 720 F.Supp. at 342-48, 351-54. With the exception of plaintiffs' Fourth Amendment claim, all claims against the Agents were also dismissed on summary judgment. Id. at 342-43, 351-54. However, the Agents' motion for summary judgment on the merits of the Fourth Amendment claim and for qualified immunity were denied because it was a disputed issue whether the Post was, in fact, open to the public, thus justifying a warrantless entry, or closed to non-Post members, in which case it was clearly established that a warrant was necessary. Id. at 348-51. The denial of summary judgment was based solely on the Agents' entry; the court did not address the Agents' conduct once inside the Post. Id. at 351 n. 10. The Agents now appeal the denial of their claim of qualified immunity from civil liability on plaintiffs' Fourth Amendment claim. No cross-appeals from the aforementioned dismissals were filed.

DISCUSSION

Qualified immunity has long shielded government officials performing discretionary functions from civil damages liability "insofar as 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, 2738, 73 L.Ed.2d 396 (1982). In the oft-quoted words of Justice Scalia in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action ... assessed in light of the legal rules that were 'clearly established' at the time it was taken." Id. at 639, 107 S.Ct. at 3038 (quoting Harlow, 457 U.S. at 819, 818, 102 S.Ct. at 2739, 2738); accord Krause v. Bennett, 887 F.2d 362, 368 (2d Cir.1989); Robison v. Via, 821 F.2d 913, 920-21 (2d Cir.1987). Specifically, with respect to alleged warrant clause violations, the relevant inquiry focuses on "the objective (albeit fact-specific) question whether a reasonable officer could have believed [the] ... warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed." Anderson, 483 U.S. at 641, 107 S.Ct. at 3040.

Recognizing that the " 'Fourth Amendment protects people, not places,' " Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)), the district court found the law "clear" that absent exigent circumstances, a search warrant is generally required to enter a commercial establishment that is not open to the public. 720 F.Supp. at 349; see New York v. Burger, 482 U.S. 691, 699, 107 S.Ct. 2636, 2646, 96 L.Ed.2d 601 (1987); Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305 (1978); United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977); See v. City of Seattle, 387 U.S. 541, 546, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943 (1967); see also United States v. Rahme, 813 F.2d 31, 34 (2d Cir.1987) (right to exclude others is an "important factor" militating in favor of a legitimate expectation of privacy). Conversely, the court concluded, "a search warrant is not needed if the location is open to the public." 720 F.Supp. at 349; see, e.g., Katz, 389 U.S. at 351, 88 S.Ct. at 511 (that which is "knowingly expose[d] to the public ... is not a subject of Fourth Amendment protection"); United States v. Barrios-Moriera, 872 F.2d 12, 14 (2d Cir.) ("test to determine whether a person can claim Fourth Amendment protection in a given place depends upon whether the person has a legitimate subjective expectation of privacy in that area that society is prepared to accept as objectively reasonable"), cert. denied, --- U.S. ----, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989); United States v. Paulino, 850 F.2d 93, 97 (2d Cir.1988) (same), cert. denied, --- U.S. ----, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989). On appeal, the Agents apparently concede that the district court's legal analysis of the clarity of Fourth Amendment law was correct.

Nevertheless, the Agents argue, as they did in the district court, that they are entitled to qualified immunity "because they reasonably believed that the Post was open to the public and therefore could be entered without a warrant." In support of this contention, the Agents direct our attention to their affidavits, which, in the words of Supervising Agent Maduro, state that "[b]ecause the type of social clubs which we were to visit are, in the experience of the JOCTF, open...