22-1756 Cerisier v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of July, two thousand twenty-three.
PRESENT:
RICHARD J. SULLIVAN, BETH ROBINSON, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
JAMES CERISIER,
Plaintiff-Appellant,
v. No. 22-1756
CITY OF NEW YORK, NEW YORK CITY POLICE OFFICER SAURABH SHAH, in his individual capacity,
Defendants-Appellees. ∗ _____________________________________
∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: NICHOLAS BOURLAND (Richard D. Emery, on the brief), Emery Celli Brinckerhoff Abady Ward & Maazel, LLP, New York, NY.
For Defendants-Appellees: PHILLIP W. YOUNG (Richard Dearing, Melanie T. West, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.
For Amici Curiae NAACP Legal Ashok Chandran, Kevin E. Jason, Defense and Educational Fund, Inc. Catherine Logue, NAACP Legal in support of Plaintiff-Appellant: Defense and Educational Fund, Inc., New York, NY.
For Amici Curiae Giffords Law Amelia T. R. Starr, Davis Polk & Center to Prevent Gun Violence, in Wardwell LLP, New York, NY. support of Plaintiff-Appellant:
For Amici Curiae Institute for Justice, Jaba Tsitsuashvili, Anna Goodman, in support of Plaintiff-Appellant: Institute for Justice, Arlington, VA.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Eric N. Vitaliano, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
2 James Cerisier appeals from the district court’s grant of summary judgment
in favor of Officer Saurabh Shah and the City of New York (the “City”), on his
claims of excessive force under 42 U.S.C. § 1983 and assault under New York law,
both stemming from a January 2019 traffic stop during which Officer Shah drew
his gun and pointed it at Cerisier for seven to ten seconds. On appeal, Cerisier
contends that the district court erred in holding that Officer Shah was entitled to
qualified immunity. We review de novo a district court’s grant of summary
judgment, see Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006), and will affirm when
there is “no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a). We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
As relevant here, Officer Shah was on foot on the morning of January 28,
2019 conducting traffic enforcement on the Brooklyn-Queens Expressway. After
witnessing Cerisier commit an illegal lane change, Officer Shah walked in front of
Cerisier’s vehicle – which was traveling “slowly” – and directed him to pull over.
App’x at 69. Cerisier first noticed Officer Shah when he was about “15 to 20 feet
away,” and proceeded to stop his car within “a few seconds.” Id. at 70–72, 208.
Cerisier then began to change lanes after Officer Shah directed him to do so,
3 whereupon Officer Shah unholstered his weapon and pointed it at Cerisier for
seven to ten seconds. As Cerisier drove to the right and beside Officer Shah,
dashcam footage from Officer Shah’s parked patrol car shows that Officer Shah
lowered his firearm and ultimately holstered it after Cerisier pulled over. After
speaking with Cerisier for less than a minute, Officer Shah let him go with a
warning. Based on that series of events, Cerisier brought this action against Officer
Shah and the City.
The doctrine of qualified immunity shields government officials from suit
unless (1) “the official violated a statutory or constitutional right,” and (2) “the
right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). It is within our “sound discretion” to take up these questions in either
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, we need address only
the second prong of the qualified-immunity test, without deciding whether Officer
Shah’s conduct did in fact violate Cerisier’s Fourth Amendment rights.
In determining whether a right was “clearly established” at the time of the
challenged conduct, we must frame the right in light of the specific context of the
case, with all reasonable inferences drawn in Cerisier’s favor. See Tolan v. Cotton,
4 572 U.S. 650, 657 (2014) (emphasizing the “importance of drawing inferences in
favor of the nonmovant, even when, as here, a court decides only the
clearly-established prong of the standard”). While “a case directly on point” is not
required, “existing precedent must have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at 741. Furthermore, the Supreme
Court has “repeatedly” instructed lower courts to avoid defining the right at “a
high level of generality.” Id. at 742. This is “especially important in the Fourth
Amendment context, where . . . it is sometimes difficult for an officer to determine
how the relevant legal doctrine . . . will apply to the factual situation the officer
confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation marks and
alterations omitted).
Cerisier argues that, at the time he was stopped, it was clearly established
that the use of “significant force . . . without any justification” – in this case,
“pointing a loaded gun at a non-threatening and non-resisting individual” –
violates the Fourth Amendment. Cerisier Br. at 21, 25 (capitalization
standardized). But Cerisier defines the right at much too high a level of generality.
Critically, his proposed framing overlooks the specific context of this case – a
traffic stop. See Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (holding that a right
5 must be defined in light of the “particular circumstances” of the case). That context
matters because the Supreme Court “has traditionally drawn a distinction
between automobiles and homes or offices in relation to the Fourth Amendment.”
South Dakota v. Opperman, 428 U.S. 364, 367 (1976). Traffic stops, the Court has
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22-1756 Cerisier v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of July, two thousand twenty-three.
PRESENT:
RICHARD J. SULLIVAN, BETH ROBINSON, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
JAMES CERISIER,
Plaintiff-Appellant,
v. No. 22-1756
CITY OF NEW YORK, NEW YORK CITY POLICE OFFICER SAURABH SHAH, in his individual capacity,
Defendants-Appellees. ∗ _____________________________________
∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: NICHOLAS BOURLAND (Richard D. Emery, on the brief), Emery Celli Brinckerhoff Abady Ward & Maazel, LLP, New York, NY.
For Defendants-Appellees: PHILLIP W. YOUNG (Richard Dearing, Melanie T. West, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.
For Amici Curiae NAACP Legal Ashok Chandran, Kevin E. Jason, Defense and Educational Fund, Inc. Catherine Logue, NAACP Legal in support of Plaintiff-Appellant: Defense and Educational Fund, Inc., New York, NY.
For Amici Curiae Giffords Law Amelia T. R. Starr, Davis Polk & Center to Prevent Gun Violence, in Wardwell LLP, New York, NY. support of Plaintiff-Appellant:
For Amici Curiae Institute for Justice, Jaba Tsitsuashvili, Anna Goodman, in support of Plaintiff-Appellant: Institute for Justice, Arlington, VA.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Eric N. Vitaliano, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
2 James Cerisier appeals from the district court’s grant of summary judgment
in favor of Officer Saurabh Shah and the City of New York (the “City”), on his
claims of excessive force under 42 U.S.C. § 1983 and assault under New York law,
both stemming from a January 2019 traffic stop during which Officer Shah drew
his gun and pointed it at Cerisier for seven to ten seconds. On appeal, Cerisier
contends that the district court erred in holding that Officer Shah was entitled to
qualified immunity. We review de novo a district court’s grant of summary
judgment, see Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006), and will affirm when
there is “no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a). We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
As relevant here, Officer Shah was on foot on the morning of January 28,
2019 conducting traffic enforcement on the Brooklyn-Queens Expressway. After
witnessing Cerisier commit an illegal lane change, Officer Shah walked in front of
Cerisier’s vehicle – which was traveling “slowly” – and directed him to pull over.
App’x at 69. Cerisier first noticed Officer Shah when he was about “15 to 20 feet
away,” and proceeded to stop his car within “a few seconds.” Id. at 70–72, 208.
Cerisier then began to change lanes after Officer Shah directed him to do so,
3 whereupon Officer Shah unholstered his weapon and pointed it at Cerisier for
seven to ten seconds. As Cerisier drove to the right and beside Officer Shah,
dashcam footage from Officer Shah’s parked patrol car shows that Officer Shah
lowered his firearm and ultimately holstered it after Cerisier pulled over. After
speaking with Cerisier for less than a minute, Officer Shah let him go with a
warning. Based on that series of events, Cerisier brought this action against Officer
Shah and the City.
The doctrine of qualified immunity shields government officials from suit
unless (1) “the official violated a statutory or constitutional right,” and (2) “the
right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). It is within our “sound discretion” to take up these questions in either
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, we need address only
the second prong of the qualified-immunity test, without deciding whether Officer
Shah’s conduct did in fact violate Cerisier’s Fourth Amendment rights.
In determining whether a right was “clearly established” at the time of the
challenged conduct, we must frame the right in light of the specific context of the
case, with all reasonable inferences drawn in Cerisier’s favor. See Tolan v. Cotton,
4 572 U.S. 650, 657 (2014) (emphasizing the “importance of drawing inferences in
favor of the nonmovant, even when, as here, a court decides only the
clearly-established prong of the standard”). While “a case directly on point” is not
required, “existing precedent must have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at 741. Furthermore, the Supreme
Court has “repeatedly” instructed lower courts to avoid defining the right at “a
high level of generality.” Id. at 742. This is “especially important in the Fourth
Amendment context, where . . . it is sometimes difficult for an officer to determine
how the relevant legal doctrine . . . will apply to the factual situation the officer
confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation marks and
alterations omitted).
Cerisier argues that, at the time he was stopped, it was clearly established
that the use of “significant force . . . without any justification” – in this case,
“pointing a loaded gun at a non-threatening and non-resisting individual” –
violates the Fourth Amendment. Cerisier Br. at 21, 25 (capitalization
standardized). But Cerisier defines the right at much too high a level of generality.
Critically, his proposed framing overlooks the specific context of this case – a
traffic stop. See Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (holding that a right
5 must be defined in light of the “particular circumstances” of the case). That context
matters because the Supreme Court “has traditionally drawn a distinction
between automobiles and homes or offices in relation to the Fourth Amendment.”
South Dakota v. Opperman, 428 U.S. 364, 367 (1976). Traffic stops, the Court has
explained, “are especially fraught with danger to police officers.” Arizona v.
Johnson, 555 U.S. 323, 330 (2009) (internal quotation marks omitted); see also
Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (recognizing that officers face an
“inordinate risk” when approaching a vehicle during a traffic stop). We
accordingly define the right at issue here as the right not to be seized at gunpoint
– even momentarily – by an officer attempting to effectuate a lawful traffic stop on
foot when the driver is behind the wheel of a moving vehicle and is not
affirmatively threatening or actively fleeing the police.
Cerisier has not cited any cases from this Circuit supporting his contention
that such a right was clearly established at the time of the challenged conduct, and
the out-of-circuit cases on which Cerisier relies do not suggest otherwise. As an
initial matter, most of the cases Cerisier cites do not involve motor vehicles. See,
e.g., Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir. 2016); Mlodzinski v. Lewis,
648 F.3d 24 (1st Cir. 2011); Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995);
6 Binay v. Bettendorf, 601 F.3d 640 (6th Cir. 2010); McDonald v. Haskins, 966 F.2d 292
(7th Cir. 1992); Tekle v. United States, 511 F.3d 839 (9th Cir. 2007). The cases that do
involve motor vehicles, meanwhile, are distinguishable from the circumstances
here. In some cases, the challenged conduct involved the use of physical force
against a suspect. See, e.g., Checki v. Webb, 785 F.2d 534, 536 (5th Cir. 1986) (officers
struck the plaintiff with a revolver and broke his companion’s arm); Deville v.
Marcantel, 567 F.3d 156, 162 (5th Cir. 2009) (officers broke the driver’s side window
of a vehicle, grabbed driver through the window, opened the door, and pulled her
out of the vehicle). In other cases, the officer brandished his weapon for an
extended period of time. See, e.g., Vanderhoef v. Dixon, 938 F.3d 271, 275 (6th Cir.
2019) (two minutes); Wilson v. Lamp, 901 F.3d 981, 990 (8th Cir. 2018) (throughout
the incident, even after the officer realized the plaintiff was not the suspect he was
looking for); Marceline v. Delgado, No. 3:09-cv-1591 (VLB), 2011 WL 2531081, at *2
(D. Conn. June 23, 2011) (the entire encounter).
Cerisier’s reliance on Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), is similarly
misplaced. There, an undercover detective driving an unmarked patrol car had a
minor traffic altercation with the plaintiffs (a husband and wife), approached their
car, and then threatened to shoot one of them. Black, 662 F.2d at 185. The court
7 held that “[f]or an unidentified officer to brandish his revolver eighteen inches
from [the husband’s] head with [the wife] in the precise line of fire and then
threaten to shoot, is conduct that shocks the conscience.” Id. at 189. Conversely,
Officer Shah, while on duty and in uniform, pointed his weapon for seven to ten
seconds while he was on foot and Cerisier was behind the wheel of his moving
vehicle. Once Cerisier pulled over, Officer Shah holstered his gun and told
Cerisier that he was free to leave. Based on these facts, we have no reason to
conclude that Officer Shah’s conduct was barred by clearly established law.
We have considered Cerisier’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court