19-1693-cv Concepcion v. New York City Department of Education
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 3 of New York, on the 30th day of November, two thousand twenty. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 MICHAEL H. PARK, 7 Circuit Judges, 8 JED S. RAKOFF, 9 Judge.* 10 ------------------------------------------------------------------ 11 TINA R. CONCEPCION, 12 RAYMOND CONCEPCION, 13 14 Plaintiffs-Appellants, 15 16 v. 19-1693-cv 17 18 NEW YORK CITY DEPARTMENT OF 19 EDUCATION, CITY OF NEW YORK, SCHOOL 20 SAFETY AGENT BARRIOS, SCHOOL SAFETY 21 AGENT RUPERTO, ASSISTANT PRINCIPAL
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 1 JOSEPH BURBANO, PRINCIPAL AURELIA 2 CURTIS, DEAN TROY MCGHIE, 3 4 Defendants-Appellees.** 5 ------------------------------------------------------------------ 6 FOR PLAINTIFFS-APPELLANTS: KRISTIAN KARL LARSEN, Larsen 7 Advocates, P.C. (Kenneth 8 Foard McCallion, McCallion & 9 Associates LLP, on the brief), 10 New York, NY. 11 12 FOR DEFENDANTS-APPELLEES: ANTONELLA KARLIN (Devin 13 Slack, Ingrid R. Gustafson, Of 14 Counsel, on the brief), on behalf 15 of James E. Johnson, 16 Corporation Counsel of the 17 City of New York, New York, 18 NY.
19 Appeal from a judgment of the United States District Court for the Eastern
20 District of New York (Ann M. Donnelly, Judge).
21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
22 AND DECREED that the judgment of the District Court is VACATED and
23 REMANDED in part and AFFIRMED in part.
24 Plaintiffs-Appellants Raymond Concepcion (“Concepcion”) and his
** The Clerk of Court is directed to amend the official caption to conform with the above caption.
2 1 mother Tina R. Concepcion appeal from the May 7, 2019 judgment of the District
2 Court (Donnelly, J.) granting summary judgment in favor of the Defendants-
3 Appellees on his § 1983 false arrest and excessive force claims. Both claims arise
4 from Concepcion’s arrest by school safety agents (“SSAs”) while he was a high
5 school student, after he resisted their attempts to take him to the office of high
6 school dean Troy McGhie. We assume the parties’ familiarity with the
7 underlying facts and prior record of proceedings, to which we refer only as
8 necessary to explain our decision to affirm in part and vacate and remand in
9 part.
10 1. False Arrest
11 “[S]ummary judgment dismissing a plaintiff’s false arrest claim is
12 appropriate if the undisputed facts indicate that the arresting officer’s probable
13 cause determination was objectively reasonable.” Jenkins v. City of New York,
14 478 F.3d 76, 88 (2d Cir. 2007). “Probable cause exists when one has knowledge
15 of . . . facts and circumstances that are sufficient to warrant a person of
16 reasonable caution in the belief that an offense has been or is being committed by
17 the person to be arrested.” Williams v. Town of Greenburgh, 535 F.3d 71, 79 (2d
3 1 Cir. 2008) (quotation marks omitted).
2 In dismissing Conception’s claim of false arrest based on the summary
3 judgment record, the District Court concluded that the SSAs who arrested
4 Concepcion had probable cause to arrest him for disorderly conduct because he
5 resisted their efforts to take him to the dean’s office. On appeal, Concepcion
6 argues that this conclusion was in error.
7 We may affirm on any ground supported by the record, even if it differs
8 from that relied upon by the District Court. See United States v. Parnell, 959 F.3d
9 537, 540 n.4 (2d Cir. 2020). We need not decide whether, as the District Court
10 determined, the SSAs had probable cause to arrest Concepcion for disorderly
11 conduct. Instead, on this record, we conclude that the SSAs had probable cause
12 to arrest Concepcion for obstruction of governmental administration under New
13 York Penal Law § 195.05. “A person is guilty of obstructing governmental
14 administration when he . . . prevents or attempts to prevent a public servant
15 from performing an official function, by means of . . . physical force or
16 interference . . . .” N.Y. Penal Law § 195.05. There is no genuine dispute that
17 Concepcion physically resisted the SSA’s initial efforts to take him to the dean’s
4 1 office, in violation of § 195.05. See In re Joe R., 843 N.Y.S.2d 58, 59 (1st Dep’t
2 2007) (upholding a conviction for obstructing governmental administration
3 where an SSA “attempted to bring appellant to the principal’s office” and “he
4 refused to comply and physically struggled with the agent, causing her to fall
5 and hit her head on the floor”). The evidence regarding whether Concepcion
6 intended to obstruct governmental administration “by means of intimidation,
7 physical force or interference,” N.Y. Penal Law § 195.05, is equivocal but a
8 reasonable officer might have concluded that this was Concepcion’s intent. For
9 these reasons, we affirm the District Court’s dismissal of Concepcion’s false
10 arrest claim.
11 2. Excessive Force
12 “[G]ranting summary judgment against a plaintiff on an excessive force
13 claim is not appropriate unless no reasonable factfinder could conclude that the
14 officers’ conduct was objectively unreasonable.” Amnesty Am. v. Town of W.
15 Hartford, 361 F.3d 113, 123 (2d Cir. 2004). Determining whether the officials here
16 used excessive force in the course of this arrest is an “inquiry [that] is necessarily
17 case and fact specific.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Here,
5 1 two SSAs tackled Concepcion with such force that he suffered a concussion, and
2 at least four SSAs and Assistant Principal Joseph Burbano pinned Concepcion to
3 the ground by holding his legs and keeping a knee on his head.
4 The District Court concluded that because “Concepcion’s repeated refusal
5 to comply with legitimate orders . . . led to the struggle in the hallway,” the SSAs’
6 use of force was not excessive as a matter of law. App’x at 291. But “[t]he fact
7 that a person whom a police officer attempts to arrest resists . . . no doubt
8 justifies the officer’s use of some degree of force, but it does not give the officer
9 license to use force without limit.” Sullivan v.
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19-1693-cv Concepcion v. New York City Department of Education
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 3 of New York, on the 30th day of November, two thousand twenty. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 MICHAEL H. PARK, 7 Circuit Judges, 8 JED S. RAKOFF, 9 Judge.* 10 ------------------------------------------------------------------ 11 TINA R. CONCEPCION, 12 RAYMOND CONCEPCION, 13 14 Plaintiffs-Appellants, 15 16 v. 19-1693-cv 17 18 NEW YORK CITY DEPARTMENT OF 19 EDUCATION, CITY OF NEW YORK, SCHOOL 20 SAFETY AGENT BARRIOS, SCHOOL SAFETY 21 AGENT RUPERTO, ASSISTANT PRINCIPAL
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 1 JOSEPH BURBANO, PRINCIPAL AURELIA 2 CURTIS, DEAN TROY MCGHIE, 3 4 Defendants-Appellees.** 5 ------------------------------------------------------------------ 6 FOR PLAINTIFFS-APPELLANTS: KRISTIAN KARL LARSEN, Larsen 7 Advocates, P.C. (Kenneth 8 Foard McCallion, McCallion & 9 Associates LLP, on the brief), 10 New York, NY. 11 12 FOR DEFENDANTS-APPELLEES: ANTONELLA KARLIN (Devin 13 Slack, Ingrid R. Gustafson, Of 14 Counsel, on the brief), on behalf 15 of James E. Johnson, 16 Corporation Counsel of the 17 City of New York, New York, 18 NY.
19 Appeal from a judgment of the United States District Court for the Eastern
20 District of New York (Ann M. Donnelly, Judge).
21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
22 AND DECREED that the judgment of the District Court is VACATED and
23 REMANDED in part and AFFIRMED in part.
24 Plaintiffs-Appellants Raymond Concepcion (“Concepcion”) and his
** The Clerk of Court is directed to amend the official caption to conform with the above caption.
2 1 mother Tina R. Concepcion appeal from the May 7, 2019 judgment of the District
2 Court (Donnelly, J.) granting summary judgment in favor of the Defendants-
3 Appellees on his § 1983 false arrest and excessive force claims. Both claims arise
4 from Concepcion’s arrest by school safety agents (“SSAs”) while he was a high
5 school student, after he resisted their attempts to take him to the office of high
6 school dean Troy McGhie. We assume the parties’ familiarity with the
7 underlying facts and prior record of proceedings, to which we refer only as
8 necessary to explain our decision to affirm in part and vacate and remand in
9 part.
10 1. False Arrest
11 “[S]ummary judgment dismissing a plaintiff’s false arrest claim is
12 appropriate if the undisputed facts indicate that the arresting officer’s probable
13 cause determination was objectively reasonable.” Jenkins v. City of New York,
14 478 F.3d 76, 88 (2d Cir. 2007). “Probable cause exists when one has knowledge
15 of . . . facts and circumstances that are sufficient to warrant a person of
16 reasonable caution in the belief that an offense has been or is being committed by
17 the person to be arrested.” Williams v. Town of Greenburgh, 535 F.3d 71, 79 (2d
3 1 Cir. 2008) (quotation marks omitted).
2 In dismissing Conception’s claim of false arrest based on the summary
3 judgment record, the District Court concluded that the SSAs who arrested
4 Concepcion had probable cause to arrest him for disorderly conduct because he
5 resisted their efforts to take him to the dean’s office. On appeal, Concepcion
6 argues that this conclusion was in error.
7 We may affirm on any ground supported by the record, even if it differs
8 from that relied upon by the District Court. See United States v. Parnell, 959 F.3d
9 537, 540 n.4 (2d Cir. 2020). We need not decide whether, as the District Court
10 determined, the SSAs had probable cause to arrest Concepcion for disorderly
11 conduct. Instead, on this record, we conclude that the SSAs had probable cause
12 to arrest Concepcion for obstruction of governmental administration under New
13 York Penal Law § 195.05. “A person is guilty of obstructing governmental
14 administration when he . . . prevents or attempts to prevent a public servant
15 from performing an official function, by means of . . . physical force or
16 interference . . . .” N.Y. Penal Law § 195.05. There is no genuine dispute that
17 Concepcion physically resisted the SSA’s initial efforts to take him to the dean’s
4 1 office, in violation of § 195.05. See In re Joe R., 843 N.Y.S.2d 58, 59 (1st Dep’t
2 2007) (upholding a conviction for obstructing governmental administration
3 where an SSA “attempted to bring appellant to the principal’s office” and “he
4 refused to comply and physically struggled with the agent, causing her to fall
5 and hit her head on the floor”). The evidence regarding whether Concepcion
6 intended to obstruct governmental administration “by means of intimidation,
7 physical force or interference,” N.Y. Penal Law § 195.05, is equivocal but a
8 reasonable officer might have concluded that this was Concepcion’s intent. For
9 these reasons, we affirm the District Court’s dismissal of Concepcion’s false
10 arrest claim.
11 2. Excessive Force
12 “[G]ranting summary judgment against a plaintiff on an excessive force
13 claim is not appropriate unless no reasonable factfinder could conclude that the
14 officers’ conduct was objectively unreasonable.” Amnesty Am. v. Town of W.
15 Hartford, 361 F.3d 113, 123 (2d Cir. 2004). Determining whether the officials here
16 used excessive force in the course of this arrest is an “inquiry [that] is necessarily
17 case and fact specific.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Here,
5 1 two SSAs tackled Concepcion with such force that he suffered a concussion, and
2 at least four SSAs and Assistant Principal Joseph Burbano pinned Concepcion to
3 the ground by holding his legs and keeping a knee on his head.
4 The District Court concluded that because “Concepcion’s repeated refusal
5 to comply with legitimate orders . . . led to the struggle in the hallway,” the SSAs’
6 use of force was not excessive as a matter of law. App’x at 291. But “[t]he fact
7 that a person whom a police officer attempts to arrest resists . . . no doubt
8 justifies the officer’s use of some degree of force, but it does not give the officer
9 license to use force without limit.” Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d
10 Cir. 2000). Furthermore, whether the plaintiff resisted arrest is only one of the
11 three factors that we have identified as relevant to the analysis relating to
12 excessive force. The two other factors are “(1) the nature and severity of the
13 crime leading to the arrest,” and “(2) whether the suspect poses an immediate
14 threat to the safety of the officer or others.” Tracy, 623 F.3d at 96.
15 With these two additional factors in mind, we respectfully disagree with
16 the District Court that no reasonable factfinder could conclude that the force
17 used by the SSAs to arrest Concepcion was excessive. First, a reasonable juror
6 1 considering the “nature and severity of the crime leading to arrest” could easily
2 find that Concepcion’s crime was minor. See id. After all, obstruction of
3 governmental administration, the most severe crime that the City identifies as a
4 basis for arresting Concepcion, is a misdemeanor. See N.Y. Penal Law § 195.05;
5 see also In re Joe R., 843 N.Y.S.2d at 59 (sentenced to 9 months’ probation for
6 obstructing governmental administration and third-degree assault); In re Ismaila
7 M., 827 N.Y.S.2d 7, 8 (1st Dep’t 2006) (sentenced to 12 months’ probation for
8 obstructing governmental administration and second-degree assault). Second,
9 whether Concepcion “pose[d] an immediate threat to the safety of the officer or
10 others,” Tracy, 623 F.3d at 96, is the subject of a genuine factual dispute between
11 the parties that should not have been resolved on summary judgment. While the
12 City argues that the SSAs’ use of force was at least in part spurred by an alleged
13 threatening gesture made by Concepcion, Concepcion strongly denies that
14 characterization. And as the District Court noted, the surveillance footage of the
15 events leading up to Concepcion’s arrest fails to resolve the dispute. See App’x
16 at 283.
17 The City invites us in the alternative to conclude that the Defendants are
7 1 entitled to qualified immunity shielding them from liability for excessive force.
2 But genuine disputes of fact regarding the nature of the force used persist on
3 appeal. “[T]he[se] factual questions must be resolved by the factfinder” and
4 compel us to decline the City’s invitation. Zellner v. Summerlin, 494 F.3d 344,
5 368 (2d Cir. 2007) (quotation marks omitted). We therefore vacate the District
6 Court’s judgment insofar as it dismissed Concepcion’s excessive force claims. 1
7 3. Claims against Burbano and Department of Education 8 9 Finally, Concepcion argues that the District Court erred by dismissing all
10 claims against Burbano and the Department of Education. For the reasons
11 previously stated, we vacate the District Court’s judgment with respect to the
12 excessive force claims, including as against Burbano and the Department of
13 Education. As to the remaining claims, Concepcion argues that because
14 Assistant Principal Burbano and the Department of Education never answered
15 the complaint, neither could have moved for summary judgment. This argument
16 was never raised in the District Court and is therefore forfeited. See Allianz Ins.
1The District Court’s use-of-force analysis was coextensive with respect to the § 1983 excessive force claim and the state-law assault and battery claims, so we vacate its judgment on all three claims.
8 1 Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005). Concepcion timely also argues on
2 appeal that the District Court’s dismissal of his claims against the Department of
3 Education was based on an erroneous reading of a stipulation and order of
4 dismissal. Even assuming that argument is timely, it is irrelevant. Concepcion
5 offers no theory of direct liability as to the Department of Education, and we
6 vacate the District Court’s judgment on the excessive force claims, the only
7 remaining basis for vicarious liability.
8 We have considered Concepcion’s remaining arguments and conclude that
9 they are without merit. For the foregoing reasons, we VACATE the District
10 Court’s grant of summary judgment in favor of the City on Concepcion’s
11 excessive force claims under § 1983 and under New York assault and battery law
12 and REMAND those claims. The judgment of the District Court is AFFIRMED in
13 all other respects.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court