Kass v. City of New York

864 F.3d 200, 2017 WL 3122289, 2017 U.S. App. LEXIS 13259
Court of Appeals for the Second Circuit·Decided July 24, 2017·No. No. 15-2053-cv·Published·Cited by 99 cases

Opinion

JOHN M. WALKER, JR, Circuit Judge:

Defendants-appellants the City of New York (“the City”) and certain New York City Police Department (“NYPD”) officers bring this interlocutory appeal from an order of the United States District Court for the Southern District of New York (Andrew L. Carter, Jr., /.) denying their motion for judgment on the pleadings. We consider in this appeal (1) whether the NYPD officers are entitled to qualified immunity from plaintiff-appellee Stephen L. Kass’s federal false arrest and imprisonment claim under 42 U.S.C. § 1983 and (2) whether we should exercise pendent jurisdiction over Kass’s state law claims against these officers and the City.

We hold that, because the officers had arguable probable cause to arrest Kass for obstructing governmental administration, N.Y. Penal Law § 195.05, and refusing to comply with a lawful order to disperse, N.Y. Penal Law § 240.20(6), they áre entitled to qualified immunity. We therefore REVERSE the district court’s denial of the defendants-appellants’ motion with respect to Kass’s federal and state false arrest and imprisonment claims. We DISMISS the remainder of the appeal for lack of appellate jurisdiction.

[204]*204BACKGROUND

On September 17, 2013, protestors gathered in Zuccotti Park in New York City to commemorate the second anniversary of the Occupy Wall Street movement. The NYPD placed barricades around the perimeter of the park to cordon off the area where the protestors were gathered and to separate the protestors, who were inside the park, from the pedestrians who were on the adjacent sidewalk along lower Broadway. NYPD Sergeant Michael Alfi-eri, Officer Karen Ernst, and Officer Meredith Biggin were stationed on the sidewalk near the barricades.

At around 4:40 p.m., Stephen L. Kass, then a 73-year-old attorney, was walking north on Broadway when he noticed the crowd of people in Zuccotti Park. Kass approached the barricades and, while standing on the sidewalk, engaged in a non-confrontational conversation with several protestors. Kass did not impede pedestrian or'vehicular traffic during this conversation. After Kass had spoken with the protestors for a minute or two, Ernst approached Kass and instructed him to “keep walking.” Joint App’x at 16, Kass replied that he wanted to hear the protestors’ views, he was not blocking pedestrian traffic, and he had a right to remain on the sidewalk. Ernst repeated that Kass had to move away from the barricade. When Kass continued to refuse to comply, Ernst called over Alfieri.

At this point, one of the protestors began recording a video of the interaction, the authenticity and accuracy of which is not in dispute. As can be seen on the video, Ernst and Alfieri instructed Kass several times to continue walking. Kass repeated that he wante.d to talk to the protestors, that he was not blocking pedestrian traffic, and that he would not move. Alfieri then directed Kass to follow him and placed his hand on Kass’s elbow,.attempting to guide him away from the barricades. Kass pulled away, telling Alfieri to take his hands off of him and that he was talking to the protestors. Ernst then suggested that Kass could go inside the park to continue his conversation with the protestors.

After Kass continued to- refuse to comply, Alfieri grabbed Kass’s right arm and pulled him toward the middle of the sidewalk, away from the barricade and protestors. Kass immediately objected,' saying “get your hands off of me, how dare you, get your hands off me.” A third unidentified officer then grabbed Kass’s other arm, and the officers handcuffed Kass. Kass was brought to the precinct and issued a summons for disorderly conduct under New York Penal Law § 240.20(5). This charge was ultimately dismissed for failure to prosecute.

On September 16, 2014, Kass filed the instant action against the City and NYPD officers Ernst and Alfieri. Kass also named as a. defendant an NYPD officer who was later identified as Meredith Biggin and who was served with the complaint on May 13, 2015. Kass alleged that the officers did not have probable cause to arrest him and that the City was liable for the actions of its employees under, the doctrine of, re-spondeat superior. Kass asserted federal claims against the officers for false arrest and imprisonment as well as malicious prosecution, and New York state law claims against all of the defendants for false arrest and imprisonment, malicious prosecution, and assault and battery.

On March 16, 2015, before Biggin was served with the complaint, the City, Ernst, and Alfieri moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Ernst and Alfieri argued that they were entitled to qualified immunity because there was probable cause or, at least, arguable probable cause to support Kass’s arrest. The City, Ernst, [205]*205and Alfieri also sought dismissal of the state law claims against them. While this motion was pending, Kass withdrew his federal malicious prosecution claim.

On June 8, 2015, the district court dismissed Kass’s withdrawn claim, but otherwise denied the defendants-appellants’ motion. The district court did not explain its basis for rejecting the officers’ qualified immunity defense. On June 24, 2015, the City, Ernst, Alfieri, and Biggin timely filed an interlocutory appeal.

DISCUSSION

As an initial matter, we address whether defendant Biggin is properly included as an appellant in this action. Kass argues that because Biggin was not a party to the Rule 12(c) motion, she should not be permitted to appeal the district court’s denial of that motion. Although Kass' only cursorily raises this issue and the defendants do' not present any arguments in response, we must address whether Biggin has standing to pursue this appeal before we turn to the merits of her arguments. See Official Comm. of Unsecured Creditors of WorldCom, Inc. v. SEC, 467 F.3d 73, 77 (2d Cir. 2006) (noting “[standing to appeal is an esséñtial component of our appellate jurisdiction”); see also Tachiona v. United States, 386 F.3d 205, 210-11 (2d Cir. 2004).

In order to have standing on appeal, “a party must be aggrieved by the judicial action from which it appeals.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 92 (2d Cir. 2014) (citation omitted). A party that is “not bound by a [district court order] will, in the usual case, have difficulty showing that it meets the Article III standing requirement” that, it has suffered such an injury. Tachiona, 386 F.3d at 211; see, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 66, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (noting “grave doubts” as to whether parties who “were not bound by the judgment” of the district court had Article III standing to appeal).

Free access — add to your briefcase to read the full text and ask questions with AI

Kass v. City of New York, 864 F.3d 200, 2017 WL 3122289, 2017 U.S. App. LEXIS 13259 (2d Cir. 2017).

864 F.3d 200 (Kass v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Alba v. City of New York
S.D. New York, 2025
Campbell v. Adams
E.D. New York, 2024
Thompson v. Clark
Second Circuit, 2024
Kistner v. City of Buffalo
Second Circuit, 2024
Amber Jackson v. Cody Swanger
97 F.4th 1343 (Eleventh Circuit, 2024)
Cagan v. Rittenhouse
E.D. New York, 2024
Ashanti v. City of New York
2024 NY Slip Op 01267 (Appellate Division of the Supreme Court of New York, 2024)
Clayton Hulbert v. Brian Pope
70 F. 4th 726 (Fourth Circuit, 2023)
Eckhaus v. City of New York
E.D. New York, 2023