Martinez v. Hasper

• Court: Court of Appeals for the Second Circuit
• Decided: July 10, 2023
• Docket: 21-2975
• Status: Unpublished

Opinion

21-2975 Martinez v. Hasper

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 10th day of July, two thousand twenty-three.

PRESENT:

RICHARD C. WESLEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________ RAYMOND MARTINEZ, as Administrator for the Estate of Robert Ortiz, Plaintiff-Appellant, v. No. 21-2975 P.O. JAMES HASPER, Shield No. 23680, individually and in his Official Capacity, CITY OF NEW YORK, Defendants-Appellees. ∗ __________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: JACOB LOUP, Law Offices of Joel B. Rudin, P.C., New York, NY (Joel B. Rudin, Law Offices of Joel B. Rudin, P.C., New York, NY, Jon L. Norinsberg, Norinsberg Law, New York, NY, on the brief).

For Defendant-Appellee James Hasper: DOUGLAS LABARBERA (Mitchell Garber, on the brief) Worth, Longworth & London, LLP, New York, NY.

For Defendant-Appellee City of New LORENZO DI SILVIO (Richard York: Dearing, Elina Druker, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Eric R. Komitee, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED in part, VACATED in part, and the case is REMANDED for further

proceedings consistent with this order.

Robert Ortiz appeals from the district court’s grant of summary judgment

in favor of Officer James Hasper and the City of New York (the “City”), relating to

2 a police shooting that ended Ortiz’s car chase with the police. 1 Following the

incident, Ortiz brought this action under federal and state law. He asserted a claim

pursuant to 42 U.S.C. § 1983, alleging that Hasper violated his Fourth Amendment

rights by using excessive force. 2 Ortiz also alleged that the shooting constituted a

battery under New York law, for which Hasper was directly liable and the City

was vicariously liable under a theory of respondeat superior. We review the

district court’s grant of summary judgment de novo and construe the record

evidence in favor of Ortiz, the nonmovant. See Tiffany & Co. v. Costco Wholesale

Corp., 971 F.3d 74, 83 (2d Cir. 2020). Under Rule 56 of the Federal Rules of Civil

Procedure, summary judgment is appropriate only if “no reasonable jury could

return a verdict for the nonmoving party.” Id. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal.

The undisputed facts, including videos of the incident taken in real time,

show that by the time Hasper joined the chase, Ortiz was driving down a busy

1After filing suit, Robert Ortiz passed away from causes unrelated to the injuries he sustained in connection with the shooting, and his personal representative, Raymond Martinez, was substituted as a party under Rule 25(a)(1) of the Federal Rules of Civil Procedure. In this order, we refer to the Plaintiff-Appellant as “Ortiz.”

2Ortiz’s complaint also included section 1983 claims based on malicious prosecution, denial of the right to a fair trial, and abuse of process, but he voluntarily dismissed those claims in July 2020.

3 street with police officers in pursuit. J. App’x at 76. After being blocked by traffic

in front of him, Ortiz abruptly put his Chevrolet Suburban into reverse and

rammed a police cruiser behind him, as the officer was exiting the cruiser. While

officers commanded Ortiz to stop, Ortiz switched gears and hit the vehicle directly

in front of him – occupied by a woman and her two-year-old child – causing it to

crash into a car parked along the street. Only after these two collisions did Hasper

fire a single shot, striking Ortiz. Based on this series of events, Ortiz brought

claims against Hasper and the City.

We first turn to Ortiz’s section 1983 excessive force claim. To succeed on

this claim, Ortiz must demonstrate that the “particular use of force” was

objectively unreasonable “in light of the facts and circumstances confronting” the

officers at the scene. Graham v. Connor, 490 U.S. 386, 396–97 (1989). This inquiry

demands “a careful balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Id. at 396 (internal quotation marks omitted).

Where, as here, the use of deadly force is at issue, the officer must have “probable

cause to believe that the suspect poses a significant threat of death or serious

physical injury to the officer or others.” O’Bert ex rel. O’Bert v. Vargo, 331 F.3d 29,

4 36 (2d Cir. 2003). Because Ortiz’s claim arises from an encounter with the police,

Hasper is entitled to qualified immunity unless he “[1] violated a statutory or

constitutional right that [2] was clearly established at the time of the challenged

conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). We may consider the two

prongs of the qualified immunity analysis in either order. See Dixon v. von

Blanckensee, 994 F.3d 95, 104 (2d Cir. 2021). If either prong is not satisfied, the

defendant is entitled to a judgment based on that defense. See id.

Here, we resolve the case on the clearly-established prong. With respect to

this requirement, the “contours of the right must be sufficiently clear [such] that a

reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). While a prior case need not be

“directly on point, . . . existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). In determining whether a right is clearly established at the time of the

conduct in question, we consider Supreme Court decisions and our own decisions,

as well as “a consensus of cases of persuasive authority such that a reasonable

officer could not have believed that his actions were lawful.” Wilson v. Layne, 526

U.S. 603, 617 (1999).

5 Guided by these standards, we agree with the district court that, in July

2014, it was not clearly established that shooting a fleeing motorist endeavoring to

evade capture during a car chase that endangered officers and pedestrians nearby

amounted to excessive force. Indeed, prior to the shooting, the Supreme Court

had never “found the use of deadly force in connection with a dangerous car chase

to violate the Fourth Amendment, let alone to be a basis for denying qualified

immunity.” Mullenix v. Luna, 577 U.S. 7, 15 (2015).

The prevailing law in this Circuit likewise would not have alerted Hasper

that his conduct was unlawful. In arguing otherwise, Ortiz relies principally on

Cowan ex rel. Cooper v. Breen, which denied qualified immunity to an officer who

shot twice – once from forty-four feet, once from eleven feet – at a vehicle that was

“traveling quite slowly . . . and may not even have been moving at all.” 352 F.3d

756, 759 (2d Cir. 2003). But Cowan says nothing about whether, by shooting Ortiz,

who had just hit two cars and was driving erratically within feet of police officers

and pedestrians, Officer Hasper used excessive force.

Ortiz also relies on Jones v. Treubig, 963 F.3d 214 (2d Cir. 2020). But that case

is no more helpful. There, we denied qualified immunity to an officer who had

tased a suspect whose arms were “sprayed out” on the ground and who was “no

6 longer resisting arrest.” Jones, 963 F.3d at 230 (internal quotation marks omitted).

Ortiz contends that the presence of several officers in Jones gave rise to the

“reasonable inference” that the suspect could have been apprehended without the

use of force. Id. at 230 n.9. That was not the case here, however, given that, at the

time of the shooting, Ortiz was still behind the wheel of his Suburban with the

engine running. Unlike the defendants in Jones, the officers on the scene here had

no ability to stop Ortiz from trying, once again, to ram his way through traffic and

drive away from pursuing police officers.

The out-of-circuit cases cited by Ortiz are likewise unavailing, since they are

factually distinguishable. Unlike those cases, here the indisputable video evidence

makes plain that Ortiz’s conduct placed officers and other individuals nearby at

risk of serious physical injury or death. In the seconds before Hasper pulled the

trigger, people in Ortiz’s direct path can be seen running away as Ortiz accelerated

in their direction. Police officers were standing within feet of Ortiz’s vehicle, and

the car Ortiz had just rammed was still directly in front of him. No clearly

established law required Hasper to wait for actual injuries to occur before firing

his weapon.

7 Ortiz next argues that Hasper admitted to violating provisions of the New

York Police Department Patrol Guide, which prohibits officers from firing at

“moving vehicle[s] unless deadly physical force is being used against [a] member

of the service or another person present, by means other than a moving vehicle.” J.

App’x at 211 n.2 (emphasis added). But while police policies are relevant to the

Fourth Amendment inquiry, they do not define what is reasonable under the

Fourth Amendment. See Brown v. City of New York, 862 F.3d 182, 192 (2d Cir. 2017)

(affirming grant of qualified immunity even though officer’s conduct violated the

New York Police Department Patrol Guide). And while it is true that the New

York Police Department Patrol Guide directs officers to refrain from shooting into

moving vehicles when the threat of deadly force stems from the vehicle alone, it

was, at minimum, not clearly established that the Fourth Amendment includes

such a requirement. See, e.g., Plumhoff v. Rickard, 572 U.S. 765, 776–77 (2014)

(finding no Fourth Amendment violation where police shot at fleeing suspect to

end car chase).

Put differently, the Patrol Guide policy – while no doubt well-intended and

probably even wise in a densely populated city like New York – in no way alters

the constitutional standard for the use of deadly force, which requires only that

8 the officer have “probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or others.” O’Bert, 331 F.3d

at 36. Based on the undisputed evidence, we cannot say that Hasper “violated a

statutory or constitutional right that was clearly established at the time of the

challenged conduct.” Reichle, 566 U.S. at 664.

We also affirm the district court’s exercise of supplemental jurisdiction, and

dismissal of, Ortiz’s state-law battery claim against Hasper. We review the district

court’s decision to exercise such jurisdiction for abuse of discretion. See Valencia

ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). While the district court here

did not explicitly engage in a supplemental-jurisdiction analysis, it is clear that it

had already invested substantial effort in this case and that the battery claim

presented no “novel or unsettled issues of state law.” Mauro v. S. New England

Telecomms., Inc., 208 F.3d 384, 388 (2d Cir. 2000). We therefore conclude that the

district court’s decision to adjudicate the state-law claim on the merits was entirely

appropriate.

Turning to the merits of that claim, we agree with the district court that

Hasper was entitled to immunity under New York law, which requires him to

prove that his conduct was both objectively and subjectively reasonable. See Triolo

9 v. Nassau County, 24 F.4th 98, 109 (2d Cir. 2022). For the reasons explained above,

Hasper’s belief that he had probable cause to use lethal force was not “objectively

unreasonable and could have produced different acceptable results.” Id. 3

Similarly, absent any evidence to the contrary, Hasper’s testimony that he feared

for his safety and for the safety of others demonstrates that his conduct was not

made in bad faith. See J. App’x at 165 (“I was in fear for my safety. I was in fear

for the safety of others, the other police officers, the other civilians that were in the

area.”). Accordingly, Hasper is entitled to immunity under New York law.

Finally, as to the battery claim against the City, we remand to the district

court with instructions to dismiss the claim without prejudice. Shortly after the

district court issued its decision and dismissed the claim against the City, we held

that government entities can be held liable where, as here, the predicate claim

against the government official has been dismissed on non-merits grounds such

as qualified immunity. See Triolo, 24 F.4th at 110–11. In light of this change in law,

3That Hasper’s conduct was not, for purposes of the New York qualified immunity analysis, objectively unreasonable does not resolve the Fourth Amendment reasonableness inquiry, a question which, given Hasper’s entitlement to federal qualified immunity, we do not resolve. These analyses are discrete; “‘the distinction between reasonableness as a component of a Fourth Amendment violation and reasonableness as a component of an immunity defense’ results in a situation where ‘an officer is protected in some circumstances even when he mistakenly concludes that probable cause is present when he reasonably believes that a reasonably prudent police officer would have acted even though a reasonably prudent police officer would not have acted.’” Triolo, 24 F.4th at 108 n.7 (quoting Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994)).

10 and the novel questions presented by the sole remaining battery claim against the

City, the most prudent course is to dismiss the claim without prejudice to refile in

state court. See Brzak v. United Nations, 597 F.3d 107, 113–14 (2d Cir. 2010)

(explaining that where, as here, the “plaintiff’s federal claims are dismissed before

trial, the state claims should be dismissed as well” (internal quotation marks

omitted)).

Accordingly, we AFFIRM the district court’s dismissal of the federal and

state-law claims against Hasper, VACATE its dismissal of the state-law claim

against the City, and REMAND for proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court