17‐1281 Simon v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________
August Term, 2017
(Argued: March 1, 2018 Decided: June 21, 2018)
Docket No. 17‐1281 _______________
ALEXINA SIMON,
Plaintiff‐Appellant,
—v.—
CITY OF NEW YORK, FRANCIS LONGOBARDI, Queens County Assistant District Attorney, DETECTIVE EVELYN ALEGRE, DETECTIVE DOUGLAS LEE,
Defendants‐Appellees. _______________
B e f o r e:
KATZMANN, Chief Judge, CHIN, Circuit Judge, and NATHAN, District Judge.
_______________
The Clerk of Court is directed to amend the official caption as set forth above.
Judge Alison J. Nathan, United States District Court for the Southern District of New York, sitting by designation. Plaintiff Alexina Simon brought this action in the United States District Court for the Eastern District of New York (Vitaliano, J.) under 42 U.S.C. § 1983, claiming that a state prosecutor and two police officers falsely arrested and imprisoned her in violation of the Fourth Amendment. Simon alleges that the defendants unlawfully detained her for 18 hours over two days on the authority of a warrant that, on its face, directed officers to bring Simon to court at a fixed date and time for a hearing to determine whether she should be detained as a material witness. Simon was never presented to the court. The district court held that the defendants are entitled to qualified immunity and granted summary judgment in their favor. We conclude that, with the facts taken in the light most favorable to Simon, the defendants violated Simon’s clearly established Fourth Amendment rights and are therefore not entitled to qualified immunity. Accordingly, the judgment of the district court is VACATED and this case is REMANDED for further proceedings consistent with this decision. _______________
UGOCHUKWU UZOH, Ugo Uzoh, P.C., Brooklyn, NY, for Plaintiff‐ Appellant.
ELINA DRUKER (Richard Dearing, Devin Slack, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants‐Appellees.
CODY H. WOFSY, ACLU Foundation Immigrants’ Rights Project, San Francisco, CA; Lee Gelernt, ACLU Foundation Immigrants’ Rights Project, New York, NY; Joel B. Rudin, Vice Chair, Amicus Committee, National Association of Criminal Defense Lawyers, New York, NY; Richard D. Willstatter, Chair, Amicus Curiae Committee, New York State Association of Criminal Defense Lawyers, White Plains, NY; Mariana Kovel, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, American Civil Liberties Union Foundation, New York Civil Liberties Union Foundation, in support of Plaintiff‐Appellant. _______________
2 KATZMANN, Chief Judge:
This case takes us to the intersection of an allegedly wrongful arrest and
detention on a material witness warrant, the Fourth Amendment, and qualified
immunity. Plaintiff Alexina Simon brought this action in the United States District
Court for the Eastern District of New York (Vitaliano, J.) under 42 U.S.C. § 1983,
claiming that a state prosecutor and two police officers falsely arrested and
imprisoned her in violation of the Fourth Amendment. Simon alleges that the
defendants unlawfully detained her for 18 hours over two days on the authority
of a warrant that, on its face, directed police officers to bring Simon to court at a
fixed date and time to determine whether she should be adjudged a material
witness and detained. Simon was never presented to the court. The district court,
relying chiefly on the lack of case law analyzing the constitutionality of material
witness seizures and detentions, held that the defendants are entitled to qualified
immunity and granted summary judgment in their favor.
We conclude that, with the facts taken in the light most favorable to Simon,
the defendants violated the Fourth Amendment. A warrant must be executed in
conformity with its terms. See, e.g., Miller v. Kennebec Cty., 219 F.3d 8, 11 (1st Cir.
2000) (“[I]t is self‐evident that a seizure conducted pursuant to an arrest warrant
3 must conform to the terms of that warrant.”). Here, the warrant required the
defendants to produce Simon to court on August 11, 2008, at 10:00 a.m., but they
instead detained her for 18 hours over August 11 and 12, occasionally
interrogated her about a crime, and never presented her to a judge.
We further conclude that the unlawfulness of the defendants’ conduct was
clearly established when they acted. This is an uncommon “‘obvious case’” in
which “the unlawfulness of the [defendants’] conduct is sufficiently clear even
though existing precedent does not address similar circumstances.” District of
Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Brosseau v. Haugen, 543 U.S.
194, 199 (2004) (per curiam)). No officer who is executing a warrant that requires
that a prospective material witness be brought before a judge at a fixed date and
time to determine whether the witness should be detained can reasonably believe
that she is free instead to detain and interrogate the witness for hours on end
outside of court supervision.
We are also unpersuaded by the defendants’ contention that they are
entitled to qualified immunity from claims arising out of the second day’s events
because reasonable officers could disagree about whether Simon consented to
accompany them. A long line of cases holds that securing someone’s presence at a
4 police station using coercive tactics like those employed by the defendants here—
including entering Simon’s home and telling her that her attendance is
mandatory—is constitutionally indistinguishable from a traditional arrest.
Accordingly, the judgment of the district court is VACATED and this case
is REMANDED for further proceedings consistent with this decision.
BACKGROUND
New York State’s material witness statute provides that a court, upon an
appropriate application, may order that a person who has information material to
a criminal proceeding be detained to secure her attendance at the proceeding. See
N.Y. Crim. Proc. Law §§ 620.10–50. The statute affords significant procedural
protections to prospective material witnesses.
First, the applicant—here, the government—must apply for a “material
witness order,” which is “a court order (a) adjudging a person a material witness
in a pending criminal action and (b) fixing bail to secure his future attendance
thereat.” Id. §§ 620.10, 620.30. Such an order may be issued if there is “reasonable
cause to believe” that a prospective witness in a criminal action “[p]ossesses
information material to the determination of such action” and “[w]ill not be
amenable or responsive to a subpoena at a time when his attendance will be
5 sought.” Id. § 620.20(1); see also People v. Maldonado, 86 N.Y.2d 631, 635 (1995)
(“Reasonable cause means probable cause.”). If presented with a “well founded”
application, a court may convene a hearing to determine whether “[someone]
should be adjudged a material witness.” N.Y. Crim. Proc. Law § 620.30(2)(a). If
there is also reasonable cause to believe that “the witness would be unlikely to
respond” to an order to appear at said hearing (or has already flouted one), then
the court may issue “a warrant . . . directing [a police] officer to take such
prospective witness into custody within the state and to bring him before the
court forthwith in order that a proceeding may be conducted to determine
whether he is to be adjudged a material witness.” Id. § 620.30(2)(b).
Once the prospective material witness has been brought before the court,
the judge “must inform him of the nature and purpose of the proceeding, and that
he is entitled to a prompt hearing upon the issue of whether he should be
adjudged a material witness.” Id. § 620.40(1). The hearing can be held
immediately or adjourned to allow the witness to arrange for counsel. Id.
§ 620.40(2). The applicant must show by “a preponderance of the evidence all
facts essential to support a material witness order,” i.e., that the person has
information material to a criminal proceeding and will not respond to a subpoena
6 requiring her attendance thereat. Id. § 620.50(1)(a). An adjudged material witness
may either be released on bail or committed to state custody. Id. § 620.50(3).
In 2008, Shantell McKinnies, an officer of the New York Police Department
(NYPD), was under investigation for potential insurance fraud.1 McKinnies’ car,
which she had reported stolen, had turned up in a “chop shop” covertly run by
the NYPD. According to McKinnies, her friend “Alexandra Griffin” was the last
person to drive her car. But “Alexandra Griffin” told an NYPD officer that she
had never been given the vehicle, was not the last person to drive it, and did not
even have a driver’s license, raising suspicions that McKinnies had filed a false
report. “Alexandra Griffin” also told the officer that her surname was not Griffin,
but Simon. It would eventually become clear that her real name is Alexandra
Dormoy, and that Dormoy is the daughter of plaintiff Alexina Simon.
The McKinnies investigation was assigned to defendant Francis
Longobardi, who was at the time an Assistant District Attorney in the Public
Integrity Bureau of Queens County District Attorney’s Office. By June 2008,
1 Because Simon appeals from a grant of summary judgment against her, we consider the facts—many of which are disputed—in the light most favorable to her. See
Dufort v. City of New York, 874 F.3d 338, 343 (2d Cir. 2017).
7 Longobardi, who wanted to speak with Dormoy about the investigation, had
come to believe that her name was not Alexandra Simon or Alexandra Griffin, but
Alexina Simon. Longobardi sent Dormoy several subpoenas that went
unanswered and spoke with Dormoy a handful of times by telephone. On August
8, 2008, Longobardi and Dormoy had a telephone conversation during which
Longobardi stated, “I’m trying to reach Alexina Simon” and asked, “Is this
Alexina Simon?” J. App’x 351. Dormoy did not answer the question but
continued to speak as though she were Simon. Dormoy refused to appear for an
interview or say anything about the case and told Longobardi that the subpoenas
were harassing.
Left with few options, Longobardi sought to compel Dormoy to disclose
what she knew. On August 8, 2008, he applied to Queens County Supreme Court
for a hearing on August 11, 2008, at 10:00 a.m. “for the purpose of adjudging
Alexina Simon a material witness” and an arrest warrant to secure Alexina
Simon’s attendance at the hearing. J. App’x 31. Justice Kenneth C. Holder entered
an order convening such a hearing at the requested date and time. Justice Holder
also issued a warrant for Simon’s arrest. In relevant part, the warrant recited that
“an order having been granted . . . directing . . . ALEXINA SIMON to appear at a
8 hearing at the Queens County Courthouse in the City of New York on August 11,
2008 at 10:00 in the forenoon to determine whether ALEXINA SIMON should be
adjudged a material witness,” police officers were “commanded forthwith to take
the above‐named ALEXINA SIMON into custody . . . and bring her before this
Court in order that a proceeding may be conducted to determine whether she is
to be adjudged a material witness.” Id. at 27 (emphasis omitted). Longobardi gave
the warrant to defendants Evelyn Alegre and Douglas Lee, both NYPD detectives.
On the morning of August 11, 2008, Simon was working her housekeeping
shift at the Millennium Broadway Hotel. A little after 10:00 a.m., a coworker told
her that Lee and Alegre wanted to see her. The detectives told Simon they had a
warrant for her arrest, threatened to handcuff her and use force if she did not
voluntarily come with them, and said that she would learn the reason for her
arrest later. Lee and Alegre drove Simon to the precinct, occasionally asking
Simon about McKinnies’ car. Simon knew McKinnies from her neighborhood and
guessed that McKinnies was in trouble, but Simon didn’t know why.
At the precinct, the detectives brought Simon to a small room, told her to
wait there, and closed the door. Simon remained there for most of the day by
herself. At some point, Lee gave her some coffee, but she was never given any
9 food. Many hours later, after dark, Lee took Simon to a courthouse. Seated
outside a courtroom, Simon briefly met with Longobardi, who questioned her
about McKinnies’ car. At some point during the day, Simon told Lee that the
defendants were interested in Dormoy, but Simon did not recall whether she also
mentioned her daughter to Longobardi. Longobardi, for his part, realized that
Simon was the wrong person as soon as he met her.
After the courthouse discussion, the detectives brought Simon back to the
small room and told her she could leave, but that she must return the next day to
answer more questions. To drive the point home, they reminded Simon that they
had a warrant for her arrest. The detectives also told Simon that they wanted to
speak to Dormoy and that Simon should bring her in, too. Alegre and Lee drove
Simon to her Brooklyn residence. Lee was polite, but Alegre accused Simon of
hiding the truth about McKinnies’ car. Simon arrived at her home (where Dormoy
also sometimes lived) after 8:00 p.m. Simon told her daughter that the police
wanted to speak with her, but Dormoy said she didn’t know why.
Alegre and Lee arrived at Simon’s home at around 9:00 a.m. the following
morning. Alegre went inside to get Simon. She told Simon that she had to go back
to the precinct to answer more questions and again mentioned the warrant.
10 Alegre asked Dormoy to go with them, but she refused. The detectives drove
Simon back to the precinct and put her in a small room. For about three hours,
people came in and out and asked her questions about McKinnies’ car. Simon
then stayed in the room by herself for another two hours, when Alegre returned.
Lee again brought Simon coffee but no food. Simon did not speak to Longobardi
that day. Eventually Simon was told she could leave. She left the police station at
5:00 p.m., took the train to Brooklyn, and arrived home at around 6:30 p.m. All
told, the defendants held Simon against her will for 18 hours over two days.
Although we must consider the facts in the light most favorable to Simon
for purposes of this appeal, see Dufort, 874 F.3d at 343, we note that the defendants
describe both days very differently. As they would have it, on the morning of
August 11, Simon was taken directly from the hotel to the courthouse, where she
told the defendants that they were after her daughter and agreed to persuade
Dormoy to cooperate. Simon was returned home by midafternoon. On August 12,
Simon told the detectives that Dormoy refused to help and asked to be taken to
the precinct, where she spoke briefly with Longobardi again before Lee drove her
home. By the defendants’ telling, Simon spent around nine hours in all with them,
nearly all of it voluntarily.
11 On March 27, 2009, Simon commenced this action under 42 U.S.C. § 1983,
claiming that Longobardi, Alegre, and Lee falsely arrested and imprisoned her in
violation of the Fourth Amendment. Following discovery, the district court
(Vitaliano, J.) granted summary judgment in favor of the defendants, concluding
that the defendants were absolutely immune from Simon’s claims. This Court
vacated the judgment, holding that police officers and prosecutors are not entitled
to absolute immunity from suits alleging unconstitutional execution of a material
witness warrant. Simon v. City of New York, 727 F.3d 167, 172 (2d Cir. 2013). On
remand, the district court granted summary judgment in favor of the defendants
a second time. The district court, relying chiefly on the paucity of authority
addressing material witness warrants and detentions, held that the defendants
were entitled to qualified immunity because any violation of Simon’s
constitutional rights was not clearly established when they acted. This appeal
followed.
DISCUSSION
I. Standard of Review
“We review a district court’s grant of summary judgment de novo,
‘resolving all ambiguities and drawing all reasonable factual inferences in favor of
12 the party against whom summary judgment is sought.’” Nick’s Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Johnson v. Killian,
680 F.3d 234, 236 (2d Cir. 2012) (per curiam) (brackets omitted)). Summary
judgment is appropriate if “the movant shows that 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).
II. Qualified Immunity
State executive officials “are entitled to qualified immunity under § 1983
unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the time.’” Wesby, 138 S.
Ct. at 589 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). A right is clearly
established when its “‘contours . . . are sufficiently clear’ that every ‘reasonable
official would have understood that what he is doing violates that right.’” Ashcroft
v. al‐Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)) (brackets omitted). “[A] case directly on point” is unnecessary, but
“existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. In analyzing qualified immunity, we generally consider
13 Supreme Court decisions, our own decisions, and decisions from other circuit
courts. See Terebesi v. Torreso, 764 F.3d 217, 231 & n.12 (2d Cir. 2014).
“The ‘clearly established’ standard . . . requires that the legal principle
clearly prohibit the officer’s conduct in the particular circumstances before him.”
Wesby, 138 S. Ct. at 590. “Such specificity 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, 136 S. Ct. 305, 308 (2015) (per curiam)
(quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)) (brackets omitted). However,
“officials can still be on notice that their conduct violates [clearly] established law
even in novel factual circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002), and
“there can be the rare ‘obvious case,’ where the unlawfulness of the officer’s
conduct is sufficiently clear even though existing precedent does not address
similar circumstances,” Wesby, 138 S. Ct. at 590 (quoting Brosseau, 543 U.S. at 199).
III. Qualified Immunity for the Detention on the August 11, 2008
We have “discretion to decide which of the two prongs of qualified‐
immunity analysis to tackle first.” al‐Kidd, 563 U.S. at 735. We begin with whether,
14 with the facts taken in the light most favorable to Simon, the defendants violated
her constitutional rights.
A. Whether the August 11 Detention Violated the Fourth Amendment
Simon, joined by amici, argues that the defendants violated the Fourth
Amendment by detaining her for ten hours on August 11, 2008, in violation of the
material witness warrant that required them to produce her to court that morning
at 10:00 a.m. We agree.
Our analysis rests on two principles. First, courts analyze the
constitutionality of material witness seizures under the Fourth Amendment. See
id. at 735–36 (explaining that an arrest pursuant to a material witness warrant
“qualifies as a seizure of a person . . . and so must be reasonable under the
circumstances” (citation and internal quotation marks omitted)). As the Third
Circuit has cogently explained:
A person who is subjected to conditions that would constitute a seizure if she had been arrested for a crime is still seized even though she is not a criminal suspect but a material witness. She has been arrested and deprived of liberty for precisely the same purpose as a pre‐trial detainee in a criminal case: to ensure that she shows up in court as required by the state. The Fourth Amendment
15 therefore governs [the] inquiry into the constitutionality of [a prospective material witness’s] detention.
Schneyder v. Smith, 653 F.3d 313, 322 (3d Cir. 2011) (citation omitted).2
Second, a person detained as a material witness enjoys any Fourth
Amendment protection that is extended to criminal suspects. After all, the Fourth
Amendment protects “[t]he right of the people to be secure in their persons,” U.S.
Const. amend. IV (emphasis added), not merely the rights of those suspected of
crimes. See Schneyder, 653 F.3d at 322. More than that, a prospective material
witness is less culpable than a criminal suspect. The former is suspected of
refusing to share information about a crime, whereas the latter is suspected of
having committed one. For these reasons, and as the defendants conceded at oral
2 We observe that although arrests pursuant to material witness statutes are widely assumed to be constitutional, the question is not entirely settled. Compare Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617 (1929) (“The constitutionality of [the federal material witness] statute apparently has never been doubted.”), and Stein v. New York, 346 U.S. 156, 184 (1953) (“The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”), overruled in part on other grounds by Jackson v. Denno, 378 U.S. 368 (1964), with al‐Kidd, 563 U.S. at 743 (noting that if the term “probable cause” in the Fourth Amendment “mean[s] only probable cause to suspect a violation of law,” then any arrest pursuant to material witness warrant is unlawful). As Simon does not challenge her initial arrest on August 11, we will assume that it was consistent with the
Fourth Amendment.
16 argument, the protections the Fourth Amendment provides to criminal suspects
extend to material witnesses (or prospective material witnesses). See al‐Kidd, 563
U.S. at 733 (“Material witnesses enjoy the same constitutional right to pretrial
release as other federal detainees . . . .”); Padilla v. Rumsfeld, 352 F.3d 695, 699 (2d
Cir. 2003) (noting that a person “held as a material witness” is “entitled to the
constitutional protections extended to other citizens”), rev’d on other grounds by
Rumsfeld v. Padilla, 542 U.S. 426 (2004); Stone v. Holzberger, 23 F.3d 408 (table), 1994
WL 175420, at *3 (6th Cir. 1994) (unpublished) (“[T]he rights of a material witness,
charged with no wrongdoing, to be brought before a magistrate certainly are at
least equivalent to those of a person charged with a crime.”).
Among these protections is the rule that “a seizure conducted pursuant to
an arrest warrant must conform to the terms of that warrant.” Miller, 219 F.3d at
11; accord Yanez‐Marquez v. Lynch, 789 F.3d 434, 467 (4th Cir. 2015) (“[T]he
nighttime execution of a daytime warrant violates the Fourth Amendment, absent
consent or exigent circumstances.”); O’Rourke v. City of Norman, 875 F.2d 1465,
1467, 1474–75 (10th Cir. 1989) (same, for a bench warrant); cf. Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 n.7 (1971)
(“[T]he Fourth Amendment confines an officer executing a search warrant strictly
17 within the bounds set by the warrant.”). The facts of Miller closely parallel the
facts of this case. A police officer arrested a criminal suspect pursuant to a
warrant reading “this warrant to be executed by bringing defendant immediately
before a sitting Judge.” Miller, 219 F.3d at 10. Instead of promptly producing the
suspect to court, the officer jailed her over a long weekend, during which she was
placed in a cell next to male inmates and repeatedly strip‐searched. Id. The court
concluded that disobeying the plain terms of the warrant violated the arrestee’s
Fourth Amendment rights. Id. at 11.
Some courts have explained that the reason for this rule is that a warrant’s
execution instructions are coextensive with the authorizing official’s
determination of reasonableness for a particular search or seizure. See O’Rourke,
875 F.2d at 1474. Under this view, where a magistrate instructs that a search or
seizure be carried out in a prescribed fashion (say, in the daytime only, or by
bringing the suspect directly to court), to otherwise execute the warrant is to act
unreasonably. As the Fourth Circuit explained, a contrary ruling “would
completely eviscerate the issuing magistrate’s determination of reasonableness
and would nullify the requirement of a prior impartial determination that a
particular search will be reasonable.” Yanez‐Marquez, 789 F.3d at 466–67 (citations
18 and internal quotation marks omitted). For its part, the First Circuit thought this
rule so “self‐evident” that it did not set forth its thinking in any significant detail.
Miller, 219 F.3d at 11.
We agree with this reasoning and would add that it is based on two
fundamental Fourth Amendment precepts. First, “the reasonableness requirement
of the Fourth Amendment applies not only to prevent searches and seizures that
would be unreasonable if conducted at all, but also to ensure reasonableness in
the manner and scope of searches and seizures that are carried out.” Lauro v.
Charles, 219 F.3d 202, 211 (2d Cir. 2000) (alterations and internal quotation marks
omitted)); accord United States v. Ramirez, 523 U.S. 65, 71 (1998) (“The general
touchstone of reasonableness which governs Fourth Amendment analysis
governs the method of execution of the warrant.” (citation omitted)). This rule
limits the authority of the officers charged with executing warrants. It precludes
officers armed with a valid warrant from, for example, using excessive force to
effect a seizure, see Terebesi, 764 F.3d at 234, or staging a “perp walk” for the
benefit of the press, see Lauro, 219 F.3d at 203.
Second, because a warrant generally authorizes no more than what it
expressly provides, to act unreasonably beyond the terms of a warrant is akin to
19 acting without a warrant at all. See Horton v. California, 496 U.S. 128, 140 (1990) (“If
the scope of the search exceeds that permitted by the terms of a validly issued
warrant or the character of the relevant exception from the warrant requirement,
the subsequent seizure is unconstitutional without more.”). This principle is
mainly encountered in cases examining the requirement that a warrant state with
particularity “the place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV. In those cases, we “look directly to the text” of a warrant
to evaluate the scope of authority that it grants. United States v. Bershchansky, 788
F.3d 102, 111 (2d Cir. 2015) (holding that federal agents exceeded the scope of a
search warrant by searching an apartment not specifically listed in the search
warrant). Searches and seizures that exceed the scope of the warrant are
considered warrantless; they must be justified, if at all, by some exception to the
warrant requirement. See United States v. Voustianiouk, 685 F.3d 206, 212 (2d Cir.
2012). Under this principle, a warrant authorizing the arrest of one person does
not authorize the seizure of someone with a similar name, see West v. Cabell, 153
U.S. 78, 85 (1894), and a “John Doe” arrest warrant containing no description of
the suspect is invalid, United States v. Jarvis, 560 F.2d 494, 496–97 (2d Cir. 1977).
Yet the principle that warrants grant only the authority they expressly provide
20 goes beyond the particularity requirement. The Supreme Court long ago held, for
example, that a warrant to search a tavern “gave [police officers] no authority
whatever” to search its customers because such a search was unsupported by
probable cause. Ybarra v. Illinois, 444 U.S. 85, 92 (1979).
Together, these principles yield the commonsense rule that police officers
must abide by the limitations set forth on the face of a warrant they are executing.
A warrant must be executed reasonably; a warrant generally authorizes only
what its terms expressly provide; and a warrant’s execution terms represent the
magistrate’s neutral determination of how a warrant is to be executed. A seizure
that flouts the plain terms of its authorizing instrument is therefore
unreasonable.3
The defendants’ arguments to the contrary are unpersuasive. They first
point out that a constitutional claim cannot be premised on a violation of state
3 We thus reject the defendants’ unsupported assertion that a warrant’s execution instructions do not constrain officers’ authority to seize. The defendants wholly fail to address decisions like O’Rourke and Miller and point to no alternative authority suggesting that a warrant’s terms are simply suggestions. Their single case citation is plainly inapposite. See Watson v. City of New York, 92 F.3d 31, 37–38 (2d Cir. 1996) (state rule of criminal procedure does not create a “liberty interest” under the Due Process
Clause of the Fourteenth Amendment).
21 statutory rights. See Powers v. Coe, 728 F.2d 97, 105 (2d Cir. 1984). That is true but
irrelevant. Simon complains that the defendants flouted the express terms of a
warrant, not merely a state statute, and as we have explained, disobeying the
plain terms of a warrant violates the Fourth Amendment. Nor is a constitutional
claim for unlawful warrant execution transformed into a state‐law claim merely
because the warrant was issued under state law. See, e.g., Terebesi, 764 F.3d at 223,
231–32 (analyzing whether a warrant issued under state law was reasonably
executed). The defendants also contend that compliance with the terms of a
material witness warrant cannot be required because one court has upheld a
warrantless material witness arrest. See White by Swafford v. Gerbitz, 892 F.2d 457,
461 (6th Cir. 1989). Yet even assuming arguendo that a material witness can
lawfully be arrested absent a warrant, this is of no help to the defendants. A
warrant authorizing an arrest is not required in all cases, see, e.g., United States v.
Valentine, 539 F.3d 88, 93 (2d Cir. 2008), yet an officer acting pursuant to one
cannot ignore its terms, see, e.g., O’Rourke, 875 F.2d at 1474–75.
In this case, the question is whether the warrant required that Simon be
brought to court for the scheduled material witness hearing. We conclude that it
did. The warrant directed police officers to arrest Simon “forthwith” and to
22 “bring her before this Court in order that a proceeding may be conducted to
determine whether she is to be adjudged a material witness,” and it stated that
that proceeding was to take place on August 11, 2008, at 10:00 a.m. J. App’x 27.
Viewed in its entirety, this warrant must be understood to command police
officers to arrest Simon and deliver her to court for the hearing at the appointed
date and time. We recognized as much in our prior decision in this case. See
Simon, 727 F.3d at 173 (“[T]he warrant here directed the executing officers to
arrest Simon and bring her before the court at 10:00 a.m. on August 11 for a
hearing on whether she could properly be considered a material witness.”
(emphasis omitted)).
If the plain text of the warrant were not enough, the statutory backdrop
against which the defendants acted confirms that the warrant required Simon’s
production to court at the scheduled time. As explained above, New York law
requires a full‐dress hearing before someone can be adjudged and detained as a
material witness, and a material witness warrant is issued expressly to secure the
prospective witness’s attendance at the hearing. See N.Y. Crim. Proc. Law
§§ 620.30, 620.50. For this reason, Longobardi requested that the court “order a
hearing for August 11, 2008 at 10:00AM” to adjudge Simon a material witness and
23 that the court “order a warrant for the arrest of Alexina Simon so that she can be
present at said hearing.” J. App’x 31 (emphasis added). Thus, when the warrant
issued, it empowered the defendants only to produce Simon to the court at the
appointed date and time. Indeed, the defendants appear to have understood as
much, for they first arrested Simon during the morning of August 11 around the
time of the scheduled hearing.
On Simon’s version of the facts, the defendants then proceeded to flout the
warrant, “actively avoiding the court‐ordered material witness hearing,” Simon,
727 F.3d at 173, and detained her for the entire day in a small room. We conclude
that this is a violation of the Fourth Amendment. See Miller, 219 F.3d at 11.
It is important, however, to recognize the limits of our ruling. We do not
hold that, where a warrant requires officers to produce a prospective material
witness to court at a fixed date and time, it would violate the Fourth Amendment
merely to bring the prospective witness late. Some delays are unavoidable. And
we do not mean to suggest that police officers and prosecutors executing such a
warrant are necessarily forbidden to solicit a prospective material witness’s
consent to proceed in some other fashion. Nor do we address whether the
procedural protections that New York affords to prospective material witnesses
24 are constitutionally required. We hold only that the defendants, who were
executing a warrant requiring Simon’s production to court at an appointed time
and date for a hearing on whether she should be adjudged and detained as a
material witness, violated the Fourth Amendment by subjecting her to a daylong
detention instead.
B. Whether the August 11 Detention Violated Clearly Established Law
Our second inquiry is whether “the unlawfulness of the [defendants’]
conduct was clearly established” in August 2008. Wesby, 138 S. Ct. at 589 (internal
quotation marks omitted). The district court, relying chiefly on the paucity of case
law dealing with material witness seizures, held that any violation of Simon’s
Fourth Amendment rights was not clearly established. Simon, joined by amici,
concedes that few cases deal with material witnesses but argues that the
constitutional violation here is so plain that the defendants are not entitled to
qualified immunity. We agree with Simon.
Our first task is to define with specificity the constitutional right at issue.
See id. at 590. This task involves striking a balance between defining the right
specifically enough that officers can fairly be said to be on notice that their
25 conduct was forbidden, see id., but with a sufficient “measure of abstraction” to
avoid a regime under which rights are deemed clearly established only if the
precise fact pattern has already been condemned, Terebesi, 764 F.3d at 237 n.20.
With those principles in mind, we consider whether it was clearly established in
August 2008 that a person who is arrested on a warrant requiring her production
to court at a fixed date and time has a right not to be detained for ten hours
Were Miller a decision of this Court, it alone would clearly establish the
unlawfulness of the defendants’ conduct. As noted above, in that case the First
Circuit concluded that a police officer violated the Fourth Amendment where,
after arresting someone on a warrant reading “this warrant to be executed by
bringing defendant immediately before a sitting Judge,” he instead had her jailed
over a long weekend. See Miller, 219 F.3d at 10–11. We need not belabor the
parallels to this case. As it is, Miller, O’Rourke, and Yanez‐Marquez, when
considered in light of this Court’s decisions explaining that an officer executing a
warrant must generally comply with its terms, see, e.g., United States v. Matias, 836
F.2d 744, 747 (2d Cir. 1988), might be thought to “clearly foreshadow” our ruling
today, which would likewise be sufficient to conclude that the defendants are not
26 entitled to qualified immunity. Terebesi, 764 F.3d at 231 (internal quotation marks
omitted).
But we need not decide whether these out‐of‐circuit authorities clearly
foreshadow today’s decision. This is one of the uncommon “‘obvious case[s]’” in
which “the unlawfulness of the [defendants’] conduct is sufficiently clear even
though existing precedent does not address similar circumstances.” Wesby, 138 S.
Ct. at 590 (quoting Brosseau, 543 U.S. at 199); accord K.H. Through Murphy v.
Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (“The easiest cases don’t even arise.”).
Viewed in the light most favorable to the plaintiff, the record shows that Simon
was arrested on a warrant requiring the arresting officers to bring her to court at
10:00 a.m. on August 11, 2008, for a hearing on whether she should be detained as
a material witness. The defendants began to comply with those requirements by
arresting her during the morning of August 11 around the time the hearing was
scheduled to begin. Instead of bringing her to court for the hearing, they elected,
on their own, to detain her for ten hours in a small room. We conclude, with the
First Circuit, that this Fourth Amendment violation is so obvious that it violated
clearly established law despite the lack of binding authority directly on point. See
Miller, 219 F.3d at 11 (“While there is no case law directly relating to arrest
27 warrants, it is self‐evident that a seizure conducted pursuant to an arrest warrant
must conform to the terms of that warrant.”).
The defendants argue that any violation cannot be deemed clearly
established because no cases have applied this rule to a material witness warrant
and, more broadly, because so few cases address such warrants at all. We
acknowledge that few decisions have examined the constitutional limits of
material witness seizures and detentions and that none of them involved a factual
scenario quite like this one.4 But more than that is needed for qualified immunity.
See Hope, 536 U.S. at 741 (“[O]fficials can still be on notice that their conduct
violates [clearly] established law even in novel factual circumstances.”).
Moreover, the factual distinction advanced here—that the defendants acted on a
material witness warrant, not a criminal arrest warrant—is irrelevant. Any
warrant must be executed in reasonable conformity with its terms—a rule so
integral to Fourth Amendment doctrine that we are untroubled that no case has
Cf. United States v. Awadallah, 349 F.3d 42, 64–70 (2d Cir. 2003) (addressing 4
challenge to the validity of a material witness warrant); White, 892 F.2d at 461 (analyzing
lawfulness of a warrantless material witness arrest).
28 previously applied it to a material witness warrant. See, e.g., Matias, 836 F.2d at
747; O’Rourke, 875 F.2d at 1474–75.
Relatedly, the defendants contend that any violation cannot be considered
clearly established in light of the uncertainty surrounding whether a material
witness warrant, which issues on a standard other than probable cause to believe
a crime has been committed, is a true “Warrant” under the Warrant Clause of the
Fourth Amendment. See al‐Kidd, 563 U.S. at 743 (reserving the question). The
answer to that question will determine the appropriate standard by which to
analyze some material witness questions. Compare Schneyder, 653 F.3d at 324 &
n.15 (adopting a reasonableness standard while assuming that arrest pursuant to
a material witness warrant is constitutional), with Awadallah, 349 F.3d at 64
(analyzing a warrant’s validity under a probable cause standard). But the
unresolved nature of these weighty questions (on which we express no view)
gives us no pause here. As we recognized in our previous decision in this case, we
deal here with a question of warrant execution, see Simon, 727 F.3d at 172–74,
where it has long been settled that the ultimate test is reasonableness, see Ramirez,
523 U.S. at 71. And for the reasons explained above, we think it obvious that
flouting the plain terms of the warrant as the defendants did here is unreasonable.
29 The defendants are not entitled to qualified immunity simply because some other
questions remain unanswered.5
Accordingly, resolving factual ambiguities and drawing reasonable
inferences in Simon’s favor, we conclude that defendants’ daylong detention of
Simon on August 11, 2008, violated clearly established law. At this stage of the
litigation, the defendants are therefore not entitled to qualified immunity from
claims arising from the detention on August 11, 2008.6
IV. Qualified Immunity for the Seizure and Detention on August 12, 2008
Finally, we consider whether defendants’ conduct on August 12 violated
the Fourth Amendment and whether any violation was clearly established as of
5 The defendants might also be understood to argue that they are entitled to qualified immunity because the warrant is ambiguous. They contend that because courts have interpreted the term “forthwith” differently in different contexts, reasonable officials might have understood that term to mean something other than “immediately.” See, e.g., Ayers v. Coughlin, 72 N.Y.2d 346, 354 (1988) (statute requiring “forthwith” transfer of inmates satisfied by transfer within ten days). However, for the reasons explained above, this warrant unambiguously directed officers to bring Simon to court at 10:00 a.m. on August 11, 2008.
6 Because we accept Simon’s argument that the defendants’ defiance of the
warrant’s terms violated the Fourth Amendment, we need not consider her other contentions. Thus, although the parties devote significant attention to the legal issues raised by the mistaken identity at the center of this case—the defendants’ true target was
Dormoy, not Simon—we do not reach them.
30 August 2008. For the reasons stated above, and taking the facts in the light most
favorable to Simon, we hold that, to the extent the material witness warrant is
claimed to justify the defendants’ conduct on August 12, the seizure and
detention violated Simon’s clearly established Fourth Amendment rights.
That conclusion does not end our inquiry, however. The defendants press
the alternative argument, not passed on by the district court, that the events of
August 12 are justified by their allegedly reasonable belief that Simon consented
to return to the precinct for questioning. We exercise our discretion to address in
the first instance the “purely legal questions” this argument raises. J.C. v. Reg’l
Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 125 (2d Cir. 2002).
A. Whether the August 12 Seizure and Detention Violated the Fourth Amendment
Although the defendants focus their efforts on the second half of the
qualified immunity doctrine, we first decide whether they violated Simon’s
constitutional rights. The defendants argue that Simon was neither seized nor
detained on August 12 because she willingly returned to the precinct for another
day’s worth of questioning. Our basic inquiry is whether Simon consented or was
coerced.
31 “[T]he police can be said to have seized an individual ‘only if, in view of all
of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.’” Michigan v. Chesternut, 486 U.S. 567, 573
(1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality)).
“[C]ircumstances that might indicate a seizure” include “the threatening presence
of several officers, the display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Kaupp v. Texas, 538
U.S. 626, 630 (2003) (per curiam) (quoting Mendenhall, 446 U.S. at 544). This
“necessarily imprecise” test “is designed to assess the coercive effect of police
conduct, taken as a whole, rather than to focus on particular details of that
conduct in isolation.” Chesternut, 486 U.S. at 573.
The defendants seized Simon. The evidence, with the facts taken in the light
most favorable to Simon, shows that at the end of Simon’s ten‐hour detention on
August 11, the defendants reminded her that they had a warrant for her arrest
and ordered her to return the next day. The following morning, Lee and Alegre
arrived at Simon’s residence, where Alegre entered Simon’s home, mentioned the
warrant for Simon’s arrest, and told Simon she had to come answer more
32 questions. No reasonable person in Simon’s position would believe that she was
free to refuse to accompany the detectives to the precinct, even though the
defendants did not use (or threaten to use) force or handcuffs. Because this was a
seizure and not a consensual encounter when the facts are considered in the light
most favorable to Simon, the defendants violated Simon’s Fourth Amendment
rights on August 12.
B. Whether the August 12 Seizure and Detention Violated Clearly Established Law
The defendants argue that they are entitled to qualified immunity from the
claims arising out of the events of August 12 because “reasonable officials could
disagree” on whether Simon consented to return to the station for questioning. Br.
of Appellees at 44. The defendants, who by this time had realized that Simon was
not their intended witness, suggest that an official reasonably could have believed
that Simon agreed to return to the station because she wanted to help them
persuade Dormoy to cooperate. They also stress that, when they collected Simon,
there was no “display of badges, guns, force, or authority.” United States v.
Adegbite, 877 F.2d 174, 179 (2d Cir. 1989).
33 We are not persuaded. As above, our basic inquiry is whether, in light of
the relevant body of law, the unlawfulness of the defendants’ actions was clearly
established when they acted. See Wesby, 138 S. Ct. at 589. We conclude that it was.
It has been beyond debate since Dunaway v. New York that securing someone’s
presence at a police station with tactics of the kind used here is equivalent to
conducting a formal arrest, for which probable cause to believe a crime has been
committed is required. 442 U.S. 200, 216 (1979). In that case, the Supreme Court
concluded that the petitioner had been seized where “he was taken from a
neighbor’s home to a police car, transported to a police station, and placed in an
interrogation room” and was “never informed that he was ‘free to go.’” Id. at 212.
In another case, the Supreme Court concluded that a 17‐year‐old boy had been
arrested where he “was awakened in his bedroom at three in the morning by at
least three police officers, one of whom stated ‘we need to go and talk,’” and
“taken out in handcuffs, without shoes, dressed only in his underwear in January,
placed in a patrol car, driven to the scene of a crime and then to the sheriff’s
offices, where he was taken into an interrogation room and questioned.” Kaupp,
538 U.S. at 631. Along the same lines, we have held that a defendant was arrested
where an agent came to the defendant’s workplace, “request[ed]” that he “come
34 to the field office for questioning,” conveyed “the sense of urgency and
obligation,” did not inform him that he could refuse, and denied the defendant’s
request to take his own car. United States v. Ceballos, 812 F.2d 42, 48 (2d Cir. 1987).
In this case, Simon, like the suspect in Kaupp, was taken from within her
home, where Fourth Amendment protections are at their apex. See Florida v.
Jardines, 569 U.S. 1, 6 (2013). And Simon was not merely asked to accompany the
officers, like the arrestees in Dunaway and Ceballos, nor even told “we need to go
and talk,” like the one in Kaupp. Instead, Simon was told that she must
accompany Alegre for questioning and reminded of the warrant for her arrest.
There is no daylight between informing someone she is under arrest and
“reminding” her that there is a warrant for her arrest and telling her that she must
come to the police station. That the defendants did not flash badges or draw guns
does not alter our conclusion. See Dunaway, 442 U.S. at 212. It was therefore
clearly established in August 2008 that the defendants unlawfully arrested Simon
without cause.
Accordingly, we conclude on this summary judgment record that the
defendants violated Simon’s clearly established Fourth Amendment right to be
free of suspicionless arrests (and, as we previously explained, her right to have a
35 warrant for her arrest executed in conformity with its terms). The defendants are
therefore not entitled to qualified immunity from claims arising out of the August
12 seizure and detention.
CONCLUSION
For the foregoing reasons, the defendants are not entitled to qualified
immunity from Simon’s claims at the summary judgment stage. We emphasize,
however, that we do not determine as a matter of law that the defendants’ actions
violated Simon’s clearly established Fourth Amendment rights. That question will
ultimately turn on a factfinder’s resolution of disputes of material fact concerning
the defendants’ execution of the warrant, the clarification of the mistaken identity,
and the degree to which Simon was a willing participant in the days’ events,
among others. We think that the legal analysis might look different if a factfinder
determines that the defendants hewed to the terms of the material witness
warrant, promptly learned of the mistaken identity, and obtained Simon’s consent
for all further interactions. But at this stage of the litigation, we must view the
facts in the light most favorable to Simon, and on those facts, the defendants are
not entitled to qualified immunity.
36 The judgment of the district court is VACATED and the case is
REMANDED for further proceedings consistent with this opinion.7
7 We decline Simon’s request to reassign this case to a different district judge on remand, finding nothing in the record warranting that “extreme remedy.” United States
v. City of New York, 717 F.3d 72, 99 (2d Cir. 2013).