20-1070-cv Vasquez v. Maloney, et al.
In the United States Court of Appeals for the Second Circuit
August Term, 2020 No. 20-1070-cv
KIM VASQUEZ, Plaintiff-Appellee,
v.
DETECTIVE CHRIS G. MALONEY, OFFICER VICTOR CARABALLO, OFFICER BRIAN DUNNE, OFFICER THOMAS LATORRE, ORLANDO CRUZ, POLICE OFFICER BRIAN CALLANAN, Defendants-Appellants. *
Appeal from the United States District Court for the Southern District of New York. No. 7:15-cv-8848 — Nelson S. Román, Judge.
SUBMITTED: DECEMBER 11, 2020 DECIDED: MARCH 4, 2021
* The Clerk of the Court is directed to amend the caption as set forth above. Before: CABRANES, PARK, and NARDINI, Circuit Judges.
Defendants-Appellants, officers of the Clarkstown Police Department in Rockland County, New York, appeal from an order entered March 19, 2020, in the United States District Court for the Southern District of New York (Nelson S. Román, Judge), denying their motion for summary judgment on the basis of qualified immunity on Plaintiff-Appellee Kim Vasquez’s unlawful search and seizure claims. We conclude that Defendants-Appellants violated clearly established law by detaining and frisking Vasquez based on nothing more than an officer’s unconfirmed hunch that there might be an open warrant for his arrest. We therefore AFFIRM the district court’s order denying Defendants-Appellants’ motion for summary judgment on the basis of qualified immunity.
KIM VASQUEZ, Plaintiff-Appellant Pro Se, New City, NY. PAUL E. SVENSSON, Hodges Walsh & Burke, LLP, White Plains, NY, for Defendants-Appellants.
WILLIAM J. NARDINI, Circuit Judge:
On January 5, 2015, police officers stopped Kim Vasquez as he and his
daughters walked out of a Target store at the Palisades Center Mall. They
detained him and frisked him for weapons. The officers admittedly had no
reason to think he had committed a crime, but one officer speculated that
there “might be” a warrant for Vasquez’s arrest. Put into legal terms, the officers clearly lacked any facts giving them “reasonable suspicion” that
Vasquez was involved in criminal activity (much less carrying a dangerous
weapon) or wanted for a crime. This was precisely the type of situation that
the Supreme Court identified many years ago, in Terry v. Ohio, 392 U.S. 1
(1968), as a paradigmatic violation of the Fourth Amendment.
This case comes to us on denial of the officers’ summary judgment
motion, and we hold that the facts—as the record currently stands, and
construed in favor of Vasquez as the non-moving party—do not establish
that the officers are entitled to qualified immunity as a matter of law. We
do not know how the factual record might develop at trial or whether the
evidence presented might ultimately lead to a different result. At this
juncture, we simply hold that the district court properly denied the officers’
motion for summary judgment.
I. BACKGROUND
On November 10, 2015, Vasquez, proceeding pro se, filed a complaint
in the United States District Court for the Southern District of New York
(Nelson S. Román, Judge). He sued several unnamed officers of the
3 Clarkstown Police Department in their individual capacities pursuant to 42
U.S.C. § 1983, alleging that they violated his rights under the Fourth
Amendment of the United States Constitution when they stopped and
frisked him without a warrant or probable cause. Following identification
of the officers involved, Vasquez filed an amended complaint naming
Defendants-Appellants Chris Maloney, Victor Caraballo, Brian Dunne,
Thomas LaTorre, Orlando Cruz, and Brian Callanan (together, the
“Officers” or “defendants”). 1
The complaint alleged that, on the night of January 5, 2015, Vasquez
encountered several of the Officers while he was helping his two young
daughters into his wife’s car in the parking lot of the Palisades Center Mall.
The Officers “surrounded” him and “demanded that [he] ‘freeze,’ put his
arms in the air, [] turn around to face a pillar, and keep his hands up on the
1Vasquez filed his first amended complaint on February 1, 2016. We refer to his operative, second amended complaint, filed on December 19, 2018, as simply the “complaint,” except when necessary to distinguish it from previous versions.
4 pillar.” App’x 55. Vasquez claimed that the Officers then frisked him,
rubbing and touching his body, “including [his] private parts,” while his
family watched “this humiliating experience.” App’x 56. The Officers had
Vasquez “wait and remain seized[] until it was deemed he could go.” App’x
56. Vasquez alleged that this conduct violated his Fourth Amendment
rights because the Officers seized him based only on an unconfirmed hunch
that there might be an outstanding warrant for his arrest.
On June 13, 2019, following discovery, the defendants moved for
summary judgment, arguing that they did not violate Vasquez’s
constitutional rights because they had probable cause to detain him or, even
if not, that they were entitled to qualified immunity. In connection with the
motion for summary judgment, Detective Maloney filed an affidavit and the
defendants jointly submitted a statement of facts that relied entirely, as
relevant here, on that affidavit. Vasquez subsequently filed two affidavits
in response, with substantially identical versions of the facts presented in
his complaint.
5 According to the undisputed portions of the defendants’ factual
submissions, on January 5, 2015, they were conducting an investigation into
the passing of counterfeit money at a Target store in the Palisades Center
Mall. Detectives Cruz and Callanan were inside the store’s loss prevention
office monitoring the security cameras facing the entrance and exits.
Detective Maloney and Officers Caraballo and LaTorre were in a police
cruiser in the parking lot. 2
While monitoring the security cameras, Detective Cruz recognized
Vasquez from Cruz’s prior work on the Rockland County Drug Task Force
and Vasquez’s prior arrests in Clarkstown. Cruz communicated by radio to
Detective Maloney that Vasquez was exiting the mall in the direction of the
parking lot and “that he [Cruz] believed that there might be a judicially
issued Warrant for [Vasquez’s] arrest.” App’x 235. The Officers—although
the record is not clear who was involved in that decision or who was
2It is not clear from the record where Officer Dunne was during the encounter, other than that he was “assigned to routine patrol at the Mall that night.” App’x 295.
6 involved in Vasquez’s detention—decided to detain Vasquez “until it could
be verified that the Warrant remained open.” App’x at 235. They
surrounded Vasquez in the parking lot, instructed him to freeze, placed him
against a wall, and “likely” performed a “basic cursory pat down,”
ultimately removing Vasquez’s wallet from his pocket. App’x 235, 262–63.
Vasquez was detained for approximately two minutes, until
communication with the radio dispatcher revealed that there was no
outstanding warrant for Vasquez’s arrest, at which point the Officers
released him. 3
In an opinion and order entered on March 19, 2020, the district court
denied the defendants’ motion for summary judgment as to the Fourth
3 In their summary judgment submissions, the Officers note that their department received notice of an arrest warrant that had been issued for Vasquez on June 13, 2014, by the Rockland County Supreme Court. But the Officers further note that Vasquez appeared in court for arraignment on that charge on September 24, 2014, and that he was released on bail. Thus, although there had been an active arrest warrant for Vasquez earlier in 2014, for the three months immediately preceding the events at issue here—from September 24, 2014, until Cruz spotted Vasquez on January 5, 2015—that arrest warrant had been closed.
7 Amendment claims, determining that the Officers were not entitled to
qualified immunity because clearly established law prohibits detaining and
frisking a person without a warrant, probable cause, or reasonable suspicion
of criminal activity. See Vasquez v. Maloney, No. 15-CV-8848, 2020 WL
1309989, at *7–11 (S.D.N.Y. Mar. 19, 2020). 4 This appeal followed.
II. DISCUSSION
We review de novo a district court’s determination of qualified
immunity insofar as it is a legal issue. See Tangreti v. Bachmann, 983 F.3d 609,
615 (2d Cir. 2020). Although our jurisdiction is generally limited to “final
decisions” of the district courts, 28 U.S.C. § 1291, an order that denies
qualified immunity may be immediately appealed under the collateral order
doctrine “to the extent that it turns on an issue of law.” Mitchell v. Forsyth,
4The district court granted summary judgment for defendants on Vasquez’s claims of inappropriate contact under the Fourth Amendment, religious freedom and intimate association claims under the First Amendment, and state law claims. See Vasquez, 2020 WL 1309989, at *14. These claims are not before us on appeal.
8 472 U.S. 511, 530 (1985); see also Tangreti, 983 F.3d at 615. The parties do not
dispute any facts material to the issue of qualified immunity, and we have
jurisdiction to review the district court’s denial of summary judgment on
the purely legal question of the defendants’ qualified immunity. As always
when reviewing a ruling on summary judgment, we draw all reasonable
inferences from the existing factual record in favor of the non-moving party:
here, Vasquez. See Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019)
(“When considering qualified immunity at the summary judgment stage,
courts must construe all evidence and draw all reasonable inferences in the
non-moving party’s favor.” (internal quotation marks omitted)).
A. Qualified Immunity
“Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments about open legal questions,”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011), preserving a balance between
“vindication of citizens’ constitutional rights and . . . public officials’
effective performance of their duties,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867
9 (2017) (internal quotation marks and citation omitted). The dispositive
inquiry “is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Hernandez v. Mesa, 137 S. Ct.
2003, 2007 (2017) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
Defendants moving for summary judgment on the basis of qualified
immunity bear the burden of “demonstrating that no rational jury could
conclude (1) that the official violated a statutory or constitutional right, and
(2) that the right was clearly established at the time of the challenged
conduct.” Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (internal
quotation marks omitted) (quoting al-Kidd, 563 U.S. at 735). 5
To determine whether a right is clearly established, “we generally
look to Supreme Court and Second Circuit precedent existing at the time of
5At the pleading stage, the plaintiff must plausibly allege that the defendants violated clearly established law. See al-Kidd, 563 U.S. at 735. “Because qualified immunity is an affirmative defense,” however, at the summary judgment stage “the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time.” Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (quoting Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997)).
10 the alleged violation.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal
quotation marks omitted) (quoting Okin v. Vill. of Cornwall-On-Hudson Police
Dep’t, 577 F.3d 415, 433 (2d Cir. 2009)). The Supreme Court has repeatedly
admonished lower courts “not to define clearly established law at a high
level of generality.” al–Kidd, 563 U.S. at 742. “This inquiry must be
undertaken in light of the specific context of the case, . . . [which] 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 citations omitted). “[A] case
directly on point” is not necessarily required, “but existing precedent must
have placed the statutory or constitutional question beyond debate.” al–
Kidd, 563 U.S. at 741. That is, there must be “a case where an officer acting
under similar circumstances . . . was held to have violated the Fourth
Amendment,” White v. Pauly, 137 S. Ct. 548, 552 (2017), such that the
unlawfulness of the defendant officer’s conduct would “follow
11 immediately,” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Anderson v.
Creighton, 483 U.S. 635, 641 (1987)).
B. The Officers’ Actions Violated Clearly Established Law as It Stood in January 2015
Law that was clearly established in January 2015 put the Officers on
notice that their detention of Vasquez was unconstitutional. Although a
warrantless seizure is generally impermissible under the Fourth
Amendment, the Supreme Court long ago held in Terry v. Ohio that police
officers may, as a legitimate investigative function, in “appropriate
circumstances and in an appropriate manner approach a person for
purposes of investigating possibly criminal behavior even though there is
no probable cause to make an arrest.” 392 U.S. at 22. Terry involved officers
stopping a person “because they suspected he was about to commit a
crime,” but police may also conduct an investigative stop if they “have a
reasonable suspicion, grounded in specific and articulable facts, that a
person they encounter was involved in or is wanted in connection with a
completed felony.” United States v. Hensley, 469 U.S. 221, 227, 229 (1985); see
12 also United States v. Lucky, 569 F.3d 101, 106 (2d Cir. 2009) (upholding Terry
stop based on reasonable suspicion that vehicle was connected to a crime
completed two days earlier).
The reasonable suspicion standard is “not high.” United States v.
Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (quoting Richards v. Wisconsin, 520
U.S. 385, 394 (1997)). Reasonable suspicion requires less than the “fair
probability” of wrongdoing needed to support probable cause, United States
v. Padilla, 548 F.3d 179, 186–87 (2d Cir. 2008), and it can “arise from
information that is less reliable,” such as an unverified tip, Alabama v.
White, 496 U.S. 325, 330 (1990). A court must evaluate the circumstances
surrounding the stop “through the eyes of a reasonable and cautious police
officer on the scene, guided by his experience and training,” Padilla, 548 F.3d
at 187 (quoting United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000)), and
making “commonsense judgments and inferences about human behavior,”
Kansas v. Glover, 140 S. Ct. 1183, 1189 (2020) (quoting Illinois v. Wardlow, 528
U.S. 119, 125 (2000)).
13 On this record, the Officers did not satisfy even the low threshold that
would satisfy either justification for an investigative Terry stop. That is, they
offered no specific and articulable facts—at all—supporting an inference
that Vasquez was (1) involved in or (2) wanted in connection with a crime.
First, the Officers have supplied no factual basis for any reasonable
suspicion that Vasquez was involved in criminal activity at the time of the
stop. With respect to their ongoing investigation of the passing of
counterfeit currency at the Target store, at no point did the Officers suggest
(much less offer facts supporting an inference) that Vasquez was involved
in such a crime. The exceedingly spare statement of facts submitted by the
Officers in support of their summary judgment motion recited nothing more
than the following: an officer saw Vasquez walking out of the store on video
surveillance, recognized Vasquez from the officer’s prior work on the
Rockland County Drug Task Force, and knew that Vasquez had “prior
arrests.” App’x 261. The Officers’ briefing on this point is unclear, but they
appear to have abandoned their claim, made before the district court, that
14 they had reasonable suspicion of Vasquez’s wrongdoing. If so, that would
be a wise decision. Although it is well settled that police officers may
reasonably consider a person’s criminal history as part of the total mix of
information guiding their reasonable suspicion analysis, it has been equally
well settled since at least 1977 that seeing a person with a criminal record in
a public place, with nothing more, does not give rise to reasonable suspicion
that the person has engaged or is engaging in further criminal activity.
Compare United States v. Oates, 560 F.2d 45, 59–60 (2d Cir. 1977) (“[A] police
officer’s knowledge of a person’s reputation as a prominent narcotics
trafficker can properly be considered, along with other factors, as an element
justifying the officer’s reasonable suspicion or his belief that probable cause
exists.”) with id. at 59 (“[I]nvestigative stops certainly cannot be made
merely because the detainees have criminal records or bad reputations[.]”
(internal quotation marks, alterations, and citation omitted)); see also United
States v. Lifshitz, 369 F.3d 173, 188 (2d Cir. 2004) (“Suspicion, to be
15 reasonable, . . . necessitates not only a focus upon a particular person, but
also concentration on a specific series of events.”).
The only justification the Officers have meaningfully advanced on
appeal for detaining Vasquez is the second basis for a Terry stop, namely,
that he was wanted in connection with a completed crime. But they offer no
“specific and articulable facts” that could have reasonably warranted such
a belief. Hensley, 469 U.S. at 229. Instead, the Officers seek to justify their
seizure of Vasquez based solely on Detective Cruz’s recollection of Vasquez
and his previous arrests by Clarkstown police, and Detective Cruz’s
uncorroborated belief that “there might be” a warrant for Vasquez’s arrest.
App’x 235. But, absent any basis in articulable facts, speculation that a
warrant “might” be outstanding is the quintessential “inchoate and
unparticularized suspicion or ‘hunch,’” Terry, 392 U.S. at 27, and here it was
readily dispelled by the dispatcher’s report that there was no outstanding
warrant.
16 Our holding today is very much grounded in the specific facts in the
record—as all rulings on summary judgment must be. On appeal, the
Officers argue in their briefs that they acted based on “the information
provided by Detective Cruz that a judicial arrest warrant had been issued for
[Vasquez], and he believed it was open.” Defs.-Appellants Br. at 10 (emphasis
added). But that is not what Detective Maloney said in his (undisputed)
affidavit, and therefore it is not the evidence that we are called upon to
evaluate. All that Detective Maloney stated in his affidavit was that
Detective Cruz said “he believed that there might be” a warrant. App’x at
235. 6 Drawing all inferences in favor of the party resisting summary
6 As noted above, in their factual submission the Officers also included the assertion that a warrant for Vasquez had been issued in June 2014—about six months earlier—and that pursuant to usual practice that warrant had been published to the Clarkstown Police. But neither Detective Maloney’s affidavit nor the Officers’ statement of facts submitted that any of the Officers had actually been informed of the warrant, much less believed—even mistakenly in good faith—that this warrant was still outstanding. In fact, all their statement says about this warrant is that Vasquez had been arraigned on it in September 2014. In other words, the Officers aver both that the warrant was issued and that it was closed months before the Target incident. Because we must view all of the evidence in the light most favorable to Vasquez on summary judgment, we cannot selectively infer that the Officers knew about one fact (the issuance of the warrant) but not the other (the arraignment leading to its closure). Of course, we express no view on how the Fourth
17 judgment (here, Vasquez), the record discloses not even a mistaken
recollection by any of the Officers that a warrant did exist—only a conjecture
that one “might” exist. App’x 235. 7 The unconstitutionality of detaining
Vasquez while waiting to confirm such speculation “follow[s] immediately”
from half a century of Supreme Court precedent. Wesby, 138 S. Ct. at 590
(quoting Anderson, 483 U.S. at 641). Since Terry, it has been clearly
established that when an officer can point to no facts at all to justify a hunch,
the detention violates the Fourth Amendment.
The Officers suggest that our decision in United States v. Santa, 180
F.3d 20 (2d Cir. 1999), supports their claim to qualified immunity. But that
precedent only highlights where their argument falters. In Santa, officers
Amendment or qualified immunity analysis might be resolved on a more fully developed record, or before a factfinder at trial.
7 We do not question that police officers “may rely on probabilities in the reasonable suspicion context.” Glover, 140 S. Ct. at 1190. And so we do not insist that police officers know to a certainty that an arrest warrant is pending. But a police officer’s reasonable suspicion that there is an outstanding arrest warrant must be based on some articulable fact, not simply a hunch.
18 arrested the defendant based on an erroneous police computer record
indicating that he was wanted on an outstanding warrant. Id. at 24. The
warrant had in fact been vacated, but due to a clerical error by court
employees, it was never removed from the police database. Id. at 22–23.
Before arresting the defendant, the officers had requested a “wanted person
check” from the dispatcher to determine whether there was an outstanding
warrant. Id. at 24. The dispatcher checked the police database and
separately confirmed with the originating department, which faxed a copy
of the warrant to the requesting department, and radioed the information
back to the officers—all based on incorrect information resulting from the
clerical error. Id. Because the officers’ reliance on the erroneous computer
record was objectively reasonable and the error was attributable to court
employees rather than improper police practices, we declined to suppress
evidence found on the defendant’s person pursuant to the exclusionary rule.
Id. at 30.
19 Santa offers no safe harbor for the Officers. In that case, the officers
articulated a specific fact—a computer record of an outstanding warrant
which they first checked and confirmed—on which they reasonably relied,
even though that record turned out to be erroneous. Here, by contrast, the
Officers do not claim to have relied on anything, not even one officer’s faulty
memory of an outstanding warrant, in seizing and detaining Vasquez.
Absent any articulation of a factual basis for a belief that a warrant existed,
Santa offers their position no support. 8
The Officers further contend that denying them qualified immunity
amounts to a requirement that “police exhaust all available means of
technology to determine whether an arrest warrant was open before
8 We recognize that Santa involved application of the good-faith exception to the exclusionary rule for Fourth Amendment violations, whereas the present case involves a question precedent of whether there was a Fourth Amendment violation to begin with, and the independent question of whether reasonable officers would have recognized that their conduct violated clearly established law. To the extent that both cases concern the objective reasonableness of police conduct under Fourth Amendment standards, the analysis in Santa sheds some light on whether an officer’s objectively reasonable reliance on information indicating the existence of a warrant might entitle him to qualified immunity. For the reasons explained in the text, however, the Officers have not offered any facts that would place their conduct in this category.
20 conducting a basic safety search.” Defs.-Appellants Br. at 14. But the
problem here is not so much that the police failed to confirm the existence of
a warrant; it is that, taking the facts in the light most favorable to Vasquez,
they did not even purport to have any basis for believing that there was a
warrant outstanding for his arrest in the first place.
Nor are Officers Maloney, Caraballo, Dunne, LaTorre, and Callanan
entitled to qualified immunity because they acted upon information
supplied by Detective Cruz. “Plausible instructions from a superior or
fellow officer support qualified immunity where, viewed objectively in light
of the surrounding circumstances, they could lead a reasonable officer to
conclude that the necessary legal justification for his actions exists.”
Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir. 2003) (quoting Bilida
v. McCleod, 211 F.3d 166, 174–75 (1st Cir. 2000)). Yet where an officer is
clearly and unequivocally on notice that an individual’s past encounters
with police do not provide an adequate basis for stopping him, a superior’s
contrary instructions will not shield the arresting officer from liability. See
21 Diamondstone v. Macaluso, 148 F.3d 113, 117–18, 126 (2d Cir. 1998)
(expressing “grave doubts” over officer’s qualified immunity defense,
which was based on him receiving advice from his superiors to continue
stopping a driver who had failed to produce proof of insurance during prior
stops). While factual development at trial might shed further light on the
individual Officers’ levels of knowledge concerning the basis for detaining
Vasquez, at this stage the record reveals only that Detective Cruz advised
Detective Maloney that “he believed that there might be a judicially issued
Warrant for [Vasquez’s] arrest.” App’x 235. Maloney’s affidavit thus claims
that the Officers were conveyed nothing more than guesswork, and it does
not assert that the Officers did anything to corroborate that guess before
seizing Vasquez. On this record, the Officers are therefore not entitled to
qualified immunity for detaining Vasquez without a warrant or any facts
22 whatsoever that might have given rise to reasonable suspicion that such a
warrant existed, in violation of his clearly established constitutional rights. 9
Having concluded that, on this record, a reasonable officer would
have known that the Terry stop of Vasquez was not permitted under clearly
established law, the same conclusion necessarily applies to the frisk. See
Terry, 392 U.S. at 29–30 (permitting a frisk only during a justified
investigative stop). In any event, a frisk is allowed only “when police have
a reasonable belief that the suspect poses a danger,” in particular, that “the
suspect may gain immediate control of weapons.” Michigan v. Long, 463 U.S.
9We do not question that police are “entitled to act on the strength of [a] radio bulletin” informing them of an existing warrant. Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971); see also id. (“Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause.”). Indeed, officers acting upon a superior officer’s apparently valid order need not investigate the basis for the order and are entitled to the same qualified immunity as the superior. See Varrone, 123 F.3d at 81. But on this limited record, viewing the evidence in the light most favorable to Vasquez, we cannot assume that Detective Maloney communicated anything to the other officers before they stopped Vasquez other than Detective Cruz’s hunch that a warrant might exist—not that a warrant did exist. As we have already explained, that basis was not sufficient to entitle any of the Officers to qualified immunity.
23 1032, 1049 (1983); see also Bailey, 743 F.3d at 332 (“To support an
accompanying patdown, there must be a reasonable basis to think ‘that the
person stopped is armed and dangerous.’”) (quoting Arizona v. Johnson,
555 U.S. 323, 326–27 (2009)). Here, the undisputed facts offer no basis for a
belief that Vasquez posed a danger to anyone as is required to justify a frisk
for weapons. 10 Indeed, the Officers’ memories are so hazy that “none of
the[m] . . . can recall who performed th[e] pat down,” let alone its purported
rationale. App’x 235.
On this record, there is no evidence Vasquez was doing anything
other than simply walking out of a store and, as we have already concluded,
there was no basis whatsoever for believing he was wanted for any crime.
III. CONCLUSION
In sum, we hold that it was clearly established law in January 2015
that an officer’s unconfirmed hunch that an arrest warrant might possibly
10The parties moreover appear to agree that the officers detaining Vasquez went beyond conducting a routine pat down by removing his wallet from his pocket.
24 exist, coupled with nothing more than the officer’s recognition of a suspect
from prior arrests, does not constitute reasonable suspicion justifying a
Terry stop or frisk. Accordingly, at this stage and on the limited factual
record before us, the Officers are not entitled to qualified immunity for their
detention and frisk of Vasquez.
We therefore AFFIRM the order of the district court denying
summary judgment to the defendants on Vasquez’s Fourth Amendment
claims.