897 F.3d 99
2d Cir.2018Background
- On Nov. 30, 2011, Occupy Wall Street protesters marched near the Sheraton Hotel to protest a presidential fundraiser and gathered in a barriered area (the "press pen") closer to the President than their designated demonstration area.
- NYPD established a larger "frozen zone" and ultimately enclosed the press pen on all four sides; protesters were told they could not leave until the President was inside the hotel and later until he departed; detention lasted ~2 hours.
- Non-protesters (e.g., journalists, tourists) were allowed to leave; protesters were threatened with arrest if they tried to exit; some had health issues during the detention.
- Protesters sued under § 1983 alleging Fourth Amendment false arrest/unreasonable seizure, First Amendment retaliation, Fourteenth Amendment selective enforcement, and failure-to-intervene claims; defendants (NYPD officers) moved for summary judgment and asserted qualified immunity.
- The district court denied summary judgment on qualified immunity, finding a factual dispute about the officers’ motives and the legality of the detention; the officers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the two-hour detention violate the Fourth Amendment (was it an unlawful seizure)? | The detention was an unreasonable seizure not supported by probable cause and not saved by the special needs exception. | The detention served the special need of protecting the President and was therefore permissible without individualized probable cause. | Court: Cannot resolve as matter of law on record whether detention was justified under special needs. |
| Are officers protected by qualified immunity for the Fourth Amendment claim? | Officers are not entitled to qualified immunity because motive and facts raise a genuine dispute and law clearly prohibited such detention. | Qualified immunity applies because no clearly established law put officers on notice that detaining protesters to protect the President in these circumstances was unlawful. | Court: Officers are entitled to qualified immunity because existing precedent did not clearly establish the detention’s unconstitutionality. |
| Are First Amendment retaliation claims barred by qualified immunity? | Retaliation caused detention to chill protest and is actionable. | Officers are immune because their objectively reasonable belief that special needs justified detention bars motive-based claims. | Court: Qualified immunity bars the retaliation claims. |
| Are selective enforcement and failure-to-intervene claims actionable? | Officers selectively detained protesters (not other pedestrians) for impermissible reasons; some officers failed to intervene. | Officers are immune because protesters were not similarly situated to ordinary pedestrians given security concerns; non-intervening officers reasonably believed conduct lawful. | Court: Qualified immunity also bars selective enforcement and failure-to-intervene claims. |
Key Cases Cited
- Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (special-needs/roadblock precedent)
- Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602 (1989) (special-needs framework for searches/seizures)
- Ferguson v. City of Charleston, 532 U.S. 67 (2001) (special needs must be distinct from ordinary law enforcement)
- Saucier v. Katz, 533 U.S. 194 (2001) (qualified immunity analytical framework)
- Pearson v. Callahan, 555 U.S. 223 (2009) (courts have discretion in qualified immunity sequencing)
- Wood v. Moss, 572 U.S. 744 (2014) (protecting President can justify relocation/differential treatment of protesters)
- Reichle v. Howards, 566 U.S. 658 (2012) (qualified immunity for agents protecting Vice President; officers must make rapid security judgments)
- Stigile v. Clinton, 110 F.3d 801 (D.C. Cir. 1997) (recognizing presidential protection as a special need in search context)
- Marcavage v. City of New York, 689 F.3d 98 (2d Cir. 2012) (time/place/manner restrictions and unique security concerns posed by large protests)
- Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (qualified immunity where officers had objectively reasonable basis to arrest demonstrators)
- Devenpeck v. Alford, 543 U.S. 146 (2004) (officer’s subjective motive irrelevant to existence of probable cause)