Kass v. City of New York
864 F.3d 200
2d Cir.2017Background
- On Sept. 17, 2013, near Zuccotti Park protestors were cordoned by NYPD; Officers Ernst, Alfieri (and later Biggin) were stationed on the adjacent sidewalk.
- Plaintiff Stephen Kass, a 73-year-old passerby, stood on the sidewalk and engaged in a brief, nonconfrontational conversation with protestors outside the barricades; he did not initially block traffic.
- Officers repeatedly told Kass to “keep walking” or move; Kass refused, argued his right to remain, and became agitated when an officer touched his elbow to guide him away.
- Officers handcuffed Kass, issued a disorderly conduct summons under N.Y. Penal Law § 240.20(5), and he was later released; the charge was dismissed for failure to prosecute.
- Kass sued the City and officers (federal § 1983 false arrest/imprisonment and malicious prosecution; state claims including false arrest, malicious prosecution, assault & battery). Defendants moved under Rule 12(c) asserting qualified immunity; the district court denied the motion. Defendants appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers are entitled to qualified immunity on Kass's federal false arrest/imprisonment claim | Kass: officers lacked probable cause; he was peacefully listening on a public sidewalk and exercising First Amendment rights | Officers: had arguable probable cause to arrest for obstruction (N.Y. Penal Law § 195.05) or for refusal to comply with a lawful order to disperse (N.Y. Penal Law § 240.20(6)) | Held: Qualified immunity applies; reversed denial of Rule 12(c) as to federal false arrest claim |
| Whether probable cause (or arguable probable cause) existed under N.Y. Penal Law § 195.05 (obstructing governmental administration) | Kass: his conduct was non-physical speech/listening and did not impede officers' official function | Officers: their crowd-control orders were a lawful official function; Kass physically resisted guidance and interfered with containment efforts | Held: Arguable probable cause existed; officers reasonably could conclude Kass interfered and intended to do so |
| Whether probable cause (or arguable probable cause) existed under N.Y. Penal Law § 240.20(6) (refusal to disperse) | Kass: he did not “congregate” with protestors and the orders were arbitrary; First Amendment protected his listening | Officers: Kass congregated with protestors, was given lawful orders to move, refused, and recklessly created a risk of public inconvenience/alarm | Held: Arguable probable cause existed for refusal-to-disperse charge; qualified immunity applies |
| Whether to exercise pendent jurisdiction / disposition of state-law claims | Kass: state claims should proceed (malicious prosecution, assault & battery, state false arrest) | Defendants: state false arrest claim rises and falls with federal immunity; other state claims require further analysis | Held: State false arrest claims against officers and the City dismissed (inextricably intertwined). Remaining state claims (malicious prosecution, assault & battery) dismissed from appeal for lack of appellate jurisdiction |
Key Cases Cited
- DiStiso v. Cook, 691 F.3d 226 (2d Cir. 2012) (interlocutory appeals permitted for qualified immunity when decidable as a matter of law)
- Marcavage v. City of N.Y., 689 F.3d 98 (2d Cir. 2012) (police may lawfully direct protestors to move to preserve crowd control; context matters for First Amendment limits)
- Betts v. Shearman, 751 F.3d 78 (2d Cir. 2014) (qualified immunity for false arrest if officer had arguable probable cause for any offense)
- Myers v. Patterson, 819 F.3d 625 (2d Cir. 2016) (arguable probable cause standard explained: officers of reasonable competence could disagree)
- Zalaski v. City of Hartford, 723 F.3d 382 (2d Cir. 2013) (qualified immunity protects all but the plainly incompetent or those who knowingly violate the law)
- Jenkins v. City of N.Y., 478 F.3d 76 (2d Cir. 2007) (federal qualified immunity on false arrest supports judgment on corresponding state false arrest claim)