Kent PAPINEAU, Plaintiff,
Nedrick Ashton, Clay Rockwell, Abilene Rockwell, Houston Rockwell, Onenhaida Rockwell and Juanita Lewis, Plaintiffs-Counter-Defendants,
Shawn Jones, Andrew Jones, Stonehorse Goeman, Marie Peters, Wealthy Bucktooth, individually and as guardian ad litem for Holly Lyons, Robert E. Bucktooth Jr., Cheryl Bucktooth, individually and as guardian ad litem for Nadine and Rob Bucktooth, Martha Bucktooth, Roberta Bucktooth, Jordan Bucktooth, Robert Bucktooth, Ronald Jones Sr., Ruth Jones, Debby Jones, Karen Jones, Nikki Jones, Karoniakata Jones, Tracy Kappelmeier, individually and as guardian ad litem for Adam Kappelmeier and Matthew Kappelmeier, Shirley Snyder, Andrea Potter, Samantha Thompson, Martha J. Skye, Steven Lee Skye, Cara Skye, Andrew Skye, Stormy Skye, Verna Montour, Sesiley R. Snyder, Alice Thompson, Minnie Garrow, Frances Dione, Wentawawi Dione, Joely Vandommelen, Daronhiokwas Horn, A'Anase Horn, Tekahawakwen Rice, Kahente Horn Miller, Kahentinetha Horn, Karonhioko'He Horn, Malcolm Hill, Kathy Melissa Smith, William Green III, Kevin Henhawk, Dyhyneyyks, Mona Logan, Gerald Logan,
Anthony Kloch Jr., Frank Bistrovich, Brent Lyons, Brad Cooke, Janet Cornelius, Jina Jimerson, Duane Beckman, Chad Hill, Donna Hill, Steve Stacy, Dale Dione, Robin Wanatee, Joshua Wanatee, Ally M. Wanatee, Esther Sundown, Shelley George, Sheena Green, Shiela Fish, Garrett Bucktooth, Joe Stefanovich, Tyler Hemlock, Hayden Hemlock, Skroniati Stacy, Kakwirakeron, Tekarontake, Teyonienkwataseh, Daniel Moses, Andrew Moses, Ross John, Barry Buckshot, Seth Tarbell, Deirdre M. Tarbell and Andrew Buckshot, Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants,
v.
James J. PARMLEY, George Beach, Pamela R. Morris, Dennis J. Blythe, John F. Ahern, Joseph W. Smith, Jeffrey D. Sergott, Michael S. Slade, James D. Moynihan, James J. Jecko, Robert Haumann, Mark E. Chaffee, Christopher J. Clark, Paul K. Kunzwiler, Douglas W. Shetler, Patrick M. Dipirro, Gregory Eberl, Gary A. Barlow, Mark E. Lepczyk, Martin Zubrzycko, Glenn Miner, Gary Darstein, Kevin Buttenschon, Chris A. Smith, Norman J. Mattice, John E. Wood, Thomas P. Connelly, Jerry Brown, Harry Schleiser, Norman Ashbarry, Peter S. Leadley, Martin J. Williams, Gloria L. Wood, David G. Bonner, Dennis J. Burgos, John P. Dougherty, David v. Dye, Daryl O. Free, James J. Greenwood, Andrew Halinski, Robert B. Heath, Robert H. Hovey Jr., Robert A. Jureller, Stephen P. Kealy, Troy D. Little, Edward J. Marecek, Ronald G. Morse, Paul M. Murray, Anthony Randazzo, Allen Riley, Frederick A. Smith and Steven B. Kruth, Defendants-Cross-Defendants-Appellants-Cross-Appellees,
County of Onondaga, Onondaga County Sheriff's Department, Kevin Walsh, Onondaga County Sheriff, in his official and personal capacity, Defendants-Cross-Appellees,
James W. McMahon, Superintendent of New York State Police, in his official and personal capacity, Town of Onondaga, and the following persons in their personal and official capacities as New York State Troopers, Allen v. Svitak Jr., Michael L. Delorenzo, James A. Armstrong, Mark Williams, Clifford A. Heaslip, Edward C. Fillingham, Kimberly A. Fillingham, Jeffrey D. Raub, Mark Bender, Peter Obrist, Eric D. Parsons, Robin Palmer, Michael Grandy, Thomas Irwin, George Mercado, Frank Jerome, James Rogers, Art Brocolli, John Doe, William M. Agan, William M. Ambler, Donald W. Barker, Mark A. Caporuscio, Michael G. Conroy, Peter A. Kalin, Matthew J. Navin, William J. Armstrong, George M. Atanasoff, David R. Barry, Peter J. Beratta, Steven M. Bourgeois, George W. Brownsell, Robert M. Burney, Rodney W. Campbell, Mary A. Clark, Mark Dembrow, Gerald J. Deruby Jr., Michael L. Downey, Gary W. Duncan, John Evans, John J. Fitzgerald, Robert Gardner, John E. Giddings, Douglas R. Gilmore, Gary L. Greene, Andrew A. Lucey, James Martin, James W. O'Brien, Gary Oelkers, Derrick A. O'Meara, Richard J. Sauer, Michael H. Scheibel, Gary S. Schultz, Timothy G. Siddall, Robert J. Simpson, Katherine Smith, Jay Strait, Michael R. Tinkler, Michael J. White, Donald M. Dattler, Thomas E. Elthorp, Harrison Greeney, Matthew A. Turrie, Dennis J. Cimbal and Kenneth Kotwas, Defendants-Cross-Defendants.
Docket No. 05-1830-cv (L)
Docket No. 05-2035-cv (XAP).
United States Court of Appeals, Second Circuit.
Argued: June 5, 2006.
Decided: October 4, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Frank Brady, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Daniel Smirlock, Peter H. Schiff, Nancy A. Spiegel, on the brief), Albany, NY, for defendants-cross-defendants-appellants-cross-appellees.
Jodi Peikin, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C. (Robert J. Anello, on the brief), New York, NY, for plaintiffs-counter-defendants-appellees-cross-appellants.
Anthony P. Rivizzigno, County Attorney (Carol L. Rhinehart, on the brief), Syracuse, NY, submitted brief for defendants-cross-appellees.
Before WALKER, Chief Judge, NEWMAN and SOTOMAYOR, Circuit Judges.
SOTOMAYOR, Circuit Judge.
Individual state defendants-cross-defendants-appellants-cross-appellees James J. Parmley et al. (the "defendants") appeal from the March 28, 2005 order of the United States District Court for the Northern District of New York (Scullin, C.J.), Jones v. McMahon, No. 98-CV-374,
Plaintiffs cross-appeal the district court's March 28 and April 20, 2005 rulings that granted summary judgment to all defendants on some of their claims and to defendants New York State Police ("NYSP") Superintendent James W. McMahon and Onondaga County Sheriff Kevin Walsh on all claims; granted sua sponte summary judgment on all claims to the County of Onondaga, the Onondaga County Sheriff's Department ("Sheriff's Department"), and NYSP troopers Mark Bender and Peter Obrist; and denied plaintiffs Marissa Horton and Verna Montour's motion for reconsideration of the dismissal of their excessive force claims.
For the reasons that follow, we AFFIRM the district court's decision denying qualified immunity to defendants, and DISMISS plaintiffs' cross-appeal for lack of jurisdiction because it presents no issues that are "inextricably intertwined" with defendants' appeal.
BACKGROUND
On October 7, 2005, this Court denied plaintiffs' motion to dismiss this appeal, which had contended that the order appealed from was a non-final denial of a motion for summary judgment. We held that although the district court's rejection of the defendants' motion for summary judgment on qualified immunity grounds was based on the court's determination that there were genuine issues of material fact still to be resolved, this appeal could go forward because defendants had stipulated to plaintiffs' facts for the purposes of this appeal. See Salim v. Proulx,
I. The Facts
In May 1997, plaintiffs, several dozen members of the Onondaga Nation and their supporters, organized a protest to express their opposition to an agreement between the chiefs of the Onondaga Nation and the State of New York that would permit the State to tax tobacco products sold to non-Native Americans on land belonging to the Onondagas. The protest was held on private property belonging to plaintiff Andrew Jones, an Onondaga who opposed the agreement. Jones's property includes the paved portion of Interstate 81 ("I-81" or the "Interstate"), which the State has a non-exclusive right to use under a limited easement granted to the Department of Public Works, as well as acreage adjacent to the highway on which his house and yard are located.
The protest began on May 8, 1997, with the lighting of a ceremonial fire. Shortly thereafter, law enforcement officers from the Sheriff's Department visited the protest and allowed it to proceed. The protest continued, peacefully and with the consent of the Sheriff's Department, for ten days; the protesters were at all times orderly and peaceful and did not disturb nor harass neighbors, motorists or passersby who witnessed the demonstration. On May 18, the protesters circulated a flyer announcing that a "media event" would be held that day to protest the tobacco agreement. The Sheriff's Department became aware of these plans, and heard rumors that the protesters planned to block I-81 temporarily to draw attention to their cause.
The May 18 gathering was attended by men, women and children of all ages. At approximately 1:45 p.m., a small group of Onondaga protesters, possibly including some plaintiffs,1 briefly entered the I-81 roadway to distribute literature pertaining to their protest; the group's presence on the highway caused traffic to slow down. Meanwhile, the NYSP took over the job of monitoring the protest from the Sheriff's Department, and at a at a "staging area" north of Jones's property on I-81, they began assembling what they referred to as the "Indian Detail." This group consisted of seventy State troopers dressed in full riot gear and bearing riot batons. A videotape made at the time reveals some troopers joking about their "sticks" and how every trooper has "gotta have a stick." One trooper is heard loudly informing another that the protesters needed "to get their asses kicked." Another trooper is recorded saying that he intended to stay behind because "no one's getting me on some federal process."2 Troopers in the "Indian Detail" had removed their name tags, even though the State Police Manual requires name tags to be worn at all times.
As the NYSP began leaving the staging area, plaintiff Stonehorse Goeman, a leader of the protest and resident of the Onondaga reservation, attempted to persuade those on the roadway to leave the Interstate and return to the main demonstration on Jones's private property. Goeman also attempted to communicate the protesters' peaceful intentions to NYSP officers at the scene, but his attempts were met by silence or threats of arrest. After the Onondagas had left the highway, the NYSP closed off the northbound lanes of I-81 for several hundred feet. The State troopers began marching towards Jones's property, where they assembled on the eastern shoulder of the roadway, forming a "skirmish line" facing the protesters, who were gathered approximately seventy feet off the highway. At the time the troopers formed their skirmish line, none of the protesters was located on or near the highway; they were all peacefully assembled around the ceremonial fire on Jones's private property. They allege they made no threats, engaged in no violent behavior, displayed no weapons and made no effort to move toward the line of troopers.
The NYSP troopers remained on the skirmish line for no more than thirty-five seconds, at which point they received a "go ahead" order from Major Parmley. Parmley acknowledges that at the time he gave this order, he was located at the staging area north of Jones's property, where he could not see the protesters and did not know what they were doing. As soon as the troopers received the "go ahead" order, the defendants charged into the demonstration and began arresting protesters allegedly indiscriminately, assaulting plaintiffs, beating them with their riot batons, dragging them by their hair and kicking them. Defendants also allegedly threw one man, who was praying, to the ground and choked him. Plaintiffs further assert that the police manhandled an eleven-year-old girl and an elderly medicine woman and even tossed an infant in a double leg cast from his stroller.
Prior to these actions, the troopers allegedly did not order the protesters to disperse or provide them with any warning or justification for their actions. Defendants concede that they had no idea, when making these arrests, which of the protesters had entered the roadway. Much of what plaintiffs allege was captured on videotape, although, plaintiffs assert, the NYSP attempted to prevent people with cameras from recording all of the events by putting their hands over the lenses and threatening cameramen with arrest.
II. Litigation Resulting from the May 18 Arrests
The demonstrators who were arrested were charged with various state law crimes, and in a September 9, 1997 decision, Justice Philip Miller of the Town of Onondaga Justice Court dismissed all charges against plaintiffs except for a disorderly conduct charge against medicine woman Marie Peters, finding the informations legally insufficient to establish the charged offenses and raising "serious questions" about the troopers' hearsay testimony that several plaintiffs refused to move from the roadway, were intentionally or recklessly creating a risk of public inconvenience or disregarded a lawful order of the police to disperse. Justice Miller subsequently dismissed the remaining claim against Peters on the merits.
Similarly, on March 5, 1998, Onondaga County Court Judge William Burke dismissed all of the State's initial charges against plaintiff Kenneth Kappelmeier, rejecting defendants' allegation that Kappelmeier was acting with intent to cause public disruption or interfere with the troopers; finding that no evidence supported defendants' allegation that Kappelmeier was on the roadway; and holding that the evidence showed that the confrontation between Kappelmeier and the troopers occurred not on the roadway but on Jones's property, which Jones's invitees had a right to use. The State thereafter produced new facts and new charges against Kappelmeier, largely supported by testimony from a NYSP trooper who testified for the first time before a second grand jury that Kappelmeier was running back and forth in a provocative manner. The jury subsequently acquitted Kappelmeier of all charges.
The case now before us originated in the United States District Court for the Northern District of New York. The plaintiffs alleged that the defendants, inter alia, violated their rights to freedom of speech, religion and assembly, used excessive force, engaged in a conspiracy to violate their rights, violated their right to equal protection, were deliberately indifferent to plaintiffs' medical needs and inflicted severe emotional distress. They also filed claims against NYSP Superintendent James W. McMahon, Onondaga County Sheriff Kevin Walsh, the County of Onondaga and the Sheriff's Department.
After several years of litigation, the district court denied the defendants' motions for summary judgment on the basis of qualified immunity on plaintiffs' First Amendment and excessive force claims, finding that disputed factual issues remained to be resolved before the court could rule on the qualified immunity issue. Jones,
The plaintiffs timely cross-appeal from the district court's grant of summary judgment to Walsh and McMahon, the court's dismissal of their equal protection, conspiracy, indifference to medical needs and infliction of emotional distress claims, and the court's sua sponte dismissal of several defendants and other legal claims.
DISCUSSION
I. Jurisdiction over Defendants' Appeal
The denial of a motion for summary judgment is normally not "immediately appealable because such a decision is not a final judgment." O'Bert ex rel. Estate of O'Bert v. Vargo,
II. Qualified Immunity
Against this backdrop, we review de novo a district court's denial of a summary judgment motion based on a defense of qualified immunity. Savino v. City of New York,
Qualified immunity "shields police officers acting in their official capacity from suits for damages ... unless their actions violate clearly-established rights of which an objectively reasonable official would have known." Thomas v. Roach,
The Supreme Court has established a two-part inquiry to determine when a district court should hold that the doctrine of qualified immunity bars a suit against government officials: (1) the court must first consider whether the facts alleged, when taken in the light most favorable to the party asserting the injury, demonstrate a violation of a constitutional right, Saucier v. Katz,
Defendants have assumed, for the purposes of this appeal that "as a threshold matter, plaintiffs have shown a deprivation of a constitutional right." We need only, therefore, concern ourselves with the second part of the qualified immunity inquiry — the determination whether "[t]he contours of the right [allegedly violated are] sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right." Anderson,
A. The First Amendment
The First Amendment declares in part that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble." U.S. Const. amend. I. The Amendment embodies and encourages our national commitment to "robust political debate," Hustler Magazine v. Falwell,
The Supreme Court has declared that the First Amendment protects political demonstrations and protests — activities at the heart of what the Bill of Rights was designed to safeguard. See Boos v. Barry,
That said, First Amendment protections, while broad, are not absolute. Regan v. Boogertman,
1) Plaintiffs' Free Speech Rights Were Clearly Established.
Defendants concede that plaintiffs had a constitutional right to protest but instead argue that the contours of the right were not sufficiently clear because of the absence of "decisional law supporting the existence of a right to continue with a demonstration after some of the participants create a public safety hazard." While we recognize that to be clearly established, the right "must have been recognized in a particularized rather than a general sense," Sira v. Morton,
Defendants misapprehend the nature of the inquiry here. They essentially argue that we should find qualified immunity unless a Supreme Court or Second Circuit case expressly denies it, but that standard was rejected by the Supreme Court in favor of one in which courts must examine whether in "the light of pre-existing law the unlawfulness [is] apparent." Back,
In the protest context, the Supreme Court has already well articulated the contours of the right and made clear that the police may not interfere with demonstrations unless there is a "clear and present danger" of riot, imminent violence, interference with traffic or other immediate threat to public safety. Cantwell,
Plaintiffs allege that they posed no "clear and present danger" of immediate harm or violence at the time the police arrested them. Plaintiffs also allege that they made no threats of physical harm to police or members of the public, did not incite violence or disorder and displayed no dangerous weapons. See Cox I,
2) No objectively reasonable officer would have believed that he or she could have as a matter of law dispersed the demonstration under plaintiffs' facts.
Even if the protesters' First Amendment rights in this case are clearly established, defendants argue that an objectively reasonable officer would not have known that his dispersal of the demonstration was unlawful because the demonstration "had transformed from a peaceful gathering into one posing a clear and present danger to public safety, ... that was harboring several unidentified persons who had just committed ... criminal offense[s]." Defendants contend that through that lens, the facts, even as asserted by plaintiffs, required the district court to have granted them summary judgment as a matter of law. We disagree.
We have already concluded that we cannot say as a matter of law that under plaintiffs' facts, their actions presented a "clear and present" danger or immediate harm such that a reasonable officer would have believed he or she could have dispersed the protest. We are mindful that the First Amendment does not insulate individuals from criminal sanction merely because they are simultaneously engaged in expressive activity. See Cox I,
Section 240.10 of the Penal Law states that four or more persons assembled for purposes of engaging in violent and tumultuous conduct likely to cause public alarm constitutes an unlawful assemblage. N.Y. Penal Law § 240.10. Conviction under this law requires "an incitement which is both directed towards and likely to produce imminent violent and tumultuous conduct." Jones,
Section 240.20(5) of the Penal Law states that "[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [h]e [or she] obstructs vehicular or pedestrian traffic." N.Y. Penal Law § 240.20(5). New York courts have interpreted this statute to permit punishment only where the conduct at issue does more than merely inconvenience pedestrian or vehicular traffic. People v. Pearl,
Quite simply, on the facts alleged, we cannot say as a matter of law that the police had an objectively reasonable basis to conclude that the plaintiffs presented a clear and present danger of imminent harm or other threat to the public at the time of the arrests. Defendants were accordingly not entitled to qualified immunity.
3) The absence of a dispersal order violated First Amendment rights.
Plaintiffs' facts, as alleged, would also give rise to a separate First Amendment violation even if the NYSP had a lawful basis to interfere with the demonstration. Indeed, while defendants repeatedly invoke the need to disperse the crowd as their coup de grâce — even claiming that "dispersal [is] the essence of plaintiffs' First Amendment claims" — they completely ignore an important predicate of their defense: the order to disperse. Here, defendants concede that they issued no dispersal order and instead stood in a "skirmish line," waited thirty-five seconds, and then charged into the crowd, arresting protesters indiscriminately.5 They further concede that most demonstrators (including many, if not all, of the plaintiffs) had not ventured out onto the Interstate and that they could not identify any of the demonstrators who had. As we noted earlier, plaintiffs had an undeniable right to continue their peaceable protest activities, even when some in the demonstration might have transgressed the law. Claiborne Hardware,
In the end, the district court properly concluded that the facts as alleged by plaintiffs demonstrate that defendants violated plaintiffs' clearly established First Amendment rights "of which a reasonable person would have known." Hope,
B. The Fourth Amendment
The Fourth Amendment protects individuals from the government's use of excessive force when detaining or arresting individuals. See Thomas,
At the outset, defendants argue that the district court did not apply the reasonableness test as announced in Graham in evaluating whether they were entitled to qualified immunity on plaintiffs' excessive force claims, but rather examined only whether defendants had probable cause to arrest plaintiffs. The court's analysis was based, defendants contend, on a misreading of this Court's decision in Atkins v. New York City,
There has been disagreement among the lower courts about the breadth and scope of our Atkins decision.7 In that case, the jury returned a verdict in favor of the plaintiff on both his excessive force and false arrest claims and awarded him $1 in nominal damages, but nothing in compensatory damages despite the undisputed fact that plaintiff had been hurt during the arrest. Atkins,
This latter sentence has engendered undue confusion. See supra at n. 7. The issue in Atkins was the incongruity between the jury verdict and the damages awarded. Given the jury's determination that Atkins did not use force sufficient to justify the police using force against him and that he had in fact suffered injuries during his encounter with the police, the primary and necessary holding in our decision was that Atkins' injuries were at least in part proximately caused by the unconstitutional application of force by the police. As such, Atkins was entitled to some award of compensatory, rather than nominal, damages. There was accordingly no need for this Court in Atkins to reach the question of whether any force used in an arrest lacking probable cause is per se excessive. Such a construction would read the highly fact-specific situation in which Atkins arose too broadly because it would appear to suggest that any force employed by a police officer would be unlawful so long as probable cause did not exist, even if the detainee had threatened the officer with significant harm. We are further mindful that the Supreme Court held in Graham that "all claims that law enforcement officers have used excessive force ... should be analyzed under the ... `reasonableness' standard" of the Fourth Amendment, thereby establishing a general requirement.
This Court has remanded cases where a district court failed to reach an issue of qualified immunity, see Francis v. Coughlin,
Because no party has contested that plaintiffs' version, if true, would establish a constitutional deprivation, our analysis on the qualified immunity defense for the excessive force claim rests solely on the reasonableness of defendants' actions. Under plaintiffs' view of the record, the State troopers indiscriminately arrested some, but not all, plaintiffs and broke up the May 18 demonstration on private property; in the course of these actions, they allegedly employed excessive force against certain plaintiffs, some of whom were arrested and some of whom were not. Our review of the record shows that each plaintiff who has brought an excessive force claim has alleged sufficient facts from which a reasonable factfinder could find that the NYSP employed excessive force in arresting and dispersing members of the demonstration. For example, plaintiffs allege that without provocation, the NYSP threw several plaintiffs to the ground, including an eleven-year-old girl and an elderly medicine woman; beat various plaintiffs with batons; kicked and punched several of them; and pushed at least one man, who was praying, to the ground and choked him.
In sum, after conducting a de novo review, we hold that the district court's ultimate determination in denying defendants' motion for summary judgment on the excessive force claims was correct despite its understandable reliance on dicta in Atkins.
III. Qualified Immunity under State Law
The district court held that because "state law governs a defendant's entitlement to qualified immunity with respect to state-law claims, see Napolitano v. Flynn,
Plaintiffs do not attempt to defend the district court's interpretation of New York law, but rather contend that "[e]ven if the [qualified immunity] defense did apply to Plaintiffs' state claims, defendants' defense would necessarily depend on the same `reasonableness' at issue with respect to Plaintiffs' federal claims." We agree.
As with our determination on defendants' assertion of qualified immunity on plaintiffs' excessive force claims, we see no reason to remand where, as here, "the record plainly reveals the existence of genuine issues of material fact relating to the qualified immunity defense." Hurlman,
Plaintiffs' remaining state-law claims focus on the reasonableness of the State troopers in arresting and detaining them, including whether the defendants' actions resulted in false arrest and imprisonment, malicious prosecution, assault, battery or the intentional or negligent infliction of emotional distress. The resolution of these claims rests heavily on the same facts that form the heart of the federal claims. For instance, under New York law, qualified immunity in the context of a claim of false arrest depends on whether it was objectively reasonable for the police to believe that they had probable cause to arrest. Simpkin,
Because the remaining state-law claims present similar unresolved issues, we need not remand the state-law qualified immunity question here.
IV. Pendant Jurisdiction over Plaintiffs' Cross-Appeal
Having dealt with the merits of defendants' appeal, we turn now to plaintiffs' cross-appeal. Plaintiffs ask this Court to exercise pendent jurisdiction over a number of claims, including the dismissal of their First Amendment conspiracy, equal protection and Fourth Amendment false arrest and imprisonment claims; the grants of summary judgment to defendants Walsh and NYSP Superintendent McMahon; the sua sponte rulings dismissing all claims against Onondaga County, its Sheriff's Department, and NYSP troopers Bender and Obrist; and the grant of summary judgment to all defendants with respect to plaintiffs Marissa Horton and Verna Montour's excessive force claims. Under the collateral order doctrine, "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law [and not of fact], is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth,
Each finding on which plaintiffs seek to cross appeal involves issues entirely separate and distinct from the qualified immunity analysis at issue here, including the district court's determinations on the subjective intent in plaintiffs' conspiracy claims, see Crawford-El v. Britton,
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court denying qualified immunity and DISMISS plaintiffs' cross-appeal for lack of jurisdiction.
Notes:
Notes
As the district court correctly noted, it is a material issue of fact which, if any, of the plaintiffs actually entered the roadwayJones,
The Onondagas allege that this hostility was due in part to an earlier and unrelated incident in which Native American demonstrators injured several NYSP troopers during a protest in Buffalo
This approach would still provide police officers ample authority in certain circumstances to stop or prevent demonstrations that had turned, or threatened to turn, unduly disruptive or violent
As plaintiffs note, both sections of the Penal Law were considered and rejected by Justices Miller and Burke when they dismissed the State's charges against some of the plaintiffs for alleged misconduct during the May 18 demonstration
The NYSP argues that they confronted a situation of imminent harm. As we have repeatedly stated, however, our limited appellate jurisdiction here precludes us from viewing the facts as defendants assert them. We thus have no occasion to determine whether police would be permitted to disperse without warning a crowd more akin to a mob than the peaceful protest plaintiffs describe
In some cases, the Supreme Court has recognized that even an order to disperse would not divest demonstrators of their right to protest. InCox v. Louisiana,
Compare Zellner v. Summerlin,
The district court dismissed plaintiffs Marissa Horton and Verna Montour's excessive force claims in its March 28 decisionJones,