DANIEL TRIOLO v. NASSAU COUNTY, DETECTIVE RICHARD C. LEE
Docket No. 19-4107-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
January 21, 2022
DANIEL TRIOLO, Plaintiff-Appellant, v. NASSAU COUNTY, DETECTIVE RICHARD C. LEE, Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
Before: POOLER, CHIN, and LOHIER, Circuit Judges.
Aрpeal from an order of the United States District Court for the Eastern District of New York (Tomlinson, M.J.), denying in part and granting in part defendants-appellees’ renewed motion for judgment as a matter of law pursuant to
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
JUDGE LOHIER CONCURS, in a separate opinion.
ANISH PATEL, Law Student, and JON ROMBERG (Mikayla R. Berliner, Christopher A. Dernbach, Kamille E. Perry, and Lauren E. Russo, Law Students, on the brief), Seton Hall University School of Law, Center for Social Justice, Newark, New Jersey, for Plaintiff-Appellant.
JACKIE L. GROSS, Nassau County Attorney (Robert F. Van der Waag, Deputy County Attorney and Samuel Weinstein, Lаw Student Intern, on the brief), Mineola, New York, for Defendants-Appellees.
CHIN, Circuit Judge:
On May 18, 2015, plaintiff-appellant Daniel Triolo (“Triolo“) was arrested for an altercation involving members of his immediate family that occurred the day before. Defendant-appellee Richard C. Lee (“Lee“), a detective with the Nassau County Police Department, arrested Triolo without a warrant based on a domestic incident report signed by Triolo‘s brother and mother. Triolo spent one night in jail and the charges against him were eventually dismissed.
On April 27, 2016, Triolo sued Lee for false arrest under
The district court vacated the jury‘s verdict and dismissed the claims against both defendants on the ground that, although the еvidence supported the jury‘s finding that Lee did not have actual probable cause, Lee was entitled to qualified immunity because he had arguable probable cause as a matter of law. The district court also dismissed the claims against the County based on Lee‘s immunity. This appeal followed.
We AFFIRM in part, REVERSE in part, and REMAND.
BACKGROUND
“Because this appeal follows a jury verdict, we view the facts in the light most favorable to the prevailing party.” MacDermid Printing Solutions LLC v. Cortron Corp., 833 F.3d 172, 178 n.1 (2d Cir. 2016) (reviewing denial of judgment as a matter of law). Here, while the parties disagree as to many of the facts, we view the facts in the light most favorable to Triolo. Id.
I. The Facts
A. The First Altercation
On May 15, 2015, Triolo‘s father passed away suddenly. Two days later, on May 17, 2015, around 2:10 p.m., Triolo arrived at his mother‘s house to check on her. He was accompanied by his wife, Debra. An altercation ensued between Triolo and his brother, Stephen, and their mother, Patricia.
The house smelled of marijuana. Triolo found Stephen inside and told him he should not bе smoking marijuana in the house. In response, Stephen jumped up from his chair and started yelling and threatening Triolo. Both Triolo and Debra believed Stephen was under the influence of crack cocaine. Triolo yelled back at Stephen, but at no point did he grab, punch, or otherwise touch his brother. Nor did he yell at, threaten, grab, or push his mother.1 Debra believed Patricia was under the influence of alcohol or drugs, possibly Xanax given to her by her other son, Michael.
Patricia called 911 at 2:14 p.m. The 911 call report stated: “Female now on the line
Three police officers arrived at Patricia‘s house in response to the call. By then, Triolo had left. Both Stephen and Patricia gave sworn statements to the officers. According to the police report, however, neither had visible injuries.
Stephen‘s statement read:
My mother invited my brother, Daniel, Triolo, to the house to play with the dog. Daniel entered the house, screaming where is he? I‘m going to kill him. Out of my way. My mother attempted to stop my brother Daniel from attacking me. Daniel grabbed my mother by her wrist and pushed her out of the way. Daniel then jumped on top of me while I was sitting on the chair watching TV and began to choke me with his both hands [sic]. I lost ability [sic] to breathe and saw stars. My brother Daniel again started to punch me by my face with his fist and spitting at me at the same time. I feel pain in my head area and pain on my left side body. I request an arrest. Daniel in the house stated to mother Patricia, I‘m going to fucking kill you and I hate you fucking guts [sic]. I‘m going to kill your son. Patricia is in fear for her safety and requested an arrest as well.
J. App‘x at 70-71. Patricia‘s statement read:
My son Daniel entered my house, started to scream at me. I‘m going to fucking kill you, and I hate your fucking guts. I‘m going to kill your son. I attempted to stop my son from hurting Stephen. Daniel grabbed me by my wrist and pushed me out of the way. My wrists are hurting. I‘m in a lot of pain. I request an arrest. I‘m in fear for my safety.
J. App‘x at 72. The domestic incident report noted that there were “no visible injuries” and that no arrest was made because “no offense [was] committed.” J. App‘x at 169, 173-77.2 It also noted, however, that Triolo engaged in “punching, pushing, strangulation, and . . . choking.” Id. at 174. After taking the statements and filling out the domestic incident report, the officers left the scene. At the precinct, a supervisor completed the domestic incident report and forwarded the case, including the domestic incident report and sworn statements, to Lee. When Lee received the case, he reviewed the domestic incident report and the sworn statements.3
B. The Second Altercation
Triolo‘s father‘s wake was held on May 18, 2015, at 2:00 p.m. Shortly after Triolo and Debra arrived at the wake, a second altercation began. While Triolo sat in the front row of the funeral home room, Stephen and Michael approached and physically attacked him. Triolo and Debra left the wake shortly after the altercation.
C. The Arrest
Triolo and Debra returned home around 3:00 p.m. Debra then called police officers at Nassau County‘s eighth precinct to report the assault on her husband at the funeral home. Three or four officers arrived at the house in response to her call.
While Debra was speaking with the responding officers, Lee and another officer arrived at the house in plainclothes and an
At Debra‘s urging, officers from the eighth precinct then asked Lee to exit the car to speak with her. He did. In response to Debra‘s questions, Lee said that he did not know what Triolo was being charged with and that Debra would have to call the precinct to find out. Debra again expressed shock and explained that she was in the process of reporting an assault on her husband when Lee arrived. According to Debra, Lee responded that he “would never take that report because that‘s retaliation and that‘s tit-for-tat” and that anything she had to say “doesn‘t matter.” J. App‘x 64. Debra again explained that she was present during the assault the day before and had taken pictures the next morning that showеd that Triolo‘s dominant hand and other parts of his body had no marks on them -- proof that he had not assaulted anyone.4 Instead of asking follow up questions, Lee simply rolled his eyes again and walked away. The conversation lasted only a few minutes. Triolo was arrested around 3:40 p.m.5
D. The Release and Dismissal
Triolo was charged with: (1) criminal obstruction of breathing or blood circulation, in violation of
II. The Proceedings Below
On April 27, 2016, Triolo commenced this action against Leе and the County seeking damages for false arrest under federal and New York state law. Trial began on December 3, 2018. Before the case was submitted to the jury, Lee and the County moved for judgment as a matter of law. The district court denied the motion.
On December 7, 2018, the jury returned a verdict in favor of Triolo on both the federal and state claims, finding that Lee did not have probable cause to arrest. The jury awarded Triolo “$150,000 in compensatory damages [against] the Defendants” and “$35,000 in punitive damages [against] Detective Lee.” J. App‘x at 180-81.
Lee and the County thereafter renewed their motion for judgment as a matter of
As to probable cause, the court explained that the jury‘s verdict was supported by evidence sufficient to raise doubts about Stephen‘s and Patricia‘s truthfulness, including lack of any physical injury and their alleged intoxication, as well as the domestic incident report, which indicated that no offense had been committed. As to qualified immunity, the court explained that the evidence did not cast so much doubt on the truthfulness of the statements that “no reasonable officer could have determined that probable cause existed to arrest [Triolo] for criminal obstruction of breathing or third-degree assault.” J. App‘x at 195-96 (internal quotation marks omitted). Thus, the court concluded that there was arguable prоbable cause to arrest Triolo and therefore Lee was entitled to qualified immunity. The court also dismissed the claims against the County, reasoning that the County was not liable because Lee was immune from liability and it was sued for Lee‘s conduct only under a theory of respondeat superior. This appeal followed.6
STANDARD OF REVIEW
We review de novo a district court‘s decision on a motion for judgment as a matter of law under
A district court may grant judgment as a matter of law only if it finds that “a reasonable jury would not have a legally sufficient evidentiary basis to find for the [nonmoving] party.”
DISCUSSION
On appeal, Triolo argues that the district court erred in vacating the jury‘s
I. Probable Cause
The district court found that the record supported the jury‘s finding that Lee lacked probable cause to arrest Triolo. We agree.
Under both federal and New York state law, probable cause is a complete defense to a false arrest claim. See, e.g., Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016) (“The existence of probable cause to arrest -- even for a crime other than the one identified by the arresting officer -- will defeat a claim of false arrest under the Fourth Amendment.“); De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759 (2016) (“For purposes of the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause.“).
To determine whether probable cause existed, we consider the totality of the circumstances, Jenkins v. City of New York, 478 F.3d 76, 90 (2d Cir. 2007), reviewing “plainly exculpatory evidence alongside inculpatory evidence to ensure the court has a full sense of the evidence that led the offiсer to believe that there was probable cause to make an arrest,” Stansbury v. Wertman, 721 F.3d 84, 93 (2d Cir. 2013) (internal quotation marks omitted). In this analysis, we “consider those facts available to the officer at the time of the arrest and immediately before it,” keeping in mind that “an officer may not disregard plainly exculpatory evidence.” Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012) (internal quotation marks omitted). “The significance of each of these factors may be enhanced or diminished by surrounding circumstances.” Jenkins, 478 F.3d at 90.
Law enforcement officers have probable cause to arrest “when they have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (internal quotation marks omitted); see also De Lourdes Torres, 26 N.Y.3d at 759 (“Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstanсes to believe plaintiff guilty.“). More specifically, “[a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the [alleged] victim‘s veracity.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). The “veracity of the informant and the basis for the informant‘s knowledge are two important factors.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (internal quotation marks omitted).
Here, although Stephen and Patricia signed sworn statements attesting to the alleged assault, the jury reasonably found that Lee disregarded evidence that undermined their veracity. Neither Stephen
Faced with information that undermined the veracity of the alleged victims, Lee did not engage in further investigation to ensure the existence of probable cause. And although he had no duty to seek it out, Lee was not free to disregard the plainly exculpatory evidence that was presented to him. See Fabrikant, 691 F.3d at 214. Viewing the facts in the light most favorable to Triolo, we conclude that the trial evidence was sufficient for a reasonable jury to find that “a person of reasonable caution” in Lee‘s position would have understood that he did not have reasonably trustworthy information to believe that Triolo committed a crime. See Hernandez, 939 F.3d at 199 (internal quotation marks omitted). In other words, we do not find “such a complete absence of evidence” supporting the jury‘s verdict that would require reversing the district court‘s denial of the Rule 50(b) motion. See Ashley, 992 F.3d at 138-39 (internal quotation marks omitted). Accordingly, we conclude that the district court properly upheld the jury‘s finding as to the absence of actual probable cause.
II. Qualified Immunity
Triolo argues that the district court improperly held that Lee was entitled to qualified immunity because the jury‘s award of punitive damages “necessarily precludes immunity under both federal and New York law.” Aрpellant‘s Suppl. Br. at 28 n.5. We disagree. First, Lee is immune under federal law because he had arguable probable cause. Second, Lee is immune under New York state law because his actions were discretionary and not objectively unreasonable, and the record, even construed in Triolo‘s favor, does not establish bad faith.
A. Federal Law
Even where actual probable cause does not exist, an officer may be entitled to qualified immunity on a § 1983 false arrest claim if his actions were objectively reasonable or if “arguable probable cause” existed at the time of the arrest. Figueroa, 825 F.3d at 100; accord District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018) (“Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to qualified immunity because they reasonably but mistakenly concluded that probable cause was present.” (cleaned up)). A defendant has the burden of proving the affirmative defense of qualifiеd immunity. See Gomez v. Toledo, 446 U.S. 635, 640-41 (1980).
“A police officer has arguable probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Figueroa, 825 F.3d at 100 (internal quotation marks omitted). The question is
Although we have concluded that the jury reasonably found a lack of actual probable cause, we agree with the district court that Lee nonetheless had arguable probable cause to arrest Triolo.7 As explained above, Lee lacked actual probable cause because he ignored exculpatory evidence and information that undermined the veracity of the alleged victims. But that conclusion does not preclude a finding of arguable probable cause. On this record, even construed in the light most favorable to Triolo, it is not clear that no reasonable officer could have believed that probable cause existed. See Figueroa, 825 F.3d at 100.
The alleged victims signed a domestic incident report, alleging that Triolo choked, punched, grabbed, and injured them. Their accounts were consistent with each other‘s. And even though the lack of visible injuries arguably undermined their veracity, it is nonetheless possible that no visible injuries resulted frоm the alleged assault. Finally, although the report stated that no arrest was made on May 17, 2015, because “no offense [was] committed,” a reasonable officer receiving this report could have concluded this was a mistake because the form also plainly indicated that Triolo had engaged in punching, pushing, strangulation, and choking.
Accordingly, although we do not conclude that the evidence in favor of defendants is “so overwhelming that reasonable and fair minded persons could not arrive at a verdict against” them to justify vacating the jury‘s finding of lack of actual probable cause, Ashley, 992 F.3d at 139 (cleaned up), we nonetheless conclude that Lee had arguable probable cause based on the domestic incident report and accompanying statements. Lee‘s actions, though wrong, were not so wrong that no reasonable officer, “out of the wide range of reasonable peоple who enforce the laws in this country, could have determined that the challenged
action was lawful.” See Figueroa, 825 F.3d at 100. As a result, Lee is entitled to qualified immunity with respect to the
B. New York State Law
New York law grants government officials qualified immunity on state law claims, including false arrest claims, if their actions entail “making decisions of a judicial nature,” unless “there is bad faith or the action taken is without a reasonable basis.” Arteaga v. State of New York, 72 N.Y.2d 212, 216 (1988). In other words, New York immunity law requires both objective and subjective reasonableness. See Lore v. City of Syracuse, 670 F.3d 127, 166 (2d Cir. 2012) (“In contrast to the federal standard, which is objectively reasonable reliance on existing law, the New York standard for entitlement to qualified immunity has both objective and subjective components.” (internal citations and quotation marks omitted)).
As to the first prong, a decision is “of a judicial nature” if it “requires the application of governing rules to particular facts,” or if it is “an exercise of reasoned judgment which could typically produce different acceptable results.” Arteaga, 72 N.Y.2d at 216-17 (cleaned up). Hеre, Lee‘s decision to arrest Triolo based on what he believed to be probable cause required the application of governing rules to facts. As explained above, that decision was not objectively unreasonable and could have produced different acceptable results. Accordingly, he satisfies the objective component.
As to the second prong, an officer cannot satisfy the subjective component “if there are undisturbed findings of bad faith” in the record. Lore, 670 F.3d at 166 (internal quotation marks omitted). Triolo argues that the jury‘s award of punitive damages constitutes a finding of bad faith, which was not disturbed by the district court. We disagree. First, the jury‘s punitive damages award was, in fact, disturbed; it was vacated by the district court. Second, even though the jury awarded punitive damages, it did not necessarily find malice; the jury instruction allowed punitive damages for behavior done “wantonly” or “oppressively” as well. Sеe J. App‘x at 153. Third, even if the jury‘s award implied a finding of malice, the record does not support that finding.
The jury awarded $35,000 in punitive damages after it was instructed it could award punitive damages if it found Lee had made the arrest maliciously (“prompted or accompanied by ill-will or spite or grudge either toward the plaintiff individually or toward all persons in the group or category of which the injured person is a member“), wantonly (“in reckless or callous disregard of, or indifference to the rights of the injured person“), or oppressively (“in a way or manner which injuries or damages or otherwise violates the rights of another person with unnecessary harshness or severity or by misuse or abuse of authority or power“). See J. App‘x at 153. The jury did not specify which of these three alternatives described Lee‘s conduct. Even assuming the jury found that Lee acted maliciously, we agree with defendants that “there is not a scintilla of evidencе that the detective actually had any malicious” intent. Appellees’ Suppl. Br. at 22-23.
The jury‘s award of punitive damages does indicate that it assessed the trial testimony and evidence to strongly favor Triolo. That said, there is no evidence in the record that Lee held any ill-will, spite, or other bad faith toward Triolo. Indeed, Lee had a domestic incident report, signed by two victims, which noted that Triolo had engaged in punching, pushing, strangulation, and choking. The only fact Triolo points to as showing bad faith is that Lee was not interested in hearing Debra‘s version of events while he was arresting Triolo. This alone is insufficient to support a finding of malice. Viewed in a light most favorable to Triolo, the record could only support a finding of callousness or indifference in making the arrest, and such a finding does not preclude the legal conclusion that Lee acted in subjective good faith. Accordingly, Lee satisfies both prongs of the New York immunity test and
III. Vicarious Liability
Next, Triolo argues that, even if Lee is entitled to qualified immunity, the County is still vicariously liable for Lee‘s wrongful conduct under New York law.8 Specifically, Triolo argues, “when an employee-officer commits an underlying violation, such as false arrest without probable cause, but is personally shielded by qualified immunity, the municipal employer, like any other principal under New York law, remains vicariously liable for its agent‘s conduct.” Appellant‘s Suppl. Reply at 26-27. We agree. First, qualified immunity is an individual affirmative defense that does not protect municipalities. Second, under New York law and basic agency principles, a municipal employer is vicariously liable for the wrongs of its employee, even when the employee is individually immune, so long as the wrong was committed within the scope of employment.
A. Municipal Immunity
The County is not entitled to qualified immunity, and, despite defendants’ contentions otherwise, Lee‘s immunity does not somehow transfer to his municipal employer. The Supreme Court has explicitly rejected the idea that municipalities are entitled to qualified immunity under federal law. See Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166–67 (1993) (“[U]nlike various government officials, municipalities do not enjoy immunity from suit -- either absolute or qualified -- under
We turn then to the issue of whether the County may be vicariously liable for damages caused by its employee under New York state law, even though that employee is entitled to individual immunity.
B. Respondeat Superior
The district court held that claims against a municipal employer must be dismissed when its employee is entitled to qualified immunity, regardless of whether that emplоyee violated the law. We agree, as does Triolo, that a municipal employer cannot be vicariously liable in the absence of unlawful conduct. Here, however, Lee engaged in unlawful conduct when he arrested Triolo without probable cause. Thus, the question is whether a municipal employer can be held vicariously liable for its individually immune employee under New York state law when that employee has been found liable for an underlying wrong. It can.
New York law is clear that municipalities can be liable for the actions of
The next question is whether New York law categorically bars a principal‘s vicarious liability when an agent is individually immune. It does not. New York courts have addressed this question in the context of spousal and other immunities. See Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 255 (1928) (“The disability of wife or husband to maintain an action against the other for injuries to the person [given interspousal immunity] is not a disability to maintain a like action against the other‘s principal or master.“); see also Rauch v. Jones, 4 N.Y.2d 592, 596 (1958) (“[T]he negligence of the employee having been established, liability [for the employer] ensued under the rule of respondeat superior. The employer, of course, could not avail itself of the personal immunity of the [employee].“). And although these cases are plainly distinguishable in that they did not involve municipal liability, they do support the conclusion that an agent‘s immunity is not a categorical bar to the principal‘s vicarious liability.
Basic agency principles outlined in the Restatement (Second) of Agency (the “Restatement“) provide similar guidance. See Restatement (Second) of Agency § 217. Section 217 of the Restatement states that an employer remains liable for its employee‘s wrongful conduct even when that employee is entitled to personal immunity from paying damages. Id. Moreover, comment b to § 217 explains that where “the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal.... This result is in accordance with the rule stated in this Section and is the rule adopted in most of the states.” Id. New York courts have relied on the Restatement, including section 217. See, e.g., Padlo v. Spoor, 422 N.Y.S.2d 895, 895 (4th Dep‘t 1979) (citing § 217(b)(ii))9; Winnick v. Kupperman Constr. Co., 287 N.Y.S.2d 329, 332 (2d Dep‘t 1968) (citing comment b to § 217).10
Undeniably, this analysis can become muddled when it incorporates caselaw involving no underlying violation. For example, in dismissing the claims against the County, the district court relied on a series of cases that did not involve an underlying wrong. In Boyler v. City of Lackawanna, 287 F. Supp. 3d 308, 326 (W.D.N.Y. 2018), the court dismissed claims against officers and thus against the city as well because the “arrest was supported by probable cause.” In Brown v. City of New York, No. 13-cv-5317, 2015 WL 427942, at *6 (E.D.N.Y. Feb. 2, 2015) (citing Shapiro v. Kronfeld, No. 00-cv-6286, 2004 WL 2698889, at *24 (S.D.N.Y. Nov. 24, 2004) (holding “there can be no imposition of vicarious liability in the absence of underlying liability“)), the court held that there were “no unconstitutional actions by the City‘s employees.” In Hargroves v. City of New York, No. 10-cv-1668, 2014 WL 1271024, at *4 (E.D.N.Y. Mar. 26, 2014), the court dismissed vicarious liability claims against the city because it found thе officers acted objectively reasonably and thus there was “no underlying offense for which the City could be held vicariously liable.” Lastly, in Fiedler v. Incandela, 222 F. Supp. 3d 141, 161-62, 169 (E.D.N.Y. 2016), the court held that “[t]he undisputed facts establish that probable cause existed to arrest Plaintiff,” and “[h]aving concluded that the Individual Defendants are entitled to judgment as a matter of law with respect to Plaintiff‘s claims arising under New York law, the County Defendants are also entitled to judgment as a matter of law with respect to Plaintiff‘s claims for vicarious liability.” Defendants similarly rely on cases that are distinguishable in that, unlike here, they do not involve underlying wrongful conduct. Of course, when there is no underlying liability, there can be no vicarious liability.
In Kass v. City of New York, 864 F.3d 200, 213-14 (2d Cir. 2017), we upheld the “dismiss[al of] Kass‘s state law false arrest claim against the City” because it was “based solely on his allegation that the City is responsible for any false arrest that was committed by the officers.” Id. at 213-14. There, unlike here, we did not conclude that the arresting offiсer lacked probable cause. Indeed, in support of our holding in Kass, we cited Demoret v. Zegarelli, 451 F.3d 140, 152-53 (2d Cir. 2006), where we held that the defendants were entitled to qualified immunity because the plaintiffs had not established an underlying violation of their equal protection rights. Then,
Plaintiffs’ allegations that the [municipality] is liable for a hostile work environment are based solely on the acts of [the individual defendants]. Plaintiffs’ claims against the [municipality] are thus inextricably intertwined with their claims against the individual defendants. Because we have found as a matter of law that [the individual defendants] did not subject plaintiffs to a hostile work environment, defendants are entitled to summary judgment on plaintiffs’ parallel state law causes of action.
Demoret, 451 F.3d at 153. In other words, because there was no underlying violation, there was no vicarious liability. Here, in contrast, a jury found that Lee lacked probable cause and therefore falsely аrrested Triolo. Defendants cite no persuasive authority as to why the County, as Lee‘s employer, cannot be vicariously liable for the damages he caused in doing so.
In sum, the County remains vicariously liable under New York law for the compensatory damages because (1) municipalities are not entitled to qualified immunity, (2) municipal employers may be vicariously liable on state law claims brought against their police officer employees, (3) a principal remains liable for damages caused by its agent, even when that agent is individually immune, and (4) Lee was acting within the scope of his employment when he arrested Triolo. Thus, even though Lee is shielded from personally paying for the damages he caused by falsely arresting Triolo, the County remains liable for those damages under New York state law.11
CONCLUSION
For the reasons set forth above, we AFFIRM the district court‘s dismissal of the claims against Lee and REVERSE the district court‘s dismissal оf the claims against the County, and REMAND for the entry of judgment in Triolo‘s favor against the County in the amount of $150,000 and for such other proceedings as may be appropriate.
LOHIER, Circuit Judge, concurring:
The central question in this appeal is whether a county, town, or city in New York State can be held liable under New York law for damages caused by its own officials, even when the officials themselves are entitled to individual immunity. While the question is straightforward, the answer is not. Nevertheless, the majority confidently holds that under New York law, the immunity enjoyed by the police officers here does not relieve the County of its vicarious municipal liability. As is evident from the fact that I concur, I think that answer may well be correct and certainly makes good policy sense. But the majority reaches the answer only by piecing together a tiny smattering of judicial and non-judicial signals, recognizing, as we must, that New York courts have thus far been silent on the issue.
Basic notions of federalism and deference to our state counterparts on matters uniquely within the province of state law compels us to act cautiously when wading into uncertain terrain of state law, so it would have been better, in my view, to certify to the New York Court of Appeals
I
We have long recognized that certification of questions of state law is “a valuable device for securing prompt and authoritative resolution of unsettled questions, . . . especially those that seem likely to recur and to have significance beyond the interests of the parties in a particular lawsuit.” Kidney v. Kolmar Lab‘y, Inc., 808 F.2d 955, 957 (2d Cir. 1987). The Supreme Court itself has explained that certification can “save time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974); see also Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1157 & n.4 (2017) (Sotomayor, J., concurring) (recognizing the significance of a cooperative judicial federalism and discussing the benefits that certification has brought to our circuit). And our state court colleagues, including former Chief Judge Judith Kaye of the New York Court of Appeals, have also heralded the benefits of certification. See 70 N.Y.U. Annual Survey Am. L. 33, 33–34 (2014) (Chief Judge Kaye observing that “[t]he certification process, as it has been actively and vigorously employed by the Second Circuit, has done an enormous amount to bridge the gap between our state and federal court systems. I cannot remember a time in my own long career at the New York Bar that we have enjoyed such camaraderie, collegiality, and mutual respect.“)
In deciding whether or not to certify a question, we ask ourselves at least three questions. First, has the New York Court of Appeals squarely addressed the issue, and, if not, do other decisions of intermediate appellate courts give us sufficient guidance to predict with confidence how the Court of Appeals would resolve it? See 10 Ellicott Square Ct. Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125–26 (2d Cir. 2011); see also DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005) (noting that certification is proper when “state law is so uncertain that we can make no reasonable prediction” about how the state‘s highest court would decide the question). Second, is the question before us of “importance . . . to the state” and does its resolution “require value judgments and important public policy choices that the New York Court of Appeals is better situated than we to make“? 10 Ellicott Square Ct. Corp., 634 F.3d at 126 (citing Am. Buddha, 609 F.3d at 42). And third, is the question “determinative of a claim before us“? Id. (quotation mаrks omitted). The answer to each of those questions favors certification here.
As the majority appears to acknowledge, not a single New York court has addressed whether, under New York law, a municipality derives immunity from the qualified immunity of its officers and employees. See Majority Op. at 27-28. Confronted with such a blank judicial slate, the majority turns instead to the Restatement (Second) of Agency (the “Restatement“) to fill the gap. Although the Restatement is an invaluable and unparalleled legal resource and guide for federal and state courts, we have never before held that it alone settles an open question of New York law, without the benefit of state court decisions, and the
The lack of compelling authority in this case should have prompted us to certify the question of municipal liability rather than speculate about how the Court of Appeals might answer the question. Our hastiness to answer it as a matter of first impression might be forgiven if the issue were a straightforward application of blackletter law. That is pretty obviously not the case. The issue is one of genuine importance, about which reasonable jurists might disagree; policy considerations favor both sides; it requires us to make certain value judgments and public policy choices on behalf of New York; and resolution of the issue will have significant repercussions on the careful balancing between fiscal considerations and accountability for the harms caused by police officers and other officials in New York. It is not clear, and I do not presume to know, how the Court of Appeals might weigh those considerations1 or how it might regard any number of public policy reasons for distinguishing municipalities from private employers, who clearly would be liable. See, e.g., Rauch v. Jones, 4 N.Y.2d 592, 596 (1958). What is clear, though, is that we are not best positioned to decide what the answer to the question should be. As our colleague Judge Wesley, who formerly sat on the Court of Appeals, has put it, that court, not the Second Circuit, “is the umpire better suited to make this call.” Tantaros v. Fox News Network, LLC, 12 F.4th 135, 150 (2d Cir. 2021) (Wesley, J., dissenting).
II
All of the above counsels a more restrained approach than the majority adopts today. But I recognize that my colleagues in the majority have decided that they have enough to confidently answer the question that I would certify. I recognize, too, that certification in New York is (and was intended to be) an institutional process, not a decision that is subject to the whims or preferences of any individual judge. Although I might have preferred to certify, there is no institutional reason for me to dissent on that ground alone. Dissenting gеts our Court nowhere, while concurring at least serves to mark our decision as one of interest for the New York Court of Appeals. Granted, this would have been a more difficult approach to take if I thought the result that the majority reaches was completely wrong. But forced to answer the question, I am persuaded by the majority‘s reasoning as to what New York law might require. Municipal immunity has been, in my view, rightly criticized on the ground that “the torts of public employees are properly to be regarded, as in other cases of vicarious liability, as a cost of the administration of government and should be borne by the public.” Restatement (Second) of Torts § 895C cmt. D (1979). I have less confidence than the majority does, however, that the New York Court of Appeals would agree.
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For these reasons I concur.