KIM VASQUEZ v. DETECTIVE CHRIS G. MALONEY, OFFICER VICTOR CARABALLO, OFFICER BRIAN DUNNE, OFFICER THOMAS LATORRE, ORLANDO CRUZ, POLICE OFFICER BRIAN CALLANAN
No. 20-1070-cv
United States Court of Appeals for the Second Circuit
MARCH 4, 2021
August Term, 2020
Submitted: December 11, 2020
Appeal from the United States District Court for the Southern District of New York. No. 7:15-cv-8848 — Nelson S. Roman, Judge.
* 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. Roman, 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.
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
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 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.
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 involved in Vasquez‘s detention—decided to detain Vasquez “until it could be verified that the Warrant
In an opinion and order entered on March 19, 2020, the district court denied the defendants’ motion for summary judgment as to the Fourth 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,
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 (2017) (internal quotation marks and citation omitted). The
To determine whether a right is clearly established, “we generally look to Supreme Court and Second Circuit precedent existing at the time of 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 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,
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)).
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 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 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.
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 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.
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 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
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. 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
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 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.