20-1070-cv Vasquez v. Maloney, et al.

In the United States Court of Appeals for the Second Circuit

August Term, 2020 No. 20-1070-cv

KIM VASQUEZ, Plaintiff-Appellee,

v.

DETECTIVE CHRIS G. MALONEY, OFFICER VICTOR CARABALLO, OFFICER BRIAN DUNNE, OFFICER THOMAS LATORRE, ORLANDO CRUZ, POLICE OFFICER BRIAN CALLANAN, Defendants-Appellants. *

Appeal from the United States District Court for the Southern District of New York. No. 7:15-cv-8848 — Nelson S. Román, Judge.

SUBMITTED: DECEMBER 11, 2020 DECIDED: MARCH 4, 2021

* 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. Román, 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.

WILLIAM J. NARDINI, Circuit Judge:

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,

(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 United States District Court for the Southern District of New York

(Nelson S. Román, Judge). He sued several unnamed officers of the

3 Clarkstown Police Department in their individual capacities pursuant to

, alleging that they violated his rights under the Fourth

Amendment of the United States Constitution when they stopped and

frisked him without a warrant or probable cause. Following identification

of the officers involved, Vasquez filed an amended complaint naming

Defendants-Appellants Chris Maloney, Victor Caraballo, Brian Dunne,

Thomas LaTorre, Orlando Cruz, and Brian Callanan (together, the

“Officers” or “defendants”). 1

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

1Vasquez filed his first amended complaint on February 1, 2016. We refer to his operative, second amended complaint, filed on December 19, 2018, as simply the “complaint,” except when necessary to distinguish it from previous versions.

4 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.

5 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

2It is not clear from the record where Officer Dunne was during the encounter, other than that he was “assigned to routine patrol at the Mall that night.” App’x 295.

6 involved in Vasquez’s detention—decided to detain Vasquez “until it could

be verified that the Warrant remained open.” App’x at 235. They

surrounded Vasquez in the parking lot, instructed him to freeze, placed him

against a wall, and “likely” performed a “basic cursory pat down,”

ultimately removing Vasquez’s wallet from his pocket. App’x 235, 262–63.

Vasquez was detained for approximately two minutes, until

communication with the radio dispatcher revealed that there was no

outstanding warrant for Vasquez’s arrest, at which point the Officers

released him. 3

In an opinion and order entered on March 19, 2020, the district court

denied the defendants’ motion for summary judgment as to the Fourth

3 In their summary judgment submissions, the Officers note that their department received notice of an arrest warrant that had been issued for Vasquez on June 13, 2014, by the Rockland County Supreme Court. But the Officers further note that Vasquez appeared in court for arraignment on that charge on September 24, 2014, and that he was released on bail. Thus, although there had been an active arrest warrant for Vasquez earlier in 2014, for the three months immediately preceding the events at issue here—from September 24, 2014, until Cruz spotted Vasquez on January 5, 2015—that arrest warrant had been closed.

7 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,

, 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,

(2d Cir. 2020). Although our jurisdiction is generally limited to “final

decisions” of the district courts,

, an order that denies

qualified immunity may be immediately appealed under the collateral order

doctrine “to the extent that it turns on an issue of law.” Mitchell v. Forsyth,

4The district court granted summary judgment for defendants on Vasquez’s claims of inappropriate contact under the Fourth Amendment, religious freedom and intimate association claims under the First Amendment, and state law claims. See Vasquez,

, at *14. These claims are not before us on appeal.

8

(1985); see also Tangreti,

. The parties do not

dispute any facts material to the issue of qualified immunity, and we have

jurisdiction to review the district court’s denial of summary judgment on

the purely legal question of the defendants’ qualified immunity. As always

when reviewing a ruling on summary judgment, we draw all reasonable

inferences from the existing factual record in favor of the non-moving party:

here, Vasquez. See Naumovski v. Norris,

(2d Cir. 2019)

(“When considering qualified immunity at the summary judgment stage,

courts must construe all evidence and draw all reasonable inferences in the

non-moving party’s favor.” (internal quotation marks omitted)).

A. Qualified Immunity

“Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments about open legal questions,”

Ashcroft v. al-Kidd,

, 743 (2011), preserving a balance between

“vindication of citizens’ constitutional rights and . . . public officials’

effective performance of their duties,” Ziglar v. Abbasi,

, 1867

9 (2017) (internal quotation marks and citation omitted). The dispositive

inquiry “is whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Hernandez v. Mesa,

(2017) (quoting Saucier v. Katz,

, 202 (2001)).

Defendants moving for summary judgment on the basis of qualified

immunity bear the burden of “demonstrating that no rational jury could

conclude (1) that the official violated a statutory or constitutional right, and

(2) that the right was clearly established at the time of the challenged

conduct.” Coollick v. Hughes,

(2d Cir. 2012) (internal

quotation marks omitted) (quoting al-Kidd, 563 U.S. at 735). 5

To determine whether a right is clearly established, “we generally

look to Supreme Court and Second Circuit precedent existing at the time of

5At the pleading stage, the plaintiff must plausibly allege that the defendants violated clearly established law. See al-Kidd, 563 U.S. at 735. “Because qualified immunity is an affirmative defense,” however, at the summary judgment stage “the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time.” Tellier v. Fields,

(2d Cir. 2000) (quoting Varrone v. Bilotti,

(2d Cir. 1997)).

10 the alleged violation.” Garcia v. Does,

(2d Cir. 2015) (internal

quotation marks omitted) (quoting Okin v. Vill. of Cornwall-On-Hudson Police

Dep’t,

(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,

(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,

(2017), such that the

unlawfulness of the defendant officer’s conduct would “follow

11 immediately,” D.C. v. Wesby,

(2018) (quoting Anderson v.

Creighton,

(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.”

. 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, grounded in specific and articulable facts, that a

person they encounter was involved in or is wanted in connection with a

completed felony.” United States v. Hensley,

(1985); see

12 also United States v. Lucky,

(2d Cir. 2009) (upholding Terry

stop based on reasonable suspicion that vehicle was connected to a crime

completed two days earlier).

The reasonable suspicion standard is “not high.” United States v.

Bailey,

(2d Cir. 2014) (quoting Richards v. Wisconsin,

(1997)). Reasonable suspicion requires less than the “fair

probability” of wrongdoing needed to support probable cause, United States

v. Padilla,

, 186–87 (2d Cir. 2008), and it can “arise from

information that is less reliable,” such as an unverified tip, Alabama v.

White,

(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,

(quoting United States v. Bayless,

(2d Cir. 2000)), and

making “commonsense judgments and inferences about human behavior,”

Kansas v. Glover,

(2020) (quoting Illinois v. Wardlow,

(2000)).

13 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

14 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,

, 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

(“[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,

(2d Cir. 2004) (“Suspicion, to be

15 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,

. 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,

, and here it was

readily dispelled by the dispatcher’s report that there was no outstanding

warrant.

16 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

6 As noted above, in their factual submission the Officers also included the assertion that a warrant for Vasquez had been issued in June 2014—about six months earlier—and that pursuant to usual practice that warrant had been published to the Clarkstown Police. But neither Detective Maloney’s affidavit nor the Officers’ statement of facts submitted that any of the Officers had actually been informed of the warrant, much less believed—even mistakenly in good faith—that this warrant was still outstanding. In fact, all their statement says about this warrant is that Vasquez had been arraigned on it in September 2014. In other words, the Officers aver both that the warrant was issued and that it was closed months before the Target incident. Because we must view all of the evidence in the light most favorable to Vasquez on summary judgment, we cannot selectively infer that the Officers knew about one fact (the issuance of the warrant) but not the other (the arraignment leading to its closure). Of course, we express no view on how the Fourth

17 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,

(quoting Anderson,

). 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.

The Officers suggest that our decision in United States v. Santa,

(2d Cir. 1999), supports their claim to qualified immunity. But that

precedent only highlights where their argument falters. In Santa, officers

Amendment or qualified immunity analysis might be resolved on a more fully developed record, or before a factfinder at trial.

7 We do not question that police officers “may rely on probabilities in the reasonable suspicion context.” Glover,

. And so we do not insist that police officers know to a certainty that an arrest warrant is pending. But a police officer’s reasonable suspicion that there is an outstanding arrest warrant must be based on some articulable fact, not simply a hunch.

18 arrested the defendant based on an erroneous police computer record

indicating that he was wanted on an outstanding warrant. Id. at 24. The

warrant had in fact been vacated, but due to a clerical error by court

employees, it was never removed from the police database. Id. at 22–23.

Before arresting the defendant, the officers had requested a “wanted person

check” from the dispatcher to determine whether there was an outstanding

warrant. Id. at 24. The dispatcher checked the police database and

separately confirmed with the originating department, which faxed a copy

of the warrant to the requesting department, and radioed the information

back to the officers—all based on incorrect information resulting from the

clerical error. Id. Because the officers’ reliance on the erroneous computer

record was objectively reasonable and the error was attributable to court

employees rather than improper police practices, we declined to suppress

evidence found on the defendant’s person pursuant to the exclusionary rule.

Id. at 30.

19 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

8 We recognize that Santa involved application of the good-faith exception to the exclusionary rule for Fourth Amendment violations, whereas the present case involves a question precedent of whether there was a Fourth Amendment violation to begin with, and the independent question of whether reasonable officers would have recognized that their conduct violated clearly established law. To the extent that both cases concern the objective reasonableness of police conduct under Fourth Amendment standards, the analysis in Santa sheds some light on whether an officer’s objectively reasonable reliance on information indicating the existence of a warrant might entitle him to qualified immunity. For the reasons explained in the text, however, the Officers have not offered any facts that would place their conduct in this category.

20 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,

(2d Cir. 2003) (quoting Bilida

v. McCleod,

, 174–75 (1st Cir. 2000)). Yet where an officer is

clearly and unequivocally on notice that an individual’s past encounters

with police do not provide an adequate basis for stopping him, a superior’s

contrary instructions will not shield the arresting officer from liability. See

21 Diamondstone v. Macaluso,

, 117–18, 126 (2d Cir. 1998)

(expressing “grave doubts” over officer’s qualified immunity defense,

which was based on him receiving advice from his superiors to continue

stopping a driver who had failed to produce proof of insurance during prior

stops). While factual development at trial might shed further light on the

individual Officers’ levels of knowledge concerning the basis for detaining

Vasquez, at this stage the record reveals only that Detective Cruz advised

Detective Maloney that “he believed that there might be a judicially issued

Warrant for [Vasquez’s] arrest.” App’x 235. Maloney’s affidavit thus claims

that the Officers were conveyed nothing more than guesswork, and it does

not assert that the Officers did anything to corroborate that guess before

seizing Vasquez. On this record, the Officers are therefore not entitled to

qualified immunity for detaining Vasquez without a warrant or any facts

22 whatsoever that might have given rise to reasonable suspicion that such a

warrant existed, in violation of his clearly established constitutional rights. 9

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.

9We do not question that police are “entitled to act on the strength of [a] radio bulletin” informing them of an existing warrant. Whiteley v. Warden, Wyo. State Penitentiary,

(1971); see also

(“Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause.”). Indeed, officers acting upon a superior officer’s apparently valid order need not investigate the basis for the order and are entitled to the same qualified immunity as the superior. See Varrone,

. But on this limited record, viewing the evidence in the light most favorable to Vasquez, we cannot assume that Detective Maloney communicated anything to the other officers before they stopped Vasquez other than Detective Cruz’s hunch that a warrant might exist—not that a warrant did exist. As we have already explained, that basis was not sufficient to entitle any of the Officers to qualified immunity.

23 1032, 1049 (1983); see also Bailey,

(“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,

, 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 whatsoever for believing he was wanted for any crime.

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

10The parties moreover appear to agree that the officers detaining Vasquez went beyond conducting a routine pat down by removing his wallet from his pocket.

24 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.

25