19-3445-pr Wheeler v. Artola

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR., PIERRE N. LEVAL, DENNY CHIN, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DAMON WHEELER, Plaintiff-Appellant,

-v- 19-3445-pr

DET. AHMED ARTOLA, P.O. JONATHAN MCHUGH, and L.T. JEFFRY THOELEN, Defendants-Appellees. *

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FOR PLAINTIFF-APPELLANT: Damon Wheeler, pro se, Danbury, Connecticut.

* The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR DEFENDANTS-APPELLEES: Alex Smith, Corporation Counsel, City of Middletown, Middletown, New York.

Appeal from the United States District Court for the Southern District of

New York (Smith, M.J.).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant Damon Wheeler appeals the district court's judgment,

entered September 23, 2019, in favor of defendants-appellees Ahmed Artola, Jonathan

McHugh, and Jeffry Thoelen (collectively, "defendants") following a bench trial on his

claims under

. 1 We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

We review a district court's findings of fact after a bench trial for clear

error and its conclusions of law de novo. Process Am., Inc. v. Cynergy Holdings, LLC,

(2d Cir. 2016). "[A] finding is clearly erroneous when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed." Anderson v. Bessemer

City,

(1985) (internal quotation marks omitted). Given the conflicting

1 The parties consented to proceed before a magistrate judge. Prior to the bench trial, the district court granted summary judgment in favor of defendants on some of Wheeler's claims, resulting in the dismissal of several defendants. Wheeler does not challenge that decision on appeal. Wheeler also withdrew his claims against Kevin Weymer. Accordingly, Artola, McHugh, and Thoelen are the only remaining defendants on appeal. 2 narratives presented at trial, the district court was entitled to make credibility

determinations in reaching its decision, and the record contained adequate evidence to

sustain its factual conclusions. See Krist v. Kolombos Rest. Inc.,

(2d Cir.

2012) ("It is within the province of the district court as the trier of fact to decide whose

testimony should be credited."). Thus, the district court committed no clear error by

crediting defendants' version of events over Wheeler's and, with one exception

discussed below, ruling in defendants' favor and holding that Wheeler failed to meet

his burden of proving his claims by a preponderance of the evidence. See Principal Nat'l

Life Ins. Co. v. Coassin,

(2d Cir. 2018). We address Wheeler's additional

arguments on appeal as follows.

First, Wheeler argues that he was unlawfully stopped by police while

driving. This argument is unavailing, however, because the district court concluded

that Wheeler was stopped (and ticketed) for "inadequate lights and an inadequate plate

lamp, which are violations of New York's Vehicle and Traffic Law." Dist. Ct. Dkt. 270 at

17; see also United States v. Harrell,

(2d Cir. 2001) ("As a general matter,

the decision to stop an automobile is reasonable where the police have probable cause

to believe that a traffic violation has occurred." (internal quotation marks omitted)).

Wheeler's cell phone video, which begins after he was stopped, does not offer sufficient

reason to persuade us that the district court clearly erred in crediting defendants'

justification for the stop.

3 Second, Wheeler argues that he was falsely arrested because "there was no

obstruction of governmental administration on the part of [Wheeler] at the time of this

traffic stop," and he was "placed under arrest immediately after being dragged from his

car." Appellant's Br. at 10. A person is guilty of obstruction of governmental

administration when he "intentionally obstructs, impairs or perverts the administration

of law or other governmental function or prevents or attempts to prevent a public

servant from performing an official function, by means of intimidation, physical force

or interference."

. "[I]nappropriate or disruptive conduct at the

scene of the performance of an official function" is sufficient to support a charge for

obstruction of governmental administration, "even if there is no physical force

involved." Willinger v. City of New Rochelle,

(N.Y. App. Div. 2d

Dep't 1995). Because Wheeler refused to follow the officers' orders to leave the car, the

officers had probable cause to arrest him for obstruction of governmental

administration.

Third, Wheeler argues that police used excessive force in arresting him.

"Fourth Amendment jurisprudence has long recognized that the right to make an

arrest . . . necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it." Graham v. Connor,

(1989) (emphasis added).

It is also well established, however, that law enforcement officers violate the Fourth

Amendment if the amount of force they use is not "objectively reasonable in light of the

4 facts and circumstances confronting them."

(internal quotation marks

omitted). The application of this standard requires consideration of "the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight."

.

The district court credited Artola's testimony that he punched Wheeler

after Wheeler started closing his car window on Artola's arm. The court did not credit

Wheeler's testimony that he was punched in the head while on the ground and

handcuffed or that he was assaulted during the strip search. The court found that

Wheeler's injuries were "minor," Dist. Ct. Dkt. 270 at 27, and were consistent with the

force necessary to remove him from the vehicle. While Artola putting his arm into

Wheeler's car may have been ill-advised, the force did not rise to the level of being

unconstitutionally excessive. See Edrei v. Maguire,

(2d Cir. 2018)

(factors to consider include "the need for the application of force, the relationship

between the need and the amount of force that was used, the extent of the injury

inflicted, and whether the force was inflicted maliciously or sadistically") (internal

quotation marks and alterations omitted). Accordingly, the district court did not clearly

err in holding that defendants did not use excessive force.

Fourth, Wheeler alleged that his arrest was in retaliation for filming the

police during the traffic stop. While probable cause "should generally defeat a

5 retaliatory arrest claim," a narrow exception exists where, even though officers have

probable cause to make arrests, they "typically exercise their discretion not to do so."

Nieves v. Bartlett,

(2019). A plaintiff can take advantage of this

exception by presenting "objective evidence that he was arrested when otherwise

similarly situated individuals not engaged in the same sort of protected speech had not

been."

Here, as the district court noted, the officers had probable cause to arrest

Wheeler for obstruction of governmental administration, and Wheeler did not submit

any evidence that other similarly situated persons had been treated differently.

Accordingly, the district court did not clearly err in holding that the arrest was not

retaliatory.

Fifth, Wheeler argues that defendants were not justified in searching his

vehicle. Under the "automobile" exception, police may conduct a warrantless search of

a vehicle if they have probable cause to believe it contains contraband or other evidence

of a crime. United States v. Ross,

(1982). Given that the district court

credited Artola's testimony about Wheeler's known history as a drug dealer, Wheeler's

delay in pulling his car over, his defiance of Artola's orders in refusing to get out of the

car, and his shutting of the window on Artola's arm, it was not unreasonable for

defendants to believe that Wheeler had contraband in his car. Accordingly, defendants

had probable cause to search the vehicle. See United States v. Gaskin,

(2d Cir. 2004) (probable cause in this context "does not demand certainty but only a 'fair

6 probability' that contraband or evidence of a crime will be found" (quoting Illinois v.

Gates,

(1983))).

Finally, Wheeler argues that the officers lacked reasonable suspicion or

probable cause to conduct a strip and visual cavity search and that it was unauthorized.

The district court credited Artola's testimony that he had conducted the search "incident

to . . . arrest" on the criminal drug possession charge "as a result of the seizure of

apparent contraband from Wheeler's car." Dist. Ct. Dkt. 270 at 28. The district court

declined, however, to rule on whether defendants had reasonable suspicion to conduct

the strip and visual cavity search, and instead held that defendants were entitled to

qualified immunity because the reasonable suspicion required for an officer to conduct

a strip or visual cavity search incident to an arrest for a felony drug crime was not

settled in 2014, when this search was conducted.

This was error for the law was clearly established in 2014. In Sloley v.

VanBramer, which we decided in 2019, after the district court's ruling in this case, we

held that it was "sufficiently clear" by 2013 (the time of the search in Sloley and a year

before Wheeler's search) that any visual body cavity search incident to a lawful arrest

had to be "supported by a specific, articulable factual basis supporting a reasonable

suspicion to believe the arrestee secreted evidence inside a body cavity and must be

conducted in a reasonable manner."

(2d Cir. 2019) (internal quotation

marks omitted); see also Hartline v. Gallo,

(2d Cir. 2008) ("The Fourth

7 Amendment requires an individualized 'reasonable suspicion that [a misdemeanor]

arrestee is concealing weapons or other contraband based on the crime charged, the

particular characteristics of the arrestee, and/or the circumstances of the arrest' before

[he] may be lawfully subjected to a strip search." (first alteration in original) (quoting

Weber v. Dell,

(2d Cir. 1986))).

Nonetheless, we affirm, for the record established that Artola had

reasonable suspicion to conduct a strip or cavity search. Artola testified that his reasons

for the strip search and body cavity search were Wheeler's delay in stopping his vehicle,

his possession of crack cocaine in his vehicle, his status as a known drug dealer, and

Artola's previous observations of Wheeler selling drugs. Thoelen testified that based on

Artola's report (although he did not recall the night of Wheeler's arrest in particular),

the strip search complied with the police department's strip search policy and he would

have approved the search. The district court credited Artola's testimony, and on these

facts, we conclude that Artola had reasonable suspicion to conduct the search. See Leon

v. Murphy,

(2d Cir. 1993) ("We may affirm . . . on any basis for which

there is a record sufficient to permit conclusions of law, including grounds upon which

the district court did not rely."). Based on Artola’s proffered reasons for the search, he

and, by extension McHugh and Thoelen, were entitled to qualified immunity because

reasonable officers in their positions could have concluded that reasonable suspicion

existed that Wheeler was concealing contraband, based on the drug crime charged,

8 Wheeler's characteristics, and the circumstances of the arrest. See Hartline,

.

We have considered Wheeler's remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

9