17‐1944‐cv

Caravalho, et al. v. City of N.Y., et al.

      

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 COURTʹS 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 ʺSUMMARY ORDERʺ).  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 25th day of April, two thousand eighteen.

PRESENT: RICHARD C. WESLEY,  

DENNY CHIN,

     Circuit Judges,

    JESSE M. FURMAN,

     Judge.*

   

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ALEXANDER CARAVALHO, SERGIO CASTILLO,

DANIEL GREENSPAN, JOSEPH SHARKEY,

EASTON SMITH, JENNIFER WALLER,

     Plaintiffs‐Appellants,

ERIC CARTER, AUSTIN GUEST, THOMAS HINTZE,

     Plaintiffs,

              

     v.         17‐1944‐cv

          

CITY OF NEW YORK, NEW YORK CITY POLICE

DEPARTMENT, OFFICER LI, AHMED, NYPD

                                                 

* Jesse M. Furman, of the United States District Court for the Southern District of

New York, sitting by designation.
   

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OFFICER ABDEL‐RAHIM, RODRIGUEZ, NYPD

OFFICERS JOHN DOES, 1‐15, the names being

fictitious, as the true names and shield numbers are

not presently known, in their individual and official

capacities, NYPD OFFICERS JANE DOES, 1‐15, the

names being fictitious, as the true names and shield

numbers are not presently known, in their individual

and official capacities, NYPD DEPARTMENT CHIEF

JOSEPH ESPOSITO, NICOLE PAPAMICHAEL,

DEPARTMENT INSPECTOR EDWARD WINSKI,

LIEUTENANT FRANK VIVIANO, OFFICER

GRANTLEY BOVELL, SHIELD NO. 11743, OFFICER

JABDED AHMED, SHIELD NO. 19415, OFFICER

ALEXIS RODRIGUEZ, SHIELD NO. 28722, OFFICER

CHEUNG LI, SHIELD NO. 5474, OFFICER

MICHAEL GALGANO, SHIELD NO. 2671,  

Defendants‐Appellees.

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FOR PLAINTIFFS‐APPELLANTS: GIDEON O. OLIVER, New York, New York.  

FOR DEFENDANTS‐APPELLEES: JOHN MOORE, Assistant Corporation Counsel

(Richard Dearing, Deborah A. Brenner,

Assistant Corporation Counsels, on the brief),

for Zachary W. Carter, Corporation Counsel of

the City of New York, New York, New York.  

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

New York (Castel, J.).  

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED.  

Plaintiffs‐appellants, six individuals who were arrested on March 17, 2012

after refusing to disperse from an Occupy Wall Street protest in Zuccotti Park, appeal
   

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the district courtʹs orders dismissing their 42 U.S.C. § 1983 claims in favor of

defendants‐appellees, employees of the New York City Police Department (the

ʺNYPDʺ) and the City of New York (the ʺCityʺ).  We assume the partiesʹ familiarity with

the underlying facts, procedural history, and issues on appeal.

The following facts are construed in the light most favorable to plaintiffs.  

Alexander Carvalho, Sergio Castillo, Daniel Greenspan, Joseph Sharkey, Easton Smith,

and Jennifer Waller were among hundreds of protesters celebrating the six‐month

anniversary of the Occupy Wall Street movement in Zuccotti Park on March 17, 2012.

Zuccotti Park is a privately owned public space which is governed by park rules

established and enforced by its owner and operator, Brookfield Office Properties

(ʺBrookfieldʺ).  On that day, two NYPD officials ‐‐ Chief of Department Esposito and

Deputy Inspector Winski ‐‐ observed protesters setting up tents and tarps, lying down,

and climbing on fences and shrubs.  This behavior violated posted park rules, and a

Brookfield representative announced that the park was being closed for cleaning and

that people were required to leave in order that the park be cleaned.  Plaintiffs ignored

the instructions.

After the decision was made to clear the park, Winski and Lieutenant

Viviano made several announcements with bullhorns ordering protesters to disperse,

but not all plaintiffs heard the announcements.  Plaintiffs did not leave and, except for

Castillo, locked arms and legs with other protesters to form human walls.  After further
   

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warnings, the police arrested those protestors who refused to leave, including plaintiffs,

and transported them on buses to police precincts and later Central Booking.  Because

plaintiffs and other arrestees were separated from their arresting officers during

transport, other officers were designated as arresting officers and completed the arrest

processing paperwork.  Plaintiffs were held in custody for 24 to 30 hours.  They were

released without charges because their designated arresting officers could not

personally attest to their criminal conduct.   

On June 17, 2013, plaintiffs sued the City and certain NYPD officers for

violations of their First, Fourth, Sixth, and Fourteenth Amendment rights.  The district

court granted summary judgment in part for defendants pursuant to a March 31, 2016

memorandum and order, dismissing all plaintiffsʹ claims at issue in this appeal.  The

court denied plaintiffsʹ motion for reconsideration on July 29, 2016, and ‐‐ following the

settlement of remaining issues unrelated to this appeal ‐‐ issued orders closing the case

on December 21, 2016 and again on March 21, 2017.1  Plaintiffs appealed on June 16,

                                                 

1   After the only surviving claims, those of plaintiff Austin Guest, were settled, the district

court entered the two orders ‐‐ on December 21, 2016 and on March 21, 2017.  Both apparently

resolved only Guestʹs claims and purported to close the case.  The March 21, 2017 order was

entered because Guest and defendants had not in fact finalized the settlement after the

December 21, 2016 order.  

When it closed the case, however, the district court did not enter a separate judgment

implementing its summary judgment decision, as required by Federal Rule of Civil Procedure

58(a). See Fed. R. Civ. P. 58(a) (ʺ[e]very judgment and amended judgment must be set out in a

separate document,ʺ subject to certain exceptions inapplicable in this case).  But plaintiffs could

not have appealed in any event until all the claims, including Guestʹs, were resolved. See Fed.

R. Civ. P. 54(b).  Therefore, we deem plaintiffsʹ time to appeal to run from 30 days after the

district courtʹs March 21, 2017 order was deemed ʺentered,ʺ which was 150 days after entry in
   

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2017.  On appeal, plaintiffs challenge the district courtʹs dismissal of their false arrest,

First Amendment, excessive detention, and fair trial rights claims.2   

We review de novo the district courtʹs summary judgment ruling,

ʺconstruing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in her favor.ʺ  Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).  A movant is entitled to summary judgment

when ʺthe movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.ʺ  Id. (quoting Fed. R. Civ. P. 56(a)).  

Upon review, we conclude that the district court properly granted summary judgment

to defendants on plaintiffsʹ claims.    

I.   False Arrest

A claim for false arrest under Section 1983 and New York law requires a

plaintiff to demonstrate that ʺthe defendant intentionally confined him without his

consent and without justification.ʺ  Dufort v. City of N.Y., 874 F.3d 338, 347 (2d Cir. 2017)

(quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).  ʺThe existence of probable

cause to arrest constitutes justification and is a complete defense to an action for false

                                                 

the civil docket on March 21, 2017.  See Fed. R. App. P. 4(a)(7)(A)(ii) (for purposes of Rule 4(a), a

judgment or order is ʺenteredʺ when ʺthe judgment or order is set forth on a separate document,

or 150 days have run from entry of the judgment or order in the civil docket,ʺ whichever comes

first).  The June 16, 2017 notice of appeal was filed within 180 days of the March 21, 2017 order.  

Hence, the appeal is timely.   

2   Plaintiffs do not challenge the district courtʹs dismissal of their excessive force, equal

protection, due process, state law, and municipal liability claims.  
   

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arrest . . . .ʺ  Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting

Weyant, 101 F.3d at 852).  ʺProbable cause exists when ʹthe facts and circumstances

within . . . the officersʹ knowledge and of which they had reasonably trustworthy

information are sufficient in themselves to warrant a man of reasonable caution in the

belief that an offense has been or is being committed by the person to be arrested.ʹʺ  Kass

v. City of N.Y., 864 F.3d 200, 206 (2d Cir. 2017) (quoting Marcavage v. City of N.Y., 689

F.3d 98, 109 (2d Cir. 2012)).  To determine whether probable cause exists, ʺwe look at the

facts as the officers knew them in light of the specific elementsʺ of the offense, Gonzalez,

728 F.3d at 155, considering the totality of the circumstances and ʺthe perspective of a

reasonable police officer in light of his training and experience,ʺ United States v.

Delossantos, 536 F.3d 155, 159 (2d Cir. 2008).  

The offense of disorderly conduct under N.Y. Penal Law § 240.20(6)

consists of the following elements: ʺthe individual (1) congregated with other persons in

a public place; (2) was given a lawful order of the police to disperse; (3) refused to

comply with that order; and (4) acted with intent to cause or recklessly created a risk of

public inconvenience, annoyance or alarm.ʺ  Kass, 864 F.3d at 211 (citing N.Y. Penal Law

§ 240.20(6)). 3  Under the second element, refusal to obey an order is justified ʺonly

                                                 

3   The relevant text of the statute reads:  ʺA person is guilty of disorderly conduct when,

with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof: . . . He congregates with other persons in a public place and refuses to comply with a

lawful order of the police to disperse . . . .ʺ  N.Y. Penal Law § 240.20(6).   
   

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where the circumstances show conclusively that the police officerʹs direction was purely

arbitrary and was not calculated in any way to promote the public order.ʺ  Id. at 212

(quoting People v. Todaro, 26 N.Y.2d 325, 328‐29 (1970)).  

On this record, a reasonable jury could only conclude that the NYPD

officers had probable cause to arrest plaintiffs for disorderly conduct under N.Y. Penal

Law § 240.20(6).  Plaintiffs do not contest that officers made several announcements

ordering protesters to disperse, and that officers observed protesters locking their arms

and legs together, sitting on the ground, and refusing to leave.  Although some

plaintiffs did not hear the officersʹ orders to disperse, in assessing probable cause ʺwe

look at the facts as the officers knew them,ʺ Gonzalez, 728 F.3d at 155, and it was

objectively reasonable for the officers ‐‐ who gave multiple dispersal orders and warned

protestors before arresting them ‐‐ to conclude that plaintiffs refused to comply with a

lawful order to disperse in violation of N.Y. Penal Law § 240.20(6).  And while plaintiffs

contend that the orders to disperse were not lawful, on these facts no reasonable jury

could conclude that the orders were ʺpurely arbitrary.ʺ  Kass, 864 F.3d at 212 (quoting

Todaro, 26 N.Y.2d at 329).   

II.   First Amendment  

A.   Retaliation

The existence of probable cause defeats a First Amendment claim

premised on the allegation that defendants arrested a plaintiff based on a retaliatory
   

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motive.  See Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012).  Because we conclude

that plaintiffsʹ arrests were supported by probable cause, their First Amendment

retaliation claims are without merit.

B.   Decision to Temporarily Clear Zuccotti Park  

In public fora, ʺthe government may apply content‐neutral time, place,

and manner restrictions only if they are ʹnarrowly tailored to serve a significant

government interestʹ and if ʹample alternative channels of communicationʹ are

available.ʺ  Kass, 864 F.3d at 208 (quoting Zalaski v. City of Bridgeport Police Depʹt, 613

F.3d 336, 341 (2d Cir. 2010) (per curiam)).  A restriction is narrowly tailored if it

ʺpromotes a substantial government interest that would be achieved less effectively

absent the regulationʺ and it is ʺnot substantially broader than necessary to achieve the

governmentʹs interest.ʺ  Marcavage, 689 F.3d at 106 (quoting Ward v. Rock Against Racism,

491 U.S. 781, 799‐800 (1989)).  But a narrowly tailored restriction need not be the ʺleast

restrictive or least intrusive meansʺ of serving the governmentʹs interest, id. (quoting

Ward, 491 U.S. at 798), and the ʺrequirement that ʹample alternative channelsʹ exist does

not imply that alternative channels must be perfect substitutes for those channels

denied to plaintiffsʺ by the restriction, Mastrovincenzo v. City of N.Y., 435 F.3d 78, 101 (2d

Cir. 2006).  

Assuming, without deciding, that the First Amendment applies to

Zuccotti Park, we conclude as a matter of law that defendantsʹ decision to temporarily
   

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close Zuccotti Park for park rules violations was a constitutional time, place, and

manner restriction.  The government has a substantial interest in ensuring that its public

spaces are safe and clean, see Marcavage, 689 F.3d at 104, and temporarily clearing the

park on the day in question ‐‐ as tents and traps were being erected, with hundreds of

protesters in attendance ‐‐ was a narrowly tailored means of achieving that interest.4  

Although the officers could conceivably have closed portions of the park instead, the

First Amendment does not require the ʺleast restrictive or least intrusive means.ʺ  Id. at

106 (quoting Ward, 491 U.S. at 798).  Moreover, plaintiffs remained free to exercise their

First Amendment rights in other public fora in the vicinity or to return to Zuccotti Park

after it was cleaned.   

III. Excessive Detention

A claim for excessive detention is governed by the Fourth Amendment,

which ʺrequires a prompt judicial determination of probable cause as a prerequisite to

an extended pretrial detentionʺ following a warrantless arrest.  Bryant v. City of N.Y.,

404 F.3d 128, 136 (2d Cir. 2005).  Under the Supreme Courtʹs precedent, ʺjudicial

determinations of probable cause within 48 hours of arrest will, as a general matter,

comply with the promptness requirement . . . .ʺ  Id. at 137 (quoting Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 56 (1991)).  An arrestee can rebut the presumption of

                                                 

4   Zuccotti Park encompasses about one rectangular block of open space, bounded by

Broadway, Cedar Street, Church Street, and Liberty Street.
   

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constitutionality by showing that the probable cause determination was ʺdelayed

unreasonably,ʺ such as ʺfor the purpose of gathering additional evidence to justify the

arrest, a delay motivated by ill will against the arrested individual, or delay for delayʹs

sake.ʺ  McLaughlin, 500 U.S. at 56.   

We conclude that no reasonable jury could find that the detention of

plaintiffs for 24 to 30 hours, in the circumstances here, was excessive.  Their detention of

less than 48 hours was presumptively reasonable.  See Bryant, 404 F.3d at 137.  Although

plaintiffs contend that there was no justification to detain them once they were

separated from their arresting officers, plaintiffs have not put forth any evidence to

show that their release was unreasonably delayed because of ʺill will,ʺ ʺdelay for delayʹs

sake,ʺ or officersʹ attempts to gather additional evidence to justify their arrests, rather

than because of the ʺpractical realitiesʺ of transporting busloads of arrestees and

processing their arrests.  McLaughlin, 500 U.S. at 56‐57.  Nor are we persuaded by

plaintiffsʹ reliance on New York law, because ʺthe Fourth Amendment does not

incorporate state procedural criminal law.ʺ  United States v. Bernacet, 724 F.3d 269, 277

(2d Cir. 2013) (emphasis omitted).

IV.   Fair Trial Rights

To prevail on a claim for denial of the constitutional right to a fair trial

based on fabricated information, a plaintiff must demonstrate that ʺ(1) [an]

investigating official (2) fabricates information (3) that is likely to influence a juryʹs
   

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verdict, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a

deprivation of life, liberty, or property as a result.ʺ  Garnett v. Undercover Officer C0039,

838 F.3d 265, 279 (2d Cir. 2016).   

Assuming, without deciding, that a plaintiff who was never charged with

an offense can state a claim for the denial of his or her constitutional right to a fair trial,

we reject plaintiffsʹ claims on the merits.  Plaintiffs failed to adduce any evidence

demonstrating that they were detained as a result of the allegedly fabricated arrest

paperwork, rather than their arrest for disorderly conduct.  See Ganek v. Leibowitz, 874

F.3d 73, 91 (2d Cir. 2017) (plaintiff cannot state a claim for a liberty deprivation

attributable to an arrest supported by probable cause, unless ʺthe fabricated evidence

causes some ʹfurther deprivationʹʺ (quoting Garnett, 838 F.3d at 277)).  

We have considered plaintiffsʹ remaining arguments and find them to be

without merit.  Accordingly, we AFFIRM the orders of the district court.

FOR THE COURT:

     Catherine OʹHagan Wolfe, Clerk