09-3064-cv(L)

Caceres v. The Port Authority of New York & Jersey

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2009

6

7

8 (Argued: April 15, 2010 Decided: January 31, 2011)

9

10 Docket Nos. 09-3064-cv(L), 09-3217-cv(XAP)

11

12 - - - - - - - - - - - - - - - - - - - - -x

13

14 JOSEPH CACERES,

15

16 Plaintiff-Appellant-Cross-Appellee,

17

18 - v.-

19

20 THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, POLICE

21 OFFICER MICHAEL BARRY, (SHIELD NO. 1810), SERGEANT K.

22 COTRELL, (SHIELD NO. 304), POLICE OFFICER M. LYDON, (SHIELD

23 NO. 1585), POLICE OFFICER J. MALICE, (SHIELD NO. 2442),

24 POLICE OFFICER A. PINIELLO, (SHIELD NO. 1856), POLICE

25 LIEUTENANT ROENZO SANGIORGI, (SHIELD NO. 166), POLICE

26 OFFICER TRUGLIO, (SHIELD NO. 2105), individually and in

27 their official capacities,

28

29 Defendants-Appellees-Cross-Appellants,

30

31 JOHN DOE, 1-10 individually and in their official capacity,

32 the name John Doe being fictitious, as the true names are

33 presently unknown, JANE DOE, 1-10 individually and in their

34 official capacity, the name Jane Doe being fictitious, as

35 the true names are presently unknown,

36

37 Defendants.

38

39 - - - - - - - - - - - - - - - - - - - -x

40

41 Before: JACOBS, Chief Judge, McLAUGHLIN and SACK,

42 Circuit Judges.
2

1 The Port Authority of New York and New Jersey detained

2 Plaintiff Caceres for two days on a warrant erroneously

3 attributed to him. A jury assessed false-arrest damages at

4 $10,000, joint and several, against the Port Authority and

5 one of its officers. The United States District Court for

6 the Southern District of New York (Koeltl, J.) entered a

7 judgment, against the Port Authority in the amount of the

8 verdict, and in favor of the officer as a matter of law on

9 the ground of qualified immunity. Caceres appeals the

10 qualified immunity ruling; the Port Authority cross-appeals

11 on the ground that absent liability of any of its officers,

12 vicarious liability does not lie. We affirm the judgment in

13 favor of the officer; we vacate the judgment against the

14 Port Authority and remand to dismiss that claim for lack of

15 jurisdiction.

16 BRETT HARRIS KLEIN, Leventhal &

17 Klein, LLP, Brooklyn, NY, for 

18 Plaintiff-Appellant-Cross19 Appellee.

20

21 SCOTT CHARLES OCCHIOGROSSO, Port

22 Authority of New York and New

23 Jersey, New York, NY, for 

24 Defendants-Appellees-Cross25 Appellants.

26

27

28

29
3

1 DENNIS JACOBS, Chief Judge:

2

3 Plaintiff-Appellant-Cross-Appellee Joseph Caceres was a

4 painter on the George Washington Bridge, which is maintained

5 and operated by the Port Authority of New York and New

6 Jersey (“Port Authority”). After he parked near his work

7 site without the requisite permit, his car was impounded at

8 the Port Authority police station in New Jersey. When he

9 went to pick up his car, a routine computer search of his

10 name and date of birth showed that Caceres had a New York

11 State Identification (“NYSID”) number, which is a

12 (supposedly) unique designation assigned to each arrestee by

13 the New York State Division of Criminal Justice Services. 

14 The search also linked Caceres to a “John Doe” bench

15 warrant. Caceres was detained for two days, until the Port

16 Authority supervisor, Defendant-Appellee-Cross-Appellant

17 Roenzo Sangiorgi, determined the warrant was for another

18 person who was erroneously issued the same NYSID number as

19 Caceres. 

20 Caceres sued Defendant-Appellee-Cross-Appellant Port

21 Authority and numerous Port Authority officers for, inter

22 alia, false arrest under state law and for violation of his

23 federal constitutional rights under 42 U.S.C. § 1983. A
4

1 jury assessed false-arrest damages at $10,000, joint and

2 several, against the Port Authority and Sangiorgi. The

3 United States District Court for the Southern District of

4 New York (Koeltl, J.) entered a judgment, against the Port

5 Authority in the amount of the verdict, and in favor of

6 Sangiorgi as a matter of law on the ground of qualified

7 immunity. For some reason, Caceres (not content with a

8 damages award that was fully recoverable from the Port

9 Authority) appealed the qualified immunity ruling; the Port

10 Authority, which had been content to pay the judgment, then

11 cross-appealed on the ground that absent liability of any of

12 its officers, vicarious liability does not lie. We affirm

13 the judgment in favor of the officer, and vacate the

14 judgment against the Port Authority and remand to dismiss

15 that claim for lack of jurisdiction.

16

17 I

18 Caceres challenges the qualified immunity ruling under

19 both federal and state law. We review a district court’s

20 grant of judgment as a matter of law de novo, applying the

21 same standards as the district court. Black v. Finantra

22 Capital, Inc., 418 F.3d 203, 208 (2d Cir. 2005). Judgment
5

1 as a matter of law is appropriate when “a party has been

2 fully heard on an issue” and “a reasonable jury would not

3 have a legally sufficient evidentiary basis to find for the

4 party on that issue.” Fed. R. Civ. P. 50(a)(1). In our

5 review, we “consider the evidence in the light most

6 favorable to the party against whom the motion was made” and

7 “give that party the benefit of all reasonable inferences

8 that the jury might have drawn in his favor from the

9 evidence.” Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d

10 Cir. 2001) (quoting Smith v. Lightning Bolt Prods., Inc.,

11 861 F.2d 363, 367 (2d Cir. 1988)). Federal and state law

12 entitlements are considered separately.

13

14 A

15 On the federal false arrest claim, Sangiorgi enjoys

16 qualified immunity if “it was objectively reasonable for the

17 officer to believe that probable cause existed” or if

18 “officers of reasonable competence could disagree on whether

19 the probable cause test was met.” Robison v. Via, 821 F.2d

20 913, 921 (2d Cir. 1987). 

21 At the threshold, Caceres argues that the warrant

22 itself is facially invalid because it does not conform to
 Caceres’s hair color matched the description on the

1

warrant; his dark eye color was a near match (black,

compared with brown on the warrant). The height discrepancy

was two inches, the weight was within twenty pounds, and the

age discrepancy was about five years. The age difference

would not necessarily be apparent to the eye, but an officer

might (or might not) have noticed that the birth date in the

warrant did not match the birth date that Caceres gave, or

had on his license. 

6

1 the New York Criminal Procedure Law. However, Sangiorgi was

2 an officer in a different jurisdiction, out of the thousands

3 of jurisdictions in the United States, all of which may

4 issue bench warrants with various characteristics and

5 requirements. Similarly, Caceres argues that Sangiorgi

6 failed in other respects to follow proper police procedures. 

7 Assuming that Sangiorgi erred, error is what is indulged by

8 qualified immunity. 

9 More particularly, Caceres emphasizes the several

10 physical differences between himself and the descriptive

11 particulars in the warrant. Height, weight and age were not

12 grossly disparate, and some other features matched. But 1

13 Caceres is a light-skinned Hispanic, whereas the warrant

14 specified a black man of dark complexion. 

15 A reasonable officer could have concluded nevertheless

16 that the warrant was for Caceres. Complexion varies within

17 a given race classification, and the descriptive terms in
 Uncontroverted testimony by Sangiorgi established 2

that the race and skin color information was based on

observations by the arresting officer. Trial Tr. at 660-61.

7

1 the warrant reflected one person’s subjective classification

2 at one point in time. A Port Authority officer might 2

3 reasonably assume that the skin color and race information

4 were entered incorrectly--particularly since height, weight,

5 age, hair color and eye color were either accurate or within

6 bounds. 

7 Far more implausible was the actual explanation for the

8 confusion: that two individuals were erroneously associated

9 with the same NYSID number. That is so rare (if not unique)

10 that it was unheard-of by the testifying officers. A

11 reasonable officer could therefore have concluded that the

12 “warrant hit” conferred probable cause notwithstanding an

13 incompatible physical description, reasoning that a false

14 hit from the historically reliable recordkeeping system--

15 organized by NYSID number--is at least as rare as error in

16 the physical description fields. Cf. United States v.

17 Santa, 180 F.3d 20, 27 (2d Cir. 1999) (concluding that

18 arresting officers’ reliance on historically reliable

19 warrant recording system was objectively reasonable). Three

20 officers of the New York City Police Department came to the
8

1 same conclusion: Caceres had been detained three times

2 before on the basis of the same bench warrant. See Caceres

3 v. Port Auth. of N.Y. & N.J., 646 F. Supp. 2d 412, 418

4 (S.D.N.Y. 2009). Caceres further argues that he professed

5 innocence and explained to the Port Authority officers that

6 the warrant was a mistake; but police are not bound to

7 credit such protestations. 

8 Accordingly, Sangiorgi is entitled to qualified

9 immunity on the federal false arrest claim.

10

11 B

12 On the state law false arrest claim, Sangiorgi’s

13 liability is governed by the New Jersey Tort Claims Act

14 (“NJTCA”). See N.J.S.A. § 59:3-1(a). Although the NJTCA

15 provides a statutory “good faith” exception--a variant of a

16 qualified immunity defense--the exception is unavailable in

17 claims for false arrest or false imprisonment. See § 59:3-

18 3. However, common law defenses that existed when the NJTCA

19 was enacted were not preempted. See Fielder v. Stonack, 141

20 N.J. 101, 117 (1995) (“When liability is established under

21 the [NJTCA], it is still subject to immunity specified in

22 the Act as well as any common-law immunity which predated
 There is a slight disagreement about the scope of the 3

purported DelaCruz standard. The parties agree that it is

an objective reasonableness standard; Caceres suggests it is

parallel to the federal version, but the Port Authority

argues it is only an objective reasonableness standard, and

not the disjunctive two part test for the federal defense.

The disagreement is irrelevant. Because it was objectively

reasonable for Sangiorgi to believe that probable cause

existed, he is entitled to qualified immunity under either

party’s interpretation of the standard.

9

1 the Act.” (emphasis added)). 

2 In deciding qualified immunity, the district court

3 assumed that the New Jersey common law standard is

4 coextensive with federal law, citing DelaCruz v. Borough of

5 Hillsdale, 183 N.J. 149 (2005). See Caceres, 646 F. Supp.

6 2d at 426; Joint Appendix at 489, 496. DelaCruz is

7 ambiguous as to the availability of qualified immunity under

8 New Jersey common law; but the court relied on the parties’

9 own readings of the case, which (though divergent) were

10 consistent in material respects. Under these 3

11 circumstances, we accept the parties’ consensus. Cf. Walter

12 E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 53

13 (2d Cir. 1984) (“The parties by their acquiescence . . . may

14 induce the . . . court to assume that foreign law is similar

15 to that of the forum.”). We therefore need not decide what
 Compare, e.g., N.J.S.A. § 59:3-3 (excluding false 4

arrest claims from good faith defense for public employees),

with Visidor Corp. v. Cliffside Park, 48 N.J. 214, 221

(1966) (“[T]he nonliability of individual public officials

for damages ensuing upon their good faith exercise of

judgment and discretion in the performance of their duties,

has long been recognized in our State.”). See generally

Tice v. Cramer, 133 N.J. 347, 355-56 (1993) (“Liability of

the public employee . . . is subject to the immunities of

the [NJTCA] and the common law.”). 

 Even if qualified immunity for the state law claim 5

were unavailable, Caceres’s damages would be severely

limited at best: The NJTCA prohibits damages for pain and

suffering in the absence of substantial bodily harm,

reflecting the policy choice that “in view of the economic

burdens presently facing public entities a claimant should

not be reimbursed for non-objective types of damages . . .

except in aggravated circumstances.” N.J.S.A. § 59:9-2(d) &

cmt.; see also DelaCruz, 183 N.J. at 164. Caceres makes no

claim of substantial bodily harm.

 Caceres argues that the Port Authority forfeited this 6

argument by not raising it in its Rule 50 motions before the

10

1 New Jersey law would be if it were clear, which it is not.4

2 Sangiorgi is entitled to qualified immunity on the

3 state law false arrest claim for the same reasons he enjoys

4 qualified immunity on the federal claim. (And the state law

5 claim would be insubstantial in any event. ) 5

6

7 II

8 The Port Authority argues that it cannot be held

9 vicariously liable for the conduct of an employee (such as

10 Sangiorgi) who has successfully established immunity. As a 6
district court. See Provost v. City of Newburgh, 262 F.3d

146, 161 (2d Cir. 2001). Because of the jurisdictional

issue discussed infra, the forfeiture issue is irrelevant. 

11

1 preliminary matter, we have an independent obligation to

2 consider our subject matter jurisdiction to hear this claim

3 even in the absence of a challenge from any party. See Dean

4 v. Blumenthal, 577 F.3d 60, 64 (2d Cir. 2009). 

5 The Port Authority, a bi-state agency created by a

6 compact between New York and New Jersey, enjoyed sovereign

7 immunity until 1951, when New York and New Jersey consented

8 to suits against it in limited circumstances. See Bunk v.

9 Port Auth. of N.Y. & N.J., 144 N.J. 176, 183 (1996). The

10 Port Authority’s statutory immunity was waived by identical

11 New York and New Jersey statutes that required a sixty-day

12 notice of claim and commencement of suit within one year from

13 the date of the accrual of the cause of action. See N.J.S.A.

14 § 32:1-163; N.Y. Unconsol. Law § 7107. These requirements

15 are jurisdictional. See Matthews v. Port of N.Y. Auth., 163

16 N.J. Super. 83, 85 (Law Div. 1978), aff’d, 171 N.J. Super. 38

17 (App. Div. 1979); Pinckney v. Jersey City, 140 N.J. Super.

18 96, 100-03 (Law Div. 1976) (“It is a firmly established rule

19 in American jurisprudence that . . . provisions which are

20 conditions which the sovereign attaches to the waiver of
 In Hess, the Supreme Court treated the subsidiary, 7

PATH (Port Authority Trans-Hudson Corporation), as

equivalent to the Port Authority for purposes of sovereign

immunity because it is wholly owned. 513 U.S. at 33-35.

12

1 immunity are jurisdictional.”). The failure to satisfy these

2 conditions “will result in withdrawal of defendant’s consent

3 to suit and compels the dismissal of the action for lack of

4 subject matter jurisdiction.” Lyons v. Port Auth. of N.Y. &

5 N.J., 643 N.Y.S.2d 571, 571-72 (1st Dep’t 1996).

6 This analysis is consistent with Hess v. Port Auth.

7 Trans-Hudson Corp., 513 U.S. 30 (1994), in which plaintiffs

8 sought damages from a wholly-owned subsidiary of the Port

9 Authority under the Federal Employers’ Liability Act 7

10 (“FELA”), 45 U.S.C. § 51 et seq. The claim was brought

11 within the three-year time limit set by FELA but beyond the

12 one-year limit specified by the New York and New Jersey

13 consent-to-suit statutes. Relying mainly on the attenuation

14 between the Port Authority’s finances and the fiscs of New

15 York and New Jersey, the Court held that the Port Authority

16 lacked Eleventh Amendment sovereign immunity from federal

17 statutory claims. Hess, 513 U.S. at 49-52. But this holding

18 does not bear upon the validity of conditions for waiving

19 sovereign immunity over claims arising under state law. See
13

1 Mullen v. Port Auth. of N.Y. & N.J., 100 F. Supp. 2d 249, 254

2 n.4 (D.N.J. 1999) (“Hess did not reach the question of

3 whether state law claims could be barred for failure to

4 comply with the commencement of suit and notice

5 requirements.”); Recreation World, Inc. v. Port Auth. of N.Y.

6 & N.J., No. 96 Civ. 5549, 1998 WL 107362, at *5 (S.D.N.Y.

7 Mar. 9, 1998). 

8 The vicarious liability in this case, if any, must arise

9 from state law because the jury found that the Port Authority

10 was not liable under § 1983 for failure to train, the only

11 basis on which Caceres sought to hold the Port Authority

12 liable under federal law. See Caceres, 646 F. Supp. 2d at

13 424 n.10; see also Monell v. Dep’t of Soc. Servs., 436 U.S.

14 658, 691 (1978) (holding municipalities cannot be liable

15 under § 1983 on vicarious liability theory); Raysor v. Port

16 Auth. of N.Y. & N.J., 768 F.2d 34, 38 (2d Cir. 1985)

17 (applying Monell rule to Port Authority). Hess therefore has

18 no impact on whether the jurisdictional requisites have been

19 satisfied for Caceres’s state law claim. 

20 Caceres’s claim accrued when he was released from

21 custody around midnight on August 5-6, 2004. He filed his

22 complaint on February 27, 2006, more than one year afterward.
14

1 The district court therefore lacked subject matter

2 jurisdiction to consider the claim. Although this

3 jurisdictional issue was not raised by either party or the

4 district court, it cannot be waived and dismissal is

5 mandatory. See United Food & Commercial Workers Union, Local

6 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298,

7 301 (2d Cir. 1994). 

8

9 For the foregoing reasons, the judgment in favor of

10 Sangiorgi based on qualified immunity is affirmed, the

11 judgment against the Port Authority is vacated, and the case

12 is remanded to the district court with instructions to

13 dismiss the claim against the Port Authority for lack of

14 jurisdiction.