18-403 Kaminsky v. Schriro 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 FEDE RAL 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 CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United St ates 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 24 th day of January, two thousand nineteen. PRESENT: ROBERT A. KATZMANN, Chief Judge , PETER W. HALL, GERARD E. LYNCH, Circuit Judges

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JOSEPH W. KAMINSKY, JR., Plaintiff-Appellant , v. No. 18-403 DORA B. SCHRIRO, Commissioner, Department of Emergency Services and Public Protection, in her Individual and Official Capacities, BARBARA MATTSON, in her Individual Capacity, VINCENT IMBIMBO, in his Individual Capacity, WALTER SOLENSKI, Lieutenant, Town of Coventry Police Department, in his Individual and Official Capacities, BRIAN FLANAGAN, Sergeant, Town of Coventry Police Department, in his Individual and Official Capacities, TED OPDENBROUW, in his Individual Capacity, ROBERT DEXTER, in his Individual Capacity, PAOLO D’ALESSANDRO,2 Sergeant, Department of Emergency Services and Public Protection, in his Individual and Official Capacities, SEAN MUSIAL, in his Individual Capacity, MARK A. PALMER, Chief, Town of Coventry Police Department, in his Individual and Official Capacities, MICHAEL HICKS, in his Individual Capacity , Defendants-Appellees

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For Plaintiff-Appellant: RACH EL M. BAIRD, Harwinton, CT For Defendants-Appellees, Dora P. Schriro, Paolo D’Alessandro, Barbara Mattson, Vincent Imbimbo, and Sean Musial:

For Defendants-Appellees, Mark A. Palmer, Walter Solenski, Brian Flanagan, Michael Hicks, Robert Dexter, and Ted Opdenbrouw: JAMES BELFORTI, Assistant Attorney General (Stephen R. Sarnoski, Assistant Attorney General, on the brief ) for William Tong, Attorney General for the State of Connecticut, Hartford, CT. DAVID C. YALE, Hassett & George, P.C. , Simsbury, CT.

Appeal from a judgment of the United Stat es District Court for the District of Connecticut (Shea, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-appellant Joseph M. Kaminsky, Jr . appeals from the judgment of the United States District Court for the Di strict of Connecticut (Shea, J. ) granting summary judgment in favor of defendants-appellees. We assume the pa rties’ familiarity with the underlying facts, procedural history, and issu es presented for review. On December 16, 2011, an FBI agent tele phoned Officer Barbara Mattson of the Connecticut State Police (“CSP” ) and advised her that Kamins ky had a felony conviction, thus rendering him ineligible to possess firearms legally. Following the call, and after her own3 independent research appeared to confirm the agent’s informati on, Mattson alerted the Coventry Police Department (“CPD”). After some di scussion, three CPD offi cers—Sergeant Brian Flanagan, Officer Robert De xter, and Officer Ted Opdenbr ouw—accompanied Mattson, CSP officer Vincent Imbimbo, and CPD Lieutenant Walter Solenski to Kaminsky’s home. After arriving at Kaminsky’s address, a nd noticing a path wrapping around the house, Mattson, Imbimbo, and Solenski approached Kaminsky’s back door. Kaminsky recognized Solenski, with whom he was acquainted, and asked “What’s up, Walt?” J. App. 231. Solenski asked, “Can we come in?” J. App. 136, 460, a nd, by his own account, Kaminsky “waved them in.” J. App. 136. Once the officers were inside, Mattson explained the purpose of their visit. After speaking with Kaminsky’s attorney over the phone at Kaminsky’s invitation, Mattson gave Kaminsky two letters: one revoking his permit to carry firearms and the other informing him that, as a convicted felon, he coul d no longer legally possess firearms. Kaminsky then surrendered his permit and vol untarily surrendered multi ple firearms from different storage areas around the house. Kaminsky was asked to come to the CPD to sign and receive a copy of paperwork indicating that he had surrendered his firearms. He did so, and signed the relevant paperwork. While the others were inside, Flanagan, De xter, and Opdenbrouw re mained outside. They waited near a low stone wall in Kaminsky’s backyard area, which faces a public lake. 1 None of these officers—Flanagan, Dext er, or Opdenbrouw—entered Ka minsky’s home. They conducted no searches or investigat ions while in the yard.

1 There was some dispute below as to whether the three officers were located on Kaminsky’s property or on a neighbor’s. We view the facts in the light most favorable to Kaminsky, and draw all reasonabl e inferences in his favor. See Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc. , 150 F.3d 132, 137 (2d Cir. 1998).4 On December 19, 2011, following a phone cal l from Kaminsky’s attorney, Mattson returned to Kaminsky’s home with another CSP officer, Sean Musial. Kaminsky handed over an additional 23 firearms to Mattson and Musial . Kaminsky went to the CPD to sign for the surrender of those firearms on December 20. Of the 59 firear ms logged as surrendered on December 16 and 19, the CPD identified three weapons as illegal assault weapons under Connecticut state law. After Kaminsky received a full pardon for his criminal convictions on March 4, 2013, all but those three fi rearms were returned to him. 2 The district court dismissed all claims agai nst the state defendants in their official capacities and several claims agai nst all defendants, leaving only Kaminsky’s allegation that his Fourth Amendment rights were violated when officers entered his home, waited on his property, and seized his firearms. The di strict court granted two motions for summary judgment filed by the defendants which, together, addressed all remaining claims and defendants. Kaminsky appeals the grant of both su mmary judgment motions. “We review de novo a district court’s grant of su mmary judgment after construing all evidence, and drawing all r easonable inferences, in fa vor of the non-moving party.” Sotomayor v. City of New York , 713 F.3d 163, 164 (2d Cir. 2013) (per curiam). 3 “Summary judgment is appropriate only when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “[A] warrant is generally required for a search of a home, but the ultimate touchstone of the Fourth Amendment is reasonableness.” Fernandez v. California , 571 U.S. 292, 298 (2014).

2 The status of these weapons under Connect icut law remains at issue in litigation instituted by Kaminsky in th e Connecticut state courts.

3 Unless otherwise indicate d, case quotations omit all internal quotation marks, alterations, footnotes, and citations.5 “ A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant .” Id. at 306. “[T]he lawful occupant of a house or apartment should have the right to invite the pol ice to enter the dwelli ng and conduct a search.” Id. at 307. “It would be unreasonable—indeed, absu rd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search.” Id. at 298. However, “[t]he consent must be a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority.” United States v.
Iverson , 897 F.3d 450, 458 (2d Cir. 2018). “Determination of whether such an individual has so consented requires a fact-based inquiry that considers the totality of all the circumstances.” Id. Here, Kaminsky consented to the officers ente ring his home after Solenski asked if they could enter. Kaminsky concedes that he invite d Solenski into his home, but argues that his consent did not extend to Mattson and Imbimbo. The evidence is to the cont rary. Solenski asked,
“Can we come in?” J. App. 460 (emphasis added) . Furthermore, Kaminsky’s own deposition testimony states unambiguously: “I left the door open and waved them in.” J. App. 136 (emphasis added). Furthermore, Kaminsky expre ssed no surprise that the other two officers entered his home, did not request that they leave, and did not seek clarif ication from Solenski. Moreover, “[c]onsent may be express or implied.” Iverson , 897 F.3d at 458; see also Birchfield v. North Dakota , 136 S. Ct. 2160, 2185 (“It is well established that a search is reasonable when the subject consents and that some times consent to a search need not be express but may be fairly inferred from context.”). Ev en if he did not expres sly invite Mattson and Imbimbo into his home, Kaminsky im pliedly consented to their entry. 4

4 Kaminsky also argues that the officers inappropriately sought c onsent to enter his home instead of obtaining a warrant, wh ich he argues they could easily have done. As the Supreme6 Nor were Kaminsky’s firearms seized in vi olation of his Fourth Amendment rights. Indeed, Kaminsky does not dispute that, on the a dvice of his attorney, he consented to the surrender of his firearms. Rather, he argues that the seizure—and the initial entry—were based on a faulty premise: It is now agreed by all pa rties that he was not actually a convicted felon, because the offense for which he was convicted in 1964 was not a felony at the time of his conviction. But this error on the part of Mattson, which Ka minsky does not contend was anything more than (at most) negligent, 5 is not sufficient reason to find that Kaminsky’s consent to turn over his weapons (or for the officers to enter his home) was coerced. See United States v. Jelks , 273 F. Supp. 2d 280, 291 (W.D.N.Y. July 3, 2003) (finding voluntary consent where a police officer incorrectly told the plaintiff that “parole officers could sear ch a parolee's residence any time [they] felt that there was a need to do so”) aff’d , 73 F. App'x 486 (2d Cir. 2003); cf. Frazier v. Cupp , 394 U.S. 731, 739 (1969) (stating, in the cont ext of confessions, the “fact that the police misrepresented . . . statements . . . is , while relevant, insufficient . . . to make [an] otherwise voluntary confession inadmissible”). Under the totality of the circumstances, see Schneckloth v. Bustamonte , 412 U.S. 218, 227-28 (1973), no reasonable factfinder could conclude that Kaminsky’s consent to the entry in to his house and the seizure of his firearms was

Court has noted, however, a warrantle ss consent search is reasonable “ irrespective of the availability of a warrant.” Fernandez , 571 U.S. at 306 (emphasis added).

5 Indeed, Mattson’s mistake appears to have been reasonable. Mattson was informed by an FBI agent that Kaminsky was a convicted felon. She cross-referenced this information with a statewide database which showed a felony convic tion. She compared the fi ngerprints associated with his 1964 conviction to his permit application to confirm that the c onvicted felon and permit applicant were one and the same. Cf. United States v. Santa, 180 F.3d 20, 27 (2d Cir. 1999) (finding that a police officer’s reliance on a statewide computer database erroneously showing existence of an outstanding arrest warrant was ob jectively reasonable). It apparently took some time after the seizure for lawyers to research the question and determine that the offense of conviction was a misdemeanor in 1964.7 coerced. The officers at no time drew weapons, made threats, raised their voices, or demanded compliance. Kaminsky was in contact with an atto rney, who spoke with the officers and advised that Kaminsky would cooperate with their inquir y. The officers made no independent search of any part of Kaminsky’s house, but seized only fi rearms whose locations he pointed out to them. With respect to the claim that the officers w ho remained in the yard violated the Fourth Amendment by entering the curtilage of Kami nsky’s home, even assuming—without deciding— that the officers were present on the curtilage, an d that their mere presen ce, without engaging in any search or seizure in the area, violated the Fourth Amendment, the officers are entitled to qualified immunity. “The doctrine of qualified immunity gives offi cials breathing room to make reasonable but mistaken judgments about open legal questions.” Ziglar v. Abbasi , 137 S. Ct. 1843, 1866 (2017). It is designed to protect “all but the plainl y incompetent or those who knowingly violate the law.” Id. at 1867. A plaintiff may overcome a qualified immunity defense only by showing “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly establ ished’ at the time of the challenged conduct.” Ashcroft v. al-Kidd , 563 U.S. 731, 735 (2011). Kaminsky has made no argument in response to the officers’ claim of qualified immunity. Accordingly, he has waived any objection to that claim. See City of Syracuse v. Onondaga Cty. , 464 F.3d 297, 308 (2d Cir. 2006). In any event, the district court’s conclusi on that the officers are entitled to qualified immunity was correct. Even if th e area was curtilage, the officers’ belief that the area in which they waited was not curtilage was reasonable. At the time of the incident in question, the principal authority for classifying an area pr oximate to a house as curtilage or not was United
States v. Dunn , 480 U.S. 294 (1987), which sets out a hi ghly fact-specific four-factor test. Id. at 301. However, “combining th[ose] factors [does no t] produce[ ] a finely tuned formula that,8 when mechanically applied, yields a ‘correct’ answer to all extent-of-curtilage questions.” Id . In a careful and thorough opinion, the experi enced district c ourt analyzed the Dunn factors and concluded that the area where the officers stood was not curtilage. Kaminsky cites no authority, extant at the time of the incident , sufficiently analogous to the speci fic facts of this case to have required a reasonable officer to re ach a contrary conclusion. To the extent that cases post-dating the incident, such as Florida v. Jardines , 569 U.S. 1 (2013), United States v. Alexander, 888 F.3d 628 (2d Cir. 2018), and Collins v. Virginia , 138 S. Ct. 1663 (2018) , can be argued to call the district court’s analysis into question in any way, the officer s cannot be expected to have anticipated such developments. The district c ourt’s decision at a minimum establishes that a reasonable officer in 2011 could reasonably have concluded that the ar ea in question was not curtilage. We have considered all of Kaminsky’s rema ining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk