18

‐ 2822

‐ cv

Serrano v. City of New York

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 A SUMMARY ORDER @ ). A PARTY CITING TO 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, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 10 th day of December, two thousand nineteen. 3

4

PRESENT: GERARD E. LYNCH, 5

RAYMOND J. LOHIER, JR., 6

RICHARD J. SULLIVAN, 7

Circuit Judges

. 8

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 9

STEVEN SERRANO, 10

11

Plaintiff

‐ Appellant

, 12

13

MICHAEL SERRANO, SAMUEL GARCIA, 14

15

Plaintiffs

, 16

17

v. No. 18

‐ 2822

‐ cv 18

19

CITY OF NEW YORK, A MUNICIPAL ENTITY, 20

NEW YORK CITY POLICE DETECTIVE 21

ANTHONY DISIMONE (SHIELD NO. 000340) IN 222 HIS INDIVIDUAL CAPACITY, NEW YORK 1

CITY POLICE DETECTIVE THOMAS MCHALE 2

(SHIELD NO. 004937) IN HIS INDIVIDUAL 3

CAPACITY, JOHN AND JANE DOES 1–3, 4

WHOSE IDENTITIES ARE UNKNOWN BUT 5

ARE KNOWN TO BE PERSONNEL OF THE 6

NEW YORK CITY POLICE DEPARTMENT, ALL 7

OF WHOM ARE SUED IN THEIR INDIVIDUAL 8

CAPACITIES, UNDERCOVER COP 0114, 9

UNDERCOVER COP 0244, 10

11

Defendants

‐ Appellees

. 12

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 13

FOR APPELLANT: K EITH S ZCZEPANSKI (Luna 14

Droubi, on the brief ), Beldock 15

Levine & Hoffman LLP, New 16

York, NY. 17

18

FOR APPELLEES: A NNA W OLONCIEJ

, Assistant 19

Corporation Counsel (Richard 20

Dearing & Scott Shorr, 21

Assistant Corporation 22

Counsel, on the brief ), for James 23

E. Johnson, Corporation 24

Counsel of the City of New 25

York, New York, NY. 26

Appeal from a judgment of the United States District Court for the 27

Southern District of New York (Alvin K. Hellerstein, Judge ). 28

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 29

AND DECREED that the judgment of the District Court is AFFIRMED. 303 Steven Serrano appeals from the judgment of the District Court 1

(Hellerstein, J.) granting summary judgment in favor of the defendants

‐ appellees 2

on the basis of qualified immunity. On appeal, Serrano challenges only the 3

District Court’s dismissal of his Fourth Amendment claim under 42 U.S.C. 4

§ 1983, his New York State false arrest claim, and his New York State assault and 5

battery claim against the City of New York, the undercover officer defendants, 6

and the Doe defendants. 1 We assume the parties’ familiarity with the 7

underlying facts and the record of prior proceedings, to which we refer only as 8

necessary to explain our decision to affirm. 9

We review a district court’s grant of a summary judgment motion de novo. 10

Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). Qualified 11

immunity shields government officials from liability unless “the official violated 12

1 The District Court concluded that Serrano forfeited his claims against defendants

DiSimone and McHale by failing to advance arguments relevant to them in opposition

to summary judgment. Serrano does not challenge that ruling on appeal. Nor does

he advance any arguments to contest the District Court’s grant of summary judgment

dismissing his excessive force and malicious prosecution claims. Accordingly, we

consider these claims abandoned. See Biediger v. Quinnipiac Univ., 691 F.3d 85, 98 n.6

(2d Cir. 2012); State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158,

172 (2d Cir. 2004). Serrano also concedes that his federal false arrest claim is foreclosed

by Townes v. City of New York, 176 F.3d 138, 145–46 (2d Cir. 1999).4 a statutory or constitutional right” that “was clearly established at the time of the 1

challenged conduct.” Ashcroft v. al

‐ Kidd, 563 U.S. 731, 735 (2011) (quotation 2

marks omitted). A right is clearly established if “[t]he contours of [a] right [are] 3

sufficiently clear that every reasonable official would [have understood] that 4

what he is doing violates that right.” Id. at 741 (quotation marks omitted). 5

“The qualified immunity defense, thus, is a broad shield that protects all but the 6

plainly incompetent or those who knowingly violate the law.” Kass v. City of 7

New York, 864 F.3d 200, 206 (2d Cir. 2017) (quotation marks omitted). In the 8

context of a warrantless search and arrest, an officer is entitled to qualified 9

immunity if the officer had at least “arguable probable cause,” meaning that “it 10

was objectively reasonable for the officer to believe that probable cause existed, 11

or

. . . officers of reasonable competence could disagree on whether the probable 12

cause test was met.” Id. (quotation marks omitted). “Probable cause exists 13

when the facts and circumstances within

. . . the officers’ knowledge and of 14

which they had reasonably trustworthy information are sufficient in themselves 15

to warrant [an officer] of reasonable caution in the belief that an offense has been 165 or is being committed by the person to be arrested.” Id. (quotation marks 1

omitted). 2

After finding that “the officers

. . . had at least arguable probable cause to 3

believe that [Serrano] was involved in drug activity” and to arrest him on that 4

basis, the District Court determined that the officers were entitled to qualified 5

immunity as to Serrano’s claim that they conducted an unreasonable search in 6

violation of § 1983. Serrano v. City of New York, No. 16 Civ. 8105, 2018 WL 7

3392869, at *6 (S.D.N.Y. July 12, 2018); see id. at *8. We agree that, on the 8

undisputed facts of this case, “officers of reasonable competence could disagree 9

on whether the probable cause test was met,” and that the officers here therefore 10

had arguable probable cause to arrest and search Serrano. Kass, 864 F.3d at 206 11

(quotation marks omitted). 12

In arriving at this conclusion, we note that Serrano acknowledged 13

identifying two individuals—UC244 and UC212—as undercover officers during 14

and in the vicinity of the drug deal at issue in this case. See App’x 88–89, 156– 15

57. Specifically, during discovery Serrano confirmed that he noticed UC244 and 16

UC212 and, based on their appearance and behavior, deduced that they were 176 undercover police officers. App’x 89, 91, 164, 184–85. Serrano admitted that 1

he then told his friend, Samuel Garcia, “in a conversational voice” once or twice 2

in quick succession, “Look, those are two cops there,” in reference to UC244 and 3

UC212. App’x 156–57; see also App’x 91, 183, 185. Serrano thus confirmed 4

that he made the statement that one of the officers claimed to have overheard 5

and that prompted Serrano’s arrest. See App’x 67, 72, 238. 6

We realize that there were some discrepancies in the government’s account 7

of Serrano’s statement. Among other things, the original criminal complaint 8

charging Serrano alleged that Serrano’s brother, Michael Serrano, and Garcia, not 9

Serrano, first identified UC244 by saying, “THAT GUY IS A COP,” and that 10

Michael Serrano then repeated the statement. App’x 67. Likewise, UC244’s 11

incident report of the arrest stated that Michael Serrano and Garcia made the 12

statement “that guy is a cop” while pointing at UC244, after which, according to 13

the report, Serrano “signal[ed] JD Red, Don’t do anything ‘He’s a cop.’” App’x 14

72. In a deposition, by contrast, UC244 testified that Serrano and Michael 15

Serrano both made the comment to Garcia. App’x 238. Finally, we note that 16

while all three government accounts of the arrest placed Serrano, Michael 177 Serrano, and Garcia together when the relevant statement was made, App’x 67, 1

72, 238, during the summary judgment proceedings the defendants agreed that 2

Michael Serrano was not present after all. Serrano, 2018 WL 3392869, at *2; see 3

also App’x 58. 4

Given Serrano’s admission that he made the central statement at issue, the 5

above inconsistencies do not, on this record, create a genuine dispute of material 6

fact that could undermine a finding of arguable probable cause. For these 7

reasons, the defendants

‐ appellees were entitled to qualified immunity on 8

Serrano’s § 1983 Fourth Amendment claim. 9

For substantially the same reasons stated by the District Court in its 2018 10

decision, we also conclude that the defendants

‐ appellees were entitled to 11

qualified immunity with respect to Serrano’s state false arrest and state assault 12

and battery claims, which are predicated largely on the unlawfulness of 13

Serrano’s arrest. 14

158 We have considered Serrano’s remaining arguments and conclude that 1

they are without merit. For the foregoing reasons, the judgment of the District 2

Court is AFFIRMED. 3

FOR THE COURT: 4

Catherine O = Hagan Wolfe, Clerk of Court 5