State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 20, 2014 518629 

________________________________

ANGELA MARIE BROWN,

AppellantRespondent,

v MEMORANDUM AND ORDER

G. A. HOFFMAN,

RespondentAppellant.

________________________________

Calendar Date: October 7, 2014

Before: Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

__________

Jonathan Wood, County Attorney, Ithaca, for respondentappellant.

Edward E. Kopko, Ithaca, for appellant-respondent.

__________

Clark, J.

Cross appeals from an order of the Supreme Court (Mulvey,

J.), entered July 24, 2013 in Tompkins County, which partially

denied defendant's motion for summary judgment dismissing the

complaint. 

As a result of events related to a disagreement between

plaintiff and employees at the Tompkins County Regional Airport,

defendant, a Tompkins County Sheriff, arrested plaintiff after

she refused to leave the premises. By information, plaintiff was

charged with disorderly conduct pursuant to Penal Law § 240.20

(3). However, that charge was dismissed. Plaintiff subsequently

commenced this action pursuant to 42 USC § 1983, seeking damages

as a result of the allegations that defendant, among other
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things, made an unlawful arrest in violation of the 4th

Amendment, used excessive force in violation of the 4th Amendment

and arrested plaintiff in retaliation for her use of protected

speech in violation of the 1st Amendment. Defendant thereafter

moved for summary judgment dismissing the complaint. Supreme

Court denied defendant's motion as to plaintiff's cause of action

relating to unlawful arrest, but granted defendant's motion as to

the remaining causes of action. Plaintiff and defendant

cross-appeal. 

Beginning with defendant's contentions, we disagree that

Supreme Court erred in partially denying the motion for summary

judgment as to the cause of action based on false arrest. Based

upon the record before us, we find that defendant failed to meet

his burden of establishing, as a matter of law, that he had

arguable probable cause to arrest plaintiff for either criminal

trespass or disorderly conduct. 

An arresting officer is immune from a suit for damages if

he or she had arguable probable cause to arrest a plaintiff (see

Escalera v Lumn, 361 F3d 737, 743 [2d Cir 2004]). This is so

even if probable cause exists with respect to an offense other

than the one actually invoked at the time of arrest (see

Devenpeck v Alford, 543 US 146, 153 [2004]). Pursuant to this

test, "an officer sued under the Fourth Amendment for false

arrest is 'entitled to immunity if a reasonable officer could

have believed that probable cause existed'" (Zellner v Summerlin,

494 F3d 344, 370 [2d Cir 2007] [emphasis omitted], quoting Hunter

v Bryant, 502 US 224, 228 [1991]). As is relevant here, Penal

Law § 140.05 states that "[a] person is guilty of trespass when

he [or she] knowingly enters or remains unlawfully in or upon

premises." Regardless of intent, "[a] person who . . . enters or

remains in or upon premises which are at the time open to the

public does so with license and privilege unless he [or she]

defies a lawful order not to enter or remain, personally

communicated to him [or her] by the owner of such premises or

other authorized person" (Penal Law § 140.00 [5]; accord People v

Brown, 25 NY2d 374, 376 [1969]).

The undisputed proof in the record demonstrates that, on

the day in question, plaintiff was lawfully at the airport to
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pick up her teenaged daughter who was scheduled to arrive on an

incoming flight. When the daughter did not depart the plane as

expected, however, plaintiff approached Jody Achilles, a US

Airways customer service representative, for assistance. 

Achilles informed plaintiff that her daughter's flight had made

an unexpected stop causing the daughter to miss her connecting

flight, and Achilles advised plaintiff that her daughter would

likely be on the next arrival from that airport. Other than to

supply her with a telephone number, neither Achilles nor Melissa

Abbott, another customer service representative, were able to

further assist plaintiff, who admittedly became agitated and

upset. Defendant thereafter appeared on the scene and, at a

subsequent point, demanded that plaintiff leave the airport. 

When she refused to leave, defendant placed plaintiff under

arrest. The facts, otherwise, remain largely in dispute. 

In assessing whether defendant met his initial burden of

establishing that he had arguable probable cause to arrest

plaintiff for trespass, proof of defendant's authority to issue

the blanket order directing plaintiff to leave the public

facility must be examined. This is so because the "right to

exclude 'has traditionally been considered one of the most

treasured strands in an owner's bundle of property rights'"

(Seawall Assoc. v City of New York, 74 NY2d 92, 103 [1989], certs

denied 493 US 976 [1989], quoting Loretto v Teleprompter

Manhattan CATV Corp., 458 US 419, 435 [1982]) and, unless

otherwise authorized, police do not have the inherent and general

rights of a property owner (see e.g. US Const 4th Amend). The

record demonstrates that, on the day in question, defendant was a

county employee working in the county airport, a public facility. 

In support of his motion, defendant provided no proof that he was

either prescribed by law or directed by the Tompkins County

legislature to exercise any authority to lawfully order a citizen

to leave this public property (see County Law § 650; see

generally People v Brown, 25 NY2d at 376). Nor did defendant's

proffer demonstrate that he was asked to remove plaintiff from

the airport property by someone with the authority to do so

(compare Matter of Max X., 278 AD2d 774, 775 [2000]). Therefore,

defendant did not establish as a matter of law that he had

arguable probable cause to arrest plaintiff for criminal trespass

because issues of fact exist as to whether, at the time of
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arrest, it was reasonable for defendant to believe that plaintiff

was disobeying a lawful order (see Penal Law § 140.00 [5]).

Defendant's alternative argument that he was entitled to

summary judgment on this cause of action because he had arguable

probable cause to arrest plaintiff for disorderly conduct

likewise fails. A person is guilty of disorderly conduct when he

or she "with intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof" either "makes

unreasonable noise" (Penal Law § 240.20 [2]) or "uses abusive or

obscene language, or makes an obscene gesture" in a public space

(Penal Law § 240.20 [3]). According to the proof submitted by

defendant in support of his motion, although Achilles explained

to plaintiff that she did not know why the plane had to stop or

why it was late, plaintiff began to repeatedly and aggressively

demand that Achilles tell her where her daughter was and why the

plane was diverted. Achilles explained that she gave plaintiff a

1-800 telephone number to call for further inquiries and told her

that, beyond the information already provided, the number was the

only recourse. Abbott likewise stated that plaintiff was

behaving irrationally and was berating her loudly and accusing

her of withholding information when she was unable to answer

plaintiff's questions to her satisfaction. At that point,

defendant arrived at the scene and Abbott explained the situation

to him. Achilles described that, when defendant attempted to

hand the piece of paper with the telephone number to plaintiff,

plaintiff threw it on the ground. Abbott further explained that

defendant informed plaintiff that she needed to cease her

disruptive behavior or defendant would have to escort her from

the building. When plaintiff refused to leave the airport,

defendant proceeded to arrest her. 

Bryan Grider, who was also present on the day in question,

described the events in a manner largely consistent with Abbott's

description while adding that plaintiff was acting in a

threatening manner toward defendant. Likewise, according to

defendant, after receiving a request for assistance, he proceeded

to the customer service counter and observed plaintiff acting in

an aggressive, loud, confrontational and abusive manner toward

Abbott and Achilles. After advising plaintiff that, if she did

not calm down, he would have to escort her from the building, she
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neither calmed down nor willingly left the airport with him and

so defendant placed her under arrest.

These accounts differ dramatically from plaintiff's version

of events as she contends that there was no probable cause for

her arrest for any crime. According to plaintiff, after

receiving limited assistance and a telephone number from

Achilles, she approached Abbott in the hopes of speaking to an

actual person in an effort to locate her daughter. When Abbott

refused to provide additional help other than to again refer her

to the 1-800 number, plaintiff requested that Abbott direct her

to another airline employee expecting that, if Achilles and

Abbott were unable to assist her, they should at least let her

speak, in person, to someone who could. While remaining at the

counter and continuing to ask for help, plaintiff testified that

she did not raise her voice or use profanities. Plaintiff also

explained that she was the only person in line for customer

service, although other passengers were present in the general

area and/or passing through the vicinity.

Upon defendant's arrival at the customer service counter,

plaintiff declined his offer to help saying that what she needed

instead was assistance from the airline. Defendant then demanded

that she leave the airport. After she refused to leave without

knowing the whereabouts of her daughter, defendant then walked

around the customer service counter, grabbed plaintiff's right

arm, twisted it behind her back, put a handcuff on her and pinned

her against a planter while attempting to gain control over her

left arm. Plaintiff explained that, because of the way her body

was positioned against the planter with defendant's weight behind

her, she was unable to immediately free her left arm. After

arresting her, defendant then marched plaintiff to his police car

and brought her to the Sheriff's Department, where she was

detained for approximately three hours. 

Thus, the record before us demonstrates that material

issues of fact also persist as to whether or not defendant had

arguable probable cause to arrest plaintiff for disorderly

conduct. We therefore agree with Supreme Court that defendant

failed to adequately demonstrate his prima facie entitlement to

summary judgment with respect to plaintiff's claim for unlawful
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arrest (see Penal Law § 240.20 [2], [3]).

We do, however, find that Supreme Court erred in granting

defendant summary judgment on the causes of action based on the

allegations of the excessive use of force and retaliation based

on the use of protected speech. "To establish that [a]

plaintiff's excessive force claim lacks merit, [a] defendant[]

must demonstrate that [he or she] used objectively reasonable

force when taking [the] plaintiff into custody" (Higgins v City

of Oneonta, 208 AD2d 1067, 1070 [1994], lv denied 85 NY2d 803

[1995]). Turning to the record, defendant averred that he

attempted to arrest defendant, but that she fought and resisted

making him unable to handcuff her until he received the

assistance of another person. Both Abbott, Grider and another

employee gave sworn statements that plaintiff physically resisted

defendant's attempt to place her in handcuffs. In his police

report, defendant specifically described that, when he attempted

to place plaintiff in handcuffs, she continued to fight and

resist and that he placed her up against a planter next to the

ticket counter, resulting in her left arm being tucked under her

against the planter.

Conversely, however, we find that plaintiff's submissions

raise an issue of fact as to the reasonableness of the force

used. Specifically, plaintiff denies resisting defendant's

attempts to arrest her and testified that she did not attempt to

physically pull away from defendant. Notably, plaintiff

submitted medical evidence that indicated that, as a result of

defendant's actions in placing plaintiff under arrest, she

suffered, among other things, a sprained wrist and a neck injury. 

In our view, the evidence that plaintiff was injured as a result

of the manner of arrest, as well as plaintiff's testimony that

she did not resist defendant's arrest, raise a material issue of

fact as to the reasonableness of defendant's use of force. 

Accordingly, Supreme Court erred in granting summary judgment

dismissing the cause of action based on the allegation of

excessive use of force.

Lastly, inasmuch as plaintiff alleged that defendant

arrested her in retaliation for her use of constitutionally

protected speech, which is a violation of the 1st Amendment (see
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generally City of Houston v Hill, 482 US 451, 461 [1987]),

defendant was required to establish that plaintiff's speech was

not constitutionally protected, that there was no adverse

consequence for plaintiff, or that there was no causal connection

between any protected speech and any adverse consequence to

plaintiff in order to be entitled to summary judgment (see Posr v

Court Officer Shield No. 207, 180 F3d 409, 418 [2d Cir 1999];

Kline v Town of Guilderland, 289 AD2d 741, 742-743 [2001]). 

We determine that summary judgment was inappropriate with

respect to this cause of action for a variety of reasons. First,

defendant conceded that he arrested plaintiff, establishing an

adverse consequence. Further, as defendant failed to establish

arguable probable cause that the content or manner in which

plaintiff was speaking was or could be criminal or that it was

otherwise properly prohibited in accordance with the 1st

Amendment, he did not establish that any speech by plaintiff was

unprotected. Finally, defendant failed to establish that there

was no issue of fact as to whether he arrested plaintiff as a

result of her speech. Notably, defendant accused plaintiff of

disorderly conduct, describing plaintiff as loud and boisterous

and stating that plaintiff caused annoyance and alarm while also

stating that she refused to answer any questions. When viewing

the record in the light most favorable to plaintiff, as we must,

and considering that there are issues of fact as to whether any

such expression or speech could be criminalized or was instead

protected speech, defendant's proof in support of his motion

fails to exclude, as a matter of law, the possibility that he

arrested plaintiff because of her use of protected speech. 

Accordingly, defendant failed to meet his prima facie burden and

Supreme Court erred in granting defendant's motion dismissing

this cause of action.

Lahtinen, J.P., Stein, McCarthy and Rose, JJ., concur.
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ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as granted defendant's motion

for summary judgment dismissing the causes of action related to

excessive use of force and retaliation against protected speech;

motion denied to that extent; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court