Opinion
20-4222-cv
03-14-2022
NEELU PAL, Plaintiff-Appellee, v. ROBERT CIPOLLA, ROBERT SMALDONE, MICHAEL TYLER, Defendants-Appellants, SCOTT SEAR, DANIEL MONAHAN, RICHARD JANES, TOWN OF WILTON, Defendants
FOR PLAINTIFF-APPELLEE: Neelu Pal, pro se, Wilton, CT FOR DEFENDANTS-APPELLANTS: Andrew J. Glass games N. Tallberg, on the brief), Karsten & Tallberg, Rocky Hill, CT
UNPUBLISHED OPINION
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 "SUMMARY ORDER"). 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 14th day of March, two thousand twenty-two.
Appeal from an order of the United States District Court for the District of Connecticut (Michael P. Shea, Judge).
FOR PLAINTIFF-APPELLEE:
Neelu Pal, pro se, Wilton, CT
FOR DEFENDANTS-APPELLANTS:
Andrew J. Glass games N. Tallberg, on the brief), Karsten & Tallberg, Rocky Hill, CT
PRESENT: AMALYA L. KEARSE, RAYMOND J. LOHIER, JR., EUNICE C. LEE, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.
Appellants Robert Cipolla, Robert Smaldone, and Michael Tyler are police officers with the Wilton Police Department who appeal from so much of a November 23, 2020 order of the United States District Court for the District of Connecticut (Shea, L) as denied their motion for summary judgment dismissing, on the basis of qualified immunity, Neelu Pal's claims brought under 42 U.S.C. § 1983 for unlawful entry, malicious prosecution, and use of excessive force. We assume the parties' familiarity with the underlying facts and procedural history, to which we refer only as necessary to explain our decision to affirm.
"A district court's denial of qualified immunity on a summary judgment motion is an appealable final decision only to the extent the denial turns on an issue of law." Terebesi v. Torreso, 764 F.3d 217, 229 (2d Cir. 2014) (quotation marks omitted). Thus, "[o]n interlocutory appeal, after the denial of the defendants' motions for summary judgment, we have jurisdiction to review a [district court's] denial of qualified immunity to the extent it can be resolved on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find." Id. at 222 (quotation marks omitted). "[E]ven where the district court rules that material disputes of fact preclude summary judgment on qualified immunity, we may still exercise interlocutory jurisdiction if the defendant. . . contends that he is entitled to qualified immunity even under plaintiff's version of the facts." Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003) (quotation marks omitted).
To the extent the Appellants characterize arguably disputed facts as undisputed, we may base our analysis not on those assertions "but on an independent review of the record," reviewing the District Court's decision only to the extent we have jurisdiction. Lennox v. Miller, 968 F.3d 150, 154 n.2 (2d Cir. 2020).
With these principles in mind, we conclude that we have jurisdiction to entertain this appeal and to review the District Court's order denying summary judgment. We review that decision de novo, accepting as true Pal's version of the facts. See Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019).
We first address the District Court's denial of qualified immunity on the unlawful entry claim. Warrantless entries of a home are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586 (1980); United States v. Delva, 858 F.3d 135, 147 (2d Cir. 2017). For a "warrantless entry of a home to be rendered reasonable ... it must meet an exception to the warrant requirement." Chamberlain v. City of White Plains, 960 F.3d 100, 105 (2d Cir. 2020) (quotation marks omitted). The Appellants submit that, even under Pal's version of the facts, they are entitled to qualified immunity because exigent circumstances justified their warrantless entry into Pal's home. We disagree. In analyzing whether exigent circumstances exist, we consider "whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action." United States v. Klump, 536 F.3d 113, 118 (2d Cir. 2008) (quotation marks omitted). The following non-exhaustive list of factors guides our analysis in determining whether exigent circumstances justify a warrantless entry:
(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause ... to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.Loria v. Gorman, 306 F.3d 1271, 1284 (2d Cir. 2002) (quoting United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997)). Accepting Pal's account of the facts as true on summary judgment, as we must, we agree with the District Court that it was not objectively reasonable for the Appellants to believe that exigent circumstances justified their forcible entry into Pal's home without a warrant. The nature of Pal's alleged offense was minor; the officers had no reason to believe that Pal was armed or dangerous; there was no reason to believe that Pal would escape if she were not quickly apprehended; and there was no reasonable basis to conclude that either Pal or her child was in danger. At the summary judgment stage on these facts, the Appellants were not entitled to qualified immunity. See id. at 1285-87 (recognizing that "the existence of probable cause and knowledge that the suspect is on the premises . . . are not sufficient to justify an entry where the crime involved is minor and there is no apparent potential for violence/' and denying qualified immunity on a claim for unlawful entry); Cowan, 352 F.3d at 761.
We turn next to the District Court's conclusion that, at the summary judgment stage, Officer Smaldone is not entitled to qualified immunity on Pal's malicious prosecution claim arising from the charges of assault and attempted assault on a public safety officer or health care personnel. Qualified immunity shields government officials from a malicious prosecution claim if the prosecution is supported by probable cause or arguable probable cause. See Betts v. Shearman, 751 F.3d 78, 83 (2d Cir. 2014). Probable cause or arguable probable cause "must be shown as to each crime charged in the underlying criminal action." Kee v. City of New York, 12 F.4th 150, 166 (2d Cir. 2021). As the District Court explained, in claiming that there was probable cause or arguable probable cause to bring the assault and attempted assault charges against Pal, Officer Smaldone acknowledged that the "charges were based on . . . statements that Pal struck [an EMT employee] and tried to bite Smaldone." Sp. App'x 33. But "Pal. . . introduced evidence contradicting these assertions." Id. Because there are disputed factual issues in the record that precluded summary judgment on the issue of whether there was even arguable probable cause to prosecute Pal on the assault and attempted assault charges, and for substantially the reasons stated by the District Court in its November 23, 2020 order, see Sp. App'x 31-35, we conclude that Officer Smaldone was not entitled to qualified immunity at the summary judgment stage on the malicious prosecution claim against him. We therefore affirm the District Court's denial of qualified immunity for Officer Smaldone as to that claim.
"Arguable probable cause exists if officers of reasonable competence could disagree on whether the probable cause test was met." Dufort v. City of New York, 874 F.3d 338, 354 (2d Cir. 2017) (quotation marks omitted).
On appeal, Officer Smaldone has abandoned any argument that Pal's malicious prosecution claim fails on the ground that the criminal proceedings against her did not terminate in her favor.
Finally, we also reject the Appellants' contention that they are entitled to qualified immunity on Pal's claim of excessive force. In considering whether the force used by police officers was reasonable, we pay "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396 (1989); see Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). The use of force "must be judged from the perspective of a reasonable officer on the scene." Graham, 490 U.S. at 396. But "[s]ummary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness." Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999). In this case, the parties dispute facts concerning the amount of force used and whether (or to what extent) Pal was resisting arrest. We therefore cannot say as a matter of law that it was "objectively reasonable" for the officers "to believe that [their] actions were lawful at the time of the [arrest]." Tenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (quotation marks omitted).
We have considered the Appellants' remaining arguments and conclude that they are without merit. For the foregoing reasons, the November 23, 2020 order of the District Court is AFFIRMED.
[*] The Clerk of Court is respectfully directed to amend the caption as set forth above.