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Second Circuit: Arrest for Not Leaving Sidewalk Entitled to Qualified Immunity

by Mark Wilson

The United States Court of Appeals for the Second Circuit reversed a lower court’s denial of qualified immunity to police for arresting a man for stopping on the sidewalk to speak with Occupy Wall Street protestors.

On September 17, 2013, protestors gathered in New York City’s Zuccotti Park to commemorate the second anniversary of the Occupy Wall Street movement. Police monitored the gathering and placed a barricade around the park perimeter to separate protestors from pedestrians walking on the sidewalk adjacent to the park.

Seventy-three-year-old attorney Stephen Kass was walking on the sidewalk when he noticed the protestors. He approached the barricade and engaged in a non-confrontational conversation with protestors. Kass did not impede pedestrian or vehicular traffic. Nevertheless, New York Police Department (“NYPD”) officer Karen Ernst ordered Kass to “keep walking.” Kass told Ernst he wanted to hear the protestors’ views, was not blocking traffic, and had a right to remain on the sidewalk.

Ernst again ordered Kass to move away from the barricade. When he refused, Ernst summoned Sergeant Michael Alfieri. Protestors began videotaping Kass’ interaction with police. Ernst and Alfieri ordered Kass several times to keep walking. Kass again refused, objecting that he was not blocking traffic, and he wanted to talk to the protestors.

Alfieri directed Kass to follow him and grabbed his elbow, attempting to guide him away from the barricade. Kass told Alfieri to take his hands off him as he pulled away. Ernst told Kass he could enter the park to continue his conversation with the protestors. When Kass continued to refuse, Alfieri grabbed his right arm and pulled him toward the middle of the sidewalk. “Get your hands off me, how dare you, get your hands off me,” Kass protested. A third officer grabbed Kass’s other arm, and the officers handcuffed him.

Kass was arrested for obstructing governmental administration and refusing to comply with a lawful order to disperse, but the charges were dismissed for failure to prosecute. Kass then brought federal suit against, among others, Ernst and Alfieri (“Defendants”) for false arrest and imprisonment.

Defendants moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), claiming that they were entitled to qualified immunity because they had probable cause to arrest Kass. The district court denied their motion, and Defendants filed an interlocutory appeal.

The Second Circuit reversed, holding that Defendants were entitled to qualified immunity. The Court reiterated the standard for qualified immunity: “an officer is entitled to qualified immunity unless ‘no officer of reasonable competence could have made the same choice in similar circumstances.’” That is, it protects “all but the plainly incompetent or those who knowingly violate the law.”

After analyzing the elements of both offenses for which Kass was arrested, the Court determined that Defendants “had arguable probable cause to arrest Kass for obstructing governmental administration, N. Y. Penal Law § 195.05, and refusing to comply with a lawful order to disperse, N.Y. Penal Law § 240.20(6).” Accordingly, they are entitled to qualified immunity, and the district court’s denial of the Defendant’s motion for judgment on the pleadings was reversed. See:Kass v. City of New York, 864 F.3d 200 (2d Cir. 2017). 


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Related legal case

Kass v. City of New York



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