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Second Circuit: No Qualified Immunity for Police Detaining and Frisking Man Based Solely on Unconfirmed Hunch

Kim Vasquez and his two young daughters visited a store in the Palisades Center Mall in Clarkstown, New York. Clarkstown Police Department officers were investigating the passing of counterfeit money at the store. Detectives Orlando Cruz and Brian Callanan were in the security office monitoring the store’s video feed. Detective Chris Maloney and Officers Victor Caraballo and Thomas LaTorre were waiting in a patrol car in the parking lot. Officer Brian Dunne was on routine mall patrol. Cruz recognized Vasquez from prior arrests and drug task force work. He radioed to Maloney “that he believed there might be a judicially issued warrant for [Vasquez’s] arrest.”

After leaving the store, as Vasquez was helping his daughters into his wife’s car, officers “surrounded” him, “demanded that [he] ‘freeze,’ put his arms in the air, turn around to face a pillar, and keep his hands on the pillar.” According to Vasquez, they frisked him, rubbing and touching his body, “including [his] private parts,” while his family watched “this humiliating experience.” He was detained until the officers said he could go. The officers’ version of the incident adds that he was detained about two minutes until the radio dispatcher confirmed that there were no outstanding warrants for his arrest, his wallet was removed from his pocket during the frisk search, and they could not remember who did what during the detention

Vasquez filed a pro se federal civil rights complaint alleging the officers violated his Fourth Amendment rights by stopping and frisking him without a warrant or probable cause. He initially was unable to name the officers and filed a John Doe complaint but amended it to include the officers’ names after discovery. The officers filed a motion for summary judgment based on qualified immunity, which the district court denied.

On interlocutory appeal, the Second Circuit noted that police wishing to stop and frisk a person must have a “reasonable suspicion” that person is involved in criminal activity or wanted for a crime. In this case, police had no such “reasonable suspicion” but were operating on what amounted to a hunch. “This was precisely the type of situation that the Supreme Court identified many years ago in Terry v. Ohio, 392 U.S. 1 (1968), as a paradigmatic violation of the Fourth Amendment,” the Court observed.

The officers noted that the police department had received a notice of an arrest warrant for Vasquez about seven months before the incident, but it was closed four months later. The Court stated that this did not help the officers’ case as none of them claimed to have even known about or remembered the warrant, much less had the mistaken belief that it was still active.

The Court explained that Terry and United States v. Hensley, 469 U.S. 221 (1985), clearly established that, to justify stopping a person, officers must either “believe he is about to commit a crime” or “have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony.” The officers in this case “did not satisfy even [that] low threshold” in that “they offered no specific and articulable facts—at all—supporting an inference Vasquez was (1) involved in or (2) wanted in connection with a crime.” Vasquez’s criminal history cannot justify the stop, and the officers who followed Cruz’s hunch should have known the stop was unjustified, the Court concluded.

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Related legal case

Vasquez v. Maloney



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