A unanimous three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, reversing a ruling by District Judge Shira A. Scheindlin, has granted summary judgment to the City of New York, Mayor Mike Bloomberg, and individual defendants from the law enforcement community, finding that the officers enjoyed qualified immunity from liability for false arrest and malicious prosecution, asserted by a gay man caught up in an alleged sting operation carried out by the NYPD against gay men patronizing stores selling sexually-oriented materials for the purpose of supporting attempts to close the stores as "public nuisances." However, the unofficially published November 18 opinion issued by a panel of Circuit Judges Ralph K. Winter, Joseph M. McLaughlin, and Jose A. Cabranes, upheld the denial of summary judgment on claims against the City of abuse of process, sexual orientation discrimination, and denial of the right of free association, the last two being constitutional claims.
The ruling on an interlocutory appeal in Pinter v. City of New York, 2011 Westlaw 5604689, stems from an arrest on October 10, 2008. Robert Pinter, a then-52-year-old gay man, had stopped in at Blue Door in Manhattan to purchase a video in the adult section of the store. A young man was staring at him, flirted, and initiated conversation, asking Pinter "What do you like to do?" Pinter responded that the man was "good looking" and said he liked oral sex. The young man responded in kind, suggested hesitancy about doing anything in the store, and suggested his car was parked nearby. Pinter walked to the exit, followed by the young man (an undercover police officer, identified in the opinion as UC 31107).
As they were leaving the store, UC 31107 said he would pay Pinter $50 for oral sex. Pinter made no verbal response, although he later testified that he immediately decided that any possibility of doing anything with the young man "was over." But he said nothing to the young man, who continued to follow him. After they exited the store, the man gestured in the direction of his car, which was also, coincidentally, the direction of Pinter's apartment. They walked in that direction, engaging in "flirtation," when suddenly two plainclothes officers rushed up and arrested Pinter, spiriting him away in a police van. An officer told Pinter he was being arrested for prostitution, to which he responded "You've got to be kidding me… Your officer approached me, butted his nose into my business, and created this whole incident."
A few days later, Pinter pleaded guilty to a reduced charge of disorderly conduct and was sentenced to conditional discharge, five counseling sessions, and a $120 fine. But as more of these arrests took place over the following weeks and first the gay press and then the mainstream media focused attention on what appeared to be a pattern of entrapment of middle-aged gay men who were clearly not prostitutes, the District Attorney's office dismissed some pending prosecutions, and Pinter filed a motion to vacate his conviction, which the District Attorney's office announced it would not oppose, although it stoutly maintained that there was "probable cause" for his arrest.
Pinter then filed suit against the City, city officials and the police officers, asserting claims of false arrest, malicious prosecution, malicious abuse of criminal process, sexual orientation discrimination in violation of Equal Protection, and violation of his right to freedom of association. Pinter alleged a municipal policy (necessary to hold the City liable) of "making probable cause lacking false arrests for the purpose of obtaining a data base of arrests which was to be utilized in independent nuisance abatement civil litigations instituted by the City of New York against certain targeted businesses, among them the Blue Door." Pinter is represented by attorneys James I. Meyerson and Jeffrey A. Rothman.
The City and the individual defendants moved for summary judgment on all claims, arguing that the police officers enjoyed qualified immunity and that the City's liability could not be premised on a single arrest. Judge Scheindlin denied the motion for summary judgment. Qualified immunity applies to an arrest when the police officer could have believed that he had probable cause to make the arrest (regardless of whether there was probable cause). In finding that qualified immunity did not apply in this case, Judge Scheindlin wrote:
"In sum, no competent officer could reasonably believe that it was probable that Pinter committed prostitution where the undercover knew that he (the officer): initiated the contact, steered the conversation toward sex, took steps toward the location where the sex act was to occur, raised the issue of cash-for-sex, faced silences as to whether Pinter meant to accept the cash, continued walking toward the specified location, initiated further conversation about sex, and knew that Pinter was 52 years old. And there was no impediment to prevent the undercover from quickly pursuing a simple inquiry to ascertain additional information about whether Pinter had accepted or declined a fee offer."
The defendants successfully appealed from this very common-sense ruling, persuading the Court of Appeals to disagree with Judge Scheinlin's "characterization of these events." However, they were only partially successful, since the court decided to keep alive Pinter's abuse of process and constitutional claims pending discovery to see whether there was an entrapment policy at work here for an ulterior motive – to attempt to close down adult stores that had restructured their layout and stock in order to stay open under the City's draconian anti-adult-uses zoning ordinance.
The court opined that the standard for reasonable belief in probable cause by a police officer was much more lenient than the trial judge's decision would suggest. The court stated that, while the undercover could have "been more explicit in ascertaining whether Pinter was truly relying on financial remuneration in return for allowing the undercover officer to perform oral sex on him," the "qualified immunity analysis is not an inquiry into best practices or a reconstruction of events viewed in hindsight."
The court focused on Pinter's failure to communicate explicitly to the undercover that he was not interested in money for sex, and continuing to walk and flirt with him, and concluded: "In view of the totality of the circumstances, even as seen in the light most favorable to Pinter, we hold that defendants acted reasonably–that is, not incompetently or in knowing violation of the law–in arresting Pinter for a violation of New York Penal Law section 230.00."
The court backed away from analyzing whether this was an entrapment case, since entrapment is a defense in a criminal prosecution. This is not a criminal prosecution, but rather an attempt to obtain tort damages against government officials for their conduct. Government officials who could reasonably believe that their conduct is lawful and not unconstitutional enjoy qualified immunity from liability for their actions. So the issue on this summary judgment motion was not whether they had probable cause to arrest Pinter, but rather whether a reasonable police officer in those circumstances could have believed that he had probable cause to do so.
However, it is still open to Pinter to show that the City was misusing the criminal process in order to collect data for a different purpose, and that this was not an isolated arrest but rather part of a policy to target gay men who were merely out shopping for legally distributed matter (non-obscene gay porn, for example) in order to have the data to proceed against the Blue Door as being a location that was harboring male prostitutes. So this case is not over yet, and the City still has some explaining to do.
[On December 2, Pinter's attorney, James I. Meyerson, filed a petition for rehearing and rehearing en banc, justly arguing that the 2nd Circuit panel had seriously erred by incorrectly resolving the key factual dispute relevant to the claims of false arrest and malicious prosecution – whether Pinter had in fact agreed to perform oral sex on the undercover police officer for compensation. Meyerson points out that Pinter sharply contests the officer's factual assertions about what happened in the store, and that were Pinter's account to be believed (which on a motion to dismiss the court must assume to be true), a jury could conclude that the officer was lying about what happened and that Pinter never agreed to engage in sex for compensation. That being the case, he argues, it was error for the panel to reverse the trial judge, who correctly concluded that the factual issue requires resolution at trial where credibility can be assessed. Meyerson also points out that the panel erred as well in dismissing the tort claims against the city, and applied an incorrect standard of "arguable probable cause," which he contends is inconsistent with the Supreme Court and 2nd Circuit precedent.]