The Volokh Conspiracy

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Volokh Conspiracy

Airport First and Fourth Amendment claim may go forward


So holds the New York intermediate appellate court in today's Brown v. Hoffman; the heart of the case is a dispute about what the plaintiff said and did, and it may well be that the defendant deputy sheriff is correct in his factual claims. But the case still struck me as an interesting illustration of how these sorts of claims—even in airports—are to be decided:

The undisputed proof in the record demonstrates that, on the day in question, plaintiff was lawfully at the airport to 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 U.S. 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,'" and, unless otherwise authorized, police do not have the inherent and general rights of a property owner. 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. 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. 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 arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order.

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" or "uses abusive or obscene language, or makes an obscene gesture" in a public space…. [The court then describes the factual claims by both sides, and concludes that] material issues of fact also persist as to whether or not defendant had arguable probable cause to arrest plaintiff for disorderly conduct….

[Defendant is also not entitled to] 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…. [P]laintiff's submissions [based on her account of the facts] 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….

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, … summary judgment was inappropriate with respect to this cause of action …. [A]s 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….

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.