Petition — Dominguez v. Beame

Court, U. K.

79-9150 BIEED

DEC 12 1979

| MIGHABL ROBAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

Petitioner,

ABRAHAM D. BEAME, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DEBORAH M. GREENBERG

MARGARET K. BROOKS

Legal Action Center of the

City of New York, Inc.

19 West 44 Street

New York, New York 10036

(212) 997-0110

Attorneys for Petitioner

TABLE OF CONTENTS

OPINIONS BELOW ..... .

JURISDICTION . 2.2. se ee eevee

QUESTIONS PRESENTED .........

STATUTORY PROVISIONS INVOLVED... .

STATEMENT OF THECASE..........

REASONS FOR GRANTING THE wRIT .

L

1 * ’

- 7 ae

1 7 EOF, Ay 2 1 n *

e 198 PL

The Decision Below Erroneously

Resolved an Issue Crucial to the

Future of Civil Rights Litigation

— When a Municipal Body May be

Held Liable Under Section 1983 for

a Policy That Is Responsible for

the — of Constitutional

r wa 52

e Bodies Should 5

Not Be Allowed to Assert a Good

Faith Def to Suits Under

Section 1983; If a Good Faith

Defense is Available, the Police

Department Is Not Entitled to Such

_@ Defense in This C. FF

The Decision Below . with :

This Court's Rulings Concerning the

Circumstances In Which Police Officers

are Entitled to a Good Faith Defense. .

CONCLUSION

Co fF 2S DO NY WD

„13

16

18

TABLE OF AUTHORITIES

CASES

"Bivens v. Six Unknown Named Agents, 1

456 F. 2d 1339 Qa Cir. 1972)(on remand) ---- 15

Butz v. Economou, 438 U.S. 478 6978s) s

5 Monell v. Department of Social Services,

436 U.S. 658 (978) 3 2, 9-14, 16

5 ; 9

Monroe v. pape, 365 U.S. 167 (1961)

Owen v. City of Independence, 589 F.2d 335

(8th Cir. 1978) cert. granted, 48 U.S.L.W. 3217

(00/1/79) (No. 7 ß 13, 16

people v. Berek, 32 N. V. 2d 567 4973) hee 4

Piersen v. Ray, 386 U.S. 547 (1967) 1835, 16

| Scheuer v. Rhodes, 416 U.S. 232 (1974) fA Da EB

‘Wood v. Strickland, 4 420 U.S. 308 bers)

Sed NAL AND STATUTORY PROVISIONS

; wa Rights A Act of un, 42 0.8.0. 063 «+>: 3,

3 5 5 7, 8,

10, 17, . 17

ö NY. Penal Law w $240.2065)

= iil-

United States Constitution, Fourth ene

„ e eee

OTHER AUTHORITIES

Newman, "Suing the Lawbreakers: Proposals

to Strengthen the Section 1983 Damage

Remedy for Law Enforcers' Misconduct",

87 Yale L. J. 447 (197 0˙¹ù/)

Note, Municipal Liability Under Section 1983:

The Meaning of Policy or Custom'", 79

Colum. L. Rev. 304 (1979) eta ess

Schnapper, "Civil Rights Litigation after Monell",

79 Colum. L. Rev. 213 (1979) -+-----

7

12

13

11

5

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79—

ANA MARIA DOMINGUEZ

Petitioner,

against

ABRAHAM D. BEAME, individually and in his official

capacity as Mayor of the City of New York, and his

successors in office; MICHAEL J. CODD, individually

and in his official capacity as Commissioner of the

Police Department of the City of New York, and his

successors in office; SDNEY. BAUMGARTEN, individu-

ally and in his official capacity as Assistant to the

Mayor of the City of New York and as Chairman of the

Midtown Law Enforcement Coordinating Committee,

and his successors in office; THE POLICE DEPART-

MENT OF THE CITY OF NEW YORK; SYLVESTER

BONARTI, individually and in his official capacity as a

police officer of the City of New York; FRANCIS

COLLETTI, individually and in his offical capacity as a

police officer of the City of New York, .

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ae

OPINIONS BELOW

The opinion of the Court of Appeals for the Second

Circuit is reported at 603 F.2d 337 and is printed in the

Appendix at pp. Al-A22. The opinion of the district

court is not reported and is printed in the Apper:dix at

pp. A23-A35.

JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit was entered on June 29, 1979.

Petition for rehearing was denied on September 13, 1979.

The jurisdiction of this Court rests on 28 U.S.C.

812540).

QUESTIONS PRESENTED

1. Is a Police Department policy which directed

officers to arrest persons for conduct which does not

amount to probable cause an official policy responsible

for the deprivation of constitutional rights under Monell

v. Department of Social Services for which the Police

Department may be sued?

2. May a Police Department invoke a good faith

defense in an action brought under 42 U.S.C. §1983; and

if so, is a Police Department entitled to such a defense

438

where it acted contrary to wellksettled law and the

opinion of its own legal counsel?

3. Are police officers who make an illegal arrest,

despite well-settled law and the opinion of the Police

Department's own legal counsel that such an arrest

would violate the Constitution, entitled to a good faith

defense in an action brought under 42 U.S.C. §1983?

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42:

§1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding

for redress. |

New York Penal Law §240.20(5)

A person is guilty of disorderly conduct when,

with intent to cause public inconvenience, annoy-

ance, or alarm, or recklessly creating a risk

thereof: as

5. He obstructs vehicular or pedestrian

traffic. *ee

STATEMENT OF THE CASE

Until 1973, women who were suspected by the New

York City Police Department of being engaged in

prostitution-related activities, but against whom an

arrest for prostitution could not be sustained, were

arrested for “loitering.” In 1973, when the New York

Court of Appeals struck down New York's loitering

statute, the Police Department adopted the policy and

practice of charging women they suspected of being

prostitutes with violations of New York's "disorderly

eonduet" statute, Penal Law §240.20(5).

The policy, as described by the district court and

acknowledged by defendants, equated "engaging un-

known males in conversation" with blocking pedestrian

or vehicular traffic and intending to cause public

inconvenience, annoyance or alarm (A. 26-27; Pl. Ex.

A). Pursuant to this policy, police officers were

directed to arrest people on charges of disorderly

conduct after observing one or more instances of their

a People M: Berck, 32 N.Y.2d 567 (1973).

285

approaching males to converse. (Def. s Brief to the

Court of Appeals at 25; Tr. at 187-88). According to

the police, "if someone were to approach someone and

engage them in a fifteen second conversation," that

person could be arrested for disorderly tonduct. (Tr. at

188). Arrests made pursuant to this policy came to be

known as "dis-con-pros" arrests. Women arrested for

"dis-con-pros" were routinely detained overnight and

released the following morning when the district at-

torney dismissed the charges as legally insufficient.2/

(A. 5; A. 31).

The particulars of the "dis-con-pros" policy were

discussed widely inside and outside the Department.

(Tr. at 184-5). Each year tens of thousands of "dis-con-

pros" arrests were made in midtown Manhattan alone.

(Tr. at 188). The Police Department and the: District

Attorney's office thus filled out and reviewed many

thousands of forms each year, charging women observed

"engaging unknown males in conversation" with vio-

lating the disorderly conduct statute and dismissing the

charges for legal insufficiency.

2/ wp." refers to the transcript of the trial held by the

district court.

3/ This process of dismissing "dis-con-pros" arrests was

called "343-ing," the number referring to the form

_ which the district attorney's office used to formalize its

decision.

!!!!!! pp EE EE ae

one „12 de ek rn ae

5 y ; >

sc) Sones

R ; :

Daeg

“ag

On November 8, 1975 Officers Sylvester Bonarti and

Francis Colletti arrested petitioner and detained her

overnight pursuant to this policy. By written directive

om October 24, 1977, 20th Precinct Commanding Officer

Edward McCabe had ordered Bonarti to conduct a

"»rostitution roundup" on the night in question. (Def.'s

Ex. A.) Both Captain MeCabe and Officer Bonarti

testified at trial that they expected that the women

rounded up would be charged with violating Penal Law

§240.20(5). (Tr. at 100, 119). The directive itself

contemplated that the charges would be "343'd" (i.e.,

dismissed by the District Attorney). (Def.'s Ex. A.)

Prior to November 8, the "prostitution roundup"

memorandum was sent as a matter of course to

Assistant Chief Inspector Charles McCarthy, a high-

ranking police official whose command included ‘half of

Manhattan. In response to the roundup memorandum, a

Police Department legal advisor within Chief Me-

Carthy's command submitted to the Chief a written

formal legal opinion that the planned police activity —

arresting women observed engaging in solicitation and

lodging against them disorderly conduct charges which

‘weld not and could not be sustained — was unlawful

and would nexpese police officers and their supervisors

to liability for which there is no good faith’ defense."

(Def.'s Ex. B.). Chief McCarthy nevertheless directed

7.

that the roundup proceed as scheduled. It did, and

petitioner was consequently arrested, charged with

"engagling) various unknown males in conversation

thereby causing an inconvenience to vehicle and pedes-

trian traffic," and detained until the charge was "343'd"

by the District Attorney.

Petitioner subsequently brought suit. After trial,

the district court concluded that her arrest was indeed

unlawful since fifty years of "well settled" state law

and the Practice Commentary to the statute established

beyond doubt that the activity which petitioner was

reportedly observed engaging in "was not within the

scope of activities the legislature had sought to prohibit

in its enactment" of Penal Law §240.20(5), and "could

never rise to the level of disorderly conduct." (A. 28-

29)./ The district court also concluded, however, that

the arresting officers, Police Commissioner Codd, and

the Department as an entity had satisfactorily estab-

lished the defense of "good faith," and were therefore

immune from suit for damages. Accordingly, . the

4/ Practice Commentaries, which are written by highly

regarded members of the New York State Bar who, often

assisted in the drafting of the law, are compiled in New

York's official statute books and often relied upon by

judges and attorneys.

ror

oo he

-8-

complaint was dismissed.

On appeal the United States Court of Appeals for

the Second Circuit concurred in the district court's

sudgment that the arrest proceeded without probable

eause and therefore violated petitioner's constitutional

rights. A majority of the panel agreed that the

arresting officers were entitled to good faith immunity.

As to the Department itself and Commissioner Codd,

the Court of Appeals ruled that "there was no depart-

mental policy . . . [or] custom to arrest suspected

prostitutes under the ‘disorderly conduct' statute in the

absence of probable cause" and thus found it unneces-

sary to explore whether a good faith defense was

available and, if so, whether it had been established.

The dismissal was accordingly af firmed. / ö Rehearing

and request for rehearing en banc were denied.

7 The district court failed to reach petitioner's claim

that her arrest was based on presumed status in

violation of the Eighth Amendment, and rejected her

claim that her arrest and detention constituted sum-

mary punishment, in violation of the Due Process

Clause. (A. at 30-32). Petitioner's claims against

Mayor Abraham Beame and Mayoral Assistant Sidney

Baumgarten were dismissed.

87 The Court of Appeals entertained petitioner's

"status" and “summary punishment" arguments but ruled

adversely to her on both.

493

REASONS FOR GRANTING THE WRIT

I

The Decision Below Erroneously Resolved an

Issue Crucial to the Future of Civil Rights

Litigation — When a Municipal Body May be Held

Liable Under Section 1983 for a Policy That Is

Responsible for the Deprivation of Constitutional

Rights.

In the instant case the liability of the Police

Department and Police Commissioner Codd hinges on a

determination of whether the unconstitutional arrest of

petitioner was made pursuant to an official policy or

custom for which the Department and its Commissioner

could be held responsible under §1983 and Monell v.

Department of Social Services, 436 U.S. 658 (1978).

This Court has not yet enunciated the criteria for

identifying such an official policy or custom, and should

do so now.

This standard is crucial to the future of civil rights

litigation under Monell and $1983. See Schnapper, "Civil

Rights Litigation After Monell," 79 Colum. L. Rev. 213,

215 (1979). Section 1983 must be broadly construed in

order to safeguard its extremely important function of

providing protection against official violation of consti-

tutional rights. Monell, 436 U.S. at 700-701. (1978);

Monroe v. Pape, 365 U.S. 167, 172 (1961). Furthermore,

1 ~

delay in outlining the contours of Monell, when coupled

with the large number ot 581983 cases in the federal

courts, could lead to confusion, lengthier litigation, and

erroneous results. 7

The importance of this Court's providing prompt

guidance is underschred by the misapplication of Monell

in the decision below. The Court of Appeals effectively

ruled that Monell allows suit against a local governmen-

tal body only where that body maintains a policy which

in haee verba requires the violation of constitutional

rights. The district court had found — and indeed the

defendants conceded throughout this litigation - that

petitioner was arrested pursuant to a Police Depart-

ment policy of arresting suspected prostitutes observed

engaging unknown males in conversation and charging

them with disorderly conduct. (A. 34; Def.'s Proposed

Findings of Fact 1 22; Def.'s Proposed Conclusions of

Law 11 31 and 33; Def.'s Post Trial Memorandum at 9;

Def.'s Brief to the Court of Appeals at 25; Tr. at

187-88). Thus, for example, in their proposed conclu-

sions of law defendants acknowledged that "defendants

Bonarti and Colletti acted . . . pursuant to Police

Department policy in arresting plaintiff" and that

"defendant Codd... maintainfed] a policy of arresting

persons who engaged in such conduct [soliciting for

prostitution] under Penal Law §240.20(5)." The district

|

court further found that as a matter of wellsettled

state law the conduct for which petitioner and tens of

thousands of others were arrested pursuant to this

policy did not constitute disorderly conduct. (A. 28).

The Court of Appeals nevertheless concluded that

the Police Department could not be held liable under

Monell for petitioner's unconstitutional arrest because

the Department's policy did not state that arrests of

suspected prostitutes were to be made without probable

cause. (A. 13). By thus holding that Monell only

authorizes suit against a municipal body where that

body in some fashion acknowledges the illegality of its

policy, the Court of Appeals has established a standard

for municipal liability that could rarely if ever be met

even in the most flagrant circumstances. Limiting

municipal liability under §1983 to instances where a

policy is acknowledged to be unconstitutional would be

contrary to the legislative history of the 1871 Civil

Rights Act and would render §1983 and Monell meaning-

less insofar as actions against governmental entities are

concerned. Schnapper, 79 Colum. L. Rev. at 234; Note,

"Municipal Liability Under Section 1983: The Meaning

of 'Policy or Custom™, 79 Colum. L. Rev. 304, 316

(1979).

While a policy or custom which expressly called upon

police officers to "arrest in the absence of probable

-]2-

cause" would of course run afoul of the Fourth

Amendment, that cannot be the only circumstance in

which a Police Department could be held liable under

81983. Monell must also require that a department is

liable for arrests made pursuant to a policy or custom

of arresting persons for specified conduct where the

conduct specified can not provide probable cause to

believe that an offense has been committed. / Here

there was just such a poliey. Petitioner was arrested

pursuant to a policy which directed police officers to

arrest women they observed conversing on the street

with male strangers and to charge them wtih disorderly

conduct. Since such activity does not constitute a

violation of Penal Law 240.20(5) as that statute (and its

predecessor) has been consistently construed by New

York courts for fifty years, the policy in effect dictated

the making of unlawful arrests, including the illegal

arrest of petitioner. That is the very type of policy

which must be actionable under Monell if §1983 is to

retain its vitality.

*

7 That the Police Department may have believed that

such behavior provided probable cause for arrest is

relevant only to the Department's good faith, if such a

defense is even available. See infra at 13-16. It cannot

obseure the fact that the Department's policy caused

petitioner's unconstitutional arrest.

«19 -

II

Local Governmental Bodies Should Not Be

Allowed to Assert a Good Faith Defense to Suits

Under Section 1983; Even If a Good Faith

Defense is Available, the Police Department Is

Not Entitled to Such a Defense in This Case.

The issue in this case, as it was decided by the

district court and as it was briefed and argued by the

parties to the Court of Appeals, involved the issue of

whether qualified immunity will be made available to

local governmental bodies sued under §1983. That issue,

left open by Monell and now before this Court in Owen

v. City of Independence, Missouri, 589 F.2d 335 (8th

Cir. 1978), cert. granted, 48 U.S.L.W. 3217 (10/1/79) (No.

78-1779), is of course critically important to the future

of civil rights litigation, bearing as it does on whether

victims of unlawful governmental conduct will be

compensated adequately and on whether official mis-

conduct will be deterred effectively. See generally

Newman, "Suing the Lawbreakers: Proposals to

Strengthen the Section 1983 Damage Remedy for Law

Enforcers' Misconduct," 87 Yale L. J. 447, 455-62 (1978).

The Court of Appeals purported to avoid deciding

this admittedly thorny issue of governmental immunity,

but in fact decided it in a way which creates virtually

insurmountable problems of proof for civil rights. plain-

tiffs. By limiting municipal liability to situations in

an

which the policy of the municipal body acknowledged its

own unlawfulness, the Court of Appeals conferred a

greater immunity upon local governmental bodies than

is available to local officials under Wood v. Strickland,

420 U.S. 308 (1975). See Point I, supra. Such a standard

is clearly inconsistent with Monell and the purposes of

§1983. Monell, 462 U.S. at 700-701. See also Scheuer v.

Rhodes, 416 U.S. 232, 248 (1974).

Petitioner maintains that the Police Department as

an entity should not be entitled to assert a defense of

good faith. ‘The language and history of $1983 compel

the conclusion that Congress did not intend to confer

such a defense on municipalities. Furthermore, the

governmental interests which led this Court to fashion a

good faith defense for public officials— 8/ do not apply

when the municipal body is the defendant. There is

certainly no danger of unjustly obtaining damages from

an official who is required by law to exercise discretion;

nor is there any reason to believe that the possibility of

municipal liability would deter an official from per-

forming his required duties. Moreover, if municipalities

are permitted to assert a good faith defense, Congress

primary purposes in enacting 81983 — to provide an

effective remedy for rights which had prior thereto

8/ see Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).

-15 -

gone unredressed, and to deter unconstitutional conduct

— would be gravely undermined.

Even if a good faith defense similar to the qualified

immunity now available to local officials were extended

to cover local governmental bodies, the Police Depart-

ment in the instant case would not be entitled to such a

defense. In order to be shielded with qualified

immunity, the Department must show that it acted in

both objective and subjective good faith. Wood v.

Strickland, 420 U.S. at 321; Bivens v. Six Unknown

Named Agents, 456 F.2d 1339, 1348 (2d Cir. 1972) ( on

remand). See also Pierson v. Ray, 386 U.S. 547, 557

(1967). The Police Department could hardly claim that

it believed its arrest of petitioner pursuant to its "dis-

con-pros" policy was legal when its own legal counsel

advised it beforehand that the "prostitution round-up"

pursuant to which petitioner was arrested was unconsti-

tutional and subjected the "police officers and their

supervisors to liability for which there is no good faith

defense." (Def. s Ex. B). Furthermore, any belief on

the part of the Police Department that petitioner's or

any other "dis-con-pros" arrest was valid could not have

been reasonable as a matter of law in view of well-

settled state law that the type of conduct for which

petitioner was arrested does not amount. to.a violation

: of Penal Law 240.20(5). (A. 28).

28

Because the Court of Appeals f ail ed to reach these

important issues concerning the type of immunity, if

any, available to the Police Department in a §1983 suit,

petitioner respectfully prays that this case be vacated

and remanded in light of whatever decision this Court

renders in Owen. |

III

The Decision Below Conflicts with This Court's

Rulings Concerning the Circumstances In Which

Police Officers are Entitled to a Good Faith

Defense.

This Court has often emphasized that officials must

not be granted immunity indiscriminately lest §1983 "be

drained of meaning" and its effectiveness as a remedy

for official deprivations of constitutional rights be

destroyed. Monell v. Department of Social Services,

436 U.S. 658, 701 (1978); Butz v. Economou, 438 U.S. 478

(1978); Scheuer v. Rhodes, 416 U.S. 232, 248 (1974). The

decision of the Court below to confer qualified immuni-

ty on the arresting officers is clearly in conflict with

the standard established by this Court for such a

defense“ and presents exactly the grave dangers to the

27 See Wood v. Strickland, 420 U.S. 308 (1975); Pierson

v. Ray, 386 U.S. 547 (1967).

=e

continued vitality of $1983 which have so concerned this

Court.

The Court of Appeals by a two to one vote found

that the arresting officers satisfied the objective

requirement of the good faith standard despite the

district court's unchallenged finding that a half-century

of "well-settled" state law and the Practice Commen-

tary on the very face of the statute clearly established

that "the type of conduct engaged in by plaintiff was

not within the scope of activities" prohibited by Penal

Law 240.20(5). (A. 28). Furthermore, even though

petitioner's arrest occurred after Police Department

legal counsel issued an opinion that the arrest would be

illegal and the arresting officers would not be entitled

to a good faith defense, a majority of the Court of

Appeals held that the officers had acted in subjective

good faith. If defendants are entitled to a good faith

defense even in these circumstances, it is indeed

doubtful that persons whose rights are violated by the

unconstitutional actions of police officers can ever

obtain redress under §1983.

„2 ORE A ee ce

PRs Rs

RS : „ ;

«18 =

CONCLUSION

WHEREFORE, a writ of certiorari should issue to

review the judgment and opinion of the Court of

Appeals for the Second Circuit.

Respectfully submitted,

DEBORAH M. GREENBERG

MARGARET K. BROOKS

PATRICK R. COWLISHAW

Legal Action Center

19 West 44 Street

New York, New York 10036

Attorneys for Petitioner*

* Paul N. Samuels, a staff member of the Legal

Action Center who has passed the New York State bar

examination and is awaiting admission to the bar,

assisted in the preparation of this petition.

ad

APPENDIX

8 Mos

3 ppt n

A1

>

| UNITED STATES COURT OF APPEALS

ron THE SECOND CIRCUIT

No. Abs Teck: 1978.

(Argued December 13,1978 Deeided June 28, 1979.)

Docket No. 78-7353

eS —*.

ANA MARIA DOMINGUEZ, |

-o... Plaintiff-Appellant,

Be ie ee Sa ee

ABRAHAM D. BEAME, individually and in his official

capacity as Mayor of the City of New York, and his

successors in office; MICHAEL J. CODD, individually

and in his official capacity as Commissioner of the

Follee Department of the City of New York, and his

cessors in offices SIDNEY BAUMGARTEN, individ-

2

oF

“ually an@ in his official capacity es Assistant to the

Mayor of the City of New York and as Chairman of the

Midtown, Law ‘Enforcement Coordinating Committee,

and his successors in offices THE POLICE DEPART-

‘MENT OF THE cry. ‘OF NEW YORK; SYLVESTER

‘BONARTI, individually and in his official capacity as a

police officer of the City of New York; FRANCIS

COLLETTI, individually and in 3 capacity as

Pp mcs

esata pc e

A-2

Opinion of the Court of Appeals for the Second Circuit

Before:

TIMBERS and MESKILL, Circuit Judges, and

DOOLING, District Judge.*

Appeal from a judgment entered in the United States

District Court for the Southern District of New York,

Charles M. Metzner, Judge, dismissing an action

brought under 42 U.S.C. § 1983 and the Fourteenth

Amendment against the Police Department of the City

of New York and various New York City officials and

employees.

Affirmed.

HARLON L. DALTON, Legal Action Center of

the City of New York, Inc. (Deborah M.

Greenberg, Legal Action Center of the

City of New York, Inc., New York, New

York, of counsel), for Plaintiff-Appellant.

L. KEVIN SHERIDAN, Assistant Corporation

Counsel, City of New York (Allen G.

Schwartz, Corporation Counsel, Judith A.

Levitt, Assistant Corporation Counsel,

City of New York, of counsel), for Nef en-

dants-Appellees.

* Hon. John F. Dooling, Jr., United States District

Judge for the Eastern District of New York, sitting by

designation.

A-3

Opinion of the Court of Appeals for the Second Circuit

MESKILL, Circuit Judge:

We are asked to reverse a judgment entered in the

United States District Court for the Southern District

of New York, Charles M. Metzner, Judge, dismissing an

action brought under 42 U.S.C. § 1983 and the Four-

teenth Amendment against the Police Department of

the City of New York as well as various New York City

officials and employees. The substance of the com-

plaint was that appellant hed been arrested for "status"

rather than conduct, that she had been arrested without

probable cause, and that she had been subjected to what

she calls "summary punishment," that is, that the police

had arrested her knowing that she wouid never be

prosecuted. We affirm the judgment of the district

court, although for reasons somewhat different from

those relied on by the district judge.

Until 1973, women who were suspected by the New

York City police of being engaged in prostitution-

related activities, but against whom an arrest for

prostitution could not be sustained, were arrested for

"loitering." The statute that defined this offense read

as follows:

A person is guilty of loitering when he:

6. Loiters, remains or wanders in or about a

place without apparent reason and under circum-

stances which justify suspicion that he may be

engaged or about to engage in crime, and, upon

A-4

Opinion of the Court of Appeals for the Second Circuit

inquiry by a peace officer, refuses to identify

himself or fails to give a reasonably credible

account of his conduct and purposes

New York Penal Law § 240.35(6). The New York Court

of Appeals declared this statute unconstitutional in

People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300

N.E.2d 4ll, cert. denied, 414 U.S. 1093 (1973). See also

United States ex rel. Newsome v. Malcolm, 492 F.2d

1166 (2d Cir. 1974), aff'd, 420 U.S. 283 (1975). After the

Berek decision, the New York City police began the

practice of arresting women they suspected of soliciting

for purposes of prostitution for violations of New York's

"disorderly conduct" statute, which reads in relevant

part as follows:

A person is guilty of disorderly conduct when,

with intent to cause public inconvenience, annoy-

ance or alarm, or recklessly creating a risk

thereof:

5. He obstructs vehicular or pedestrian traffic.

New York Penal Law 8 240.20(5). . This practice

apparently ceased in 1976, when the New York legisla-

ture enacted a statute entitled: "Loitering for the

purpose of engaging in a prostitution offense." New

York Penal Law § 240.37. This statute became effec-

tive on July ll, 1976, the day before the opening of the

Democratic National Convention in New York City, and

has been held constitutional by the New York Court of

A-5

Opinion of the Court of Appeals for the Second Circuit

Appeals. People v. Smith, 44 N.Y.2d 613, 407 N.Y.S.2d

462, 378 N.E.2d 1032 (1978). Because the arrest in this

case took place in November of 1975, it is the

"disorderly conduct" statute with which we are concern-

ed today.

Arrests of suspected prostitutes on charges of "dis-

orderly conduct" came to be known as "dis-con-pros"

arrests. From the record as it stands, „

virtually all of the suspected prostitutes who were

arrested for "disorderly conduct" were released the next

it appears that

morning as a result of the district attorney's decision

not to prosecute. The only exceptions to this practice

appear to have occurred when an additional charge was

lodged against the arrestee or when an outstanding

warrant for the arrestee was discovered. This process

of dismissing "dis-con-pros" arrests was known as "343-

ing," the number referring to the form used by the

district attorney's office to formalize the decision. The

record also shows that the supervising officers and

certain specific police officers in the 20th precinct, the

precinct involved in the case, knew and understood that

¥ We decline to reverse the evidentiary rulings

made by the district court regarding the admissibility of

certain documents. Our decision today rests upon our

reading of the documents that were admitted into

evidence and our review of the transcripts and papers

submitted to the court.

A-6

Opinion of the Court of Appeals for the Second Circuit

most if not all of the "dis-con-pros" arrests effected in

the 20th precinct would be "343-ed" by the district

attorney.

As to the specific arrest at the center of this appeal,

the district court made the following findings of fact,

which we cannot characterize as clearly erroneous.

Fed. R. Civ. P. 52(a). New York City police officers

Sylvestri Bonarti and Francis Colletti were assigned to

the midnight to 8:00 a.m. shift on November 8, 1975.

While patrolling along Broadway in Manhattan they

were flagged down by a gentleman who complained to

them about being “hassled" by a woman as he walked

down the street. He pointed to the appellant. The

officers pulled over to the side of the street so that

they could make their own observations of what was

taking place. During the next few minutes, the

appellant twice stopped male pedestrians and engaged

them in brief conversations. Each of the men eventual-

ly walked away. She also spoke to someone in a car

parked near the corner of Broadway and 84th Street.

At that point, Officer Bonarti got out of the patrol car

and placed the appellant under arrest. She was charged

with "disorderly conduct." The arrest form filled out by

the officers indicates that appellant was arrested

because she "engaged various unknown males in conver-

sation thereby causing an inconvenience to vehicle and

A-7

Opinion of the Court of Appeals for the Second Circuit

pedestrian traffic." Although the final typed version of

the arrest form indicates that appellant was ul n-

employed," the earlier handwritten version lists her

occupation as "street walker." While appellant was

being detained at the station house, an outstanding

warrant for her arrest was discovered. The precise

nature of the warrant, apparently dated June 9, 1975, is

unclear from the record. The next morning, apparently

without there having been any discussion with the

arresting officers regarding the sufficiency of the

evidence to support the arrest or the conviciton of

appellant for "disorderly conduct," her arrest was "343-

ed."

On March 6, 1976, a complaint was filed in the

Southern District by the appellant individually "and on

behalf of all others similarly situated." The named

defendants were the Police Department of New York

City, the Mayor and Assistant Mayor, the Commissioner

of the Police Department, and the two arresting

officers. The defendants other than the Police Depart-

ment were sued both individually and in their official

capacities. The substance of the complaint was that

the appellant had been arrested not for conduct but for

"status," that she had been arrested without probable

cause, and that she had been subjected to "summary

_ punishment" in violation of due process of law guaran-

A-8

Opinion of the Court of Appeals for the Second Circuit

tees. On November 21, 1977, the district judge denied

class certification, a decision not challenged on this

appeal. The district court issued its decision on the

merits on June 21, 1978. It is the appeal from this

decision that we consider today.

The district court held that appellant had been

arrested without probable cause, basing that holding on

judicial interpretations of the predecessor to the then

effective "disorderly conduct" statute, § 722 of the New

York Penal Law of 1909. See, e.g., People v. Nixon, 248

N.Y. 182, 161 N.E. 463 (1928); People v. Carcel, 3 N.Y.2d

327, 165 N.Y.S.2d 113, 144 N.E.2d 81 (1957). See also

Practice Commentary to § 240.20 (McKinney 1967).

Thus, the district court held, the appellant's civil rights

were violated insofar as she was arrested without

probable cause. However, the district court determined

that appellant was not entitled to the relief requested.

The court dismissed the complaint as to the Mayor and

the Assistant to the Mayor because appellant "failed to

link [them]. to [her] arrest ...." The appellant

expressly declines to contest this dismissal on appeal.

As to the arresting officers, the court held that, despite

the fact that they had violated appellant's rights, they

had satisfactorily established a good faith defense,

citing Pierson v. Ray, 386 U.S. 547 (1967), and Bivens v.

Six Unknown Named Agents of the Federal Bureau of

—_

A-9

Opinion of the Court of Appeals for the Second Circuit

Narcotics, 456 F.2d 1339 (2d Cir. 1972) (on remand).

This portion of the complaint was dismissed as to them.

As to the Police Department and the Police Commis-

sioner, the district court held that, assuming that these

two defendants could be held responsible for the

unlawful arrest of the appellant, they too were entitled

to a "good faith defense" and that they had satisfied the

requirements of that defense. Thus, this portion of the

complaint was dismissed as to them as well. With

regard to the claim that the defendants should be held

responsible for subjecting appellant to "summary pun-

ishment" in violation of the due process clause, the

district court reasoned:

It would seem that a policy refusal by a district

attorney not to prosecute persons arrested for

disorderly conduct does not rise to the level of

summary punishment of those nevertheless ar-

rested by the police. First, it is the duty of

police officials to carry out their enforcement

duties. If the district attorney refuses to follow

through with prosecution, that is his responsibil-

ity, for which he may be held answerable in other

forums. Second, district attorneys in other

counties within the city were prosecuting these

cases arid it would create an anomolous situation

to have a single police department enforcing the

same law in different ways in different portions

of the city. |

Accordingly, the district court declined to grant to the

appellant the requested declaratory, injunctive and

monetary forms of relief and dismissed the action in its

entirety. |

A-10

Opinion of the Court of Appeals for the Second Circuit

DISCUSSION

Section 1983 of Title 42 of the United States Code2/

provides as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding

for redress.

In Monell v. Department of Social Services of the City

of New York, 436 U.S. 658 (1978), The Supreme Court

held that this statute was intended to cover "legal as

well as natural persons," so it is clear that all of the

named defendants can be properly sued under § 1983 for

violations of civil rights. The question before us now,

however, is not whether these defendants have been

properly sued, but whether they may properly be held

liable for the unlawful arrest of the appellant. We

2

2/ m light of Turpin v. Mailet, 591 F.2d 426 (2d Cir.

1979) (on remand), we need not consider appellant's

complaint insofar as it attempts to state a cause of

action directly under the Fourteenth Amendment.

3/ The appellees have not persuaded us that the

district court's conclusion in this regard was error.

Accordingly, we base our decision today on the assump-

tion that appellant was arrested without probable casue.

A-ll

Opinion of the Court of Appeals for the Second Circuit

hold that they may not be.

The Supreme Court explained in Monell that:

Local governing bodies. . can be sued directly

under § 1983 for monetary, declaratory, or in-

junctive relief where, as here, the action that is

alleged to be unconstitutional implements or

executes a policy statement, ordinance, regula-

tion, or decision officially adopted and promul-

gated by that body's officers. Moreover,

although the touchstone of the §1983 action

against a government body is an allegation that

official policy is responsible for a deprivation of

rights protected by the Constitution, local gov-

ernments, like every other § 1983 "person," by

the very terms of the statute, may be sued for

constitutional deprivations visited pursuant to

governmental "custom" even though such a

custom has not received formal approval through

the body's official decisionmaking channels.

436 U.S. at 690-91 (footnote omitted) The Court

cautioned, however, that "Congress did not intend

municipalities to be held liable unless action pursuant to

official municipal policy of some nature caused a

constitutional tort." 436 U.S. at 691.(emphasis added).

Accordingly, a municipality may not be held liable

under § 1983 on a respondeat superior theory.

[A] local government may not be sued under

§ 1983 for an injury inflicted solely by its

employees or agents. instead, it is when execu-

tion of a government's policy or custom, whether

made by its lawmakers or by those whose edicts

or acts may fairly be said to represent offical

policy, inflicts the injury that the governemnt as

an entity is responsible under § 1983.

A-12

Opinion of the Court of Appeals for the Second Circuit

436 U.S. at 694. In other words, in order for a

governmental entity to be liable "for its own viola-

tions," 436 U.S. at 683, the plaintiff in a § 1983 action

bears the burden of showing first that the governmental

entity maintained or practiced an unconstitutional or

unlawful "policy" or "custom," see also Lake Country

Estates, Inc. v. Tahoe Regional Planning Agency, -

U.S. ; n.29, 99 S.Ct. 1171, 1179 n.29 (1979), and

second that that policy or custom "caused" or was the

"moving force" behind the violation, see also Rizzo v.

Goode, 423 U.S. 362, 370-71, 375, 377 (1976).

Using this analysis, we think it is quite plain that the

Police Department should not be held liable for the

violations of the appellant's rights that were either

alleged or demonstrated. As found by the district

court, "[t]he evidence in this case is clear that although

there was a policy to arrest women suspected of being

prostitutes on the charge of disorderly conduct, the

policy was to arrest only those women actually observed

engaging in activity which the police in good faith

believed constituted an offense." This disposes of the

appellant's argument that she was arrested for her

"status;" the record shows that she was arrested for her

conduct. Compare Powell v. Texas, 392 U.S. 514 (1968);

Robinson v. California, 370 U.S. 660 (1962). This also

disposes of appellant's claim that the Department

A-13

Opinion of the Court of Appeals for the Second Circuit

should be held liable for the fact that she was arrested

without probable cause. There was no departmental

policy, and there was no showing of a departmental

custom, to arrest suspected prostitutes under the

"disorderly conduct" statute in the absence of probable

cause. The fact that the police officers actually did

arrest the appellant without probable cause is a matter

to be considered in connection with the officers'

individual liability for that arrest, not in connection

with the Department's liability. As to the "summary

punishment" aspect of the appellant's complaint, we

note initially that her detention was not typical of what

she alleges was the practice being engaged in. An

outstanding warrant for her arrest was discovered while

she was in custody. Thus, it cannot be said that her

detention was based solely on the "dis-con-pros" arrest

to which she had been subjected. Moreover, we join the

district court in hesitating to hold the Department

liable for policy decisions made by a separate_unit of

the city's governmental structure — the district attor-

ney's office. The Police Department is responsible for

arresting persons who appear to be violating the law, as

long as there is probable cause to believe that they are

doing so. It would not only be unfair to hold the police

department responsible for the failure of the district

attorney to prosecute, it would also create the oddest

A-14

Opinion of the Court of Appeals for the Second Circuit

of situations — police officers would be required to

arrest persons for "disorderly conduct" in some areas of

the city but not in others, depending upon the practices

of the individual district attorneys. Whatever "sum-

mary punishment" appellant was subjected to here, see

Menard v. Mitchell, 430 F.2d 486, 494 (D.C. Cir. 1970),

the responsibility for it is not fairly attributable to the

Police Department.

As to defendant Codd, then the Commissioner of the

New York City Police Department, virtually the same

considerations dictate the same result — dismissal.

Again reverting to the findings of fact by the district

judge, It] here is nothing in this case to indicate that

anyone higher in the Police Department than Chief

Inspector MeCarthy!4/] was aware of the policy in-

volved in this action," me ning the policy of arresting

suspected prostitutes under the "disorderly conduct"

* McCarthy is a high-ranking officer in what is

called the "Manhattan Nox ch Area." A Captain McCabe

was che commanding officer of the 20th Precinct, in

which appellant was arrested. McCabe was the one who

instructed the officers to make arrests of suspected

prostitutes when they had reason to believe that they

were violating the "disorderly conduct" statute.

McCabe sent a copy of his order to McCarthy, Who

responded by sending a copy of a memorandum from

Isabel Wood, then Legal Advisor to Manhattan North. :

(continued next page)

A-15

Opinion of the Court of Appeals for the Second Circuit

statute. Moveover, even if he had known about it,

indeed, even if he had been responsible for it, there is

nothing unlawful about the policy that existed —

arresting persons for "disorderly conduct." And, as with

the Department itself, even assuming that appellant

was subjected to "summary punishment,” there is

nothing in the record to justify assigning responsibility

for that action to Commissioner Codd. The dismissal of

"disorderly conduct" arrests was solely a matter for the

district attorney.

As far as the individual arresting officers are

concerned, we see no basis for overturning the district

court's finding that they acted in "good faith" when they

placed the appellant under arrest. In defining the "good

faith" defense that may be asserted by police officers

when they are sued for having effected an arrest

without probable cause, this Court has stated:

[Tlo prevail the police officer need not allege

and prove probable cause in the constitutional

sense. The standard governing police conduct is

composed of two elements, the first is subjective

Wood's memo indicated that arrests for "status" were

illegal and that the implementation of McCabe's order

would therefore be illegal. She also indicated that an

arrest with knowledge of inevitable dismissal would be

unlawful. McCabe asked McCarthy for advice, and

McCarthy said to go ahead with the arrests as long as

the proper observations of conduct were made and

documented.

A-16

Opinion of the Court of Appeals for the Second Circuit

and the second is objective. Thus the officer

must allege and prove not only that he believed,

in good faith, that his conduct was lawful, but

also that his belief was reasonable. And so we

hold that it is a defense to allege and prove good

faith and reasonable belief in the validity of the

arrest and search and in the necessity for

carrying out the arrest and search in the way the

arrest was made and the search was conducted.

We think, as a matter of constitutional law and

as a matter of common sense, a law enforcement

officer is entitled to this protection.

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, supra, 456 F.2d at 1348. Judge

Lumbard explained the contours of this defense in the

following fashion:

If the complaint states a cause of action and the

plaintiff adduces substantiating proof, the defen-

dant will have to disprove the allegation that he

acted without probable cause, or show that, in

any event, he acted in good faith and with a

sere gas belief in the validity of the arrest and

search.

Ordinarily when a suit of this type is brought a

court will already have determined that there

was no probable cause for the arrest and search

complained of. Nevertheless the agent has a

complete defense if he can convince the trier of

the fact that he acted in good faith and that it

was reasonable for him to have believed that the

arrest and search were lawful. Thus there are

two standards to be considered. The first is what

constitutes reasonableness for purposes of defin-

ing probable cause under the fourth amendment

for the protection of citizens against governmen-

tal overreaching. The other standard is the less

A-17

Opinion of the Court of Appeals for the Second Circuit

stringent reasonable man standard of the tort

action against government agents. This second

and lesser standard is appropriate because, in

many cases, federal officers cannot be expected

to predict what federal judges frequently have

considerable difficulty in deciding and about

which they frequently differ among themselves.

It would be contrary to the public interest if

federal officers were held to a probable cause

standard as in many cases they would fail to act

for fear of guessing wrong. Consequently the

law ought to, and does, protect government

agents if they act in good faith and with a

reasonable belief in the validity of the arrest and

search.

Id. at 1348-49 (Lumbard, J., concurring). See also

Jaroslawicz v. Seedman, 528 F.2d 727, 732 (2d Cir.

1975); Laverne v. Corning, 522 F.2d 1144, 1147-48 (2d Cir.

1975). See generally Newman, Suing the Lawbreakers:

Proposals to Strengthen the Section 1983 Damage

Remedy for Law Enforcers' Misconduct, 87 Yale L. J.

447, 459-62 (1978).

We decline to overturn the district court's finding

that the officers acted in subjective. good faith; based

as it is on a determination of witness credibility, and we

find it reasonable for the officers to have believed that

the conduct engaged in by the appellant gave them

sufficient reason to place her under arrest for "dis-.

orderly conduct."

The New York Court of Appeals described the

determination of probable casue in the case of People v.

ghey “i

LS oF

LV wie Pa &

A-18

Opinion of the Court of Appeals for the Second Circuit

Smith, supra:

Probable cause exists where the facts and

circumstances within the officer's knowledge and

of which he had reasonably trustworthy inform a-

tion are sufficient in themselves to warrant a

person of reasonable caution in the belief that an

offense has been or is being committed.

44 N.Y.2d at 622, 407 N.Y.S.2d at 467, 378 N.E.2d at

1037. It is our judgment that, for purposes of this § 1983

action Officers Bonarti and Colletti beleived reasonably

that this standard had been met. One pedestrian

actually stopped them to complain about being bothered

by a woman on the sidewalk, and he pointed to the

appellant as the perpetrator. And the officers them-

selves observed the appellant stop pedestrians and

engage them in conversations. The fact that the

Statute here in question had not previously been

construed under circumstances similar to those pre-

sented by this case supports our conclusion that

although there was not in fact probable casue to arrest

the appellant on a charge of "disorderly conduct," the

arresting officers' belief that there was probable cause

was not unreasonable. C.f. People v. Macbeth Realty

Co., 63 App. Div. 2d 908, 910, 406 N.Y.S.2d 298, 299-300

(1978) (Sullivan, J., dissenting) (suspected prostitute

arrested and convicted under "disorderly conduct" stat-

ute); People v. Miller, 90 Misc. 2d 399, 394 N.Y.S.2d 1006

(1977) (woamn arrested for prostitution pleads to dis-

orderly conduct).

A-19

Opinion of the Court of Appeals for the Second CH Hut

Thus, the officers are not liable for arresting the

appellant without probable cause. As with the other

defendants, we decline to hold the officers liable for

the policy of arresting suspected prostitutes under the

"disorderiy conduct" statute, that policy being in no way

unlawful, and we decline to assign liability to the

officers for whatever unlawful "summary punishment"

may have been inflicted on the appellant in this case,

The judgment of the district court is affirmed,

DOOLING, District Judge (dissenting in part):

The evidence, it would appear, does not support the

trial court's finding that the defendants Bonarti and

Colletti had established a defense of good faith.

Leaving to one side the question whether Officer

Colletti was sufficiently a participant in rather than a

bystander at the arrest, the evidence seems plainly to

preclude a finding that the officers could reasonably

have believed that the arrest was supported by probable

cause. The disorderly conduct statute, Penal Law,

§ 240.20, subdivision 5, had a settled meaning that went

back to the predecessor statute, Section 722, subdivi-~

sion 2, of the former Penal Law; the statute required

that the defendant's conduct be characterized, not by

its effect on individuals, but by its public consequence,

A 20

Opinion of the Court of Appeals for the Second Circuit

EA:, People v. Szepansky, Steuben Co. 1960, 25 Mise. 2d

239, 203 N. V. S. 20 306 (Gabrielli, J.). Statutory dis-

orderly conduct requires, in the language of People v.

Harvey, 1954, 307 N.Y. 568, "that the acts charged

must be such as are public in character and breach the

public peace, or tend to do so... „ See also People v

Chesnick, 1950, 302 N. v. 58, 60-61. People v. Pritchard,

1970, 27 N.Y.2d 246, 248-249, emphasizes the persis-

tence under the statute in its present form of its

limitation to proscription of behavior threatening a

breach of the peace or public inconvenience, annoyance

or alarm, See also People u. Cannor, App. Term 1975,

88 Mise. 2d 85, 388 N. V. 8. 20 812, aff'd., 1976, 40 N. v. 20

886. That is, indeed, clear from the language of the

Statute: the person charged must have acted

"with intent to create lie inconvenience

annoyance or alarm, or esaly creating a risk

Officer Bonarti observed no such conduct. Around

1:00 A.M, he saw plaintiff appellant leaning against a

car, saw her beckon to a man who \alked to her and

then walked away, and, a moment later, saw her walk

over to another passing man and speak to him for a

moment or so at about the midpoint of the sidewalks

that meet at the corner of Broadway and West 64th

Street, Officer Colletti's testimony was simflar, but he

added that he observed plaintiff speaking, from the

A2.

Opinion of the Court of Appeals for the Second C uit

passenger side, to someone in a car. A man had earlier

complained to the officers of plaintiff's solicitation and

had pointed plaintiff out to them, but refused to give

his name, and Officer Bonarti testified that the

intersection was one frequented by prostitutes. Nothing

in this evidence suggests the remotest approach to a

breach of peace, or to any public disorder, or threat of

it, or, specifically, of obstructing public passage in the

street. Officer Bonarti clearly understood the statute,

He explained the statute thus:

"So far as I understand that law, it is if

someone impedes the flow of vehicular or pedes-

trian traffic and also causes a public inconven-

lenco, annoyance, then they are in violation of

the section.

There was in what the officers testified that they

observed nothing of the impeding of public traffic,

nothing of threat to public order; the complaint's

characterizing the observed conduct as engaging various

males in “conversation thereby causing an inconven-

lence to vehicle and pedestrian traffic" makes it clear

that was no interference with the flow of traf fle other

than that implicit in any brief conversation between

two people meeting on the street,

It might have been wondered whether the officers’

action disappointed any expectation of their superiors,

but the testimony of Captain MeCabe forbids the

inference that officers were expected to arrest without

A-22

Opinion of the Court of Appeals for the Second Circuit

probable cause -— despite Captain McCabe's at best

ambiguous "Prostitution Roundup" Memorandum of

October A, 1975, and departmental counsel's warning

that the Memorandum might be considered discrimina-

tory in punishing some people for behavior that all

engage in under the pretense that those arrested are

obstructing traffic when there is no traffic to obstruct.

Cf. People v, Nixon, 1928, 248 N.Y, 182, 187-188. In any

case reliance on superiors’ orders would be relevant

primarity to the matter of the officers' subjective

beliefs, Important as the subjective belief of arresting

officers may be on damage issues, the Court has been

clear that if the constitutional liberty is to be safe from

infringement, the ultimate test must be the objective

reasonableness of the arresting officer's belief that the

arrest is warranted in law. Cf. Terry v: Ohio, 1968, 392

U.S, I, 2-22; Pierson v. Ray, 1967, 386 U.S. 547, 555-

557; Scheuer v. Rhodes, 1974, 416 U.S. 232, 244-246;

Wood v. Strickland, 1976, 420 U.8, 308, 321-322; Prooun-

lor . Navarette, 1978, 434 U.S, 665, 561-662, That

reasonableness was absent here.

It is concluded that an erroneous standard of reason-

able belief was applied to the facts in the district court,

and that, in consequence, dismissal of appellant's

complaint against the arresting officers was error.

A-23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

76 Civ. 1117 (CMM)

*.

ANA MARIA DOMINGUEZ,

Plaintiff,

-against-

ABRAHAM D. BEAME, et al.,

Defendants.

METZNER, D. J.:

Plaintiff has brought this action pursuant to 42

U.S.C. § 1983 and the First, Fourth, Eighth and i’our-

teenth Amendments to the Constitution of the United

States. She is seeking damages and declaratory relief

with regard to what she alleges was an illegal arrest of

her person. The court has jurisdiction over the subject

matter of this action. 28 U.S.C. § 1343(4) and 28 U.S.C.

S 1331 (a).

Testimony was taken by the court, without a jury, on

June 2 and 5, 1978. The following constitutes the

court's findings of fact and conclusions of law as

required by Fed. R. Civ. P. 52(a).

Plaintiff testified that she had-not been employed

for the past five or six months, but before that had

oe

A-24

Opinion Dated June 21, 1978

worked in two massage parlors, the Murray Hill Health

Spa and the Casbah, respectively, for over two years.

On the evening of November 7, 1975, she claims that she

was sitting for about five minutes on the fender of a car

that was parked on Broadway near 84th Street, waiting

for her roommate, when a police car drove up. This

would be a few minutes before midnight. She further

testified that. two police officers, defendants Bonarti

and Coletti, came out of the police car and placed her

in the car and took her to the 20th Precinct station-

house where her arrest was processed. She testified

that she was not informed as to the reason for her

arrest, but noticed that the police indicated on her

arrest form that she was a "streetwalker." She

strenuously objects to such characterization and asserts

that there is absolutely no basis for the charge.

Each of the police officers testified that prior to

plaintiff's arrest, they were stopped by a person on the

street who complained to them about being "hassled" by

plaintiff as he walked down the street. Bonarti and

Coletti each testified that the man who stopped them

pointed to the corner of Broadway and 84th Street and

indicated that he was referring to plaintiff as the one

who had approached him.

The two police officers further testified that prior

to arresting plaintiff, they observed her actions for a

A-25

Opinion Dated June 21, 1978

few minutes. Bonarti testified that he observed

plaintiff beckon to a man as he walked past plaintiff.

He saw the man stop, engage in a brief conversation

with plaintiff and then walk away from her. Bonarti

claims that he thereafter observed plaintiff approach

and stop another man as he walked along Broadway.

Coletti testified that he also observed plaintiff talking

to someone in a car near the corner of Broadway and

84th Street.

Bonarti claims that only after making these observa-

tions did he leave his patrol car and arrest plaintiff for

having violated section 240.20 of the New York Penal

Law. Coletti testified that he did not approach

plaintiff while Bonarti made the arrest, but stood

approximately one car length away.

There exists a conflict between these two versions

not only as to the alleged actions of the participants,

but as to the timing of the arrest itself. Bonarti and

Coletti claim that plaintiff was arrested at approxi-

mately 1:00 A.M. on November 8, 1975. The testimony

of Dorn taken by deposition on behalf of plaintiff after

conclusion of the live testimony is not helpful to

plaintiff. In fact, it is contradictory in part to

plaintiff's story and is pure hearsay in many respects.

The court finds that the officers' story as to time of

arrest and plaintiff's actions is the more credible. This

A-26

Opinion Dated June 21, 1978

conclusion is based upon the documentary evidence

prepared contemporaneously with the events and at a

time when there was no indication that this lawsuit

would ensue. First, Bonarti and Coletti did not begin

their tour of duty until midnight. Second, Bonarti

arrested three other women prior to arresting plaintiff,

and these three arrests were made at approximately

12:30 A. M., followed by taking the women to the

stationhouse for processing. The arrest form of

plaintiff indicates that she was arrested at 1:00 A.M.

She must have been at this corner for over an hour, and

not for just five minutes.

The fact that the court finds that plaintiff, at the

time of her arrest, was engaging in activity indicating

solicitation for prostitution does not end the matter.

We are still faced with the issue of whether plaintiff's

rights were nevertheless violated when she was arrested

for violation of section 240.20.

Plaintiff was arrested, according to the arrest form,

because she "engaged various unknown males in conver-

sation thereby causing an inconvenience to vehicle and

pedestrial [sic] traf fie. - It is claimed that such

* It must be made clear that section 240.20 was the

only law in existence at the time which the police could

use in the circumsiances. Subsequently, a new law was

enacted to combat "streetwalking," section 240. 37,

(continued next page)

A-27

Opinion Dated June 21, 1978

conduct is a violation of section 240.20(5) of the New

York Penal Law. Specifically, that statute says:

"A person is guilty of disorderly conduct when,

with intent to cause public inconvenience, an-

noyance or alarm, or recklessly creating a risk

thereof:

5. He obstructs vehicular or pedestrian traffic

That section of the Penal Law became effective on

September 1, 1967. However, a similar statute had been

in effect in New York since 1923. New York Penal Law

of 1909 § 722, as amended. The courts of New York

have had many opportunities to define the scope of

activity which may be considered "disorderly conduct."

The leading case in this area is People v. Nixon, 248

N.Y. 182 (1928). In that ease a number of persons were

convicted of disorderly conduct for marching on a

public street, four abreast. As a result of their

marching, a number of pedestrians walking on the

sidewalk were forced to enter the roadway in order to

get past them. The New York Court ui Appeals

reversed the convictions, finding that defendants' sim-

ple presence on the sidewalk, where there were no

threats of violence or likelihood that there would be

effective July II, 1976, which was held to be constitu-

tional by the New York Court of Appeals on June 15,

1978. |

A-28

Opinion Dated June 2, 1978

violence, was not a criminal activity. The fact that

other pedestrians were actually forced to leave the

sidewalk in order to get past the defendants was still

insufficient to sustain a charge of disorderly conduct:

"In the absence of evidence that the defendants

caused substantial annoyance to others, or. per-

sisted in their conduct after protest from others

or warning from a police officer, we find the

evidence insufficient to sustain the conviction of

the defendants in this case." Id. at 188.

The New York Court of Appeals in People v. Carcel,

3 N. V. 2d 327 (1957), reaffirmed the rule of Nixon in

regard to prosecutions for disorderly conduct. The

court specifically stated that a conviction could not be

sustained where the only evidence was an observation

by a police officer that a defendant's action resulted in

the blocking of another pedestrian's right of way. Ig. at

332. |

Not only is the case law in this area well settled, but

the Practice Commentary to section 240.20(5) makes it

clear that the type of conduct engaged in by plaintiff

was not within the scope of activities the legislature

had sought to prohibit in its enactment of the statute.

"Subdivision 5, which is new, proscribes conduct

which can be of a serious nature (e.g. creating

havoe by tieing up rush hour traffic on a crowded

highway for an extended period in order to call

attention to some cause) rn :

Denzer & McQuillan, Practice Commentary N.Y.

Penal Law § 240.20 (McKinney 1967).

A-29

Opinion Dated June 21, 1978

Thus, it seems clear that the mere act of stopping

"various unknown males" upon the street and engaging

them in brief conversation, could never rise to the level

of disorderly conduct.

Furthermore, the statute requires a showing of

"intent" or "recklessness" before the activity can be

considered criminal. From what the police officers

observed, it would be logical to assume that she was

stopping the various unknown males with the intent to

solicit their business and not with the intent to create a

disturbance. However, prior to the enactment of

section 240.37, see footnote l, the observed conduct

would not justify an arrest for solicitation or loitering

for the purpose of prostitution. The fact that plaintiff's

presence on the streets annoyed some citizen is

insufficient to allow an arrest to be made pursuant to a

charge of disorderly conduct.

Thus nlaintiff's arrest on the charge of disorderly

conduct was clearly a violation of her civil rights. In

addition, a claim has been presented predicated on an

alleged practice and procedure of defendants to sum-

marily punish persons arrested as streetwalkers without

due process of law, i.e., to arrest them and keep them

in jail overnight with the knowledge and intent that

they would not be prosecuted for the act for which they

had been arrested.

A-30

Opinion Dated June 21, 1978

Before proceeding, the court must rule on the admis-

sibility of various exhibits offered by plaintiff in

connection with her claim in this area. Plaintiff's

Exhibits 19, 20, 24, 28, 29, 30, 31, 34, 35, 42 and 45

marked for identification are found to be inadmis-

sible.2/

Turning now to the substance of the issue of whether

plaintiff's arrest was intended by defendants to be a

summary punishment of her. Captain McCabe testified

that in November of 1975 it was the policy of the

* The court had indicated during trial that as none of

these exhibits related to the 20th Precinct, but rather

to the area known as Manhattan South, they would not

be admitted into evidence unless they could be connec-

ted to the 20th Precinct.

Following the conclusion of the trial, plaintiff

submitted a document, which has been marked for

identification as Plaintiff's Exhibit 47. Plaintiff con-

tends that this exhibit connects the previously marked

exhibits to the area where the arrest of plaintiff was

made. The court, however does not agree. First, the

document is dated December Il, 1975, which is a month

after plaintiff's arrest. Second, the memo merely

transmits the guidelines used in the Manhattan South

area to Chief McCarthy of Manhattan North with the

suggestion, "You might find this useful in formulating

your ‘own guidelines." Therefore, neither Plaintiff's

Exhibit 47 nor those listed above will be admitted into

evidence. 7

r ye Net ay pte + ANE

oi .

A-31

Opinion Dated June 21, 1978

District Attorney's office in Manhattan to 13437 all

dis- on- pros arrests. He further testif ied that he was

aware of this policy at the time he issued his memoran-

dum of October 21, 1975, directing that these arrests be

made. However, he was the commanding officer of the

20th Precinct, and street solicitation by prostitutes was

a continuing problem prompting constant complaints by

the residents of the neighborhood. He intended arrests

to be made on probable cause. Bonarti admitted that

prior to arresting plaintiff, he had received and read

Captain McCabe's memorandum, which contained a

reference to the procedure that was to be followed if

the district attorney "343d" the arrest. That procedure

is covered by McCabe's memorandum # 143.

It would seem that a policy refusal by a district

attorney not to prosecute persons arrested for disorder-

ly conduct does not rise to the level of summary

punishment of those nevertheless arrested by the police.

First, it is the duty of police officers to carry out their

. This refers to the number of the form used by the

D. A. s office when that office declines to prosecute an

action based upon the insufficiency of the evidence.

The term "343" is used to describe this procedure.

4/ This is the term used to describe prostitution-

related arrests made pursuant to the disorderly conduct

statute, N.Y. Penal Law § 240.20(5).

*

A-32

Opinion Dated June 2l, 1978

enforcement duties. If the district attorney refuses to

follow through with prosecution, that is his responsibil-

ity, for which he may be held answerable in other

forums. Second, district attorneys in other counties

within the city were prosecuting these cases and it

would create an anomalous situation to have a single

police department enforcing the same law in different

ways in different portions of the city. Consequently, I

find that there is no basis for recovery on the second

claim by plaintiff.

However, plaintiff's rights as based on her first claim

were violated by her arrest, and we then must decide

which of the defendants is liable in damages to

plaintiff.

Plaintiff has failed to link either defendants Beame

or Baumgarten to plaintiff's arrest and accordingly, the

complaint as to them must be dismissed.

Defendants Bonarti and Coletti did in fact violate

plaintiff's right when they arrested her. However, the

court finds that in view of all the circumstances leading

up to her arrest the orders that they were given and

the care they exercised in carrying out those orders

these defendants have established a defense of good

faith. Pierson v: Ray, 386 U.S. 547 (1967); Biven v. Six

Unknown Named Agents, 456 F.2d 1339 (2d Cir. 1972).

The complaint is dismissed as to them.

A-33

Opinion Dated June 21, 1974

Plaintiff claims that both defendants Codd and the

Police Department of the City of New York are liable

to her for her arrest.“ Norm ally, such defendants

cannot be held liable on a theory of respondeat superior.

However, liability may be imposed on a showing that

they had actual or constructive knowledge of the acts

performed by their subordinates, and acquieseed in such

conduct. E.g., Manfredonia v. Barry, 401 F. Supp. 762

(E.D.N.Y. 1975). There is nothing in this case to indi-

cate that anyone higher in the Police Department than

Chief Inspector McCarthy was aware of the policy

involved in this action. However, defendant Codd in his

proposed findings of fact accepts responsibility for the

policy.

Assuming that these two defendants are responsible

for the policy and practice that resulted in plaintiff's

arrest, we must examine whether these defendants

nevertheless have a defense of good faith. The test of

good faith was enunciated in Bivens v. Six Unknown

Named Agents, 456 F.2d at 1348:

3/ The complaint stated a claim egainst the Police

Department directly under the Fourteenth Amendment.

It is now settled that the Police Department can be held

liable directly under 42 U.S.C. § 1983. Monell x:

Department of Social Services, 46 U.. L. W. 4569 (0.5.

une 9 e ,

4 34

Opinion Dated June 41, 1978

"Therefore, to prevail the police officer need

not al and prove bable cause in the

constitutional sense, standard governing

oe conduct is composed of two elements, the

ome eee

fieer m —— and prove not only

that e believed, inthesd aith, that his conduct

aly lawful, but also that his belief was reason

able,

This standard should also be applicable to the officer's

superiors,

The evidence in this case is clear that although there

was a policy to arrest women suspected of being

prostitutes on the charge of disorderly conduct, the

policy was to arrest only those women actually observed

engaging in an activity which the police in good faith

believed constituted an offense. There is no question

that the police instituted this policy in the good faith

belief that streetwalkers soliciting customers on the

street constituted disorderly conduct. Considering the

activity which this policy was attempting to stem, and

the fact that the disorderly conduct statute was a valid

law, it appears that the police were reasonable in their

good faith belief. Accordingly, the claim for monetary

damages as against these two defendants is dismissed.

Plaintiff is not entitled to declaratory relief since

arrests for this activity now are made under the new

law recently held constitutional. See footnote I. The

issue is moot.

A-35

Opinion Dated June 21, 1078

Plaintiff's claim for the expungement of all records

of arrest made pursuant to the practice described above

is denied without prejudice to any rights plaintiff may

have under M. v. C. P. L. § 160,50 (McKinney, Supp. 1977-

76).

This action is dismissed,

So ordered,

CHARLES M. METZNER

U.. D. J.

Dated: New York, N.Y.

June 21, 1978