“Lucky Bag” Operation Backfires; False Arrest Lawsuit Continues

In Schwartz v. Marcantonatos et al. (Summary Order decided May 20, 2014), the Second Circuit affirmed the denial of summary judgment to defendants on the ground of qualified immunity. This false arrest case arises out of the NYPD’s botched attempt to arrest the plaintiff as part of its “lucky bag” program.

Ironically, the arresting (plainclothes) officer’s own illegal conduct formed part of the basis for the court’s decision in plaintiff’s favor.

The court summarized the facts, including a description of how the “lucky bag” operation works, as follows:

On May 29, 2011, police officers in New York’s Central Park precinct conducted a “lucky bag” operation as part of a program to deter unattended-property crimes. In these operations, plainclothes police leave an unattended bag or wallet in the open and wait to see if somebody picks it up. Arrest is made if the finder exhibits an intent to steal it; usually this involves “separation,” that is, the suspect discards the bag after removing something from the bag.

[D]efendant police officers left an unattended bag near a bench in the Poets’ Walk area of the park. Pauline Schwartz sat on the bench, noticed the bag, picked up the bag, and placed it in a plastic grocery bag. At no point did she open the bag or look inside. There were no uniformed police officers nearby and Schwartz began to walk in the direction of the nearby Dairy Visitor Center.

Because there was no “separation,” Lieutenant Marcantonatos employed a ruse to determine whether Schwartz intended to steal the bag. He approached her on a bicycle—in an area of the park where bicycle riding is prohibited—and asked Schwartz if she happened to pick up his wife’s bag. Schwartz replied in the negative. In Marcantonatos’s experience, the suspect usually asks for a description of the bag and hands it over if an accurate description is provided. This was the first time Marcantonatos encountered a denial. But a reasonable officer should consider that, with no “wife” in sight, Schwartz would have been reluctant to hand the bag to any man who demands it.

At that point, Schwartz started to walk a few steps; the other officers approached and Schwartz noticed that one was wearing a badge. Schwartz claimed to be taking the bag to the Dairy Visitor Center to turn it in, but the officers decided to arrest her. Schwartz spent four hours in custody at a nearby police station and had to defend a criminal charge for petit larceny until such time as she agreed to accept an adjournment in contemplation of dismissal.

Plaintiff sued under 42 USC § 1983, alleging that defendants (the City and individual officers) violated her Fourth and Fourteenth Amendment rights. The district court held, and the Circuit agreed, that issues of fact precluded (at this point) summary judgment for the officers on the issue of qualified immunity.

The court next discussed the law of qualified immunity and the related concept of “arguable” probable cause:

Qualified immunity protects officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. [A] police officer is entitled to qualified immunity where (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.

There is no doubt that the right to be free from arrest without probable cause was clearly established at the time of [Schwartz’s] arrest. Probable cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. While probable cause requires more than a mere suspicion of wrongdoing, its focus is on probabilities, not hard certainties. [O]ur inquiry is an objective that focuses on the facts available to the arresting officer at the time of the arrest.

The issue is whether the probable cause determination was reasonable; accordingly arguable probable cause will suffice to confer qualified immunity for [an] arrest. This test is more favorable to the officers than the one for probable cause[;] however, ‘[a]rguable’ probable cause should not be misunderstood to mean ‘almost’ probable cause. Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.

Applying the law, the court held that officers were not (at this stage of the litigation) entitled to qualified immunity, interestingly citing the NYPD’s violation of law as support:

The officers claim they had probable cause (actual or arguable) because Schwartz: 1) picked up the bag; 2) placed it inside another bag; 3) walked away; and 4) denied having the bag. However, other circumstances known to the officers prior to their decision to arrest Schwartz militate against granting them qualified immunity. Schwartz took nothing out of the bag (no “separation”), and never opened it or looked inside. The officers relied on Schwartz denying possession, and not asking Marcantonatos to describe the bag. However, that reaction to what could have been a scam does not bespeak theft. In the scenario, created by the officers, a woman in possession of an apparently lost handbag refuses to turn it over to a stranger illegally riding a bicycle, who claims it belongs to his wife, with no apparent spouse in view. By disclaiming possession of the bag, Schwartz reduced the risk that a real thief would snatch it, or would take it even if he could not describe it.

Schwartz told the arresting officers that she planned to take the bag to the visitor center. Common sense and police experience confirm that a thief will often tell police that they intended to turn the bag over to the authorities. However, the officers failed to consider the honest alternative. … Schwartz walked away from the bench in the direction of the Dairy Visitor Center, and was mere steps away from it.

Based only on the plaintiff’s version of the facts, the officers had neither probable cause nor arguable probable cause. Therefore, we conclude that at this stage of the litigation they do not enjoy qualified immunity. In so concluding, we of course do not preclude the possibility that factual findings made later in the litigation resolving the disputed material facts may justify qualified immunity. (Emphasis added.)

Thus, the court concluded that (based only on plaintiff’s version of the facts) the officers had neither probable cause, nor arguable probable cause, and therefore at this stage of the litigation they were not entitled to qualified immunity. It was careful to note, however, that it was “not preclud[ing] the possibility that factual findings made later in the litigation resolving the disputed material facts may justify qualified immunity.”

Congratulations to my colleagues Gabriel Harvis and Scott Korenbaum, who represent the plaintiff.

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