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.
Before Timbers and Meskill, Circuit Judges, and Dooling, District Judge.*fn*
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 Fourteenth 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 complaint was that appellant had 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 would 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 circumstances which justify suspicion that he may be engaged or about to engage in crime, and, upon 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 411, cert. denied, 414 U.S. 1093, 94 S. Ct. 724, 38 L. Ed. 2d 550 (1973). See also United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974), aff'd, 420 U.S. 283, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975). After the Berck 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, annoyance or alarm, or recklessly creating a risk thereof:
5. He obstructs vehicular or pedestrian traffic . . . .
New York Penal Law § 240.20(5). This practice apparently ceased in 1976, when the New York legislature enacted a statute entitled: "Loitering for the purpose of engaging in a prostitution offense." New York Penal Law § 240.37. This statute became effective on July 11, 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 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 concerned today.
Arrests of suspected prostitutes on charges of "disorderly conduct" came to be known as "dis-con-pros" arrests. From the record as it stands,*fn1 it appears that virtually all of the suspected prostitutes who were arrested for "disorderly conduct" were released the next 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 this case, knew and understood that 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 Sylvester 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 eventually 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 conversation thereby causing an inconvenience to vehicle and pedestrian traffic." Although the final typed version of the arrest form indicates that appellant was "(unemployed)," 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 conviction 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 Department 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 guarantees. 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, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), and Bivens v. Six Unknown Named Agents of the Federal Bureau of 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 Commissioner, the district court held that, assuming that these two defendants could be held responsible for the unlawful arrest of the ...