Appeal from an order and judgment of the United States District Court for the Southern District of New York (Robert L. Carter, Judge) dismissing a putative class-action complaint against two defendants for insufficient service of process and granting summary judgment in favor of the remaining defendants on the merits, respectively. The plaintiffs bring First, Fourth, and Fourteenth Amendment claims arising out of their arrests, incarcerations, and prosecutions for attempting to enter a federal building with objects resembling police badges. The plaintiffs' First Amendment claim was waived because it was not explicitly raised, or supported by facts alleged, in the complaint; their Fourth Amendment claim fails because there was probable cause for their arrests; and their Fourteenth Amendment Due Process Clause claim lacks merit, notwithstanding New York City Administrative Code § 14-107's apparent vagueness on its face, because plaintiffs only have standing to make an as-applied challenge and section 14-107 is not unconstitutionally vague as applied to them. We therefore affirm the district court's grant of summary judgment with respect to those claims. We also affirm the dismissal of the complaint with respect to defendant Mahoney for insufficient service of process. Finally, although opposition to the assertion of personal jurisdiction over defendant Pappas has been abandoned, we affirm the dismissal of all claims against Pappas for the same reasons that we affirm the grant of summary judgment in favor of the other defendants.
The opinion of the court was delivered by: Sack, Circuit Judge
Before: JACOBS, Chief Judge, SACK and HALL, Circuit Judges.
In this appeal, the plaintiffs challenge, on various grounds, "Operation Stinking Badges,"*fn2 a joint federal-city policing policy, and New York City Administrative Code § 14-107, a New York City statute*fn3 criminalizing, inter alia, the possession without authority of "any uniform, shield,*fn4 buttons, wreaths, numbers or other insignia or emblem in any way resembling that worn by members of the police force." (emphasis added). Each plaintiff was arrested pursuant to Operation Stinking Badges and either section 14-107 or a New York State statute that criminalizes possession of a fraudulent instrument, for attempting to enter a federal building in New York City with objects resembling police badges.
The plaintiffs appeal from an order and a judgment of the United States District Court for the Southern District of New York (Robert L. Carter, Judge). The order dismissed the plaintiffs' putative class-action complaint against two defendants for improper service of process. The judgment granted summary judgment to the remaining defendants on the merits, rejecting the plaintiffs' contentions that the Operation Stinking Badges policy provides for unconstitutional searches in violation of the Fourth Amendment and that section 14-107 is unconstitutionally void for vagueness in violation of the Fourteenth Amendment.
Operation Stinking Badges, the policy pursuant to which the plaintiffs were arrested, was a joint policing initiative between the Federal Protective Service ("FPS")*fn5 and the City of New York. Its goal was to deter persons with objects resembling badges used by police officers from entering specified federal buildings where they might use the badges to gain unauthorized admittance to the offices of federal agencies and other entities. Pursuant to the policy, during the security screening conducted at the entrance to such facilities, if FPS officers thought an object in the possession of a person seeking entry to be in violation of the policy, the potential offender was referred to the New York City Police Department ("NYPD"), and was subject to possible arrest, incarceration, and prosecution.
Each of the plaintiffs entered the federal building at 26 Federal Plaza in New York City on a separate occasion in possession of a badge that was thought by the security personnel to resemble a New York City Police Department shield. There is no allegation or evidence that the plaintiffs ever attempted or planned to attempt to use these badges in an improper way.
The plaintiffs were arrested, jailed, and prosecuted pursuant to either of two statutes -- Plaintiff Lateif Dickerson under New York City Administrative Code § 14-107, and Plaintiffs Clyde Davison Jr. and Jimmy Hogans under New York Penal Law § 170.20, a New York State statute criminalizing possession of a forged instrument. All charges against each plaintiff were ultimately dismissed.*fn6
The plaintiffs subsequently brought the instant putative class-action lawsuit pursuant to, inter alia, 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and corresponding state laws, challenging the Operation Stinking Badges policy on Fourth Amendment grounds. Although it is nowhere explicitly stated in the complaint, the plaintiffs subsequently articulated to the district court a challenge to section 14-107 on both First Amendment overbreadth and Fourteenth Amendment void-for-vagueness grounds. The district court dismissed all of the plaintiffs' claims. The plaintiffs reassert their First, Fourth, and Fourteenth Amendment claims on appeal.
The plaintiffs waived their First Amendment overbreadth challenge to section 14-107. The claim was not explicitly asserted, and is not supported by the facts alleged, in the complaint. And although the plaintiffs did mention a First Amendment claim in their briefing in opposition to the defendants' motion to dismiss in the district court, they did not raise it during oral argument on that motion. We therefore decline to consider it on appeal.
No Fourteenth Amendment void-for-vagueness challenge of section 14-107 is made explicitly in the complaint either. The claim was, however, fully briefed and argued before the district court and was a basis for the district court's decision. There is also at least a colorable argument that it is central to the plaintiffs' Fourth Amendment claim, which was indeed asserted in the complaint. This claim fails on the merits, however, because in the absence of a constitutionally-protected right implicated by the plaintiffs' challenge to the statute, the plaintiffs are limited to an as-applied challenge. The statute is constitutional as applied to each of them.
Finally, the plaintiffs' Fourth Amendment challenge to the searches conducted pursuant to Operation Stinking Badges fails because it has been waived, and their Fourth Amendment challenge to their arrests pursuant to the policy fails because there was probable cause for them.
Because we conclude that the statute under which Dickerson was arrested is constitutional as it was applied to him, there was probable cause for his arrest, defeating his false arrest claim. Even though the other plaintiffs were charged with violation of New York Penal Law § 170.20, the fact that they could permissibly have been arrested pursuant to New York City Administrative Code § 14-107 provides probable cause for their arrests, thereby defeating their false arrest claims too.
For these reasons, we affirm the grant of summary judgment by the district court. We also affirm the dismissal of the complaint with respect to defendant Mahoney for insufficient service of process. On appeal, Pappas abandons his argument that he was improperly served -- even though the complaint as to him was dismissed in the district court on that basis. We nonetheless affirm the dismissal of all claims against Pappas for the same reasons that we affirm the grant of summary judgment in favor of the other defendants.
In April and July, 2006, the plaintiffs were arrested for entering the federal government office building at 26 Federal Plaza in Manhattan with badges resembling shields used by police officers*fn7 secured in their belongings. The building houses, among other things, the main office of the FBI's New York Division, the Department of Homeland Security U.S. Citizenship and Immigration Services, the New York Regional Office of the Social Security Office of Disability Adjudication and Review, and a day care facility for children of federal employees. See Feb. 23, 2007 Decl. of Thomas Mahoney in Support of Mot. for Summ. J. at ¶ 5, Dickerson et al. v. Chertoff et al., No. 06 cv 7615 (S.D.N.Y. Mar. 9, 2007) (Dkt. No. 16) ("Mahoney Decl."). The defendants have never asserted that the plaintiffs ever attempted, or planned to attempt, to use these badges as a means of impersonating officers or gaining entry into any area of the building.
The plaintiffs were arrested pursuant to a joint federal-city policing initiative between FPS Region 2 and the New York City Police Department, Operation Stinking Badges, the goal of which was to "interdict fraudulent documents, police parking placards, and law enforcement style badges that may be used to gain unauthorized access to federal facilities." Mahoney Decl. at ¶ 5. Pursuant to this policy, FPS officers and special agents are authorized to verify the authenticity of any badge that is or resembles a police shield and that is in the possession of an individual attempting to enter a federal building. Under the policy, any person not authorized to carry a police shield who enters a federal building in possession of an item that resembles such a shield is subject to detention or arrest pursuant to any applicable city, state, or federal statute.
Upon each plaintiff's entry into 26 Federal Plaza, security screeners identified a badge in his possession and then contacted FPS agents who, after concluding that the badge in question was an offending badge, referred the plaintiff to the New York City Police Department Police Impersonation and Integrity Unit. Each plaintiff was subsequently taken to the New York Police Department 5th Precinct and there placed under arrest by one of the defendant New York City police officers.
Davison and Hogans were charged with violation of New York Penal Law § 170.20, which prohibits criminal possession of a forged instrument. Dickerson was charged with a violation of section 14-107, which prohibits possession of items that resemble certain objects used by New York City law enforcement personnel. Each plaintiff spent at least twenty hours in jail as a result. Charges against each were subsequently dropped or dismissed.
Following their respective arrests and subsequent releases, the plaintiffs brought the instant putative class-action lawsuit under, inter alia, 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and corresponding state law provisions, alleging that they were unconstitutionally arrested, incarcerated, and prosecuted. The suit was filed against then-Secretary of the Department of Homeland Security Michael Chertoff, FPS Special Agents, NYPD detectives, unknown law enforcement officers, and the City of New York. During the course of the litigation, the plaintiffs have proffered three principal bases for the unconstitutionality of their arrests, incarcerations, and prosecutions. First, the plaintiffs alleged in their complaint that Operation Stinking Badges violates the Fourth Amendment and state-law rights to be free from false arrest because it is not illegal to possess the badges at issue. Second, the plaintiffs have attempted to articulate a void-for-vagueness theory of the unconstitutionality of section 14-107, the statute pursuant to which Dickerson --- but not Davison or Hogans -- was arrested, under the Due Process Clause of the Fourteenth Amendment, premised on the statute's allegedly insufficient notice of what conduct it prohibits and the unfettered discretion the statute allegedly provides to law enforcement officers. Third, the plaintiffs assert a violation of the First Amendment that is based not on any allegation of expressive conduct by the plaintiffs, but on the potential overbreadth of section 14-107. The latter two claims are not explicitly made in the complaint.
On March 9, 2007, the federal defendants -- Chertoff, FPS Special Agent Pappas, and FPS Special Agent Mahoney -- filed a motion to dismiss or, in the alternative, a motion for summary judgment. The district court dismissed the action as against Pappas and Mahoney pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. The court denied the plaintiffs' application for discovery or additional time to serve defendant Mahoney. Janet Napolitano, successor to Michael Chertoff as Secretary of Homeland Security, was substituted for Chertoff as a defendant pursuant to Federal Rule of Civil Procedure 25(d). Napolitano and the City defendants then moved to dismiss or, in the alternative, for summary judgment.
After hearing oral argument, the district court granted defendant Napolitano and the City defendants' motion for summary judgment on the grounds that Operation Stinking Badges did not violate the Fourth Amendment and that section 14-107 was constitutional under the Fourteenth Amendment because it both provided sufficient notice to allow an ordinary person to understand what was prohibited under the law and did not allow for arbitrary or discriminatory enforcement by law enforcement authorities. The district court's decision nowhere mentioned the plaintiffs' theory of relief under the First Amendment, which was raised in the plaintiffs' opposition to the defendants' motion to dismiss, see Pls.' Mem. of Law in Opp. to Fed. Defs.' Mot. to Dismiss at 12-13, Dickerson et al. v. Chertoff et al., No. 06 cv 7615 (June 15, 2007) (Dkt. No. 25) ("Pls.' Opp. to Mot. to Dismiss"), but was not alleged in the complaint or discussed at oral argument before the district court.