The opinion of the court was delivered by: Tucker L. MELANÇON, Senior United States District Judge.
MEMORANDUM RULING AND ORDER
Before the Court are defendants City of New York and Police Officer Mikal Wright's ("Wright") Motion for Summary Judgment [Rec. Doc. 53] and plaintiff's memorandum in opposition thereto [Rec. Doc. 59]. For the reasons that follow, defendants' Motion [Rec. Doc. 53] will be DENIED IN PART and DENIED AS MOOT IN PART.
I. Defendant City of New York's Liability
Under the Supreme Court's holding in Monell, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents," and that it is only "when execution 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 official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978). Plaintiff withdrew his Monell claims against the City of New York, as well as his claims under New York State law, and the Court has approved and endorsed the parties' stipulation dismissing all such claims [See Rec. Doc. 52]. Thus the only claims remaining in the case before the Court are those brought under § 1983 against defendant Wright. Defendants' Motion for Summary Judgment as is relates to defendant City of New York will therefore be denied as moot.
II. Plaintiff's Terry Stop Claim
Wright argues that plaintiff fails to produce evidence sufficient to show that an unlawful Terry stop occurred, and, alternatively, that even if an unlawful Terry stop occurred, he is entitled to qualified immunity as a matter of law. As set out herein, the record before the Court demonstrates that there are disputed issues of fact as to (1) whether Wright actually "seized" plaintiff for a distinct period before he arrested him, (2) whether any such seizure, if it occurred, was lawful, based on the circumstances of the situation, and (3) the applicability of qualified immunity under the circumstances.
A. The Occurrence of a Seizure
"Only when [a police] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may [a court] conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). Seizure occurs when "under the particular circumstances presented, a reasonable person would have believed that he was not free to leave if he did not respond to the questions put to him." Pinto-Montoya v. Mukasey, 540 F.3d 126, 131 (2d Cir.2008) (internal quotation marks omitted).
It is undisputed that Wright asked plaintiff what was in the bag plaintiff was holding, and at some point thereafter arrested plaintiff. The events that occurred between Wright's question and plaintiff's arrest are disputed. The question of whether plaintiff was seized at any point prior to his actual arrest cannot be divined by the Court based on the record before it, and is therefore a question of fact to be resolved by a jury or upon motion, if appropriate, at the close of plaintiff's case.
B. The Lawfulness of any Seizure that Occurred
A police officer may legally "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." U.S. v. Sokolow, 490 U.S. 1, 7 (1989); see also Terry, 392 U.S. 1, 30 (1968). "The concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules," and the lawfulness of a particular stop must be evaluated by looking at "the totality of the circumstances." Sokolow, 490 U.S. at 7-8.
Wright alleges that plaintiff was carrying a brown paper bag that looked like it had a beer inside it, which he claims gave rise to a reasonable suspicion that plaintiff was in violation of New York City Administrative Code § 10-125(b), which makes it unlawful to "possess, with intent to drink or consume, an open container containing an alcoholic beverage" in a public place. Plaintiff asserts that while he testified during his deposition that "the guy in the store twisted [his gyro sandwich] like a beer," the bag he was holding did not look like it had an open container, and no reasonable officer would have suspected, from the totality of the circumstances, that he was in violation of New York City law. Plaintiff's admission that the sandwich was "twisted...like a beer," whatever that actually means, is not sufficient to establish, as a matter of law, that Wright had reason to suspect that plaintiff possessed an open container of alcohol with intent to drink it. Wright's actions based on what he contends he observed on the scene, and whether what he observed amounted to a reasonable suspicion, based on plaintiff's deposition testimony, are material issues of disputed fact on which summary judgment may not be granted and must be resolved by a jury.
"A government official is entitled to qualified immunity from suit for actions taken as a government official if...the official's action was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken." Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir.2000). "Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness," Thomas v. Roach, 165 F.3d 137, 143 (2d Cir.1999), as is the situation in the ...