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Robert Pinter v. the City of New York

November 18, 2011

ROBERT PINTER, PLAINTIFF-APPELLEE,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY; NEW YORK CITY UNDERCOVER POLICE OFFICER #31107; RAYMOND KELLY, NEW YORK CITY POLICE COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; MICHAEL BLOOMBERG, MAYOR OF NEW YORK CITY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; RAYMOND DIAZ OR "JOHN SMITH", THE THEN COMMANDING OFFICER OF PATROL BOROUGH MANHATTAN SOUTH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; "JOE" BRAILLE, COMMANDER OF THE VICE SQUAD OF PATROL BOROUGH MANHATTAN SOUTH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; ANTHONY IZZO, COMMANDER OF THE ORGANIZED CRIME BUREAU OF THE NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOSEPH ESPOSITO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BRIAN CONROY, DEPUTY CHIEF OF THE NEW YORK CITY POLICE DEPARTMENT'S VICE ENFORCEMENT DIVISION, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JESSICA STERLING, DETECTIVE, NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; MICHAEL MADISON, SERGEANT, NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; MICHAEL MICHELINA, DETECTIVE, NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND SANDRA DAILEY, DETECTIVE, NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, DEFENDANTS-APPELLANTS, NEW YORK CITY UNDERCOVER POLICE OFFICERS JOHN DOES, INDIVIDUALLY AND IN THEIR RESPECTIVE CAPACITIES; AND SHARI C. HYMAN, DIRECTOR OF THE NEW YORK CITY MAYOR'S OFFICE OF SPECIAL ENFORCEMENT, DEFENDANTS.*FN1



Appeal from a September 13, 2010 judgment entered in the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge).

10-3789-cv

Pinter v. City of New York

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 18th day of November, two thousand eleven.

PRESENT: RALPH K. WINTER, JOSEPH M. MCLAUGHLIN, JOSÉ A. CABRANES, Circuit Judges.

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court be REVERSED and the cause REMANDED.

Defendants-appellants (jointly, "defendants") bring this interlocutory appeal following entry of an order in the United States District Court for the Southern District of New York denying their motion for summary judgment. The principal issue before us is whether defendants are entitled to qualified immunity from Robert Pinter's claims of false arrest, malicious prosecution, malicious abuse of process, discriminatory treatment, and denial of the right to free association.

I. Background*fn2

On October 10, 2008, Pinter, a 52-year-old gay male, stopped at Blue Door to pick up a video. Blue Door sells both general entertainment and adult films. Upon arriving at Blue Door, Pinter headed for the separate adult section. While searching for a film, Pinter saw a younger man staring at him from the end of the aisle. Unbeknownst to Pinter, this younger male was an undercover police officer, known as "UC 31107." Pinter and UC 31107 made eye contact and smiled at one another. UC 31107 took a few steps towards Pinter, and Pinter reciprocated by doing the same.

UC 31107 then began flirting with Pinter by complimenting his looks and asking him "[W]hat do you like to do?" Pinter replied, "[O]h, thank you, you're good looking too," and then commented that he enjoyed--and was good at--oral sex. UC 31107 replied that he enjoyed oral sex as well, but was nervous about engaging in any such activity in the video store. UC 31107 then informed Pinter that his car was parked nearby--with the obvious implication that the car might be a suitable location for the two to engage in oral sex. Pinter led the way to the exit, with UC 31107 following right behind.

As the two men were about to leave the store, UC 31107 offered to pay Pinter $50 if he would allow UC 31107 to perform oral sex on him. Pinter did not say anything in response, although he claims that he then decided that "[a]ny possibility of really engaging in anything with [UC 31107] was over." Pinter admittedly failed to communicate his change of heart to UC 31107.

Upon walking out of Blue Door together, UC 31107 motioned toward the east side of First Avenue and said "my car is parked over there." By apparent coincidence, the men's path took them toward both UC 31107's car and Pinter's apartment. While they walked they engaged in sexually suggestive flirtation. During the walk, Pinter felt free to walk away from UC 31107, but decided not to do so. Moreover, at no point did Pinter ...


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