Kass v. City of New York, et al. 1 In the

15‐2053‐cv
Kass v. City of New York, et al.
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2016 7
8
A RGUED: A UGUST 23, 2016 9
D ECIDED: JULY 24, 2017 10
11
No. 15‐2053‐cv 12
13
S TEPHEN L. K ASS , 14
Plaintiff‐Appellee, 15
16
v. 17
18
C ITY OF NEW Y ORK, MICHAEL A LFIERI, NYPD O FFICER ; S HIELD #800, 19
K. ERNST, NEW Y ORK C ITY POLICE (“NYPD”) O FFICER , 20
Defendants‐Appellants, 21
22
NYPD O FFICER JANE B EGGIN, NYPD O FFICER JOHN D OE , NYPD 23
O FFICER MEREDITH B IGGIN, 24
Defendants.* 25
________ 26
Appeal from the United States District Court 27
for the Southern District of New York. 28
No. 14 Civ. 7505 – Andrew L. Carter, Jr., Judge. 29
________ 30
31
Before: WALKER , C HIN, AND L OHIER , Circuit Judges. 32
* The Clerk of Court is directed to amend the caption as set forth above.

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2 No. 15‐2053‐cv
________ 1
Defendants‐appellants the City of New York (“the City”) and 2
certain New York City Police Department (“NYPD”) officers bring 3
this interlocutory appeal from an order of the United States District 4
Court for the Southern District of New York (Andrew L. Carter, Jr., 5
J.) denying their motion for judgment on the pleadings. We 6
consider in this appeal (1) whether the NYPD officers are entitled to 7
qualified immunity from plaintiff‐appellee Stephen L. Kass’s federal 8
false arrest and imprisonment claim under 42 U.S.C. § 1983 and 9
(2) whether we should exercise pendent jurisdiction over Kass’s 10
state law claims against these officers and the City. 11
We hold that, because the officers had arguable probable 12
cause to arrest Kass for obstructing governmental administration, 13
N.Y. Penal Law § 195.05, and refusing to comply with a lawful order 14
to disperse, N.Y. Penal Law § 240.20(6), they are entitled to qualified 15
immunity. We therefore REVERSE the district court’s denial of the 16
defendants‐appellants’ motion with respect to Kass’s federal and 17
state false arrest and imprisonment claims. We DISMISS the 18
remainder of the appeal for lack of appellate jurisdiction. 19
________ 20
MELANIE T. W EST (Deborah A. Brenner, on the 21
brief), on behalf of Zachary W. Carter, 22
Corporation Counsel of the City of New York, 23
New York, NY, for Defendants‐Appellants. 24

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3 No. 15‐2053‐cv
1
A NDREW G. C ELLI, JR . (Alison Frick, on the brief) 2
Emery Celli Brinckerhoff & Abady LLP, New 3
York, NY for Plaintiff‐Appellee. 4
________ 5
JOHN M. WALKER , JR ., Circuit Judge: 6
Defendants‐appellants the City of New York (“the City”) and 7
certain New York City Police Department (“NYPD”) officers bring 8
this interlocutory appeal from an order of the United States District 9
Court for the Southern District of New York (Andrew L. Carter, Jr., 10
J.) denying their motion for judgment on the pleadings. We 11
consider in this appeal (1) whether the NYPD officers are entitled to 12
qualified immunity from plaintiff‐appellee Stephen L. Kass’s federal 13
false arrest and imprisonment claim under 42 U.S.C. § 1983 and 14
(2) whether we should exercise pendent jurisdiction over Kass’s 15
state law claims against these officers and the City. 16
We hold that, because the officers had arguable probable 17
cause to arrest Kass for obstructing governmental administration, 18
N.Y. Penal Law § 195.05, and refusing to comply with a lawful order 19
to disperse, N.Y. Penal Law § 240.20(6), they are entitled to qualified 20
immunity. We therefore REVERSE the district court’s denial of the 21
defendants‐appellants’ motion with respect to Kass’s federal and 22
state false arrest and imprisonment claims. We DISMISS the 23
remainder of the appeal for lack of appellate jurisdiction. 24

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4 No. 15‐2053‐cv
BACKGROUND 1
On September 17, 2013, protestors gathered in Zuccotti Park in 2
New York City to commemorate the second anniversary of the 3
Occupy Wall Street movement. The NYPD placed barricades 4
around the perimeter of the park to cordon off the area where the 5
protestors were gathered and to separate the protestors, who were 6
inside the park, from the pedestrians who were on the adjacent 7
sidewalk along lower Broadway. NYPD Sergeant Michael Alfieri, 8
Officer Karen Ernst, and Officer Meredith Biggin were stationed on 9
the sidewalk near the barricades. 10
At around 4:40 p.m., Stephen L. Kass, then a 73‐year‐old 11
attorney, was walking north on Broadway when he noticed the 12
crowd of people in Zuccotti Park. Kass approached the barricades 13
and, while standing on the sidewalk, engaged in a non‐ 14
confrontational conversation with several protestors. Kass did not 15
impede pedestrian or vehicular traffic during this conversation. 16
After Kass had spoken with the protestors for a minute or two, Ernst 17
approached Kass and instructed him to “keep walking.” Joint 18
App’x at 16. Kass replied that he wanted to hear the protestors’ 19
views, he was not blocking pedestrian traffic, and he had a right to 20
remain on the sidewalk. Ernst repeated that Kass had to move away 21
from the barricade. When Kass continued to refuse to comply, Ernst 22
called over Alfieri. 23

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5 No. 15‐2053‐cv
At this point, one of the protestors began recording a video of 1
the interaction, the authenticity and accuracy of which is not in 2
dispute. As can be seen on the video, Ernst and Alfieri instructed 3
Kass several times to continue walking. Kass repeated that he 4
wanted to talk to the protestors, that he was not blocking pedestrian 5
traffic, and that he would not move. Alfieri then directed Kass to 6
follow him and placed his hand on Kass’s elbow, attempting to 7
guide him away from the barricades. Kass pulled away, telling 8
Alfieri to take his hands off of him and that he was talking to the 9
protestors. Ernst then suggested that Kass could go inside the park 10
to continue his conversation with the protestors. 11
After Kass continued to refuse to comply, Alfieri grabbed 12
Kass’s right arm and pulled him toward the middle of the sidewalk, 13
away from the barricade and protestors. Kass immediately objected, 14
saying “get your hands off of me, how dare you, get your hands off 15
me.” A third unidentified officer then grabbed Kass’s other arm, 16
and the officers handcuffed Kass. Kass was brought to the precinct 17
and issued a summons for disorderly conduct under New York 18
Penal Law § 240.20(5). This charge was ultimately dismissed for 19
failure to prosecute. 20
On September 16, 2014, Kass filed the instant action against 21
the City and NYPD officers Ernst and Alfieri. Kass also named as a 22
defendant an NYPD officer who was later identified as Meredith 23

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6 No. 15‐2053‐cv
Biggin and who was served with the complaint on May 13, 2015. 1
Kass alleged that the officers did not have probable cause to arrest 2
him and that the City was liable for the actions of its employees 3
under the doctrine of respondeat superior. Kass asserted federal 4
claims against the officers for false arrest and imprisonment as well 5
as malicious prosecution, and New York state law claims against all 6
of the defendants for false arrest and imprisonment, malicious 7
prosecution, and assault and battery. 8
On March 16, 2015, before Biggin was served with the 9
complaint, the City, Ernst, and Alfieri moved for judgment on the 10
pleadings pursuant to Federal Rule of Civil Procedure 12(c). Ernst 11
and Alfieri argued that they were entitled to qualified immunity 12
because there was probable cause or, at least, arguable probable 13
cause to support Kass’s arrest. The City, Ernst, and Alfieri also 14
sought dismissal of the state law claims against them. While this 15
motion was pending, Kass withdrew his federal malicious 16
prosecution claim. 17
On June 8, 2015, the district court dismissed Kass’s withdrawn 18
claim, but otherwise denied the defendants‐appellants’ motion. The 19
district court did not explain its basis for rejecting the officers’ 20
qualified immunity defense. On June 24, 2015, the City, Ernst, 21
Alfieri, and Biggin timely filed an interlocutory appeal. 22
23

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7 No. 15‐2053‐cv
DISCUSSION 1
As an initial matter, we address whether defendant Biggin is 2
properly included as an appellant in this action. Kass argues that 3
because Biggin was not a party to the Rule 12(c) motion, she should 4
not be permitted to appeal the district court’s denial of that motion. 5
Although Kass only cursorily raises this issue and the defendants do 6
not present any arguments in response, we must address whether 7
Biggin has standing to pursue this appeal before we turn to the 8
merits of her arguments. See Official Comm. of Unsecured Creditors of 9
WorldCom, Inc. v. SEC, 467 F.3d 73, 77 (2d Cir. 2006) (noting 10
“[s]tanding to appeal is an essential component of our appellate 11
jurisdiction”); see also Tachiona v. United States, 386 F.3d 205, 210‐11 12
(2d Cir. 2004). 13
In order to have standing on appeal, “a party must be 14
aggrieved by the judicial action from which it appeals.” Swatch Grp. 15
Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 92 (2d Cir. 2014) 16
(citation omitted). A party that is “not bound by a [district court 17
order] will, in the usual case, have difficulty showing that it meets 18
the Article III standing requirement” that it has suffered such an 19
injury. Tachiona, 386 F.3d at 211; see, e.g., Arizonans for Official English 20
v. Arizona, 520 U.S. 43, 66 (1997) (noting “grave doubts” as to 21
whether parties who “were not bound by the judgment” of the 22
district court had Article III standing to appeal). 23

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8 No. 15‐2053‐cv
Here, defendant Biggin was not a party to the relevant Rule 1
12(c) motion , she is not bound by the district court’s order denying 2
that motion, and the defendants have failed to argue on appeal that 3
she has sustained any legal injury as a result of this order. We 4
therefore agree with Kass that she is not properly an appellant 5
before this Court. Thus, our decision concerns only Kass’s claims 6
against the City, Ernst, and Alfieri, the defendants‐appellants. 7
I. Federal False Arrest and Imprisonment Claim 8
On appeal, the defendants‐appellants argue first that Kass’s 9
federal false arrest and imprisonment claim should be dismissed 10
against Officers Ernst and Alfieri because the district court 11
incorrectly rejected their qualified immunity defense. Although 12
generally an appeal must await a final dispositive judgment in the 13
district court, we have jurisdiction over an interlocutory appeal from 14
a denial of qualified immunity when, as is the case here, the matter 15
can be decided as a matter of law. See DiStiso v. Cook, 691 F.3d 226, 16
239 (2d Cir. 2012). That is because an individual who is entitled to 17
qualified immunity is immune not only from liability, but also from 18
further legal proceedings, and should receive such immunity at “the 19
earliest possible stage of the litigation.” Wood v. Moss, 134 S. Ct. 20
2056, 2065 n.4 (2014) (citation and brackets omitted). 21
We review de novo a district court’s denial of a motion for 22
judgment on the pleadings based on qualified immunity. See 23

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9 No. 15‐2053‐cv
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003); Garcia v. Does, 779 1
F.3d 84, 91 (2d Cir. 2015). We apply the same standard as that 2
applicable to a motion under Rule 12(b)(6), accepting the allegations 3
contained in the complaint as true and drawing all reasonable 4
inferences in favor of the nonmoving party. Anderson, 317 F.3d at 5
197. However, when the record includes a video that the parties 6
concede is authentic and accurate, as is the case here, we view the 7
allegations of the complaint as true only “to the extent that they are 8
not contradicted by video evidence.” See Garcia, 779 F.3d at 88. 9
The burden is on the defendants to demonstrate that qualified 10
immunity applies and that their motion for judgment on the 11
pleadings should be granted. McKenna v. Wright, 386 F.3d 432, 436 12
(2d Cir. 2004). The defendants therefore must show that, construing 13
all reasonable inferences in the plaintiff’s favor, “the facts 14
supporting the [immunity] defense appear on the face of the 15
complaint” and that “it appears beyond doubt that the plaintiff can 16
prove no set of facts in support of his claim that would entitle him to 17
relief.” Id. (citation omitted). 18
An officer is entitled to qualified immunity from a federal 19
false arrest and imprisonment claim if he had arguable probable 20
cause to arrest the plaintiff for any offense, regardless of the offense 21
with which the plaintiff was actually charged. Betts v. Shearman, 751 22
F.3d 78, 82‐83 (2d Cir. 2014); Myers v. Patterson, 819 F.3d 625, 632‐33 23

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10 No. 15‐2053‐cv
(2d Cir. 2016); Zalaski v. City of Hartford, 723 F.3d 382, 390 n.4 (2d Cir. 1
2013). Probable cause exists when “the facts and circumstances 2
within . . . the officers’ knowledge and of which they had reasonably 3
trustworthy information are sufficient in themselves to warrant a 4
man of reasonable caution in the belief that an offense has been or is 5
being committed by the person to be arrested.” Marcavage v. City of 6
N.Y., 689 F.3d 98, 109 (2d Cir. 2012) (citation omitted). Arguable 7
probable cause exists when “it was objectively reasonable for the 8
officer to believe that probable cause existed, or . . . officers of 9
reasonable competence could disagree on whether the probable 10
cause test was met.” Myers, 819 F.3d at 633 (citation omitted). In 11
other words, an officer is entitled to qualified immunity unless “no 12
officer of reasonable competence could have made the same choice 13
in similar circumstances.” Id. (citation omitted). The qualified 14
immunity defense, thus, is a broad shield that protects “all but the 15
plainly incompetent or those who knowingly violate the law.” 16
Zalaski, 723 F.3d at 389 (citation omitted). 17
Here, the officers assert that they are entitled to qualified 18
immunity because they had probable cause or, at least, arguable 19
probable cause to arrest Kass for two separate offenses: obstructing 20
governmental administration, N.Y. Penal Law § 195.05, and refusing 21
to comply with a lawful order to disperse, N.Y. Penal Law 22
§ 240.20(6). We agree that the officers are shielded by qualified 23

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11 No. 15‐2053‐cv
immunity, and we reverse the district court’s denial of the officers’ 1
motion for judgment on the pleadings with respect to Kass’s federal 2
false arrest and imprisonment claim. 3
i. Obstruction of Governmental Administration 4
We first address whether the officers had arguable probable 5
cause to arrest Kass for obstructing governmental administration. 6
New York Penal Law § 195.05 provides that, 7
A person is guilty of obstructing governmental 8
administration when he intentionally obstructs, impairs 9
or perverts the administration of law or other 10
governmental function or prevents or attempts to 11
prevent a public servant from performing an official 12
function, by means of intimidation, physical force or 13
interference, or by means of any independently 14
unlawful act. 15
An individual, therefore, may be convicted under this statute 16
when (1) a public servant is performing an official function; (2) the 17
individual prevents or attempts to prevent the performance of that 18
function by interfering with it; and (3) the individual does so 19
intentionally. See N.Y. Penal Law § 195.05. For the following 20
reasons, we think that it was at least debatable and reasonable 21
officers could disagree as to whether all three of these elements were 22
met in the instant case. 23
24
25

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12 No. 15‐2053‐cv
a. Official Function 1
The first element is that the public servant must be performing 2
an official function that is “authorized by law.” In re Verna C., 531 3
N.Y.S.2d 344, 345 (2d Dep’t 1988). The defendants argue that, in 4
ordering Kass to move, the officers were lawfully regulating 5
pedestrian traffic and addressing any congestion or security issues 6
relating to the protest. Kass responds that it was not objectively 7
reasonable for the officers to believe that he had committed a crime 8
and thus that they had the authority to arrest him for standing on a 9
public sidewalk and refusing to move. 10
Kass’s argument misses the point. An officer does not need to 11
believe that an individual has committed a crime before he or she 12
may lawfully direct the individual to move from where he is 13
standing. See, e.g., Marcavage, 689 F.3d at 110 (concluding that 14
officers lawfully directed protestors to move because protestors 15
were standing in a designated no‐demonstration zone). And, 16
contrary to Kass’s assertion, the officers did not direct Kass to move 17
simply because he was standing on a sidewalk or, as we will discuss 18
below, arrest him because he refused to obey an arbitrary order to 19
move. Kass’s argument ignores the context in which the officers’ 20
orders occurred: on a sidewalk in the heart of downtown 21
Manhattan, shortly before 5 p.m., and near a public protest that the 22
officers were attempting to maintain within a confined area to 23

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13 No. 15‐2053‐cv
ensure crowd control and security. We think that, under such 1
circumstances, it was objectively reasonable for the officers to 2
believe that they had the authority to order Kass, who was engaging 3
with protestors while standing on a sidewalk adjacent to the protest, 4
either to “keep walking” or enter the park to continue speaking with 5
the protestors. 6
Kass also argues that these orders were unconstitutional 7
under the First Amendment because they “arbitrarily and forcibly 8
remove[d] a passer‐by from a public sidewalk” and prevented him 9
from hearing the protestors’ message. Appellee Br. at 17. The First 10
Amendment, which applies to the states through the Fourteenth 11
Amendment, guarantees freedom of speech. U.S. C ONST. amend. I; 12
see Thornhill v. Alabama, 310 U.S. 88, 95 (1940). This guarantee 13
extends not only to the right to speak, but also to the right to listen 14
and receive information. See Va. State Bd. of Pharmacy v. Va. Citizens 15
Consumer Council, Inc., 425 U.S. 748, 756 (1976) (“[W]here a speaker 16
exists, as is the case here, the protection afforded is to the 17
communication, to its source and to its recipients both.”(footnote 18
omitted)); Conant v. Walters, 309 F.3d 629, 643 (9th Cir. 2002) (“[T]he 19
right to hear and the right to speak are flip sides of the same coin.”). 20
The First Amendment, however, “does not guarantee the right 21
to communicate . . . at all times and places or in any manner that 22
may be desired.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 23

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14 No. 15‐2053‐cv
452 U.S. 640, 647 (1981). The extent to which the government may 1
permissibly restrict such communications depends in part upon the 2
circumstances under which those communications and the receipt of 3
those communications occur. Zalaski v. City of Bridgeport Police Dep’t, 4
613 F.3d 336, 341 (2d Cir. 2010) (per curiam). Traditional public fora, 5
such as sidewalks and parks, are afforded the broadest protections 6
for free expression. Id.; see also McCullen v. Coakley, 134 S. Ct. 2518, 7
2536 (2014) (“[N]ormal conversation . . . on a public sidewalk . . . [is 8
a form of expression that has] historically been more closely 9
associated with the transmission of ideas than others.”). In such 10
public fora, the government may apply content‐neutral time, place, 11
and manner restrictions only if they are “narrowly tailored to serve a 12
significant government interest” and if “ample alternative channels 13
of communication” are available. Zalaski, 613 F.3d at 341 (citation 14
omitted).1 15
At issue here is the balance between an individual’s First 16
Amendment right to engage in a conversation on a public sidewalk 17
with protestors and the government’s interest in maintaining public 18
safety and order. Although sidewalks are generally open to the 19
public, including for “expressive activities,” we have recognized that 20
the government “certainly has a significant interest in keeping its 21
1 There is no claim here that the officers were responding based on the
content of the protestors’ or Kass’s speech.

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15 No. 15‐2053‐cv
public spaces safe and free of congestion.” Marcavage, 689 F.3d at 1
104 (citations omitted); see also Mastrovincenzo v. City of New York, 435 2
F.3d 78, 100 (2d Cir. 2006) (“[R]educing sidewalk and street 3
congestion in a city with eight million inhabitants[] constitute[s] [a] 4
‘significant governmental interest[]’.”). Here, as we have noted, 5
Kass was standing on a sidewalk in downtown Manhattan that was 6
adjacent to the protest and that was being used by pedestrians. We 7
agree with the officers that the government had a significant interest 8
in ensuring that the protest remained within the park and that 9
pedestrian traffic on this sidewalk was not impeded. 10
The officers’ orders also were narrowly tailored to achieve this 11
significant government interest. See Zalaski, 613 F.3d at 341. A 12
restriction on free speech is narrowly tailored if it does not “burden 13
substantially more speech than is necessary to further the 14
government’s legitimate interests.” McCullen, 134 S. Ct. at 2535 15
(citation omitted); see also Frisby v. Schultz, 487 U.S. 474, 485 (1988) 16
(“A statute is narrowly tailored if it targets and eliminates no more 17
than the exact source of the ‘evil’ it seeks to remedy.” (citation 18
omitted)). The restriction, however, need not be “the least restrictive 19
or least intrusive means of [achieving those interests].” 20
Mastrovincenzo, 435 F.3d at 98 (citation omitted). In Marcavage v. City 21
of New York, for example, we held that police officers, who were 22
regulating pedestrian traffic during the 2004 Republican National 23

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16 No. 15‐2053‐cv
Convention and who instructed protestors to leave an area that had 1
been designated as a no‐demonstration zone, were performing a 2
lawful governmental function that did not violate the protestors’ 3
First Amendment rights. 689 F.3d at 109. We determined that, 4
because there were crowds of protestors and pedestrians associated 5
with the convention and the non‐protest areas were limited to a two‐ 6
block stretch during the convention, these restrictions were 7
sufficiently tailored to achieve the government’s significant interest 8
in keeping such public spaces safe and free of congestion. Id. at 106‐ 9
07. 10
Here, the officers ordered Kass, after he had conversed with 11
the protestors for a minute or two while standing outside of the 12
designated protest area, to either keep walking or enter the park to 13
continue his conversation. The officers’ orders targeted and sought 14
to eliminate the risk that the protest might expand beyond the 15
barricades and that individuals who were not within the park, such 16
as Kass, might cause congestion or a security issue by interacting 17
with protestors on the sidewalk outside of the protest area. We 18
acknowledge that, when the officers ordered Kass to move, he was 19
the only individual speaking with the two protestors and he was not 20
then impeding pedestrian or vehicular traffic. Whether the officers’ 21
orders were justified under these circumstances, however, “should 22
not be measured by the disorder that would result from granting an 23

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17 No. 15‐2053‐cv
exemption solely to [one individual] because if [he] were allowed a 1
dispensation, so too must other groups, which would then create a 2
much larger threat to the [City’s] interest in crowd control and 3
security.” See id. at 107 (citation omitted). Further, we do not think 4
that to avoid liability the officers needed to refrain from intervening 5
until Kass actually impeded pedestrian traffic or caused a security 6
issue. See id. (rejecting plaintiffs’ argument that, because they were 7
two protestors who were “standing out of the way,” the congestion 8
and security risks justifying a no‐demonstration zone did not apply 9
to them). We also note that once Alfieri tried to move Kass away 10
from the barricades, Kass became agitated and hostile, thereby 11
further increasing the risk that he would impede traffic or pose a 12
security threat. Under such circumstances, the officers’ repeated 13
orders that Kass either “keep walking” or enter the protest area to 14
continue his conversation were narrowly tailored to maintain crowd 15
control and security. 16
Finally, the officers’ orders did not foreclose ample, 17
alternative channels of communication. Such channels need not “be 18
perfect substitutes for those . . . denied to [the plaintiff] by the 19
regulation at hand.” Mastrovincenzo, 435 F.3d at 101; see also 20
Connection Distrib. Co. v. Reno, 154 F.3d 281, 293 (6th Cir. 1998) 21
(“[T]he requirement that ample alternative channels be left available 22
does not mean that there must be a channel where [plaintiffs] can 23

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18 No. 15‐2053‐cv
express themselves in precisely the same manner.”). Here, the 1
officers suggested a reasonable alternative: Kass could continue his 2
conversation with the protestors if he simply entered the park. Kass 3
does not advance any argument on appeal as to why this would not 4
have been an adequate, alternative forum for his conversation. 5
Thus, because the officers’ orders were content neutral, 6
narrowly tailored, and allowed an adequate, alternative channel of 7
communication, they were a permissible time, place, and manner 8
restriction on speech and did not violate the First Amendment. 9
b. Interference with the Official Function 10
The second element is that an individual must prevent or 11
attempt to prevent a public official from performing a lawful official 12
function by interfering with that function. See N.Y. Penal Law 13
§ 195.05. Although the interference must at least in part be 14
“physical” and cannot consist solely of verbal statements, People v. 15
Case, 42 N.Y.2d 98, 101‐02 (1977), an officer may consider both words 16
and deeds in determining whether the individual’s conduct is 17
sufficiently obstructive to justify an arrest, In re Davan L., 91 N.Y.2d 18
88, 91‐92 (1997). Such interference can consist of “inappropriate and 19
disruptive conduct at the scene of the performance of an official 20
function even if there is no physical force involved.” People v. Romeo, 21
779 N.Y.S.2d 860, 861‐62 (3d Dep’t 2004) (internal citations omitted). 22
This element of the statute is satisfied when an individual 23

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19 No. 15‐2053‐cv
“intrude[s] himself into, or get[s] in the way of, an ongoing police 1
activity.” In re Kendell R., 897 N.Y.S.2d 83, 84 (1st Dep’t 2010); see also 2
Davan L., 91 N.Y.2d at 91 (“[C]riminal responsibility should attach to 3
minimal interference set in motion to frustrate police activity.”). 4
Here, Kass physically interfered with the officers’ efforts to 5
confine the protest to the park and keep the sidewalk clear for 6
pedestrians. Kass refused to obey the officers’ repeated orders to 7
move along and, after Alfieri placed his hand on Kass’s elbow to 8
guide Kass away from the barricades, Kass instructed Alfieri to “get 9
[his] hands off” of him and pulled away. A reasonable officer could 10
conclude under these circumstances that Kass had physically 11
“[gotten] in the way of” and had frustrated the officers’ efforts to 12
contain the protest and prevent sidewalk congestion. See Kendell R., 13
897 NY.S.2d at 84; see also Marcavage, 689 F.3d at 110 (probable cause 14
to arrest protestors for refusing to leave the no‐demonstration zone 15
despite officers’ repeated requests); Romeo, 779 N.Y.S.2d at 861 16
(probable cause to arrest individual who was “belligerent, 17
uncooperative and refused several direct requests that he keep away 18
from the officers as they attempted to subdue his girlfriend”). 19
c. Intent to Prevent Performance of Official Function 20
Finally, the third element is that an individual who interferes 21
with an official function must intend to prevent the officers from 22
performing that function. See N.Y. Penal Law § 195.05. However, 23

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20 No. 15‐2053‐cv
because “the practical restraints on police in the field are greater 1
with respect to ascertaining intent . . ., the latitude accorded to 2
officers considering the probable cause issue in the context of mens 3
rea crimes must be correspondingly great.” Zalaski, 723 F.3d at 393 4
(citation omitted); see also Conner v. Heiman, 672 F.3d 1126, 1132 (9th 5
Cir. 2012) (whether inference of innocent intent “was also reasonable 6
. . . does not matter so long as the [officer’s] conclusion [that there 7
was culpable intent] was itself reasonable”). 8
Here, as we have described, the officers were stationed on the 9
public sidewalk and in close proximity to the protest in order to 10
maintain crowd control and security. The officers informed Kass 11
that he needed to move in order to keep the sidewalk clear for 12
pedestrian traffic. Kass, however, verbally and physically refused to 13
obey the officers’ orders either to “keep walking” or join the 14
protestors inside of the park. We think that it was reasonable for the 15
officers to infer that, based on Kass’s repeated refusals to move, he 16
intended to interfere with their efforts to confine the protest in the 17
designated area and prevent sidewalk congestion. See Marcavage, 18
689 F.3d at 110 (probable cause to arrest protestors who were 19
“hostile and noncompliant” when officers ordered them to move); 20
Davan L., 91 N.Y.2d at 91‐92 (probable cause to arrest individual 21
who rode bicycle into “confined and defined” police activity area, 22
despite being “put on specific direct notice” not to do so). 23

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21 No. 15‐2053‐cv
In sum, because reasonable officers could at least debate 1
whether there was probable cause to arrest Kass for obstructing 2
governmental administration in violation of New York Penal Law 3
§ 195.05, we hold that the officers are entitled to qualified immunity 4
for Kass’s federal false arrest and imprisonment claim. 5
ii. Refusal to Comply with a Lawful Order to Disperse 6
Although we must reverse the district court’s ruling if the 7
officers had arguable probable cause to arrest Kass for any offense, 8
we think the officers also had arguable probable cause to arrest Kass 9
for disorderly conduct. Pursuant to New York Penal Law 10
§ 240.20(6), “a person is guilty of disorderly conduct when, with 11
intent to cause public inconvenience, annoyance or alarm, or 12
recklessly creating a risk thereof . . . [h]e congregates with other 13
persons in a public place and refuses to comply with a lawful order 14
of the police to disperse.” This offense consists of the following 15
elements: the individual (1) congregated with other persons in a 16
public place; (2) was given a lawful order of the police to disperse; 17
(3) refused to comply with that order; and (4) acted with intent to 18
cause or recklessly created a risk of public inconvenience, annoyance 19
or alarm. Id. 20
a. Congregating with Others in a Public Place 21
First, it was objectively reasonable for the officers to determine 22
that Kass was “congregat[ing] with other persons in a public place.” 23

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22 No. 15‐2053‐cv
See N.Y. Penal Law § 240.20(6). New York courts have defined this 1
term as a gathering of “at the very least three persons . . . at a given 2
time and place,” including the individual who was arrested. People 3
v. Carcel, 3 N.Y.2d 327, 333 (1957); see also United States v. Nelson, 500 4
F. App’x 90, 92 (2d Cir. 2012) (summary order). Kass argues on 5
appeal that he approached only one protestor. He alleged in his 6
complaint, however, that he was “arrested while speaking with 7
protestors” and that he “engaged in a brief discussion with a 8
protestor who was holding [a] sign and with another protestor 9
standing nearby.” Joint App’x at 13, 16 (emphasis added). Based on 10
Kass’s own allegations, therefore, he was speaking with at least two 11
protestors. 12
Kass also argues that he did not “congregate” with these 13
protestors because he refused to cross the barricades to join the 14
protest. In support of this argument, he cites two cases in which 15
New York state courts determined that the individual at issue was 16
not physically close enough to other demonstrators to satisfy this 17
element of the statute. In People v. Millhollen, the court found that a 18
woman who was protesting while perched in a tree was not 19
“congregating with others” because, although she had supporters 20
who were standing on the ground, there was no one else in the tree 21
who was protesting with her. 786 N.Y.S. 2d 703, 708 (Ithaca City Ct. 22
2004). Similarly, in People v. Carcel, the court determined that two 23

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23 No. 15‐2053‐cv
individuals—one who was walking outside of the United Nations’ 1
headquarters and the other who was standing “quite some distance 2
apart” handing out leaflets—were not congregating with one 3
another because they were “not even standing together” and were 4
“only two in number.” 3 N.Y.2d at 331, 333. 5
In the instant case, it was objectively reasonable for the 6
officers to conclude that Kass had gathered with the two protestors, 7
even though there was a barricade between them. Kass does not 8
dispute that he was standing in close proximity to the protestors 9
while he was conversing with them. Further, although this 10
conversation lasted only for a short period before the officers 11
ordered that Kass move along, the officers did not have any basis to 12
believe that Kass was pausing only momentarily on the sidewalk. 13
Indeed, when they instructed Kass to leave, he refused to do so and 14
stated that he wanted to continue talking with the protestors. 15
b. Lawful Order to Disperse 16
Second, the officers lawfully ordered Kass to disperse. As an 17
initial matter, Kass disputes that the officers directed him to leave 18
the area where he was standing and argues that they made a “series 19
of confusing and contradictory statements.” Appellee Br. at 34. The 20
video clearly contradicts this assertion. The officers ordered Kass to 21
“keep walking” and to “move on” several times. Joint App’x at 16‐ 22
17, 120. Although Ernst suggested that Kass could join the 23

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24 No. 15‐2053‐cv
protestors in the park, the unavoidable implication was that he 1
could no longer stand on the sidewalk near the barricades while 2
speaking with the protestors. Moreover, Kass responded that he 3
would not move from where he was standing, thereby indicating 4
that he heard and understood the officers’ orders. 5
Further, New York courts have held that “a refusal to obey 6
such an order [to move] can be justified only where the 7
circumstances show conclusively that the police officerʹs direction 8
was purely arbitrary and was not calculated in any way to promote 9
the public order.” People v. Todaro, 26 N.Y.2d 325, 328–29 (1970) 10
(quoting People v. Galpern, 259 N.Y. 279, 284‐85 (1932)); Crenshaw v. 11
City of Mount Vernon, 372 F. App’x 202, 206 (2d Cir. 2010) (summary 12
order) (same). As we have described earlier, the officers lawfully 13
ordered Kass to move in furtherance of a legitimate public 14
purpose—to maintain crowd control and security—and thus their 15
orders were not “purely arbitrary.” See Todaro, 26 N.Y.2d at 328‐29. 16
c. Refusal to Obey the Order to Disperse 17
Third, Kass explicitly refused to obey the officers’ orders. In 18
response to Ernst’s repeated requests that he “keep walking,” he 19
stated that he “was not part of the protest,” that “he was a citizen 20
who wanted to hear what the protestor was saying,” and that “he 21
had a right to do so.” Joint App’x at 16‐17. Alfieri then approached 22
Kass and instructed him to leave the area, to which Kass responded 23

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25 No. 15‐2053‐cv
that he would not move because he was “talking to these people.” 1
Alfieri took hold of Kass’s elbow to guide Kass away from the 2
barricades, and Kass instructed Alfieri to “get [his] hands off” of him 3
and pulled away from Alfieri. 4
Based on this conduct, a reasonable officer could infer that 5
Kass was refusing to obey the officers’ orders to disperse. See Shamir 6
v. City of N.Y., 804 F.3d 553, 557 (2d Cir. 2015) (noting where plaintiff 7
initially obeyed officer’s order to move and then went back to the 8
officer and called him a thug, plaintiff’s “approach to the officer 9
[after he was told to move] is the antithesis of complying with an 10
order to disperse”); see also Rivera v. City of N.Y., 836 N.Y.S.2d 108, 11
112 (1st Dep’t 2007) (failure of protestors to disperse after lawful 12
order to do so, even when protestors asserted right to remain, 13
supported probable cause for arrest). 14
d. Recklessly Creating Risk of Causing Public Inconvenience, 15
Annoyance or Alarm 16
Finally, fourth, reasonable officers could disagree about 17
whether Kass’s continued refusal to leave the area where he was 18
standing “recklessly creat[ed] a risk” of “caus[ing] public 19
inconvenience, annoyance or alarm.” See N.Y. Penal Law 20
§ 240.20(6). Although “the risk of public disorder does not have to 21
be realized[,] the circumstances must be such that defendant’s intent 22
to create such a threat (or reckless disregard thereof) can be readily 23

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26 No. 15‐2053‐cv
inferred.” People v. Baker, 20 N.Y.3d 354, 360 (2013) (citation 1
omitted). In determining whether this element is satisfied, New 2
York courts consider “the time and place of the episode under 3
scrutiny; the nature and character of the conduct; the number of 4
other people in the vicinity; whether they are drawn to the 5
disturbance and, if so, the nature and number of those attracted; and 6
any other relevant circumstances.” Id. (citation omitted). 7
Here, as we have noted, Kass was standing on a sidewalk in 8
the heart of downtown Manhattan shortly before 5 p.m. and in close 9
proximity to a public protest. It is not clear based on the video 10
whether protestors or pedestrians were drawn to Kass’s interaction 11
with the police. After Kass initially refused the officers’ orders to 12
“keep walking,” however, at least one unidentified individual 13
interjected by responding to the officers that Kass was not blocking 14
the sidewalk. Further, as can be seen on the video, once Alfieri 15
placed his hand on Kass to guide him away from the barricades, 16
Kass became increasingly agitated. A third officer eventually 17
needed to intervene in order to help Alfieri physically move Kass, 18
who was resisting Alfieri’s attempts to pull him away from the 19
barricades. 20
Given the context in which Kass repeatedly refused to comply 21
with the officers’ orders—on a public sidewalk where pedestrians 22
were passing, at a time of day when the sidewalks might shortly 23

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27 No. 15‐2053‐cv
become more congested, and in close proximity to a public protest— 1
and because Kass became increasingly hostile and resistant toward 2
the officers, it was objectively reasonable for the officers to infer that 3
Kass’s continued defiance of their orders recklessly created a risk 4
that he would “cause public inconvenience, annoyance or alarm,” 5
including a public disturbance. See N.Y. Penal Law § 240.20(6). At 6
the very least, competent police officers could reasonably disagree as 7
to whether, by remaining on the sidewalk despite numerous 8
requests to move on, Kass recklessly created such a risk. 9
In sum, we conclude that Ernst and Alfieri had arguable 10
probable cause to arrest Kass for violating both New York Penal 11
Law § 195.05 and § 240.20(6) and are entitled to qualified immunity 12
for Kass’s federal false arrest and imprisonment claim. Any other 13
conclusion, in our view, would not appropriately confine the denial 14
of qualified immunity to officers who are “plainly incompetent” or 15
“knowingly violate the law.” See Zalaski, 723 F.3d at 389. 16
II. State Law Claims 17
The defendants also request that this Court dismiss Kass’s 18
state law claims against the officers and the City. In exercising 19
jurisdiction over an immediate appeal from the denial of qualified 20
immunity, we may consider issues that are “inextricably 21
intertwined” with the qualified immunity question, such that “no 22
additional inquiry or analysis is necessary” once the question of 23

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28 No. 15‐2053‐cv
qualified immunity has been resolved. Skehan v. Vill. of Mamaroneck, 1
465 F.3d 96, 105 (2d Cir. 2006) (citations omitted), overruled on other 2
grounds by Appel v. Spiridon, 531 F.3d 138, 139‐40 (2d Cir. 2008). 3
Because the officers are immune from suit with respect to 4
Kass’s federal false arrest claim, we dismiss Kass’s state law false 5
arrest claim against the officers. See Jenkins v. City of N.Y., 478 F.3d 6
76, 86‐87 (2d Cir. 2007) (“If the . . . defendants [are] entitled to 7
qualified immunity under federal law, . . . judgment [is] similarly 8
appropriate on [plaintiff’s] state law false arrest claim.”). We also 9
dismiss Kass’s state law false arrest claim against the City, which is 10
based solely on his allegation that the City is responsible for any 11
false arrest that was committed by the officers. See Demoret v. 12
Zegarelli, 451 F.3d 140, 152‐53 (2d Cir. 2006). Kass’s remaining state 13
law claims for malicious prosecution and assault and battery, 14
however, require additional analysis and we therefore lack appellate 15
jurisdiction over those claims. See Skehan, 465 F.3d at 105; Toussie v. 16
Powell, 323 F.3d 178, 184‐85 (2d Cir. 2003). 17
CONCLUSION 18
For the foregoing reasons, we REVERSE the district court’s 19
denial of the defendants‐appellants’ motion for judgment on the 20
pleadings with respect to Kass’s federal and state false arrest and 21
imprisonment claims and DISMISS the remainder of the appeal. 22

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