United States Second Circuit

Denial of summary judgment motion for qualified immunity for individual defendants, in case alleging First and Fourth Amendment violations in dispersing plaintiffs' demonstration, is affirmed as: 1) it was not objectively reasonable for defendants to believe that the demonstration presented a "clear and present danger" after several protesters walked onto a freeway; 2) denial of qualified immunity was proper because material issues of fact remain as to the reasonableness of the force applied; 3) defendants are not entitled to immunity where the same unresolved factual questions that precluded granting immunity on the federal claims apply equally to the state claims; and 4) appellate jurisdiction is lacking over plaintiffs' cross-appeal as it does not present questions "inextricably intertwined" with defendants' appeal.

Appellate Information

• Decided 10/04/2006
• Published 10/05/2006

Judges

• SOTOMAYOR, Circuit Judge., Before WALKER, Chief Judge, NEWMAN and SOTOMAYOR, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellees:
  
• Frank Brady, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Daniel Smirlock, Peter H. Schiff, Nancy A. Spiegel, on the brief), Albany, NY, for defendants-cross-defendants-appellants-cross-appellees., Jodi Peikin, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C. (Robert J. Anello, on the brief), New York, NY, for plaintiffs-counter-defendants-appellees-cross-appellants., Anthony P. Rivizzigno, County Attorney (Carol L. Rhinehart, on the brief), Syracuse, NY, submitted brief for defendants-cross-appellees.