The case is Mitchell v. City of New York, decided on October 28. The police were familiar with the brownstone, and in connection with a prior police call, they went inside and it looked empty. But a few weeks later, upon seeing people on the property, the police went inside and saw about 30 people inside with a bar, disco lights, a big TV, some couches and an electrical thingamajig hooking up the house's electrical supply from an outside location. When no one at the party answered when the police asked who owned the house, everyone got arrested. The question here is whether the police had probable cause to think the house was abandoned such that they were able to arrest everyone for trespass.
The Second Circuit (Winter, Pooler and Sack) says "it appears that no member of the NYPD made serious efforts to verify the legal status of the brownstone, i.e., the existence of a person or entity with a claim of occupancy of ownership, the property's status under the FTAP, or the lack of any claim or other status." FTAP is a City program that allows the police to take custody over empty properties when people complain about riff-raff using them. The officers did not investigate the ownership status of the property and only assumed it was abandoned. In fact, there was a "for-sale"sign on the property, suggesting that someone claimed ownership of the brownstone. The only basis for the officers to believe the property fell within the FTAP program was word-of-mouth. As for the extension cords, the Court says, that could have been explained by someone's desire to protect the circuits in the brownstone. Moreover, the officers only called the realtor selling the property once to see if it was abandoned; after leaving a voice message, no one followed up with the realtor. While everyone at the party was silent when the police asked who owned the property, that "does not necessarily establish that the officers had a reasonable factual basis for thinking that the brownstone was abandoned."
The facts of this case suggest it was a close call, and it took the Court of Appeals 18 months to decide this appeal, which is a mighty long time. What strikes me about this case is that, at first glance, the house properly did look to be abandoned, but the police did not try hard enough to establish that it was in fact abandoned. The Second Circuit cites a New York Court of Appeals ruling, Colon v. City of N.Y., 455 N.E.2d 1248, 1250 (1983), which says “the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.” This is a correct statement of the law, but those who handle these cases on a regular basis will tell you that a common legal principle that turns up in in false arrest rulings is that the police are not required to undertake a full investigation before determining they have probable cause to arrest someone. That principle does not apply in this case, which is remanded to the district court to resolve the qualified immunity issue.