SUMMARY ORDER Plaintiffs-appellees, participants in an Occupy Wall Street protest, were arrested and charged with trespass and disorderly conduct after they refused a police order to vacate Zuccotti Park in lower Manhattan. Plaintiffs brought this suit challenging the lawfulness of their removal from Zuc-cotti Park and the decisions of defendants-appellants, New York City officials at the time, to arrest and charge plaintiffs.
The district court dismissed several of plaintiffs’ claims but left intact plaintiffs’ Fourth Amendment claims for false arrest and malicious prosecution and First Amendment retaliation claims. The district court also denied qualified immunity to defendants-appellants, which allowed defendants-appellants to bring the present interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. “We review a district court’s denial of qualified immunity on a motion to dismiss de novo, accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs’ favor.” Garcia v. Does, 779 F.3d 84, 91 (2d Cir. 2015) (internal quotation marks omitted). “Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (
a) the defendant’s action did not violate clearly established law, or (
b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Id, at 92. For instance, “[a]n officer is entitled to qualified immunity, against a suit for false arrest if he can establish that he had arguable probable cause to arrest the plaintiff.” Id. (internal quotation iparks omitted). Although the district court considered the issue of probable cause, the district court needed also to conduct adequate analysis of arguable probable cause and of whether qualified immunity protects defendants-appellants—a more “forgiving” standard than the probable cause inquiry.
Amore v. Novarro, 624 F.8d 522, 530, 536 (2d Cir. 2010). In particular, we respectfully think the district court did not sufficiently take into account our holding in Garda: police officers [are not required] tq engage in an essentially speculative inquiry into the potential state of mind of .., .[arrestees]. Neither the law of probable cause nor the law of qualified immunity requires such speculation. Whether or not a suspect ultimately turns out to have a defense, or even whether a reasonable officer might have some idea that such a defense could exist, is not the question.
An officer still has probable cause to arrest, and certainly is entitled to qualified immunity, so long as any such defense rests on facts that are so unclear, or a legal theory that is not so clearly established, that it cannot be said that any reasonable officer would understand that an arrest under the circumstances would be unlawful. Garcia, 779 F.3d at 96 (citations omitted). Upon remand, the district court should undertake a complete analysis of the qualified immunity issue. The district court should do so in light of the Amended Complaint filed in this case.
We have considered the parties’ remaining arguments on appeal and find in them no basis for altering our decision. For the foregoing reasons, the judgment of the district court is VACATED and REMANDED.