Ackerson v. City of White Plain
Filing
AMENDED PUBLISHED PER CURIAM OPINION, FILED.[785426] [11-4649]
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11-4649-cv
Ackerson v. City of White Plains, et al.
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
Argued: October 29, 2012
Decided: November 29, 2012
Amended: December 4, 2012
Docket No. 11-4649-cv
SHAWN ACKERSON,
Plaintiff-Appellant,
–v.–
CITY OF WHITE PLAINS, POLICE BUREAU OF WHITE PLAINS, STEPHEN FOTTRELL,
INDIVIDUALLY AND IN HIS CAPACITY AS SERGEANT IN THE POLICE BUREAU OF WHITE
PLAINS, ERIC FISHER, INDIVIDUALLY AND IN HIS CAPACITY AS A LIEUTENANT IN
THE POLICE BUREAU OF WHITE PLAINS, JOHN DOE, WHOSE TRUE NAME IS NOT KNOWN
TO PLAINTIFF, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER IN THE POLICE
BUREAU OF WHITE PLAINS,
Defendants-Appellees.
Before:
WESLEY, CHIN, Circuit Judges, LARIMER, District Judge.*
*
The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
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Appeal from a September 27, 2011 judgment of the United
States District Court for the Southern District of New York
(Duffy, J.), granting Appellees’ motion for summary judgment
and dismissing the case in its entirety. Plaintiff-Appellant
was arrested for third-degree menacing under New York law
and brought an action against the Appellees for false
arrest, malicious prosecution, and violation of his
constitutional rights under 42 U.S.C. § 1983. Appellant
also sued the City of White Plains under § 1983 for failure
to train and supervise the arresting officers. Appellant
asks us to vacate the judgment, reverse the district court’s
grant of summary judgment for Appellees on qualified
immunity grounds, reverse the denial of his motion for
partial summary judgment as to liability on his false arrest
claims under New York law and § 1983, and reverse the denial
of his motion for partial summary judgment dismissing
Appellees’ probable cause defense. Appellant also asks us
to reverse the district court’s grant of summary judgment
for the City of White Plains under § 1983. We reverse in
part and affirm in part.
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Plaintiff-Appellant Shawn Ackerson appeals from a
REVERSED IN PART, AFFIRMED IN PART.
David Gordon, Gordon & Haffner, LLP, Harrison, NY,
for Plaintiff-Appellant.
Frances Dapice Marinelli, Joseph A. Maria, P.C.,
for Defendants-Appellees.
PER CURIAM:
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September 27, 2011 judgment of the United States District
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Court for the Southern District of New York (Duffy, J.),
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granting Appellees' motion for summary judgment and
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dismissing the case in its entirety. The panel has reviewed
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the briefs and the record in this appeal and agrees
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unanimously that oral argument is unnecessary because “the
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facts and legal arguments [have been] adequately presented
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in the briefs and record, and the decisional process would
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not be significantly aided by oral argument.” Fed. R. App.
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P. 34 (a)(2)(C).
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Background
On Thursday, November 8, 2007, Ackerson was arrested
for third-degree menacing because he approached a woman in
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her driveway, questioned her about members of her household,
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and insisted that her car had hit his.
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ended with the woman demanding that Ackerson leave.
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woman then called the police.
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relevant, undisputed facts as the officers knew them at the
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time of the arrest.
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This “conversation”
The
The following are the
Officer Cotto responded to the woman’s complaint and
filed the following report:
a white male [named] Sean [sic] Ackerson
came to [the woman’s] house . . . claiming
that the vehicle she was driving sideswiped
his earlier that day in Eastchester.
Ackerson told her that he got her address
via her license plate. [The woman] told
Ackerson that her husband had been . . .
driving her car earlier that day to a
contracting site in Eastchester. [The
woman] later found out from her husband
that the site he is working from is the
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JA 111.
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this incident from Eastchester Detective Anthony Mignone.
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Mignone called Fisher to tell him that, while investigating
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an assault involving Ackerson, he learned that Ackerson may
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have been at a house in White Plains that day.
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checked the computer dispatch system and came across Cotto’s
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report.
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woman
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residence of Sean [sic] Ackerson’s [e]xgirlfriend . . . whom Ackerson has been
stalking.
[The woman] was fearful that
Ackerson might harm her and she called the
police; Ackerson disappeared. Report was
referred to Lt. Fisher for follow up and
[the woman] will be in later to give a
statement.
White Plains Lieutenant Eric Fisher became aware of
Fisher then
Cotto eventually spoke with Fisher and said the
had pulled into her driveway in her
vehicle. When she was exiting her vehicle,
a male suspect approached her from behind,
ask[ed] her if she lived [t]here . . . .
He asked her questions about her vehicle
possibly sideswiping his vehicle earlier in
the day in Eastchester. He then approached
her and asked her a question about her
child. She said that she became nervous.
She didn’t know who this subject was. She
then ran into the house shortly thereafter.
The subject then fled in his car.
JA 242-43.
Fisher called Mignone and told him there had been an
incident involving Ackerson in White Plains.
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Mignone told
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Fisher that they planned on arresting Ackerson.
Fisher then
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spoke with the woman who confirmed everything Fisher had
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learned up to that point.
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Eventually, Fisher sent White Plains Sergeant Stephen
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Fottrell to the Eastchester Police Department to interview
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Ackerson.
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indicated that he had suspected his ex-girlfriend was
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cheating on him with someone who lived at the woman’s
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residence.
Ackerson apologized for scaring the woman and
When Fottrell asked how he learned the woman’s
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address, Ackerson became uncooperative and stopped answering
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questions.
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Fottrell then called Fisher, who directed him to arrest
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Ackerson for menacing.
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that he believed Ackerson’s actions constituted third-degree
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menacing because
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In his deposition, Fisher stated
the fact that all of the information that
I had developed, coupled with the fact that
he had obtained her address and name, drove
to her house, approached her in her
driveway, got out of the car, approached
her in her driveway while she was getting
out of the car alone and just getting out
of the hospital, by asking her questions
relative to her family and her children, by
approaching her in the driveway, to the
point where she needed to call her neighbor
to stand by outside with her because of the
fear that this unknown subject put in her,
I believe that constituted a menace.
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JA 108(emphasis added). Fottrell also believed the conduct
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supported an arrest for menacing because:
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Mr. Ackerson approached a woman in the
driveway of her home, called her by name,
accused her of having a car accident with
him and leaving, started asking her
questions about the ages of her children.
And at this time, he was within two to
three feet of her. Mr. Ackerson is a large
individual, which I believe placed the
complainant in fear of her safety.
JA 127(emphasis added).
After arresting Ackerson, Fottrell asserted the
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following in an accusatory instrument for third-degree
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menacing:
JA 25.
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the above synopsis and adds that at one point the woman
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asked a neighbor to stay nearby while Ackerson was in her
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driveway.
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FACTS: The defendant . . . did place [the
woman] in fear of physical injury by
following
her
to
her
residence
and
interrogating her about ownership of her
vehicle. The defendant claims the victim’s
vehicle had side swiped his earlier in the
day.
Fottrell’s post-arrest report does not deviate from
Ackerson was prosecuted on the misdemeanor information
in White Plains City Court.
Ackerson was arraigned on
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November 9, 2007 and released on his own recognizance.
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court dismissed the information on January 31, 2008 on the
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ground that it failed to make out the crime of third-degree
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menacing.
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The
Ackerson filed a complaint in the Southern District of
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New York alleging false arrest and malicious prosecution
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claims against Fisher and Fottrell under § 1983 and the City
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of White Plains alleging that the White Plains Police Bureau
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failed to train and supervise the officers under § 1983 (the
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“Monell claim”).
The complaint also asserted false arrest
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and malicious prosecution claims under New York law against
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all defendants.
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the district court granted summary judgment for the City on
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the Monell claim, dismissed all claims against the White
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Plains Police Bureau, and denied the motions in all other
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respects.
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partial summary judgment motion—conceding that there were no
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material issues of fact.
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district court concluded that the defendants were entitled
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to qualified immunity as a matter of law and dismissed all
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of his claims.
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order, and Ackerson appealed.
After cross-motions for summary judgment,
Ackerson then moved for reconsideration of his
On September 22, 2011, the
Judgment was entered consistent with that
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Discussion1
I.
Federal and State False Arrest Claims
A. Probable Cause
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“A § 1983 claim for false arrest . . .
is
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substantially the same as a claim for false arrest under New
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York law.”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)
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(citations omitted).
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false arrest requires that the plaintiff show that “(1) the
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defendant intended to confine him, (2) the plaintiff was
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conscious of the confinement, (3) the plaintiff did not
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consent to the confinement and (4) the confinement was not
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otherwise privileged.”
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N.Y.2d 451, 456 (1975).
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Under New York law, an action for
Broughton v. State of New York, 37
Probable cause “is a complete defense to an action for
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false arrest” brought under New York law or § 1983.
Weyant,
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101 F.3d at 852 (internal quotation marks and citation
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omitted).
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officers have . . . reasonably trustworthy information as
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to[] facts and circumstances that are sufficient to warrant
“Probable cause to arrest exists when the
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“We review de novo a district court’s ruling on crossmotions for summary judgment, in each case construing the
evidence in the light most favorable to the non-moving party.”
White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d
163, 167 (2d Cir. 2007).
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a person of reasonable caution in the belief that an offense
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has been . . . committed by the person to be arrested.”
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Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007).
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deciding whether probable cause existed for an arrest, we
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assess “whether the facts known by the arresting officer at
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the time of the arrest objectively provided probable cause
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to arrest.”
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2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153
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(2004)).
In
Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.
Whether probable cause existed for the charge
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“actually invoked by the arresting officer at the time of
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the arrest” is irrelevant.
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Defendants prevail if there was probable cause to arrest
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Plaintiff[] for any single offense.”
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New York, 689 F.3d 98, 109-10 (2d Cir. 2012).
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true under New York law: probable cause “does not require an
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awareness of a particular crime, but only that some crime
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may have been committed.”
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A.D.2d 872, 873 (3d Dep’t 2001).
Id. at 154.
“Accordingly,
Marcavage v. City of
The same is
Wallace v. City of Albany, 283
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Appellees have not provided us with a theory of
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criminal liability, other than third-degree menacing, for
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which probable cause might have existed to arrest Ackerson.
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See e.g., Holley v. County of Orange, 625 F. Supp. 2d 131,
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139 (S.D.N.Y. 2009).
We therefore limit our discussion to
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whether defendants had probable cause to arrest Ackerson for
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third-degree menacing.
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B. Third-Degree Menacing
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In New York, “[a] person is guilty of menacing in the
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third degree when, by physical menace, he or she
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intentionally places or attempts to place another person in
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fear of death, imminent serious physical injury or physical
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injury.”
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defendant must take a physical action with the intent to
N.Y. Penal Law § 120.15 (emphasis added).
The
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make another reasonably afraid of an “imminent danger; that
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is, the perceived danger must be immediate.”
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Supp. 2d at 138 (emphasis added) (citations omitted); see
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William C. Donnino, Practice Commentary, McKinney’s
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Consolidated Laws of New York, Penal Law § 120.15.
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Holley, 625 F.
Oral statements alone do not constitute a physical
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menace and must be accompanied by a physical action beyond
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approaching someone to talk with them.
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Whidbee, 803 N.Y.S.2d 20 (N.Y. Kings Cty. Crim. Ct. 2005).
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In Whidbee, the court noted that “the only pertinent
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allegations . . . are that the defendant approached the
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complainant, questioned her about her current relationship
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status, followed her and told her that if she called the
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See People v.
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police again she had better watch her back and her
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children’s back.”
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sustain a menacing charge because “the only physical act
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alleged . . . [was] that the defendant followed the
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complainant.”
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a well-founded fear of imminent physical injury.
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complainant fails to testify to actually being in fear of
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injury, the evidence is insufficient to sustain a menacing
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conviction.
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Id.
Id.
Those actions were insufficient to
Moreover, third-degree menacing requires
When a
See People v. Peterkin, 245 A.D.2d 1050, 1051
(4th Dep’t 1997).
Here, there was no probable cause for the third-degree
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menacing arrest by Fisher and Fottrell.
Ackerson approached
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the woman, came within a few feet of her in her driveway,
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asked her questions, and left.
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Ackerson arrested, Fisher had the benefit of Cotto’s report,
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a conversation with Cotto, and a conversation with the
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complainant.
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knowing “what, if anything, [Ackerson] was capable of,” the
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woman never stated that she felt physically threatened or
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that Ackerson took any assaultive actions.
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instrument also did not contain any accusations amounting to
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a physical menace, noting only that Ackerson followed “her
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to her residence” and interrogated her “about ownership of
Before deciding to have
Other than general statements as to not
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The accusatory
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her vehicle.”2
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even rise to the level of a verbal threat, must less a
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physical act that would reasonably have placed the
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complainant in fear of imminent physical injury.
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district court should have granted Ackerson’s motion for
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partial summary judgment on Appellees’ probable cause
JA 25.
Ackerson’s alleged conduct did not
Thus, the
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affirmative defense.
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arrest claims.
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qualified immunity even when, as in this case, probable
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cause to arrest does not exist, “if he can establish that
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there was ‘arguable probable cause’ to arrest.”
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Lunn, 361 F.3d 737, 743 (2d Cir. 2004).
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II. Qualified Immunity
Qualified immunity is a complete defense to false
An arresting officer is entitled to
Escalera v.
“Arguable probable cause exists if either (a) it was
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objectively reasonable for the officer to believe that
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probable cause existed, or (b) officers of reasonable
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competence could disagree on whether the probable cause test
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was met.”
Id. (internal quotation marks omitted).
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In this
The accusatory instrument itself is insufficient on its
face; Fottrell failed to provide reasonable cause to believe that
the defendant committed the offense charged. See N.Y. Crim.
Proc. L. §§ 100.40(1)(b), (4)(b).
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respect, the qualified immunity test “is more favorable to
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the officers than the one for probable cause.”
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test is not toothless, however: “If officers of reasonable
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competence would have to agree that the information
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possessed by the officer at the time of arrest did not add
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up to probable cause, the fact that it came close does not
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immunize the officer.”
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F.3d 76, 87 (2d Cir. 2007).
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Id.
The
Jenkins v. City of New York, 478
Here, after noting that third-degree menacing
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“generally involve[s] more direct threats of physical harm
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than the present case,” the district court proceeded to
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grant summary judgment for defendants on the theory that
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Fisher and Fottrell were entitled to qualified immunity.
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Ackerson v. City of White Plains, No. 08 Civ. 9549 (KTD),
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2011 U.S. Dist. LEXIS 107383, at *4 (S.D.N.Y. Sept. 20,
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2011). The district court excused the arrest because
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Ackerson, a large man, approached [the
woman] at her home, placed himself within
a few feet of her, and asked questions
about her children, an arresting officer
could reasonably conclude that Ackerson’s
approaching [the woman] was an action that
made [her] fear for her physical wellbeing. Similarly, based on [the woman’s]
statement that she became “nervous,” felt
need to yell to a neighbor that she might
need him to call the police, assumed
Ackerson was stalking his ex-girlfriend and
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“became very afraid suspecting that this
person was capable of anything,” one could
reasonably conclude that she had a fear of
imminent harm.”
Id. at *4-5.
The district court’s analysis elides the key legal
requirement for a third-degree menacing charge: A physical
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menace.
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disagree over whether probable cause existed without that
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crucial element.3
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asking them questions (even in an accusatory tone) does not
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arguably satisfy the elements of any crime.
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Police officers of reasonable competence could not
Being tall, approaching someone, and
We conclude that the district court erred in granting
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summary judgment for the defendants and dismissing the
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entire action on a theory of qualified immunity.
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decided that neither probable cause nor arguable probable
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cause existed for the arrest as a matter of law, we also
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conclude that the district court erred in denying Ackerson’s
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motion for partial summary judgment as to liability on his
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false arrest claims against Fisher and Fottrell.
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concede that there are no material disputed facts, and they
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Having
Defendants
In fact, the Assistant Chief of Police for the White
Plains Police Department stated in her deposition that she could
“see how [the event] was very frightening, but there is nothing
there about him taking a physical action in any way that may have
caused the fear.” JA 289.
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have not argued that they had probable cause to arrest
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Ackerson for any other crime.
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state law false arrest claim creates liability for the City
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of White Plains, under a theory of respondeat superior,
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Ackerson is also entitled to partial summary judgment as to
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that defendant.
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768 F.2d 34, 40 (2d Cir. 1985); Williams v. City of White
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Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010).
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Moreover, because Ackerson’s
See Raysor v. Port Auth. of N.Y. & N.J.,
Lastly, we affirm the district court’s grant of summary
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judgment on the Monell claim, as well as the dismissal of
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the malicious prosecution claims.
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Monell claim but only made passing references to it in his
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opening brief.
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dismissal of his malicious prosecution claim under either
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New York Law or § 1983.
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F.3d 58, 76 (2d Cir. 2001); see also Frank v. United States,
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78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds
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by, 521 U.S. 1114 (1997).
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Ackerson appealed the
Moreover, Ackerson has not contested the
See Tolbert v. Queens College, 242
Conclusion
For the foregoing reasons, the judgment of the district
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court is VACATED.
The order of the district court granting
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summary judgment to all defendants on the theory that Fisher
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and Fottrell were entitled to qualified immunity is hereby
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REVERSED; denying partial summary judgment on Ackerson’s
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state law false arrest claims against Fisher, Fottrell, and
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the City of White Plains is REVERSED; and denying partial
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summary judgment for Ackerson against Fisher and Fottrell
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under § 1983 for false arrest is REVERSED.
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district court’s grant of summary judgment for Defendants-
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Appellees on the Monell claim and the dismissal of all
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malicious prosecution claims under New York law and § 1983.
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The case is REMANDED with instructions to grant Ackerson’s
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motion for partial summary judgment on liability for his
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state law false arrest claims against Fisher, Fottrell, and
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the City of White Plains; against Fisher and Fottrell under
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§ 1983 for his false arrest claims; and for the dismissal of
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the affirmative defenses of probable cause.
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We AFFIRM the
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