Ackerson v. City of White Plains, et al., No. 11-4649 (2d Cir. 2012)

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This opinion or order relates to an opinion or order originally issued on November 29, 2012.

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11-4649-cv Ackerson v. City of White Plains, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 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. 35 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: 36 September 27, 2011 judgment of the United States District 37 Court for the Southern District of New York (Duffy, J.), 38 granting Appellees' motion for summary judgment and 39 dismissing the case in its entirety. The panel has reviewed 2 1 the briefs and the record in this appeal and agrees 2 unanimously that oral argument is unnecessary because the 3 facts and legal arguments [have been] adequately presented 4 in the briefs and record, and the decisional process would 5 not be significantly aided by oral argument. Fed. R. App. 6 P. 34 (a)(2)(C). 7 8 9 Background On Thursday, November 8, 2007, Ackerson was arrested for third-degree menacing because he approached a woman in 10 her driveway, questioned her about members of her household, 11 and insisted that her car had hit his. 12 ended with the woman demanding that Ackerson leave. 13 woman then called the police. 14 relevant, undisputed facts as the officers knew them at the 15 time of the arrest. 16 17 18 19 20 21 22 23 24 25 26 27 28 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 3 1 2 3 4 5 6 7 8 9 10 JA 111. 11 this incident from Eastchester Detective Anthony Mignone. 12 Mignone called Fisher to tell him that, while investigating 13 an assault involving Ackerson, he learned that Ackerson may 14 have been at a house in White Plains that day. 15 checked the computer dispatch system and came across Cotto s 16 report. 17 woman 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 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. 4 Mignone told 1 Fisher that they planned on arresting Ackerson. Fisher then 2 spoke with the woman who confirmed everything Fisher had 3 learned up to that point. 4 Eventually, Fisher sent White Plains Sergeant Stephen 5 Fottrell to the Eastchester Police Department to interview 6 Ackerson. 7 indicated that he had suspected his ex-girlfriend was 8 cheating on him with someone who lived at the woman s 9 residence. Ackerson apologized for scaring the woman and When Fottrell asked how he learned the woman s 10 address, Ackerson became uncooperative and stopped answering 11 questions. 12 Fottrell then called Fisher, who directed him to arrest 13 Ackerson for menacing. 14 that he believed Ackerson s actions constituted third-degree 15 menacing because 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 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. 5 1 JA 108(emphasis added). Fottrell also believed the conduct 2 supported an arrest for menacing because: 3 4 5 6 7 8 9 10 11 12 13 14 15 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 16 following in an accusatory instrument for third-degree 17 18 19 20 21 22 23 24 25 26 27 menacing: JA 25. 28 the above synopsis and adds that at one point the woman 29 asked a neighbor to stay nearby while Ackerson was in her 30 driveway. 31 32 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 6 1 November 9, 2007 and released on his own recognizance. 2 court dismissed the information on January 31, 2008 on the 3 ground that it failed to make out the crime of third-degree 4 menacing. 5 The Ackerson filed a complaint in the Southern District of 6 New York alleging false arrest and malicious prosecution 7 claims against Fisher and Fottrell under § 1983 and the City 8 of White Plains alleging that the White Plains Police Bureau 9 failed to train and supervise the officers under § 1983 (the 10 Monell claim ). The complaint also asserted false arrest 11 and malicious prosecution claims under New York law against 12 all defendants. 13 the district court granted summary judgment for the City on 14 the Monell claim, dismissed all claims against the White 15 Plains Police Bureau, and denied the motions in all other 16 respects. 17 partial summary judgment motion conceding that there were no 18 material issues of fact. 19 district court concluded that the defendants were entitled 20 to qualified immunity as a matter of law and dismissed all 21 of his claims. 22 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 7 1 2 3 4 5 6 Discussion1 I. Federal and State False Arrest Claims A. Probable Cause 7 A § 1983 claim for false arrest . . . is 8 substantially the same as a claim for false arrest under New 9 York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) 10 (citations omitted). 11 false arrest requires that the plaintiff show that (1) the 12 defendant intended to confine him, (2) the plaintiff was 13 conscious of the confinement, (3) the plaintiff did not 14 consent to the confinement and (4) the confinement was not 15 otherwise privileged. 16 N.Y.2d 451, 456 (1975). 17 Under New York law, an action for Broughton v. State of New York, 37 Probable cause is a complete defense to an action for 18 false arrest brought under New York law or § 1983. Weyant, 19 101 F.3d at 852 (internal quotation marks and citation 20 omitted). 21 officers have . . . reasonably trustworthy information as 22 to[] facts and circumstances that are sufficient to warrant Probable cause to arrest exists when the 1 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). 8 1 a person of reasonable caution in the belief that an offense 2 has been . . . committed by the person to be arrested. 3 Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). 4 deciding whether probable cause existed for an arrest, we 5 assess whether the facts known by the arresting officer at 6 the time of the arrest objectively provided probable cause 7 to arrest. 8 2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 9 (2004)). In Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. Whether probable cause existed for the charge 10 actually invoked by the arresting officer at the time of 11 the arrest is irrelevant. 12 Defendants prevail if there was probable cause to arrest 13 Plaintiff[] for any single offense. 14 New York, 689 F.3d 98, 109-10 (2d Cir. 2012). 15 true under New York law: probable cause does not require an 16 awareness of a particular crime, but only that some crime 17 may have been committed. 18 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 19 Appellees have not provided us with a theory of 20 criminal liability, other than third-degree menacing, for 21 which probable cause might have existed to arrest Ackerson. 22 See e.g., Holley v. County of Orange, 625 F. Supp. 2d 131, 23 139 (S.D.N.Y. 2009). We therefore limit our discussion to 9 1 whether defendants had probable cause to arrest Ackerson for 2 third-degree menacing. 3 B. Third-Degree Menacing 4 In New York, [a] person is guilty of menacing in the 5 third degree when, by physical menace, he or she 6 intentionally places or attempts to place another person in 7 fear of death, imminent serious physical injury or physical 8 injury. 9 defendant must take a physical action with the intent to N.Y. Penal Law § 120.15 (emphasis added). The 10 make another reasonably afraid of an imminent danger; that 11 is, the perceived danger must be immediate. 12 Supp. 2d at 138 (emphasis added) (citations omitted); see 13 William C. Donnino, Practice Commentary, McKinney s 14 Consolidated Laws of New York, Penal Law § 120.15. 15 Holley, 625 F. Oral statements alone do not constitute a physical 16 menace and must be accompanied by a physical action beyond 17 approaching someone to talk with them. 18 Whidbee, 803 N.Y.S.2d 20 (N.Y. Kings Cty. Crim. Ct. 2005). 19 In Whidbee, the court noted that the only pertinent 20 allegations . . . are that the defendant approached the 21 complainant, questioned her about her current relationship 22 status, followed her and told her that if she called the 10 See People v. 1 police again she had better watch her back and her 2 children s back. 3 sustain a menacing charge because the only physical act 4 alleged . . . [was] that the defendant followed the 5 complainant. 6 a well-founded fear of imminent physical injury. 7 complainant fails to testify to actually being in fear of 8 injury, the evidence is insufficient to sustain a menacing 9 conviction. 10 11 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 12 menacing arrest by Fisher and Fottrell. Ackerson approached 13 the woman, came within a few feet of her in her driveway, 14 asked her questions, and left. 15 Ackerson arrested, Fisher had the benefit of Cotto s report, 16 a conversation with Cotto, and a conversation with the 17 complainant. 18 knowing what, if anything, [Ackerson] was capable of, the 19 woman never stated that she felt physically threatened or 20 that Ackerson took any assaultive actions. 21 instrument also did not contain any accusations amounting to 22 a physical menace, noting only that Ackerson followed her 23 to her residence and interrogated her about ownership of Before deciding to have Other than general statements as to not 11 The accusatory 1 her vehicle. 2 2 even rise to the level of a verbal threat, must less a 3 physical act that would reasonably have placed the 4 complainant in fear of imminent physical injury. 5 district court should have granted Ackerson s motion for 6 partial summary judgment on Appellees probable cause JA 25. Ackerson s alleged conduct did not Thus, the 7 8 9 10 11 12 affirmative defense. 13 arrest claims. 14 qualified immunity even when, as in this case, probable 15 cause to arrest does not exist, if he can establish that 16 there was arguable probable cause to arrest. 17 Lunn, 361 F.3d 737, 743 (2d Cir. 2004). 18 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 19 objectively reasonable for the officer to believe that 20 probable cause existed, or (b) officers of reasonable 21 competence could disagree on whether the probable cause test 22 was met. Id. (internal quotation marks omitted). 2 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). 12 1 respect, the qualified immunity test is more favorable to 2 the officers than the one for probable cause. 3 test is not toothless, however: If officers of reasonable 4 competence would have to agree that the information 5 possessed by the officer at the time of arrest did not add 6 up to probable cause, the fact that it came close does not 7 immunize the officer. 8 F.3d 76, 87 (2d Cir. 2007). 9 Id. The Jenkins v. City of New York, 478 Here, after noting that third-degree menacing 10 generally involve[s] more direct threats of physical harm 11 than the present case, the district court proceeded to 12 grant summary judgment for defendants on the theory that 13 Fisher and Fottrell were entitled to qualified immunity. 14 Ackerson v. City of White Plains, No. 08 Civ. 9549 (KTD), 15 2011 U.S. Dist. LEXIS 107383, at *4 (S.D.N.Y. Sept. 20, 16 2011). The district court excused the arrest because 17 18 19 20 21 22 23 24 25 26 27 28 29 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 13 1 2 3 4 5 6 7 8 9 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 10 menace. 11 disagree over whether probable cause existed without that 12 crucial element.3 13 asking them questions (even in an accusatory tone) does not 14 arguably satisfy the elements of any crime. 15 Police officers of reasonable competence could not Being tall, approaching someone, and We conclude that the district court erred in granting 16 summary judgment for the defendants and dismissing the 17 entire action on a theory of qualified immunity. 18 decided that neither probable cause nor arguable probable 19 cause existed for the arrest as a matter of law, we also 20 conclude that the district court erred in denying Ackerson s 21 motion for partial summary judgment as to liability on his 22 false arrest claims against Fisher and Fottrell. 23 concede that there are no material disputed facts, and they 3 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. 14 1 have not argued that they had probable cause to arrest 2 Ackerson for any other crime. 3 state law false arrest claim creates liability for the City 4 of White Plains, under a theory of respondeat superior, 5 Ackerson is also entitled to partial summary judgment as to 6 that defendant. 7 768 F.2d 34, 40 (2d Cir. 1985); Williams v. City of White 8 Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010). 9 Moreover, because Ackerson s See Raysor v. Port Auth. of N.Y. & N.J., Lastly, we affirm the district court s grant of summary 10 judgment on the Monell claim, as well as the dismissal of 11 the malicious prosecution claims. 12 Monell claim but only made passing references to it in his 13 opening brief. 14 dismissal of his malicious prosecution claim under either 15 New York Law or § 1983. 16 F.3d 58, 76 (2d Cir. 2001); see also Frank v. United States, 17 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds 18 by, 521 U.S. 1114 (1997). 19 20 21 22 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 23 court is VACATED. The order of the district court granting 24 summary judgment to all defendants on the theory that Fisher 15 1 and Fottrell were entitled to qualified immunity is hereby 2 REVERSED; denying partial summary judgment on Ackerson s 3 state law false arrest claims against Fisher, Fottrell, and 4 the City of White Plains is REVERSED; and denying partial 5 summary judgment for Ackerson against Fisher and Fottrell 6 under § 1983 for false arrest is REVERSED. 7 district court s grant of summary judgment for Defendants- 8 Appellees on the Monell claim and the dismissal of all 9 malicious prosecution claims under New York law and § 1983. 10 The case is REMANDED with instructions to grant Ackerson s 11 motion for partial summary judgment on liability for his 12 state law false arrest claims against Fisher, Fottrell, and 13 the City of White Plains; against Fisher and Fottrell under 14 § 1983 for his false arrest claims; and for the dismissal of 15 the affirmative defenses of probable cause. 16 16 We AFFIRM the