Franco v. City of Syracuse, No. 19-0891 (2d Cir. 2020)
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After plaintiff was acquitted for disorderly conduct, resisting arrest, and harassment, he filed suit under 42 U.S.C. 1983, alleging claims of excessive force, false arrest, and malicious prosecution. Two officers moved for summary judgment based on qualified immunity, but the district court denied the motion.
The Second Circuit dismissed the officers' appeal based on lack of appellate jurisdiction, holding that the district court did not err as a matter of law when it concluded that there is a genuine dispute of material fact as to whether one of the officers gave verbal commands to disperse prior to his arresting plaintiff and thus had probable cause for the arrest. The court also held that it is properly up to the jury, not a court of appeals, to determine whether to believe testimony supporting plaintiff's claim that there was no such command from the officer.
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