17-958-cv
Marom v. Town of Greenburgh


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 23rd day of January, two thousand eighteen.

PRESENT: RALPH K. WINTER,
           GERARD E. LYNCH,
           CHRISTOPHER F. DRONEY,
                 Circuit Judges.
_____________________________________

MICHAEL MAROM,

                              Plaintiff-Appellant,

                   v.                                            No. 17-958-cv

TOWN OF GREENBURGH, POLICE OFFICER JOHN
HERIGHTY, AND POLICE OFFICER KEIRA
KNOESEL,

                              Defendants-Appellees,

JOHN DOE, ARRESTING POLICE OFFICER, JANE
DOE, ARRESTING POLICE OFFICER, ROCCO V.
SALERNO, JR., DEBORAH SALERNO, MARK H.
GORDON, POLICE CHIEF JOSEPH DECARLO,
POLICE CAPTAIN CHRIS MCNURNEY, GEBE
GOUVEIA, AUDREY PIEROT, AND THE ESTATE OF
                                                      1
LATE STEVEN BALESCO,

                 Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT:                           Michael Marom, pro se, Apex, N.C.

FOR DEFENDANTS-APPELLEES
John Herighty and Keira Knoesel:                   Thomas J. Troetti, White Plains, NY.
FOR DEFENDANT-APPELLEE
Town of Greenburgh:                                No appearance.


      Appeal from a March 20, 2017 judgment of the United States District Court for the
Southern District of New York (Román, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Michael Marom, proceeding pro se, appeals from a judgment of
the United States District Court for the Southern District of New York (Román, J.) entered
on March 20, 2017, granting summary judgment in favor of Defendants-Appellees Police
Officers John Herighty and Keira Knoesel, and dismissing claims against the Town of
Greenburgh (“the Town”). Pursuant to 42 U.S.C. § 1983, Marom filed a complaint
asserting, inter alia, false arrest and malicious prosecution claims against Officers
Herighty and Knoesel, and the Town.1 The complaint arose from an altercation that
occurred following a town zoning board meeting involving Marom’s application for an
amended zoning variance. A number of Marom’s neighbors, including Deborah Salerno,
objected to Marom’s application. Following the meeting, Marom struck Salerno in the
face and was subsequently arrested by Officers Herighty and Knoesel for third degree
assault. Marom’s wife, who witnessed the incident, informed at least one officer on the
scene prior to Marom’s arrest that Salerno had kicked Marom before he struck her.
Salerno described the pain caused by the slap to officers as “excruciating.” Appellees’
App. 168. Herighty, Knoesel, and a sergeant together made the decision to arrest Marom.
The third degree assault charge was reduced to second degree harassment the day after
Marom’s arrest; he proceeded to a bench trial and was acquitted of that charge.

1
  Marom does not appeal from the district court’s February 23, 2015 order, which dismissed all Defendants
except for Herighty, Knoesel, and the Town, and all claims except for false arrest and malicious
prosecution.
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       Marom then filed this action. Concluding that the officers were entitled to
qualified immunity, the district court rejected Marom’s arguments that the officers lacked
even arguable probable cause to arrest him because (1) Salerno’s injuries were
insufficiently severe to support the third degree assault charge, and (2) his wife told police
that Salerno had kicked him first. The district court also dismissed the claims against the
Town.

       “We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d
Cir. 2011). Summary judgment is appropriate only if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

        The only issue before us is whether the district court correctly held that Herighty
and Knoesel were entitled to qualified immunity with respect to Marom’s false arrest
claim.2 “An officer is entitled to qualified immunity from a federal false arrest . . . claim if
he had arguable probable cause to arrest the plaintiff for any offense, regardless of the
offense with which the plaintiff was actually charged.” Kass v. City of N.Y., 864 F.3d 200,
206 (2d Cir. 2017). Probable cause exists when the officer is in “possession of facts
sufficient to warrant a prudent person to believe that the suspect had committed or was
committing an offense.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.
1997). Arguable probable cause exists when “it was objectively reasonable for the officer
to believe that probable cause existed, or officers of reasonable competence could disagree
on whether the probable cause test was met.” Kass, 864 F.3d at 206 (alteration and
internal quotation marks omitted).

       Marom argues that the officers lacked probable cause to arrest him for third degree
assault because Salerno, the victim, was not injured, as required by New York law. Under
New York law, “[a] person is guilty of assault in the third degree when . . . [w]ith intent to
cause physical injury to another person, he causes such injury to such person.” N.Y. Penal
Law § 120.00. “‘Physical injury’ means impairment of physical condition or substantial
pain.” Id. § 10.00(9). “[P]etty slaps, shoves, kicks and the like delivered out of hostility,
meanness and similar motives constitute only harassment and not assault, because they do

2
  Even “constru[ing] [Marom’s] pro se appellate brief[] . . . liberally and interpret[ing] [it] to raise the
strongest arguments [it] suggest[s],” Wright v. C.I.R., 381 F.3d 41, 44 (2d Cir. 2004), we conclude that
Marom does not challenge on appeal the dismissal of his claims against the Town, or the grant of summary
judgment to Herighty and Knoesel on his malicious prosecution claim. Accordingly, he has abandoned
any argument that either ruling was error. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.
1995) (holding, in the context of a pro se appeal, that issues not raised in an appellate brief are abandoned).
                                                      3
not inflict physical injury.” People v. Chiddick, 8 N.Y.3d 445, 448 (2007) (emphasis
added) (internal quotation marks omitted). Moreover, “[m]ere evidence of being struck
and suffering a red mark or a black eye is insufficient for the crime of assault.” Malte v.
State, 125 A.D.2d 958, 959 (4th Dep’t 1986). Although it is undisputed that Marom
slapped Salerno, Marom contends that, in light of the preceding legal principles, the slap
was insufficient to constitute an assault.

       However, Salerno complained to police of pain to her face and neck, and she
described the pain as “excruciating.” It is also undisputed that there were marks on
Salerno’s face that were observed by the arresting officers. In light of Salerno’s
characterization of the pain to the officers as “excruciating,”—a description that officers
could reasonably interpret as constituting “substantial pain,” N.Y. Penal Law
§ 10.00(9),—“it was objectively reasonable for the officer[s] to believe that probable cause
existed” with respect to the physical injury requirement, “or officers of reasonable
competence could disagree on whether the probable cause test was met.” Kass, 864 F.3d
at 206 (alteration and internal quotation marks omitted).

        Marom also appears to argue that the officers lacked probable cause to arrest him
because his wife had told them that Salerno kicked Marom before he hit her, giving rise to
a justification defense: self-defense. It is true that when making a probable cause
determination, an officer may not “deliberately disregard facts known to him which
establish justification.” Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003). However,
officers are not required “to investigate exculpatory defenses offered by the person being
arrested or to assess the credibility of unverified claims of justification before making an
arrest.” Id. “It is up to the factfinder to determine whether a defendant’s story holds
water, not the arresting officer.” Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989).

        Drawing all reasonable inferences in Marom’s favor, at the time of the arrest
officers were aware that Salerno kicked Marom, and in response, Marom slapped Salerno
in the face. Under New York law, force may be used in self-defense “to the extent [that
the one acting in self-defense] reasonably believes such [force] to be necessary to defend
himself, herself or a third person from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by such other person.” N.Y. Penal Law §
35.15(1). It is not clear from witness statements that Marom’s response to Salerno’s kick
to his shin—slapping her in the face—was necessary to defend himself or another.
Marom’s slap could reasonably be viewed by the arresting officers as an unnecessary—and
therefore unprivileged—act of retaliation. Since the officers were under no obligation “to
investigate exculpatory defenses offered by [Marom],” Jocks, 316 F.3d at 136, and were
entitled to allow the “factfinder to determine whether [Marom’s self-defense] story holds
water,” Krause, 887 F.2d at 372, Marom’s statements that he acted in self-defense, even

                                             4
supported by his wife’s statement that Salerno kicked him first, did not vitiate probable
cause to arrest him. Accordingly, the district court was correct in concluding that the
officers were entitled to qualified immunity.

      We have considered all of Marom’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O=Hagan Wolfe, Clerk of Court




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