     11-4649-cv
     Ackerson v. City of White Plains, et al.
 1
 2                     UNITED STATES COURT OF APPEALS
 3
 4                          FOR THE SECOND CIRCUIT
 5
 6
 7
 8                             August Term, 2012
 9
10   Argued: October 29, 2012                Decided: November 29, 2012
11                                           Amended: December 4, 2012
12
13                           Docket No. 11-4649-cv
14
15
16                                SHAWN ACKERSON,
17
18                                                    Plaintiff-Appellant,
19
20                                    –v.–
21
22    CITY OF WHITE PLAINS, POLICE BUREAU OF WHITE PLAINS, STEPHEN FOTTRELL,
23   INDIVIDUALLY AND IN HIS CAPACITY AS SERGEANT IN THE POLICE BUREAU OF WHITE
24    PLAINS, ERIC FISHER, INDIVIDUALLY AND IN HIS CAPACITY AS A LIEUTENANT IN
25   THE POLICE BUREAU OF WHITE PLAINS, JOHN DOE, WHOSE TRUE NAME IS NOT KNOWN
26   TO PLAINTIFF, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER IN THE POLICE
27                            BUREAU OF WHITE PLAINS,
28
29                                                   Defendants-Appellees.
30
31
32
33
34
35
36   Before:
37       WESLEY, CHIN, Circuit Judges, LARIMER, District Judge.*
38
39
40

          *
            The Honorable David G. Larimer, of the United States
     District Court for the Western District of New York, sitting by
     designation.
 1        Appeal from a September 27, 2011 judgment of the United
 2   States District Court for the Southern District of New York
 3   (Duffy, J.), granting Appellees’ motion for summary judgment
 4   and dismissing the case in its entirety. Plaintiff-Appellant
 5   was arrested for third-degree menacing under New York law
 6   and brought an action against the Appellees for false
 7   arrest, malicious prosecution, and violation of his
 8   constitutional rights under 42 U.S.C. § 1983. Appellant
 9   also sued the City of White Plains under § 1983 for failure
10   to train and supervise the arresting officers. Appellant
11   asks us to vacate the judgment, reverse the district court’s
12   grant of summary judgment for Appellees on qualified
13   immunity grounds, reverse the denial of his motion for
14   partial summary judgment as to liability on his false arrest
15   claims under New York law and § 1983, and reverse the denial
16   of his motion for partial summary judgment dismissing
17   Appellees’ probable cause defense. Appellant also asks us
18   to reverse the district court’s grant of summary judgment
19   for the City of White Plains under § 1983. We reverse in
20   part and affirm in part.
21
22        REVERSED IN PART, AFFIRMED IN PART.
23
24
25
26             David Gordon, Gordon & Haffner, LLP, Harrison, NY,
27                  for Plaintiff-Appellant.
28
29             Frances Dapice Marinelli, Joseph A. Maria, P.C.,
30                  for Defendants-Appellees.
31
32
33
34   PER CURIAM:

35         Plaintiff-Appellant Shawn Ackerson appeals from a

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                            Background

 8       On Thursday, November 8, 2007, Ackerson was arrested

 9   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.   This “conversation”

12   ended with the woman demanding that Ackerson leave.     The

13   woman then called the police.   The following are the

14   relevant, undisputed facts as the officers knew them at the

15   time of the arrest.

16       Officer Cotto responded to the woman’s complaint and

17   filed the following report:

18            a white male [named] Sean [sic] Ackerson
19            came to [the woman’s] house . . . claiming
20            that the vehicle she was driving sideswiped
21            his earlier that day in Eastchester.
22            Ackerson told her that he got her address
23            via her license plate. [The woman] told
24            Ackerson that her husband had been . . .
25            driving her car earlier that day to a
26            contracting site in Eastchester. [The
27            woman] later found out from her husband
28            that the site he is working from is the

                              3
 1             residence of Sean [sic] Ackerson’s [e]x-
 2             girlfriend . . . whom Ackerson has been
 3             stalking.   [The woman] was fearful that
 4             Ackerson might harm her and she called the
 5             police; Ackerson disappeared. Report was
 6             referred to Lt. Fisher for follow up and
 7             [the woman] will be in later to give a
 8             statement.
 9
10   JA 111.   White Plains Lieutenant Eric Fisher became aware of

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.     Fisher then

15   checked the computer dispatch system and came across Cotto’s

16   report.   Cotto eventually spoke with Fisher and said the

17   woman

18             had pulled into her driveway in her
19             vehicle. When she was exiting her vehicle,
20             a male suspect approached her from behind,
21             ask[ed] her if she lived [t]here . . . .
22             He asked her questions about her vehicle
23             possibly sideswiping his vehicle earlier in
24             the day in Eastchester. He then approached
25             her and asked her a question about her
26             child. She said that she became nervous.
27             She didn’t know who this subject was. She
28             then ran into the house shortly thereafter.
29             The subject then fled in his car.
30
31   JA 242-43.

32       Fisher called Mignone and told him there had been an

33   incident involving Ackerson in White Plains.     Mignone told


                                   4
 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.    Ackerson apologized for scaring the woman and

 7   indicated that he had suspected his ex-girlfriend was

 8   cheating on him with someone who lived at the woman’s

 9   residence.    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.     In his deposition, Fisher stated

14   that he believed Ackerson’s actions constituted third-degree

15   menacing because

16               the fact that all of the information that
17               I had developed, coupled with the fact that
18               he had obtained her address and name, drove
19               to her house, approached her in her
20               driveway, got out of the car, approached
21               her in her driveway while she was getting
22               out of the car alone and just getting out
23               of the hospital, by asking her questions
24               relative to her family and her children, by
25               approaching her in the driveway, to the
26               point where she needed to call her neighbor
27               to stand by outside with her because of the
28               fear that this unknown subject put in her,
29               I believe that constituted a menace.
30

                                     5
 1   JA 108(emphasis added). Fottrell also believed the conduct

 2   supported an arrest for menacing because:

 3
 4               Mr. Ackerson approached a woman in the
 5               driveway of her home, called her by name,
 6               accused her of having a car accident with
 7               him and leaving, started asking her
 8               questions about the ages of her children.
 9               And at this time, he was within two to
10               three feet of her. Mr. Ackerson is a large
11               individual, which I believe placed the
12               complainant in fear of her safety.
13

14   JA 127(emphasis added).

15       After arresting Ackerson, Fottrell asserted the

16   following in an accusatory instrument for third-degree

17   menacing:
18
19               FACTS: The defendant . . . did place [the
20               woman] in fear of physical injury by
21               following   her  to   her  residence   and
22               interrogating her about ownership of her
23               vehicle. The defendant claims the victim’s
24               vehicle had side swiped his earlier in the
25               day.
26
27   JA 25.   Fottrell’s post-arrest report does not deviate from

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       Ackerson was prosecuted on the misdemeanor information

32   in White Plains City Court.    Ackerson was arraigned on



                                     6
 1   November 9, 2007 and released on his own recognizance.     The

 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       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.     After cross-motions for summary judgment,

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.   Ackerson then moved for reconsideration of his

17   partial summary judgment motion—conceding that there were no

18   material issues of fact.     On September 22, 2011, the

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.     Judgment was entered consistent with that

22   order, and Ackerson appealed.



                                     7
 1
 2                               Discussion1
 3
 4   I.   Federal and State False Arrest Claims
 5
 6        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).     Under New York law, an action for

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.”     Broughton v. State of New York, 37

16   N.Y.2d 451, 456 (1975).

17        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).     “Probable cause to arrest exists when the

21   officers have . . . reasonably trustworthy information as

22   to[] facts and circumstances that are sufficient to warrant

          1
            “We review de novo a district court’s ruling on cross-
     motions 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).       In

 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.”     Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.

 8   2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153

 9   (2004)).      Whether probable cause existed for the charge

10   “actually invoked by the arresting officer at the time of

11   the arrest” is irrelevant.     Id. at 154.   “Accordingly,

12   Defendants prevail if there was probable cause to arrest

13   Plaintiff[] for any single offense.”     Marcavage v. City of

14   New York, 689 F.3d 98, 109-10 (2d Cir. 2012).     The same is

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.”     Wallace v. City of Albany, 283

18   A.D.2d 872, 873 (3d Dep’t 2001).

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.”   N.Y. Penal Law § 120.15 (emphasis added).   The

 9   defendant must take a physical action with the intent to

10   make another reasonably afraid of an “imminent danger; that

11   is, the perceived danger must be immediate.”   Holley, 625 F.

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       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.   See People v.

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
 1   police again she had better watch her back and her

 2   children’s back.”       Id.   Those actions were insufficient to

 3   sustain a menacing charge because “the only physical act

 4   alleged . . . [was] that the defendant followed the

 5   complainant.”     Id.    Moreover, third-degree menacing requires

 6   a well-founded fear of imminent physical injury.          When a

 7   complainant fails to testify to actually being in fear of

 8   injury, the evidence is insufficient to sustain a menacing

 9   conviction.     See People v. Peterkin, 245 A.D.2d 1050, 1051

10   (4th Dep’t 1997).

11       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.          Before deciding to have

15   Ackerson arrested, Fisher had the benefit of Cotto’s report,

16   a conversation with Cotto, and a conversation with the

17   complainant.    Other than general statements as to not

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.          The accusatory

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

                                        11
 1   her vehicle.”2   JA 25.   Ackerson’s alleged conduct did not

 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.      Thus, the

 5   district court should have granted Ackerson’s motion for

 6   partial summary judgment on Appellees’ probable cause

 7   affirmative defense.
 8
 9
10   II. Qualified Immunity
11
12        Qualified immunity is a complete defense to false

13   arrest claims.   An arresting officer is entitled to

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.”      Escalera v.

17   Lunn, 361 F.3d 737, 743 (2d Cir. 2004).

18        “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).     In this



          2
           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.”   Id.   The

 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.”   Jenkins v. City of New York, 478

 8   F.3d 76, 87 (2d Cir. 2007).

 9       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            Ackerson, a large man, approached [the
19            woman] at her home, placed himself within
20            a few feet of her, and asked questions
21            about her children, an arresting officer
22            could reasonably conclude that Ackerson’s
23            approaching [the woman] was an action that
24            made [her] fear for her physical well-
25            being. Similarly, based on [the woman’s]
26            statement that she became “nervous,” felt
27            need to yell to a neighbor that she might
28            need him to call the police, assumed
29            Ackerson was stalking his ex-girlfriend and

                              13
 1             “became very afraid suspecting that this
 2             person was capable of anything,” one could
 3             reasonably conclude that she had a fear of
 4             imminent harm.”
 5
 6   Id. at *4-5.
 7
 8        The district court’s analysis elides the key legal

 9   requirement for a third-degree menacing charge: A physical

10   menace.   Police officers of reasonable competence could not

11   disagree over whether probable cause existed without that

12   crucial element.3   Being tall, approaching someone, and

13   asking them questions (even in an accusatory tone) does not

14   arguably satisfy the elements of any crime.

15        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.      Having

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.      Defendants

23   concede that there are no material disputed facts, and they

          3
            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.        Moreover, because Ackerson’s

 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.     See Raysor v. Port Auth. of N.Y. & N.J.,

 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       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.        Ackerson appealed the

12   Monell claim but only made passing references to it in his

13   opening brief.    Moreover, Ackerson has not contested the

14   dismissal of his malicious prosecution claim under either

15   New York Law or § 1983.     See Tolbert v. Queens College, 242

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                               Conclusion
21
22       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.    We AFFIRM the

 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




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