The Honorable David G. Larimer, of the United States District Court for the Western… v. City of White Plains, et al. 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND…

* The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
11-4649-cv
Ackerson v. City of White Plains, et al.
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2012 8
9
Argued: October 29, 2012 Decided: November 29, 2012 10
Amended: December 4, 2012 11
12
Docket No. 11-4649-cv 13
14
15
S HAWN A CKERSON , 16
17
Plaintiff-Appellant, 18
19
–v.– 20
21
C ITY OF W HITE P LAINS , P OLICE B UREAU OF W HITE P LAINS , S TEPHEN F OTTRELL , 22
INDIVIDUALLY AND IN HIS CAPACITY AS SERGEANT IN THE P OLICE B UREAU OF W HITE 23
P LAINS , E RIC F ISHER , INDIVIDUALLY AND IN HIS CAPACITY AS A LIEUTENANT IN 24
THE P OLICE B UREAU OF W HITE P LAINS , J OHN D OE , WHOSE TRUE NAME IS NOT KNOWN 25
TO P LAINTIFF , INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER IN THE P OLICE 26
B UREAU OF W HITE P LAINS , 27
28
Defendants-Appellees. 29
30
31
32
33
34
35
Before: 36
W ESLEY , C HIN , Circuit Judges, L ARIMER , District Judge. *
37
38
39
40

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2
Appeal from a September 27, 2011 judgment of the United 1
States District Court for the Southern District of New York 2
(Duffy, J.), granting Appellees’ motion for summary judgment 3
and dismissing the case in its entirety. Plaintiff-Appellant 4
was arrested for third-degree menacing under New York law 5
and brought an action against the Appellees for false 6
arrest, malicious prosecution, and violation of his 7
constitutional rights under 42 U.S.C. § 1983. Appellant 8
also sued the City of White Plains under § 1983 for failure 9
to train and supervise the arresting officers. Appellant 10
asks us to vacate the judgment, reverse the district court’s 11
grant of summary judgment for Appellees on qualified 12
immunity grounds, reverse the denial of his motion for 13
partial summary judgment as to liability on his false arrest 14
claims under New York law and § 1983, and reverse the denial 15
of his motion for partial summary judgment dismissing 16
Appellees’ probable cause defense. Appellant also asks us 17
to reverse the district court’s grant of summary judgment 18
for the City of White Plains under § 1983. We reverse in 19
part and affirm in part. 20
21
R EVERSED IN P ART , A FFIRMED IN P ART . 22
23
24
25
David Gordon, Gordon & Haffner, LLP, Harrison, NY, 26
for Plaintiff-Appellant. 27
28
Frances Dapice Marinelli, Joseph A. Maria, P.C., 29
for Defendants-Appellees. 30
31
32
33
P ER C URIAM : 34
Plaintiff-Appellant Shawn Ackerson appeals from a 35
September 27, 2011 judgment of the United States District 36
Court for the Southern District of New York (Duffy, J.), 37
granting Appellees' motion for summary judgment and 38
dismissing the case in its entirety. The panel has reviewed 39

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3
the briefs and the record in this appeal and agrees 1
unanimously that oral argument is unnecessary because “the 2
facts and legal arguments [have been] adequately presented 3
in the briefs and record, and the decisional process would 4
not be significantly aided by oral argument.” Fed. R. App. 5
P. 34 (a)(2)(C). 6
Background 7
On Thursday, November 8, 2007, Ackerson was arrested 8
for third-degree menacing because he approached a woman in 9
her driveway, questioned her about members of her household, 10
and insisted that her car had hit his. This “conversation” 11
ended with the woman demanding that Ackerson leave. The 12
woman then called the police. The following are the 13
relevant, undisputed facts as the officers knew them at the 14
time of the arrest. 15
Officer Cotto responded to the woman’s complaint and 16
filed the following report: 17
a white male [named] Sean [sic] Ackerson 18
came to [the woman’s] house . . . claiming 19
that the vehicle she was driving sideswiped 20
his earlier that day in Eastchester. 21
Ackerson told her that he got her address 22
via her license plate. [The woman] told 23
Ackerson that her husband had been . . . 24
driving her car earlier that day to a 25
contracting site in Eastchester. [The 26
woman] later found out from her husband 27
that the site he is working from is the 28

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4
residence of Sean [sic] Ackerson’s [e]x- 1
girlfriend . . . whom Ackerson has been 2
stalking. [The woman] was fearful that 3
Ackerson might harm her and she called the 4
police; Ackerson disappeared. Report was 5
referred to Lt. Fisher for follow up and 6
[the woman] will be in later to give a 7
statement. 8
9
JA 111. White Plains Lieutenant Eric Fisher became aware of 10
this incident from Eastchester Detective Anthony Mignone. 11
Mignone called Fisher to tell him that, while investigating 12
an assault involving Ackerson, he learned that Ackerson may 13
have been at a house in White Plains that day. Fisher then 14
checked the computer dispatch system and came across Cotto’s 15
report. Cotto eventually spoke with Fisher and said the 16
woman 17
had pulled into her driveway in her 18
vehicle. When she was exiting her vehicle, 19
a male suspect approached her from behind, 20
ask[ed] her if she lived [t]here . . . . 21
He asked her questions about her vehicle 22
possibly sideswiping his vehicle earlier in 23
the day in Eastchester. He then approached 24
her and asked her a question about her 25
child. She said that she became nervous. 26
She didn’t know who this subject was. She 27
then ran into the house shortly thereafter. 28
The subject then fled in his car. 29
30
JA 242-43. 31
Fisher called Mignone and told him there had been an 32
incident involving Ackerson in White Plains. Mignone told 33

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5
Fisher that they planned on arresting Ackerson. Fisher then 1
spoke with the woman who confirmed everything Fisher had 2
learned up to that point. 3
Eventually, Fisher sent White Plains Sergeant Stephen 4
Fottrell to the Eastchester Police Department to interview 5
Ackerson. Ackerson apologized for scaring the woman and 6
indicated that he had suspected his ex-girlfriend was 7
cheating on him with someone who lived at the woman’s 8
residence. When Fottrell asked how he learned the woman’s 9
address, Ackerson became uncooperative and stopped answering 10
questions. 11
Fottrell then called Fisher, who directed him to arrest 12
Ackerson for menacing. In his deposition, Fisher stated 13
that he believed Ackerson’s actions constituted third-degree 14
menacing because 15
the fact that all of the information that 16
I had developed, coupled with the fact that 17
he had obtained her address and name, drove 18
to her house, approached her in her 19
driveway, got out of the car, approached 20
her in her driveway while she was getting 21
out of the car alone and just getting out 22
of the hospital, by asking her questions 23
relative to her family and her children, by 24
approaching her in the driveway, to the 25
point where she needed to call her neighbor 26
to stand by outside with her because of the 27
fear that this unknown subject put in her, 28
I believe that constituted a menace. 29
30

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6
JA 108(emphasis added). Fottrell also believed the conduct 1
supported an arrest for menacing because: 2
3
Mr. Ackerson approached a woman in the 4
driveway of her home, called her by name, 5
accused her of having a car accident with 6
him and leaving, started asking her 7
questions about the ages of her children. 8
And at this time, he was within two to 9
three feet of her. Mr. Ackerson is a large 10
individual, which I believe placed the 11
complainant in fear of her safety. 12
13
JA 127(emphasis added). 14
After arresting Ackerson, Fottrell asserted the 15
following in an accusatory instrument for third-degree 16
menacing: 17
18
FACTS: The defendant . . . did place [the 19
woman] in fear of physical injury by 20
following her to her residence and 21
interrogating her about ownership of her 22
vehicle. The defendant claims the victim’s 23
vehicle had side swiped his earlier in the 24
day. 25
26
JA 25. Fottrell’s post-arrest report does not deviate from 27
the above synopsis and adds that at one point the woman 28
asked a neighbor to stay nearby while Ackerson was in her 29
driveway. 30
Ackerson was prosecuted on the misdemeanor information 31
in White Plains City Court. Ackerson was arraigned on 32

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7
November 9, 2007 and released on his own recognizance. The 1
court dismissed the information on January 31, 2008 on the 2
ground that it failed to make out the crime of third-degree 3
menacing. 4
Ackerson filed a complaint in the Southern District of 5
New York alleging false arrest and malicious prosecution 6
claims against Fisher and Fottrell under § 1983 and the City 7
of White Plains alleging that the White Plains Police Bureau 8
failed to train and supervise the officers under § 1983 (the 9
“Monell claim”). The complaint also asserted false arrest 10
and malicious prosecution claims under New York law against 11
all defendants. After cross-motions for summary judgment, 12
the district court granted summary judgment for the City on 13
the Monell claim, dismissed all claims against the White 14
Plains Police Bureau, and denied the motions in all other 15
respects. Ackerson then moved for reconsideration of his 16
partial summary judgment motion—conceding that there were no 17
material issues of fact. On September 22, 2011, the 18
district court concluded that the defendants were entitled 19
to qualified immunity as a matter of law and dismissed all 20
of his claims. Judgment was entered consistent with that 21
order, and Ackerson appealed. 22

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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
Discussion 1
2
3
I. Federal and State False Arrest Claims 4
5
A. Probable Cause 6
“A § 1983 claim for false arrest . . . is 7
substantially the same as a claim for false arrest under New 8
York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) 9
(citations omitted). Under New York law, an action for 10
false arrest requires that the plaintiff show that “(1) the 11
defendant intended to confine him, (2) the plaintiff was 12
conscious of the confinement, (3) the plaintiff did not 13
consent to the confinement and (4) the confinement was not 14
otherwise privileged.” Broughton v. State of New York, 37 15
N.Y.2d 451, 456 (1975). 16
Probable cause “is a complete defense to an action for 17
false arrest” brought under New York law or § 1983. Weyant, 18
101 F.3d at 852 (internal quotation marks and citation 19
omitted). “Probable cause to arrest exists when the 20
officers have . . . reasonably trustworthy information as 21
to[] facts and circumstances that are sufficient to warrant 22

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9
a person of reasonable caution in the belief that an offense 1
has been . . . committed by the person to be arrested.” 2
Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). In 3
deciding whether probable cause existed for an arrest, we 4
assess “whether the facts known by the arresting officer at 5
the time of the arrest objectively provided probable cause 6
to arrest.” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 7
2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 8
(2004)). Whether probable cause existed for the charge 9
“actually invoked by the arresting officer at the time of 10
the arrest” is irrelevant. Id. at 154. “Accordingly, 11
Defendants prevail if there was probable cause to arrest 12
Plaintiff[] for any single offense.” Marcavage v. City of 13
New York, 689 F.3d 98, 109-10 (2d Cir. 2012). The same is 14
true under New York law: probable cause “does not require an 15
awareness of a particular crime, but only that some crime 16
may have been committed.” Wallace v. City of Albany, 283 17
A.D.2d 872, 873 (3d Dep’t 2001). 18
Appellees have not provided us with a theory of 19
criminal liability, other than third-degree menacing, for 20
which probable cause might have existed to arrest Ackerson. 21
See e.g., Holley v. County of Orange, 625 F. Supp. 2d 131, 22
139 (S.D.N.Y. 2009). We therefore limit our discussion to 23

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10
whether defendants had probable cause to arrest Ackerson for 1
third-degree menacing. 2
B. Third-Degree Menacing 3
In New York, “[a] person is guilty of menacing in the 4
third degree when, by physical menace, he or she 5
intentionally places or attempts to place another person in 6
fear of death, imminent serious physical injury or physical 7
injury.” N.Y. Penal Law § 120.15 (emphasis added). The 8
defendant must take a physical action with the intent to 9
make another reasonably afraid of an “imminent danger; that 10
is, the perceived danger must be immediate.” Holley, 625 F. 11
Supp. 2d at 138 (emphasis added) (citations omitted); see 12
William C. Donnino, Practice Commentary, McKinney’s 13
Consolidated Laws of New York, Penal Law § 120.15. 14
Oral statements alone do not constitute a physical 15
menace and must be accompanied by a physical action beyond 16
approaching someone to talk with them. See People v. 17
Whidbee, 803 N.Y.S.2d 20 (N.Y. Kings Cty. Crim. Ct. 2005). 18
In Whidbee, the court noted that “the only pertinent 19
allegations . . . are that the defendant approached the 20
complainant, questioned her about her current relationship 21
status, followed her and told her that if she called the 22

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11
police again she had better watch her back and her 1
children’s back.” Id. Those actions were insufficient to 2
sustain a menacing charge because “the only physical act 3
alleged . . . [was] that the defendant followed the 4
complainant.” Id. Moreover, third-degree menacing requires 5
a well-founded fear of imminent physical injury. When a 6
complainant fails to testify to actually being in fear of 7
injury, the evidence is insufficient to sustain a menacing 8
conviction. See People v. Peterkin, 245 A.D.2d 1050, 1051 9
(4th Dep’t 1997). 10
Here, there was no probable cause for the third-degree 11
menacing arrest by Fisher and Fottrell. Ackerson approached 12
the woman, came within a few feet of her in her driveway, 13
asked her questions, and left. Before deciding to have 14
Ackerson arrested, Fisher had the benefit of Cotto’s report, 15
a conversation with Cotto, and a conversation with the 16
complainant. Other than general statements as to not 17
knowing “what, if anything, [Ackerson] was capable of,” the 18
woman never stated that she felt physically threatened or 19
that Ackerson took any assaultive actions. The accusatory 20
instrument also did not contain any accusations amounting to 21
a physical menace, noting only that Ackerson followed “her 22
to her residence” and interrogated her “about ownership of 23

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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
her vehicle.” 2 JA 25. Ackerson’s alleged conduct did not 1
even rise to the level of a verbal threat, must less a 2
physical act that would reasonably have placed the 3
complainant in fear of imminent physical injury. Thus, the 4
district court should have granted Ackerson’s motion for 5
partial summary judgment on Appellees’ probable cause 6
affirmative defense. 7
8
9
II. Qualified Immunity 10
11
Qualified immunity is a complete defense to false 12
arrest claims. An arresting officer is entitled to 13
qualified immunity even when, as in this case, probable 14
cause to arrest does not exist, “if he can establish that 15
there was ‘arguable probable cause’ to arrest.” Escalera v. 16
Lunn, 361 F.3d 737, 743 (2d Cir. 2004). 17
“Arguable probable cause exists if either (a) it was 18
objectively reasonable for the officer to believe that 19
probable cause existed, or (b) officers of reasonable 20
competence could disagree on whether the probable cause test 21
was met.” Id. (internal quotation marks omitted). In this 22

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13
respect, the qualified immunity test “is more favorable to 1
the officers than the one for probable cause.” Id. The 2
test is not toothless, however: “If officers of reasonable 3
competence would have to agree that the information 4
possessed by the officer at the time of arrest did not add 5
up to probable cause, the fact that it came close does not 6
immunize the officer.” Jenkins v. City of New York, 478 7
F.3d 76, 87 (2d Cir. 2007). 8
Here, after noting that third-degree menacing 9
“generally involve[s] more direct threats of physical harm 10
than the present case,” the district court proceeded to 11
grant summary judgment for defendants on the theory that 12
Fisher and Fottrell were entitled to qualified immunity. 13
Ackerson v. City of White Plains, No. 08 Civ. 9549 (KTD), 14
2011 U.S. Dist. LEXIS 107383, at *4 (S.D.N.Y. Sept. 20, 15
2011). The district court excused the arrest because 16
17
Ackerson, a large man, approached [the 18
woman] at her home, placed himself within 19
a few feet of her, and asked questions 20
about her children, an arresting officer 21
could reasonably conclude that Ackerson’s 22
approaching [the woman] was an action that 23
made [her] fear for her physical well- 24
being. Similarly, based on [the woman’s] 25
statement that she became “nervous,” felt 26
need to yell to a neighbor that she might 27
need him to call the police, assumed 28
Ackerson was stalking his ex-girlfriend and 29

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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
“became very afraid suspecting that this 1
person was capable of anything,” one could 2
reasonably conclude that she had a fear of 3
imminent harm.” 4
5
Id. at *4-5. 6
7
The district court’s analysis elides the key legal 8
requirement for a third-degree menacing charge: A physical 9
menace. Police officers of reasonable competence could not 10
disagree over whether probable cause existed without that 11
crucial element. 3 Being tall, approaching someone, and 12
asking them questions (even in an accusatory tone) does not 13
arguably satisfy the elements of any crime. 14
We conclude that the district court erred in granting 15
summary judgment for the defendants and dismissing the 16
entire action on a theory of qualified immunity. Having 17
decided that neither probable cause nor arguable probable 18
cause existed for the arrest as a matter of law, we also 19
conclude that the district court erred in denying Ackerson’s 20
motion for partial summary judgment as to liability on his 21
false arrest claims against Fisher and Fottrell. Defendants 22
concede that there are no material disputed facts, and they 23

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15
have not argued that they had probable cause to arrest 1
Ackerson for any other crime. Moreover, because Ackerson’s 2
state law false arrest claim creates liability for the City 3
of White Plains, under a theory of respondeat superior, 4
Ackerson is also entitled to partial summary judgment as to 5
that defendant. See Raysor v. Port Auth. of N.Y. & N.J., 6
768 F.2d 34, 40 (2d Cir. 1985); Williams v. City of White 7
Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010). 8
Lastly, we affirm the district court’s grant of summary 9
judgment on the Monell claim, as well as the dismissal of 10
the malicious prosecution claims. Ackerson appealed the 11
Monell claim but only made passing references to it in his 12
opening brief. Moreover, Ackerson has not contested the 13
dismissal of his malicious prosecution claim under either 14
New York Law or § 1983. See Tolbert v. Queens College, 242 15
F.3d 58, 76 (2d Cir. 2001); see also Frank v. United States, 16
78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds 17
by, 521 U.S. 1114 (1997). 18
19
Conclusion 20
21
For the foregoing reasons, the judgment of the district 22
court is VACATED. The order of the district court granting 23
summary judgment to all defendants on the theory that Fisher 24

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and Fottrell were entitled to qualified immunity is hereby 1
REVERSED; denying partial summary judgment on Ackerson’s 2
state law false arrest claims against Fisher, Fottrell, and 3
the City of White Plains is REVERSED; and denying partial 4
summary judgment for Ackerson against Fisher and Fottrell 5
under § 1983 for false arrest is REVERSED. We AFFIRM the 6
district court’s grant of summary judgment for Defendants- 7
Appellees on the Monell claim and the dismissal of all 8
malicious prosecution claims under New York law and § 1983. 9
The case is REMANDED with instructions to grant Ackerson’s 10
motion for partial summary judgment on liability for his 11
state law false arrest claims against Fisher, Fottrell, and 12
the City of White Plains; against Fisher and Fottrell under 13
§ 1983 for his false arrest claims; and for the dismissal of 14
the affirmative defenses of probable cause. 15
16

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