Second Circuit awards summary judgment to false arrest plaintiff

The Court of Appeals has affirmatively granted summary judgment on a false arrest claim in favor of the plaintiff, who was arrested for third-degree menacing after he approached a woman in her driveway and asked questions about her family and accused her of sideswiping his vehicle. While the district court granted summary judgment to the defendant police officers, that ruling is reversed. Instead, the plaintiff wins liability on appeal. 

The case is Ackerson v. City of White Plains, decided on November 29. The police report said that Ackerman went to a woman's house and claimed that she sideswiped his car that day. The woman said that her husband was driving the car.. The woman had heard that plaintiff was a stalker and she feared for her safety. Plaintiff also asked about her daughter. The district court held that the officers had probable cause to arrest this guy for menacing, knocking out the case. The Court of Appeals reverses, and the plaintiffs wins the case. This is rare. Normally, summary judgment in favor of the defendants is reversed and the case is remanded for trial. What makes it even more unusual is that false arrest cases are hard to win because the police are often given the benefit of the doubt and probable cause carries a low threshold.

There is no probable cause as matter of law to arrest plaintiff for menacing. Here's the law on menacing in New York:

"A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” N.Y. Penal Law § 120.15. The defendant must take a physical action with the intent to make another reasonably afraid of an “imminent danger; that is, the perceived danger must be immediate.”

In addition, "[o]ral statements alone do not constitute a physical menace and must be accompanied by a physical action beyond approaching someone to talk with them." Third-degree menacing also requires a well-founded fear of imminent physical injury. As the Court of Appeals (Wesley, Chin and Larimer [D.J.] sees it, "Ackerson approached the woman, came within a few feet of her in her driveway, asked her questions, and left. ... [T]he woman never stated that she felt physically threatened or that Ackerman took any assaultive actions." There was no probable cause, and there was also no qualified immunity for the officers since, the Second Circuit holds, no reasonably competent police officer would believe there was probable cause to arrest plaintiff for menacing. "Being tall, approaching someone, and asking them questions (even in an accusatory tone) does not arguably satisfy the elements of any crime."