The case is Marom v. Town of Greenburgh, a summary order decided on January 23. Let's savor the facts of this case together:
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.” 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.Third degree assault in New York involves physical injury, defined as impairment of physical condition or substantial pain. Petty slaps, in contrast, don't count and instead constitute harassment and not assault. Even a red mark or a black eye is not enough for an assault charge. The problem for plaintiff is that the victim
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.”While plaintiff says his wife told the police that the victim kicked him before plaintiff hit her, that does not mean the police lacked probable cause. True, self defense is the kind if justification defense that can get you off the hook, but, as the Second Circuit (Winter, Lynch and Droney) says with understatement, "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 police are not required to investigate exculpatory defenses prior to making an arrest, plaintiff's case does not survive summary judgment.
This same plaintiff recently lost another constitutional claim against a different municipality. He was a landlord who hosted an open house. The code enforcement officers showed up and issued him a citation for plumbing violations.The Court of Appeals in that case concluded that "Because Marom exposed his house and sauna to the public when he held the open house, the Defendants did not violate Marom’s Fourth Amendment rights by conducting an inspection and viewing the sauna during the event."