Argued January 9, 2015.
Appeal from the United States District Court for the Southern District of New York (Forrest, J.) granting summary judgment in favor of appellees on appellant's false arrest claims and on appellee Nelson's assertion of qualified immunity. We hold that the district court erred in granting appellees' motion for summary judgment because on the facts viewed in the light most favorable to appellant, a reasonable juror could conclude that appellee Nelson lacked probable cause to arrest appellant for theft of services and, because it was unreasonable for him to believe there was probable cause, appellee Nelson would not be protected by qualified immunity. The judgment of the district court is VACATED, and the case is REMANDED for further proceedings.
STEVEN H. GOLDMAN, Law Office of Steven H. Goldman, Bronx, NY, for Plaintiff-Appellant.
SCOTT SHORR, Assistant Corporation Counsel (Francis F. Caputo, Assistant Corporation Counsel on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
Before: HALL, LYNCH, AND CARNEY, Circuit Judges.
Hall, Circuit Judge :
The issue before the Court is whether, on the facts of this case viewed in the light most favorable to Plaintiff-Appellant Reisha Simpson (" Ms. Simpson" ), a reasonable juror could find that Defendant-Appellee New York City Police Officer Kenson Nelson (" Officer Nelson" ) had probable cause to arrest Ms. Simpson for theft of services after she rebuffed his flirtatious advances, entered the back door of the bus she was intending to ride because the driver could not fix the stuck lift at the front entrance and told passengers to enter through the rear, and was proceeding in line to swipe her MetroCard when Officer Nelson intercepted her and made her get off the bus.
Ms. Simpson appeals from portions of a district court order entering summary judgment in favor of Officer Nelson on false arrest claims brought under both 42 U.S.C. § 1983 and New York State law and on grounds of qualified immunity. Because the material facts of this case are in dispute, we emphasize at the outset that we, and the district court, are bound to consider the facts in the light most favorable to Ms. Simpson, the non-moving party. See Lederman v. NYC Dep't of Parks & Recreation, 731 F.3d 199, 202 (2d Cir. 2013) (" We . . . resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." (internal quotation marks and alterations omitted)). Viewing the facts in that light, and drawing all reasonable inferences in Ms. Simpson's favor, the following comprise the material facts of this case.
A. Factual Background
In June 2011, Ms. Simpson was walking to the 149th Street and Third Avenue BX19 bus stop in the Bronx when she noticed a crowd of people waiting to board the bus. She also noticed a woman in a mobile walker on a mechanical lift located at the front of the bus, the deck of which was suspended in the air. The lift had malfunctioned, and the bus driver was on the lift attempting to fix it.
While Ms. Simpson waited with the other passengers for the bus driver to fix the lift, Officer Nelson, who had been standing nearby, approached Ms. Simpson and remarked, " You're very pretty." Appellant's App. 164. Ms. Simpson responded, " Thank you." Id. at 166. Officer Nelson asked, " What's your name?" and she replied, " Reisha." Id. Officer Nelson then asked Ms. Simpson for her last name to which she replied, " I'm not telling you my last name." Id. When asked by Officer Nelson why she would not share her last name, Ms. Simpson responded that she was " with someone." Id. at 168. Officer Nelson's tone became aggressive and he remarked, " What does that have to do with me? . . . I'm a police officer, you know I can get your last name." Id. at 170-72. Ms. Simpson answered, " I know that." Id. While Ms. Simpson continued to wait in line to board the bus, Officer Nelson stood an " arm's length away" from her. Id. at 180.
Eventually the bus driver instructed the passengers to " Go around, go around" and opened the back doors of the bus. Id. at 184. Ms. Simpson and the passengers waiting in line then moved to the back entrance. Ms. Simpson boarded the bus and got in line to swipe her MetroCard at the front of the bus. As she neared the front, she heard someone yell, " Hey," and felt something thrust into her side. Id. at 190. She looked down and noticed Officer Nelson's police cap. Officer Nelson then asked Ms. Simpson, " Do you have ID?" and she responded, " Yes." Id. at 192. Officer Nelson said, " Let me see your ID." Id. Because she was about to swipe her MetroCard to pay the bus fare, she replied, " Okay, hold on." Id. Officer Nelson then yelled, " Don't swipe that card," again asked Ms. Simpson for her ID, and instructed her to " Come off the bus and show it to me." Id. at 192-98. As Ms. Simpson followed Officer Nelson off the bus, passengers yelled, " Is this a group lecture?" and " Do you see the thing in the front, do you see the lift?" Id. at 198. Once on the sidewalk, Officer Nelson yelled, " You want to embarrass me?" Id. at 201. Ms. Simpson responded, " Sir, I turned you down nicely." Id.
Having witnessed the bus driver repairing the mechanical lift, Ms. Simpson asked Officer Nelson, " So, am I getting back on this bus?" Id. He did not reply. He then took Ms. Simpson's ID, read her name aloud, and confirmed her address. He also reached into Ms. Simpson's wallet, which was already open, and removed her Police Benevolent Association (" PBA" ) card. Officer Nelson asked Ms. Simpson if she was " an officer," and she replied that she was. Id. at 54. He asked her to which precinct she belonged. Id. She replied that she was not with a precinct. Id. Officer Nelson put Ms. Simpson's ID card and her PBA card in his shirt pocket. ...