Reisha Simpson v. City of New York
2015 U.S. App. LEXIS 12163
| 2d Cir. | 2015Background
- On June 2011 Reisha Simpson boarded a BX19 bus through the rear after the driver directed passengers to the back because a mechanical lift at the front was malfunctioning; she waited in line to swipe her MetroCard.
- NYPD Officer Kenson Nelson approached Simpson earlier, made flirtatious advances that she rebuffed, then intercepted her on the bus, demanded ID, removed her PBA card from her wallet, handcuffed her, and had her arrested for theft of services.
- All criminal charges were dismissed about four months later. Simpson sued Officer Nelson and others under 42 U.S.C. § 1983 and New York law for false arrest, false imprisonment, negligence, and related claims.
- The district court initially denied summary judgment on false arrest claims and rejected qualified immunity but later—sua sponte—granted summary judgment for defendants, concluding Nelson had probable cause because Simpson entered through a rear door marked "no entry."
- The Second Circuit reviewed de novo, viewing disputed facts in Simpson’s favor, and concluded genuine issues of material fact exist as to whether Nelson had probable cause for theft of services or criminal impersonation and whether qualified immunity applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for theft of services | Simpson says she entered rear only after driver directed passengers back, waited to pay, so no intent to avoid fare | Nelson says seeing her enter rear marked "no entry" without paying established probable cause | Vacated summary judgment — material facts disputed; jury could credit Simpson and find no probable cause |
| Probable cause for criminal impersonation | Simpson says Nelson took her PBA card without consent; she did not hold herself out as an officer | Nelson argues her PBA card was exposed and she was trying to appear an officer to avoid arrest | No probable cause as matter of law is inappropriate on summary judgment given disputed facts; cannot resolve now |
| Qualified immunity | Simpson: officer not entitled because no probable cause and conduct unreasonable | Nelson: objectively reasonable to believe arrest lawful based on observed entry through rear door | Vacated — disputed facts preclude concluding Nelson had at least arguable probable cause; immunity not appropriate at summary judgment |
| Scope of appellate review (City liability) | Simpson attempts to challenge City dismissal | Defendants/respondent note Simpson abandoned that issue | Court affirms dismissal of City claims because Simpson did not properly raise them on appeal |
Key Cases Cited
- Lederman v. NYC Dep’t of Parks & Recreation, 731 F.3d 199 (2d Cir. 2013) (summary-judgment facts construed in favor of non-moving party)
- Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005) (credibility assessments and conflicting versions are for the jury at summary judgment)
- Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996) (defense to false arrest: probable cause or qualified immunity)
- Jenkins v. City of New York, 478 F.3d 76 (2d Cir. 2007) (§ 1983 false arrest same as New York false arrest)
- Jaegly v. Couch, 439 F.3d 149 (2d Cir. 2006) (officer need not have probable cause for the specific charge actually invoked)
- Cerrone v. Brown, 246 F.3d 194 (2d Cir. 2001) (qualified immunity standard; objective reasonableness)
- Escalera v. Lunn, 361 F.3d 737 (2d Cir. 2004) ("arguable probable cause" and its two formulations)