23-24-cv Singh v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of January, two thousand twenty-four.
PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, EUNICE C. LEE, Circuit Judges. _____________________________________
Balwinder Singh,
Plaintiff-Appellant,
v. 23-24-cv
The City of New York, P.O. Mandeep Cheema, Tax Id. No. 950196, Individually and in his Official Capacity, Police Officers John Doe #1-10, Individually and in their Official Capacity (the name John Doe being fictitious, as the true names are presently unknown),
Defendants-Appellees. _____________________________________
FOR PLAINTIFF-APPELLANT: JOSHUA P. FITCH, Cohen & Fitch LLP, New York, NY.
FOR DEFENDANTS-APPELLEES: AMY MCCAMPHILL (Richard Dearing, Jamison Davies, on the brief), for HON. SYLVIA O. HINDS-RADIX, Corporation Counsel of the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Komitee, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part,
and the case is REMANDED for further proceedings consistent with this order.
Plaintiff-Appellant Balwinder Singh appeals from the judgment of the district court,
denying his motion for summary judgment and granting the cross-motion for summary judgment
by Defendants-Appellees the City of New York (the “City”) and Police Officer Mandeep Cheema
as to his claims under 42 U.S.C. § 1983, as well as the pendent claims under New York state law.
We assume the parties’ familiarity with the underlying facts, procedural history, and issues on
appeal, which we reference only as necessary to explain our decision.
This lawsuit arose from a February 28, 2018 incident at Singh’s apartment in Queens, New
York. Singh was intoxicated from drinking alcohol, and his wife called 911 to request that he be
taken to a hospital for evaluation. Emergency Medical Technicians (“EMTs”) who responded to
the call deemed Singh uncooperative and requested assistance from the New York Police
Department (“NYPD”). Upon arriving, three NYPD officers—Officers Mandeep Cheema, Justin
Davis, and Malinda Walker—spoke with Singh, his wife, and the EMTs, and attempted to convince
Singh to go voluntarily, rather than be handcuffed and forcibly removed, to the hospital. Singh
chose to go voluntarily, and began to get dressed and ready himself. After Singh put on additional
clothes, Officer Walker stood in front of the door and held it ajar so that Singh could walk out. As
Singh began to leave with the officers, he stopped and, according to Officer Cheema, stated that
2 Officer Cheema was “going to have to handcuff [him],” briefly gesturing with his arms behind his
back in a rear handcuffing position. Joint App’x at 484. As Officer Cheema began to remove his
handcuffs from his belt, Singh brought his hands out from behind his back and, according to
Officer Cheema, said, “I’m just joking. You’re not going to handcuff me.” Id. at 485. Then, as
Singh turned back and took a step forward, he was forcefully taken to the ground by Officer
Cheema, and was then handcuffed and transported to the hospital. Singh was never charged with
any crime and alleges that he suffered an aggravation of a prior right shoulder injury and an
abrasion to his face from being taken to the ground by Officer Cheema. Officer Cheema testified
that he believed that his use of force was necessary because he believed that Singh had taken a
“sudden step” towards Officer Walker and that the situation had become unsafe. Id. at 485. Officer
Cheema denies that the use of force was the result of his impatience or annoyance with any stalling
or indecision by Singh about voluntarily going to the hospital.
In his complaint, Singh asserted claims for violations of his constitutional rights against
the City, NYPD Officer Cheema, and ten unnamed NYPD officers, including claims for false
arrest, excessive force, and failure to intervene under Section 1983, and various pendent claims
under New York state law. After discovery, Singh moved for summary judgment on his excessive
force claim and defendants cross-moved for summary judgment on all claims. 1
On June 28, 2022, the magistrate judge issued a Report and Recommendation (“R&R”),
recommending that the district court (1) deny both parties’ motions for summary judgment as to
the excessive force claim, (2) deny defendants’ motion for summary judgment as to the state law
1 In connection with the summary judgment motions, Singh withdrew his Section 1983 claims for failure to intervene and his municipal liability claim against the City, as well as his state law claim for negligent hiring/retention and intentional infliction of emotional distress. Singh also does not challenge the district court’s dismissal of the “John Doe” defendants.
3 assault and battery claims, and (3) grant defendants’ motion for summary judgment as to the false
arrest claims. Neither party objected to the R&R, and on September 30, 2022, the district court
adopted the magistrate judge’s recommendation in part, granting summary judgment for the
defendants on Singh’s false arrest claims under federal and state law. The district court, however,
declined to adopt the recommendation as to the defendants’ motion for summary judgment on
Singh’s federal excessive force and state law assault and battery claims and granted summary
judgment to the defendants on those claims on the ground of qualified immunity. Singh now
appeals.
We review a district court’s grant of summary judgment de novo. Graham v. Long Island
R.R., 230 F.3d 34, 38 (2d Cir. 2000). “Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642
F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)); accord Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The doctrine of “[q]ualified immunity shields government officials from
civil damages liability unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012).
Officials are “entitled to qualified immunity [when] their decision was reasonable, even if
mistaken.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam). “[W]hen a defendant official
invokes qualified immunity as a defense in order to support a motion for summary judgment, a
court must consider two questions: (1) whether the evidence, viewed in the light most favorable
to the plaintiff, makes out a violation of a statutory or constitutional right, and (2) whether that
4 right was clearly established at the time of the alleged violation.” Tracy v. Freshwater, 623 F.3d
90, 96 (2d Cir. 2010).
I. False Arrest Claim under Section 1983 2
Singh argues that the district court erred in granting summary judgment in favor of Officer
Cheema on the false arrest claim under Section 1983 because Officer Cheema lacked probable
cause, or even arguable probable cause for purposes of qualified immunity, to involuntarily detain
and transport him to the hospital under the New York Mental Hygiene Law (“NYMHL”) based
upon his intoxication. As set forth below, we conclude that Officer Cheema had at least arguable
probable cause to detain Singh because of a likelihood of medical harm to himself due to his
intoxication and, thus, Officer Cheema was entitled to summary judgment based on qualified
immunity. 3
Probable cause is a complete defense to a constitutional claim of false arrest. Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Under the NYMHL, “[a] person who appears
to be incapacitated by alcohol and/or substances to the degree that there is likelihood to result in
2 Singh did not present any arguments in his opening brief challenging the grant of summary judgment on the false arrest claim under state law. Moreover, he did not even respond in his reply brief to Appellees’ argument that he abandoned that claim. Therefore, we conclude that Singh has abandoned that claim. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011). 3 As a threshold matter, Appellees argue that Singh waived any challenge to the dismissal of his false arrest claim by failing to object to the magistrate judge’s recommendation to grant summary judgment as to that claim. See Mario v. P & C Food Mkts, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice of the consequences, failure timely to object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.”). Singh counters, inter alia, that the waiver rule should be disregarded because the district court conducted de novo review in adopting the magistrate judge’s recommendation. See id. (“Where a district court conducts de novo review of an issue that was not raised in objection to magistrate’s report, this court may disregard the waiver and reach the merits.”). Although Appellees dispute whether the district court conducted de novo review on this claim, we need not address this issue because, even if Singh did not waive the challenge, we conclude that his challenge on the federal false arrest claim fails on the merits and, as noted above, he has abandoned any challenge to the false arrest claim under state law.
5 harm to the person or to others may be taken by . . . a police officer . . . to a treatment facility for
purposes of receiving emergency services.” N.Y. MENTAL HYG. LAW § 22.09(b)(2). A person is
“incapacitated” if he or she “as a result of the use of alcohol and/or substances, is unconscious or
has his or her judgment otherwise so impaired that he or she is incapable of realizing and making
a rational decision with respect to his or her need for treatment.” Id. § 22.09(a)(2). A seizure under
this New York statute is subject to “the same objective reasonableness standard that is imposed by
the Fourth Amendment.” Kerman v. City of New York, 374 F.3d 93, 100 (2d Cir. 2004) (internal
quotation marks and citation omitted) (interpreting NYMHL § 9.41). Therefore, “[a] warrantless
seizure for the purpose of involuntary hospitalization may be made only upon probable cause, that
is, only if there are reasonable grounds for believing that the person seized is dangerous to herself
or to others.” Anthony v. City of New York, 339 F.3d 129, 137 (2d Cir. 2003) (internal quotation
marks and citation omitted).
Moreover, even if a police officer lacked probable cause, the officer is still “entitled to
qualified immunity so long as ‘arguable probable cause’ was present when the arrest was made.”
Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (quoting Zalaski v. City of Hartford, 723 F.3d
382, 390 (2d Cir. 2013)). “A police officer has arguable probable cause ‘if either (a) it was
objectively reasonable for the officer to believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test was met.’” Id. (quoting
Zalaski, 723 F.3d at 390). We analyze “the ‘objective reasonableness’ of their chosen course of
action given the circumstances confronting them at the scene.” Lennon v. Miller, 66 F.3d 416, 421
(2d Cir. 1995).
6 We have explained that “‘[a]rguable’ probable cause should not be misunderstood to mean
‘almost’ probable cause. . . . If officers of reasonable competence would have to agree that the
information possessed by the officer at the time of arrest did not add up to probable cause, the fact
that it came close does not immunize the officer.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d
Cir. 2007). Under this standard, “an ‘arresting officer is entitled to qualified immunity as a matter
of law [only] if the undisputed facts and all permissible inferences favorable to the plaintiff show
that officers of reasonable competence could disagree on whether the probable cause test was
met.’” McClellan v. Smith, 439 F.3d 137, 147–48 (2d Cir. 2006) (alterations adopted) (quoting
Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)).
Here, it is undisputed that Singh’s wife called 911 at about 6:15 a.m., reporting that Singh
drank too much and that he needed to go to a hospital. 4 Two EMTs arrived about fifteen minutes
later. Although Singh’s wife disputes whether she told the EMTs that he was a harm to himself,
she acknowledged in her deposition that she told them he had “health issues.” Joint App’x at 1113.
In addition, when asked at her deposition whether she still believed that her husband needed to go
to the hospital after the EMTs arrived, she responded, “Yes, absolutely.” Id. at 1115. The EMTs
similarly concluded, as reflected in contemporaneous documentation, that Singh needed medical
care, that “[h]e did not have rational thinking,” and that “[h]e did not fit the criteria where he was
able to refuse care” as “[h]e did not have that decision[-]making capacity.” Id. at 926. Because
the EMTs determined that Singh was being uncooperative and refused to go the hospital
voluntarily, they requested police assistance. Officer Cheema and his two fellow officers arrived
4 Appellees note that Singh’s bloodwork at the hospital demonstrated that his alcohol levels were over three times the legal limit for intoxication, more than an hour after he had been detained by Officer Cheema. However, information obtained after the arrest is not relevant to the probable cause analysis, and we do not consider that fact here. See United States v. Martinez, 465 F.2d 79, 81–82 (2d Cir. 1972) (per curiam).
7 at Singh’s apartment shortly thereafter, and Officer Cheema learned the following about Singh
from the EMTs: “That he was intoxicated. He was incoherent. He had signs of an altered mental
state, and that they couldn’t leave him for fear that something might happen to him if they didn’t
get him evaluated.” 5 Id. at 455–56. Officer Cheema testified that his observations were consistent
with the assessment of the EMTs.
Singh disputes other aspects of the record, including whether: (1) his wife reported on the
911 call that he was a harm to himself; (2) he was belligerent or aggressive during his interactions
with the EMTs; and (3) Officer Cheema overheard Singh making threats towards his wife.
However, even putting aside these additional facts that would have further supported probable
cause, arguable probable cause existed for his detention based solely upon the above-referenced
uncontroverted evidence in the record, including the information regarding Singh’s condition
conveyed by the EMTs to Officer Cheema and the other police officers when they arrived on the
scene. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment.”). In other words, even with all reasonable inferences from the evidence
5 Singh attempts to dispute that this information was conveyed to Officer Cheema by arguing that the video of the incident from his apartment security system does not clearly show Cheema speaking with the EMTs. That sheer speculation, based on a video that contains no sound, is insufficient to create a disputed fact regarding the information conveyed to the police officers at the scene by the EMTs. See W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (“The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.” (internal quotation marks and citations omitted)). Moreover, to the extent that there is some evidence in the EMTs’ paperwork that indicated that Singh was “alert and oriented,” that paperwork also noted that he had “periods of incoherency” and was “in an irrational state,” Joint App’x at 118, and there is no indication that the police officers reviewed that paperwork. Thus, any inconsistencies in that paperwork do not undermine the uncontroverted evidence as to what was told to the officers by the EMTs upon their arrival. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“When determining whether probable cause exists courts must consider those facts available to the officer at the time of arrest and immediately before it . . . .” (internal quotation marks and citation omitted)).
8 drawn in Singh’s favor, we conclude that “officers of reasonable competence could disagree on
whether the probable cause test was met” with respect to Singh’s detention under NYMHL §
22.09(b)(2). See McClellan, 439 F.3d at 148 (internal quotation marks and citation omitted).
Accordingly, summary judgment was warranted on the false arrest claim on the ground of qualified
immunity.
II. Excessive Force Claim under Section 1983
The district court concluded that Officer Cheema was entitled to qualified immunity on the
federal excessive force claim because his perception of the events was reasonable as a matter of
law and no clearly established law prohibited his use of force against Singh under the
circumstances. In rejecting the R&R’s recommendation on this issue, the district court found that
“no reasonable jury could conclude that [Officer] Cheema violated a legal obligation that was
sufficiently clear that every reasonable official would have understood his conduct to violate that
obligation.” Singh v. City of New York, No. 19-CV-632(EK)(ST), 2022 WL 4596733, at *5
(E.D.N.Y. Sept. 30, 2022) (internal quotation marks and citation omitted). Singh argues, inter alia,
that the district court erred in “conflat[ing] the factual inquiry into the reasonableness of
defendant’s perception of the facts with the legal question of the reasonableness of defendant’s
belief with respect to the state of the law; and, in resolving the former, the court ignored every
single plaintiff-favorable fact and inference in contravention of the summary judgment standard.”
Appellant’s Br. at 29.
As set forth below, we conclude that the district court misapplied the qualified immunity
standard on the excessive force claim and erred in holding that Singh had failed to produce
9 sufficient evidence that, when construed most favorably to Singh, precluded summary judgment
on the qualified immunity defense.
“The Fourth Amendment prohibits the use of unreasonable and therefore excessive force
by a police officer in the course of effecting an arrest.” Tracy, 623 F.3d at 96. Application of this
reasonableness test “requires careful attention to the facts and circumstances of each particular
case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate
threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “Graham []
stands for the proposition that a government officer may not intrude on a person’s Fourth
Amendment rights by employing a degree of force beyond that which is warranted by the objective
circumstances of an arrest.” Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019). The
Graham factors and the reasonableness of a use of force are “judged from the perspective of a
reasonable officer on the scene,” and we must make “allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham,
490 U.S. at 396–97.
As an initial matter, the district court erred in suggesting that the jury, rather than the court,
decides the ultimate question as to qualified immunity. See Singh, 2022 WL 4596733, at *5; see
also id. at *9 (concluding that “no reasonable jury could find Cheema liable over a qualified
immunity defense”). To be sure, a jury must make a finding with respect to any disputed facts that
are material to the qualified immunity analysis including, if necessary, through the use of special
interrogatories at the time of the verdict. See Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990).
10 However, under our precedent, “[o]nce the jury has resolved any disputed facts that are material
to the qualified immunity issue, the ultimate determination of whether the officer’s conduct was
objectively reasonable is to be made by the court.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d
Cir. 2007); accord Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003).
Moreover, although the district court correctly noted that qualified immunity can protect
mistakes by police officers as to the facts of the situation confronting them, the Supreme Court has
made clear that qualified immunity only protects “reasonable mistakes.” Saucier v. Katz, 533 U.S.
194, 206 (2001). And, in this context, we have again emphasized that “disputed material issues
regarding the reasonableness of an officer’s perception of the facts (whether mistaken or not) is
the province of the jury, while the reasonableness of an officer’s view of the law is decided by the
district court.” Jones v. Treubig, 963 F.3d 214, 231 (2d Cir. 2020); see also Stephenson, 332 F.3d
at 78 (“[A]s the Supreme Court clarified in Saucier, claims that an officer made a reasonable
mistake of fact that justified the use of force go to the question of whether the plaintiff’s
constitutional rights were violated, not the question of whether the officer was entitled to qualified
immunity.”).
Here, we conclude that the district court improperly resolved factual disputes in concluding
that Officer Cheema was entitled to qualified immunity on the excessive force claim. For example,
the district court found that Officer Cheema “used a single, facially reasonable maneuver to subdue
a suspect who was undisputedly resisting arrest after a series of erratic actions (whether his intent
was ‘joking’ or not).” Singh, 2022 WL 4596733, at *10 (emphasis added). However, the factual
question as to whether Singh was resisting arrest was certainly disputed. Singh was never told he
was under arrest and was never charged with resisting arrest. Furthermore, Officer Cheema
11 indicated in his incident report that Singh did not attempt to physically harm or threaten another
person and testified in his deposition that, as to the entire incident, Singh had committed no crime.
See Joint App’x at 571 (testifying that, at the time he brought Singh to the hospital, “there was no
crime that I could think of that he could be charged with”); see also id. at 819 (Officer Walker
testifying that Singh was not arrested or charged with any crime, and “[i]f he committed a crime,
. . . he would have been arrested” for it). Indeed, Officer Davis questioned how Singh could have
resisted arrest when there had been no attempt to arrest him prior to him putting his hands (jokingly,
according to Singh) behind his back for a moment:
Q. Just prior to [Singh being taken to the ground by Officer Cheema], did you believe Mr. Singh was resisting apprehension by making that maneuver [i.e., putting his hands behind his back and then forward]? A. Resisting apprehension? He wasn’t – before that maneuver he wasn’t being apprehended so how would he resist? Joint App’x at 749 (objection omitted).
Similarly, the district court erred in finding, as a matter of law, that “[Singh’s] quick move
toward Officer Walker [was] reasonably interpreted as threatening, and/or as a first step toward
flight through the open door.” Singh, 2022 WL 4596733, at *6; see also id. at *8 (“[T]he video
shows that it was utterly reasonable for Cheema to conclude that Singh posed a risk to officer
safety and a risk of flight through the open door.”). Construing the evidence most favorably to
Singh, including all reasonable inferences drawn from that evidence, a rational jury could find that
Singh’s momentary placement of his hands behind his back was done in a joking manner and that
his step forward was simply a non-threatening continuation of his initial agreement to go to the
hospital voluntarily with the officers, and that any perception by Officer Cheema to the contrary
was not reasonable under the circumstances. See Amnesty Am. v. Town of W. Hartford, 361 F.3d
12 113, 123 (2d Cir. 2004) (“Given the fact-specific nature of the inquiry, granting summary judgment
against a plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder
could conclude that the officers’ conduct was objectively unreasonable.”).
We recognize that there are cases when the video evidence is so conclusive that summary
judgment is warranted, even in the face of contradictory testimony and other evidence offered by
a plaintiff. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different
stories, one of which is blatantly contradicted by the [video] record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.”). To the extent that the district court determined that this is one of those
cases, we respectfully disagree. First, the video in this case lacks sound and, thus, does not allow
a factfinder to consider the nature and tone of the exchange between Officer Cheema and Singh
immediately prior to the application of force. Moreover, the vantage point of the video does not
allow the factfinder to determine with pinpoint accuracy the distances between Singh and the
officers at the time the force was applied and, under the totality of the circumstances, allows for
fair debate about how Singh’s movement would reasonably be perceived. Indeed, Singh argues
that the video supports his position because, inter alia, Officer Davis, who had a similar vantage
to Officer Cheema, did not react in the video to Singh’s step forward and testified at one point in
his deposition that he did not perceive Singh’s movement as a danger to Officer Walker because
she was “not in that proximity,” Joint App’x at 700, and Officer Walker also had no visible reaction
in the video to Singh’s movement.
The conflicting inferences that can reasonably be drawn from the video are perhaps best
illustrated by the following testimony by Officer Cheema at his deposition:
13 Q. . . . Looking at the video from this perspective, did it appear to you that [Singh] was going to attack Officer Walker? A. Again, looking from the video, I can’t say for sure. All I can say is, at that time, that’s the thought that I perceived. Joint App’x at 551 (objection omitted). In addition, although the district court found that Singh’s
step forward could be interpreted as a “step toward flight,” Singh, 2022 WL 4596733, at *6, Officer
Cheema never testified that he used force because he believed Singh was attempting to flee, but
rather because he perceived Singh as posing a threat to Officer Walker.
We emphasize that, despite the reasonable inferences that could be drawn in favor of Singh,
a rational jury could find, based on the video and all of the other evidence in the record, that Officer
Cheema’s assessment of the situation, including his belief that Singh’s movement posed a threat
to Officer Walker, was reasonable. 6 However, contrary to the district court’s conclusion, a rational
jury, assuming it resolved all credibility assessments and drew all reasonable inferences from the
evidence in Singh’s favor (including from the video), could find that Officer Cheema’s perception
of the situation (including any mistaken perception) was unreasonable under the totality of the
circumstances. Thus, there is a genuine dispute of material fact that cannot be resolved by the
court, but rather must be left for the jury. 7 See Anderson, 477 U.S. at 255 (“Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . .”); see also Jones, 963 F.3d at 230 (concluding
6 For that reason, Singh’s cross-motion for summary judgment on the excessive force claim was properly denied. 7 The jury also must determine whether, even if Officer Cheema’s perception of the situation was objectively reasonable, the amount of force used by him was reasonable under the circumstances. See Curry v. City of Syracuse, 316 F.3d 324, 332 (2d Cir. 2003) (explaining that a plaintiff may prevail on an excessive force claim, even if he engaged in an initial act of aggression, “if he is able to show that [the officer] used more force than was necessary to subdue him”).
14 that “[any] mistaken belief does not shield [the officer] from liability because the evidence in the
record, when construed most favorably to [the plaintiff], would have allowed the jury to rationally
find that [the officer’s] subjective belief regarding ongoing resistance . . . was unreasonable”);
Brown v. City of New York, 798 F.3d 94, 103 (2d Cir. 2015) (“The assessment of a jury is needed
in this case. Even though most of the facts concerning the application of force are undisputed, a
jury will have to decide whether Fourth Amendment reasonableness was exceeded when [the
plaintiff] was taken to the ground after refusing to put her hands behind her back and when officers
struggled with her on the ground and used pepper spray to accomplish handcuffing.”).
Finally, the factual disputes that exist at step one of the qualified immunity analysis, with
respect to the reasonableness of Officer Cheema’s perception of the events and his corresponding
use of force, likewise preclude summary judgment at step two of that analysis, with respect to
“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202. It was clearly established at the time of this incident in
2018 that a police officer cannot use significant force against an individual where that individual
does not pose an immediate threat to the safety of others or is not actively resisting arrest or
attempting to evade arrest by flight. See Tracy, 623 F.3d at 98–99; see also Jones, 963 F.3d at 225
(holding that, prior to the police incident at issue in 2015, “it was clearly established in this Circuit
that it is a Fourth Amendment violation for a police officer to use significant force against an
arrestee who is no longer resisting and poses no threat to the safety of officers or others”).
Therefore, here, if a jury found that it was unreasonable at the time of the use of force for Officer
Cheema to believe that Singh posed a threat to Officer Walker or anyone else, or that he was
resisting arrest or fleeing, then Officer Cheema would not be entitled to qualified immunity
15 because no reasonable officer could believe under those circumstances that his use of force was
lawful. Accordingly, the district court erred in concluding that Officer Cheema was entitled to
qualified immunity at the summary judgment stage.
III. State Law Claims for Assault and Battery
Singh argues that the district court also erred in granting summary judgment on his state
law assault and battery claims against Officer Cheema and the City on the ground of qualified
immunity. We agree.
As a threshold matter, we note that “qualified immunity is an individual affirmative defense
that does not protect municipalities” and “under New York law and basic agency principles, a
municipal employer is vicariously liable for the wrongs of its employee, even when the employee
is individually immune, so long as the wrong was committed within the scope of employment.”
Triolo v. Nassau County, 24 F.4th 98, 110 (2d Cir. 2022). Therefore, the City can be liable under
the state law theory of respondeat superior for the actions of Officer Cheema, and cannot rely on
the doctrine of qualified immunity, even assuming that it protects Officer Cheema. 8
The City and Officer Cheema argue, even without any reliance on qualified immunity, that
they are entitled to summary judgment on the assault and battery claims because Officer Cheema’s
use of force was objectively reasonable and thus did not violate the Fourth Amendment. However,
8 To the extent the district court may have considered these state law claims to only be asserted against Officer Cheema, and not the City, that reading of the complaint was erroneous. The complaint does not specify that those claims were only asserted against Officer Cheema. Moreover, the City did not construe the complaint in that manner before the district court, but rather treated these claims as applying to all defendants in the summary judgment motion. The magistrate judge indicated the same understanding in the R&R. See Joint App’x at 1398 (“Plaintiff’s Complaint also alleged New York law claims for assault and battery against Defendants. Defendants move for summary judgment on the alleged assault and battery claims.”). Nor does the City suggest on appeal that the assault and battery claims were not asserted against it under a respondeat superior theory. Thus, we treat these claims as also asserted against the City.
16 as we have already explained, a rational jury could find that Officer Cheema’s use of force was
objectively unreasonable when all the evidence is construed most favorably to Singh. Accordingly,
summary judgment on this ground was similarly unwarranted in connection with the state law
assault and battery claims. 9
* * *
We have considered the parties’ remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and
VACATED in part, and the case is REMANDED for further proceedings consistent with this
order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
9 The City and Officer Cheema argue in the alternative that, since the federal claims did not survive summary judgment, “this Court should still dismiss the latter claims by declining to exercise supplemental jurisdiction” over the state law claims. Appellees’ Br. at 54. That argument likewise fails in light of our determination that the federal excessive force claim survives summary judgment.