15-140-cv(L); 15-1876-cv(CON); 15-1950-cv(XAP)
`Dancy v. McGinley
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`August Term 2015
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`(Argued: May 2, 2016 Decided: December 7, 2016)
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`Docket Nos. 15-140-cv(L); 15-1876-cv(CON); 15-1950-cv(XAP)
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`JARQUEZ DANCY,
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`Plaintiff-Appellant,
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`JAYVON ELTING,
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`Plaintiff-Appellee,
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`v.
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`POLICE OFFICER GREGG MCGINLEY,
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`Defendant-Appellant,
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`POLICE OFFICER JOHN WILLIAMS,
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`Defendant-Appellee.
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`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`Dancy v. McGinley
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`August Term 2015
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`(Argued: May 2, 2016 Decided: December 7, 2016)
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`Docket Nos. 15-140-cv(L); 15-1876-cv(CON); 15-1950-cv(XAP)
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`JARQUEZ DANCY,
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`Plaintiff-Appellant,
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`JAYVON ELTING,
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`Plaintiff-Appellee,
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`v.
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`POLICE OFFICER GREGG MCGINLEY,
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`Defendant-Appellant,
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`POLICE OFFICER JOHN WILLIAMS,
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`Defendant-Appellee.
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`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`Before:
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`LIVINGSTON, CHIN, AND CARNEY, Circuit Judges.
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`Consolidated appeals from judgments and orders of the United
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`States District Court for the Southern District of New York (Smith, M.J.), in this
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`civil rights case brought pursuant to 42 U.S.C. § 1983, (1) awarding damages of
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`$196,500, as remitted, in favor of plaintiff-appellee Jayvon Elting against
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`defendant-appellant Police Officer Gregg McGinley, and (2) denying plaintiff-
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`appellant Jarquez Dancy's motion for a new trial following the jury's verdict in
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`favor of defendant-appellee Police Officer John Williams.
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`AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
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`STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester,
`NY, for Plaintiff-Appellee Jayvon Elting.
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`CHRISTOPHER D. WATKINS, Sussman & Watkins,
`Goshen, NY, for Plaintiff-Appellant Jarquez Dancy.
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`JOHN M. MURTAGH (Denise M. Cossu, on the brief),
`Gaines, Novick, Ponzini, Cossu & Venditti, LLP,
`White Plains, NY, for Defendant-Appellant Police
`Officer Gregg McGinley and Defendant-Appellee
`Police Officer John Williams.
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`CHIN, Circuit Judge:
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` On Friday, October 2, 2009, around 11 p.m., two high school
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`students, Jarquez Dancy and Jayvon Elting, were walking on Main Street in
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`Poughkeepsie, New York. They had been watching a movie at a friend's house,
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`and were returning to Dancy's home, where Elting was to be picked up by his
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`mother.
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`Police Officer Gregg McGinley stopped them. Both Dancy and
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`Elting are African American, and there had been a report over the police radio of
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`a robbery a few blocks away, with a description of the assailant: "Thin black
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`male, brown jacket." Other officers (including Police Officer John Williams)
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`arrived, and a confrontation ensued that left Elting bruised, scraped, and
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`swollen, and Dancy with a broken jaw. Elting was arrested for obstruction of
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`governmental administration, resisting arrest, and possession of a controlled
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`substance; Dancy was arrested for attempted robbery. Both spent the night in jail
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`before being released the next evening to their respective mothers. The
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`attempted robbery charge against Dancy was eventually dropped. Elting agreed
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`to an adjournment in contemplation of dismissal.
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`-3-
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`Elting and Dancy brought a civil rights action in federal district
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`court alleging, inter alia, false arrest and use of excessive force. At trial, before the
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`case was submitted to the jury, the district court entered judgment as a matter of
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`law in favor of Elting on liability as to his claims against McGinley for false arrest
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`and use of excessive force, and thereafter the jury awarded him $215,000, which
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`the district court remitted to $196,500. The jury found in favor of Williams on
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`Dancy's claim for false arrest, but was unable to reach a verdict on Dancy's
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`excessive force claim. At a second trial, the jury found in favor of Williams on
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`Dancy's excessive force claim. The district court denied Dancy's motion for a
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`new trial. McGinley and Dancy appeal.
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`We affirm the judgment in favor of Elting and the amount of
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`damages, but vacate the judgment in favor of Williams and remand for a new
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`trial on Dancy's excessive force claim.
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`BACKGROUND
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`I.
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`The Facts
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`We recount the facts with the following principles in mind. With
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`respect to Elting's claims against McGinley, we view the evidence from the first
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`trial in the light most favorable to McGinley and draw all reasonable factual
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`inferences in his favor, as the district court granted judgment against him on
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`liability as a matter of law. See Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d
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`Cir. 2000). In determining whether the jury awarded excessive damages,
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`however, "we 'view the evidence and draw all factual inferences in favor of
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`[Elting],' and we 'accord substantial deference to the jury's determination of
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`factual issues.'" Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir.
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`1993) (first quoting Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir. 1982), and then
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`quoting Martell v. Boardwalk Enters., Inc., 748 F.2d 740, 750 (2d Cir. 1984)).
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`As to Dancy's claims against Williams, we assess only the legal
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`accuracy of the jury instruction, and will reverse upon a finding of error only
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`where, "based on a review of the record as a whole, the error was prejudicial or
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`the charge was highly confusing." Hudson v. New York City, 271 F.3d 62, 67-68 (2d
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`Cir. 2001) (alteration omitted) (quoting Terminate Control Corp. v. Horowitz, 28
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`F.3d 1335, 1345 (2d Cir. 1994)); see also Cobb v. Pozzi, 363 F.3d 89, 118 (2d Cir. 2003)
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`(concluding that error in jury instruction was not harmless where "th[e] evidence
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`could support a jury's reaching the opposite conclusion" had it been instructed
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`correctly).
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`A. Overview
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`Some basic facts are undisputed. On the evening of October 2, 2009,
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`Elting and Dancy, seventeen and eighteen years old, respectively, and both in
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`high school, were walking on Main Street in Poughkeepsie, New York. They had
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`been watching a movie at a friend's house and were walking back to Dancy's
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`home, where Elting was to be picked up by his mother. Dancy was wearing a
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`camouflage-patterned coat, with green, light green, and brown patches.
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`McGinley and Williams were police officers employed by the
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`Poughkeepsie Police Department. McGinley decided to stop Elting and Dancy
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`after hearing a radio transmission about an attempted robbery nearby. McGinley
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`had informed other officers over the radio that he was going to stop a suspect,
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`and, approximately ten seconds later, Williams arrived as McGinley made
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`contact with the two teenagers. Williams led Dancy to the nearby patrol car,
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`while McGinley engaged in a dialogue with Elting. Altercations ensued.
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`McGinley arrested Elting for obstruction of governmental administration,
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`resisting arrest, and criminal possession of a controlled substance in the seventh
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`degree for crack cocaine allegedly found in Elting's pocket during the course of
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`the arrest.1 Dancy was arrested for attempted robbery after the robbery victim
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`was brought to the scene and identified Dancy as his assailant.2
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`1
`At trial, McGinley testified that an officer found "a little black bag, a tiny
`little mesh bag" containing crack cocaine. J. App. 376. Elting denied that he had ever
`possessed or used crack cocaine. Whether he was in possession of crack cocaine on the
`night in question is not relevant to the issues before us.
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`The victim was brought to the area where the "two subjects" were
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`Both Elting and Dancy were detained overnight until they were
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`bailed out by their mothers the following evening. They both visited the hospital
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`for injuries the day after being released from jail. Medical records show that
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`Elting was in pain and had bruises and abrasions on his face, head, and torso. A
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`CAT scan revealed no fractures and his injuries healed within two to three
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`weeks. Dancy was diagnosed with a fractured jaw, which required surgery. His
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`jaw was wired shut for six weeks.
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`The attempted robbery charge against Dancy was later dismissed in
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`the interest of justice. Elting received an adjournment in contemplation of
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`dismissal for all three charges.
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`B.
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`Elting's Claims Against McGinley
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`i.
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`The Stop and Arrest
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`At approximately 11:00 p.m. that evening, Officer Craig arrived at
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`City Center Deli, where he spoke with the victim of an attempted robbery that
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`had occurred some minutes prior. The victim had been struck in the head and
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`knocked to the ground. The victim provided Craig with a description of the
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`detained. J. App. 419. While the victim remained in a police car, a spotlight was put on
`"the suspect," to "illuminate[]" him. J. App. 419. He was handcuffed behind the back.
`Officer Craig then asked the victim "if this was the person who had committed the
`crime." J. App. 420. Officer Craig testified that the victim identified the illuminated
`suspect as his assailant. J. App. 420. Dancy challenged the on-site identification and
`denied participation in the robbery.
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`assailant, and Craig broadcast it over the police radio: "Thin black male, brown
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`jacket." J. App. 431. The description orally transmitted by Craig over the radio
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`was recorded by a civilian dispatcher in a dispatch narrative report.3 According
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`to the dispatch report, the transmission was sent at 11:02 p.m.
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`Officer McGinley had been out patrolling in his marked police
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`vehicle when heard over his radio that a robbery had taken place at City Center
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`Deli, located at 472 Main Street, and a suspect was at large. Upon hearing the
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`report, McGinley drove towards the crime scene. On the way, he saw two young
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`African-American men walking west on Main Street, in a direction away from
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`City Center Deli.4 He believed one of them (later identified as Dancy) "somewhat
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`matched" the suspect's description. J. App. 280. McGinley kept an eye on them
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`as they turned south onto South Hamilton Street, and then east onto Cannon
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`Street, back towards City Center Deli. He was waiting for "some personal
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`3
`Craig testified that everything transmitted over the radio is documented in
`the dispatch narrative report and that, other than the "[t]hin black male, brown jacket"
`description that appears in the report, he did not broadcast any further description.
`McGinley disagreed with Craig's assertion that statements broadcast over the radio
`would always end up in the dispatch report. Although there was some suggestion at
`trial by McGinley that the broadcast description included a reference to dreadlocks, in
`fact McGinley did not clearly testify as to what he heard by way of a description and on
`appeal he does not rely on the existence of dreadlocks.
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`According to Elting, he and Dancy were walking east on Main Street for
`one block -- toward City Center Deli -- before turning south on Hamilton Street and
`then continuing east on Cannon Street, where Dancy lived.
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`observation to go with the description." J. App. 282. While he was following
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`them in his police car, he found it suspicious that they "looked over their
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`shoulders numerous times" at the car. J. App. 301. At that point, he considered
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`Dancy a "suspect" and Elting a "subject, a person of interest" because Elting had
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`looked over his shoulder at the police car "numerous times," and because he was
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`in the "presence of a suspect." J. App. 300-01.
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`McGinley radioed his intention to stop a possible suspect near 134
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`Cannon Street. He then pulled over, exited his vehicle, and approached Dancy
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`and Elting. He "asked them if [he] could talk to them for a minute," and told
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`them that Dancy fit the description of a suspect. J. App. 282.
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`Officer Williams was on duty in the area and arrived on the scene
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`almost immediately, approximately ten seconds after McGinley. When he
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`arrived, he led Dancy away from Elting toward the nearby police car. Williams
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`ordered Dancy to place his hands on the hood of the car.
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`Elting began using a cell phone. McGinley instructed him not to use
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`the phone. When Elting did not put the phone away, McGinley told him three
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`more times -- in a louder, more commanding voice, and with a "changed"
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`"demeanor" -- not to use the phone. J. App. 370. They were within one or two
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`feet of each other at the time. McGinley did not want Elting to use his phone,
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`because it was "just not safe for [him]self, the cellphone in the hand." J. App. 299.
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`His "immediate concern" was that the phone would be "potentially thrown at
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`[him]," J. App. 371, or used "in [his] hand . . . as a weapon," J. App. 299. His
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`secondary concern was the possibility that Elting would call someone, which in
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`his experience had "not worked in [his] favor." J. App. 371-72. He feared that a
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`potential robbery participant would "make a phone call and . . . obstruct the
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`investigation portion of it." J. App. 300.
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`After the fourth command to stop using the phone, McGinley "put
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`[his] left hand to [Elting's] back to direct him toward the police car." J. App. 372.
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`When McGinley put his hand on Elting's back, McGinley claims Elting
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`"attempted to run" by "turn[ing] in a 180-degree fashion the opposite direction
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`and [taking] approximately two steps." J. App. 373. Elting denied attempting to
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`run away at any point. McGinley "still had [his] hand in the area of [Elting's]
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`back and was able to grab his waistband." J. App. 373. They "fell"
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`unintentionally. J. App. 373. There was a "short struggle" on the ground as
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`McGinley and another officer attempted to cuff Elting. J. App. 375. They
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`succeeded in doing so.
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`McGinley characterized Elting's conduct as an attempt to flee and a
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`failure to comply with a pat-down frisk. At that point -- when Elting assertedly
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`attempted to flee, but not prior -- McGinley believed he had probable cause for
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`an arrest. McGinley also testified that when they "fell" to the ground, "an arrest
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`was happening" for obstruction of governmental administration. J. App. 448.
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`He construed Elting's actions on the ground as resisting arrest. The obstructing
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`governmental administration charge was based on "noncompliance," i.e., "the
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`action of not complying with not using his cell phone, the attempt to flee and
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`then the little resisting arrest incident on the ground." J. App. 306.
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`ii.
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`Elting's Account
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`Elting testified that, after McGinley stopped them and said that he
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`suspected Dancy of criminal activity, Elting took out his phone to call his mother
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`-- a local corrections officer. McGinley told him to put his "fucking phone away."
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`J. App. 130. McGinley then grabbed Elting by his left arm and spun him around
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`to the ground. Elting landed on his shoulder and his face hit the ground.
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`McGinley twisted Elting's left arm behind his back, and pressed his knee into
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`Elting's back. At the time, McGinley weighed between 205 and 220 pounds
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`while Elting weighed 140 pounds. Other officers arrived and began punching
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`Elting in the back while he was on the ground. Dancy testified that he saw
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`McGinley punch Elting in the ribs while Elting was held to the ground. Another
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`officer punched Elting in the face, causing his head to hit the pavement. He was
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`then handcuffed and lifted up, at which point he saw another officer pointing a
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`gun toward him.
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`At the station, Elting was interrogated about the robbery and
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`detained for about eighteen hours. He was eventually bailed out of jail the next
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`evening by his mother, who took him to Saint Francis Hospital the following
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`morning. He was in pain and had bruises and abrasions on his head, face, and
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`torso. There was swelling on the right side of his head and left side of his face.
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`The hospital conducted a CAT scan and chest x-ray, which revealed no fractures.
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`The emergency room medical records confirm the bruising to the right side of
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`head, face, and torso, with the recommendation to allow for natural healing and
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`to take Advil to relieve pain. Its physical assessment documented the following:
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`left eye pain, head pain, bruising on cheeks, elbow, back, swelling of his head
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`and temporal area, tender upper and lower back, and abrasions to his nose and
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`hand. Two days later, Elting began complaining of pain while urinating, and his
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`mother took him to see his regular physician. Elting reported the same injuries
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`as well as long-lasting migraine headaches and soreness. He reported back pain
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`over his right kidney. His physical injuries healed after two to three weeks.
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`Elting missed a week of school as a result of the incident. His grades
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`"dropped a little bit," but he brought them back up and graduated, with honors,
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`from high school. J. App. 147. He sought counseling. Elting testified that the
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`experience "changed [his] outlook on a lot of things," and that he lost "trust [in]
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`the police" and his mother's coworkers at the Dutchess County Correctional
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`Facility. J. App. 148. At the time of trial, he continued to seek counseling as a
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`result of the incident because he "always expect[s] the worst to happen." J. App.
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`150.
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`Elting's mother testified that prior to the incident, Elting was
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`outgoing, dependable, responsible, positive, and did well in school. Afterwards,
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`he was, at first, very angry and "had a lot of questions as to . . . people who got
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`arrested and came in contact with the police" that she could no longer answer for
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`him. J. App. 354. He also "became distant," stopped going out, and began
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`"isolat[ing] himself" in his room. J. App. 354. She described his reactions as
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`tense, angry, fearful, and distant.
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`C. Dancy's Claims Against Williams
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`Dancy and Officer Williams were acquainted with each other
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`because Williams was employed as a part-time security guard at Dancy's high
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`school.
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`Williams testified that, once he arrived on the scene, he directed
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`Dancy towards the patrol car and told him to place his hands on the car. He was
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`directly behind Dancy, who was facing the car. His attention was temporarily
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`diverted to the confrontation between Elting and McGinley nearby. He testified
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`that, at that point, he turned back to Dancy, "pressed [his] body weight into the
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`lower part of Mr. Dancy's body," and "bent Mr. Dancy over at his waist at about
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`approximately a 45 degree angle . . . to get him in a position of disadvantage." J.
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`App. 913-14. Williams further testified that: "It wasn't a push. It was a move. It
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`was a guiding movement with my hand and forearm." J. App. 914. He
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`confirmed that he applied force to the upper part of Dancy's "back or neck" with
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`his "forearm and hand," and that the action was "deliberate[]." J. App. 914, 920.
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`Williams clarified that it may have been the "upper back, middle back area." J.
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`App. 923. He testified that at no point did he observe Dancy's head or face
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`actually make contact with the hood of the patrol car. He also confirmed that
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`Dancy was cooperative and did nothing threatening or to attempt to flee.
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`Dancy testified that Williams arrived on the scene and walked him
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`towards the patrol car. He watched as Elting was dragged to the ground by
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`McGinley and beaten by McGinley and other officers who had appeared. Seeing
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`this, he stated "this [is] wrong" and "we didn't do anything wrong." J. App. 865.
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`After saying that, he "felt [his] face slam into the car" and felt a ringing in his left
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`ear. J. App. 865. He felt that he was pushed from behind, and testified that
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`Williams was standing behind him.
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`Dancy was taken to the police station, interrogated, held overnight,
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`arraigned, and detained at Dutchess County Jail until his mother bonded him out
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`around 7:30 or 8:00 p.m. the following day. The following morning, he was taken
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`to the hospital by his mother. Medical records confirm that Dancy was
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`diagnosed with a fractured jaw at St. Francis Hospital. From there, he was sent
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`to Westchester Medical Center via ambulance for surgery. His jaw was wired
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`shut for approximately six weeks. During that time he was on a liquid diet and
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`had difficulty speaking and sleeping.
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`II.
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`Procedural History
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`Elting and Dancy sued Officers McGinley and Williams under 42
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`U.S.C. § 1983 asserting claims of false arrest and excessive force in violation of
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`the Fourth Amendment.5
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`A.
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`The First Trial
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`A joint trial was held before Magistrate Judge Lisa Margaret Smith.6
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`At the close of evidence, Elting moved for judgment as a matter of law on his
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`5
`Elting also asserted a malicious prosecution claim, which was
`discontinued pursuant to stipulation prior to trial.
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`false arrest claim, arguing that McGinley lacked even arguable probable cause
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`for an arrest for obstruction of governmental administration.7 After hearing
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`argument, the district court ruled that it would enter judgment as a matter of law
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`in favor of Elting for his false arrest claim, finding no facts from which a rational
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`juror could conclude that McGinley had reasonable suspicion to stop him or
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`probable cause to arrest him. In light of that ruling, it also ruled that it would
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`enter judgment in favor of Elting on the excessive force claim on the basis that
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`whatever force was used during an unauthorized arrest must have been
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`excessive, putting to the jury only the questions of proximate cause and
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`damages.8 The court concluded that because these rights were clearly
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`established as of October 2009, McGinley was not entitled to qualified immunity.
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`The jury found that McGinley's actions were the cause of Elting's injuries and
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`6
`Pursuant to 28 U.S.C. § 636(c), the parties consented to trial of the claims
`before Magistrate Judge Smith.
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`Dancy also moved for a judgment as a matter of law on his false arrest
`claim on the ground that the victim's identification of him as the assailant at the time of
`the stop was insufficient to support probable cause for his arrest. The court denied that
`motion, concluding that there were issues of fact as to whether he was subjected to false
`arrest.
`The district court reasoned that because Elting prevailed on his false arrest
`
`8
`claim, he necessarily prevailed on his excessive force claim as well. McGinley does not
`challenge that ruling. But see Zellner v. Summerlin, 494 F.3d 344, 378 (2d Cir. 2007)
`(suggesting absence of precedent for proposition that use of force is necessarily
`
`
`
`-16-
`
`
`
`awarded $115,000 for the false arrest and $100,000 for the use of excessive force.
`
`
`
`The jury awarded no punitive damages. Judgment was entered against
`
`McGinley on December 11, 2014.
`
`With respect to Dancy's claims against Williams, the jury found that
`
`Williams had probable cause to arrest Dancy, but could not reach a verdict on the
`
`question of whether excessive force was used.
`
`B.
`
`
`
`
`
`The Second Trial
`
`A second trial was held on Dancy's claim against Williams for the
`
`use of excessive force. Prior to the retrial and again during the charging
`
`conference, Dancy objected to the district court's proposed jury instruction that
`
`required the jury to find that Williams acted intentionally or recklessly in
`
`performing the acts alleged. The court overruled the objection.
`
`
`
`
`
`The jury found in favor of Williams, and judgment was entered in
`
`his favor.
`
`C.
`
`Post-trial motions
`
`
`
`
`
`McGinley moved under Rule 59 for remittitur or new trial on
`
`damages, arguing that the damages awards were excessive. The district court
`
`ruled that it would grant the motion for new trial on damages unless Elting
`
`excessive when there is no probable cause to arrest); Jones v. Parmley, 465 F.3d 46, 62 (2d
`Cir. 2006).
`
`
`
`-17-
`
`
`
`stipulated to reduction to $81,500 on the excessive force claim, and denied the
`
`motion with respect to the damages for false arrest. Elting accepted the reduced
`
`
`
`damages award.9
`
`Dancy moved for a new trial under Rule 59 on the ground that the
`
`jury instructions erroneously implied that he was required to prove that
`
`Williams acted intentionally in breaking his jaw. The district court denied the
`
`motion.
`
`D.
`
`Issues on Appeal
`
`McGinley appeals 1) the entry of judgment entered against him as a
`
`matter of law on the question of liability, and 2) the denial in part of his Rule 59
`
`motion for remittitur or a new trial, on the ground that the damages awards,
`
`even as remitted, were excessive.
`
`Dancy appeals the denial of his Rule 59 motion for a new trial,
`
`arguing that the district court gave an improper jury instruction.
`
`
`
`
`9
`The district court did not enter a separate or amended judgment to reflect
`the reduced amount. Assuming a separate judgment was required, see Fed. R. Civ. P.
`58(a), a judgment is deemed to have been entered 150 days after the May 11, 2015 order
`granting in part McGinley's Rule 59 motion, see Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App.
`P. 4(a)(7)(A)(ii).
`
`
`
`-18-
`
`
`
`DISCUSSION
`
`
`
`We consider first Elting's false arrest claim against McGinley, and
`
`second Dancy's excessive force claim against Williams.
`
`I.
`
`Elting's Claim Against McGinley
`
`We address both liability and damages with respect to Elting's
`
`claims against McGinley.
`
`A.
`
`Liability
`
`It is undisputed that Elting was in the presence of someone who
`
`"somewhat" matched the description of a robbery suspect near the scene of a
`
`crime, and that he looked over his shoulder at the police vehicle and refused
`
`orders to put his cell phone away. At issue is whether that information is even
`
`arguably sufficient for an investigatory stop and arrest for obstruction of
`
`governmental administration.
`
`The district court concluded that, viewing the facts in the light most
`
`favorable to McGinley, no reasonable juror could conclude that he had
`
`reasonable suspicion to stop or probable cause to arrest Elting. It ruled that the
`
`law was clearly established at the time of the violations such that McGinley was
`
`not entitled to qualified immunity. We review de novo the district court's denial
`
`of qualified immunity, see Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007), as well as
`
`
`
`-19-
`
`
`
`its ruling on a Rule 50(a) motion for judgment as a matter of law, which may be
`
`
`
`entered against a party "only if 'a reasonable jury would not have a legally
`
`sufficient basis to find for a party on that issue,'" Tepperwien v. Entergy Nuclear
`
`Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011) (alteration omitted) (quoting Fed.
`
`R. Civ. P. 50(a)).
`
`1.
`
`Applicable Law
`
`The Fourth Amendment guarantees citizens the "right . . . to be
`
`secure in their persons . . . against unreasonable . . . seizures." U.S. Const. amend.
`
`IV. Its touchstone of reasonableness imposes limits on the Government's seizure
`
`powers to "prevent arbitrary and oppressive interference by enforcement officials
`
`with the privacy and personal security of individuals." United States v. Martinez-
`
`Fuerte, 428 U.S. 543, 554 (1976). Section 1983 provides a cause of action for
`
`citizens to vindicate their Fourth Amendment rights. See Jaegly v. Couch, 439 F.3d
`
`149, 151 (2d Cir. 2006).
`
`Police officers are shielded from suit under § 1983 so long as "their
`
`conduct does not violate clearly established statutory or constitutional rights of
`
`which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223,
`
`231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); accord Zellner,
`
`494 F.3d at 367. "'A right is clearly established' when 'the contours of the right
`
`
`
`-20-
`
`
`
`are sufficiently clear that a reasonable official would understand that what he is
`
`
`
`doing violates that right.'" Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011)
`
`(alterations omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
`
`Moreover, if "'officers of reasonable competence could disagree' on the legality of
`
`the action at issue in its particular factual context," the officer is entitled to
`
`qualified immunity. Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting
`
`Malley v. Briggs, 475 U.S. 335, 341 (1986)). But, if "it is obvious that no reasonably
`
`competent officer" would have taken such action, that officer will not be
`
`immune. Malley, 475 U.S. at 341. In other words, "qualified immunity protects
`
`'all but the plainly incompetent or those who knowingly violate the law.'"
`
`Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Malley, 475 U.S. at 341).
`
`a.
`
`Investigatory Stops
`
`In Terry v. Ohio, the Supreme Court recognized that police officers
`
`may in "appropriate circumstances and in an appropriate manner approach a
`
`person for purposes of investigating possibly criminal behavior even though
`
`there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22 (1968).
`
`To justify a Terry stop, the officer must have reasonable suspicion -- "a reasonable
`
`basis to think that the person to be detained 'is committing or has committed a
`
`
`
`-21-
`
`
`
`
`criminal offense.'" United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (quoting
`
`Arizona v. Johnson, 555 U.S. 323, 326 (2009)).
`
`Reasonable suspicion requires more than an "inchoate suspicion or
`
`mere hunch." United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (quoting
`
`United States v. Glover, 957 F.2d 1004, 1010 (2d Cir. 1992)). It "demands 'specific
`
`and articulable facts which, taken together with rational inferences from those
`
`facts,' provide detaining officers with a 'particularized and objective basis for
`
`suspecting legal wrongdoing.'" United States v. Singletary, 798 F.3d 55, 59 (2d Cir.
`
`2015) (citation omitted) (first quoting Terry, 392 U.S. at 21, and then quoting
`
`United States v. Arvizu, 534 U.S. 266, 273 (2002)). This standard is "not high";
`
`rather, it requires "only facts sufficient to give rise to a reasonable suspicion that
`
`criminal activity 'may be afoot.'" Bailey, 743 F.3d at 332 (quoting Terry, 392 U.S. at
`
`30).
`
`In assessing reasonable suspicion determinations, we take into
`
`account the "totality of the circumstances supporting the investigatory stop,"
`
`United States v. Muhammad, 463 F.3d 115, 121 (2d Cir. 2006), and "evaluate those
`
`circumstances 'through the eyes of a reasonable and cautious police officer on the
`
`scene, guided by his experience and training,'" Bayless, 201 F.3d at 133 (quoting
`
`United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977)). "An indication of possible
`
`
`
`-22-
`
`
`
`
`
`illicit activity is properly informed by 'commonsense judgments and inferences
`
`about human behavior.'" Singletary, 798 F.3d at 60 (quoting Illinois v. Wardlow,
`
`528 U.S. 119, 125 (2000)); accord United States v. Padilla, 548 F.3d 179, 187 (2d Cir.
`
`2008). "[C]onduct that is 'as consistent with innocence as with guilt may form the
`
`basis for an investigative stop where there is some indication of possible illicit
`
`activity." Padilla, 548 F.3d at 187 (quoting United States v. Villegas, 928 F.2d 512,
`
`516 (2d Cir. 1991)).
`
`A valid Terry stop must also be "justified at its inception,
`
`and . . . reasonably related in scope to the circumstances which justified the
`
`interference in the first place." United States v. Alexander, 907 F.2d 269, 272 (2d
`
`Cir. 1990) (quoting Terry, 392 U.S. at 20). To support an accompanying frisk for
`
`weapons, the officer must also have "reasonable suspicion that the person
`
`subjected to the frisk is armed and dangerous." Johnson, 555 U.S. at 327; accord
`
`Adams v. Williams, 407 U.S. 143, 146 (1972) ("The purpose of this limited search is
`
`not to discover evidence of crime, but to allow the officer to pursue his
`
`investigation without fear of violence . . . .").
`
`b.
`
`False Arrest
`
`"In analyzing § 1983 claims for unconstitutional false arrest, we have
`
`generally looked to the law of the state in which the arrest occurred." Jaegly, 439
`
`
`
`-23-
`
`
`
`
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