(dissenting):
Central to the majority’s position is its assumption that a stop sign is uniquely government property, so that a reasonable person could infer that anyone who possesses a stop sign must know that the sign is stolen. The assumption, however, involves appellate factfinding, and is contrary to the evidence in this record. It is only with the help of that factfinding that my colleagues have not only overturned a general verdict in favor of Michael Krause, but also a special verdict that Trooper Bennett did not reasonably conclude that there was probable cause to believe that Krause had committed the crime. I therefore dissent.
First, as to the appellate factfinding: The opinion says that “[wjhile traffic signs are not contraband, it is commonly known that they are often stolen from roadsides, and that they are not routinely acquired by the general public.” Footnote 4 of the opinion qualifies this statement by referring to the evidence in the record that traffic signs can be purchased by the general public, as was shown by a catalog produced at trial (Exhibit 13). The footnote goes on to say that “the catalog is of little probative value, as no evidence was introduced to show the number or frequency of sales of such signs.” This implies that, absent such evidence, sales to the public are presumed to be so negligible in quantity that it would be unreasonable to expect a stop sign on someone’s wall to be anything other than stolen. The footnote then adds, “We are unconvinced that stop signs as used by local governments are both readily and legally available” and that “the identification number on the back of this particular sign strongly suggested that the sign was government property” (painted, rather amateurishly, on the back of the sign was “90 M 11/14/66”).1
*373Were this dissent to engage in the same appellate factfinding it would come to quite different conclusions. Of course stop signs are readily available for purchase by members of the public. They are purchased all the time. On a trip from my home to my office in Brattleboro, Vermont, one passes five privately owned stop signs exactly like municipal stop signs — six, if one counts the United States Government as a private owner. They are purchasable at sign companies such as the Hampden (Massachusetts) Sign Co. Some are bought by individual businesses which have a lot of traffic, such as the Brattleboro Daily Reformer, for use in driveways; others are purchased by shopping mall owners for use where a driveway opens onto a road without a traffic light. The price of a 30" by 30" stop sign, as was involved in this case, is $35 or $40 when the signs are purchased in small quantity.
But suppose we address ourselves to the evidence in the case rather than going de-hors the record. Trooper Bennett, as he testified, knew “that it was necessary for a person to know that the property was stolen” for the person to be convicted. He also learned that the sign had been missing since 1967, almost seventeen years before he had discovered the sign in Krause’s garage. Bennett was also well aware that Krause had said he was given the sign some years before by one “Bing” Miller, who had found it hanging in his basement recreation room when he purchased his home. But like my colleagues, the trooper said he was proceeding on the assumption that all stop signs are official, and are purchased and placed only by a municipality, county, or state. He did not ask anyone whether or not signs could be purchased privately because it was his belief “that they could not be.” Yet cross-examination of Bennett with the use of the catalog identified as Exhibit 13 showed that signs like Saratoga County 90 M could be purchased privately, at a price of $50 or three for $40. Parenthetically, one would also suppose that a stop sign might be purchased from a municipality, at a yard or garage sale, or at a flea market.
Moreover, Defendant’s Exhibit J in evidence was a letter from Donald Shanley, Krause’s lawyer, dated July 18, 1984, to Assistant District Attorney Thomas J. McNamara which stated:
Also, it is my information that there was nothing on the sign to identify it as belonging to any person or agency. Possession of a highway sign is not illegal, per se. I believe that they can be purchased by anyone, and could be possessed legally as long as not put to an improper use. I think that that can be verified by anyone connected with a company making and selling same. I think that even the highway department will agree to the truth of the assertion.
This letter prompted the district attorney to dismiss the charges. Indeed, on cross-examination, John Miller, the Saratoga County Highway Department traffic division foreman who originally identified the stop sign in question as belonging to the county, testified that a picture in the catalog shown to Bennett was a picture of a stop sign with the same dimensions, 30" by 30", as the stop sign in this case.2
In light of the evidence that the sign in Krause’s garage was stolen in 1967, that Krause claimed that he was given the sign and had had it for several years, and that both the catalog used to crossTexamine Bennett and the letter from Krause’s lawyer to the district attorney indicated that such stop signs could be bought by the general public, the jury specifically answered in the negative (following instructions that were not objected to) to Special Interrogatory 4: “Would a reasonably competent police officer have concluded that *374there was probable cause to believe that the plaintiff had committed the crime of ‘Criminal Possession of Stolen Property?’ ” The reason that the jury answered negatively seems perfectly obvious: Krause could not have known that “90 M” with a date meant that the sign necessarily was, or even at some time had been, municipal or county property. Indeed, during its deliberations the jury wrote a note specifically asking the question,
Referring to Question 4 [quoted above] may we have the testimony of Mr. Krause and Trooper Bennett about Bing Miller’s new address and phone number, to determine if Trooper Bennett had the probable cause to disregard Mr. Bing Miller and feel that Mr. Krause did commit the crime of “Criminal Possession of Stolen Property.” Also the testimony about the 2 phone calls to Bennett by Krause.
Accordingly, in all probability the jury believed Krause’s testimony that he had indeed telephoned Bennett with Bing Miller’s address and telephone number after ascertaining that Bing Miller’s real name was Milton Miller. (Incidentally, Bing Miller and Krause had been fellow workers for thirty years.) And the jury, aware through instruction and closing argument that knowledge was an element of the crime, may well have felt that Bennett should have contacted Miller before he arrested Krause.3
Moreover, what of the punitive damages that the jury found — $25,000 worth, reduced on remittitur to only $2,500 — pursuant to the court’s instruction that the jury might award special damages only if it found that Bennett acted “maliciously or wantonly or oppressively”? Under the instructions given to define these three terms, the jury must have found either that Bennett acted “out of ill will or spite or grudge” (retaliation for the suit against Trooper Penny?), or that he acted in a “reckless or callous disregard of or in disregard to” Krause’s rights, or that he violated Krause’s rights with “unnecessary harshness or severity and by the use or ability of authority or power.”
Picture it. A man is cooking goulash with his woman friend at his home on a rural road in a rural town, Half Moon, New *375York. He has a garage which is eighty feet from the road and which is twenty-six feet deep. He keeps the garage door open because the door from the garage into the house is the only entrance which has steps; he relies on his German shepherd to warn of any visitors. Several years before he was given a stop sign worth $40 or so new by a fellow worker, and he has had the sign hanging in his garage, lo, these several years. He has even had troopers there in the garage, at the time of the prior incident involving Trooper Penny, who have paid no attention whatsoever to the stop sign. To be sure, when he hung up the stop sign after it was given to him, he glanced at the painting of “90 M 11/14/66” on the back of the sign, but it didn’t mean anything to him, as it would not to most people. All of a sudden he hears the dog barking and a trooper who has pulled into his driveway inquires about the stop sign and mentions several times that it is “stolen property.” The homeowner is perfectly cooperative, invites the trooper in to talk about the matter, and explains how he came into possession of the property. The trooper, in what the woman friend described as an “intimidating,” “rather cocky” and “harassing” manner, keeps repeating that the sign is stolen property. Despite being told that the sign was a gift, given the name of the giver, and informed of the actual name, telephone number, and address of the giver the following day, the trooper goes ahead and swears out a warrant for a crime which he understands requires knowledge that the property was in fact stolen, a misdemeanor as to which the statute of limitations is two years,4 the charge of which is ultimately dismissed. Harassment? I say yes; the majority demurs, saying that even if it was harassment the trooper had qualified immunity as a matter of law because stop signs are “not routinely acquired by the general public” and “this sign had figures on the back that indicated that someone had marked the sign for identification purposes.”
In declining to render judgment notwithstanding the verdict, Judge Cholakis, after properly viewing the evidence in the light most favorable to Krause, concluded that the evidence was sufficient to enable a reasonable juror to arrive at this verdict. He also examined the defense of qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986), and Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987), and concluded that the question “whether it was objectively reasonable for the defendant to believe that plaintiff had committed this crime is one of fact to be determined from the evidence presented during trial.” Judge Cholakis said further that the question of qualified immunity was answered by the jury’s answer to Special Interrogatory 4. Since according to the jury a reasonably competent police officer would not have believed that the plaintiff committed the crime for which he was arrested, it was not objectively reasonable (within the Supreme Court cases) for the trooper to have believed that his acts did not violate Krause’s rights. I agree, and I do not see how the majority can disagree. Accordingly, I dissent.
. Trooper Bennett testifying in respect to the catalog said, “It indicates that it is for airport control signs." This was, however, an unresponsive answer to the question(s) asked. The *373question(s) asked were: “And that is an offer to the general public, can you tell? What does it indicate the price to be?”
. The question asked of Miller as transcribed referred to Exhibit 14 rather than 13, the catalog. But Exhibit 14 is an affidavit containing no pictures, and Attorney Shanley subsequently referred to Foreman Miller’s testimony about the catalog, so either the transcript is erroneous or the attorney mistook 14 for 13 when he asked Miller the question. There is no doubt that Miller was actually shown the catalog that was shown to Trooper Bennett.
. There is, I suppose, another alternative that the jury could have had in mind even though it was not specifically charged or argued. This alternative was mentioned in the order of dismissal of the charge as filed, which was in evidence, and it was mentioned by the acting county judge who signed the order, as well as by the assistant district attorney, Thomas McNamara, who consented to dismissal. The charge was criminal possession of stolen property in the third degree (prior to the amendment of this section in 1986 to fifth degree), a Class A misdemeanor. N.Y. Penal Law § 165.40 (McKinney 1988) (statute and historical note). Under New York law, “A prosecution for a misdemeanor must be commenced within two years after the commission thereof.” N.Y. Criminal Procedure Law § 30.10(2)(c)(McKinney 1981). While a sophisticated lawyer or judge might speculate that the crime of possession of stolen property is a continuing one, tolling the statute of limitations, at least where the property is concealed, the layman confronted with the question would believe — once made aware as this jury was of the statute of limitations — that the statute starts running when the property is first possessed or at least when it is displayed as openly as Krause displayed it, to all comers to his house and even, in the right light, apparently, to motorists cruising the highway. Here, moreover, the trooper might have been put on notice by the fact that the sign was replaced in 1967 — almost seventeen years before, a longer time than Bennett had concededly ever known of anybody being arrested for possessing property. Moreover, Krause claimed to have been given it by Bing Miller more than two years before and the jury had heard testimony by Miller that it was in his family room in the basement from the time he bought his home in September 1976, and that he had given it to Krause in May of 1978. Exhibit J, the letter from Krause's lawyer to the district attorney pointing out that the statute of limitations for a misdemeanor was two years and that Krause had had the sign for four years, indicated the lawyer’s belief that the prosecution was time-barred, and the district attorney had replied that he would have no objection to an application to the court to dismiss based upon the statute of limitations, by a letter also in evidence. On this basis the jury could have thought that a reasonably competent police officer should have known, or at least looked at the penal law and discovered, that the two-year statute of limitations would bar the prosecution of Krause. The verdict in this scenario could be explained as a warning to police officers not to arrest people for crimes when the statute of limitations has run. But because this aspect of the case was neither charged nor argued, I think we must consider this alternative purely hypothetical.
. See supra note 3.