Singh v. City of New York

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.

17