15-140-cv(L); 15-1876-cv(CON); 15-1950-cv(XAP)

Dancy v. McGinley

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2015

(Argued: May 2, 2016 Decided: December 7, 2016)

Docket Nos. 15-140-cv(L); 15-1876-cv(CON); 15-1950-cv(XAP)

JARQUEZ DANCY,

Plaintiff-Appellant,

JAYVON ELTING,

Plaintiff-Appellee,

v.

POLICE OFFICER GREGG MCGINLEY,

Defendant-Appellant,

POLICE OFFICER JOHN WILLIAMS,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
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Before:

LIVINGSTON, CHIN, AND CARNEY, Circuit Judges.

Consolidated appeals from judgments and orders of the United 

States District Court for the Southern District of New York (Smith, M.J.), in this 

civil rights case brought pursuant to 42 U.S.C. § 1983, (1) awarding damages of 

$196,500, as remitted, in favor of plaintiff-appellee Jayvon Elting against 

defendant-appellant Police Officer Gregg McGinley, and (2) denying plaintiffappellant Jarquez Dancy's motion for a new trial following the jury's verdict in 

favor of defendant-appellee Police Officer John Williams. 

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, 

NY, for Plaintiff-Appellee Jayvon Elting.

CHRISTOPHER D. WATKINS, Sussman & Watkins, 

Goshen, NY, for Plaintiff-Appellant Jarquez Dancy.

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:

On Friday, October 2, 2009, around 11 p.m., two high school 

students, Jarquez Dancy and Jayvon Elting, were walking on Main Street in 

Poughkeepsie, New York. They had been watching a movie at a friend's house, 

and were returning to Dancy's home, where Elting was to be picked up by his 

mother. 

Police Officer Gregg McGinley stopped them. Both Dancy and 

Elting are African American, and there had been a report over the police radio of 

a robbery a few blocks away, with a description of the assailant: "Thin black 

male, brown jacket." Other officers (including Police Officer John Williams)

arrived, and a confrontation ensued that left Elting bruised, scraped, and 

swollen, and Dancy with a broken jaw. Elting was arrested for obstruction of 

governmental administration, resisting arrest, and possession of a controlled 

substance; Dancy was arrested for attempted robbery. Both spent the night in jail 

before being released the next evening to their respective mothers. The 

attempted robbery charge against Dancy was eventually dropped. Elting agreed 

to an adjournment in contemplation of dismissal. 
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Elting and Dancy brought a civil rights action in federal district 

court alleging, inter alia, false arrest and use of excessive force. At trial, before the 

case was submitted to the jury, the district court entered judgment as a matter of 

law in favor of Elting on liability as to his claims against McGinley for false arrest 

and use of excessive force, and thereafter the jury awarded him $215,000, which 

the district court remitted to $196,500. The jury found in favor of Williams on 

Dancy's claim for false arrest, but was unable to reach a verdict on Dancy's 

excessive force claim. At a second trial, the jury found in favor of Williams on 

Dancy's excessive force claim. The district court denied Dancy's motion for a 

new trial. McGinley and Dancy appeal. 

We affirm the judgment in favor of Elting and the amount of 

damages, but vacate the judgment in favor of Williams and remand for a new 

trial on Dancy's excessive force claim. 

BACKGROUND

I. The Facts

We recount the facts with the following principles in mind. With 

respect to Elting's claims against McGinley, we view the evidence from the first 

trial in the light most favorable to McGinley and draw all reasonable factual 

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 

Cir. 2000). In determining whether the jury awarded excessive damages, 

however, "we 'view the evidence and draw all factual inferences in favor of 

[Elting],' and we 'accord substantial deference to the jury's determination of 

factual issues.'" Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir. 

1993) (first quoting Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir. 1982), and then 

quoting Martell v. Boardwalk Enters., Inc., 748 F.2d 740, 750 (2d Cir. 1984)). 

As to Dancy's claims against Williams, we assess only the legal 

accuracy of the jury instruction, and will reverse upon a finding of error only 

where, "based on a review of the record as a whole, the error was prejudicial or 

the charge was highly confusing." Hudson v. New York City, 271 F.3d 62, 67-68 (2d 

Cir. 2001) (alteration omitted) (quoting Terminate Control Corp. v. Horowitz, 28 

F.3d 1335, 1345 (2d Cir. 1994)); see also Cobb v. Pozzi, 363 F.3d 89, 118 (2d Cir. 2003) 

(concluding that error in jury instruction was not harmless where "th[e] evidence 

could support a jury's reaching the opposite conclusion" had it been instructed 

correctly). 

A. Overview

Some basic facts are undisputed. On the evening of October 2, 2009,

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 

been watching a movie at a friend's house and were walking back to Dancy's 

home, where Elting was to be picked up by his mother. Dancy was wearing a 

camouflage-patterned coat, with green, light green, and brown patches. 

McGinley and Williams were police officers employed by the 

Poughkeepsie Police Department. McGinley decided to stop Elting and Dancy 

after hearing a radio transmission about an attempted robbery nearby. McGinley 

had informed other officers over the radio that he was going to stop a suspect, 

and, approximately ten seconds later, Williams arrived as McGinley made 

contact with the two teenagers. Williams led Dancy to the nearby patrol car, 

while McGinley engaged in a dialogue with Elting. Altercations ensued. 

McGinley arrested Elting for obstruction of governmental administration, 

resisting arrest, and criminal possession of a controlled substance in the seventh 

degree for crack cocaine allegedly found in Elting's pocket during the course of 

the arrest.1 Dancy was arrested for attempted robbery after the robbery victim 

was brought to the scene and identified Dancy as his assailant.2 

 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. 

2 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 

bailed out by their mothers the following evening. They both visited the hospital 

for injuries the day after being released from jail. Medical records show that 

Elting was in pain and had bruises and abrasions on his face, head, and torso. A

CAT scan revealed no fractures and his injuries healed within two to three 

weeks. Dancy was diagnosed with a fractured jaw, which required surgery. His 

jaw was wired shut for six weeks. 

The attempted robbery charge against Dancy was later dismissed in 

the interest of justice. Elting received an adjournment in contemplation of 

dismissal for all three charges.

B. Elting's Claims Against McGinley

i. The Stop and Arrest

At approximately 11:00 p.m. that evening, Officer Craig arrived at 

City Center Deli, where he spoke with the victim of an attempted robbery that 

had occurred some minutes prior. The victim had been struck in the head and 

knocked to the ground. The victim provided Craig with a description of the 

 

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 

jacket." J. App. 431. The description orally transmitted by Craig over the radio 

was recorded by a civilian dispatcher in a dispatch narrative report.3 According 

to the dispatch report, the transmission was sent at 11:02 p.m. 

Officer McGinley had been out patrolling in his marked police 

vehicle when heard over his radio that a robbery had taken place at City Center 

Deli, located at 472 Main Street, and a suspect was at large. Upon hearing the 

report, McGinley drove towards the crime scene. On the way, he saw two young 

African-American men walking west on Main Street, in a direction away from 

City Center Deli.4 He believed one of them (later identified as Dancy) "somewhat 

matched" the suspect's description. J. App. 280. McGinley kept an eye on them

as they turned south onto South Hamilton Street, and then east onto Cannon 

Street, back towards City Center Deli. He was waiting for "some personal 

 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. 

4 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 

them in his police car, he found it suspicious that they "looked over their 

shoulders numerous times" at the car. J. App. 301. At that point, he considered 

Dancy a "suspect" and Elting a "subject, a person of interest" because Elting had 

looked over his shoulder at the police car "numerous times," and because he was 

in the "presence of a suspect." J. App. 300-01. 

McGinley radioed his intention to stop a possible suspect near 134 

Cannon Street. He then pulled over, exited his vehicle, and approached Dancy 

and Elting. He "asked them if [he] could talk to them for a minute," and told 

them that Dancy fit the description of a suspect. J. App. 282.

Officer Williams was on duty in the area and arrived on the scene

almost immediately, approximately ten seconds after McGinley. When he 

arrived, he led Dancy away from Elting toward the nearby police car. Williams 

ordered Dancy to place his hands on the hood of the car. 

Elting began using a cell phone. McGinley instructed him not to use 

the phone. When Elting did not put the phone away, McGinley told him three 

more times -- in a louder, more commanding voice, and with a "changed" 

"demeanor" -- not to use the phone. J. App. 370. They were within one or two 

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. 

His "immediate concern" was that the phone would be "potentially thrown at 

[him]," J. App. 371, or used "in [his] hand . . . as a weapon," J. App. 299. His 

secondary concern was the possibility that Elting would call someone, which in 

his experience had "not worked in [his] favor." J. App. 371-72. He feared that a 

potential robbery participant would "make a phone call and . . . obstruct the 

investigation portion of it." J. App. 300.

After the fourth command to stop using the phone, McGinley "put 

[his] left hand to [Elting's] back to direct him toward the police car." J. App. 372. 

When McGinley put his hand on Elting's back, McGinley claims Elting 

"attempted to run" by "turn[ing] in a 180-degree fashion the opposite direction 

and [taking] approximately two steps." J. App. 373. Elting denied attempting to 

run away at any point. McGinley "still had [his] hand in the area of [Elting's] 

back and was able to grab his waistband." J. App. 373. They "fell" 

unintentionally. J. App. 373. There was a "short struggle" on the ground as 

McGinley and another officer attempted to cuff Elting. J. App. 375. They

succeeded in doing so. 

McGinley characterized Elting's conduct as an attempt to flee and a 

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 

an arrest. McGinley also testified that when they "fell" to the ground, "an arrest 

was happening" for obstruction of governmental administration. J. App. 448. 

He construed Elting's actions on the ground as resisting arrest. The obstructing 

governmental administration charge was based on "noncompliance," i.e., "the 

action of not complying with not using his cell phone, the attempt to flee and 

then the little resisting arrest incident on the ground." J. App. 306.

ii. Elting's Account

Elting testified that, after McGinley stopped them and said that he 

suspected Dancy of criminal activity, Elting took out his phone to call his mother 

-- a local corrections officer. McGinley told him to put his "fucking phone away." 

J. App. 130. McGinley then grabbed Elting by his left arm and spun him around 

to the ground. Elting landed on his shoulder and his face hit the ground. 

McGinley twisted Elting's left arm behind his back, and pressed his knee into 

Elting's back. At the time, McGinley weighed between 205 and 220 pounds 

while Elting weighed 140 pounds. Other officers arrived and began punching 

Elting in the back while he was on the ground. Dancy testified that he saw 

McGinley punch Elting in the ribs while Elting was held to the ground. Another

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 

gun toward him. 

At the station, Elting was interrogated about the robbery and 

detained for about eighteen hours. He was eventually bailed out of jail the next 

evening by his mother, who took him to Saint Francis Hospital the following 

morning. He was in pain and had bruises and abrasions on his head, face, and 

torso. There was swelling on the right side of his head and left side of his face. 

The hospital conducted a CAT scan and chest x-ray, which revealed no fractures. 

The emergency room medical records confirm the bruising to the right side of 

head, face, and torso, with the recommendation to allow for natural healing and 

to take Advil to relieve pain. Its physical assessment documented the following: 

left eye pain, head pain, bruising on cheeks, elbow, back, swelling of his head 

and temporal area, tender upper and lower back, and abrasions to his nose and 

hand. Two days later, Elting began complaining of pain while urinating, and his

mother took him to see his regular physician. Elting reported the same injuries 

as well as long-lasting migraine headaches and soreness. He reported back pain 

over his right kidney. His physical injuries healed after two to three weeks. 

Elting missed a week of school as a result of the incident. His grades 

"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 

experience "changed [his] outlook on a lot of things," and that he lost "trust [in] 

the police" and his mother's coworkers at the Dutchess County Correctional 

Facility. J. App. 148. At the time of trial, he continued to seek counseling as a 

result of the incident because he "always expect[s] the worst to happen." J. App. 

150. 

Elting's mother testified that prior to the incident, Elting was 

outgoing, dependable, responsible, positive, and did well in school. Afterwards, 

he was, at first, very angry and "had a lot of questions as to . . . people who got 

arrested and came in contact with the police" that she could no longer answer for 

him. J. App. 354. He also "became distant," stopped going out, and began 

"isolat[ing] himself" in his room. J. App. 354. She described his reactions as 

tense, angry, fearful, and distant. 

C. Dancy's Claims Against Williams

Dancy and Officer Williams were acquainted with each other 

because Williams was employed as a part-time security guard at Dancy's high 

school. 

Williams testified that, once he arrived on the scene, he directed 

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 

diverted to the confrontation between Elting and McGinley nearby. He testified 

that, at that point, he turned back to Dancy, "pressed [his] body weight into the 

lower part of Mr. Dancy's body," and "bent Mr. Dancy over at his waist at about 

approximately a 45 degree angle . . . to get him in a position of disadvantage." J. 

App. 913-14. Williams further testified that: "It wasn't a push. It was a move. It 

was a guiding movement with my hand and forearm." J. App. 914. He 

confirmed that he applied force to the upper part of Dancy's "back or neck" with 

his "forearm and hand," and that the action was "deliberate[]." J. App. 914, 920.

Williams clarified that it may have been the "upper back, middle back area." J. 

App. 923. He testified that at no point did he observe Dancy's head or face 

actually make contact with the hood of the patrol car. He also confirmed that 

Dancy was cooperative and did nothing threatening or to attempt to flee. 

Dancy testified that Williams arrived on the scene and walked him 

towards the patrol car. He watched as Elting was dragged to the ground by 

McGinley and beaten by McGinley and other officers who had appeared. Seeing 

this, he stated "this [is] wrong" and "we didn't do anything wrong." J. App. 865. 

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 

Williams was standing behind him. 

Dancy was taken to the police station, interrogated, held overnight, 

arraigned, and detained at Dutchess County Jail until his mother bonded him out 

around 7:30 or 8:00 p.m. the following day. The following morning, he was taken 

to the hospital by his mother. Medical records confirm that Dancy was 

diagnosed with a fractured jaw at St. Francis Hospital. From there, he was sent 

to Westchester Medical Center via ambulance for surgery. His jaw was wired 

shut for approximately six weeks. During that time he was on a liquid diet and 

had difficulty speaking and sleeping. 

II. Procedural History

Elting and Dancy sued Officers McGinley and Williams under 42 

U.S.C. § 1983 asserting claims of false arrest and excessive force in violation of 

the Fourth Amendment.5 

A. The First Trial

A joint trial was held before Magistrate Judge Lisa Margaret Smith.6 

At the close of evidence, Elting moved for judgment as a matter of law on his 

 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 

for an arrest for obstruction of governmental administration.7 After hearing 

argument, the district court ruled that it would enter judgment as a matter of law

in favor of Elting for his false arrest claim, finding no facts from which a rational 

juror could conclude that McGinley had reasonable suspicion to stop him or 

probable cause to arrest him. In light of that ruling, it also ruled that it would 

enter judgment in favor of Elting on the excessive force claim on the basis that 

whatever force was used during an unauthorized arrest must have been 

excessive, putting to the jury only the questions of proximate cause and 

damages.8 The court concluded that because these rights were clearly 

established as of October 2009, McGinley was not entitled to qualified immunity. 

The jury found that McGinley's actions were the cause of Elting's injuries and 

 6 Pursuant to 28 U.S.C. § 636(c), the parties consented to trial of the claims 

before Magistrate Judge Smith. 

7 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. 

8 The district court reasoned that because Elting prevailed on his false arrest 

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 
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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). 
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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).
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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 
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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. MartinezFuerte, 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 
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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 
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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 
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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 
-24-

F.3d at 151 (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). Under 

New York law, a false arrest claim requires a plaintiff to show that "the 

defendant intentionally confined him without his consent and without 

justification." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see also Ackerson v. 

City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012). "[T]he existence of probable 

cause" for an arrest "is an absolute defense to a false arrest claim." Jaegly, 439 

F.3d at 152. Probable cause exists "when the officers have knowledge or 

reasonably trustworthy information of facts and circumstances that are sufficient 

to warrant a person of reasonable caution in the belief that the person to be 

arrested has committed or is committing a crime." Gonzalez v. City of Schenectady, 

728 F.3d 149, 155 (2d Cir. 2013) (quoting Weyant, 101 F.3d at 852). Therefore, 

"[w]hether an officer is authorized to make an arrest ordinarily depends, in the 

first instance, on state law." Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). 

Qualified immunity protects an officer so long as he had "arguable 

probable cause" to arrest, which "exists '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.'" 

Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Golino v. City of New 

Haven, 950 F.2d 864, 870 (2d Cir. 1991)). An officer is not entitled to qualified 
-25-

immunity if "no officer of reasonable competence could have made the same 

choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 

1995). "Arguable probable cause should not be misunderstood to mean almost 

probable cause." Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)

(quotation marks omitted). "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." Id. 

2. Application

We agree with the district court's determination that on the evidence 

adduced at trial, McGinley was not entitled to qualified immunity as a matter of 

law.10 First, no reasonable officer could have believed that there was reasonable 

suspicion to stop Elting under the circumstances. Second, no reasonable officer 

could have believed that there was probable cause to arrest Elting for obstruction 

of governmental administration on the facts presented.

 10 Contrary to Elting's assertion, McGinley's qualified immunity argument is 

not waived. He raised the issue in opposing Elting's Rule 50 motion, in his answer to 

the complaint, and in his motion for summary judgment. 
-26-

a. McGinley Lacked Reasonable Suspicion to Stop Elting

We must determine first when Elting was stopped, and hence 

"seized" for purposes of the Fourth Amendment, and second whether reasonable 

suspicion existed at that point. See United States v. Freeman, 735 F.3d 92, 96 (2d 

Cir. 2013).

Prior to McGinley ordering Elting to put his cell phone away, their 

interaction could arguably be characterized as a voluntary encounter for which 

no reasonable suspicion was necessary.11 See United States v. Drayton, 536 U.S. 

194, 202 (2002). McGinley concedes, and we agree, that the stop occurred at the 

very latest when McGinley instructed Elting not to use his phone.12 By that 

 

11 McGinley testified somewhat inconsistently on this point, stating that, 

upon his approach, he both "asked them if [he] could talk to them for a minute," J. App. 

282, and that he "asked them to stop," J. App. 283. There is no dispute that they did in 

fact stop walking in response to whatever was said. Had he in fact ordered them to 

stop, these circumstances might have been sufficient to constitute a seizure. See United 

States v. Simmons, 560 F.3d 98, 105-06 (2d Cir. 2009) ("A police officer's order to stop 

constitutes a seizure if 'a reasonable person would have believed that he was not free to 

leave,' . . . and the person complies with the officer's order to stop." (first quoting United 

States v. Mendenhall, 446 U.S. 544, 554 (1980), and then citing United States v. Swindle, 407 

F.3d 562, 572 (2d Cir. 2005))). 

12 The same result would obtain if the seizure did not begin until McGinley 

physically touched Elting's back with the intention of frisking him and took him to the 

ground. If their interaction was purely voluntary prior to that point, Elting was free to 

disregard McGinley's cell phone order and that refusal could not be considered 

suspicious. See Muhammad, 463 F.3d at 123 ("An individual approached by an officer 

who has no reasonable suspicion of wrongdoing may ignore the officer and go about 

his business, and his refusal to cooperate may not form the basis for his detention."). 

Therefore, the gap in time between the cell phone order and the application of physical 
-27-

point, McGinley had followed Dancy and Elting for a block and a half in his 

marked police vehicle, exited the car, asked to speak to them, and informed them 

that Dancy fit the description of a suspect. They complied with his request. 

McGinley then told Elting "numerous times" not to use his phone. J. App. 299. 

McGinley testified that, when he gave the cell phone orders, he was within two 

feet of Elting, his demeanor had changed, and he used a loud, commanding 

voice, while employing an expletive. In light of all the circumstances, any 

reasonable person in Elting's situation "would have believed that he was not free 

to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980) (noting that 

relevant factors signaling a police seizure include "the use of language or tone of 

voice indicating that compliance with the officer's request might be compelled"). 

Because a stop must be justified "at its inception," we consider only 

the facts known to McGinley that prompted him to give the cell phone orders. 

Terry, 392 U.S. at 20; see Simmons, 560 F.3d at 105. The facts McGinley offers to 

establish reasonable suspicion prior to the stop are: 1) Elting's presence in the 

company of an individual who (in some ways) met the description of a robbery 

suspect; 2) the proximity in time and space to the crime; and 3) Elting and Dancy 

looking over their shoulders at the police car following them. 

 

force contributes no additional facts on which McGinley could base his reasonable 

suspicion determination. See Freeman, 735 F.3d at 102. 
-28-

First, mere presence near someone who somewhat matches a vague 

description is not a reasonable basis for suspicion. The radio dispatch, as 

described in the narrative report, and the officer who interviewed the suspect 

and provided the description over the radio, described only a thin, black male 

wearing a brown jacket traveling in an unknown direction. McGinley observed 

Elting in the company of Dancy, who "somewhat" matched the description 

broadcast over the radio. J. App. 280. Dancy was indeed thin, black, and male. 

But, unlike the description, he was wearing a camouflage-patterned coat. While 

such a discrepancy does not necessarily defeat a finding of reasonable suspicion, 

see United States v. Jackson, 652 F.2d 244, 248-49 (2d Cir. 1981); see also United States 

v. Abdus-Price, 518 F.3d 926, 930 (D.C. Cir. 2008), the remaining description --

thin, black, and male -- is too vague in the circumstances here to justify a stop of 

anyone meeting it, see Swindle, 407 F.3d at 569-70 ("[R]ace, when considered by 

itself and sometimes even in tandem with other factors, does not generate 

reasonable suspicion for a stop."); Brown v. City of Oneonta, 221 F.3d 329, 334 (2d 

Cir. 2000) ("[A] description of race and gender alone will rarely provide 

reasonable suspicion justifying a police search or seizure."). Furthermore, the 

description did not mention a second assailant or accomplice, and Elting's mere

presence in the company of a possible suspect is, standing alone, not enough for 
-29-

a stop. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Hence, the description of a 

"thin black male, brown jacket" was hardly a basis for stopping these two 

teenagers. 

Second, while they were found walking within several city blocks of 

the crime scene, such proximity was innocuous given the unremarkable nature of 

the area in question. Cf. United States v. McCargo, 464 F.3d 192, 197 (2d Cir. 2006). 

Dancy and Elting were first seen walking west on Main Street, about a block 

away from the crime scene, some minutes after the radio broadcast.13 It would 

not have been unusual to find a thin, black male in downtown Poughkeepsie that 

Friday evening. The city itself is 33.5% African-American.14 Poughkeepsie's 

Main Street is aptly named, featuring a number of restaurants, businesses, and 

nightlife.15 Under the circumstances, the description fit too many people to 

constitute sufficient articulable facts on which to justify a forcible stop of Elting. 

 13 It is unclear exactly how long after the radio broadcast they were seen. 

The broadcast went out at 11:02:46 pm, which was some minutes after the actual 

attempted robbery. McGinley reported that he stopped them at 134 Cannon three 

minutes later, at 11:05:54 pm, after following them for more than a block and a half. 

14 See U.S. Census Bureau, QuickFacts, Poughkeepsie City, New York,

http://www.census.gov/quickfacts/table/RHI225215/3659641,00 (last visited Dec. 6, 

2016). Officer Craig testified that approximately half of Poughkeepsie is African 

American, and that there are many thin, black men residing there. 

15 See Google Maps, https://www.google.com/maps/place/472+Main+St,+Poughke

epsie,+NY+12601 (last visited Dec. 6, 2016). A Google Maps printout of poor quality 

was entered into the record. 
-30-

See Goodson v. City of Corpus Christi, 202 F.3d 730, 737 (5th Cir. 2000) (holding that 

because plaintiff matched description "tall, heavy-set, white man dressed as a 

cowboy" only insofar as plaintiff was a "tall, heavy-set, white man," the 

description was "too vague, and fit too many people," to justify a Terry stop).

Third, as the case law recognizes, in the circumstances here there is

nothing suspicious about looking over one's shoulder at an approaching police 

car. McGinley testified that his suspicions were aroused by the fact that Dancy 

and Elting looked over their shoulders "numerous times" at his patrol car, as he 

slowly followed them for about a block and a half. J. App. 301. In the 

circumstances here, looking over one's shoulder at an officer in slow pursuit is 

not suspicious behavior. See United States v. Keith, 559 F.3d 499, 505 (6th Cir. 

2009) ("[I]t is entirely to be expected that, out of curiosity, [the suspect's] attention 

was drawn to the nearby police cars with flashing lights at that time of the 

night."); United States v. Montgomery, 561 F.2d 875, 879 (D.C. Cir. 1977) ("Drivers 

simply do take notice when the police are nearby, and a person circling a block 

for whatever reason would take notice of a police car following him."); United 

States v. Parker, No. 99-CR-123 (JG), 1999 WL 997282, at *6 (E.D.N.Y. Oct. 18, 1999) 

("That [the defendant] turned back to look at the officers approximately three 

times does not constitute suspicious behavior." (footnote omitted)). Indeed, it is 
-31-

natural for people to take an interest in police activity nearby "out of a desire to 

avoid some minor misstep, such as a minor traffic violation, which would 

involve them unnecessarily with the police." 4 Wayne R. LaFave, Search and 

Seizure: A Treatise on the Fourth Amendment § 9.5(g) (5th ed. 2016). Any innocent 

pedestrian, upon realizing that he is being slowly followed by a police vehicle for 

some minutes, would look over his shoulder at the officer following him. Calling 

that behavior suspicious is not consistent with "commonsense judgments and 

inferences about human behavior." Wardlow, 528 U.S. at 125; see United States v. 

Jones, 149 F.3d 364, 370 (5th Cir. 1998) ("[W]hen the officer's actions are such that 

any [individual], whether innocent or guilty, would be preoccupied with his 

presence, then any inference that might be drawn from the [individual's] 

behavior is destroyed."). 

Nor did Dancy or Elting exhibit nervous or evasive behavior of any 

kind. Cf. Florida v. Royer, 460 U.S. 491, 493 n.2 (1983); Wardlow, 528 U.S. at 124. 

Officer McGinley did not suggest that they appeared nervous, attempted to 

conceal anything, changed direction, ran away, quickened their pace, or made 

furtive gestures. Cf. Jackson, 652 F.2d at 248-49.

Considering these facts together and under the "totality of the 

circumstances," Arvizu, 534 U.S. at 273, we conclude that McGinley had no basis 
-32-

to suspect Elting of any legal wrongdoing, see Swindle, 407 F.3d at 570 

(concluding with "no difficulty" that officers lacked reasonable suspicion to stop 

individual who met "black male" description in area of expected criminal activity 

but who exhibited no unusual behavior). Elting was walking with a thin, black 

male in downtown Poughkeepsie on a Friday evening, in proximity of a crime 

scene, nothing more. There was nothing suspicious about his actions. On these 

facts, no reasonable police officer would have had reason to stop him, or prevent 

him from calling his mother, or throw him to the ground.16 

Because subjective intentions are irrelevant to this analysis, see 

Whren v. United States, 517 U.S. 806, 813 (1996), we do not assess what was 

motivating this police officer when he decided to stop Elting. But we do know 

that, objectively speaking, he lacked reasonable suspicion, and so violated the 

Fourth Amendment by detaining Elting without an adequate basis. As a result 

of this suspicionless stop, an African-American teenager was arrested, jailed, and 

subjected to "the humiliations of [an] unconstitutional search[]." Utah v. Strieff, 

136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting). Circumstances like these 

 16 To the extent McGinley argues that he had reasonable suspicion to believe 

that Elting was armed and dangerous to perform a frisk, he has even less ground to 

stand on. A cell phone is not a weapon. The crime itself did not involve a weapon and 

nothing about Elting's behavior suggested that he had a weapon on his person. Cf.

Muhammad, 463 F.3d at 123-24. 
-33-

remind us that specificity in articulating the basis for a stop is necessary "in part 

because according the police unfettered discretion to stop and frisk could lead to 

harassment of minority groups and 'severely exacerbate police-community 

tensions.'" Bayless, 201 F.3d at 133 (alterations omitted) (quoting Terry, 392 U.S. at 

14 n.11). 

In sum, viewing the evidence in the light most favorable to 

McGinley, and even assuming that he stopped Elting for his stated reasons, we 

conclude as a matter of law that he lacked reasonable suspicion, based on specific 

and articulable facts, to stop Elting. The district court properly granted 

judgment as a matter of law in Elting's favor. 

b. McGinley Lacked Probable Cause to Arrest Elting for 

Obstructing Governmental Administration

McGinley argues that he had arguable probable cause to arrest 

Elting for obstruction of governmental administration based on his refusal to 

cooperate with the stop, his noncompliance with the cell phone order, and his 

asserted attempt to flee. None of these facts supports a finding of probable 

cause, and no reasonable officer would have arrested Elting in the circumstances

presented.

A cause of action for false arrest "accrues at the time of detention." 

Jaegly, 439 F.3d at 154. "We turn to the elements of the offense for which [the 
-34-

plaintiff] was arrested -- obstructing governmental administration -- to assess the 

objective reasonableness of the officers' belief that probable cause existed to 

arrest the plaintiff." Lennon, 66 F.3d at 424. Section 195.05 of the New York Penal 

Law defines the offense of obstructing governmental administration: 

A person is guilty of obstructing governmental 

administration when he intentionally obstructs, impairs 

or perverts the administration of law or other 

governmental function or prevents or attempts to 

prevent a public servant from performing an official 

function, by means of intimidation, physical force or 

interference, or by means of any independently 

unlawful act . . . .

The crime requires one of the following: "(1) 'intimidation,' (2) 'physical force or 

interference,' or (3) 'any independently unlawful act.'" Uzoukwu v. City of New 

York, 805 F.3d 409, 414 (2d Cir. 2015) (quoting People v. Case, 42 N.Y.2d 98, 101-02 

(1977)). Any interference must be physical, id., and must obstruct an "official 

function . . . 'authorized by law,'" Lennon, 66 F.3d at 424 (quoting In re Verna C., 

531 N.Y.S.2d 344, 345 (2d Dep't 1988)); accord Cameron v. City of New York, 598 

F.3d 50, 68 (2d Cir. 2010). 

McGinley lacked probable cause to arrest Elting here. First, Elting's 

attempts to use his cell phone did not, in context, suggest that he was trying to 

obstruct -- or that he did obstruct -- McGinley's investigation. While, in another 

case, repeatedly reaching for a phone may indicate an attempt to interfere, cf. In 
-35-

re Davan L., 91 N.Y.2d 88, 90-91 (1997) (holding that interference element was met 

where individual intentionally interceded in police sting operation, and yelled 

warnings of police presence to others, causing physical reaction and dispersal), 

here Elting plausibly indicated that he only wished to contact his mother, and 

McGinley was at no risk of harm from the phone being thrown at him, and no 

other circumstances -- including the "two steps" that Elting took away from 

McGinley, J. App. 373 -- implied that Elting hoped to obstruct McGinley. 

Moreover, even if the stop were lawful, Elting's refusal to respond 

was protected under the state constitution, in the circumstances here. See People 

v. Howard, 50 N.Y.2d 583, 590 (1980). In New York, unless he is otherwise 

lawfully detained, "[a]n individual to whom a police officer addresses a question 

has a constitutional right not to respond. He may remain silent or walk or run 

away. His refusal to answer is not a crime." Uzoukwu, 805 F.3d at 415-16 

(quoting People v. Howard, 50 N.Y.2d 583, 586 (1980)); see also People v. Ferreira, 807 

N.Y.S.2d 832, 834 (Crim. Ct. 2005). "[T]he failure to stop or co-operate by 

identifying oneself or answering questions [cannot] be the predicate for an arrest 

absent other circumstances constituting probable cause." Howard, 50 N.Y.2d at 

591-92; see also People v. Grullon, No. 2005NY044001, 2005 WL 2738354, at *3

(Crim. Ct. Oct. 24, 2005) ("[C]ase law establishes that a citizen's act of leaving, or 
-36-

even running from, the police does not violate [§ 195.05]."). Thus, while the 

police may be entitled to make a request, individuals have a right not to respond

in the absence of reasonable suspicion or probable cause. 

Second, Elting's actions could not have constituted obstruction of 

governmental administration because McGinley's Terry stop and frisk were

unauthorized. See supra; People v. Lupinacci, 595 N.Y.S.2d 76, 77 (2d Dep't 1993)

(concluding that because stop was unlawful, defendant's actions in avoiding

handcuffing and walking away from the arresting officer did not create probable 

cause to justify arrest for obstruction of governmental administration); see also 

Jackson v. City of New York, 939 F. Supp. 2d 219, 230 (E.D.N.Y. 2013) (concluding 

that because plaintiff's vehicle was unlawfully stopped, her failure to comply 

with an unjustified order to exit her vehicle does not create probable cause to 

justify arrest for obstruction of governmental administration). Elting's

noncompliance with McGinley's orders could not furnish McGinley with 

probable cause to arrest. See Muhammad, 463 F.3d at 123 ("An individual 

approached by an officer who has no reasonable suspicion of wrongdoing may 

ignore the officer and go about his business, and his refusal to cooperate may not 

form the basis for his detention."); Esmont v. City of New York, 371 F. Supp. 2d 202, 

210 (E.D.N.Y. 2005) (citing New York cases and concluding that "[r]esisting an 
-37-

illegal search does not . . . constitute a violation of the statute"). Therefore, no 

reasonable officer would have believed that he could stop Elting or lawfully 

order him to put his phone away such that Elting's noncompliance would 

amount to probable cause for the crime of obstructing governmental 

administration.17 

B. Remittitur

McGinley argues that the jury's $115,000 false arrest award and the 

$81,500 excessive force award as remitted shock the conscience. Neither award 

shocks the conscience. Accordingly, we hold that the district court did not abuse 

its discretion in making its remittitur determinations. 

1. Applicable Law

"The 'calculation of damages is the province of the jury,' . . . and 'we 

will not vacate or reduce a jury award merely because we would have granted a 

lesser amount of damages.'" Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 162 (2d 

Cir. 2014) (first quoting Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990), and then 

 17 Because there was no arguable probable cause to arrest Elting for 

obstruction of governmental administration, there was also no probable cause to arrest 

for resisting that arrest. See Curry v. City of Syracuse, 316 F.3d 324, 336 (2d Cir. 2003) ("It 

is well established in New York that 'probable cause to arrest is a prerequisite for 

making an authorized arrest,' and if there is no probable cause to arrest a person, that 

person 'cannot be guilty of resisting arrest.'" (quoting People v. Mohamadou, 698 N.Y.S.2d 

445, 447-48 (Crim. Ct. 1999)). 
-38-

quoting Lore v. City of Syracuse, 670 F.3d 127, 177 (2d Cir. 2012)). The district 

court's role is limited to determining "whether the award is so high as to shock 

the judicial conscience and constitute a denial of justice." DiSorbo v. Hoy, 343 F.3d 

172, 183 (2d Cir. 2003) (quoting Mathie v. Fries, 121 F.3d 808, 813 (2d Cir. 1997)). 

We, in turn, conduct a "narrow" review of the district court's decision on a 

motion for remittitur or a new trial for abuse of discretion. Id.; Turley, 774 F.3d at 

162. "If the question of excessiveness is close or in balance, we must affirm. . . . 

We must give the benefit of every doubt to the judgment of the trial judge; but 

surely there must be an upper limit, and whether that has been surpassed is not a 

question of fact with respect to which men may differ, but a question of law." 

Stampf v. Long Island R.R. Co., 761 F.3d 192, 204 (2d Cir. 2014) (alteration in 

original) (quoting Payne v. Jones, 711 F.3d 85, 98 (2d Cir. 2012)).

In determining whether a compensatory damage award is excessive, we consider 

"amounts awarded in other, comparable cases." DiSorbo, 343 F.3d at 183 (quoting 

Mathie, 121 F.3d at 813); see also Ismail, 899 F.2d at 186. Nevertheless, we examine 

each case individually as a unique set of facts and circumstances. Scala v. Moore 

McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993). Thus, while a review of 

comparable cases is appropriate, "we need not average the high and low awards; 

we focus instead on whether the verdict lies 'within [the] reasonable range.'" 
-39-

Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 671 (2d Cir. 2012) (alteration in 

original) (quoting Ismail, 899 F.2d at 187). 

2. Application

The district court addressed Elting's excessive force and false arrest 

injuries separately, attributing his physical injuries to the excessive force and his 

emotional injuries to his false arrest, to avoid double recovery for the same 

injuries. See Bender v. City of New York, 78 F.3d 787, 793 (2d Cir. 1996). 18 

a. Excessive Force

The $81,500 award as remitted for Elting's injuries caused by 

McGinley's excessive use of force during the arrest does not shock the 

conscience. As detailed above, the evidence at trial demonstrated that Elting -- a

17 year-old high school student -- was inexcusably beaten by police officers. As a 

result he suffered bruising and abrasions to his head, face, and torso. He 

 18 Though some percentage of Elting's emotional injuries may be attributed 

to the excessive force as distinct from the false arrest, the district court addressed them 

only in context of false arrest, noting that Elting himself only discussed emotional 

damages as to his false arrest claim. The jury was instructed, however, not to award 

compensatory damages more than once for the same injury and to consider "pain and 

suffering and emotional or mental anguish experienced . . . on each . . . claim[]." J. App. 

659. We therefore take into account any non-duplicative emotional pain associated with 

the excessive force in conducting our review of the excessive force award. See Martinez 

v. Port Auth. of N.Y. & N.J., 445 F.3d 158, 161 (2d Cir. 2006). 
-40-

continued to experience soreness, swelling, and headaches for a couple of weeks 

thereafter, and missed a week of school as a result. 

The award of $81,500 is within the permissible range of 

compensatory damages awards we have approved in other excessive force cases. 

See DiSorbo, 343 F.3d at 176, 181 (reducing a jury award of $400,000 to $250,000 

where the plaintiff was choked, slammed against a wall, thrown to the ground, 

struck while defenseless on the floor, and dragged through the police station by 

officers, but suffered no permanent injuries); Blisset v. Coughlin, 66 F.3d 531, 533-

34, 536 (2d Cir. 1995) (affirming $75,000 compensatory damages award to inmate 

who was assaulted while handcuffed by corrections officers; he was punched, 

struck repeatedly with batons, kicked, and choked until he fell briefly 

unconscious). 

It is also in line with what district courts within this circuit have 

awarded for similar injuries. See Lewis v. City of Albany Police Dep't, 547 F. Supp. 

2d 191, 206-10 (N.D.N.Y. 2008) (concluding that $65,000 damages award did not

shock conscience where plaintiff experienced contusions, swelling, and 

headaches due to officer standing on his head and grinding his face into 

pavement); Hightower v. Nassau Cty. Sheriff's Dep't, 325 F. Supp. 2d 199, 207-09 

(E.D.N.Y.) (reducing $150,000 award to $65,000 where two altercations with 
-41-

guards left pretrial detainee with bruises and contusions, swollen upper lip, and 

pain in the lumbar spine, without rendering permanent damage), vacated in part 

on other grounds by 343 F. Supp. 2d 191 (E.D.N.Y. 2004); Morales v. City of New 

York, No. 99 Civ. 10004 (DLC), 2001 WL 8594, at *7, 10 (S.D.N.Y. Jan. 2, 2001) 

(reducing jury award of $2.75 million to $50,000 for "deep bruises" and months of 

counseling caused by altercation with police during which officer held plaintiff 

tightly by upper arms and forced her into police car). 

Though there were no permanent physical injuries, the nature and 

circumstances of the inflicted force justify the award. Therefore, we conclude 

that the award is not unreasonable. 

b. False Arrest

Under New York law, false arrest damages are awarded "only for 

the period from initial custody until arraignment." Hygh v. Jacobs, 961 F.2d 359, 

366 (2d Cir. 1992). "The plaintiff is entitled to compensation for loss of time, for 

physical discomfort or inconvenience, and for any resulting physical illness or 

injury to health. Since the injury is in large part a mental one, the plaintiff is 

entitled to damages for mental suffering, humiliation, and the like." Jaegly, 439 

F.3d at 154 (quoting W. Keeton et al., Prosser and Keeton on the Law of Torts § 11, at 

48 (5th ed. 1984)). 
-42-

First, we reject McGinley's argument that there was insufficient 

evidence in the record to support the jury's damage award with respect to 

Elting's emotional injuries. The "objective circumstances of the violation itself" 

substantiate Elting's testimony about his emotional injuries, as does his mother's 

corroborating testimony. Patrolmen's Benevolent Ass'n v. City of New York, 310 

F.3d 43, 55 (2d Cir. 2002). 

Second, the award of $115,000 is not excessive. See Gardner v. 

Federated Dep't Stores, Inc., 907 F.2d 1348, 1350, 1353 (2d Cir. 1990) (remitting 

award of damages for deprivation of liberty and pain and suffering from 

$300,000 to $200,000 where plaintiff was falsely arrested and accused of theft by 

security guards in a store, handed over to police, and imprisoned for another six 

hours). In Martinez v. Port Authority of New York & New Jersey, we affirmed an 

award of $360,000 for a false arrest claim, consisting of $200,000 for emotional 

distress and $160,000 for loss of liberty. 445 F.3d 158, 159-61 (2d Cir. 2006) (per 

curiam). There, the plaintiff was arrested outside a men's bathroom for public 

lewdness, subjected to humiliation as a result of the arrest, and detained for 

approximately nineteen hours. See Martinez v. Port Auth. of N.Y. & N.J., No. 01 

Civ. 721 (PKC), 2005 WL 2143333, at *1, 17 (S.D.N.Y. Sept. 2, 2005). After his 
-43-

release, the plaintiff experienced sleeplessness, loss of appetite, and anxiety, and 

briefly contemplated suicide. Id. at *18. 

Elting's emotional damages as a result of the experience were 

substantial. His age is of particular significance, as there can be little doubt that 

an event such as he experienced here has a deeper and lasting impact on a 

seventeen-year old than an adult. See Zeno, 702 F.3d at 672 (finding fact that 

plaintiff was teenager -- "a vulnerable point in his life" -- relevant to gravity of his 

emotional injuries). He was subjected to the demeaning process of being 

arrested, booked at the police station, fingerprinted, interrogated by two 

detectives about a robbery, and detained overnight in a cell. The jury could have 

reasonably found that the event left an indelible impression on him and his 

attitudes toward police officers. Elting testified that the incident "changed [his] 

outlook on a lot of things." J. App. 148. He lost trust in the police and his 

mother's coworkers at the Duchess County Correctional Facility, elaborating as 

follows: 

Q: Why do you say you didn't trust the police after 

this? 

A: Because we were doing nothing wrong and we 

were assaulted. Like I heard about it, but I got to 

witness it firsthand because my mother always 

told me that most of the time when people are in 
-44-

situations with the police, it's because they put 

themselves there. We didn't do that. 

J. App. 148. Cf. Strieff, 136 S. Ct. at 2070 (Sotomayor, J., dissenting) ("For 

generations, black and brown parents have given their children 'the talk' --

instructing them never to run down the street; always keep your hands where 

they can be seen; do not even think of talking back to a stranger -- all out of fear 

of how an officer with a gun will react to them."). Thus, damages in the amount 

of $115,000 for such injuries was not excessive. 

II. Dancy's Claims Against Williams

Williams testified that he deliberately bent Dancy over the police 

car, but claimed that he did not cause Dancy's injuries and that he never 

intended Dancy any harm. He denies that Dancy's face ever came into contact 

with the hood. Dancy argued that Williams's use of force was certainly 

intentional at the outset and that thereafter, whether Williams intended to hurt 

him or not, the force used was objectively unreasonable, resulting in his broken 

jaw. 

The district court instructed the jury that, to impose liability, it was 

required to find that Williams "acted intentionally or recklessly" rather than 

"merely negligent[ly]" in performing the acts alleged, and it suggested that if 
-45-

Williams's actions were "merely negligent," Dancy could not recover even if his 

injuries resulted from that negligence. J. App. 1009. We conclude that there was 

a lack of clarity in the court's instructions that improperly placed the burden on 

Dancy to prove intent, not only as to the seizure but as to the injury as well. The 

error was not harmless. 

A. Applicable Law

"[W]e review challenges to jury instructions in civil cases de novo, 

'and will grant a new trial if the error is not harmless.'" Rasanen v. Doe, 723 F.3d 

325, 331-32 (2d Cir. 2013) (quoting Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 

749, 758 (2d Cir. 2004)). "A jury charge is erroneous if it misleads the jury as to 

the correct legal standard, or if it does not adequately inform the jury of the law." 

Hathaway v. Coughlin, 99 F.3d 550, 552 (2d Cir. 1996). It "will be deemed adequate 

if 'the charge, taken as a whole, is correct and sufficiently covers the case so that a 

jury can intelligently determine the questions presented to it.'" Id. at 553 (quoting 

Schermerhorn v. Local 100, Transp. Workers Union of Am., 91 F.3d 316, 322 (2d Cir. 

1996)). The error must be sufficiently serious to undermine "the very integrity of 

the trial." SCS Commc'ns Inc. v. Herrick Co., 360 F.3d 329, 343 (2d Cir. 2004)

(quoting Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 61 (2d 

Cir. 2002)).
-46-

The Fourth Amendment protects individuals from seizures executed 

with excessive force. See Graham v. Connor, 490 U.S. 386, 393-94 (1989). Whether 

the force used was excessive is analyzed under the Fourth Amendment's 

"reasonableness" standard, and determined by "balancing . . . 'the nature and 

quality of the intrusion on the individual's Fourth Amendment interests' against 

the countervailing governmental interests at stake." Id. at 395-96 (quoting 

Tennessee v. Garner, 471 U.S. 1, 8 (1985)). It requires the consideration of the "facts 

and circumstances of each particular case, including the severity of the crime at 

issue, whether the suspect poses an immediate threat to the safety of the officers 

or others, and whether he is actively resisting arrest or attempting to evade arrest 

by flight." Id.; accord Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015).

Intent is a factor -- to a limited extent. A plaintiff must prove that an 

officer intended to commit acts that constituted a seizure in the first instance. 

The Fourth Amendment is not implicated absent a "governmental termination of

freedom of movement through means intentionally applied." Brower v. Cty. of Inyo, 

489 U.S. 593, 596-97 (1989) ("[That] the detention . . . be willful . . . . is implicit in 

the word 'seizure,' which can hardly be applied to an unknowing act."). But as

long as an officer deliberately performed acts that constitute a seizure, the Fourth 
-47-

Amendment has been triggered, regardless of whether it was accomplished by 

the exact method intended. 

Intent is not relevant, however, as to the officer's underlying 

motivation for his actions during the course of a seizure. In Graham, the Supreme 

Court made clear that the standard is one of objective reasonableness, meaning 

the officer's "underlying intent or motivation" is not a factor. 490 U.S. at 397; see 

Hudson, 271 F.3d at 68 ("Section 1983 does not require any intent to violate

constitutional rights."). An officer's good intentions are immaterial and will not 

justify an objectively unreasonable use of force. See Graham, 490 U.S. at 397; 

Brown, 798 F.3d at 100-01. 

Thus, a plaintiff need not prove that the officer intended to violate 

his rights, Hudson, 271 F.3d at 68-69, or intended that a "certain result be 

achieved," Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000). Objectively 

unreasonable actions during the course of a seizure, even if based on a mistake,

are unconstitutional. See Henry v. Purnell, 652 F.3d 524, 532 (4th Cir. 2011) ("All 

actions, . . . mistaken or otherwise, are subject to an objective test."); Torres v. City 

of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011) ("Not all errors in perception or

judgment . . . are reasonable."). 

"The seizure and reasonableness inquiries are distinct and should 
-48-

not be conflated." Carlson v. Bukovic, 621 F.3d 610, 618 (7th Cir. 2010). Once a 

seizure has been set in motion by an intentional act, the Fourth Amendment's 

"reasonableness" standard applies to the manner in which the seizure is 

executed. This applies to all officer actions, "without regard to their underlying 

intent," and lasts at least until "the point at which the arrest ends and pretrial 

detention begins." Graham, 490 U.S. at 395 n.10, 397; accord Powell v. Gardner, 891 

F.2d 1039, 1043-44 (2d Cir. 1989). Thus, once a seizure is initiated, an officer's 

objectively unreasonable conduct may violate the Fourth Amendment regardless 

of whether the officer intended any injury to result. See Stamps v. Town of 

Framingham, 813 F.3d 27, 37 (1st Cir. 2016) ("There is widespread agreement 

among the circuits that have addressed the issue that a claim is stated under the 

Fourth Amendment for objectively unreasonable conduct during the effectuation 

of a seizure that results in the unintentional discharge of an officer's firearm."); 

Watson v. Bryant, 532 F. App'x 453, 457-58 (5th Cir. 2013) (per curiam) ("An 

undisputedly accidental shooting . . . does not end the inquiry. [The officer] still 

may have violated the Fourth Amendment if he acted objectively unreasonably 

by deciding to make an arrest, by drawing his pistol, or by not reholstering it 

before attempting to handcuff [the plaintiff]."). 

Williams argues that, under Section 1983, a plaintiff "must establish 
-49-

that the force used was purposeful or intentional, and not accidental," citing the 

Supreme Court's decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). Resp. 

& Reply Br. for Def.-Appellant & Def.-Appellee 17. But Kingsley addressed only

the legally requisite state of mind required for a pretrial detainee's excessive 

force claims under the Due Process Clause of the Fourteenth Amendment. See 

Kingsley, 135 S. Ct. at 2472. What mental state a § 1983 plaintiff is required to 

prove depends on the right at issue. Section 1983 "does not itself import an 

intent standard into an underlying constitutional deprivation that lacks such a 

requirement." Hudson, 271 F.3d at 68. Plaintiffs "need only demonstrate intent 

where the underlying constitutional deprivation, such as an equal protection

violation under the Fourteenth Amendment, calls for it." Id. Notably, unlike 

§ 1983 claims under the Due Process Clause or Eighth Amendment, Fourth 

Amendment claims are tied to reasonableness, which is considerably less 

demanding. See Graham, 490 U.S. at 398 ("Differing standards under the Fourth 

and Eighth Amendments are hardly surprising: the terms 'cruel' and 

'punishments' clearly suggest some inquiry into subjective state of mind, 

whereas the term 'unreasonable' does not."); Cty. of Sacramento v. Lewis, 523 U.S. 

833, 848-49 (1998) (rejecting negligence standard in context of Due Process Clause 

because the Constitution "does not guarantee due care on the part of state 
-50-

officials;" only "conduct intended to injure in some way unjustifiable by any 

government interest is the sort of official action most likely to rise to the 

conscience-shocking level"). 

In Hudson, we "readily" "assum[ed]" that "all Fourth Amendment 

violations require intentional actions by officers, rather than 'the accidental effects 

of otherwise lawful government conduct.'" Hudson, 271 F.3d at 69 (first emphasis 

added) (quoting Brower, 489 U.S. at 596) (citing only Brower and Medeiros v. 

O'Connell, 150 F.3d 164 (2d Cir. 1998), and applying the concept to a government 

search); see also Brower, 489 U.S. at 596 ("Violation of the Fourth Amendment 

requires an intentional acquisition of physical control."). But in the excessive 

force context, the intent in question can only be the intent to perform some

action, not that a particular result be achieved. So long as the plaintiff can point 

to unreasonable intentional action taken that proximately caused the injury after 

the seizure is initiated, no additional intent to injure is required. 

B. Application

The jury was instructed that, to establish deprivation of a right 

secured by the Constitution, Dancy had to show: 

that in performing the acts alleged, the defendant acted 

intentionally or recklessly. . . . 
-51-

[T]o establish a claim under Section 1983, a plaintiff 

must . . . show that a defendant acted intentionally or 

recklessly. If you have found that the defendant 

committed the act in question, you must then determine 

whether the defendant acted intentionally or recklessly. 

If so, you will go on to consider the third element of the 

plaintiff's second 1983 claim. 

If, however, you find that the defendant's acts were 

merely negligent, then even if you find that the plaintiff 

was harmed as a result of those particular acts or 

omissions, you must find that the plaintiff has not 

established his claim under Section 1983. . . . 

An act is intentional if it is done knowingly; that is, if it 

is done voluntarily and deliberately and not because of 

mistake, accident, negligence or other innocent reason. 

An act is reckless if it is done in conscious disregard of 

its known probable consequences. 

An act is negligent if a person was under a duty or 

obligation recognized by law that required that person 

to adhere to a certain standard of conduct to protect 

others against unreasonable risks, and that person 

breached that duty or obligation.

J. App. 1006, 1009-10. 

This instruction is confusing in the context of excessive force

liability. Instructing that a plaintiff must show that "the defendant acted 

intentionally or recklessly" and that if "the defendant's acts were merely 

negligent . . . [the jury] must find that the plaintiff has not established his claim" 

could be understood to suggest incorrectly that an officer must have intended the 

results of his actions or consciously disregarded their consequences. The district 
-52-

court's instruction thus may have led the jury to erroneously believe that it was 

required to find that Williams intended to hit Dancy's face against the car and/or 

to injure him. 

Indeed, the district court appears to have operated under the same 

misconception. In denying Dancy's Rule 59 motion, it stated that "the jury could 

have found that . . . to the degree [Williams] actually used greater force than he 

intended, such greater force (sufficient to break Dancy's jaw) was the result of a 

negligent rather than an intentional act." J. App. 1098. Yet, even if Williams did 

not intend to use enough force to break Dancy's jaw, his actions may still have 

been objectively unreasonable because of the risk of injury, regardless of whether 

Williams was aware of the risk. 

Further, to the extent Dancy was required to prove any intent at all, 

it was satisfied by Williams's admission that he applied some degree of force and 

did so deliberately. It was that force that Dancy claims was both objectively 

unreasonable and caused his injuries. The jury could find either that the injury 

did not actually occur as a result of the force Williams applied, meaning that 

Williams did not proximately cause Dancy's injury, or that the amount of force 

used was reasonable. What it could not do was conclude that Williams 
-53-

intentionally used force, but was not liable because he did not intend that the 

force result in the injury Dancy suffered.

The fact that the district court explained the objective reasonableness 

standard elsewhere in the instruction does not cure the error. See Hudson, 271 

F.3d 62, 69-70 (2d Cir. 2001) (error in instructing the jury to find an intent to 

violate plaintiff's rights was not cured by the objective reasonableness 

instruction). The instruction on intent and negligence, without further 

explanation from the court, cannot be reconciled with the standard of objective 

reasonableness. The instruction provided to the jurors -- that if they found "the 

defendant's acts were merely negligent" they could not hold the defendant liable 

"even if . . . the plaintiff was harmed as a result of those particular acts" --

contradicts the instruction that force is excessive if it is objectively unreasonable, 

i.e., beyond that which a reasonable and prudent officer would have applied. See 

Fisher, 234 F.3d at 317 ("Instructing the jury that more than negligence was 

required would likely confuse the jury as to the intent question."). 

The error was also prejudicial. See Hudson, 271 F.3d at 70. Williams 

admitted that he applied force to Dancy as he bent Dancy over from his waist 

and pressed his body weight into Dancy's body. He did so deliberately, to put 

Dancy in a "position of disadvantage" against the hood of the car. J. App. 914. 
-54-

The end result was that Dancy's jaw was broken. Williams offered no reasonable 

explanation for how Dancy could otherwise have been injured. 

While Williams's defense focused largely on the identity of the 

assailant and the actual cause of the injury, his lawyer also suggested at trial that 

the injury was unintentional, stating, "I don't know what force it takes to break a 

jaw," and that medical evidence of a broken jaw is insufficient evidence of 

excessive force "even if you believe something happened out there." J. App. 976. 

Under the district court's instruction, the jury could have concluded that there 

was no violation because Williams did not intend to use enough force to break 

Dancy's jaw. But given Williams's admission that he intentionally used some

amount of force on Dancy, it is irrelevant whether he intentionally applied force 

sufficient to break Dancy's jaw or otherwise intended to injure Dancy. 

Williams seized Dancy, and, by his own admission, he did so 

intentionally. Hence the Fourth Amendment was implicated. If indeed he broke 

Dancy's jaw -- and there does not appear to be any other explanation -- it matters 

not whether he intended to do so or to otherwise injure Dancy. Therefore, a new 

trial is warranted. 
-55-

CONCLUSION

For the reasons set forth above, the judgment of the district court in 

favor of Elting against McGinley is AFFIRMED, and the judgment in favor of 

Williams is VACATED and the case is REMANDED for a new trial with respect 

to Dancy's claim against Williams for the use of excessive force.