14-680-cv 

Reisha Simpson v. City of New York 

1 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

August Term, 2014 

(Argued: January 9, 2015 Decided: July 15, 2015) 

Docket No. 14-680-cv 

________________________________________________________________________ 

REISHA SIMPSON, 

Plaintiff-Appellant, 

- v. - 

THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER 

KENSON NELSON, SHIELD #001838, 40 PCT.,

Defendants-Appellees,

SGT. ALLISON DEMICK, SHIELD #001099, CJB, 

Defendant.

________________________________________________________________________ 

Before: 

HALL, LYNCH, AND CARNEY, Circuit Judges. 

 Appeal from the United States District Court for the Southern District of New York 

(Forrest, J.) granting summary judgment in favor of appellees on appellant’s false arrest 

claims and on appellee Nelson’s assertion of qualified immunity. We hold that the district 

court erred in granting appellees’ motion for summary judgment because on the facts viewed 

in the light most favorable to appellant, a reasonable juror could conclude that appellee 

Nelson lacked probable cause to arrest appellant for theft of services and, because it was 

unreasonable for him to believe there was probable cause, appellee Nelson would not be 

protected by qualified immunity. The judgment of the district court is VACATED, and the 

case is REMANDED for further proceedings. 

 VACATED and REMANDED. 
14-680-cv 

Reisha Simpson v. City of New York 

2 

STEVEN H. GOLDMAN, Law Office of Steven H. 

Goldman, Bronx, NY, for Plaintiff-Appellant.

SCOTT SHORR, Assistant Corporation Counsel (Francis 

F. Caputo, Assistant Corporation Counsel on the brief), for 

Zachary W. Carter, Corporation Counsel of the City of 

New York, New York, NY, for Defendants-Appellees. 

HALL, Circuit Judge: 

 

BACKGROUND 

The issue before the Court is whether, on the facts of this case viewed in the light most 

favorable to Plaintiff-Appellant Reisha Simpson (“Ms. Simpson”), a reasonable juror could 

find that Defendant-Appellee New York City Police Officer Kenson Nelson (“Officer 

Nelson”) had probable cause to arrest Ms. Simpson for theft of services after she rebuffed 

his flirtatious advances, entered the back door of the bus she was intending to ride because 

the driver could not fix the stuck lift at the front entrance and told passengers to enter 

through the rear, and was proceeding in line to swipe her MetroCard when Officer Nelson 

intercepted her and made her get off the bus. 

 Ms. Simpson appeals from portions of a district court order entering summary judgment 

in favor of Officer Nelson on false arrest claims brought under both 42 U.S.C. § 1983 and 

New York State law and on grounds of qualified immunity.1 Because the material facts of 

this case are in dispute, we emphasize at the outset that we, and the district court, are bound 

to consider the facts in the light most favorable to Ms. Simpson, the non-moving party. See 

Lederman v. NYC Dep’t of Parks & Recreation, 731 F.3d 199, 202 (2d Cir. 2013) (“We . 

																																																																		

1 As noted in more detail below, the issues before us on appeal are limited to those that are 

raised in appellant’s principal brief. We therefore address only Ms. Simpson’s claims against 

Officer Nelson and do not disturb the district court’s dismissal of Ms. Simpson’s claims 

against the City of New York, which she abandoned on appeal. 
14-680-cv 

Reisha Simpson v. City of New York 

3 

. . resolve all ambiguities and draw all permissible factual inferences in favor of the party 

against whom summary judgment is sought.” (internal quotation marks and alterations 

omitted)). Viewing the facts in that light, and drawing all reasonable inferences in Ms. 

Simpson’s favor, the following comprise the material facts of this case. 

A. Factual Background

In June 2011, Ms. Simpson was walking to the 149th Street and Third Avenue BX19 bus 

stop in the Bronx when she noticed a crowd of people waiting to board the bus. She also 

noticed a woman in a mobile walker on a mechanical lift located at the front of the bus, the 

deck of which was suspended in the air. The lift had malfunctioned, and the bus driver was 

on the lift attempting to fix it. 

While Ms. Simpson waited with the other passengers for the bus driver to fix the lift, 

Officer Nelson, who had been standing nearby, approached Ms. Simpson and remarked, 

“You’re very pretty.” Appellant’s App. 164. Ms. Simpson responded, “Thank you.” Id. at 

166. Officer Nelson asked, “What’s your name?” and she replied, “Reisha.” Id. Officer 

Nelson then asked Ms. Simpson for her last name to which she replied, “I’m not telling you 

my last name.” Id. When asked by Officer Nelson why she would not share her last name, 

Ms. Simpson responded that she was “with someone.” Id. at 168. Officer Nelson’s tone 

became aggressive and he remarked, “What does that have to do with me? . . . I’m a police 

officer, you know I can get your last name.” Id. at 170-72. Ms. Simpson answered, “I know 

that.” Id. While Ms. Simpson continued to wait in line to board the bus, Officer Nelson 

stood an “arm’s length away” from her. Id. at 180. 
14-680-cv 

Reisha Simpson v. City of New York 

4 

Eventually the bus driver instructed the passengers to “Go around, go around” and 

opened the back doors of the bus. Id. at 184. Ms. Simpson and the passengers waiting in 

line then moved to the back entrance. Ms. Simpson boarded the bus and got in line to swipe 

her MetroCard at the front of the bus. As she neared the front, she heard someone yell, 

“Hey,” and felt something thrust into her side. Id. at 190. She looked down and noticed 

Officer Nelson’s police cap. Officer Nelson then asked Ms. Simpson, “Do you have ID?” 

and she responded, “Yes.” Id. at 192. Officer Nelson said, “Let me see your ID.” Id. 

Because she was about to swipe her MetroCard to pay the bus fare, she replied, “Okay, hold 

on.” Id. Officer Nelson then yelled, “Don’t swipe that card,” again asked Ms. Simpson for 

her ID, and instructed her to “Come off the bus and show it to me.” Id. at 192-98. As Ms. 

Simpson followed Officer Nelson off the bus, passengers yelled, “Is this a group lecture?” 

and “Do you see the thing in the front, do you see the lift?” Id. at 198. Once on the 

sidewalk, Officer Nelson yelled, “You want to embarrass me?” Id. at 201. Ms. Simpson 

responded, “Sir, I turned you down nicely.” Id. 

Having witnessed the bus driver repairing the mechanical lift, Ms. Simpson asked Officer 

Nelson, “So, am I getting back on this bus?” Id. He did not reply. He then took Ms. 

Simpson’s ID, read her name aloud, and confirmed her address. He also reached into Ms. 

Simpson’s wallet, which was already open, and removed her Police Benevolent Association 

(“PBA”) card.2 Officer Nelson asked Ms. Simpson if she was “an officer,” and she replied 

that she was. Id. at 54. He asked her to which precinct she belonged. Id. She replied that 

she was not with a precinct. Id. Officer Nelson put Ms. Simpson’s ID card and her PBA 

																																																																		

2 A PBA card indicates membership in a police union. Ms. Simpson, a security officer, was a 

member of the same PBA as New York City Police officers. 
14-680-cv 

Reisha Simpson v. City of New York 

5 

card in his shirt pocket. He handcuffed Ms. Simpson and called for a transport car. She was 

then transported to the precinct and charged with theft of services. 

All charges against Ms. Simpson were dismissed in October 2011, some four months 

later. 

B. Procedural Background 

In August 2012, Ms. Simpson filed suit in the United States District Court for the 

Southern District of New York asserting several causes of action against Officer Nelson, 

Sergeant Allison Demick, the City of New York, and the New York City Police Department 

(collectively “Defendants”).3 Ms. Simpson asserted four causes of action: false arrest against 

Officer Nelson and Sergeant Demick under 42 U.S.C. § 1983 (First Cause); false arrest and 

false imprisonment under New York State law against all Defendants, including the City of 

New York because Officer Nelson and Sergeant Demick were acting “within the scope of 

their employment” (Second Cause); negligence under State law based on injuries allegedly 

incurred in the course of her arrest against all Defendants, including the City of New York 

under the doctrine of respondeat superior (Third Cause); and negligent hiring, training, 

discipline and retention of employment services against the City of New York because it 

“knew or should have known that [Officer Nelson and Sergeant Demick] were dangerous” 

(Fourth Cause). Appellant’s App. at 11-15. The complaint sought compensatory damages, 

punitive damages and attorney’s fees. Defendants denied all allegations. 

																																																																		

3 Shortly after the complaint was filed the parties agreed to dismiss all claims against Sergeant 

Demick. Furthermore, because the New York City Police Department is not a defendant 

independent from the City of New York, we address all claims against the Department as 

having been brought against the City of New York. 
14-680-cv 

Reisha Simpson v. City of New York 

6 

In October 2013, Defendants moved for summary judgment. They argued, inter alia, that 

Ms. Simpson boarded the bus through the back door marked “no entry” and that this 

undisputed material fact provided sufficient probable cause for her arrest for avoiding the 

fare. Appellant’s App. 49-52. Officer Nelson also argued that he was entitled to qualified 

immunity. 

The following month, during a telephonic hearing with the parties, the district court 

granted summary judgment in favor of Defendants on the third and fourth causes of 

action—i.e., the claim for negligence against all Defendants and the claim for negligent hiring 

against the City of New York. The court denied summary judgment as to Ms. Simpson’s 

first and second causes of action—i.e., the § 1983 cause of action against Officer Nelson and 

Sergeant Demick for false arrest and the false arrest and false imprisonment cause of action 

under New York State law against all Defendants. With respect to the first two causes of 

action, the district court reasoned, in relevant part, that there was a genuine dispute as to 

whether Ms. Simpson intended to commit theft of services or, in the alternative, intended to 

impersonate an officer, such that Officer Nelson had probable cause to arrest her.4

 The district court also rejected Officer Nelson’s assertion of qualified immunity.5

																																																																		

4 The district court explained: 

[Ms. Simpson] states that the bus driver directed waiting passengers 

to actually enter through the rear door because of some difficulties 

the driver was having with the lift at the front of the bus, and that she 

was actually in line to pay her fare when she was removed from the 

bus by [Officer Nelson]. So there’s a genuine dispute of fact as to the 

elements of the theft of services [charge as a basis for probable cause 

for the arrest]. 

Appellant’s App. 29-30. 
14-680-cv 

Reisha Simpson v. City of New York 

7 

The following month, however, after further consideration, the district court, sua sponte, 

granted summary judgment in favor of all Defendants on the first and second causes of 

action. Simpson v. City of New York, No. 12 CIV. 6577, 2013 WL 6503521 (S.D.N.Y. Dec. 9, 

2013). On the false arrest claim, the district court reasoned that there was no issue of 

material fact as to whether Officer Nelson was entitled to qualified immunity. The court 

concluded that because Ms. Simpson had admittedly entered the bus through a back 

entrance marked “no entry,” Officer Nelson could have reasonably believed that Ms. 

Simpson intended to obtain services without payment and thus had probable cause to arrest 

her. Id. at *4. The court further ruled that Officer Nelson was entitled to qualified 

immunity because it was “objectively reasonable” for him to believe that Ms. Simpson had 

committed the offense of theft of services and that Officer Nelson’s ‘“actions were lawful at 

the time of the challenged act.’” Id. at *5 (quoting Cerrone v. Brown, 246 F.3d 194, 199 (2d 

Cir. 2001)). 

Ms. Simpson moved for reconsideration. In its subsequent denial, the district court 

stated that it had considered Ms. Simpson’s factual allegations, including the allegation that 

Officer Nelson was aware that Ms. Simpson boarded the back of the bus only as a result of 

the driver’s instruction, but ultimately reiterated that these allegations were “mere 

																																																																																																																																																																																																																				

5 The district court further explained: 

[T]here are issues relating to impersonating an officer, and also as to 

the theft of services, and those disputes are sufficiently factually based 

that if the plaintiff were, in fact, correct about her version of events, 

then it is possible that a rational jury could find that qualified 

immunity here does not attach. 

Appellant’s App. 30.
14-680-cv 

Reisha Simpson v. City of New York 

8 

speculation and conjecture” and could not survive summary judgment. Simpson v. City of New 

York, No. 12 CIV. 6577, 2014 WL 595759, at *2 (S.D.N.Y. Feb. 10, 2014) (internal quotation 

marks omitted). The district court further stated that because Ms. Simpson did not dispute 

that Officer Nelson saw her “board a bus through the rear doors, which were marked ‘no 

entry’ without paying the fare,” Officer Nelson’s subjective intent in arresting her was 

irrelevant. Id. at *3 (internal citation omitted). This appeal followed. 

DISCUSSION 

We begin by noting the issues on appeal. Contrary to Ms. Simpson’s assertions in her 

reply brief, her claims against the City of New York are not properly before us. See Knipe v. 

Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (concluding that “[a]rguments may not be made for 

the first time in a reply brief”). Her principal brief advances no arguments as to why the 

claims against the City of New York were improperly dismissed. In fact, there is no 

discussion whatsoever of the City’s respondeat superior liability. Accordingly, we limit our 

consideration to those portions of the district court’s decisions granting summary judgment 

in Officer Nelson’s favor as to the § 1983 and State law false arrest claims and granting 

Officer Nelson qualified immunity. 

We review de novo an order granting summary judgment. Mathirampuzha v. Potter, 548 F.3d 

70, 74 (2d Cir. 2008). “We will affirm the judgment only if there is no genuine issue as to 

any material fact, and if the moving party is entitled to a judgment as a matter of law.” Id. 

(internal quotation marks omitted). In making this determination, as already noted, we 

“resolve all ambiguities and draw all permissible factual inferences in favor of the party 

against whom summary judgment is sought.” Lederman, 731 F.3d at 202 (internal quotation 
14-680-cv 

Reisha Simpson v. City of New York 

9 

marks and alterations omitted). “The judge must ask not whether the evidence unmistakably 

favors one side or the other but whether a fair-minded jury could return a verdict for the 

plaintiff on the evidence presented.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 

2005) (internal quotation marks and alterations omitted). “Assessments of credibility and 

choices between conflicting versions of the events are matters for the jury, not for the court 

on summary judgment.” Id. (internal quotation marks omitted). 

“A section 1983 claim for false arrest is substantially the same as a claim for false arrest 

under New York law.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (citing 

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). To avoid liability for a claim of false arrest, 

an arresting officer may demonstrate that either (1) he had probable cause for the arrest, or 

(2) he is protected from liability because he has qualified immunity. See Weyant, 101 F.3d at 

852. A finding of probable cause is a complete defense to false arrest claims. See Jenkins, 478 

F.3d at 84. An arresting officer has probable cause when the officer has “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.” Weyant, 101 F.3d at 852. When determining whether probable cause 

existed to support an arrest, we “consider those facts available to the officer at the time of 

arrest and immediately before it,” and we must render our decision based on the “totality of 

the circumstances.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation 

marks and emphasis omitted). 

 
14-680-cv 

Reisha Simpson v. City of New York 

10 

A. Theft of Services 

We first consider whether the facts, viewed in the light most favorable to Ms. 

Simpson, provided Officer Nelson probable cause to arrest her for theft of services. As 

relevant to the facts of this case, under New York State law, a person is guilty of theft of 

services when: 

With intent to obtain . . . bus . . . service without payment of the 

lawful charge therefor, . . . [s]he obtains or attempts to obtain such 

service or avoids or attempts to avoid payment therefor by force, 

intimidation, stealth, deception or mechanical tampering, or by 

unjustifiable failure or refusal to pay[.] 

N.Y. Penal Law § 165.15(3). The district court rested its decision on Officer Nelson’s 

assertion that he “saw [Ms. Simpson] board a bus through the rear doors, which were 

marked ‘no entry,’ without paying the fare,” concluding that this undisputed fact was 

“sufficient to provide [Officer] Nelson with the belief that plaintiff intended to obtain bus 

service without payment of the lawful charge.” Simpson, 2013 WL 6503521, at *4. In so 

doing, the district court limited its consideration of the facts to those undisputed by either 

party and failed to consider—in the light most favorable to Ms. Simpson—any facts that 

were in dispute. We disagree that the lens through which the totality of the events must be 

viewed may be so narrowly focused, to the exclusion of contextual facts, on Ms. Simpson’s 

entry through the back doors of the bus. To the extent that Officer Nelson argues that the 

district court was not properly presented with Ms. Simpson’s current recitation of the 

material facts, we disagree. Although there may have been some factual claims that were not 

included in full detail in Ms. Simpson’s response to Officer Nelson’s motion for summary 

judgment, the district court made clear that it had reviewed and considered Ms. Simpson’s 
14-680-cv 

Reisha Simpson v. City of New York 

11 

recounting of each of those claims and obviously had them in mind when granting summary 

judgment in Officer Nelson’s favor.6 

Viewing the full factual context in the light most favorable to Ms. Simpson, however, it is 

apparent that there is a genuine issue for a jury as to whether a reasonable officer in Officer 

Nelson’s position could have had reasonable grounds to believe that she intended to 

commit, or was committing, theft of services cognizable under N.Y. Penal Law § 165.15(3) 

and consequently whether Officer Nelson had probable cause to arrest her or reasonably 

hold the mistaken belief that he did. We highlight but a few of the more pertinent facts. 

First, Officer Nelson was aware of the problems with the mechanical lift which blocked the 

front entrance to the bus, given that he was only an “arm’s length” from Ms. Simpson while 

she waited to board the bus. Appellant’s App. 180. Next, by the same token, Officer 

Nelson was in a position easily to hear the bus driver direct passengers to “Go around, go 

around” to the back of the bus and also to witness the bus driver open the back doors. Id. at 

184. In fact, viewing the facts as we must, Officer Nelson would have had to have been 

visually and aurally impaired to miss this chain of events. Finally, according to Ms. Simpson, 

																																																																		

6 In its order denying Ms. Simpson’s motion for reconsideration the court wrote: 

Plaintiff asserts that there was a problem with the lift at the front of 

the bus; that the bus driver directed passengers to enter through the 

rear door; that plaintiff entered the bus with a crowd of passengers 

and waited in line to pay her fare; that defendant Nelson became 

upset when plaintiff rebuffed his sexual advances; and that Nelson 

prevented her from paying her fare. Those are the same facts that 

plaintiff alleged in her papers on summary judgment, and which the 

Court acknowledged and discussed in its decision. 

Simpson, 2014 WL 595759, at *1 (internal citation omitted). 
14-680-cv 

Reisha Simpson v. City of New York 

12 

Officer Nelson observed Ms. Simpson board the bus and wait in line to pay her fare before 

arresting her. 

Not surprisingly, Officer Nelson’s account conflicts with Ms. Simpson’s. For instance, 

he swore that Ms. Simpson was approximately “two arm lengths” from the bus when he first 

saw her. Id. at 148. He also asserts that he witnessed Ms. Simpson “use[ ] the back door to 

get inside the bus” while all other passengers boarded through the front door, thus calling 

into question whether there was a problem with the lift, and whether the lift was blocking 

the entrance in the first instance. Id. Officer Nelson professes to have no recollection of 

whether Ms. Simpson displayed her MetroCard or identification—or whether he requested 

to see either item—before, during, or after the arrest. 

At best, these juxtaposed versions of the events call into question the veracity of both 

parties. Ms. Simpson’s version suggests a plausible motive for Officer Nelson’s behavior as 

alleged by her: his advances were rebuffed, and he undertook a course of action to 

demonstrate unequivocally that he could obtain Ms. Simpson’s surname and exert significant 

control over her. Officer Nelson’s version, on the other hand, suggests that there was no 

problem with the front entrance of the bus and Ms. Simpson was a scofflaw trying to avoid 

paying the fare. Of course, we may not, and do not, resolve these disputed issues of fact. 

See Jeffreys, 426 F.3d at 553 (“Assessments of credibility and choices between conflicting 

versions of the events are matters for the jury, not for the court on summary judgment.” 

(internal quotation marks omitted)). It is enough on this appeal that we make clear that the 

series of events leading up to and following Ms. Simpson’s entry through the back door of 

the BX19 bus that June evening are in genuine dispute and on Ms. Simpson’s version, which 
14-680-cv 

Reisha Simpson v. City of New York 

13 

a jury would be entitled to credit, Officer Nelson was aware of facts that should have made it 

clear to a reasonable officer that she was not trying to avoid paying her bus fare.7 Officer 

Nelson is not entitled to summary judgment in his favor on either the § 1983 or New York 

State law false arrest claims. 

B. Criminal Impersonation 

The district court’s order granting summary judgment did not resolve the issue of 

whether Officer Nelson also had probable cause to arrest Ms. Simpson for criminal 

impersonation,8 and Officer Nelson does not argue on appeal this alternative basis justifying 

Ms. Simpson’s arrest. The issue has been raised by Ms. Simpson on appeal, however, and it 

assumes new significance given our conclusion that there are material facts in dispute as to 

whether there was probable cause to arrest Ms. Simpson for theft of services. 

																																																																		

7 Defendants argue that once Officer Nelson saw Ms. Simpson enter the bus, he was not 

obligated to permit her to attempt to evade the charge of theft of services by swiping her 

MetroCard at that point, relying on Mazurkiewicz v. NYC Transit Authority, 810 F. Supp. 563 

(S.D.N.Y. 1993). That case, however, is inapposite. The plaintiff in Mazurkiewicz offered to 

pay a subway fare only after he was accosted by police officers who observed him jump the 

turnstile. Id. at 565. It was reasonable for those officers to believe that plaintiff would not 

have paid had he escaped unnoticed. Here, by contrast, Ms. Simpson testified that she was 

already waiting in line to pay her fare when she was accosted by Officer Nelson. The facts 

supporting an inference of intent to steal transit services are therefore very different from 

those in Mazurkiewicz. 

8 The district court included the following footnote: 

Plaintiff focuses her argument regarding probable cause entirely on 

the charge of criminal impersonation. (See Pl.’s Opp. 4-8 (“Defendant 

is wrong, however, that Plaintiff committed the crime of criminal 

Impersonation [sic].”).) However, the parties agree that defendant 

Nelson in fact arrested plaintiff for theft of services, not criminal 

impersonation. (Defs.’ 56.1 ¶ 5; Pl.’s 56.1 ¶ 5.) 

Simpson, 2013 WL 6503521, at *3 n.3. It is not as clear to us the role or weight assigned to 

this proposition by the district court. 
14-680-cv 

Reisha Simpson v. City of New York 

14 

This Court has long held that an arresting officer need not have probable cause “with 

respect to each individual charge, or, indeed, any charge actually invoked by the arresting 

officer at the time of the arrest,” so long as the officer had probable cause to make an arrest 

for any crime, not necessarily the crime charged, at the time of the arrest. Jaegly v. Couch, 439 

F.3d 149, 154 (2d Cir. 2006). Despite the fact that Ms. Simpson was not charged with 

criminal impersonation, and although the district court did not determine whether Officer 

Nelson had probable cause to arrest her on that basis, we now reach that issue in light of our 

determination that probable cause cannot be found as a matter of law to support her arrest 

for theft of services and because this case is remanded for further proceedings. 

Under New York law, a person is guilty of criminal impersonation in the second 

degree when she: 

(a) Pretends to be a public servant, or wears or displays without 

authority any uniform, badge, insignia or facsimile thereof by which 

such public servant is lawfully distinguished, or falsely expresses by 

h[er] words or actions that [s]he is a public servant or is acting with 

approval or authority of a public agency or department; and (b) so 

acts with intent to induce another to submit to such pretended official 

authority, to solicit funds or to otherwise cause another to act in 

reliance upon that pretense. 

N.Y. Penal Law § 190.25(3). 

Officer Nelson argued on summary judgment that he had reason to believe that Ms. 

Simpson was “pretending to be an officer with the hope that if Officer Nelson thought she 

was an officer she would not be [ ] arrested.” Defs.’ Mem. of Law in Supp. of Their Mot. 

for Summ. J., No. 12-cv-6577, Doc. 19 at 4. He asserted that Ms. Simpson “h[eld] her wallet 

open on the street such that her union membership card . . . was exposed” and that she was 

“attempting to deliberately display her membership card to him.” Id. 
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Reisha Simpson v. City of New York 

15 

The facts viewed in the light most favorable to Ms. Simpson paint a completely 

different picture. Officer Nelson asked whether she was an officer only after he had reached 

into her wallet without her permission and removed her PBA card. Officer Nelson admits 

that he retrieved Ms. Simpson’s PBA card from her wallet. On these facts there is no basis 

to conclude that she held herself out as a public servant. It would be error, therefore, to 

determine on summary judgment that there was probable cause to arrest Ms. Simpson for 

criminal impersonation. 

C. Qualified Immunity 

We turn to whether Officer Nelson is entitled to qualified immunity at this stage of 

the proceedings. “A police officer is entitled to qualified immunity from liability for his 

discretionary actions if either (1) his conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known, or (2) it was 

objectively reasonable for him to believe that his actions were lawful at the time of the 

challenged act.” Cerrone, 246 F.3d at 199 (internal citation and quotation marks omitted). 

There is no disagreement that for Ms. Simpson’s arrest to have been lawful it must 

have been supported by probable cause, and that the requirement of probable cause was 

clearly established at the time of the arrest. Qualified immunity therefore hinges first on 

whether Officer Nelson had probable cause for the arrest. Because, as discussed above, 

there are material facts in dispute regarding whether there was probable cause to arrest Ms. 

Simpson, we cannot uphold, on the basis that there was no constitutional or State law 

violation, the district court’s determination that Officer Nelson is entitled to qualified 

immunity. We therefore turn to the second prong of the qualified immunity analysis and 
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Reisha Simpson v. City of New York 

16 

evaluate whether it was objectively reasonable for Officer Nelson to believe his actions were 

lawful at the time he arrested Ms. Simpson. 

 The second prong of the qualified immunity analysis “permits [this] court to grant 

summary judgment if a reasonable officer could have believed his or her actions were 

lawful.” Id. at 202. An officer need only have “arguable probable cause,” 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) (internal quotation marks 

omitted). In this case, the district court concluded that “[e]ven if the bus driver had 

instructed passengers to enter through the rear door and plaintiff was waiting in line to pay 

her fare at the time of her arrest . . . [Officer] Nelson was entitled to a reasonable belief that 

plaintiff was intending to obtain bus service without payment . . . simply by virtue of seeing 

plaintiff enter the rear doors of the bus marked ‘no entry’ without paying the fare.” Simpson, 

2013 WL 6503521, at *5 (internal quotation marks and alterations omitted). We disagree. 

On the facts viewed in the light most favorable to Ms. Simpson, a passenger was 

stuck on the lift at the front of the bus. The bus driver directed the crowd, which included 

Officer Nelson and Ms. Simpson, to “Go around, go around” to the back entrance of the 

bus, and he opened the back doors. Ms. Simpson and the other passengers then moved to 

the back entrance and boarded. Once on the bus, Ms. Simpson waited in line behind other 

passengers to swipe her MetroCard. Officer Nelson stopped Ms. Simpson, ordered her not 

to pay her bus fare, and demanded that she follow him off the bus. On these facts, no 

reasonable officer could have concluded that Ms. Simpson intended to commit theft of 
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Reisha Simpson v. City of New York 

17 

services any more than a reasonable officer could have concluded that a person at the 

grocery store directed to a checkout counter and waiting in line to pay for produce intended 

to commit petit larceny. Add to this scenario the reasonable inference that Officer Nelson 

(1) was upset by having been rebuffed and (2) was merely demonstrating his dominance, and 

any pretense of reasonableness flies out the window. Because the facts bearing on whether 

Officer Nelson is entitled to qualified immunity are in dispute, the grant of summary 

judgment on that basis is vacated. 

 CONCLUSION 

For the reasons stated above we vacate the district court’s grant of summary judgment in 

favor of Officer Nelson on the merits and with respect to qualified immunity, and we 

remand for further proceedings consistent with this opinion. The judgment in favor of the 

City of New York, which Ms. Simpson does not properly challenge on appeal, is affirmed.