Francis v. City of Albany

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

SHANE FRANCIS,

Plaintiff,

vs. 1:22-cv-783

(ECC/ML)

CITY OF ALBANY, CITY OF ALBANY

POLICE DEPARTMENT, CITY OF

ALBANY POLICE OFFICER JESSE MALL,

CITY OF ALBANY POLICE DETECTIVE

JOHN REGAN, CITY OF ALBANY POLICE

DETECTIVE MICHAEL FARGIONE,

CITY OF ALBANY POLICE DETECTIVE

MARK DIBBLE, CITY OF ALBANY POLICE

DETECTIVE SERGEANT JAMES WOOD

and JOHN DOES 1-10, individually and in

their official capacities,

Defendants.

____________________________________________

Appearances:

Alishah E. Bhimani, Esq., for Plaintiff

Abigail W. Rehfuss, Esq., for Defendants

Hon. Elizabeth C. Coombe, United States District Judge:

MEMORANDUM-DECISION AND ORDER

Plaintiff Shane Francis filed this action pursuant to 42 U.S.C. § 1983 asserting violations

of his Fourth and Fourteenth Amendment rights1 arising out of his detention on February 2, 2022

in Albany, New York. Presently before the Court is a motion for summary judgment, Dkt. No.

43, by Defendants the City of Albany, Albany Police Department Officer Jesse Mall, and Albany

1 Plaintiff withdrew his Fifth Amendment due process claim because the defendants are not federal

actors. Dkt. No. 47-1 at 27.

Police Department Detectives John Regan, Michael Fargione, Mark Dibble, and James Wood

(collectively, the Officers), and Plaintiff’s cross-motion for partial summary judgment, Dkt. No.

47. A motion hearing was held on May 14, 2025. The motions are now fully briefed. Dkt. Nos.

43-1, 47-1, 51, 54, 55. For the following reasons, Defendants’ motion is granted in part and denied

in part, and Plaintiff’s motion is denied.

I. BACKGROUND2

Between June 2021 and February 2022, the Albany Police Department (APD) investigated

Rickardo Smith for a “narcotics and firearm distribution enterprise.” Def. SUMF ¶ 1. APD

received information that Smith was selling “significant quantities of firearms from different

locations within the City of Albany,” and receiving cocaine from higher level sources of supply,

who were “of Jamaican descent.” Id. at ¶¶ 2,3; see Ex. A to Rehfuss Aff. (Search Warrants) at 5–

7, Dkt. No. 43-4. APD also received information that one of Smith’s sources “was a Black male,

approximately 30 years old, average height and heavy set.” Def. SUMF ¶ 4.

During the investigation, APD conducted four controlled buys from Smith, involving “over

130 grams of cocaine and a semiautomatic handgun.” Def. SUMF ¶¶ 5, 6. On February 2, 2022,

an Albany City Court judge issued search warrants for Smith’s home, and three other properties

that Smith owned in Albany. Id. at ¶ 7; Search Warrants at 1, 15, 33, 43.

The same day, the APD unit investigating Smith “conducted a surveillance operation . . .

in an effort to locate Smith, take him into custody, and then execute search warrants” at his

2 The following facts are drawn from Defendant’s Statement of Material Facts (Def. SUMF), Dkt.

No. 43-3, and Plaintiff’s Statement of Material Facts (Pl. SUMF), Dkt. No. 47-3, to the extent

those facts are well-supported by citations to the record, and the exhibits that the parties submitted

to the extent that they reflect facts that may be admissible. Fed. R. Civ. P. 56(c). Citations to page

numbers refer to pagination generated by the ECF system.

properties. Def. SUMF ¶ 8. Given the “dangerous nature of the weapons discovered during the

course of the investigation,” APD determined that “it would be best,” for safety reasons, “to

approach and apprehend Smith” outside of his home, and “decided to wait until he was in his

vehicle to initiate a stop.” Id. at ¶ 12.

After waiting several hours for Smith to leave, APD officers observed Plaintiff, a Black

man, arrive at Smith’s home. Def. SUMF ¶ 9; Pl. SUMF ¶ 4. According to Defendants, Plaintiff

matched the physical description of Smith’s supplier. Def. SUMF ¶¶ 16, 30. Plaintiff contends

that he did not know that Smith was under investigation or that APD was preparing to search

Smith’s properties. Pl. SUMF ¶¶ 9,10. After Plaintiff attempted to reach Smith, Smith “eventually

stuck his head out of the second-floor window, and made contact with” Plaintiff. Def. SUMF ¶ 10.

Smith and Plaintiff “got into Smith’s” truck, and Smith drove away. Id. at ¶ 11. The “police tailed

it to an area away from Smith’s address.” Def. SUMF ¶ 11.

A few blocks away,3 APD pulled over Smith’s truck. Def. SUMF ¶ 13. In addition to a

patrol vehicle, at least two unmarked vehicles participated in the stop, as well as one uniformed

APD officer, Defendant Mall, and four plainclothes officers: Defendants Regan, Fargione, Dibble,

and Wood. Ex. 2 to Bhimani Decl. (Dibble Video) at 5:00–5:06, Dkt. No. 47-6. The plainclothes

officers wore bulletproof vests over their clothes, and at least two were visibly armed. Dibble

Video at 4:56–5:00.

The Officers ordered Smith and Plaintiff to show their identification and then to get out of

the truck. Ex. G to Rehfuss Aff (Mall Video) at 1:26–1:28, Dkt. No. 43-10; Ex. I to Rehfuss Aff.

3 The Court takes judicial notice that 578 Clinton is a few blocks away from Smith’s home at 148

Bradford according to Google Maps. Fed. R. Evid. 201(b)(2); see S. Nassau Bldg. Corp. v. Town

Bd. of Town of Hempstead, 624 F. Supp. 3d 261, 268 n.5 (E.D.N.Y. 2022); see also Calcano v.

Swarovski N. Am. Ltd., 36 F.4th 68, 76 n.8 (2d Cir. 2022) (taking judicial notice of Google Maps).

(Regan Video) at 5:20–5:24, Dkt. No. 43-12. During a conversation with the Officers, Plaintiff

explained that he was wearing a knee brace because of a recent medical procedure. Dibble Video

at 0:53–1:02, 1:41–1:47. Meanwhile, Defendant Mall checked Plaintiff’s identifying information

using the computer in his patrol car. Mall Video at 4:09–5:56. Defendant Wood told Plaintiff that

Smith would be going to the station to talk to the police, and that Plaintiff would also have to go

to the station “for a little bit” because they “did not know his involvement.” Pl. SUMF ¶ 16.

Defendants Fargione and Regan placed Plaintiff in handcuffs, led him to the back of an unmarked

police vehicle, and drove him to the investigating unit’s station. Def. SUMF ¶¶ 15, 19. During

the nine-minute car ride, Plaintiff stated that he grew up in Jamaica. Regan Video at 11:05–11:08;

see id. at 10:46–19:46.

At the station, officers placed Plaintiff in an interview room where he was handcuffed and

shackled to a bench for approximately one hour and 50 minutes—“the time it took . . . to execute

the search warrants and secure” the search warrant locations. Def. SUMF ¶¶ 32–33. Plaintiff

described doing construction work for Smith at one of the search warrant locations. Video from

Interview Room, Ex. H to Rehfuss Aff. at 0:00–1:19.

At each of the search warrant locations, “a couple members” of APD “were left behind”

after the location was “secured.” Def. SUMF ¶ 25. After the locations had been secured, “a

determination was made to release [Plaintiff].” Id. at ¶ 26. Plaintiff was never charged with a

crime. Id. at ¶ 27.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if

all the submissions taken together “show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The

moving party bears the initial burden of demonstrating “the absence of a genuine issue of material

fact.” Celotex, 477 U.S. at 323. A fact is material if it “might affect the outcome of the suit under

the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New

York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The movant may meet this burden by

showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex, 477 U.S. at 322; Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d

Cir. 2013) (explaining that summary judgment is appropriate where the nonmoving party fails to

“‘come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her

favor on’ an essential element of a claim”) (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d

501, 509 (2d Cir. 2010)).

If the moving party meets this burden, the nonmoving party must “set forth specific facts

showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see Celotex, 477 U.S. at 323–

24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment

motion, the district court must construe the facts in the light most favorable to the non-moving

party and must resolve all ambiguities and draw all reasonable inferences against the movant.”

Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving

party “must do more than simply show that there is some metaphysical doubt as to the material

facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and cannot

rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for

summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles

v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Further, “[m]ere conclusory allegations

or denials . . . cannot by themselves create a genuine issue of material fact where none would

otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc.,

68 F.3d 1451, 1456 (2d Cir. 1995)). In addition, “[w]hen opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a

court should not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Linton v. Zorn, 135 F.4th 19, 30 (2d Cir. 2025) (quoting Scott v. Harris, 550 U.S. 372,

380 (2007)). “In short, courts should view ‘the facts in the light depicted by the videotape.’” Id.

(quoting Scott, 550 U.S. at 381).

When considering cross-motions for summary judgment, a court “must evaluate each

party’s motion on its own merits, taking care in each instance to draw all reasonable inferences

against the party whose motion is under consideration.” Hotel Emps. & Rest. Emps. Union, Loc.

100 of New York, N.Y. & Vicinity v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534,

543 (2d Cir. 2002) (citation omitted).

III. DISCUSSION

Plaintiff alleges the following claims under § 1983: (1) false arrest and illegal

imprisonment, (2) municipal liability pursuant to Monell v. Dep’t of Social Services, 436 U.S. 658

(1978), (3) violation of the Fourteenth Amendment’s Equal Protection Clause, and (4) violation of

the Fourteenth Amendment right to due process. Dkt. No. 1 ¶¶ 81–100.

A. Defendants’ Motion

1. False Arrest4

Defendants argue that the Officer Defendants had authority to detain Plaintiff under

Michigan v. Summers, 452 U.S. 692 (1981) and that Plaintiff was only subject to a stop under

Terry v. Ohio, 392 U.S. 1 (1968).5 Defendant’s Memorandum of Law (Def. Mem.) at 5–9, Dkt.

No. 43-1; Defendants Reply Memorandum (Def. Reply) at 4–8, Dkt. No. 51; Defendant’s

Supplemental Letter Brief (Def. Supp.) at 2, Dkt. No. 55. Defendants also argue that the Officers

are entitled to qualified immunity because there was arguable probable cause to arrest Plaintiff.

Def. Mem. at 5–6, 9. Plaintiff responds that the detention authority in Summers is limited under

Bailey v. United States, 568 U.S. 186 (2013) to the immediate vicinity of a location to be searched,

and that Plaintiff was subject to a de facto arrest after he was handcuffed and driven to the station.

Plaintiff’s Memorandum of Law (Pl. Mem.) at 12–17, 18–22, Dkt. No. 47-1.

To establish a § 1983 claim for false arrest, a plaintiff must demonstrate that: (1) “the

[o]fficers intended to confine [him],” (2) he was “conscious of the confinement and did not consent

to it,” and (3) “the confinement was not otherwise privileged.” Berg v. Kelly, 897 F.3d 99, 106

(2d Cir. 2018) (citing Jocks v. Tavernier, 316 F.3d 128, 134–35 (2d Cir. 2003)). If the officers

had probable cause for an arrest, or reasonable suspicion for an investigative detention, it is

4 Plaintiff asserts false arrest and illegal imprisonment claims, but they are not distinct. Wallace

v. Kato, 549 U.S. 384, 388 (2007) (noting that “[f]alse arrest and false imprisonment overlap; the

former is a species of the latter”).

5 Defendants abandoned their argument that there was probable cause to arrest Plaintiff. Hearing

Tr. at 23 (defense counsel “didn’t believe there was” probable cause in this case). See Gen. Ins.

Co. of Am. v. Mezzacappa Bros., No. 1-cv-7394, 2003 WL 22244964, at *5 (E.D.N.Y. Oct. 1,

2003), aff’d, 110 Fed. Appx. 183 (2d Cir. 2004) (“Statements made by an attorney during oral

argument . . . constitute binding judicial admissions.”).

privileged. See Kee v. City of New York, 12 F.4th 150, 158 (2d. Cir. 2021); Posr v. Doherty, 944

F.2d 91, 98 (2d Cir. 1991) (contemplating a § 1983 claim for an unreasonable investigative

detention).

The first issue is whether Summers allowed the Officers to detain Plaintiff until the

properties subject to the search warrants were secure. Under Summers, officers executing a search

warrant may “detain the occupants of the premises while a proper search is conducted.” 452 U.S.

at 705. “Once an individual has left the immediate vicinity of a premises to be searched, however,

detentions must be justified by some other rationale.” Bailey, 568 U.S. at 202. Here, Plaintiff was

stopped away from the search warrant locations, and his detention must therefore “be justified by

some other rationale.” Id.

Defendants attempt to distinguish Bailey because it involved the search of a single

residence that had already been secured, while here there were four locations that had not been

secured. Hearing Tr. at 15–16. This is not persuasive because the Supreme Court made clear that

Summers detention authority is limited to the “immediate vicinity of a premises to be searched.”

Bailey, 568 U.S. at 202. Summers therefore does not provide a justification for Plaintiff’s

detention.

The next question is whether there was a basis for a Terry stop. It is well established that

“a police officer may make a Terry stop ‘as long as the officer has reasonable suspicion that the

person to be detained is committing or has committed a criminal offense.’” Grice v. McVeigh, 873

F.3d 162, 167 (2d Cir. 2017) (quoting U.S. v. Compton, 830 F.3d 55, 61 (2d Cir. 2016)). “The

standard for reasonable suspicion is ‘not high,’ and is less than what probable cause requires.”

Grice, 873 F.3d at 167 (quoting U.S. v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014)). In addition,

“whether an officer’s suspicion is reasonable is an objective inquiry based on the totality of the

circumstances as they would appear through the eyes of a reasonable and cautious police officer,

guided by his experience and training.” Id. (citation omitted).

Even viewing the facts in the light most favorable to Plaintiff, there was reasonable

suspicion to stop Plaintiff. The Officers saw Plaintiff make “several attempts to reach Smith” at

Smith’s residence, Smith “eventually stuck his head out of the second-floor window, and made

contact with Plaintiff,” and Plaintiff and Smith “eventually got into Smith’s vehicle.” Def. SUMF

¶¶ 9–11. In addition, the Officers had a search warrant for Smith’s residence based on probable

cause to search for evidence of illegal drug and firearm sales. Finally, the video evidence suggests

that Plaintiff generally matched the description of Smith’s supplier, but this “vague” description

“would fit a very large group of ordinary . . . men” and is “assigned little to no value for [the]

probable cause analysis.” United States v. LeFebvre, 117 F.4th 471, 476 (2d Cir. 2024).

Considering the totality of the circumstances, there was still a sufficient basis to stop Plaintiff for

an investigative detention. See Bailey, 743 at 335 (concluding that reasonable suspicion existed

to stop suspects “whose race, sex, build, and hair were consistent with an informant’s description”

of a drug dealer, and “who were seen leaving the very premises where the reported drug sale took

place and where police had probable cause to think that an easily transportable firearm used in the

drug trafficking was then located.”). In addition, the Officers had authority to detain Plaintiff as

part of their stop of the car Smith was driving. Maryland v. Wilson, 519 U.S. 408, 415 (1997).

The next question is whether the investigative stop became an arrest requiring probable

cause. “If an investigative stop based on reasonable suspicion continues too long or becomes

unreasonably intrusive, it will ripen into a de facto arrest that must be based on probable cause.”

United States v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992). “In assessing whether the degree of

restraint was too intrusive to be classified as an investigative detention,” the Second Circuit has

“considered in general the amount of force used by police, the need for such force, and the extent

to which the individual’s freedom of movement was restrained.” United States v. Perea, 986 F.2d

633, 645 (2d Cir. 1993) (citations omitted). Particular factors weighing on these general principles

include “the number of agents involved, whether the target of the stop was suspected of being

armed, the duration of the stop, and the physical treatment of the suspect, including whether or not

handcuffs were used.” Id. (cleaned up). A “stop is limited to the degree of intrusion necessary to

confirm or dispel the reasonable suspicion that justifies the stop in the first place.” Grice, 873 F.3d

at 167. Ultimately, the “touchstone of a de facto arrest analysis is whether the officers conducting

the stop used ‘the least intrusive means reasonably available to effect their legitimate investigative

purposes.’” LeFebvre, 117 F.4th at 475 (quoting United States v. Newton, 369 F.3d 659, 674 (2d

Cir. 2004)). In short, “officers may not seek to verify or dispel their reasonable suspicions of crime

‘by means that approach the conditions of arrest.’” Gilles v. Repicky, 511 F.3d 239, 245 (2d Cir.

2007) (quoting Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion)).

“Handcuffing is ordinarily not incident to a Terry stop[] and tends to show that a stop has

ripened into an arrest.” Grice, 873 F.3d at 167. Transportation to a police station and holding a

person at the station has also been considered to be a factor supporting a conclusion under the

totality of the circumstances that a stop has become an arrest. See Dunaway v. New York, 442 U.S.

200, 212, 216 (1979) (holding that arrest occurred where suspect was “taken from a neighbor’s

home to a police car, transported to a police station, and placed in an interrogation room” and was

“never informed that he was ‘free to go’”); Kaupp v. Texas, 538 U.S. 626, 630 (2003) (per curiam)

(concluding that arrest occurred where a “17-year-old boy was awakened in his bedroom at three

in the morning by at least three police officers, one of whom stated ‘we need to go and talk’” and

then “taken out in handcuffs, without shoes, dressed only in his underwear in January, placed in a

patrol car, driven to the scene of a crime,” and then to a police station, “where he was taken into

an interrogation room and questioned”); Simon v. City of N.Y., 893 F.3d 83, 100 (2d Cir. 2018)

(noting that it is “beyond debate since [Dunaway] that securing someone’s presence at a police

station” through a reminder of a material witness warrant and orders to come with officers to the

station even without display of badges, guns, or force “is equivalent to conducting a formal

arrest”); United States v. Ceballos, 812 F.2d 42, 48 (2d Cir. 1987) (concluding that an arrest

occurred where an agent came to the suspect’s workplace and made a “request” that the suspect

come to the station “for questioning,” did not inform him that he could refuse, and denied the

defendant’s request to take his own car); Royer, 460 U.S. at 494, 504–05 (concluding that transfer

to a police room 40 feet away from the initial encounter constituted an arrest). Here, viewing the

evidence in the light most favorable to Plaintiff, a reasonable jury could find that Plaintiff’s stop

ripened into an arrest at some point before he was released because he was handcuffed, taken to

the station, and held there in handcuffs and shackles for almost two hours.

Finally, an officer “is entitled to qualified immunity against a suit for false arrest if he can

establish that he had arguable probable cause to arrest the plaintiff.” Garcia v. Does, 779 F.3d 84,

92 (2d Cir. 2014) (citation omitted). “Arguable probable cause 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.” Id. (citation omitted).

“An officer has probable cause to arrest when he or she 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.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (citation omitted). Probable cause does

not require that this “belief that a person has committed a crime be correct or more likely true than

false.” Mara v. Rilling, 921 F.3d 48, 69 (2d Cir. 2019) (citation omitted). “It requires only facts

sufficient to establish the sort of fair probability on which reasonable and prudent people, not legal

technicians, act.” Id. (citation omitted). “To determine whether an officer had probable cause for

an arrest,” courts “examine the events leading up to the arrest, and then decide whether these

historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to

probable cause.” District of Columbia v. Wesby, 583 U.S. 48, 56–57 (2018) (quoting Maryland v.

Pringle, 540 U.S. 366, 371 (2003)) (additional citations omitted). Probable cause “depends on the

totality of the circumstances.” Pringle, 540 U.S. at 371.

Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could conclude

that there was not arguable probable cause to arrest at any point on February 2, 2022. The Officers

were aware only that Plaintiff knew someone whom they had probable cause to suspect of illegal

drug and firearm sales, that Plaintiff was familiar with locations they had probable cause to search

related to the illegal drug and firearm sales, and that Plaintiff may have generally fit a “vague”

description of a drug source that also “would fit a very large group of ordinary . . . men” and so

“assigned little to no value for [the] probable cause analysis.” LeFebvre, 117 F.4th at 476. A

reasonable jury could conclude that this does not amount to arguable probable cause. Accordingly,

the Officers are not entitled to qualified immunity on their motion for summary judgment.

Therefore, Defendant’s motion for summary judgment on the false arrest claim is denied.

2. Monell Liability

Defendants seek summary judgment on Plaintiff’s claim for municipal liability against the

City of Albany6 under Monell, 436 U.S. 658. Defendants argue that Plaintiff cannot establish the

6 The Court sua sponte dismisses APD as an improper defendant. Where a “plaintiff names both

the municipality and the department as defendants, courts routinely have dismissed the claims

existence of a municipal custom or policy. Def. Mem. at 10–12; Def. Reply 9–10. Plaintiff

responds that Defendant Wood’s deposition testimony that he has taken non-suspects to stations

“numerous times” while executing search warrants during his career is sufficient. Plaintiff further

argues that Albany failed to train APD personnel.7 Pl. Mem. at 23–25.

“To hold a municipality liable under § 1983 for the unconstitutional actions of its

employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom

that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Lucente v.

Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (cleaned up) (citing Monell, 436 U.S. at 690–

91).

“To establish a municipal policy, practice, or custom, a plaintiff must provide evidence of

(1) a formal policy endorsed by the municipality; (2) actions taken or decisions made by the

municipality’s policymakers, which caused the alleged civil rights violation; (3) a practice so

widespread that it constitutes ‘a custom or usage;’ or (4) a failure by the municipality’s

policymakers to properly train or supervise their subordinates.” Beckwith v. City of Syracuse, 642

F. Supp. 3d 283, 292–93 (N.D.N.Y. 2022) (citing Green v. City of New York, 465 F.3d 65, 80–82

(2d Cir. 2006)). Here, Plaintiff claims that APD had a custom of detaining people offsite when

executing search warrants and that APD did not train for the law established in Bailey.

To establish a policy through a “‘persistent and widespread’ practice by a subordinate

municipal employee (or employees) other than a policymaker, the employee’s unconstitutional

conduct must be ‘so manifest as to imply the constructive acquiescence of senior policy-making

against the department.” Harris v. Tioga Cnty., 663 F. Supp. 3d 212, 233 (N.D.N.Y. 2023) (citation

omitted).

7 At the motion hearing, Plaintiff suggested that the scenario for which Albany insufficiently trains

is “detain[ing] someone off premises to be searched.” Hearing Tr. at 3.

officials.’” Lucente, 980 F.3d at 297–98 (quoting Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864,

870–71 (2d Cir. 1992)). There must be “sufficient instances of tolerant awareness by supervisors

of abusive conduct to support an inference that they had a policy, custom or usage of acquiescence

in such abuse.” Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012). “It is only at that

point that, although not expressly authorized, the unconstitutional conduct is so persistent and

widespread that it can constitute a custom.” Lucente, 980 F.3d at 298.

Although the Second Circuit has not articulated a bright-line rule for the number of

violations required to establish a policy or custom for Monell purposes, courts have found that

evidence of only a handful of violations is not sufficient. See, e.g., Jones, 691 F.3d at 85 (holding

that evidence of two or three incidents of unlawful conduct falls “far short” of demonstrating policy

or custom); Giaccio v. City of New York, 308 F. App’x 470, 472 (2d Cir. 2009) (four incidents

insufficient); McLennon v. City of New York, 171 F. Supp. 3d 69, 96 (E.D.N.Y. 2016) (six incidents

insufficient). At some point on this spectrum, however, the number of incidents becomes

cognizable. See, e.g., Davis v. City of New York, 959 F. Supp. 2d 324, 335, 355 (S.D.N.Y. 2013)

(reasonable for jury to find Monell liability when there was evidence of eight similar

unconstitutional arrests).

Here, Plaintiff has presented sufficient evidence to give rise to a genuine issue of material

fact as to whether the municipal Defendant had a practice of illegally detaining individuals incident

to executing search warrants, so widespread that it constituted a “custom.” Namely, Plaintiff

points to the following deposition testimony given by Defendant Wood:

Q: Have you ever detained someone else who was not a suspect at the station while

you were executing a search warrant on some properties in your career?

* * *

A: Numerous times.

Q: Can you identify any?

A: No. I can’t recall.

Q: It happened so many [sic] you just can’t recall?

A: I can’t – I mean, no. I mean, I have done it numerous times. It would be

impossible for me to remember a person or an event.

* * *

Q: Was it your practice to detain the people that you would find with the target

under those circumstances [similar to Smith’s and Plaintiff’s]?

A: No. In fact, we don’t want to do that ever. We, unfortunately, have to operate

the way they operate. That is not something we want to do. We want our main

target and we want it to be as easy as possible and move on with our business.

Q: But you told me a minute ago there have been many times you’ve detained

somebody like [Plaintiff] who is, for lack of a better term, a bystander, during a

search warrant operation. What was it about – what were some of those

circumstances where that would happen?

A: Well, I can only speculate and give you this exact example where we are waiting

on a violent offender to come out of his house, and he comes out with another

person. We have no choice but to now detain them because they may be involved

or they could be destroying evidence or they could get hurt because they go back

to the location while we are executing a search warrant. These situations are outside

of our control. They are not something that we want to do. In fact, I wish [Plaintiff]

had never been there. That way we could have just taken [Smith] and gone about

our business.

Q: Right. But you said before it happens so many times you can’t recall a specific

time.

A: Well, not so many times. It happens numerous times, and I can’t go back in my

mind and now remember particular incidents where it occurred. You know, it

doesn’t strike my memory as important to recall that information. I just couldn’t

tell you. But it has happened before, yes.

Dkt. No. 43-7 at 30:16–31:5, 32:17–34:9. Based on this testimony, Plaintiff represents as

undisputed fact that “[i]t is standard practice for [D]efendants, while executing a search warrant

pursuant to a firearms investigation, to detain suspects away from the premises to be searched,”

and that “[i]f, at the time such suspect is stopped, the suspect is with another person, defendants’

practice is that such bystander is also placed into custody, without an individualized suspicion or

belief that he or she was engaged in criminal activity or probable cause for such person’s arrest.”

Pl. SUMF ¶¶ 43–44.

Defendants deny this fact to the extent that Plaintiff interprets “numerous times” as

displaying a “standard practice.” Def. Reply SUMF ¶¶ 43–44, Dkt. No. 51-1. Defendants further

posit, without citation, that “[i]n firearms related offenses involving violent suspects, the police

endeavor to intercept suspects away from locations where firearms are believed to be for

operational safety reasons.” Id. at ¶ 43. This is, however, irrelevant to the central question of the

Defendants’ practice concerning “bystanders” to such operations. Furthermore, Defendants do not

meaningfully dispute that the conduct as testified to by Defendant Wood is unconstitutional, see

the analysis of the false arrest claim above, nor do they deny that such measures occurred

“numerous times.”

Viewing the evidence in the light most favorable to Plaintiff, the Court declines to grant

summary judgment as to this theory of Plaintiff’s Monell claim. Although the record could,

perhaps, be more robust as to the number of instances the Defendants engaged in the purportedly

unconstitutional practice, Plaintiff has satisfied his burden of raising a dispute regarding a material

fact as to whether the conduct was so “persistent and widespread,” “so permanent and well settled

as to constitute a custom or usage with the force of law,” and “so manifest as to imply the

constructive acquiescence of senior policy-making officials.” Sorlucco, 971 F.2d at 870–71

(citations omitted). Accordingly, Defendants’ motion is denied as to this theory of Monell liability.

See Davis, 959 F. Supp. 2d 324, 355 (S.D.N.Y. Mar. 28, 2013) (concluding that fact issues

precluded district judge from granting defendant’s motion for summary judgment on Monell

claim); Media Alliance, Inc. v. Mirch, 09-cv-0659 (MAD/RFT), 2011 WL 3328532 at *13

(N.D.N.Y. Aug. 2, 2011) (viewing the evidence in the light most favorable to plaintiffs, there was

sufficient evidence from which a reasonable juror could conclude the defendant city had a practice

that infringed on plaintiff’s constitutional rights); Tomaino v. Williams, 05-cv-3916, 2007 WL

2743602 at *3 (E.D.N.Y. Sept. 18, 2007) (denying defendant town’s motion for summary

judgment on Monell claim because a reasonable juror could find that town had a custom of

discrimination).

Defendants are, however, entitled to summary judgment on Plaintiff’s Monell claim

premised on failure to train. To establish failure to train, a “pattern of similar constitutional

violations by untrained employees is ‘ordinarily necessary.’” Connick v. Thompson, 563 U.S. 51,

62 (2011) (quoting Board of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)).

A plaintiff “must show that a [municipal] policymaker knows to a moral certainty that her

employees will confront a given situation,” and further “the plaintiff must show that the situation

either presents the employee with a difficult choice of the sort that training or supervision will

make less difficult or that there is a history of employees mishandling the situation.” Walker v.

City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992) (citation omitted). Because of this high

bar, a failure to train theory is where a “municipality’s culpability for a deprivation of rights is at

its most tenuous.” Connick, 563 U.S. at 61.

Here, Plaintiff has proffered no evidence of the municipality’s training programs or

advanced any theory as to how a training deficiency caused the officers to violate Plaintiff’s

constitutional rights. Nor has he offered any evidence of purported inadequacies in the

municipality’s training program and the causal relationship between those inadequacies and the

alleged constitutional violations. “Plaintiffs have provided no evidence tending to rule out those

causes of the [unconstitutional conduct] that would not support municipal liability, such as the

negligent administration of a valid program, or one or more officers’ negligent or intentional

disregard of their training, and therefore no reasonable factfinder could conclude that the

[underlying violations] occurred as a result of training deficiencies.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 130 (2d Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 390–

91 (1989)). Plaintiff’s failure to train theory is based solely on evidence that the purportedly

unconstitutional practice occurred in the first place, and not that no adequate training program

existed. Pl. Mem. at 24–25. Because Plaintiff has failed to raise an inference that the officers

were improperly trained and that this training caused them to illegally detain bystanders to search

warrant operations, summary judgment is appropriate as to this theory of municipal liability.

3. Equal Protection

Defendants seek summary judgment on Plaintiff’s equal protection claim based on

selective enforcement based on race, arguing that Plaintiff cannot identify any similarly situated

comparators or racially motivated conduct by the Defendants.8 Def. Mem. at 12–13; Def. Reply

at 8–9. Plaintiff responds that “it is common practice for [APD] to falsely arrest a Black individual

on the basis of race alone,” pointing to complaints from various lawsuits against Albany and APD

officers. Pl. Mem. at 25–27.

There are “two types of equal protection claims,” intentional discrimination and selective

enforcement. Dixon v. City of Syracuse, 493 F. Supp. 3d 30, 41–42 (N.D.N.Y. 2020). Plaintiff

does not articulate which type of equal protection claim he asserts in his claim.

To establish an intentional discrimination claim, a plaintiff must (1) “point to a law or

policy that expressly classifies persons on the basis of race,” (2) “identify a facially neutral law or

8 Plaintiff alleges a violation of equal protection solely on his race. Pl. Mem. at 25–27.

policy that has been applied in an intentionally discriminatory manner,” or (3) “allege that a

facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory

animus.” Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 1999) (citations omitted).

Here, Plaintiff’s argument that APD has a “common practice of falsely arresting [Black]

individuals on the basis of race alone,” relies on his request that the Court take judicial notice of

several civil rights lawsuits filed against the City of Albany and APD members. Plaintiff’s

Supplemental Letter Brief (Pl. Supp.) at 4, Dkt. No. 54. “[C]ourts routinely take judicial notice of

documents filed in other courts . . . not for the truth of the matters asserted in the other litigation,

but rather to establish the fact of such litigation.” Kramer v. Time Warner Inc., 937 F.2d 767, 774

(2d Cir. 1991). The Court therefore cannot take judicial notice of the other lawsuits for the truth

of the matters asserted in that litigation. Even if the Court could take judicial notice of the other

lawsuits for the truth of the matter asserted, however, that would still not establish the existence

of a relevant law or policy because none of the suits allege that APD detained or arrested a Black

person away from a search warrant location. See generally Dkt. No. 47-10. Other than the

lawsuits, Plaintiff has not produced any evidence of a law or policy that directly or indirectly

classifies persons on race as required for his intentional discrimination claim. Therefore, even

viewing the facts in the light most favorable to Plaintiff, he cannot establish an intentional

discrimination claim.

To prevail on a selective enforcement claim, a plaintiff must establish that he was

selectively treated compared with others similarly situated and that the selective treatment was

impermissibly motivated. Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995). That is,

he “must specify at least one instance in which he was treated differently from another similarly

situated.” Hu v. City of New York, 927 F.3d 81, 101 (2d Cir. 2019).

Plaintiff cannot establish a selective enforcement claim because he has not provided any

evidence of a similarly situated comparator that would allow a reasonable jury to conclude that he

suffered an equal protection violation. Defendants’ motion for summary judgment is therefore

granted as to his equal protection claim, and Plaintiff’s cross-motion is denied.

4. Due Process

Defendants seek summary judgment on Plaintiff’s Fourteenth Amendment due process

claim. 9 Defendants argue, among other things, that this claim is duplicative of Plaintiff’s false

arrest and Monell claims. Def. Reply at 10–11; Def. Supp. at 3. Plaintiff responds that his due

process claim is not duplicative. Pl. Supp. at 1–3.

For substantive due process, “it is now well established that ‘[w]here another provision of

the Constitution provides an explicit textual source of constitutional protection, a court must assess

a plaintiff’s claims under that explicit provision and not the more generalized notion of substantive

due process.’” Hu, 927 F.3d at 104 (quoting Southerland v. City of New York, 680 F.3d 127, 142–

43 (2d Cir. 2012). District courts across the Second Circuit have held that procedural due process

claims based on false arrests are duplicative of such Fourth Amendment claims. See Harris v.

Binghamton Police Dep’t, No. 3:22-cv-977 (BKS/ML), 2023 WL 7319090, at *2 (N.D.N.Y. Nov.

7, 2023); Levantino v. Skala, 56 F. Supp. 3d 191, 203 (E.D.N.Y. 2014); Bernhardt v. Cnty. of Erie,

No. 19-cv-1334, 2022 U.S. Dist. LEXIS 85461, *11 (W.D.N.Y. May 10, 2022) report

recommendation adopted 2022 WL 14912615 (W.D.N.Y. Oct. 25, 2022). Here, Plaintiff’s due

process claims are duplicative of his false arrest claims because the Fourth Amendment provides

an explicit textual source of constitutional protection for the deprivations of liberty presented by a

9 Plaintiff initially alleged a violation of his Fifth Amendment rights but has now abandoned that

claim. See Pl. Mem. at 27.

false arrest. Defendants’ motion for summary judgment as to this claim is therefore granted, and

Plaintiff’s cross-motion is denied.

B. Plaintiff’s Motion10

1. False Arrest

Plaintiff argues that summary judgment is appropriate because the undisputed facts

establish that he was subject to a de facto arrest without probable cause. Pl. Mem. at 12–18.

Defendants respond that handcuffing, transporting, then holding Plaintiff at the station was a

legitimate means of confirming or dispelling reasonable suspicion, and that the Officer Defendants

are protected by qualified immunity because there was arguable probable cause to arrest Plaintiff.

Def. Mem. at 5–6, 9; Def. Reply at 4–8.

“It is well settled that to establish a defendant’s individual liability in a suit brought under

§ 1983, a plaintiff must show, inter alia, the defendant’s personal involvement in the alleged

constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).

Even viewing the facts in the light most favorable to Defendants, a jury could find that

Plaintiff’s detention became an arrest at some point before he was released from the station, and,

if a jury reached that conclusion, there is a genuine issue of material disputed fact about which

Officers would be liable based on their personal involvement.

Moreover, viewing the facts in the light most favorable to Defendant, the Officers were

aware that Plaintiff knew someone who they had probable cause to suspect of illegal drug and

firearm sales, that Plaintiff was familiar with locations they had probable cause to search for

evidence of the illegal drug and firearm sales, and that Plaintiff fit a description of a drug source.

10 In light of the Court’s previous findings, the analysis of Plaintiff’s motion is limited to those

claims that survived Defendants’ motion for summary judgment.

As a result, a genuine issue of material disputed fact exists as to whether there was arguable

probable cause, preventing the Court from making a finding of law on qualified immunity at this

time. If the jury finds that any Officers are liable for a false arrest, then the qualified immunity

argument can be renewed. Therefore, Plaintiff’s cross-motion for summary judgment is denied as

to this claim.

2. Monell Liability

Plaintiff argues that judgment should be entered in his favor against the municipal

defendant under Monell because of the custom of illegally detaining bystanders away from

premises in which a search warrant is being executed. Pl. Mem. at 23–24. As previously

discussed, the Court finds that a question of fact remains as to whether Plaintiff suffered a

constitutional injury as a result of conduct that was so widespread and pervasive as to permit an

inference of municipal liability. Accordingly, Plaintiff’s cross-motion for summary judgment is

denied as to this claim.

IV. CONCLUSION

For these reasons, it is hereby

ORDERED that Plaintiff’s cross-motion for summary judgment pursuant to Rule 56, Dkt.

No. 47, is DENIED; and it is further

ORDERED that Defendants’ motion for summary judgment pursuant to Rule 56, Dkt. No.

43, is GRANTED IN PART and DENIED IN PART; and it is further

ORDERED that Defendants’ motion is DENIED as to Plaintiff’s claims for (1) false arrest

and (2) municipal liability pursuant to Monell on the theory of a custom; and it is further

ORDERED that Defendants’ motion is otherwise GRANTED; and it is further

ORDERED that the City of Albany Police Department is sua sponte dismissed as an

improper defendant; and it is further

ORDERED that the Clerk shall serve a copy of this Memorandum-Decision and Order on

the parties in accordance with the Local Rules.

Dated: September 30, 2025

U.S. District Judge

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