Nzegwu v. Secret Service Agent Eric Friedman , 605 F. App'x 27 ( 2015 )

14-1481-cv
Nzegwu v. Secret Service Agent Eric Friedman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 1st day of April, two thousand fifteen.
4
5 PRESENT: PIERRE N. LEVAL,
6 DEBRA ANN LIVINGSTON,
7 Circuit Judges,
8 RICHARD K. EATON,*
9 Judge.
10 ____________________________________________________
11
12 ANTHONY NZEGWU,
13
14 Plaintiff-Appellant,
15
16 v. No. 14-1481-cv
17
18 SECRET SERVICE AGENT ERIC FRIEDMAN, in his official capacity
19 and individually, CITY OF NEW YORK, DETECTIVE JOHN JACKSON,
20
21 Defendants-Appellees,
22
23 UNITED STATES OF AMERICA, UNITED STATES SECRET SERVICE,
24 POLICE OFFICER JOHN DOES, 1 THROUGH 10 employed by the
25 NEW YORK CITY POLICE DEPARTMENT, whose names and
26 badge numbers are unknown, in their individual and official
27 capacities, NEW YORK CITY POLICE DEPARTMENT,
28
29 Defendants.†
*
The Honorable Richard K. Eaton, of the United States Court of International Trade, sitting by
designation.
1
1 ____________________________________________________
2
3 FOR APPELLANT: WILLIAM W. COWLES, Samuel O. Maduegbuna,
4 Maduegbuna Cooper LLP, New York, NY.
5
6 FOR APPELLEE SECRET JAMES R. CHO, Varuni Nelson, Assistant United States
7 SERVICE AGENT ERIC Attorneys, for Loretta E. Lynch, United States Attorney for
8 FRIEDMAN: the Eastern District of New York, Brooklyn, NY.
9
10 FOR MUNICIPAL APPELLEES JULIE STEINER, of counsel, for Zachary W. Carter,
11 CITY OF NEW YORK AND Corporation Counsel of the City of New York, New York,
12 DETECTIVE JOHN JACKSON: NY.
13 _____________________________________________________
14
15 Appeal from the United States District Court for the Eastern District of New York
16 (Amon, C.J.). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
17 ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
18 Plaintiff-Appellant Anthony Nzegwu (“Nzegwu”) appeals from a judgment of the district
19 court granting summary judgment on qualified immunity grounds to Defendants-Appellees
20 Secret Service Agent Eric Friedman (“Agent Friedman”) and New York City Police Department
21 Detective John Jackson (“Detective Jackson”) (collectively, “Defendants”) on Nzegwu’s false
22 arrest, malicious prosecution, and excessive detention claims under 42 U.S.C. § 1983, Bivens v.
23 Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and New
24 York law. We review orders granting summary judgment de novo, resolving all factual
25 ambiguities and drawing all reasonable factual inferences in favor of the non-moving party.
26 Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is
27 appropriate only if the moving party can show that there are no genuine issues of material fact
28 and that the moving party is entitled to judgment as a matter of law. Id. We assume the parties’
29 familiarity with the underlying facts, the procedural history, and the issues presented for review.
†
The Clerk of Court is respectfully requested to amend the caption as above.
2
1 I. False Arrest
2 Nzegwu’s primary claim against Agent Friedman and Detective Jackson is a false arrest
3 claim. Claims for false arrest, whether brought under § 1983, pursuant to Bivens, or under state
4 law, are analyzed pursuant to the same standards as the applicable state law’s false arrest tort.
5 Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003). Under New York law, “to prevail on a claim
6 of false arrest a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff
7 was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the
8 confinement was not otherwise privileged.” Id. at 134-35 (internal quotation marks omitted). If an
9 officer has probable cause to arrest, the confinement is privileged. Id. at 135.
10 Defendants need not have had actual probable cause to arrest Nzegwu, however, in order to
11 prevail. To support a qualified immunity defense, “the defending officer need only show ‘arguable’
12 probable cause.” Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002). “Arguable probable
13 cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause
14 existed, or (b) officers of reasonable competence could disagree on whether the probable cause test
15 was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). Arguable probable cause is assessed
16 as of the time of arrest. See Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007). The evidence
17 in favor of arguable probable cause must be weighed in its totality, such that even if one piece of
18 evidence fails to establish it, arguable probable cause may nonetheless exist based on the combined
19 import of all the evidence available to the defendant at the time. See Stansbury v. Wertman, 721
20 F.3d 84, 92-95 (2d Cir. 2013). Finally, under the collective knowledge doctrine, because Agent
21 Friedman communicated his knowledge of the case to Detective Jackson, Detective Jackson will
3
1 be held to have had arguable probable cause to arrest if Agent Friedman did; the analysis for
2 both Defendants is thus the same. See United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001).1
3 The district court in this case found that Defendants had at least arguable probable cause to
4 arrest Nzegwu. This determination was based principally on three pieces of evidence: (1) the
5 identification of Nzegwu by Alves Griffiths, the superintendent of the building in which Nzegwu
6 resided; (2) Nzegwu’s proximity to the wireless signals used to commit the fraud; and (3) the
7 officers’ assessment that Nzegwu looked sufficiently like the person shown in the ATM
8 photographs to give them probable cause, when considered in conjunction with the other evidence,
9 to believe they were one and the same person (especially given the absence of any exculpatory
10 evidence known to them at the time). We agree with the district court’s conclusion. Griffiths was
11 a disinterested bystander who could reasonably be expected to be familiar with Nzegwu’s
12 appearance, since he worked in Nzegwu’s building. See Caldarola, 298 F.3d at 163 (holding that
13 information provided by “an identified bystander with no apparent motive to falsify” has “a
14 peculiar likelihood of accuracy” (internal quotation marks omitted)). In addition, Agent Friedman
15 and his partner, Agent Boulden, both saw Nzegwu and found his appearance similar to the man
16 shown in the ATM photographs. An officer’s determination that a suspect resembles an image
17 from surveillance video can contribute to a determination of probable cause. Stansbury, 721 F.3d at
18 90. And the officers’ determination of similarity in this case was likely more reliable than many
19 identifications based on surveillance video, because the ATM photographs captured the suspect’s
20 face straight-on and up-close. It was thus reasonable for Defendants to rely on their own
21 observation of Nzegwu as the suspect in arriving at probable cause. Furthermore, based on a
1
In addition, the state of mind of the arresting officer—that is, his subjective reason for believing there to be probable
cause to arrest—is irrelevant to the probable cause determination, even if the officer’s subjective reason is foolish or
based on improper factors. See Zellner, 494 F.3d at 369. For this reason, Nzegwu’s allegations that Defendants
arrested him, at least in part, because of his national origin and race, are irrelevant to the legal inquiry: they go to the
officers’ subjective reason for arresting him, not to the facts before Defendants at the time of his arrest.
4
1 photograph of Nzegwu taken at his deposition, which we can compare to the ATM photographs,
2 we cannot say that the officers’ conclusion of the similarity of appearance was unreasonable. It was
3 also reasonable for Defendants to consider Nzegwu’s proximity to the unsecured wireless signals
4 used to commit the fraud. Although a person need not live in the vicinity of a signal in order to
5 “piggyback” off of it, the fact that wireless signals from the same location had been used
6 repeatedly in the commission of the fraud suggested that the fraud was committed by a person with
7 a reason to be in the vicinity of these particular signals.
8 In assessing whether a reasonable officer would have determined that there was probable
9 cause to make an arrest, a court must consider the officer’s obligation to take into account
10 exculpatory as well as inculpatory evidence. See Fabrikant v. French, 691 F.3d 193, 214 (2d Cir.
11 2012). In this case, however, as the district court correctly concluded, there was no such evidence
12 prior to Nzegwu’s arrest. Nzegwu’s protestations of innocence were not “plainly exculpatory.” See
13 Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006) (“[A]n officer’s failure to investigate an
14 arrestee’s protestations of innocence generally does not vitiate probable cause.”). The district court
15 concluded that, “[v]iewing all the exculpatory and inculpatory evidence together, . . . arguable
16 probable cause existed.” Special App. 19-20. The superintendent of the building identified Nzegwu
17 as the person in the ATM photographs, and the fraudulent online transactions originated from the
18 vicinity of Nzegwu’s apartment. Two agents found Nzegwu’s resemblance to the photographs
19 sufficient to make probable, when considered in light of the other evidence, that he was the person
20 shown in the ATM photographs. We agree that, in the totality of the circumstances, arguable
21 probable cause existed for Nzegwu’s arrest. Even if another officer might have disagreed, it was
22 not unreasonable for Defendants to conclude that the circumstances had established probable cause
23 to arrest Nzegwu, and that is all that is necessary to establish a qualified immunity defense in this
5
1 case. The district court thus properly granted summary judgment to Defendants on Nzegwu’s false
2 arrest claim on qualified immunity grounds.
3 II. Malicious Prosecution
4 Nzegwu also brought claims against Agent Friedman and Detective Jackson for malicious
5 prosecution. A claim for malicious prosecution requires proof (1) that the defendant initiated or
6 continued a criminal proceeding against the plaintiff, (2) that the proceeding terminated in the
7 plaintiff’s favor, (3) that there was no probable cause for the proceeding, and (4) that it was
8 motivated by actual malice on the defendant’s part. Jocks, 316 F.3d at 136. Even where probable
9 cause existed for initiating a prosecution, a claim “can rest on a prosecution that is continued
10 notwithstanding the discovery of information that exculpates the defendant.” Kinzer v. Jackson,
11 316 F.3d 139, 143-44 (2d Cir. 2003). “In order for probable cause to dissipate,” allowing a
12 malicious prosecution claim to go forward despite the existence of probable cause for the
13 plaintiff’s arrest, “the groundless nature of the charge must be made apparent by the discovery of
14 some intervening fact.” Id.
15 Nzegwu argues that the eventual discovery that the computer found in his apartment could
16 not have been used to conduct the online fraud vitiated the justification for continuing the
17 prosecution. Even if that were correct, it would not justify his claim against Defendants. At the
18 point when this fact was discovered, the decision whether to continue the prosecution lay not with
19 Agent Friedman and Detective Jackson, but with the Queens County District Attorney. While the
20 Defendants could nevertheless be liable if they withheld pertinent information from the prosecutor,
21 or misrepresented it, Williams v. City of New York, 981 N.Y.S.2d 114, 117 (App. Div. 2014), there
22 is no evidence of any such thing. Once Nzegwu was arraigned, and as long as Agent Friedman did
23 not act beyond the prosecutor’s control, Agent Friedman had no power to “continue the
6
1 prosecution,” and thus cannot be held liable for malicious prosecution. The same analysis applies
2 to Detective Jackson. Summary judgment was thus properly granted as to both.
3 III. Excessive Detention
4 Nzegwu also brought an excessive detention claim specifically against Agent Friedman. To
5 prevail on such a claim, a plaintiff must demonstrate “(1) that he has a right to be free from
6 continued detention stemming from law enforcement officials’ mishandling or suppression of
7 exculpatory evidence, (2) that the actions of the officers violated that right, and (3) that the
8 officers’ conduct ‘shocks the conscience.’” Russo v. City of Bridgeport, 479 F.3d 196, 205 (2d Cir.
9 2007). Nzegwu failed to point to any facts in the record suggesting that Agent Friedman
10 “suppressed” or “mishandled” any evidence in this case. Without proof of suppression or
11 mishandling of evidence, we need not even reach the question whether Agent Friedman’s behavior
12 “shocks the conscience” or whether the evidence was exculpatory or not. There is no allegation in
13 this case that evidence was tampered with, lost, tainted, or concealed, and no allegation supported
14 by record evidence that any evidence was withheld by Friedman from the prosecutor. Summary
15 judgment was thus appropriately granted as to Nzegwu’s excessive detention claim.
16 We have considered all of the remaining arguments raised by Plaintiff-Appellant and find
17 them to be without merit. For the reasons stated above, we AFFIRM the District Court’s April 1,
18 2014 judgment.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
7