Kafafian v. Young

11-4000
Kafafian v. Young
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of April, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 BARRINGTON D. PARKER,
9 PETER W. HALL,
10 Circuit Judges.
11
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13 DONALD KAFAFIAN,
14 Plaintiff-Appellant,
15
16 -v.- 11-4000
17
18 WILLIAM D. YOUNG, JR., FAIRFIELD
19 POLICE DETECTIVE,
20 Defendant-Appellee.
21
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANT: Edward T. Murnane, Jr. (Gary A.
25 Mastronardi, on the brief), Law
26 Firm of Gary A. Mastronardi,
27 Bridgeport, Conn.
1
1
2 FOR APPELLEE: Michael J. Rose (Johanna G.
3 Zelman, Rachel L. Ginsburg, on
4 the brief), Rose Kallor, LLP,
5 Hartford, Conn.
6
7 Appeal from a judgment of the United States District
8 Court for the District of Connecticut (Hall, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Donald Kafafian appeals from the dismissal of his
15 complaint against Detective William D. Young of the
16 Fairfield Police Department, alleging that Young arrested
17 him without probable cause and was negligent in failing to
18 fully investigate the allegations against him. We assume
19 the parties’ familiarity with the underlying facts, the
20 procedural history, and the issues presented for review.
21
22 “We review de novo the dismissal of a complaint under
23 Rule 12(b)(6), accepting all factual allegations as true and
24 drawing all reasonable inferences in favor of the
25 plaintiff.” Hutchison v. Deutsche Bank Secs., Inc., 647
26 F.3d 479, 483-84 (2d Cir. 2011) (internal quotation marks
27 omitted).
28
29 “An arresting officer is entitled to qualified immunity
30 from a suit for damages on a claim for arrest without
31 probable cause if either (a) it was objectively reasonable
32 for the officer to believe that probable cause existed, or
33 (b) officers of reasonable competence could disagree on
34 whether the probable cause test was met.” Golino v. City of
35 New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see also
36 Martinez v. Simonetti, 202 F.3d 625, 34 (2d Cir. 2000)
37 (“[I]n the context of a qualified immunity defense to an
38 allegation of false arrest, the defending officer need only
39 show ‘arguable’ probable cause.”). Scott Jevarjian told
40 Young that Kafafian was an employee of his business who
41 obtained business credit cards without approval and charged
42 personal expenses to one such card. Young confirmed that
43 Kafafian had obtained a business credit card, used it for
44 hotel rooms, meals, and liquor, and paid the balance with
45 funds from a business account. Kafafian admitted to Young
46 that he was not a legal partner but asserted that he was a
47 de facto partner. Even if Young’s affidavit supporting the
2
1 arrest were “corrected” to reflect this contention, and
2 others made by Kafafian, see Velardi v. Walsh, 40 F.3d 569,
3 573 (2d Cir. 1994), Young had arguable probable cause to
4 arrest Kafafian for embezzlement. “The crime of
5 embezzlement is consummated where . . . the defendant, by
6 virtue of his agency or other confidential relationship, has
7 been entrusted with the property of another and wrongfully
8 converts it for his own use.” State v. Lizzi, 508 A.2d 16,
9 19 (Conn. 1986); see also Conn. Gen. Stat. § 53a-119(1).
10 Even assuming Kafafian was, as he alleges, the de facto
11 controlling partner with authority to make financial
12 decisions for the business, an officer could arguably find
13 probable cause to arrest based on allegations and evidence
14 that Kafafian was taking money for unauthorized, personal
15 use.
16
17 “Generally, a municipal employee is liable for the
18 misperformance of ministerial acts, but has a qualified
19 immunity in the performance of governmental acts. . . .
20 Governmental acts are performed wholly for the direct
21 benefit of the public and are supervisory or discretionary
22 in nature.” Martel v. Metro. Dist. Comm’n, 881 A.2d 194,
23 202 (Conn. 2005) (alteration in original) (internal
24 quotation marks omitted). “The hallmark of a discretionary
25 act is that it requires the exercise of judgment.” Id.
26 (internal quotation marks omitted). The extent to which a
27 police officer investigates a complainant’s allegations
28 before applying for an arrest warrant is a matter of
29 discretion. See, e.g., Brown v. Dooling, No. CV 900032598S,
30 1998 WL 43197, at *4 (Conn. Super. Ct. Jan. 23, 1998) (“How
31 far to investigate a complaint is a matter of police
32 discretion and necessarily so.”). Accordingly, the district
33 court did not err in determining that Young has qualified
34 immunity.
35
36 Finding no merit in Kafafian’s remaining arguments, we
37 hereby AFFIRM the judgment of the district court.
38
39
40 FOR THE COURT:
41 CATHERINE O’HAGAN WOLFE, CLERK
42
3