Filed: Nov. 14, 2017
Latest Update: Mar. 03, 2020
Summary: 17-132 Iocovello v. City of New York and Police Officer Erica Francis 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 DATA
Summary: 17-132 Iocovello v. City of New York and Police Officer Erica Francis 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 DATAB..
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17‐132
Iocovello v. City of New York and Police Officer Erica Francis
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 ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 14th day of November, two
thousand seventeen.
PRESENT:
DENNIS JACOBS,
ROBERT D. SACK,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________
Joseph Iocovello,
Plaintiff‐Appellant,
v. 17‐132
City of New York and Police Officer Erica
Francis,
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Defendants‐Appellees
New York Police Department and New York
City Department of Sanitation
Defendants
___________________________________
FOR PLAINTIFF‐APPELLANT: Christopher H. Fitzgerald, Law
Office of Christopher H. Fitzgerald,
New York, NY.
Joshua Moskovitz, Bernstein, Clarke
& Moskovitz PLLC, New York, NY
FOR DEFENDANTS‐APPELLEES: Eric Lee (Richard Dearing, on the
brief), Assistant Corporation Counsel
for the City of New York, for Zachary
W. Carter, Corporation Counsel for
the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Failla, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Joseph Iocovello appeals from the district court’s grant of summary
judgment, dismissing on qualified immunity grounds, his false arrest claims
brought under 42 U.S.C. § 1983 and New York state law against New York City
Police Officer Erica Francis. Iocovello argues on appeal that the district court
adopted the defendants’ version of disputed facts and relied on the erroneous
proposition that, under New York law, probable cause to arrest can rest solely on
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the word of an alleged eyewitness or victim. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on
appeal.
1. Summary judgment is to be granted if “the movant shows that there
is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The district court properly applied
Rule 56 in dismissing Iocovello’s suit.
“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. 2015) (internal citation and quotation
marks 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. (internal citation and quotation marks omitted). Probable cause to
arrest exists if “facts and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing,
in the circumstances shown, that the suspect has committed, is committing, or is
about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “In
an unlawful arrest action, an officer is subject to suit only if his judgment was so
flawed that no reasonable officer would have made a similar choice.” Amore v.
Novarro, 624 F.3d 522, 531 (2d Cir. 2010) (alteration, internal citation and
quotation marks omitted); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d
Cir. 2002). When deciding “whether probable cause exists[,] courts must
consider those facts available to the officer at the time of the arrest and immediately
before it, as [p]robable cause does not require absolute certainty.” Panetta v.
Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal citations and quotation marks
omitted; emphasis in original).
Officer Francis, upon arriving at the scene of a fracas, first spoke with
Iocovello, a supervisor at the New York City Department of Sanitation, who told
her that Walter King, Iocovello’s subordinate, had assaulted him. Iocovello
appeared to have suffered an injury to his leg. Next, Officer Francis spoke with
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King, who stated that he had been assaulted by Iocovello after a verbal dispute,
and that his back was hurt in the alleged assault. Officer Francis arrested both
men. Iocovello did not dispute these facts; rather, he stipulated to the
truthfulness of each fact as asserted in Officer Francis’ S.D.N.Y. Local Civil Rule
56.1 Statement, responding to each as “[n]ot disputed for the purposes of this
motion.” Joint App’x at 161–64. So, relying on these undisputed facts, the
district court held that it could not conclude “that no reasonably competent
officer would have determined that Officer Francis had probable cause to arrest
Iocovello for third‐degree assault or third‐degree menacing,” as defined under
New York law, and granted Officer Francis’ motion for summary judgment. Id.
at 217. The district court thus applied the proper standard for summary
judgment.
2. As to whether the district court adopted an erroneous standard that a
police officer can find probable cause to arrest based solely upon the complaint of
an alleged victim, Iocovello misunderstands our precedent. A police officer may
rely on the statements of a putative victim or witness to determine if probable
cause exists for an arrest, unless the officer is presented with a reason to doubt the
witness’ veracity. Panetta, 460 F.3d at 395; see also Oliveira v. Mayer, 23 F.3d
642, 647 (2d Cir. 1994) (“[W]hen information furnished by a single complainant
suffices to establish probable cause, such information often comes from the
victim, who has provided specific details of the crime.”); Miloslavsky v. AES
Eng’ring Soc’y, 808 F.Supp. 351, 355 (S.D.N.Y.1992) (“The veracity of citizen
complaints who are the victims of the very crime they report to the police is
assumed.”), aff’d, 993 F.2d 1534 (2d Cir.1993), cert. denied, 510 U.S. 817 (1993). It
is undisputed that, at the scene of the incident, King told Officer Francis he and
Iocovello had grabbed each other and that his back was injured. It is also
undisputed that “Officer Francis did not doubt the reliability of Walter King[’s]”
statements to her, based on her observations at the scene. Joint App’x at 163.
This evidence was enough to establish arguable probable cause to arrest Iocovello
for third degree assault. See N.Y. Pen. Law § 120.00.
The eyewitnesses to the altercation between King and Iocovello prepared
handwritten statements, each of which indicated that King attacked Iocovello. It
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is disputed however, whether Officer Francis had the opportunity to, or did, read
the statements before arresting Iocovello and King. Even viewing the evidence
in the light most favorable to Iocovello to the effect that Officer Francis had
indeed seen the statements before the arrests, Office Francis nevertheless had
arguable probable cause to arrest Iocovello based on King’s statement alone. See
Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“[W]e have found
probable cause where a police officer was presented with different stories from an
alleged victim and the arrestee.”). “Once a police officer has a reasonable basis
for believing there is probable cause, he is not required to explore and eliminate
every theoretically plausible claim of innocence before making an arrest.”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Iocovello argues that he displayed visible injuries, that King did not, and
that King is a much physically larger man, such that a reasonable police officer
could not have thought that Iocovello assaulted King. However, a reasonable
officer responding to this workplace incident may have assumed that a fight
involving both Iocovello and the much larger King could logically lead to the
smaller person having the greater signs of injury. See Martinez v. Simonetti, 202
F.3d 625, 635 (2d Cir. 2000) (plaintiff’s account that he could not have been the
aggressor since he was “severely injured” and therefore was falsely arrested was
not inconsistent with account of resisting arrest or officer’s conclusion that
plaintiff committed a crime); Curley, 268 F.3d at 70. There was also no need for
an in‐depth investigation once Officer Francis heard King’s version of the events,
viewed evidence that a scuffle had occurred between Iocovello and King, and had
no reason to doubt the veracity of King’s statements:
Although a better procedure may have been for the officers to investigate
plaintiffʹs version of events more completely, the arresting officer does not
have to prove plaintiffʹs version wrong before arresting him. Nor does it
matter that an investigation might have cast doubt upon the basis for the
arrest. Before making an arrest, if the arresting officer has probable cause,
he need not also believe with certainty that the arrestee will be successfully
prosecuted.
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Curley, 268 F.3d at 70 (internal citations omitted); see also Krause v. Bennett, 887
F.2d 362, 372 (2d Cir. 1989) (“Once officers possess facts sufficient to establish
probable cause, they are neither required nor allowed to sit as prosecutor, judge
or jury. Their function is to apprehend those suspected of wrongdoing, and not
to finally determine guilt through a weighing of the evidence.”).
For the foregoing reasons, we hereby AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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