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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 A SUMMARY 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 14 th day of November, two

thousand seventeen.

PRESENT:

DENNIS JACOBS,

ROBERT D. SACK,

BARRINGTON D. PARKER,

Circuit Judges

.

___________________ __________________

Joseph Iocovello,

Plaintiff

‐ Appellant,

v. 17

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City of New York and Police Officer Erica

Francis,2 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 on3 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 with4 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. It5 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

plaintiff ʹ s version of events more completely, the arresting officer does not

have to prove plaintiff ʹ s 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.6 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