1 16-48-cv Jurkowitsch v. Choudhury 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Co urthouse, 40 Foley Square, in the City of New York, on the 8 th day of December, two thousand sixteen.

Present: D EBRA A NN L IVINGSTON , D ENNY C HIN , S USAN L. C ARNEY , Circuit Judges ,

_____________________________________ H ELMUT J URKOWITSCH , Plaintiff-Appellee , v. 16-48-cv

P.O. M OHAMMED C HOUDHURY , individually and in his official capacity, Defendant-Appellant , C ITY OF N EW Y ORK , J OHN D OES #1–10, individually and in their o fficial capacity of the New York City Police Department, C APITAL O NE F INANCIAL C ORPORATION , M ARK Q UAIES , a Capital One Financial Corporation employee, J OHN D OES #11–20, in their individual capacities and as employees of Capital One Financial Corporation, Defendants.

_____________________________________ For Plaintiff-Appellee: M EGAN R HA , Rha & Kim, LLP, Bayside, New York2 For Defendant-Appellant: E MMA G RUNBERG (Richard Dearing, Devin Slack, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

. Defendant-Appellant New York City Poli ce Department Officer Mohammed Choudhury appeals from a December 9, 2015 order of the Un ited States District Court for the Eastern District of New York (Chen, J. ) denying a motion to dismiss Plaintiff-Appellee Helmut Jurkowitsch’s 42 U.S.C. § 1983 claim against him. We presume the parties’ familiarity with the underlying facts, the proce dural history, and the issues presented for review. As this appeal arises from a district cour t’s denial of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we accept as true the allegations set forth in Jurkowitsch’s complaint. See Betts v. Shearman , 751 F.3d 78, 81 (2d Cir. 2014). This § 1983 action arises from the January 3, 2014 arrest of Jurkowitsch. At around 9:40 a.m. that Friday morning, Jurkowitsch entered the br anch office of the bank where he has deposited his paycheck weekly for the past six years. The branch’s exterior and inte rior doors were unlocked, the lights were on in the lobby, customers were using the AT M, and there were employees present in the branch. Upon entering, Jurkowitsch sat down in the bank’s lobby to aw ait assistance with depositing his check. After he had been waiti ng in the lobby for a brief period, six officers from the New York City Police Department arri ved and, without asking Ju rkowitsch to leave the bank and without asking him any questions at all, arrested him. Officer Choudhury and the other police officers took Jurkow itsch into custody, and after bei ng held for several hours, he was eventually charged with Criminal Trespass in the Third Degree, N.Y. Penal Law § 140.10(a). The charge was later dismissed.3 In November 2014, Jurkowitsch filed a lawsu it against, in relevant part, Officer Choudhury, the arresting officer. His complaint asserts, inter alia , a claim pursuant to 42 U.S.C. § 1983. He alleges the individual law en forcement officers fals ely arrested him in

violation of the Fourth Amendment. As relevant here, the district court denied the motion to dismiss the § 1983 claim against Officer Choudhury on the ground th at at this stage of the proceedings, accepting as true all the factual allega tions in the complaint, the complaint does not on its face establish that Officer Choudhury ha d probable cause to arrest Jurkowitsch or, alternatively, that Officer Choudhury wa s entitled to qualified immunity. We have jurisdiction over this appeal from the district court’s denial of a motion to dismiss on qualified immunity grounds because such a denial, so long as it turns on an issue of law, qualifies as a fina l reviewable order. Garcia v. Does , 779 F.3d 84, 91 (2d Cir. 2014). We

review de novo , accepting all allegations in the complaint as true and drawing all inferences in the plaintiff’s favor. Id. Officer Choudhury contends that based on the f actual allegations in the complaint he had at least arguable probable cause to arrest Jurkowitsch. Probable cause—a complete defense to

an action for false arrest—exists where a law en forcement officer “has knowledge or reasonably trustworthy information of facts and circumstances that are suffi cient to warrant a person of reasonable caution in the belief that the person to be arrested has committed . . . a crime.” Stansbury v. Wertman , 721 F.3d 84, 89 (2d Cir. 2013) (alt eration in original) (quoting Jaegly v.

Couch , 439 F.3d 149, 152 (2d Cir. 2006)). This “inquiry is an objective one that focuses on the facts available to the arresting offi cer at the time of the arrest.” Finigan v. Marshall , 574 F.3d 57, 61–62 (2d Cir. 2009). Generally, a law enfor cement officer who receives a report that someone has committed an offense has probable cause to arrest that person—unless the4 circumstances give rise to doubt about the reporter’s veracity. Panetta v. Crowley , 460 F.3d 388, 395 (2d Cir. 2006). To establish entitlement to qualified immunity, an officer need only establish “arguable probable cause ,” which exists “if either (a ) it was objectively reasonable for the officer to believe that probable cause existe d, or (b) officers of reasonable competence could disagree on whether the proba ble cause test was met.” Garcia , 779 F.3d at 92 (quoting Zaleski v. City of Hartford , 723 F.3d 382, 390 (2d Cir. 2013)). We agree with the district court: the facts alleged in the complaint are not sufficient to establish that Officer Choudhury had probable cause or arguabl e probable cause to arrest Jurkowitsch. Officer Choudhury primarily relies on the complaint’s a llegation that Capital One’s report of a crime at the bank led to Ju rkowitsch’s arrest. The complaint, however, alleges only that a Capital One employee calle d 911 several minutes afte r Jurkowitsch sat down in the bank to wait for help depositing his paycheck, and that the officers acted based upon Capital One’s false report of a trespass and possible burglary. The complaint lacks any description of the 911 caller’s st atements or of circumstances that might have indicated the caller’s veracity or basis for knowledge. Cf. Panetta , 460 F.3d at 395. The other allegations in the complaint, moreover, suggest that upon arriving at th e bank, Officer Choudhury encountered circumstances that contradicted, ra ther than confirmed, any 911 caller’s report of a trespass or burglary. Cf. id. at 397; Finigan , 574 F.3d at 62. When a ll inferences are drawn in Jurkowitsch’s favor—as they must be at this st age in the case—they s uggest that the police officers entered an open bank branch, wher e the lights were on, the doors unlocked, and customers and employees present, and found a cust omer patiently waiting to deposit his check. Officer Choudhury’s entitlement to qualified immun ity is not apparent on the face of this5 complaint, and the district cour t correctly declined to dismiss Jurkowitsch’s § 1983 claim at this stage. We have considered Officer Choudhury’s re maining arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk