19-580
Larry Thompson v. Police Officer Pagiel Clark, et al

                                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.



        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
24th day of February, two thousand twenty.

Present:    ROSEMARY S. POOLER,
            GERARD E. LYNCH,
            MICHAEL H. PARK,
                        Circuit Judges.
_____________________________________________________

LARRY THOMPSON,

                                    Plaintiff-Appellant,

                           v.                                              19-580-cv

POLICE OFFICER PAGIEL CLARK, SHIELD #28472,
POLICE OFFICER PAUL MONTEFUSCO, SHIELD# 10580
POLICE OFFICER PHILLIP ROMANO, SHIELD # 6295
POLICE OFFICER GERARD BOUWMANS, SHIELD # 2102,

                                    Defendants-Appellees.

CITY OF NEW YORK, POLICE OFFICERS JOHN AND JANE
DOES 1-10, POLICE OFFICER WARREN RODNEY,
SHIELD # 13744, SERGEANT ANTHONY BERTRAM,
SHIELD #277,

                                    Defendants.

_____________________________________________________
Appearing for Plaintiff-Appellant:                    Amir H. Ali, Roderick & Solange
                                                      MacArthur Justice Center, Washington,
                                                      D.C.

Appearing for Defendants-Appellee:                    Kevin Osowski, Assistant Corporation
                                                      Counsel (Devin Slack, Richard Dearing, on
                                                      the brief), for Georgia M. Pestana, Acting
                                                      Corporation Counsel of the City of New
                                                      York, New York City Law Department,
                                                      New York, N.Y.

      Appeal from the United States District Court for the Eastern District of New York
(Weinstein, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

       Plaintiff-Appellant Larry Thompson appeals from the February 8, 2019 final judgment
entered in the United States District for the Eastern District of New York (Weinstein J.) granting
judgment as a matter of law in favor of the defendants pursuant to Rule 50 on Thompson’s 42
U.S.C. § 1983 claim for malicious prosecution due to his failure to establish favorable
termination of his criminal case, and entering judgment pursuant to a jury verdict in favor of
defendants on Thompson’s other section 1983 claims. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.

        We review de novo a district court’s decision granting judgment as a matter of law
pursuant to Rule 50. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003).
We review challenges to jury instructions de novo. United States v. Quattrone, 441 F.3d 153, 177
(2d Cir. 2006).

       With respect to the malicious prosecution claim, Thompson argues that he should not be
required to prove favorable termination because it is not a substantive element of the claim. In
Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018), we acted to “dispel any confusion
among district courts” and held that section 1983 malicious prosecution claims require
“affirmative indications of innocence to establish favorable termination.” Id. at 25 (internal
quotation marks omitted). We rejected the more permissive standard of proof for malicious
prosecution claims asserted under New York state law.

       We also affirmed in Lanning, the rule first announced in Hygh v. Jacobs, 961 F.2d 359,
368 (2d Cir. 1992), that dismissal under section 170.40 of the New York Criminal Procedure
Law is by itself insufficient to satisfy the favorable termination requirement as a matter of law.
In Lanning, the complaint did not specify a basis for the dismissal. Both the plaintiff and the
defendants asserted that the complaint had been dismissed at least in part due to jurisdictional
reasons. Here, too, neither the prosecution nor the court provided any specific reasons about the
dismissal on the record. Also, in an evidentiary hearing before the district court, Thompson’s



                                                 2
state-court defense counsel testified that she was unable to point to any affirmative indication of
innocence. “When a person has been arrested and indicted, absent an affirmative indication that
the person is innocent of the offense charged, the government’s failure to proceed does not
necessarily ‘impl[y] a lack of reasonable grounds for the prosecution.’” Lanning, 908 F.3d at 28
(quoting Conway v. Village of Mount Kisco, 750 F.2d 205, 215 (2d Cir. 1984). In fact, the district
court here held an evidentiary hearing and found that the evidence of Thompson’s guilt of the
crime of obstruction of governmental administration and resisting arrest was substantial, and that
dismissal was likely based on factors other than the merits. We are “bound by the decisions of
prior panels until such time as they are overruled either by an en banc panel of our Court or by
the Supreme Court.” United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). Accordingly,
we agree with the district court that it was bound by Lanning to enter judgment in favor of the
defendants on Thompson’s malicious prosecution claim.

         With respect to Thompson’s challenge to the jury instruction assigning him the burden of
proof with respect to whether exigent circumstances authorized the police officers’ warrantless
search of his apartment, we find no error. In Ruggiero v. Krezeminski, 928 F.2d 558 (2d Cir.
1991), we held that a warrantless search, though presumptively unreasonable, “cannot serve to
place on the defendant the burden of proving that the official action was reasonable.” Id. at 563;
see also Harris v. O’Hare, 770 F.3d 224, 234 n.3 (2d Cir. 2014) (“Of course, as in all civil cases,
‘the ultimate risk of non-persuasion must remain squarely on the plaintiff in accordance with
established principles governing civil trials.’” (quoting Ruggiero, 928 F.2d at 563)).

        We have considered the remainder of Thompson’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




                                                 3
