     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
12       - - - - - - - - - - - - - - - - - - - -X
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




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