     10-1559-cv
     Kilburn v. Village of Saranac Lake


                          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 9th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PIERRE N. LEVAL,
 9                REENA RAGGI,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       SETH KILBURN and KORI KILBURN,
15
16                    Plaintiffs-Appellants,
17
18                    -v.-                                        10-1559-cv
19
20       VILLAGE OF SARANAC LAKE, SARANAC LAKE
21       POLICE DEPARTMENT, Patrolman JOHN W.
22       GAY, Sergeant WILLIAM J. COTE,
23
24                    Defendants-Appellees.
25
26       - - - - - - - - - - - - - - - - - - - -X
27

                                                  1
 1   FOR APPELLANTS:   ERIN MEAD (ARTHUR H. THORN, on the
 2                     brief), Thorn Gershon Tymann and Bonanni,
 3                     LLP, Albany, NY.
 4
 5   FOR APPELLEES:    THOMAS K. MURPHY (THOMAS J. HIGGS, on the
 6                     brief), Murphy, Burns, Barber & Murphy,
 7                     LLP, Albany, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Northern District of New York (Kahn, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Seth and Kori Kilburn appeal from the judgment entered
17   on March 31, 2010 by the United States District Court for
18   the Northern District of New York (Kahn, J.), which granted
19   appellees’ motion for summary judgment on appellants’ false
20   arrest, false imprisonment, and malicious prosecution claims
21   brought under New York law and as analogous claims under 42
22   U.S.C. § 1983. We assume the parties’ familiarity with the
23   underlying facts, the procedural history, and the issues
24   presented for review.
25
26        A grant of summary judgment is reviewed de novo,
27   “resolv[ing] all ambiguities and draw[ing] all permissible
28   factual inferences in favor of the party against whom
29   summary judgment is sought.” Terry v. Ashcroft, 336 F.3d
30   128, 137 (2d Cir. 2003) (internal quotation marks omitted).
31
32   [1] The appellants contend that the district court
33   improperly dismissed their false arrest and false
34   imprisonment claims by ruling that probable cause existed
35   for Mr. Kilburn’s arrest as a matter of law.
36
37        “The existence of probable cause to arrest constitutes
38   justification and is a complete defense to an action for
39   false arrest, whether that action is brought under [New
40   York] law or under § 1983.” Weyant v. Okst, 101 F.3d 845,
41   852 (2d Cir. 1996) (internal citation and quotation marks
42   omitted). The same holds true for the false imprisonment
43   claims because, under New York law, the claim is identical
44   to a false arrest claim, see Posr v. Doherty, 944 F.2d 91,
45   96 (2d Cir. 1991), and the federal claim looks to the
46   elements of the state claim, see Russo v. City of
47   Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007). The parties

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 1   do not dispute the material facts; the existence of probable
 2   cause therefore is properly decided as a matter of law. See
 3   Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007);
 4   Colaruotolo v. Cohoes, 353 N.Y.S.2d 542, 544 (3d Dep’t
 5   1974).
 6
 7        An arrest is supported by probable cause “when the
 8   officers have knowledge of, or reasonably trustworthy
 9   information as to, facts and circumstances that are
10   sufficient to warrant a person of reasonable caution in the
11   belief that an offense has been or is being committed by the
12   person to be arrested.” Zellner v. Summerlin, 494 F.3d 344,
13   368 (2d Cir. 2007). We look to the “totality of the
14   circumstances” in deciding whether probable cause exists for
15   an arrest. Illinois v. Gates, 462 U.S. 213, 238 (1983).
16
17        The officers relied primarily on a sworn statement
18   submitted by the victim, a mentally disabled twelve-year old
19   student. “An arresting officer advised of a crime by a
20   person who claims to be the victim, and who has signed a
21   complaint or information charging someone with the crime,
22   has probable cause to effect an arrest absent circumstances
23   that raise doubts as to the victim’s veracity.” Singer v.
24   Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995).
25   Although the child’s age and mental capacity bear upon the
26   trustworthiness of his statement, the statement was
27   reinforced by the statements of four adults who discussed
28   the incident with him and believed that an offense had
29   occurred: his grandmother, the school psychologist, the Dean
30   of Students, and Patrolman Gay. A person of reasonable
31   caution could conclude likewise; Patrolman Gay therefore had
32   probable cause to arrest Mr. Kilburn.
33
34        The officers were not required to conduct further
35   investigation before the arrest. Although “the failure to
36   make a further inquiry when a reasonable person would have
37   done so may be evidence of lack of probable cause,” Colon v.
38   City of New York, 60 N.Y.2d 78, 82 (1983), an officer need
39   not “explore and eliminate every theoretically plausible
40   claim of innocence” or “prove plaintiff’s version wrong”
41   before arresting him, even if “an investigation might have
42   cast doubt upon the basis for the arrest.” Curley v.
43   Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (internal
44   quotation marks omitted). In any event, it is unclear what
45   additional investigative steps would have been fruitful.
46   According to the child, the only potential witness for any
47   of the alleged conduct was a classmate; although the

                                  3
 1   officers could have interviewed the other student, he may
 2   not have seen anything, his statement may not have been
 3   sufficiently corroborative because of his age, and one may
 4   hesitate to include another child in the emotionally charged
 5   investigation.
 6
 7   [2] The Kilburns invite us to interpret the comments by
 8   Sergeant Thurber about the lack of probable cause as an
 9   admission by the department, or an indicator of a triable
10   issue of fact. The statements are irrelevant for the
11   probable cause inquiry: Thurber was not involved in the
12   investigation prior to the arrest, and “[w]hether probable
13   cause exists depends upon the reasonable conclusion to be
14   drawn from the facts known to the arresting officer at the
15   time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152
16   (2004) (emphases added).
17
18   [3] Appellants’ malicious prosecution claims are meritless
19   for the same reason that the false arrest and false
20   imprisonment claims fail: Probable cause is an absolute
21   defense to a malicious prosecution claim under New York law,
22   see Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir.
23   2010), and one element of a § 1983 claim for malicious
24   prosecution is malicious prosecution under state law,
25   Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002).
26   Although this Court has hinted in a nonprecedential order
27   that exculpatory circumstances discovered after an arrest
28   can dissolve probable cause to prosecute, see D’Angelo v.
29   Kirschner, 288 F. App’x 724, 726 (2d Cir. 2008) (summary
30   order), probable cause to arrest is generally construed as
31   probable cause to prosecute as well, see, e.g., Williams v.
32   Town of Greenburgh, 535 F.3d 71, 79 (2d Cir. 2008). In any
33   event, the plaintiffs cite no such exculpatory facts.
34   (Sergeant Thurber’s opinion does not constitute an
35   exculpatory fact.)
36
37        We have considered all of appellants’ contentions on
38   this appeal and have found them to be without merit.
39   Accordingly, the judgment of the district court is hereby
40   AFFIRMED.
41
42                              FOR THE COURT:
43                              CATHERINE O’HAGAN WOLFE, CLERK
44
45
46


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