     18‐95‐cv(L)
     DaCosta v. Tranchina 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 ASUMMARY ORDER@). A PARTY
CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 10th day of September, two thousand nineteen.
 4
 5           PRESENT: JOHN M. WALKER, JR.,
 6                            RAYMOND J. LOHIER, JR.,
 7                            SUSAN L. CARNEY,
 8                                    Circuit Judges.
 9           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10           MAXIE DACOSTA,
11
12                           Plaintiff‐Appellee,
13
14                     v.                                                         Nos. 18‐95(L)*,
15                                                                                18‐522(CON)
16           DETECTIVE FORTUNATO TRANCHINA,
17           Shield #509, individually and in his official
18           capacity,
19
20                           Defendant‐Appellant,
21
22           ___________________
23
24               * The Lead appeal, 18‐95, was withdrawn on May 8, 2018.
 1         CITY OF NEW YORK; DETECTIVE DAVID
 2         SHAPIRO, Shield #6054; POLICE OFFICERS
 3         JOHN DOE AND JANE DOE #1 THROUGH #20,
 4         individually and in their official capacities (the
 5         names of John and Jane Doe being fictitious, as
 6         the true names of these individuals are presently
 7         unknown),
 8
 9                          Defendants.
10         ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11
12         FOR APPELLANT:                                            MACKENZIE FILLOW (Devin
13                                                                   Slack, on the brief), for Zachary
14                                                                   W. Carter, Corporation
15                                                                   Counsel of the City of New
16                                                                   York, New York, NY.
17
18         FOR APPELLEE:                                             SCOTT A. KORENBAUM (Kim E.
19                                                                   Richman, Richman Law
20                                                                   Group, Brooklyn, NY, on the
21                                                                   brief), New York, NY.
22
23         Appeal from an order of the United States District Court for the Eastern

24   District of New York (Jack B. Weinstein, Judge).

25         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

26   AND DECREED that the order of the District Court is REVERSED, and the case

27   is REMANDED with instructions to enter judgment in favor of Defendant‐

28   appellant Detective Fortunato Tranchina.


                                                        2
 1         Tranchina appeals from an order of the District Court (Weinstein, J.)

 2   denying him qualified immunity for a malicious prosecution claim brought by

 3   Maxie DaCosta under 42 U.S.C. § 1983. On appeal, Tranchina argues that there

 4   was at least arguable probable cause to prosecute DaCosta and that DaCosta

 5   failed to rebut the presumption of probable cause resulting from a grand jury

 6   indictment. We assume the parties’ familiarity with the underlying facts and

 7   the record of prior proceedings, to which we refer only as necessary to explain

 8   our decision to reverse.

 9         Qualified immunity shields officials from a malicious prosecution claim if

10   the prosecution is supported by “arguable probable cause.” Betts v. Shearman,

11   751 F.3d 78, 83 (2d Cir. 2014). “Arguable probable cause exists if officers of

12   reasonable competence could disagree on whether the probable cause test was

13   met.” Dufort v. City of New York, 874 F.3d 338, 354 (2d Cir. 2017) (quotation

14   marks omitted).

15         On appeal, DaCosta does not dispute that Tranchina had probable cause to

16   arrest him once Mohammad Sarwar, one of the witnesses to the robbery,

17   identified DaCosta as the perpetrator after having viewed his photograph in a


                                              3
 1   news story and relayed this information to Tranchina. Once probable cause is

 2   established, “the groundless nature of the charges must be made apparent by the

 3   discovery of some intervening fact” for it to dissipate. Lowth v. Town of

 4   Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996). With respect for the District

 5   Judge’s views to the contrary, we conclude that officers of reasonable

 6   competence could disagree about whether the subsequent events in this case

 7   dissipated probable cause. Even if Sarwar’s photo array and lineup

 8   identifications of DaCosta were unreliable and did not support probable cause,

 9   neither the claimed irregularities with the photo array nor any resulting taint in

10   the lineup investigation undermined the reliability of his initial identification of

11   DaCosta. The same is true for the misidentification and nonidentification by the

12   other two victims of the robbery. We therefore conclude that Tranchina had at

13   least arguable probable cause to pursue the prosecution and was entitled to

14   qualified immunity, despite these later events.

15         Finally, DaCosta argues that Tranchina is not entitled to qualified

16   immunity because he “failed to take basic investigatory steps.” Appellee’s Br.

17   22. The District Court concluded that if a rational jury found that Tranchina


                                               4
 1   “knew of and ignored serious issues with the eyewitness’ identification and

 2   failed to evaluate other potentially exculpatory evidence, then there was not

 3   ‘arguable probable cause’ to prosecute Plaintiff.” App’x 195. The District

 4   Court further stated that “[t]he police procedures utilized in this case were

 5   entirely unsatisfactory and of the sort that have led to miscarriages of justice.”

 6   Sp. App’x 2. While “the failure to make a further inquiry when a reasonable

 7   person would have done so may be evidence of lack of probable cause,” Colon v.

 8   City of New York, 60 N.Y.2d 78, 82 (1983), even assuming that there were

 9   investigatory steps that Tranchina should have taken, here, Tranchina did have

10   arguable probable cause as a result of Sarwar’s identification. No intervening

11   facts either cast doubt on that initial identification or made it apparent that the

12   charges against DaCosta were “groundless.” Lowth, 82 F.3d at 571.1

13         We have considered DaCosta’s remaining arguments and conclude that

14   they are without merit. For the foregoing reasons, the order of the District

15   Court is REVERSED, and the case is REMANDED with instructions to enter



     1 Because Tranchina had arguable probable cause, we need not consider whether
     DaCosta has overcome the presumption of probable cause resulting from the grand jury
     indictment.

                                               5
1   judgment in favor of Defendant‐appellant Tranchina.

2                                       FOR THE COURT:
3                                       Catherine O=Hagan Wolfe, Clerk of Court




                                          6
