16-454
Sanseviro v. State of New York, 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 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
4th day of April, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
              Circuit Judges,
         LEWIS A. KAPLAN,
              District Judge.

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STUART SANSEVIRO,
         Plaintiff-Appellant,

             -v.-                                                  16-454

STATE OF NEW YORK, EDWARD FRANKE, New York
State Police Investigator, JOHN DOES, 1-5 New
York State Police Officers, NEW YORK STATE
POLICE DEPARTMENT, State of New York, Police
Captain, State of New York, Police Senior
Investigator, JOHN DOES, 1-5 Nassau County
Assistant District Attorneys, JOHN DOE, The


 Judge Lewis A. Kaplan, of the United States District Court for
the Southern District of New York, sitting by designation.
                                           1
customer who purchased the Rock River Arms
LAR-15 rifle, Serial Number CM208678, NASSAU
COUNTY, JOHN DOES, 1-8 New York State Police
Investigator, MADELINE SINGAS, Acting
District Attorney for Nassau County, ELISE
MCCARTHY, Nassau County Assistant District
Attorney, KAREN BENNETT, Nassau County
Assistant District Attorney, TERESA CORRIGAN,
former Nassau County Assistant District,
CHARLES RIBANDO, Nassau County District
Attorney Chief Investigator,
         Defendants-Appellees.1

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FOR APPELLANT:                    ROBERT JAMES LA REDDOLA, La
                                  Reddola, Lester & Associates,
                                  LLP, Garden City, NY.

FOR APPELLEES:                    ERIC DEL POZO (Barbara D.
                                  Underwood, Solicitor
                                  General, Anisha S. Dasgupta,
                                  Deputy Solicitor General, on
                                  the brief), Assistant
                                  Solicitor General, for Eric
                                  T. Schneiderman, Attorney
                                  General of the State of New
                                  York, New York, NY.

                                  ROBERT F. VAN DER WAAG, Deputy
                                  County Attorney, for Carnell
                                  T. Foskey, Nassau County
                                  Attorney, Mineola, NY.

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

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

1
  The Clerk of Court is directed to amend the case caption as
set forth above.
                              2
     Stuart Sanseviro appeals from the district court’s grant
of summary judgment dismissing his claims against New York
State, the New York State Police Department (“NYSPD”), Nassau
County, and various current and former employees of the NYSPD
and Nassau County District Attorney’s Office. We review de
novo a district court’s grant of summary judgment. Kulak v.
City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996). We assume the
parties’ familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     New York Penal Law § 265.10(3) prohibits the sale of assault
weapons to the general public. Under § 265.20(a)(10), “dealers
in firearms” are exempted from several provisions of the law,
including § 265.10. However, this exemption is subject to the
qualification that the term “firearm” as used in § 265.20(a)(10)
does not include an assault weapon. N.Y. Penal Law §
265.20(a)(16). This qualification would appear to mean that
“dealers in firearms” are not exempt from § 265.10(3)’s
restriction on assault weapon sales. Otherwise, the
qualification would be meaningless with respect to §
265.20(a)(10).

     In the relevant period, an “assault weapon” was defined to
include a semiautomatic rifle that had an ability to accept a
detachable magazine and had at least two of the following
characteristics: (i) a folding or telescoping stock; (ii) a
pistol grip that protruded conspicuously beneath the action of
the weapon; (iii) a bayonet mount; (iv) a flash suppressor or
threaded barrel designed to accommodate a flash suppressor; and
(v) a grenade launcher. N.Y. Penal Law § 265.00(22)(a).

     In 2010, the New York State Gun Investigation Unit and
Nassau County District Attorney’s Office conducted a joint
undercover investigation into the sale of assault weapons at
gun dealerships throughout Nassau County. In August 2010, as
part of this investigation, an undercover officer posing as a
civilian purchased a Rock River Arms LAR-15 rifle from
Sanseviro, who was working behind the counter at T&T Gunnery,
a Long Island gun shop. Unrebutted evidence showed that
Sanseviro sold the rifle without requiring the undercover
officer to produce proof of his authority to possess or carry
an assault weapon.

                               3
     It is undisputed that the rifle sold by Sanseviro had the
ability to accept a detachable magazine and featured a pistol
grip that extended conspicuously below the action. Thus, the
rifle was one prohibited characteristic away from qualifying
as an assault weapon under § 265.00(22)(a). However, New York
State Police Investigator Edward Franke demonstrated that two
such characteristics could be revealed using common hand tools:
the muzzle break could be unscrewed to expose a threaded barrel
capable of accepting a flash suppressor, and the pin in the stock
could be removed, rendering it collapsible.

     Because the rifle could be tweaked with relative ease to
produce an assault weapon, Sanseviro was arrested and charged
with violating § 265.10(3). He was also charged with violating
§ 400.00(12), which provides that “[b]efore delivering a
firearm to any person,” a gun dealer must “require him to produce
either a license valid under this section to carry or possess
the same, or proof of lawful authority as an exempt person
pursuant to section 265.20.”

     In May 2012, the charges against Sanseviro were dismissed
after a grand jury declined to indict T&T Gunnery and its
principals on similar charges.

     Following dismissal of the charges against him, Sanseviro
brought the present action asserting various claims under 42
U.S.C. § 1983 and state law. Sanseviro’s federal claims
included false arrest, malicious prosecution, violation of
procedural due process, and failure to train and supervise.

     The district court granted the appellees’ motion for
summary judgment and dismissed Sanseviro’s federal claims,
ruling that: (1) the claims against New York State, the NYSPD,
and the individual state appellees in their official capacities
were barred by the Eleventh Amendment; (2) the individual
appellees were entitled to qualified immunity on the false
arrest and malicious prosecution claims because they had
arguable probable cause to arrest and prosecute Sanseviro; (3)
the individual Nassau County appellees were also entitled to
absolute immunity on the malicious prosecution claim because
they were acting within the scope of their duties in initiating
and pursuing a criminal prosecution against Sanseviro; (4) the


                               4
malicious prosecution claim was dismissible on the independent
ground that evidence of actual malice was lacking; (5) Sanseviro
failed to raise a triable issue of fact regarding his claim that
Investigator Franke violated procedural due process by
improperly modifying the rifle or otherwise fabricating
evidence; and (6) Sanseviro failed to raise a triable issue of
fact regarding his claim that supervisory appellees caused or
enabled the violation of his legal rights. After dismissing
Sanseviro’s federal claims, the district court declined to
exercise jurisdiction over his state law claims.

     1. Sanseviro argues that the appellees do not enjoy
immunity because they sought to enforce an allegedly novel and
unsupportable interpretation of New York’s gun laws (namely,
that § 265.10(3) prohibited gun dealers from selling rifles with
concealed assault weapon characteristics). He is incorrect.
Appellees are entitled to at least qualified immunity for
arresting and prosecuting Sanseviro.

     “Qualified immunity attaches when an official’s conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)
(internal quotation marks omitted). An official is entitled
to qualified immunity where the arrest and prosecution are
supported by “[a]rguable probable cause[, which] exists if
either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable
cause test was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d
Cir. 2004) (internal quotation marks omitted).

     At the time of Sanseviro’s arrest, it was not clearly
established that § 265.00(22)(a) (defining “assault weapon”)
excluded rifles whose banned features were obscured or
disguised. Nor was it clearly established that § 265.10(3)
(prohibiting the sale of assault weapons to the general public)
required knowledge of such features,2 or that licensed firearms

2
  In any event, it was reasonable for appellees to believe that
a gun shop employee, such as Sanseviro, would have been familiar
with the features of the rifles he sold. See Zalaski v. City
                               5
dealers were exempt.3 Since an officer of reasonable
competence could have concluded that Sanseviro violated the
law, those involved in his arrest and prosecution are entitled
to qualified immunity.4

     2. Sanseviro further argues that Investigator Franke
violated procedural due process by exposing assault weapon
features and thus making the sale appear illegal. He contends
that this constituted an improper distortion or fabrication of
evidence. However, Sanseviro offers no proof that
Investigator Franke in any way distorted or fabricated
evidence. During the course of Sanseviro’s arrest and
prosecution, the condition of the rifle when purchased and the
steps Investigator Franke took to expose its banned features
were documented and disclosed, including to the grand jury and
to the court that issued a search warrant. There is no
indication that Investigator Franke or any other appellee
attempted to hide or misrepresent the tweaks made to the rifle.

     Accordingly, and finding no merit in Sanseviro’s other
arguments, we hereby AFFIRM the judgment of the district court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




of Hartford, 723 F.3d 382, 393 (2d Cir. 2013) (“[B]ecause the
practical restraints on police in the field are greater with
respect to ascertaining intent, the latitude accorded to
officers considering the probable cause issue in the context
of mens rea crimes must be correspondingly great.” (internal
quotation marks and alterations omitted)).
3
  In fact, it is logical to construe § 265.20(a)(10) and (16)
as subjecting “dealers in firearms” to the restriction on
assault weapon sales. See supra.
4
  In view of this conclusion, we need not address the question
of whether the current and former employees of the Nassau County
District Attorney’s Office are protected by absolute immunity.
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