11-1917
Barcomb v. Sabo


                       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 TO 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
the City of New York, on the 10th day of July, two thousand twelve.

PRESENT: JOSEPH M. McLAUGHLIN,
            SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
_____________________________________

DARREN BARCOMB,
                        Plaintiff-Appellant,

                  v.                                         No. 11-1917-cv

ARLENE SABO, JERRY LOTTIE, SHAWN
P. MURPHY,
               Defendants-Appellees,

LAWRENCE MILLS, WILLIAM LAUNDRY,
ROGER JOHNSON, MARY DUPELL,
COUNTY OF CLINTON, ANDREW J. WYLIE,
KRISTY SPRAGUE, TIMOTHY BLATCHLEY,
                  Defendants.
_____________________________________

FOR APPELLANT:                Elmer Robert Keach, III, Amsterdam, NY.

FOR APPELLEES:                Zainab A. Chaudhry, Assistant Solicitor General (Barbara
                              D. Underwood, Solicitor General, Denise Hartman,
                          Assistant Solicitor General, on the brief), for Eric T.
                          Schneiderman, Attorney General of the State of New
                          York.


      Appeal from the United States District Court for the Northern District of

New York (Gary L. Sharpe, Chief Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Darren Barcomb appeals from the district court’s entry of

summary judgment in favor of defendants Arlene Sabo, Jerry Lottie, and Shawn

Murphy on Barcomb’s claims for false arrest and malicious prosecution. We assume

the parties’ familiarity with the facts and the record of prior proceedings, which we

reference here only as necessary to explain our decision.

      The standards for considering a motion for summary judgment are well-

established. See Fed. R. Civ. P. 56(a); Patterson v. Cnty. of Oneida, 375 F.3d 206,

219 (2d Cir. 2004). We review a district court’s grant of summary judgment de

novo. Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012).

      At issue on this appeal are claims brought under 42 U.S.C. § 1983 by

Barcomb, a police officer at SUNY Plattsburgh, against Sabo, the Chief of Police at

SUNY Plattsburgh, and Lottie, the Assistant Chief, for false arrest in connection

with Barcomb’s 2005 arrest for menacing, and for false arrest and malicious

prosecution against Sabo and Murphy, a New York State trooper, in connection




                                          2
with charges brought against Barcomb in 2006 for impersonating a police officer.1

The district court granted summary judgment for defendants as to both sets of

claims. We affirm for substantially the reasons set out by the district court in its

thorough and well-reasoned opinion. See Barcomb v. Sabo, No. 8:07-cv-877, 2011

WL 1770795 (N.D.N.Y. May 9, 2011).

       As to Barcomb’s claims arising from his 2005 arrest: he does not challenge

the validity of the arrest, which was pursuant to a warrant, but argues instead that,

because Sabo and Lottie drove him from Plattsburgh to Long Island to bring him to

the jurisdiction in which the warrant issued, he was denied his right to a prompt

initial appearance before a judge in the locale where he was first detained. In

support of this argument, Barcomb relies on N.Y. Crim. Proc. Law § 120.90(3).

Barcomb’s reliance on New York law is unavailing in the context of an alleged

constitutional tort. A § 1983 claim for false arrest derives from an individual’s right

to be free of unreasonable seizures under the Fourth Amendment, Jaegly v. Couch,

439 F.3d 149, 151 (2d Cir. 2006), and state law procedural requirements do not

delineate the Fourth Amendment’s protections, Virginia v. Moore, 553 U.S. 164, 176

(2008); Watson v. City of New York, 92 F.3d 31, 37-38 (2d Cir. 1996). Even were we

now to find a federal right to a prompt initial appearance in the locale where an

individual is arrested, any such right is not clearly established, and the district



       1
          Barcomb voluntarily agreed to the dismissal of his due process claims in the district court.
Pl.’s Mem. of Law in Opp. Summ. J. 1 n.1, ECF No. 110. We generally do not consider issues not
presented to the district court, and we decline to do so here. See United States v. Lauersen, 648 F.3d
115, 115 (2d Cir. 2011) (per curiam).

                                                  3
court thus correctly held that Sabo and Lottie were entitled to qualified immunity

as to this claim. See Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).

      With respect to the 2006 incident too, the district court correctly concluded

that both Murphy and Sabo are entitled to qualified immunity as to Barcomb’s

claims for false arrest and malicious prosecution. An officer is entitled to qualified

immunity on such claims if he or she can establish that there was at least arguable

probable cause to arrest or prosecute the plaintiff. See Escalera v. Lunn, 361 F.3d

737, 743 (2d Cir. 2004); Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir.

1996). Arguable probable cause exists where 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, 361 F.3d at 743 (internal quotation marks omitted).

      Murphy had at least arguable probable cause to file criminal charges against

Barcomb for impersonating a police officer. As the district court correctly

concluded, in light of Barcomb’s actions during a January 1, 2006 traffic stop–even

as described by Barcomb–it was reasonable for Murphy to conclude that Barcomb

was presenting himself as an active police officer. There was thus at least arguable

probable cause for Murphy to bring charges against Barcomb upon learning that

Barcomb had been suspended from the police department and was not an active,

authorized officer at the time of the stop. Sabo was likewise entitled to qualified

immunity with respect to Barcomb’s claims related to the impersonation arrest. In

light of the information relayed to her regarding the traffic stop, her correspondence

                                            4
with legal counsel, and her knowledge that Barcomb was suspended at the time of

the stop, there was at least arguable probable cause supporting Sabo’s participation

in the state’s criminal impersonation charge against Barcomb. That Barcomb was

suspended, rather than terminated, at the time of the traffic stop does not change

our analysis: Barcomb arguably could still violate the criminal impersonation

statute because he lacked authority to act as a police officer while suspended. See

N.Y. Penal Law § 190.25; see also People v. Epperson, 581 N.Y.S.2d 342 (App. Div.

1992), aff’d, 82 N.Y.2d 697 (1993).

      We have considered Barcomb’s remaining arguments on appeal and find

them to be without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




                                          5
