     14-1481-cv
     Nzegwu v. Secret Service Agent Eric Friedman

                                   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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   1st day of April, two thousand fifteen.
 4
 5   PRESENT:    PIERRE N. LEVAL,
 6               DEBRA ANN LIVINGSTON,
 7                            Circuit Judges,
 8               RICHARD K. EATON,*
 9                            Judge.
10   ____________________________________________________
11
12   ANTHONY NZEGWU,
13
14                   Plaintiff-Appellant,
15
16                            v.                                         No. 14-1481-cv
17
18   SECRET SERVICE AGENT ERIC FRIEDMAN, in his official capacity
19   and individually, CITY OF NEW YORK, DETECTIVE JOHN JACKSON,
20
21                   Defendants-Appellees,
22
23   UNITED STATES OF AMERICA, UNITED STATES SECRET SERVICE,
24   POLICE OFFICER JOHN DOES, 1 THROUGH 10 employed by the
25   NEW YORK CITY POLICE DEPARTMENT, whose names and
26   badge numbers are unknown, in their individual and official
27   capacities, NEW YORK CITY POLICE DEPARTMENT,
28
29                   Defendants.†

     *
      The Honorable Richard K. Eaton, of the United States Court of International Trade, sitting by
     designation.

                                                     1
 1   ____________________________________________________
 2
 3   FOR APPELLANT:                         WILLIAM W. COWLES, Samuel O. Maduegbuna,
 4                                          Maduegbuna Cooper LLP, New York, NY.
 5
 6   FOR APPELLEE SECRET                    JAMES R. CHO, Varuni Nelson, Assistant United States
 7   SERVICE AGENT ERIC                     Attorneys, for Loretta E. Lynch, United States Attorney for
 8   FRIEDMAN:                              the Eastern District of New York, Brooklyn, NY.
 9
10   FOR MUNICIPAL APPELLEES       JULIE STEINER, of counsel, for Zachary W. Carter,
11   CITY OF NEW YORK AND          Corporation Counsel of the City of New York, New York,
12   DETECTIVE JOHN JACKSON:       NY.
13   _____________________________________________________
14

15             Appeal from the United States District Court for the Eastern District of New York

16   (Amon, C.J.). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

17   ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

18             Plaintiff-Appellant Anthony Nzegwu (“Nzegwu”) appeals from a judgment of the district

19   court granting summary judgment on qualified immunity grounds to Defendants-Appellees

20   Secret Service Agent Eric Friedman (“Agent Friedman”) and New York City Police Department

21   Detective John Jackson (“Detective Jackson”) (collectively, “Defendants”) on Nzegwu’s false

22   arrest, malicious prosecution, and excessive detention claims under 42 U.S.C. § 1983, Bivens v.

23   Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and New

24   York law. We review orders granting summary judgment de novo, resolving all factual

25   ambiguities and drawing all reasonable factual inferences in favor of the non-moving party.

26   Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is

27   appropriate only if the moving party can show that there are no genuine issues of material fact

28   and that the moving party is entitled to judgment as a matter of law. Id. We assume the parties’

29   familiarity with the underlying facts, the procedural history, and the issues presented for review.

     †
         The Clerk of Court is respectfully requested to amend the caption as above.

                                                       2
1           I.      False Arrest

2           Nzegwu’s primary claim against Agent Friedman and Detective Jackson is a false arrest

3    claim. Claims for false arrest, whether brought under § 1983, pursuant to Bivens, or under state

4    law, are analyzed pursuant to the same standards as the applicable state law’s false arrest tort.

5    Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003). Under New York law, “to prevail on a claim

 6   of false arrest a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff

 7   was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the

8    confinement was not otherwise privileged.” Id. at 134-35 (internal quotation marks omitted). If an

9    officer has probable cause to arrest, the confinement is privileged. Id. at 135.

10          Defendants need not have had actual probable cause to arrest Nzegwu, however, in order to

11   prevail. To support a qualified immunity defense, “the defending officer need only show ‘arguable’

12   probable cause.” Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002). “Arguable probable

13   cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause

14   existed, or (b) officers of reasonable competence could disagree on whether the probable cause test

15   was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). Arguable probable cause is assessed

16   as of the time of arrest. See Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007). The evidence

17   in favor of arguable probable cause must be weighed in its totality, such that even if one piece of

18   evidence fails to establish it, arguable probable cause may nonetheless exist based on the combined

19   import of all the evidence available to the defendant at the time. See Stansbury v. Wertman, 721

20   F.3d 84, 92-95 (2d Cir. 2013). Finally, under the collective knowledge doctrine, because Agent

21   Friedman communicated his knowledge of the case to Detective Jackson, Detective Jackson will




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 1   be held to have had arguable probable cause to arrest if Agent Friedman did; the analysis for

2    both Defendants is thus the same. See United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001).1

3             The district court in this case found that Defendants had at least arguable probable cause to

 4   arrest Nzegwu. This determination was based principally on three pieces of evidence: (1) the

 5   identification of Nzegwu by Alves Griffiths, the superintendent of the building in which Nzegwu

 6   resided; (2) Nzegwu’s proximity to the wireless signals used to commit the fraud; and (3) the

 7   officers’ assessment that Nzegwu looked sufficiently like the person shown in the ATM

 8   photographs to give them probable cause, when considered in conjunction with the other evidence,

 9   to believe they were one and the same person (especially given the absence of any exculpatory

10   evidence known to them at the time). We agree with the district court’s conclusion. Griffiths was

11   a disinterested bystander who could reasonably be expected to be familiar with Nzegwu’s

12   appearance, since he worked in Nzegwu’s building. See Caldarola, 298 F.3d at 163 (holding that

13   information provided by “an identified bystander with no apparent motive to falsify” has “a

14   peculiar likelihood of accuracy” (internal quotation marks omitted)). In addition, Agent Friedman

15   and his partner, Agent Boulden, both saw Nzegwu and found his appearance similar to the man

16   shown in the ATM photographs. An officer’s determination that a suspect resembles an image

17   from surveillance video can contribute to a determination of probable cause. Stansbury, 721 F.3d at

18   90. And the officers’ determination of similarity in this case was likely more reliable than many

19   identifications based on surveillance video, because the ATM photographs captured the suspect’s

20   face straight-on and up-close. It was thus reasonable for Defendants to rely on their own

21   observation of Nzegwu as the suspect in arriving at probable cause. Furthermore, based on a

     1
       In addition, the state of mind of the arresting officer—that is, his subjective reason for believing there to be probable
     cause to arrest—is irrelevant to the probable cause determination, even if the officer’s subjective reason is foolish or
     based on improper factors. See Zellner, 494 F.3d at 369. For this reason, Nzegwu’s allegations that Defendants
     arrested him, at least in part, because of his national origin and race, are irrelevant to the legal inquiry: they go to the
     officers’ subjective reason for arresting him, not to the facts before Defendants at the time of his arrest.

                                                                  4
 1   photograph of Nzegwu taken at his deposition, which we can compare to the ATM photographs,

 2   we cannot say that the officers’ conclusion of the similarity of appearance was unreasonable. It was

 3   also reasonable for Defendants to consider Nzegwu’s proximity to the unsecured wireless signals

 4   used to commit the fraud. Although a person need not live in the vicinity of a signal in order to

 5   “piggyback” off of it, the fact that wireless signals from the same location had been used

 6   repeatedly in the commission of the fraud suggested that the fraud was committed by a person with

 7   a reason to be in the vicinity of these particular signals.

 8           In assessing whether a reasonable officer would have determined that there was probable

 9   cause to make an arrest, a court must consider the officer’s obligation to take into account

10   exculpatory as well as inculpatory evidence. See Fabrikant v. French, 691 F.3d 193, 214 (2d Cir.

11   2012). In this case, however, as the district court correctly concluded, there was no such evidence

12   prior to Nzegwu’s arrest. Nzegwu’s protestations of innocence were not “plainly exculpatory.” See

13   Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006) (“[A]n officer’s failure to investigate an

14   arrestee’s protestations of innocence generally does not vitiate probable cause.”). The district court

15   concluded that, “[v]iewing all the exculpatory and inculpatory evidence together, . . . arguable

16   probable cause existed.” Special App. 19-20. The superintendent of the building identified Nzegwu

17   as the person in the ATM photographs, and the fraudulent online transactions originated from the

18   vicinity of Nzegwu’s apartment. Two agents found Nzegwu’s resemblance to the photographs

19   sufficient to make probable, when considered in light of the other evidence, that he was the person

20   shown in the ATM photographs. We agree that, in the totality of the circumstances, arguable

21   probable cause existed for Nzegwu’s arrest. Even if another officer might have disagreed, it was

22   not unreasonable for Defendants to conclude that the circumstances had established probable cause

23   to arrest Nzegwu, and that is all that is necessary to establish a qualified immunity defense in this



                                                         5
 1   case. The district court thus properly granted summary judgment to Defendants on Nzegwu’s false

 2   arrest claim on qualified immunity grounds.

 3          II.     Malicious Prosecution

 4          Nzegwu also brought claims against Agent Friedman and Detective Jackson for malicious

 5   prosecution. A claim for malicious prosecution requires proof (1) that the defendant initiated or

 6   continued a criminal proceeding against the plaintiff, (2) that the proceeding terminated in the

 7   plaintiff’s favor, (3) that there was no probable cause for the proceeding, and (4) that it was

 8   motivated by actual malice on the defendant’s part. Jocks, 316 F.3d at 136. Even where probable

 9   cause existed for initiating a prosecution, a claim “can rest on a prosecution that is continued

10   notwithstanding the discovery of information that exculpates the defendant.” Kinzer v. Jackson,

11   316 F.3d 139, 143-44 (2d Cir. 2003). “In order for probable cause to dissipate,” allowing a

12   malicious prosecution claim to go forward despite the existence of probable cause for the

13   plaintiff’s arrest, “the groundless nature of the charge must be made apparent by the discovery of

14   some intervening fact.” Id.

15          Nzegwu argues that the eventual discovery that the computer found in his apartment could

16   not have been used to conduct the online fraud vitiated the justification for continuing the

17   prosecution. Even if that were correct, it would not justify his claim against Defendants. At the

18   point when this fact was discovered, the decision whether to continue the prosecution lay not with

19   Agent Friedman and Detective Jackson, but with the Queens County District Attorney. While the

20   Defendants could nevertheless be liable if they withheld pertinent information from the prosecutor,

21   or misrepresented it, Williams v. City of New York, 981 N.Y.S.2d 114, 117 (App. Div. 2014), there

22   is no evidence of any such thing. Once Nzegwu was arraigned, and as long as Agent Friedman did

23   not act beyond the prosecutor’s control, Agent Friedman had no power to “continue the



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 1   prosecution,” and thus cannot be held liable for malicious prosecution. The same analysis applies

 2   to Detective Jackson. Summary judgment was thus properly granted as to both.

 3          III.    Excessive Detention

 4          Nzegwu also brought an excessive detention claim specifically against Agent Friedman. To

 5   prevail on such a claim, a plaintiff must demonstrate “(1) that he has a right to be free from

 6   continued detention stemming from law enforcement officials’ mishandling or suppression of

 7   exculpatory evidence, (2) that the actions of the officers violated that right, and (3) that the

 8   officers’ conduct ‘shocks the conscience.’” Russo v. City of Bridgeport, 479 F.3d 196, 205 (2d Cir.

 9   2007). Nzegwu failed to point to any facts in the record suggesting that Agent Friedman

10   “suppressed” or “mishandled” any evidence in this case. Without proof of suppression or

11   mishandling of evidence, we need not even reach the question whether Agent Friedman’s behavior

12   “shocks the conscience” or whether the evidence was exculpatory or not. There is no allegation in

13   this case that evidence was tampered with, lost, tainted, or concealed, and no allegation supported

14   by record evidence that any evidence was withheld by Friedman from the prosecutor. Summary

15   judgment was thus appropriately granted as to Nzegwu’s excessive detention claim.

16          We have considered all of the remaining arguments raised by Plaintiff-Appellant and find

17   them to be without merit. For the reasons stated above, we AFFIRM the District Court’s April 1,

18   2014 judgment.

19

20                                                        FOR THE COURT:
21                                                        Catherine O’Hagan Wolfe, Clerk




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