14-4089
Markman v. City of New York

                              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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on the
2nd day of November, two thousand fifteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         DENNY CHIN,
                     Circuit Judge,
         P. KEVIN CASTEL,
                     District Judge.*
________________________________________________

MIKHAIL MARKMAN,

            Plaintiff-Appellant,

                    v.                                         No. 14-4089-cv

CITY OF NEW YORK, POLICE OFFICER JESSI
D’AMBROSIO, Shield #16123, SERGEANT DHANAN
SAMINATH, Tax #935678,

            Defendants-Appellees,

POLICE OFFICERS “JOHN DOES” #1-9, individually and


        *
         Hon. P. Kevin Castel, United States District Judge for the Southern District of New
York, sitting by designation.
in their official capacities (the name John Doe being
fictitious, as the true names are presently unknown),

         Defendants.**
________________________________________________

For Plaintiff-Appellant:                          Ameer Benno, New York, New York.

For Defendants-Appellees:                         Victoria Scalzo and Richard Paul Dearing, for
                                                  Zachary W. Carter, Corporation Counsel of the
                                                  City of New York, New York, New York.


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

   ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED IN PART and

VACATED IN PART, and the case is REMANDED.

   Plaintiff-Appellant Mikhail Markman appeals from an October 2, 2014 grant of summary

judgment (Cogan, J.), which dismissed all of Markman’s claims. We assume the parties’ familiarity

with the underlying facts, procedural history, and the issues on appeal.

   We review de novo a grant of summary judgment, drawing all factual inferences in favor of the

nonmovant. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The

district court found that the defendants’ arrest and prosecution of Markman were supported by

probable cause, so it dismissed Markman’s claims under 42 U.S.C. § 1983 for false arrest and

malicious prosecution. For these claims, probable cause “is a complete defense.” Weyant v. Okst,

101 F.3d 845, 852 (2d Cir. 1996) (internal quotation marks omitted).




       **
            The Clerk of Court is directed to amend the caption.

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   We affirm the dismissal of these claims on the alternative grounds of qualified immunity. See

Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014) (“It is well settled that

this Court may affirm on any basis for which there is sufficient support in the record, including

grounds not relied on by the district court.” (internal quotation marks omitted)). “[Q]ualified

immunity shields government employees acting in their official capacity from suits for damages

under 42 U.S.C. § 1983, unless their conduct violated clearly established rights of which an

objectively reasonable official would have known.” Lowth v. Town of Cheektowaga, 82 F.3d 563,

568–69 (2d Cir. 1996). An officer 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).

   We find that the officers who arrested and initiated prosecution of Markman had arguable

probable cause to believe that he unlawfully possessed a loaded weapon in violation of New York

Penal Law section 265.03. This case is somewhat unusual because the elements of the crime were

all presented to the officers by Markman himself, who called them to his car to report a possible

explosive underneath it as well as a gun and ammunition in the trunk. New York Penal Law section

265.20 enumerates exemptions to the crime of unlawful possession, including for police officers,

military servicemembers, and persons “voluntarily surrendering such weapon, . . . provided that such

surrender shall be made . . . in accordance with such terms and conditions as may be established by

[the] superintendent, sheriff, police force or department” to whom the weapon is surrendered. N.Y.

Penal Law § 265.20(a)(1)(f). Markman argues that because he called the police to report that a


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weapon had been left in his trunk by two people who had also possibly planted an explosive under

his car, the officers lacked probable cause to arrest him because he qualified for the innocent-

possession exemption of section 265.20. We agree with Markman that an officer would lack

probable cause to arrest if the arrestee’s entitlement to a statutory exemption were so plain that no

reasonable officer could think otherwise. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)

(in making a probable-cause determination, “an officer may not disregard plainly exculpatory

evidence”); see also Jocks v. Tavernier, 316 F.3d 128, 135–36 (2d Cir. 2003). For example, without

additional facts, an officer would lack probable cause to arrest a servicemember in uniform for

possessing a loaded weapon. See N.Y. Penal Law § 265.20(a)(1)(d).

   But here, reasonable officers could disagree about whether Markman was entitled to the statutory

exemption. When the officers arrived at his vehicle, they found no explosive underneath it, no

evidence of tampering, and a gun and ammunition in a closed trunk to which only Markman had

access. In short, Markman’s claim that others had left or planted the gun in his trunk was subject to

objectively reasonable skepticism. Because the elements of the crime of unlawful possession were

met and the exemption was not undebatably applicable, the arresting officers had at least arguable

probable cause to arrest Markman and initiate prosecution. They are therefore entitled to qualified

immunity for his claims for false arrest and malicious prosecution.

   Markman also appeals the dismissal of his claim that the police unconstitutionally seized his

vehicle. He argues that the district court erred by finding that this claim was foreclosed by the

defendants’ compliance with the requirements articulated by Krimstock v. Kelly, 306 F.3d 40 (2d

Cir. 2002), because the claim, in Markman’s view, should have been analyzed under the Fourth

Amendment instead of the Fourteenth. But the Krimstock Court reached its “conclusion in light of


                                                 4
the dictates of the Fourth and Fourteenth Amendments.” Id. at 48 (emphasis added). We discern no

error in the district court’s dismissal of this claim.

    On one final matter, we cannot affirm. In a footnote, the district court stated: “[P]laintiff also has

asserted claims for . . . unspecified violations of the New York State Constitution. The parties’

summary judgment papers have not addressed these claims. . . . The Court takes plaintiff’s

unspecified civil rights claims to be withdrawn or subsumed by the rulings in this decision.” Special

App. 9 n.5 (emphasis added). Under Rule 56(f)(2) of the Federal Rules of Civil Procedure, it is

permissible for a district court to grant summary judgment on “grounds not raised by a party,” but

only “[a]fter giving notice and a reasonable time to respond.” See Willey v. Kirkpatrick, 801 F.3d

51, 62–63 (2d Cir. 2015). The district court here gave no notice of its intention to grant summary

judgment on grounds that the defendants did not raise in their briefing below. Accordingly, the grant

of summary judgment on Markman’s non-federal claims was in error. Of course, having correctly

dismissed Markman’s federal claims, the district court may, on remand, decline to exercise

supplemental jurisdiction over his state claims and dismiss them without prejudice to Markman’s

ability to pursue them in state court.

    We have considered Markman’s remaining arguments and find them to be without merit. For

the reasons stated herein, the judgment of the district court is AFFIRMED IN PART and

VACATED IN PART, and the case is REMANDED.

                                                    FOR THE COURT:
                                                    CATHERINE O’HAGAN WOLFE, CLERK




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