# Vett v. City Of New York

> District Court, S.D. New York · January 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10337725

## Case

- **Court:** District Court, S.D. New York
- **Decided:** January 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10337725

## Opinion text

It is for this reason that I am requiring Plaintiff to file an amended complaint within 21 days alleging facts
on certain dismissed claims, or against certain dismissed Defendants, that would at the very least give rise to a
reasonable expectation that discovery would reveal evidence of the truth of those allegations. Right now, the pleading
contains no such factual allegations, and I will not allow this case to go forward in the hope that a fishing expedition
will reveal some reason to sue those Defendants on those counts.
12

An arrest is privileged if it is based on probable cause. Jenkins v. City of New York, 478
F.3d 76, 84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and _
is a complete defense to an action for false arrest”); Wevant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996) (“probable cause ... is a complete defense to an action for false arrest”). Defendants move
to dismiss Plaintiff's claim for false arrest under federal law on the ground that Plaintiff's arrest
was privileged because it was supported by probable cause.
“Probable cause to arrest exists under federal law ‘when the authorities have knowledge
or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be arrested.’” Smith v. Edwards, 175
F.3d 99, 106 (2d Cir.1999) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 □□□
Cir.1991)). “An arresting officer has probable cause when the officer has “knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime.’” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015) (quoting
Weyant, 101 F.3d at 852).
The existence of probable cause is an affirmative defense, which is normally asserted by a
defendant in his answer to the complaint.
But “courts may grant a pre-answer motion to dismiss on the basis of an affirmative defense
where such defense appears on the face of the complaint.” Silver vy. Kuehbeck, 217 F. App’x 18,
22 (2d Cir. 2007); Singer v. Fulton County Sheriff, 63 F.3d 110, 119 Qd Cir.1995) (probable cause
as an affirmative defense may be demonstrated by facts admitted in the complaint). In Si/ver, for
example, the Second Circuit reviewed the grant of a motion to dismiss a false arrest claim de nevo
and found that the complaint “on its face support[ed] a finding” that the officer had probable cause

13

to arrest the plaintiff because the “undisputed facts clearly establish[ed] the elements of aggravated
harassment,” the crime for which the plaintiff had been arrested. Silver, 217 F. App’x at 22.
Defendants argue that the Arresting Officers had probable cause to arrest Plaintiff for a
crime — albeit not necessarily for the crime with which he was charged. Defendants argue that,
based on the facts as alleged in the Complaint, the Arresting Officers had probable cause to arrest
Plaintiff for possession of an imitation pistol in violation of New York City Administrative Code
10-131(g)C1). As the reader already knows, Plaintiff was actually charged with criminal possession
ofa firearm, not with unlawful possession of an imitation pistol.
But the Court agrees with Defendants that the viability of Plaintiff's Section 1983 false
arrest claim depends on whether probable cause existed to arrest him for any crime, not whether
probable cause existed to arrest him for the crime ultimately charged. Jaegly v. Couch, 439 F.3d
149, 154 (2d Cir. 2006).
Accordingly, if the facts alleged in the Complaint sufficiently demonstrate that the
Arresting Officers had probable cause to arrest Plaintiff for possessing an imitation pistol, then
Plaintiff does not and cannot state a Section 1983 claim for false arrest. For the purpose of deciding
this motion, the Court assumes that the arresting officer Defendants knew only what the Complaint
states they saw or heard about the conduct at issue.
Defendants say that the Arresting Officers (Taylor, Tejada and Mauceli) had probable
cause to arrest Plaintiff for a violation of Section 10-131(g)(1) of the NYC Administrative Code,
which provides: “It shall be unlawful for any person to sell or offer for sell, possess or use or
attempt to use or give away any toy or imitation firearm which substantially duplicates or can
reasonably be perceived to be an actual firearm.” Admin. Code § 10-131(g)(1)}. Defendants argue
that charges have been upheld for criminal possession of an imitation firearm “when, for example

i4

a defendant was found in possession of an inoperable BB gun that ‘substantially duplicated’ a real
firearm,” as was the case in Matter of Tilar M., 969 N.Y.S. 2d 806 (N.Y. Fam. Ct. 2013).
But Plaintiff does not plead that the Arresting Officers found him in possession of an
inoperable gun that substantially duplicated a real gun. On the contrary, the Complaint alleges
that Officer Taylor arrived at the prop room in the Minskoff Theater and “seized a small part of a
3D printed plastic prop of a revolver . ... that was in the process of printing.” Compl. { 17
(emphasis added),
Based on the facts as alleged in the Complaint, the Arresting Officers had no reason to
suspect that Plaintiff was in possession of an imitation firearm that substantially duplicated or
could reasonably he perceived to be an actual firearm. Plaintiff was in the process of printing only
part of the prop gun (Compl. 417); it is not the case that the Arresting Officers observed Plaintiff
printing a complete imitation firearm, or anything that substantially duplicated or could reasonably
be perceived to be an operable firearm — a gun.
Defendants point out that, while Section 10-131(g) provides an exception to the violation
for “any toy or imitation firearm that will be used only for or in the production of television
programs or theatrical or motion picture presentations. . ..” Admin. Code § 10-131(2)(b), the
exception cannot be invoked in this case, because “even though plaintiff was employed by a
theatrical company, he does not allege that he intended to use the gun in any theatrical” production.
Mot. at 10.
Defendants are correct that Plaintiff has not pleaded facts tending to show that his conduct
would fall within the exception to the violation; indeed, as noted above, Plaintiff does not allege
that he was printing a prop gun to be used in The Lion King (most likely because he cannot).

15

But this is of no moment. Plaintiff is not seeking to take advantage of any exception to the
Administrative Code. The issue is whether the officers had probable cause to arrest Plaintiff,
based solely on the facts as plead in the Complaint. All that Plaintiff alleges in his Complaint that
the Arresting Officers arrived at Plaintiffs place of work — the theater prop room where Plaintiff
created props for the Broadway production — and found him in the process of printing one part for
something that might eventually, when and if completed, resemble a real gun.
There is obviously more to the story here; a great deal of relevant information was left out
of Plaintiffs complaint. I suspect that was deliberate; the Complaint in this case strongly smells
of what is known as “artful pleading.” Artful pleading is, as is well known, disfavored; indeed,
“Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful
pleading.” Harlow v, Fitzgerald, 457 U.S. 800, 808 (1981). It may be that, based on the
circumstances leading up to the arrest or on credible information available to the Arresting Officers
at that time, probable cause did exist to arrest Plaintiff — but those facts were omitted from the
Complaint,
But at this juncture, | am limited to the pleaded facts. I cannot conclude that probable cause
is demonstrated on the face of Plaintiff's Complaint.
Defendants did not argue, in the alternative, that the Arresting Officers are entitled to
qualified immunity because “arguable probable cause” existed for the arrest. The Court will not
make that argument for them, or belatedly allow them to amend their motion to make it. The issue
of arguable probable cause in connection with the actions of the Arresting Officers may well need

* An officer who makes an arrest that is lacking in probable cause is nonetheless entitled to qualified immunity
if officers of reasonable competence in the same circumstances and with the same knowledge could disagree whether
probable cause existed; such a mistaken, but objectively reasonable belief is referred to as “arguable probable cause.”
Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (there is “arguable probable cause” at the time of arrest if
officers of reasonable competence could disagree on whether the probable cause test is met).
16

to be addressed later in the case, after the facts are developed. But there is no reason to address it
today.
B. Sergeant Kelly’s Motion to Dismiss is Denied.
Defendants also move to dismiss Plaintiff's 1983 false arrest claim specifically as against
Sergeant Kelly, arguing first that Plaintiff does not allege that Sergeant Kelly actually arrested
him. The Complaint mentions Sergeant Kelly only once, and only in so stating that Plaintiff's
“arrest was approved by Sergeant James Kelly.” Compl. J 18. Defendants urge that Plaintiff failed
to allege that Sergeant Kelly intended to confine Plaintiff— intent to confine being an element of
false arrest under New York law. Mot. at 6 (quoting Singer v. Fulton County Sheriff, 63 F.3d 110,
118 (2d Cir. 1995)). Defendants also argue that Sergeant Kelly had no personal involvement in the
arrest and was not directly involved in any alleged constitutional violation, and that, “Allegations
that [a defendant] merely participated in Plaintiff's arrest are not sufficient.” Jd. (quoting Cooper
v. City of N_Y., 17-CV-1517 (NGG) (RLM), 2019 U.S. Dist. LEXIS 131572, at *20-21 (E.D.NLY.
Aug. 5, 2019)).
Plaintiff counters that an officer is personally involved in an arrest when he intentionally
participates in it, regardless of whether that participation is direct or indirect. Opp. at 3. Plaintiff
is correct.
The Complaint alleges that Sergeant Kelly “approved” Plaintiff's arrest. Compl. 718. □□□
prior to actually arresting Plaintiff, the Arresting Officers sought guidance from a superior officer,
who told them to go ahead, that would constitute personal involvement. O'Neill v. Krzeminski,
839 F.2d 9, 11 (2d Cir. 1988). Allegations that Sergeant Kelly “merely participated” in Plaintiff's
arrest are, in fact, sufficient to state a claim, because participation in some form is all that is
required for liability to attach, and facts are alleged that, if proven, tend to prove his participation.

17

Defendants quote Cooper v. City of New York out of context to support their argument that
“mere participation” is insufficient; that quote pertains to pleading a malicious prosecution claim,
not a false arrest claim. The full quote from that case is:
Accordingly, to state a malicious prosecution claim against any individual officer here,
Plaintiff must allege that that officer engaged in such conduct. Allegations that he merely
participated in Plaintiffs arrest are not sufficient.
Cooper v. City of N_Y., 2019 U.S. Dist. LEXIS 131572, at *20-21 (quoting Myers v. Moore, 326
F.R.D. 50, 60 (S.D.N.Y. 2018)) (emphasis added). The case is not apposite and should not have
been cited by Defendants for the proposition that Sergeant Kelly could not be held liable for false
arrest; Cooper holds than an arresting officer cannot for that reason be held to have participated in
a malicious prosecution, which is something entirely different.
That Sergeant Kelly approved Plaintiff's arrest but was not present at the scene to
physically execute Plaintiffs arrest does not negate his participation in the arrest or that he
intended to cause Plaintiff to be confined. Plaintiff can establish intentional confinement by
showing that Sergeant Kelly “affirmatively procured or instigated [Plaintiffs] arrest” by another.
King v. Crossland Say. Bank, 111 F.3d 251, 255 (2d Cir.1997). So Defendants are incorrect in
their argument that Sergeant Kelly cannot be held liable because he did not physically participate
in arresting Plaintiff.
And Defendants’ assertion that Sergeant Kelly did not intend to confine Plaintiffis directly
contradicted by the allegation in the Complaint that Sergeant Kelly was the one who signed off on
Plaintiff's arrest. Compl. 718. Plaintiffs allegations are sufficient to support an inference that
Sergeant Kelly actively participated in his arrest with an intent to confine Plaintiff, because a
supervising officer who authorizes officers on the scene to make an arrest is indicating that he
believes there is probable cause to make the arrest and he intends to cause the plaintiff's
confinement. Harris v. City of New York, No. 15-CV-8456 (CM), 2017 WL 6501912, at *4
18

(S.D.N.Y. Dec. 15, 2017) (holding that a police sergeant could be held liable for false arrest
because he “participated in the arrest by ‘verifying’ it,” which is “part of the arrest process”); see
also Alicea v. City of New York, 2016 WL 2343862, at *4, 6 (S.D.N.Y. May 3, 2016) (supervising
officer who verified an arrest could be held lable for false arrest).
Plaintiff argues that, even when an officer does not actively participate in an arrest, he may
nonetheless be liable under § 1983 for his failure to intervene; all “law enforcement officials have
an affirmative duty to intervene to protect the constitutional rights of citizens from infringement
by other law enforcement officials in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 Qd
2014). An officer who fails to intercede is liable for the preventable harm caused by the actions
of the other officers where that officer has reason to know that any constitutional violation has
been committed by another officer. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
But I need not find that Plaintiff has pleaded a viable failure to intervene claim (a claim
that is most certainly not apparent from the facts pleaded in the Complaint) in order to deny □□□
motion to dismiss.
Sergeant Kelly argues in the alternative that he is entitled to dismissal from Plaintiff's 1983
false arrest claim on the ground of qualified immunity. Mot. at 6.
Without knowing more about the facts, I have to disagree.
In Mckenna v. Wright, 386 F. 3d 432, 436 (2d Cir. 2004), the Second Circuit held that there
is no reason why a “qualified immunity defense may not be asserted on a Rule 12(b)(6) motion as
long as the defense is based on facts appearing on the face of the complaint.” At the same time,
the Court of Appeals emphasized that, “Of course, a defendant presenting an immunity defense on
a Rule 12(b)\(6) motion instead of a motion for summary judgment must accept the more stringent
standard applicable to this procedural route.” /d at 436. What that means is that the facts

19

supporting a qualified immunity defense must appear on the face of a complaint, and such a motion
may be granted only where “it appears beyond a reasonable doubt that the plaintiff can prove no
set of facts in support of his claim that would entitle him to relief.” Jd. (quoting Citlbank, N_A. v.
Corp., 968 F.2d 1489, 1494 (2d Cir.1992)), At this stage, Plaintiff “is entitled to all
reasonable inferences from the facts alleged, not only those that support his claim, but also those
that defeat the immunity defense.” /d.
Plaintiff indeed urges that the Complaint “does not allege that Kelly had information that
would entitle him to qualified immunity.” Opp. at 4.
He is again correct.
Neither the text of the pleading nor any document attached thereto demonstrates that
Sergeant Kelly had arguable probable cause to approve Plaintiff’s arrest. Barnett v. Mount Vernon
Police Dep't, 523 F. App’x 811, 813 (2d Cir. 2013). Arguable probable cause exists if it was
objectively reasonable for Sergeant Kelly to believe that probable cause existed or if officers of
reasonable competence could disagree on whether probable cause existed. Jenkins, 478 F.3d at 87.
To decide whether an officer’s conduct was objectively reasonable, “we look to the information
possessed by the officer at the time of the arrest, but we do not consider the subjective intent,
motives, or beliefs of the officer.” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.2010) (internal
quotation omitted).
Unfortunately for Sergeant Kelly, I have no idea what information Sergeant Kelly
possessed when he approved Plaintiff's arrest. The Complaint does not plead anything other than
that he approved Vett’s arrest. Compl. 18. Sergeant Kelly was apparently not in the prop room
when the arrest was made, and the Complaint does not plead anything about what the officers who
were on the scene (the Arresting Officers) told Sergeant Kelly in order to get him to sign off on

20

the arrest. Until the Arresting Officers and the Sergeant are deposed, the Court cannot possibly
assess whether officers of reasonable competence in Sergeant Kelly’s position could disagree on
whether probable cause existed.
While “qualified immunity should be resolved at the earliest possible stage in litigation . .

.. there is an obvious, ifrarely expressed, corollary to that principle: The immunity question cannot
be resolved before the earliest possible stage, i.e., prior to ascertainment of the truth of the plausible
factual allegations on which a finding of qualified immunity is premised,” Chamberlain Est. of
Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020) (quoting Pearson □□
Callahan, 555 U.S. 223, 232 (2009)). Otherwise, plaintiffs like Vett who endeavor to obtain relief
a violation of their constitutional rights would face a heightened pleading standard under
which they must plead not only facts sufficient to make out their claim but also additional facts to
defeat an assertion of qualified immunity. Jd. at 110.
it very may well be that Sergeant Kelly will ultimately be entitled to qualified immunity.
But that possibility is not a valid basis for granting a motion to dismiss. Chamberlain v. City of
White Plaing, 960, 3d at, 1 12. Sy
Aggordingl Défendats’ motitin 6 dismiss Plaintiff’s Section 1983 claim for false arrest
as to Sergeant Kelly is denied.

CONCLUSION
For the reasons discussed above, the following counts (and sub-counts) are DISMISSED:

□ Defendant NYPD is dismissed with prejudice from all counts,
e Count 2 is dismissed as to Defendants Officer Tejada, Officer Mauceli, Sergeant
Kelly, and John Does 1-5 with prejudice.
* Count 3 is dismissed with prejudice.

21

Count 4:
o Count 4 in its entirety is dismissed as against the City as duplicative of
Count 5.
o 4(i) Malicious Prosecution is dismissed without prejudice as to Officer
Tejada, Officer Mauceli, and Sergeant Kelly.
o 4(1i) False Arrest is dismissed with prejudice as to Detective Schick.
© 4(iii) Evidence Manufacturing is dismissed without prejudice as to Officer
Tejada, Officer Mauceli, and Sergeant Kelly.
e Count 5 is dismissed without prejudice.
e Count 6 is dismissed with prejudice.
Plaintiff has twenty-one days from the date of this decision and order to file an amended
complaint; otherwise, the various without prejudice dismissals will be converted to with prejudice
dismissals. Defendants should file answers to the Complaint; the parties must submit a Case
Management Order proposal by February 3, 2022, or the Court will order them in for a Rule 16
Conference.
This constitutes the decision and order of the Court. It is a written opinion. The Clerk of
Court is respectfully directed to terminate the motion at D cket No. 21. .

Dated: January 5, 2022 [ilte Wu th

US.DJ.
BY ECF TO ALL COUNSEL

22

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10337725. Public record. Not legal advice.