23-1168 Brandon v. Khan 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of September, two thousand twenty-four.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

FRANK BRANDON,

Plaintiff-Appellant,

v. No. 23-1168

NYPD POLICE OFFICER TUHIN KHAN,

Defendant-Appellee. * _____________________________________

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: ALEXIS G. PADILLA, Brooklyn, NY.

For Defendant-Appellee: SUSAN PAULSON (Rebecca L. Visgaitis, on the brief), Of Counsel, for Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Lewis A. Kaplan, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the July 27, 2023 judgment of the district court

is AFFIRMED.

Frank Brandon appeals from the district court’s grant of summary judgment

in favor of police officer Tuhin Khan on Brandon’s claim pursuant to

for malicious prosecution. We assume the parties’ familiarity with the

facts, procedural history, and issues on appeal. 1

We review a grant of summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v.

Hartford Police Dep’t,

, 126–27 (2d Cir. 2013). Summary judgment is

1 The district court also granted summary judgment in favor of police officer Paul Dumanovsky

on Brandon’s section 1983 claims for false arrest and malicious prosecution, and the City of New York on his claim for municipal liability. Brandon expressly abandoned his claims against these defendants in the district court and does not press them on appeal. He also does not challenge the district court’s grant of summary judgment in favor of Khan on the false arrest claim.

2 appropriate “only when, construing the evidence in the light most favorable to the

non-movant, ‘there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Doninger v. Niehoff,

(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

The parties do not meaningfully dispute the material facts, which the district

court summarized in detail below and we briefly recount here. On November 19,

2019, Khan arrested Brandon at the scene of a car accident on suspicion of driving

while intoxicated, after an eyewitness told Khan that Brandon had driven into

oncoming traffic and struck his vehicle in a near head-on collision. Before placing

Brandon under arrest, Khan also personally observed that Brandon was unsteady

on his feet and had difficulty maintaining his balance. At the police precinct,

Brandon took a breathalyzer test that detected no alcohol on his breath. But an

officer who was state-certified as a Drug Recognition Expert (“DRE”) advised

Khan that, based on Brandon’s physical appearance and his failure to successfully

complete numerous field tests, Brandon was under the influence of a narcotic

analgesic and could not operate a vehicle safely. Later that evening, after

complaining of a headache, Brandon was transported from the precinct to the

hospital, where he remained for the next four days. While in the hospital, doctors

3 informed him that he had suffered a stroke. At some point after Brandon

returned to the precinct, another officer told Khan that Brandon had received

treatment for a stroke. That same day, sometime before or after this exchange,

Khan issued a Desk Appearance Ticket (“DAT”) against Brandon charging him

with operating a vehicle while impaired by drugs. Brandon ultimately appeared

in court “three or four” times on the charge before it was dismissed. App’x at

169–70.

On appeal, Brandon argues that the district court improperly dismissed his

claim for malicious prosecution against Khan, based on its finding that Khan had

probable cause to initiate charges notwithstanding any awareness on his part that

Brandon had suffered a stroke. We disagree.

The “existence of probable cause is a complete defense to a claim of

malicious prosecution,” Savino v. City of New York,

(2d Cir. 2003),

and an officer is entitled to qualified immunity as to that claim “if he had either

probable cause or arguable probable cause,” Dufort v. City of New York,

(2d Cir. 2017) (internal quotation marks omitted). When assessing

probable cause, we look to the facts known or reasonably believed by the officers

at the initiation of the prosecution, not the arrest. See Rothstein v. Carriere,

275, 292 (2d Cir. 2004). Nevertheless, probable cause existing at the time of an

individual’s arrest continues to support his prosecution and only dissipates if “the

groundless nature of the charges [has been] made apparent by the discovery of

some intervening fact.” Lowth v. Town of Cheektowaga,

(2d Cir.

1996); see also Betts v. Shearman,

(2d Cir. 2014) (“[P]robable cause is

a defense to a claim of malicious prosecution if it is not later nullified by

information establishing the defendant’s innocence.”).

Arguable probable cause, in turn, “exists if officers of reasonable

competence could disagree on whether” probable cause exists. Dufort,

(internal quotation marks omitted). In other words, an officer is entitled to

qualified immunity “unless no reasonably competent officer could have

concluded, based on the facts known at the time[,] . . . that probable cause existed.”

Figueroa v. Mazza,

(2d Cir. 2016) (internal quotation marks

omitted); see also Dancy v. McGinley,

(2d Cir. 2016) (“[Q]ualified

immunity protects all but the plainly incompetent or those who knowingly violate

the law.” (internal quotation marks omitted)).

Brandon does not dispute that Khan had probable cause to support his

arrest. Instead, he primarily argues that the question of whether that probable

5 cause had dissipated at the time Khan issued the DAT, given the intervening

information about Brandon’s stroke, “is one for a jury to decide.” Brandon Br. at

8. This argument is deficient for two reasons. First, we have long recognized

that “where there is no dispute as to” the facts underpinning the probable cause

determination, “the existence of probable cause is a question of law for the court.”

Walczyk v. Rio,

(2d Cir. 2007); see also Zellner v. Summerlin,

(2d Cir. 2007) (“The ultimate question of whether . . . officers of

reasonable competence could disagree as to the lawfulness of [their] conduct[] is

to be decided by the court.”). That is the case here, where the district court

resolved a factual gap in the record – i.e., whether Khan learned of Brandon’s

stroke before or after issuing the DAT – in Brandon’s favor and then properly

decided the question of law regarding the existence of probable cause.

Second, and perhaps more fundamentally, Brandon has not contested the

district court’s alternative holding that Khan had “arguable probable cause” to

prosecute Brandon and was therefore entitled to qualified immunity on his

malicious prosecution claim. This failure to challenge the district court’s

arguable probable cause finding is fatal to Brandon’s appeal, since he has forfeited

any argument relating to that aspect of the district court’s ruling. See Jusino v.

6 Fed'n of Cath. Tchrs., Inc.,

, 107 (2d Cir. 2022) (“[W]here a district court’s

ruling is not challenged in an appellant’s briefs on appeal, we consider any appeal

of that ruling to be forfeited.”).

In any event, even if we were to overlook Brandon’s forfeiture, we see no

error in the district court’s conclusion that Khan had, at the very least, arguable

probable cause to prosecute, based on the eyewitness’s statements, Khan’s own

observations of Brandon at the accident scene and precinct, and the DRE’s

determination that Brandon was under the influence of a narcotic analgesic. The

record contained no evidence establishing when exactly Brandon suffered his

stroke in relation to the car accident, let alone whether such information was

available to Khan at the time he issued the DAT. The fact that Brandon suffered

a stroke at some unspecified time – perhaps before, perhaps after the traffic

accident – would not have led a reasonable police officer to conclude that no

probable cause existed to proceed with the charge. And while “the failure to

make a further inquiry when a reasonable person would have done so may be

evidence of lack of probable cause,” Colon v. City of New York,

(1983), Brandon makes no attempt to explain why the general report of his stroke

required Khan to investigate further, or what an investigation of the then-available

7 information would have uncovered. In short, “even with distance and [this] new

information,” we cannot conclude in these circumstances that it was “manifestly

unreasonable” for Khan “to charge” Brandon as he did. Lowth,

; see

also Figueroa,

(“[The qualified immunity inquiry is] whether any

reasonable officer, out of the wide range of reasonable people who enforce the

laws in this country, could have determined that the challenged action was

lawful.” (emphases omitted)).

We have considered Brandon’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

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

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