Xu v. City of New York

Background

Xifei Xu sued the City of New York, the New York City Police Department, Officer Joseph Bozzo, Sergeant Nicholas Gulotta, and John Doe 1. The opinion states that Xu initially asserted several federal claims under 42 U.S.C. § 1983 and state-law claims, but by the summary-judgment briefing he pursued only a federal false-arrest claim and a New York malicious-prosecution claim.

On March 8, 2017, officers stopped Xu after observing that the temporary Ohio license plate on the car he was driving was torn and missing the month of expiration. Xu provided a Pennsylvania learner’s permit containing whiteout and handwritten alterations, along with a Chinese driver’s license. Xu said that the Pennsylvania Department of Transportation had given him the permit in that condition.

Officer Valitutto contacted a Pennsylvania Department of Motor Vehicles representative, who reportedly said that the agency would not issue a document altered with whiteout and would instead reprint it. Officers Bozzo and Valitutto then contacted Sergeant Gulotta, who approved the arrest. Xu was arrested for possessing a forged instrument in the third degree and received a desk appearance ticket. Officer Bozzo later drafted the criminal complaint.

The criminal case was dismissed after Xu’s counsel obtained a June 5, 2017 letter from the Pennsylvania Department of Motor Vehicles explaining that agency employees had altered the permit. Xu filed this civil action, and the defendants moved for summary judgment under Federal Rule of Civil Procedure 56.

Claims Not Addressed in Opposition

Xu stated that he opposed summary judgment only as to the federal false-arrest claim and the state malicious-prosecution claim. The court therefore treated as abandoned the state false-arrest claim, the denial-of-a-right-to-fair-trial claim, the federal malicious-prosecution claim, the claims against the City, the Brady-violation claim, and the claims against Sergeant Gulotta. The opinion says it reviewed only the two claims Xu continued to pursue.

The court also held that the New York City Police Department was a nonsuable City agency and that Xu’s claims against it had to be dismissed.

False Arrest

A false-arrest claim under § 1983 requires an intentional confinement, awareness of the confinement, lack of consent, and confinement that was not otherwise privileged. Probable cause—reasonable grounds, based on known facts, to believe that a person committed a crime—is a complete defense under the court’s stated law.

The court held that Officer Bozzo had probable cause to arrest Xu. It relied on the obvious alterations to the Pennsylvania learner’s permit, Officer Bozzo’s training that a state motor-vehicle agency would not issue a document with whiteout or changed information, Officer Valitutto’s reported call with the Pennsylvania agency, and Sergeant Gulotta’s review and approval of the arrest. The court stated that the permit’s appearance alone was sufficient to establish probable cause that Xu possessed a forged instrument, even though later evidence showed that Pennsylvania employees had made the alterations.

The court rejected Xu’s attempt to create a factual dispute through assertions that Officer Valitutto was biased and that his account of the call was unsupported. The court noted that both officers testified about the call and that phone records supported the fact that Valitutto called a number associated with the Pennsylvania Department of Motor Vehicles. Because it found probable cause, the court did not address Officer Bozzo’s alternative argument for qualified immunity.

Malicious Prosecution

Under New York law, malicious prosecution requires initiation or continuation of a criminal proceeding, favorable termination, lack of probable cause, and actual malice. The court recognized that the criminal proceeding ended in Xu’s favor, but held that probable cause defeated the claim.

The court reasoned that the defendants began the prosecution using the same information available at the time of the arrest. The later Pennsylvania Department of Motor Vehicles letter negated probable cause only after the prosecution had begun, when the District Attorney’s Office received the information and moved to dismiss the charges. Because Xu did not identify additional information learned between his arrest and the start of the prosecution that would have undermined probable cause, the defendants were entitled to summary judgment. The court did not address the defendants’ separate argument that Xu failed to show malice.

Disposition

Judge Romie Abrams granted the defendants’ motion for summary judgment. The Clerk was directed to terminate the motion at docket entry 62 and close the case.