McMillan v. Capital One Bank, N.A.

Background

Victoria McMillan sued Capital One Bank, N.A., Capital One Bank (USA), N.A., three Capital One employees, the City of New York, and NYPD Lieutenant Anthony Burgio. Her First Amended Complaint asserted twelve causes of action arising from her arrest at a Capital One branch on June 8, 2020. The only motion before the court was filed by Burgio and the City of New York, referred to together as the City Defendants; the other defendants had answered.

According to the complaint, McMillan gave a bank employee a Capital One credit card and $500 in cash to pay down her credit-card balance. She later requested a $4,800 cash withdrawal and gave the employee a note asking for the money in hundreds and asking the employee to count quietly. The employee and two other Capital One employees reported to the New York City Police Department that McMillan was attempting to rob the bank.

Responding officers confronted McMillan with firearms drawn, forcibly seized her, twisted her arms, and handcuffed her. They searched her but found no weapons or contraband. McMillan alleged that the bank employees did not tell the officers about her customer history, passport, credit-card payment, or other potentially helpful information. After McMillan was taken to a precinct, officers reviewed evidence held by Capital One, released her, and did not bring criminal charges.

Claims Against the City Defendants

McMillan asserted claims against the City Defendants for false arrest and false imprisonment under New York law and 42 U.S.C. § 1983, assault and battery under New York law and excessive force under § 1983, an unreasonable search under § 1983, and failure to intervene under § 1983.

The court applied the rule governing dismissal for failure to state a legally sufficient claim. At this stage, the court accepted well-pleaded factual allegations as true and drew reasonable inferences in McMillan’s favor, but it did not accept legal conclusions presented as facts.

False Arrest and False Imprisonment

The court held that the complaint itself established probable cause for the arrest. Probable cause means information sufficient to lead a reasonably cautious person to believe that an offense was committed by the person arrested. Three identified Capital One employees reported that McMillan was attempting to rob the bank. Because the employees were known and could be held responsible if their reports were fabricated, their reports were sufficient to establish probable cause at the time of the arrest.

McMillan argued that the officers should have investigated her explanation and obtained her credit card, bank records, and the bank’s security footage. The court rejected that argument because those materials were in Capital One’s possession and had not been provided to the officers before the arrest. The officers therefore had not deliberately disregarded facts they knew to be exculpatory. The court also ruled that an arrestee’s innocent explanation generally does not eliminate probable cause or require officers to disprove that explanation before making an arrest.

The court dismissed the false-arrest and false-imprisonment claims.

Excessive Force, Assault, and Battery

The court evaluated the federal excessive-force claim under the Fourth Amendment’s objective-reasonableness standard and applied a substantially similar standard to the state assault-and-battery claim. Officers may use some physical force to make a lawful arrest, but the force must be reasonable in light of the circumstances known to the officers at the time.

The court found that McMillan had not identified a specific physical injury. Her allegations of “physical and emotional injuries” and medical expenses were too vague. The court also ruled that the limited force alleged was reasonable because officers were responding to what they reasonably believed was an ongoing bank robbery, a potentially dangerous situation involving an unknown number of employees and customers.

The court dismissed the excessive-force and state assault-and-battery claims.

Unreasonable Search

The court ruled that the search of McMillan was permissible as a search incident to a lawful arrest because the arrest was supported by probable cause. The court added that, even without probable cause, the search could have been lawful as a limited protective search for weapons because officers reasonably suspected that McMillan was committing a crime and might be armed.

The court dismissed the unreasonable-search claim.

Failure to Intervene and City Liability

A failure-to-intervene claim requires an underlying constitutional violation that another officer could have prevented. Because the court dismissed McMillan’s other constitutional claims against the City Defendants, it also dismissed the failure-to-intervene claim.

The court concluded that there was no basis for liability against the City of New York through Lieutenant Burgio because it found no underlying claim against him. The court stated that, to the extent any state-law claims against the City Defendants remained unresolved, it declined to exercise supplemental jurisdiction over them. The court did not reach whether Lieutenant Burgio was entitled to protection from damages under qualified-immunity doctrine.

Disposition

Judge Naomi Reice Buchwald granted the City Defendants’ motion to dismiss and dismissed the complaint in its entirety as against the City Defendants. The Clerk of Court was directed to terminate the pending motion. The opinion does not dispose of claims against the Capital One defendants, who were not parties to the motion.