Arguable probable cause attaches in gun case

The law says prohibits the unlawful possession of a loaded weapon. This law has some exceptions 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." This false arrest case implicates that law.

The case is Markman v. City of New York, a summary order decided on November 2. Plaintiff was arrested for possessing a loaded weapon after he called the police to his car to report a possible explosive underneath his vehicle and a gun and ammunition in the trunk. He says he is entitled to the innocent possession exemption under the statute. It is true, the Court of Appeals (Chin, Katzmann and Castel [D.J.]) says, that "an officer would lack probable cause if the arrestee's entitlement to a statutory exemption were so plain that no reasonable officer could think otherwise."

But that exemption does not help plaintiff. The Court of Appeals says things were not so clear-cut for Markman:

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.

For those of you who do not handle cases like this, arguable probable cause gives the police the benefit of the doubt in close cases. Arguable probable cause falls under the qualified immunity umbrella, which protects public officials and employees from suit if their actions were objectively reasonable at the time of the alleged civil rights violation.