The case is Jurkowitsch v. Choudhury, a summary order issued on December 8. The district court denied the police officer's motion to dismiss. Since the officer raised a qualified immunity issue, he can appeal right away, one of the few occasions you can take up an immediate appeal (normally, we have to wait for the case to be resolved all the way through for the Court of Appeals to have authority to hear the appeal). Here are the allegations:
At around 9:40 a.m. that Friday morning, Jurkowitsch entered the branch office of the bank where he has deposited his paycheck weekly for the past six years. The branch’s exterior and interior doors were unlocked, the lights were on in the lobby, customers were using the ATM, and there were employees present in the branch. Upon entering, Jurkowitsch sat down in the bank’s lobby to await assistance with depositing his check. After he had been waiting in the lobby for a brief period, six officers from the New York City Police Department arrived and, without asking Jurkowitsch to leave the bank and without asking him any questions at all, arrested him. Officer Choudhury and the other police officers took Jurkowitsch into custody, and after being held for several hours, he was eventually charged with Criminal Trespass in the Third Degree, N.Y. Penal Law § 140.10(a). The charge was later dismissed.
God knows why plaintiff was arrested. He does not have to put all the facts into the complaint. On a motion to dismiss, we go by what the plaintiff alleges. If the police have a real defense, that will have to wait for the completion of discovery and a summary judgment motion. Now, some people plead themselves out of federal court, because the complaint does not satisfy the pleading standards or the plaintiff admits to something that allows the district court to rule against him. Not here. The Court of Appeals (Livingston, Chin and Carney) puts it this way:
the facts alleged in the complaint are not sufficient to establish that Officer Choudhury had probable cause or arguable probable cause to arrest Jurkowitsch. Officer Choudhury primarily relies on the complaint’s allegation that Capital One’s report of a crime at the bank led to Jurkowitsch’s arrest. The complaint, however, alleges only that a Capital One employee called 911 several minutes after Jurkowitsch sat down in the bank to wait for help depositing his paycheck, and that the officers acted based upon Capital One’s false report of a trespass and possible burglary. The complaint lacks any description of the 911 caller’s statements or of circumstances that might have indicated the caller’s veracity or basis for knowledge.