Creese v. City of New York ( 2020 )

19-2502
Creese v. City of New York
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 27th day of May, two thousand twenty.
PRESENT: JOHN M. WALKER, JR.,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
------------------------------------------------------------------
JANEKA CREESE, DEBRA CREESE,
Plaintiffs-Appellants,
v. No. 19-2502-cv
THE CITY OF NEW YORK, P.O. JELINSON
MARTINEZ SHIELD NO. 301, P.O. JOHN DOE
NO. 1 THROUGH 10, IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES AS EMPLOYEES
OF THE CITY OF NEW YORK,
Defendants-Appellees. ∗
------------------------------------------------------------------
FOR PLAINTIFFS-APPELLANTS: KALEN H. PRUSS, Student Counsel
(Maxwell E. Hamilton, Student
Counsel, Brian Wolfman, Bradley
Girard, on the brief), Georgetown Law
Appellate Courts Immersion Clinic,
Washington, DC.
Amy Rameau, on the brief, The
Rameau Law Firm, Brooklyn, NY.
FOR DEFENDANTS-APPELLEES: MELANIE T. WEST, Assistant
Corporation Counsel (Richard
Dearing, Devin Slack, on the brief), for
James E. Johnson, Corporation
Counsel of the City of New York,
New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Allyne R. Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED in part and REVERSED and REMANDED in part.
Plaintiffs-Appellants Janeka Creese (“Janeka”) and Debra Creese (“Debra”)
(together, the “Creeses”) appeal from a judgment of the district court (Ross, J.)
∗
The Clerk of Court is respectfully requested to amend the caption as set forth above.
2
granting summary judgment to the City of New York, Police Officer Jelinson
Martinez, and several unnamed employees of the New York City Police
Department (collectively, “Appellees”) on the Creeses’ claims for false arrest,
malicious prosecution, and deprivation of the right to a fair trial arising from their
arrests and resulting prosecutions for selling alcohol to underage persons. The
Creeses contend that the district court erred in granting summary judgment
because there were genuine disputes of material facts as to each of the claims, and
that “Martinez’s decision to arrest Debra was objectively unreasonable.” Creeses’
Br. at 25. We disagree with respect to all but Debra’s false arrest claim, as to which
we reverse the grant of summary judgment. We assume the parties’ familiarity
with the underlying facts, procedural history, and issues on appeal, to which we
refer only as necessary to explain our decision.
We review “de novo a decision on a motion for summary judgment.”
Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013).
I. The District Court Correctly Granted Summary Judgment on Janeka’s
False Arrest Claim, But Erred On Debra’s False Arrest Claim
“The existence of probable cause to arrest constitutes justification and is a
complete defense to an action for false arrest, whether that action is brought under
state law or under § 1983.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007)
3
(internal quotation marks omitted). “Probable cause to arrest exists when the
officers have knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is committing a crime.” Id.(internal quotation marks and alteration omitted). The inquiry is based on the
“totality of the circumstances.” Calamia v. City of New York, 879 F.2d 1025, 1032 (2d
Cir. 1989). In determining whether an officer had probable cause, we may consider
only “those facts available to the officer at the time of the arrest and immediately
before it.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (emphasis omitted)
(quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)).
Even in the absence of probable cause, however, a police officer may be
“entitled to qualified immunity where ‘(1) his conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known, or (2) it was “objectively reasonable” for him to believe that his
actions were lawful at the time of the challenged act.’” Jenkins, 478 F.3d at 87(quoting Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001)). In the context of a false
arrest claim, a defendant has qualified immunity “if there was ‘arguable’ probable
cause at the time of arrest – that is, if ‘officers of reasonable competence could
4
disagree on whether the probable cause test was met.’” Id. (quoting Lennon v.
Miller, 66 F.3d 416, 423–24 (2d Cir. 1995)). Arguable probable cause is not “‘almost’
probable cause,” id., but instead exists when “a reasonable police officer in the
same circumstances and possessing the same knowledge as the officer in question
could have reasonably believed that probable cause existed in the light of well
established law,” Cerrone, 246 F.3d at 202–03 (quoting Lee v. Sandberg, 136 F.3d 94,
102 (2d Cir. 1997)).
A. Arguable Probable Cause Supported Janeka’s Arrest
The parties agree that Martinez was aware of the following information at
the time he arrested Janeka: (1) Janeka was working as a bartender at Café Omar
when Martinez arrived to conduct a business inspection; (2) Janeka was standing
inside the bar when Martinez approached the bar area; and (3) N.D., who was
standing inside Café Omar with a cup of alcohol, admitted to Martinez that he was
under the age of 21. No party has cited to us any case addressing whether probable
cause to arrest the bartender exists under these circumstances, and we have found
none. Nevertheless, viewing this evidence in the light most favorable to Janeka
and leaving aside N.D.’s in-person identification – which is disputed – we
conclude that Martinez is entitled to qualified immunity because arguable
5
probable cause supported Janeka’s arrest.
Martinez was “entitled to draw reasonable inferences from the facts [he]
possess[ed] at the time of [the] seizure based upon [his] own experiences.” Id. at
203. A reasonable officer in Martinez’s circumstances possessing the same
knowledge could have reasonably believed that probable cause existed to arrest
Janeka. Officers are entitled to draw “common-sense conclusions” based on the
totality of the circumstances and their experiences. District of Columbia v. Wesby,
138 S. Ct. 577, 587 (2018) (internal quotation marks omitted). It was reasonable for
Martinez to believe that Janeka had provided N.D. with the alcoholic beverage he
was holding because she was working as a bartender that night and was behind
the bar when Martinez was conducting the inspection. See Cerrone, 246 F.3d at 203.
Although it is of course conceivable that N.D. could have acquired the alcohol
from another source, “the fact that an innocent explanation may be consistent with
the facts alleged does not negate probable cause.” Panetta, 460 F.3d at 395 (internal
quotation marks and alterations omitted). The question is simply whether an
officer in Martinez’s position could have reasonably believed that Janeka was the
responsible party. See Cerrone, 246 F.3d at 202–03. Based on the undisputed
circumstances, it was not objectively unreasonable for Martinez to have believed
6
that probable cause existed with respect to Janeka, the lone bartender behind the
bar in the very establishment where an underage patron was standing with an
alcoholic beverage.
B. A Genuine Dispute of Material Fact Exists Regarding
Debra’s False Arrest Claim
On this record, and viewing the evidence in the light most favorable to
Debra, we conclude that a genuine dispute of material fact exists regarding
whether B.A. identified Debra as the person who sold him alcohol at Café Omar.
Although Martinez testified that B.A. identified Debra, he also testified that N.D.
identified Janeka, a fact that N.D. denied during his deposition. 1 Moreover,
Martinez failed to document B.A.’s identification of Debra at the time of the arrest.
These facts, if believed, would undermine Martinez’s account of the in-person
identifications at Café Omar, and absent B.A.’s identification of Debra, the
remaining facts available to Martinez at the time of the arrest – that Debra
remained outside the bar at all times and was merely sitting in close proximity to
the bar and Janeka – were insufficient to support a reasonable inference that Debra
was responsible for selling alcohol to an underage customer. See id. at 203.
1The Creeses did not take a deposition from B.A., presumably because, as a foreign national, he
was no longer in the country.
7
Therefore, Appellees were not entitled to summary judgment on Debra’s false
arrest claim. See Kroemer v. Guglielmo (In re Guglielmo), 897 F.2d 58, 63 (2d Cir.
1990).
II. The District Court Properly Granted Summary Judgment
on Debra’s Unasserted Malicious Prosecution Claim
Debra maintains that the district court erred in granting summary judgment
to Appellees “on the merits of [her unasserted] malicious-prosecution claim”
without “grant[ing] [her] leave to correct” the complaint; she further contends that
“the court incorrectly held that [Appellees] were entitled to qualified immunity
for prosecuting [her].” Creeses’ Br. at 42. We disagree.
“[C]laims for malicious prosecution under § 1983 are ‘substantially the
same’ as claims for ‘malicious prosecution under state law.’” Lanning v. City of
Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018) (quoting Jocks v. Tavernier, 316 F.3d 128,
134 (2d Cir. 2003)). To prevail on a claim for malicious prosecution under New
York law, a plaintiff must establish that “(1) the defendant either commenced or
continued a criminal proceeding against him; (2) that the proceeding terminated
in his favor; (3) that there was no probable cause for the criminal proceeding; and
(4) that the criminal proceeding was instituted in actual malice.” Conway v. Village
of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984) (internal quotation marks omitted).
8
Obviously, the existence of probable cause is sufficient to defeat a malicious
prosecution claim. Moreover, an officer is entitled to qualified immunity if there
was arguable probable cause to charge the plaintiff. See, e.g., Betts v. Shearman, 751
F.3d 78, 82–83 (2d Cir. 2014); Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009). In
the context of a malicious prosecution claim, arguable probable cause exists where,
accounting for any new information learned subsequent to an arrest, “it was not
manifestly unreasonable for [the defendant officer] to charge [the plaintiff]” with
the crime in question. Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996).
At the time that Debra’s prosecution was initiated, Appellees had acquired
additional information supporting the filing of criminal charges against her.
Specifically, B.A. provided police officers with a sworn affidavit, in which he
stated that he was under 21 and paid $10 for an alcoholic beverage to a woman
whom he described as an “old lady” who was 5’5”. App’x at 278. It is also
undisputed that Debra is 5’6” – shorter than Janeka, who is 5’8” – and that she was
64 years old at the time of her arrest. Given the description provided by B.A.,
coupled with the fact that B.A.’s sworn statement contains additional “indicia of
reliability” because it acknowledges “that any false statements made to [police]
subjected [him] to criminal penalties,” Panetta, 460 F.3d at 397, the district court
9
did not err in granting summary judgment on Debra’s unasserted malicious
prosecution claim based on the existence of arguable probable cause.
III. The District Court Properly Granted Summary Judgment to Appellees
on the Creeses’ Fair Trial Claims
The Creeses last assert that the district court erred by granting summary
judgment to Appellees on their fair trial claims. We disagree.
A plaintiff is deprived of her constitutional right to a fair trial if (1) an
investigating official (2) fabricates evidence (3) that is likely to influence a jury’s
decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers
a deprivation of liberty as a result. See Jocks, 316 F.3d at 138; see also Zahrey v. Coffey,
221 F.3d 342, 349 (2d Cir. 2000) (holding that the “deprivation of liberty of which
[plaintiff] complains [must] be shown to be the result of [defendant’s] fabrication
of evidence”).
A. Janeka’s Fair Trial Claim Fails
Janeka contends that Martinez fabricated N.D.’s identification at Café Omar
and pressured N.D. to provide a false account in his affidavit. But even if N.D.’s
identification at Café Omar was a fabrication, there was at least arguable probable
cause to arrest Janeka based on her role as a bartender, N.D.’s proximity to the bar,
and his admission that he was under 21 and in possession of alcohol. Thus, the
10
deprivation of liberty caused by Janeka’s arrest was supported by probable cause,
and Janeka identified no “separate harm” that the alleged fabrication of N.D.’s
identification of Janeka at Café Omar caused. Ganek v. Leibowitz, 874 F.3d 73, 91
(2d Cir. 2017).
Nor does N.D.’s deposition demonstrate that his affidavit was coerced or
fraudulent. In fact, N.D. expressly disclaimed that he “lied anywhere” in the
affidavit, App’x at 172–73, and N.D.’s assertion that he was given “instructions,”
id. at 182, to complete the affidavit so that he could be released quickly does not
support the inference that the officers told him the specific – and false –
information to write in the affidavit, see id. at 174 (testifying that he “do[esn’t]
recall” being told what to write on the form). N.D.’s testimony, therefore, does not
create a genuine dispute regarding whether he was forced to fabricate his affidavit.
To be sure, viewing the testimony in the light most favorable to Janeka, one
could argue that an officer at the precinct provided N.D. with Janeka’s height as
he was filling out the affidavit. Id. at 185 (testifying that it was “fair to say that
someone gave [him] [Janeka’s] height”). Janeka nevertheless fails to demonstrate
how an officer’s provision of her height to N.D. deprived her of the right to a fair
trial by causing her to suffer a deprivation of liberty. See Zahrey, 221 F.3d at 349.
11
Again, since there was at least arguable probable cause to arrest Janeka based on
her role as a bartender, N.D.’s proximity to the bar, and N.D.’s admission that he
was under 21 and in possession of alcohol, and since N.D. later completed a sworn
affidavit under penalty of perjury in which he identified a person matching
Janeka’s general description as the person who sold him alcohol, the officer’s
purported provision of Janeka’s height cannot be said to have caused a further
deprivation sufficient to give rise to a claim for the denial of the right to a fair trial.
See Ganek, 874 F.3d at 90.
B. Debra’s Fair Trial Claim Also Fails
Debra’s fair trial claim fails for the same reasons that her malicious
prosecution claims failed – namely, she proffers no record evidence suggesting
that any aspect of the evidence implicating her was fabricated. Instead, the record
demonstrates that B.A. signed a sworn affidavit in which he attested that an “old
lady” matching Debra’s general description sold him alcohol. See App’x at 278.
Consequently, the district court properly granted summary judgment to
Appellees on Debra’s claim.
* * *
12
We have considered the Creeses’ remaining contentions and conclude that
they are without merit. For the foregoing reasons, the judgment of the district
court is AFFIRMED in part and REVERSED in part and REMANDED for further
proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
13