Date: 10-27-2017

Case Style:

Case Number: 16-1715-CV

Judge: John M. Walker

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Kayla C. Bensing and Ed Schallert

Defendant's Attorney: Kathy C. Park

Description: 25 Plaintiff‐appellant Ryan Dufort appeals from a memorandum
26 and order of the United States District Court for the Eastern District
4 No. 16‐1715‐cv
of New York (Steven 1 M. Gold, M.J.)2 granting summary judgment to
2 the defendants, the City of New York and New York City police
3 officers Joseph Marotta, Jae Shim, Thomas Conforti, and William
4 Schmittgall (collectively, “Defendants”), on Dufort’s claims under 42
5 U.S.C. § 1983 and the Fourth and Fifth Amendments for false arrest,
6 malicious prosecution, and violation of due process. Dufort was
7 arrested and charged in connection with a 2006 bar brawl that left
8 one victim dead and another severely injured, but was ultimately
9 acquitted by a jury of any criminal wrongdoing.
10 The district court concluded that (1) Dufort’s false arrest
11 claims failed because his arrest was supported by probable cause; (2)
12 his malicious prosecution claims failed, both because his prosecution
13 was supported by probable cause, and the chain of causation
14 between the arrest and the ultimate prosecution was broken by the
15 District Attorney’s decision to pursue charges and the grand jury’s
16 decision to issue an indictment; and (3) his due process claims,
17 which were premised on Dufort’s assertion that the Defendants
18 intentionally suppressed or distorted exculpatory evidence at trial,
19 failed as a matter of law because the allegedly suppressed evidence
20 was elicited at trial.
2 The parties consented to have the summary judgment motion
adjudicated by a magistrate judge.
5 No. 16‐1715‐cv
We 1 conclude that the district court’s grant of summary
2 judgment as to Dufort’s false arrest and malicious prosecution
3 claims was premature, because disputed questions of material fact
4 remain regarding key aspects of the criminal investigation and
5 subsequent prosecution. We further conclude that those same
6 questions of material fact preclude a grant of qualified immunity at
7 the summary judgment stage. We agree with the district court,
8 however, that Dufort’s due process claims fail as a matter of law. We
9 therefore AFFIRM in part and VACATE and REMAND in part the
10 judgment of the district court.
11 BACKGROUND
12 Dufort’s suit stems from his arrest and prosecution in New York
13 state court on charges of murder in the second degree and
14 manslaughter in the first degree that resulted in his acquittal by a
15 jury. On this appeal, we take the facts, most of which are not in
16 dispute, in the light most favorable to the plaintiff. See Taggart v.
17 Time Inc., 924 F.2d 43, 46 (2d Cir. 1991).
18 I. The Attack
19 The story of this case began when, on October 7, 2006, Dufort
20 and four friends—Christopher Baez, Sebastian Yoon, Jeffrey Shih,
21 and John Bae—went to the Pastel Karaoke bar in Queens, New York.
22 Dufort, who was fifteen years old at the time, was wearing a
6 No. 16‐1715‐cv
maroon, zip‐1 up, hooded sweatshirt with a white “American Eagle”
2 logo on it. Earlier in the evening, Dufort and his four companions
3 had gone to a nearby construction site to gather pieces of pipe in
4 order to defend themselves “just in case” an altercation occurred.
5 Surveillance video shows Dufort entering Pastel Karaoke shortly
6 after midnight with a one‐and‐a‐half‐foot pipe concealed in his
7 sweatshirt. When they arrived at the club, the five friends met up
8 with a larger group of about twenty students from Bayside High
9 School, some of whom were affiliated with a local gang known as
10 the “Ghost Shadows.” This group spent most of the night in some of
11 the club’s private karaoke rooms.
12 At approximately 3:00 AM on the morning of October 8, a
13 separate group of teenagers—Jung Hwa Lee, Hwa Young Park,
14 Mink‐ki Shin, and In Hee Yoo—arrived at Pastel Karaoke. At 3:50
15 AM, as this group attempted to leave, Lee and Shin were attacked in
16 the central area of the bar. During the altercation, Sebastian Yoon
17 entered a private room occupied by Dufort and his friends and
18 informed them that a fight had broken out. Some of Dufort’s friends
19 ran out to participate in the fight. Dufort also left the private room
20 when the fight began, and surveillance footage shows him walking
21 down a corridor holding his length of pipe. There is no surveillance
22 footage, however, of the attack itself. Dufort claims that when he
23 entered the bar area he witnessed a group of ten to twenty men
7 No. 16‐1715‐cv
assaulting the victims, and 1 that he stepped over either Lee or Shin,
2 who was lying on the ground, in order to leave the bar. Dufort
3 maintains that he never participated in the fight, and that he never
4 used physical force against either victim. Surveillance footage shows
5 Dufort leaving the bar with a group of other young men, some of
6 whom were holding bats. One other young man in a red, button7
down shirt, who is holding a bat, is seen leaving the building
8 moments after Dufort.
9
10 II. The Criminal Investigation
11 Lee and Shin were rushed to Flushing Hospital, where Lee
12 was pronounced dead. Shin survived, but sustained a severe head
13 injury that required nine staples to close. Hwa Young Park, who had
14 witnessed part of the attack, accompanied the victims to the
15 hospital, and was interviewed there by police at approximately 5:30
16 AM. Park then accompanied the police to the 109th Precinct, where
17 she spoke with Detectives Joseph Marotta and Jae Shim. At the
18 police station, Detective Marotta showed Park surveillance video
19 and still images from the bar and asked her if she could identify
20 various individuals appearing in the footage, including Dufort, as
21 Lee and Shin’s assailants. Park replied that one of the attackers,
22 whom she had only seen from behind, was wearing a red shirt that
23 was similar in color to Dufort’s sweatshirt. However, she stated that
8 No. 16‐1715‐cv
she did not 1 recognize Dufort’s face, or any other distinguishing
2 characteristics, and that she could not see whether the jacket had any
3 logo or other insignia on it. She could only confirm that she had seen
4 a person wearing a similar colored shirt participate in the attack, and
5 that she had only seen this person from behind. In a deviation from
6 normal police procedure, Detectives Marotta and Shim did not
7 contemporaneously document Park’s statements to them in a
8 “Complaint—Follow Up Informational Report,” or “DD5” form.
9 Two other individuals who had been at Pastel Karaoke that
10 night—David Han and Eric Kim—were also questioned by Marotta.
11 Both confirmed that Dufort could be seen in the surveillance
12 footage, but neither had seen him participate in the brawl. Id. At
13 some point after the attack, police also spoke with one of Dufort’s
14 friends, Tom Yoon, who stated that Dufort had previously claimed
15 to be a member of the “Ghost Shadows” gang, and that he had tried
16 to recruit Yoon.
17 Three days after the attack, on October 11, 2006, police
18 arrested3 Dufort and brought him to the precinct, where Detectives
19 Marotta and William Schmittgall interviewed him in the presence of
3 Defendants’ brief suggests that there may be some question about
whether the arrest about which Dufort complains occurred on October 11
or later in the investigation. See Appellees’ Br. at 28–29. Dufort assumes
that October 11 is the relevant date, and, drawing all reasonable inferences
in his favor, there is no indication that he was not formally taken into
custody at that time.
9 No. 16‐1715‐cv
his parents. Dufort 1 told the detectives that he had been at Pastel
2 Karaoke the night of the attack, but that he did not participate in the
3 brawl. Later that evening, the detectives had Dufort participate in a
4 lineup. During the lineup, Dufort was wearing a maroon sweatshirt
5 that was similar or identical to the one he had worn on the night of
6 the attack. No other participant in the lineup was wearing a red
7 shirt. Park and five other witnesses were asked if they could identify
8 Dufort as one of the assailants. Park was the only witness to identify
9 Dufort as a person involved in the attack. At trial, Park admitted
10 that her identification of Dufort at the lineup was based solely on the
11 fact that Dufort was wearing a sweatshirt similar in color to the shirt
12 or jacket worn by one of Lee and Shin’s attackers.4 Dufort’s attorney,
13 William F. Mackey, Jr., who accompanied him to the lineup,
14 submitted an affidavit stating, among other things, that, while they
15 were at the precinct, an unidentified detective told him that the
16 police knew Dufort was not involved in the attack but wanted him
17 to be a witness against other individuals who were involved.
4 Park testified at a 2014 deposition that she was able to distinguish
another red‐shirted man, shown on the surveillance video leaving the bar
shortly after Dufort, from the assailant because that man had “spiky hair”
(which Dufort did not). As we discuss below, there are reasons to doubt
the reliability of that assertion; in any event, there is no indication in the
record that Park made any claim that she could distinguish Dufort from
others wearing similar clothing at the time of her lineup identification.
10 No. 16‐1715‐cv
1 Based on the surveillance video from Pastel Karaoke, and
2 Park’s identification of Dufort’s jacket, on October 13, 2006,
3 Detective Marotta swore to a criminal complaint charging Dufort
4 with second‐degree murder, first‐degree manslaughter, first‐degree
5 gang assault, and second‐degree assault.
6
7 III. The Criminal Prosecution
8 In early 2007, Assistant District Attorneys Andrea Eckhardt
9 and Michael Vozzo presented evidence to a grand jury seeking the
10 indictment of Dufort and six other defendants in connection with
11 the attack on Lee and Shin. Park’s lineup identification was the only
12 grand jury evidence directly identifying Dufort as one of the
13 assailants. Both Park and Detective Marotta, who also testified
14 regarding the lineup, indicated to the grand jury that Park had
15 identified Dufort as an assailant. Neither revealed to the grand jury
16 that the identification was based only on the color of his sweatshirt
17 nor that at least one other male seen leaving Pastel Karaoke shortly
18 after the attack wore a similarly colored shirt.5 The parties have
5 The entirety of Detective Marotta’s grand jury testimony as to Dufort is as
follows:
Q. [By ADA Eckhardt] . . . Turning your attention first to the date of October
12th of 2006, at approximately 6:45pm, at the 109 Precinct. Did you have occasion to
conduct a lineup on that date?
A. Yes, we conducted two lineups, yes.
Q. Turning your attention to the first lineup you conducted at eighteen fortyfive
hours. Was that the lineup of Ryan Dufort?
11 No. 16‐1715‐cv
introduced conflicting evidence 1 regarding whether ADAs Eckhardt
2 and Vozzo were aware that Park’s identification was based soley on
3 the color of Dufort’s clothing before they initiated the prosecution
4 against him. Jonathan Putt, another person who was present at
5 Pastel Kareoke on the night of the attack, provided testimony to the
6 grand jury placing Dufort on the scene with a pipe. Specifically, Putt
7 testified that he was in a private room with Dufort and others when
8 Sebastian Yoon entered the room and announced that a fight had
9 broken out; that Dufort had followed the others to the site of the
A. I believe it was.
Q. And did that lineup consist of six individuals holding numbers?
A. Yes.
Q. And was that lineup viewed by Miss Park?
A. Yes.
Q. Can you tell us what position Ryan Dufort occupied in the lineup at the time
it was viewed by Miss Park?
A. I, I don’t have the position.
Q. Would your lineup sheet refresh your recollection?
A. Yes.
Q. Please tell us what position he was in the lineup as it was viewed by Miss
Park?
A. Position Number 3.
Q. Is Ryan Dufort one of the subjects of this Grand Jury investigation?
A. Yes, he is.
Park’s entire grand jury testimony as to Dufort is as follows:
Q. [By ADA Eckhardt]. . . Did there come a time on October 12 of 2006, at
approximately 6:45pm that you went to the 109 Precinct to view a line‐up?
A. Yes.
Q. Did that lineup consist of six people holding numbers?
A. Yes.
Q. Did you recognize anyone from that line‐up?
A. Yes.
Q. What number did you recognize?
A. I chose number 3.
Q. What did you recognize number 3 as having done during the incident you
just described?
A. He was jumping on both victims.
12 No. 16‐1715‐cv
fight, taking a pipe with 1 him; and that when John Bae stated that he
2 had hit one of the victims and that the pipes were “really good”
3 because they did not bend, Dufort expressed his agreement.
4 Months later, on November 28, 2007, one of Dufort’s co5
defendants, Sebastian Yoon, pleaded guilty to manslaughter in
6 exchange for an agreement to provide testimony against the
7 remaining defendants. At his plea allocution, Yoon implicated other
8 assailants in the attack, but when he did not mention Dufort, ADA
9 Eckhardt asked him whether Dufort had participated in the brawl.
10 Yoon replied, “I think he punched.”
11 Dufort spent nearly five years incarcerated at Rikers Island
12 Prison Complex in New York City awaiting trial.6 In May of 2011,
13 Dufort, along with Bae, Baez, and two others, was tried for the
14 attack on Lee and Shin. Park testified at trial. She could not identify
15 Dufort in the courtroom. After the prosecutor showed Park the
16 surveillance video, she testified that she recognized Dufort in the
17 video, but that she recognized him by his clothing, rather than by his
6 We hope that shockingly long pretrial detentions like this will one soon be a
thing of the past. The recent report of the independent commission that
recommended closing Rikers Island gives us reason for optimism. See INDEP.
COMM’N ON N.Y.C. CRIMINAL JUSTICE & INCARCERATION REFORM, A MORE JUST
NEW YORK CITY (2017),
https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/595d48
d1e6f2e1e5bcaa411a/1499285717652/Lippman+Commission+Report+FINA
L+Singles.pdf.
13 No. 16‐1715‐cv
face. The 1 jury returned guilty verdicts for Dufort’s four co2
defendants and acquitted Dufort of all charges.
3
4 IV. The Present Civil Suit
5 On May 8, 2012, Dufort brought the present action against the
6 City of New York and Detectives Marotta, Shim, and Schmittgall, as
7 well as Detective Thomas Conforti and several other police officers.
8 Dufort also initially named several prosecutors as defendants, but he
9 abandoned those claims during the course of the proceedings. He
10 also substantially narrowed his claims against the remaining
11 defendants.
12 On April 10, 2015, the Defendants moved for summary
13 judgment on Dufort’s remaining claims. These included claims
14 under 42 U.S.C. § 1983 against the individual defendants for false
15 arrest, malicious prosecution, and denial of due process, as well as a
16 state law claim against the City of New York asserting a state law
17 malicious prosecution claim premised on a theory of respondeat
18 superior liability. On April 28, 2016, the district court granted the
19 Defendants’ motion for summary judgment as to all of Dufort’s
20 remaining claims, holding that there was no genuine dispute of
21 material fact regarding whether Dufort’s arrest and subsequent
22 prosecution were supported by probable cause. The district court
23 also justified granting summary judgment on Dufort’s malicious
14 No. 16‐1715‐cv
prosecution claim 1 on the independent ground that Dufort could not
2 show that the defendant police officers “caused” his prosecution,
3 because the District Attorney’s decision to prosecute and the grand
4 jury’s indictment interrupted the chain of causation between the
5 allegedly wrongful arrest and trial. The district court granted
6 summary judgment on Dufort’s due process claim, because Dufort
7 had not proved that the evidentiary record at his criminal trial was
8 unfairly distorted.
9 Dufort now timely appeals.
10
11 DISCUSSION
12 A district court’s grant of summary judgment is reviewed de
13 novo. Gallo v. Prudential Residential Servs., Ltd. Pʹship, 22 F.3d 1219,
14 1224 (2d Cir. 1994). On a motion for summary judgment, the court
15 must “resolve all ambiguities and draw all permissible factual
16 inferences in favor of the party against whom summary judgment is
17 sought.” Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d
18 673, 675 (2d Cir. 2016) (quoting Stern v. Trustees of Columbia Univ.,
19 131 F.3d 305, 312 (2d Cir. 1997)). Summary judgment is appropriate
20 only if the pleadings, the discovery and the disclosure materials on
21 file, and any affidavits show “that there is no genuine dispute as to
22 any material fact and the movant is entitled to judgment as a matter
23 of law.” Fed. R. Civ. P. 56(a). All legal conclusions by a district court
15 No. 16‐1715‐cv
are reviewed de novo. 1 United States v. Livecchi, 711 F.3d 345, 351 (2d
2 Cir. 2013) (per curiam).
3 On appeal, Dufort argues that the district court erred in
4 granting summary judgment to the Defendants because, (1) neither
5 his arrest nor his prosecution was supported by probable cause; (2)
6 neither the the ADA’s independent decision to pursue charges nor
7 the grand jury indictment broke the chain of causation between his
8 unlawful arrest and the subsequent prosecution; and (3) the
9 Defendants denied Dufort due process by fabricating inculpatory
10 evidence through an inappropriately suggestive lineup. The
11 Defendants argue that summary judgment was appropriate on all
12 counts and further argue that, in any event, they are entitled to
13 qualified immunity because their arrest of Dufort and their
14 subsequent role in his criminal prosecution were justified by
15 arguable probable cause.
16 We find that key questions of material fact regarding Dufort’s
17 false arrest and malicious prosecution claims remain in dispute, and
18 therefore remand those claims for further proceedings. We agree
19 with the Defendants, however, that Dufort’s due process claims fail
20 as a matter of law, and therefore affirm the district court’s grant of
21 summary judgment as to those claims.
22
16 No. 16‐1715‐cv
1 I. False Arrest Claim
2 In order to sustain a claim for false arrest under 42 U.S.C. §
3 1983 and New York law, a plaintiff must show that “the defendant
4 intentionally confined him without his consent and without
5 justification.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
6 “Because probable cause to arrest constitutes justification, there can
7 be no claim for false arrest where the arresting officer had probable
8 cause to arrest the plaintiff.” Escalera v. Lunn, 361 F.3d 737, 743 (2d
9 Cir. 2004). The district court found that the Defendants’ arrest of
10 Dufort three days after the attack on Lee and Shin was supported by
11 probable cause, and that as a result Dufort’s claim for false arrest
12 fails as a matter of law. We belive there are genuine issues of
13 material fact that should have precluded summary judgment on this
14 point.
15 Generally, “probable cause to arrest exists when the officers
16 have knowledge or reasonably trustworthy information of facts and
17 circumstances that are sufficient to warrant a person of reasonable
18 caution in the belief that the person to be arrested has committed or
19 is committing a crime.” Weyant, 101 F.3d at 852. Probable cause is a
20 mixed question of law and fact. See, e.g., United States v. Singletary,
21 798 F.3d 55, 59 (2d Cir. 2015). Questions of historical fact regarding
22 the officers’ knowledge at the time of arrest are to be resolved by the
23 jury. See Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004).
17 No. 16‐1715‐cv
However, “where there is no 1 dispute as to what facts were relied on
2 to demonstrate probable cause, the existence of probable cause is a
3 question of law for the court.” Walczyk v. Rio, 496 F.3d 139, 157 (2d
4 Cir. 2007).
5 Probable cause is “a fluid concept . . . not readily, or even
6 usefully, reduced to a neat set of legal rules.” Id. at 156 (alteration in
7 original) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Although
8 probable cause requires more than “mere suspicion” of wrongdoing,
9 it focuses on “probabilities,” not “hard certainties.” Id. (quoting
10 Gates, 462 U.S. at 231). Ultimately, whether probable cause exists
11 “depends on the totality of the circumstances” of each case, and is
12 not susceptible to “precise definition or quantification into
13 percentages.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). “Finely
14 tuned standards such as proof beyond a reasonable doubt or by a
15 preponderance of the evidence, useful in formal trials, have no place
16 in the [probable‐cause] decision.” Id. (alteration omitted) (internal
17 quotation marks omitted) (quoting Gates, 462 U.S. at 235). However,
18 a determination of probable cause is not lacking in substance: it
19 must be justified by a “belief of guilt” that is “particularized with
20 respect to the person to be searched or seized.” Id. (citing Ybarra v.
21 Illinois, 444 U.S. 85, 91 (1979)).
22 As a preliminary matter, we can conclude that the lineup in
23 which Park “identified” Dufort (and which was the cornerstone of
18 No. 16‐1715‐cv
the state’s case 1 against him) should not factor into any probable
2 cause analysis. An identification cannot be used to support probable
3 cause if the “identification procedure was ‘so defective that probable
4 cause could not reasonably be based upon it.’” Stansbury v. Wertman,
5 721 F.3d 84, 91 n.7 (quoting Jenkins v. City of New York, 478 F.3d 76,
6 93 (2d Cir. 2007)). Park’s lineup identification of Dufort resulted
7 from a paradigmatic example of an improperly suggestive lineup.
8 Park stated to officers that she did not recognize Dufort’s face, and
9 that she could only recognize the color of his sweatshirt as similar to
10 that of one of the assailants. Police then placed Dufort in a lineup in
11 which he was the only suspect wearing clothing resembling a red
12 shirt. Park picked Dufort out, again stressing that she recognized
13 only his clothing.
14 This cannot be construed as an “identification” of Dufort for
15 the purposes of probable cause. We have made clear that a lineup in
16 which the suspect is the only individual “wearing distinctive
17 clothing or otherwise matching important elements of the
18 description provided by the victim . . . substantially increases[es] the
19 danges of misidentification.” Raheem v. Kelly, 257 F.3d 122, 134 (2d
20 Cir. 2001) (quoting Israel v. Odom, 521 F.2d 1370, 1374 (7th Cir.
21 1975)). At most, Park confirmed a statement she had already given
22 police several times: that Dufort’s jacket was similar in color to a
23 jacket or shirt worn by one of the assailants. This statement could be
19 No. 16‐1715‐cv
given some weight 1 in a probable cause analysis, albeit limited
2 weight, given the presence of one or more other people at Pastel
3 Karaoke who were similarly clothed. Its repetition during the
4 lineup, however, given the surrounding circumstances, could
5 provide no evidence that the assailant was in fact Dufort.
6 The question before us, then, is whether the undisputed
7 evidence presented by the Defendants other than Park’s lineup
8 “identification” was sufficient to establish probable cause to arrest as
9 a matter of law. We hold that it was not. A reasonable jury could
10 easily find that, apart from her “identification” at the suggestive
11 lineup, Park never identified Dufort before or after the lineup as one
12 of the assailants in either the investigation or the ensuing
13 prosecution. To the contrary, she appears to have explicitly told
14 police prior to Dufort’s arrest that she recognized him only by the
15 color of the jacket worn by one of the assailants, and that she could
16 not positively distinguish between him and another patron wearing
17 a shirt of a similar color. As Dufort has pointed out, the Defendants’
18 unusual decision to depart from normal practice and not
19 contemporaneously document their initial interview with Park in a
20 “DD5” form raises considerable doubt about the exact nature of her
21 initial identification—doubt which, at the summary judgment stage,
22 must be construed in Dufort’s favor. See, e.g., Beyer v. Cty. of Nassau,
23 524 F.3d 160, 163 (2d Cir. 2008).
20 No. 16‐1715‐cv
Park reiterated 1 her jacket‐color‐only identification at several
2 points throughout the original criminal trial and this civil litigation.
3 In her 2014 deposition testimony, she stated that she recognized
4 Dufort as one of the assailants by “the color of his clothing,” but also
5 recalled having seen “at least two” people in Pastel Karaoke that
6 night wearing shirts or jackets with the same maroon color as
7 Dufort’s sweatshirt. Upon further questioning, Park admitted, “I
8 don’t know which person I saw exactly,” but that “one who were
9 [sic] wearing those kind of color [sic] was [j]umping and stomping
10 Jung Hwa Lee.” Likewise, in the criminal trial, when she was asked
11 whether she could identify Dufort, she replied, “[n]ot face but
12 clothing.”
13 The Defendants point out that Park testified at her deposition
14 in this case that the other person she had seen wearing a red shirt
15 was distinguishable from Dufort because the other patron had
16 “spiky hair, very short hair.” But there is no evidence that Park
17 made this statement before February 28, 2014—seven years after the
18 attack, and after Dufort had already been prosecuted and acquitted
19 of all charges. A reasonable jury could therefore find that the
20 statement had no bearing on whether probable cause existed to
21 arrest Dufort in 2006 or to bring criminal charges against him in
22 2007, because it sheds no light on what the Defendants knew or
23 reasonably believed when they were conducting the underlying
21 No. 16‐1715‐cv
criminal investigation. 1 The Defendants have not cited any record
2 evidence to suggest that Park was able to distinguish between the
3 various suspects seen wearing red shirts prior to the criminal trial.
4 Moreover, Park’s statement regarding the suspects’ different
5 hairstyles is at odds with other statements in her civil deposition, in
6 which she repeats her position that she could not recognize Dufort
7 as one of the assailants, and only recognized the color of his jacket.
8 At most, Park’s deposition testimony indicates that the nature of her
9 identification of Dufort and her reliability as a witness are disputed
10 questions of material fact which should be resolved by a jury at trial,
11 not by a court at summary judgment. See Anderson v. Liberty Lobby,
12 Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the
13 weighing of the evidence, and the drawing of legitimate inferences
14 from the facts are jury functions, not those of a judge . . . [when] he is
15 ruling on a motion for summary judgment . . . .”).
16 Setting aside the inconclusive identification by Park, who was
17 the police and prosecution’s sole identification witness against
18 Dufort, the Defendants’ remaining evidence is too gossamer to
19 support the conclusion that, as a matter of law, there was probable
20 cause to arrest. There was no video of the attack on Lee and Shin;
21 none of the five eyewitnesses other than Park who were questioned
22 were able to identify Dufort as an assailant; and no forensic evidence
23 tying Dufort to the attack was ever produced. Ultimately, the most
22 No. 16‐1715‐cv
that the record on summary 1 judgment establishes is that Dufort had
2 come to Pastel Karaoke on October 8, 2006 with many others, some
3 of whom who later participated in the attack on Lee and Shin; that
4 he, like others, brought a pipe to the bar “just in case” a fight
5 occurred; that he was one of at least two patrons who wore a shirt
6 similar in color to that worn by one of the assailants; that he was in
7 the vicinity of the fight when it occurred; and that he at one time
8 commented to a friend that he was in a gang called the “Ghost
9 Shadows.”
10 It is well settled that probable cause requires more than
11 suspicions, even reasonable ones. See, e.g., United States v. Sokolow,
12 490 U.S. 1, 7 (1989). Police do not have particularized probable cause
13 to make an arrest simply because a suspect has suspicious
14 acquaintances, or happens to be at the scene of a crime—particularly
15 when, as here, the crime occurs in a crowded public place. Cf. Ybarra,
16 444 U.S. at 91. (“[A] person’s mere propinquity to others
17 independently suspected of criminal activity does not, without
18 more, give rise to probable cause to search that person.”). Thus, in
19 Ybarra v. Illinois, 444 U.S. 85 (1979), the Supreme Court held that
20 police did not have probable cause to search patrons of a bar for
21 heroin merely because they had reliable information that the
22 bartender used the establishment to sell narcotics to customers. Id.
23 Instead, the Court held that “[w]here the standard is probable cause,
23 No. 16‐1715‐cv
a search or seizure 1 of a person must be supported by probable cause
2 particularized with respect to that person.” Id.; see also Pringle, 540
3 U.S. at 371.
4 Viewing the evidence in the light most favorable to the
5 plaintiff, a reasonable jury could find that the police arrested Dufort
6 based on little more than a witness’s statement that he wore a
7 similar shirt to that of one of Lee and Shin’s attackers. Although a
8 jury could also interpret the evidence differently, the record presents
9 genuine issues of material fact that preclude the conclusion that
10 there was probable cause as a matter of law and that, instead,
11 require a trial on the merits.
12
13 II. Malicious Prosecution
14 In the absence of federal common law, the merits of a claim
15 for malicious prosecution under § 1983 are governed by state law.
16 Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). In New York, the
17 four essential elements of a malicious prosecution claim are: “(1) the
18 commencement or continuation of a criminal proceeding by the
19 defendant against the plaintiff, (2) the termination of the proceeding
20 in favor of the accused, (3) the absence of probable cause for the
21 criminal proceeding and (4) actual malice.” Smith‐Hunter v. Harvey,
22 95 N.Y.2d 191, 195 (2000) (internal citations and quotation marks
23 omitted).
24 No. 16‐1715‐cv
The district 1 court based its grant of summary judgment on
2 Dufort’s malicious prosecution claims on the grounds that (1)
3 Dufort’s prosecution was justified by the same probable cause as his
4 arrest, and that probable cause grew stronger in subsequent months
5 by the discovery of new evidence; and (2) in any event, the decisions
6 of ADAs Eckhart and Vozzo to pursue charges and of the grand jury
7 to indict Dufort relieve the Defendants of any liability. We find that
8 key questions of material fact regarding Dufort’s malicious
9 prosecution claims remain in dispute, and therefore remand those
10 claims for further proceedings.
11
12 A. Probable Cause
13 The “existence of probable cause is a complete defense to a
14 claim of malicious prosecution in New York.” Savino v. City of New
15 York, 331 F.3d 63, 72 (2d Cir. 2003). The fluid nature of probable
16 cause remains the same at both the arrest and prosecution stage. To
17 begin with, as noted above, the record on summary judgment does
18 not establish as a matter of law that the Defendants had probable
19 cause to arrest Dufort. By the same token, the evidence in that
20 record, without more, is not sufficient to establish probable cause for
21 the filing of criminal charges or the commencement of a prosecution.
22 The Defendants claim, and the district court held, that
23 additional evidence came to light before trial that justified Dufort’s
25 No. 16‐1715‐cv
prosecution, even if it 1 could not have been sustained solely based on
2 the evidence available at the time of his arrest. But the two pieces of
3 new evidence they identified are insufficient to support a grant of
4 summary judgment, whether considered in isolation or together.
5 One was the testimony of another suspect in the fight, Jonathan Putt.
6 But Putt only testified that Dufort brought a pipe to Pastel Karaoke,
7 and that he was in a private karaoke room when the brawl began—
8 facts already established by the surveillance footage and not
9 contested by Dufort. Putt admitted at trial that he did not know
10 where Dufort was during the attack, and did not see him participate.
11 As discussed previously, the mere fact that Dufort was at Pastel
12 Karaoke on the night of the attack, or in the company of other
13 assailants, is not sufficient to establish probable cause for a criminal
14 prosecution.
15 The second piece of additional evidence the Defendants point
16 to is the testimony of assailant Sebastian Yoon. Yoon, facing a
17 maximum sentence of fifty years to life in prison, agreed to
18 cooperate, pled guilty to manslaughter, and implicated the other
19 defendants in exchange for a reduced sentence. When the prosecutor
20 prompted Yoon to comment on Dufort’s participation in the brawl,
21 his only reply was, “I think he punched.” App’x at 250. This flimsy
22 testimony as to what a cooperator “thinks” is by itself not sufficient
23 to permit the district court to grant summary judgment on Dufort’s
26 No. 16‐1715‐cv
1 malicious prosecution claims. When the existence of probable cause
2 is a question of law, the determination must be made on the basis of
3 undisputed facts. See Walczyk, 496 F.3d at 157. Yoon’s weak
4 statement, made under considerable pressure, was the only
5 genuinely new evidence introduced to supplement the prosecution’s
6 case after Dufort’s arrest. The dispositive question is whether this
7 testimony was sufficiently compelling that reasonable law
8 enforcement officers could have relied on it to find probable cause to
9 pursue charges against Dufort, notwithstanding the other
10 evidentiary gaps in the state’s case. This question can only be
11 resolved by evaluating the credibility and probative weight of
12 Yoon’s account, and that assessment can only be made by a jury. See
13 Anderson, 477 U.S. at 255.
14
15 B. The District Attorney’s Prosecution and Grand Jury
16 Indictment
17 We now turn to the Defendants’ argument that the District
18 Attorney’s decision to prosecute Dufort or the grand jury’s decision
19 to indict insulates them from liability.
20 As a preliminary matter, the district court granted summary
21 judgment in this case without permitting Dufort to depose the
22 prosecutors who tried him, and thus the record on the extent of their
23 knowledge is incomplete. Park testified in her deposition in this case
27 No. 16‐1715‐cv
that she told the 1 police and the prosecutor at some time in October
2 2006 that her lineup identification was based solely on Dufort’s
3 clothing. Nonetheless, Dufort has submitted an affidavit from his
4 criminal defense attorney, William Mackey, testifying that, at the
5 time of the lineup, he never heard Park disclose to representatives
6 from the District Attorney’s office that she only recognized Dufort
7 by the color of his clothing. Dufort has also introduced testimony
8 from his trial attorney, Christopher Renfroe, stating that Detective
9 Marotta did not mention the limited nature of Park’s identification
10 during a pre‐trial hearing in which Dufort sought to suppress that
11 identification. Defendants have produced no evidence
12 demonstrating conclusively that the District Attorney’s office was
13 aware of the limited nature of Park’s identification. The district court
14 noted that Park stated for the first time in her 2014 civil deposition
15 (long after Dufort’s acquittal) that she had told an ADA that she had
16 identified only Dufort’s clothes. However, as Dufort points out,
17 Park’s recollection of her cooperation with the police and
18 prosecutors has been incomplete, and sometimes inconsistent.
19 Whether Park ever told prosecutors prior to trial that she
20 could only recognize Dufort by the color of his jacket is a disputed
21 question of fact, and must be evaluated by a jury. If the District
22 Attorney’s office pursued its prosecution against Dufort after it was
23 deliberately misled by the Defendants, then the decision to
28 No. 16‐1715‐cv
prosecute does not 1 interrupt the chain of causation. Cf. Bermudez v.
2 City of New York, 790 F.3d 368, 374–76 (2d Cir. 2015) (holding that an
3 ADA’s decision to prosecute a suspect did not constitute an
4 intervening cause that shielded the arresting officers from liability if
5 the ADA was “not informed of the alleged problems with the
6 evidence”) Dufort has raised a triable issue of fact as to whether
7 either the grand jury’s indictment or the prosecutors’ participation
8 in his case constituted intervening causes that insulate the
9 Defendants from liability.
10 The record in this case presents a question of fact as to
11 whether the District Attorney’s office was aware of the limited
12 nature of Park’s identification testimony. “[U]nder New York law,
13 indictment by a grand jury creates a presumption of probable cause
14 that may only be rebutted by evidence that the indictment was
15 procured by ‘fraud, perjury, the suppression of evidence or other
16 police conduct undertaken in bad faith.’” Savino, 331 F.3d at 72
17 (quoting Colon v. City of New York, 60 N.Y.2d 78, 83 (1983)). To rebut
18 this presumption, the plaintiff bears the burden of establishing “that
19 the indictment was produced by” such fraud or bad‐faith police
20 misconduct. Bernard v. United States, 25 F.3d 98, 104 (2d Cir.
21 1994) (quoting Colon, 6060 N.Y.2d at 8383) Likewise, when a plaintiff
22 pursues a claim of malicious prosecution against police officers
23 based on an “unlawful arrest,” the “intervening exercise of
29 No. 16‐1715‐cv
independent judgment” 1 by a prosecutor to pursue the case usually
2 breaks the “chain of causation” unless the plaintiff can produce
3 evidence that the prosecutor was “misled or pressured” by the
4 police. Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999).
5 Dufort bears the burden of establishing that Defendants
6 misled the grand jury and the prosecutors by either withholding or
7 misrepresenting evidence in order to sustain the case against Dufort.
8 With respect to both actions, we conclude that Dufort has at least
9 established a question of material fact as to whether prosecutors and
10 the grand jury were aware of the limited nature of Park’s
11 identification and the highly suggestive manner in which it was
12 procured, such that their determinations break the chain of
13 causation.
14 With respect to the indictment, the record indicates that the
15 only direct evidence presented to the grand jury linking Dufort
16 directly to the attack was Park’s eyewitness identification. As noted
17 earlier, that identification was invalid because it was confined to a
18 lineup so defective that a reasonable officer could not use it to find
19 probable cause. More importantly, the record reflects (and the
20 Defendants do not contest) that the grand jury was simply told that
21 Park identified Dufort as an assailant without being informed of the
22 limited nature of Park’s identification. Detective Marotta testified
23 that Park viewed Dufort in the lineup, and Park testified that she
30 No. 16‐1715‐cv
picked Dufort out of the 1 lineup as an assailant, but neither clarified
2 that she identified only his jacket. Nor was the grand jury informed
3 that Dufort was the only suspect in the lineup wearing a maroon
4 sweatshirt. Id. Given the critical nature of Park’s testimony to the
5 case against Dufort, these omissions were glaring and easily could
6 have affected the grand jury’s decision. We thus find that, contrary
7 to the district court’s holding, Dufort has raised a genuine issue of
8 material fact regarding whether the Defendants’ conduct rose to the
9 requisite level of bad faith to rebut the presumption of probable
10 cause ordinarily created by a grand jury indictment.
11 The Defendants also argue that Dufort has failed to satisfy the
12 “initiation” aspect of the malicious prosecution inquiry, because the
13 District Attorney (rather than the defendant police officers) initiated
14 the proceedings against him. This argument fails for the same
15 reason. The “initiation” requirement is met when the plaintiff can
16 establish that police officers forwarded statements to a prosecutor
17 without sharing that the statements were suspect. See Manganiello v.
18 City of New York, 612 F.3d 149, 163 (2d Cir. 2010). Thus, a plaintiff
19 can satisfy the initiation requirement if he can establish that an
20 indictment “was produced by fraud, perjury, the suppression of
21 evidence or other police conduct undertaken in bad faith.” Dawson v.
22 Snow, 356 F. App’x 526, 529 (2d Cir. 2009) (summary
23 order) (quoting Colon, 60 N.Y.2d at 83). Because the prosecutors’
31 No. 16‐1715‐cv
knowledge 1 is uncertain as discussed above, questions of fact
2 precluding summary judgment as to the initiation of the prosecution
3 remain as well.
4 Defendants also argue that the record contains no evidence
5 that they acted with malice. RB 42‐43. Under New York law, malice
6 does not have to be actual spite or hatred, but requires only “that the
7 defendant must have commenced the criminal proceeding due to a
8 wrong or improper motive, something other than a desire to see the
9 ends of justice served.” Nardelli v. Stamberg, 44 N.Y.2d 500, 502‐03
10 (1978). Malice may be inferred, however, from the absence of
11 probable cause. See Lowth v. Town of Cheetowaga, 82 F.3d 563, 573 (2d
12 Cir. 1996) (citing Conkey v. New York, 427 N.Y.S.2d 330, 332 (4th
13 Dep’t 1980)). Moreover, Dufort’s trial attorney’s affidavit stating that
14 he was told by detectives that they were treating Dufort as a suspect
15 solely in order to induce him to testify against other participants also
16 supports the inference that the prosecution against him was
17 improperly motivated. Accordingly, the record presents genuine
18 issues of fact as to whether Defendants acted with malice.
19
20 III. Qualified Immunity
21 In the alternative, the Defendants argue that even if Dufort
22 has established the requisite elements of his false arrest and
23 malicious prosecution claims, they are nonetheless entitled to
32 No. 16‐1715‐cv
qualified 1 immunity because “arguable probable cause” existed to
2 arrest and prosecute him. Qualified immunity establishes a defense
3 for a government actor acting in his official capacity. Malley v. Briggs,
4 475 U.S. 335, 341 (1986). It “provides ample protection to all but the
5 plainly incompetent or those who knowingly violate the law.” Id. In
6 the context of false arrest and malicious prosecution claims, an
7 officer is entitled to qualified immunity if he had either probable
8 cause or “arguable probable cause.” Martinez v. Simonetti, 202 F.3d
9 625, 634 (2d Cir. 2000) (internal quotation marks omitted). Arguable
10 probable cause exists “if officers of reasonable competence could
11 disagree on whether the probable cause test was met.” Gonzalez v.
12 City of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013) (quoting Jenkins v.
13 City of New York, 478 F.3d 76, 87 (2d Cir. 2007)).
14 We conclude that it would be inappropriate to grant qualified
15 immunity to these Defendants at the summary judgment stage.
16 Dufort has established a dispute of material fact as to whether the
17 Defendants intentionally withheld or manipulated key evidence
18 during his arrest and prosecution. He has introduced sufficient
19 evidence from which a reasonable jury could conclude that the
20 Defendants placed him in a deeply defective lineup, extracted an
21 “identification” from Park that was limited to the color of his
22 clothing, and then withheld the suspect nature of this identification
23 from prosecutors and the grand jury. Such a “knowing” violation of
33 No. 16‐1715‐cv
his Fourth and 1 Fifth Amendment rights would, if proven, be enough
2 to overcome the protection of qualified immunity. Although Dufort
3 has not produced any direct evidence of a malicious intent on the
4 part of the Defendants, he is not required to do so. Circumstantial
5 evidence is generally sufficient to prove intent, and Dufort has
6 introduced enough such evidence to survive summary judgment.
7 See Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir.
8 2000) (“Malice may be proved inferentially because it is a matter of
9 the defendant’s subjective mental state, revolves around facts
10 usually within the defendantʹs knowledge and control, and rarely is
11 admitted.”).
12
13 IV. Due Process Claims
14 Finally, we turn to Dufort’s claim that he is entitled to
15 damages under § 1983 because the Defendants allegedly
16 misrepresented or withheld key evidence at his criminal trial about
17 the suggestive nature of the lineup in which Park identified him and
18 the limited nature of Park’s identification in violation of his Fifth
19 Amendment right to due process. The Second Circuit has recognized
20 “a constitutional right not to be deprived of liberty as a result of the
21 fabrication of evidence by a government officer acting in an
22 investigatory capacity” that is cognizable under the Fifth
23 Amendment and § 1983. Zahrey v. Coffey, 221 F.3d 342, 344 (2d Cir.
34 No. 16‐1715‐cv
2000); see also Garnett 1 v. Undercover Officer C0039, 838 F.3d 265, 275
2 (2d Cir. 2016). We have also recognized that a defendant has a
3 cognizable right to a fair trial, and may sue for damages under §
4 1983 for Brady violations that lead to a distorted evidentiary record
5 being presented to the jury. See Poventud v. City of New York, 750 F.3d
6 121, 132 (2d Cir. 2014) (en banc).
7 The Defendants argue that Dufort’s fair trial claims fail as a
8 matter of law, because the evidence that Dufort claims was withheld
9 or misrepresented was in fact disclosed in a straightforward manner
10 at his trial: the prosecution elicited testimony from Park that she
11 recognized Dufort not by his face, but by his clothing. We agree, and
12 accordingly we affirm the district court’s grant of summary
13 judgment with respect to these claims.
14 The “central objective of [§ 1983] . . . is to ensure that
15 individuals whose federal constitutional or statutory rights are
16 abridged may recover damages or secure injunctive relief.” Felder v.
17 Casey, 487 U.S. 131, 139 (1988) (quoting Burnett v. Grattan, 468 U.S.
18 42, 55 (1984)). In defining the appropriate scope of a § 1983 claim
19 asserting the violation of a constitutional right, “courts must closely
20 attend to the values and purposes of the constitutional right at
21 issue.” Manuel v. City of Joliet, 137 S. Ct. 911, 920–21 (2017). The
22 constitutional right on which Dufort’s § 1983 due process claim rests
23 is the right to have one’s case tried based on an accurate evidentiary
35 No. 16‐1715‐cv
record that 1 has not been manipulated by the prosecution. See Brady
2 v. Maryland, 373 U.S. 83, 87–88 (1963) (holding that the right to due
3 process has been violated whenever “[a] prosecution . . . withholds
4 evidence on demand of an accused which, if made available, would
5 tend to exculpate him or reduce the penalty,” because such a
6 withholding “casts the prosecutor in the role of an architect of a
7 proceeding that does not comport with standards of justice”); see also
8 Garnett, 838 F.3d at 275 (“When a police officer creates false
9 information likely to influence a jury’s decision and forwards that
10 information to prosecutors, he violates the accused’s constitutional
11 right to a fair trial, and the harm occasioned by such an
12 unconscionable action is redressable in an action for damages under
13 42 U.S.C. § 1983.” (internal quotation marks omitted)).
14 Here, even assuming arguendo that the Defendants attempted
15 to distort the trial record by misrepresenting the nature of Park’s
16 identification, it is undisputed that that attempt failed. Park herself
17 testified at trial that she could only identify Dufort by the color of
18 his jacket. Any attempt to distort the evidentiary record was fully
19 mitigated by this disclosure. Mere attempts to withhold or falsify
20 evidence cannot form the basis for a § 1983 claim for a violation of
21 the right to due process when those attempts have no impact on the
22 conduct of a criminal trial. Cf. Zahrey, 221 F.3d at 348–50 (holding
23 that “[t]he manufacture of false evidence, in and of itself, . . . does
36 No. 16‐1715‐cv
not 1 impair anyone’s liberty, and therefore does not impair anyone’s
2 constitutional right” when that manufacture does nothing concrete
3 to “precipitate [a] sequence of events that result[s] in a deprivation
4 of [the plaintiff’s] liberty” (internal quotation marks and footnote
5 omitted)).7

* * *

7 Dufort also appears to allege a “substantive due process” claim, based on his
constitutional right not to be arrested or detained without probable cause. Insofar as this
claim stems from the Defendants’ decision to arrest Dufort and his subsequent five‐year
detention on Rikers Island, it appears to be entirely coextensive with Dufort’s claims for
false arrest and malicious prosecution and is therefore subsumed under those claims. See
Manuel, 137 S. Ct. at 917–19 (noting that claims for pretrial detention based on fabricated
or withheld evidence are evaluated as malicious prosecution claims under the Fourth
Amendment); Wallace v. Kato, 549 U.S. 384, 388–89 (2007) (noting that the forcible
detention of plaintiff without probable cause is conceptualized as a false arrest claim
under the Fourth Amendment for § 1983 purposes).

Outcome: 7 For the reasons stated above, we VACATE in part the
8 judgment of the district court and REMAND the case for further
9 proceedings consistent with this opinion.

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