Here, Rodriguez has not provided evidence sufficient to show that his injuries are the result of any official municipal policy, that other similar events have occurred, or that the City failed to train its officers. As such, he has failed to set forth specific facts showing that there is a genuine issue of fact for trial. Fed.R.Civ.P 56(e). And thus we grant summary judgment as to any claims asserted against New York City.
2. Officer Immunity
The Officers raise the affirmative defense of qualified immunity. Qualified immunity, of course, shields government officials performing discretionary functions from liability for civil damages when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). "The relevant question. . . is whether a reasonable officer could have believed his conduct to be lawful in light of clearly established law, and the information [the officers] possessed." Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). The defense of qualified immunity is established when (1) at the time the defendants acted, it was unclear whether plaintiff's asserted interests were protected by federal law, or (2) it was objectively reasonable for the defendants to believe that their actions did not violate clearly established federal law. See Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 627, 115 S. Ct. 722, 115 S. Ct. 721 (1995). On a motion for summary judgment on the ground of qualified immunity, the defendants bear the burden of showing that, as to that defense, there is no issue of material fact. Castro v. United States, 34 F.3d 106, 112.
This court finds that it was objectively reasonable for McCarthy and Costello to have believed both that probable cause existed and that their actions were not contrary to federal law. Young told McCarthy that he had seen Arroyo take money from the trunk of a car and place it in a locker and that he saw Rodriguez take the money out of the locker. The fact that McCarthy did not personally witness the thefts underlying the warrant application but instead relied on what Young had told him is not fatal to the finding of probable cause. U.S. v. Smith, 9 F.3d 1007, 1013 (2d Cir. 1993). See also Fed.R.Crim.P. 41 ("The finding of probable cause may be based on hearsay evidence in whole or in part."). Our primary concern is whether McCarthy's reliance on Young was reasonable, and whether Judge Donati was informed of sufficient facts on which to base his finding of probable cause for the search warrant. See Smith, 9 F.3d at 1013 (quoting U.S. v. Brown, 744 F. Supp. 558, 566 (S.D.N.Y. 1990). We find that McCarthy's reliance was reasonable. First, his story was corroborated when, after McCarthy interviewed him, Young turned in his portion of the money. Second, we find compelling the fact that Young incriminated himself voluntarily at the same time he implicated Rodriguez.
Even if Rodriguez raises factual disputes relating to probable cause, they would be insufficient to defeat a motion for summary judgment if the resolution of these disputed issues is "not material to the ultimate resolution of the immunity issue." Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992). Disputed issues are not material if, after crossing out any allegedly false information and supplying any omitted facts, the 'corrected affidavit' would have supported a finding of probable cause. Carter, 955 F.2d at 845. See also Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994).
Plaintiffs dispute several statements in the McCarthy affidavit.
First they dispute the statement "the bag contained approximately 20 bundles of U.S. currency in denominations of $ 10s, $ 20s, as well as $ 50s and $ 100s." They note that before the Grand Jury, Young testified that "he couldn't make out the denominations [of the bundles] and that "there was probably twenty bundles of money in the bag." Second, they dispute that "Det. Young then observed Sgt. Michael Rodriguez of the 34th precinct open the locker and take out a paper bag of U.S. currency and left the garage area." Again, they note that on cross examination in the Police Department's administrative trial, Young acknowledged that he could not see into the bag that Rodriguez removed from the locker. We cannot say that these inaccuracies were critical -- or fatal-- to the probable cause determination. Even though McCarthy may have been imprecise or even inaccurate as to the denominations of the bundles, the fact that Young reported the theft of "probably twenty bundles" of currency is sufficient to find probable cause, regardless of the denominations. Moreover, even though Young may not have seen the money in the paper bag, he saw Rodriguez pull the same paper bag out of the locker which, minutes before, Arroyo had deposited into the locker. Finally, these misstatements, whether they originated with Young or McCarthy do not evince sufficient reckless or deliberate misbehavior.
The fourth amendment does not require an error-free affidavit. It simply requires that police officers apprise the judicial officer who issues the search warrant of a reasonably complete and reliable basis for doing so. We believe that McCarthy's affidavit adequately accomplished that purpose. Accordingly, defendants Costello and McCarthy are entitled to qualified immunity.
For the reasons stated, defendant's motion for summary judgment is granted.
The clerk shall enter judgment.
BARRINGTON D. PARKER, JR.
Dated: White Plains, New York
June 5, 1996