and Scott Nager as well as the City of New York (the "City"). The parties have consented to referral of this case to me pursuant to 28 U.S.C. § 636(c) for all purposes including trial. The defendants now move for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
According to the complaint, on January 24, 1995 at about 10:30 p.m., Mr. Velasquez was in the vicinity of Sherman Avenue and Broadway in Manhattan. At that time the defendant police officers assaulted him and, without probable cause, arrested him for criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. N.Y. Penal Law § 220.03. The prosecution proceeded until October 3, 1995, when it was dismissed for failure to comply with the speedy trial requirements of New York Criminal Procedure Law § 30.30.
All defendants now move for partial summary judgment with respect to the claims of malicious prosecution on the ground that the criminal proceedings did not terminate favorably to the plaintiff. They argue that, as a matter of law, a dismissal on speedy trial grounds is not a favorable termination and thus can never be the basis for a malicious prosecution claim. Mr. Velasquez responds that such a dismissal is necessarily favorable to him since it irrevocably terminated the prosecution and left intact the presumption of innocence to which he was entitled.
The defendants also move for summary judgment dismissing the plaintiff's § 1983 claims against the City. They argue that Mr. Velasquez cannot demonstrate that any of the alleged violations of his rights were caused by any policy or custom of the City. The plaintiff contends that he can show that the City displayed deliberate indifference to his rights by ignoring evidence of prior misdeeds by the defendant police officers and by failing to train them properly.
A. Malicious Prosecution
Section 1983 imposes a form of tort liability on persons acting under color of state law who violate federal constitutional or statutory rights. See Heck v. Humphrey, 512 U.S. 477, , 114 S. Ct. 2364, 2370, 129 L. Ed. 2d 383 (1994). Malicious prosecution was long considered actionable as a constitutional tort, generally because it was viewed as implicating Fourteenth Amendment liberty interests. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). However, in Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), the Supreme Court held that for malicious prosecution to be the basis for a § 1983 claim, it must be based on the deprivation of a specific constitutional right rather than on the general concept of substantive due process. Id. at , 114 S. Ct. at 812, 184. One such specific right is the Fourth Amendment safeguard against unreasonable search and seizure. Id. at , 114 S. Ct. at 811; see Singer v. Fulton County Sheriff, 63 F.3d 110, 115 (2d Cir. 1995), cert. denied, U.S. , 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996). Therefore, when malicious prosecution constitutes a seizure of the plaintiff, it is actionable as a constitutional tort.
When annnalyzing a § 1983 claim, courts look to the common law to determine whether conduct is tortious. See Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (state law governs § 1983 malicious prosecution claim).
In order to prove a claim for malicious prosecution under New York law, a plaintiff must establish that: (1) an action was initiated by the defendant against the plaintiff; (2) the defendant acted with malice; (3) there was no probable cause for commencing the action; and (4) the action terminated in favor of the plaintiff. See O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996); Russell, 68 F.3d at 36; Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (1983). The only dispute for purposes of summary judgment concerns the element of favorable termination.
A comprehensive definition of this element has proven elusive. See O'Brien, 101 F.3d at 1486 (noting confusion in the case law); Lopez v. City of New York, 901 F. Supp. 684, 688 (S.D.N.Y. 1995) ("Unfortunately, the cases dealing with the pertinent situations have reached varying results that are difficult to reconcile."). The New York Court of Appeals first formulated a general definition of the favorable termination requirement in Halberstadt v. New York Life Insurance Co., 194 N.Y. 1, 10-11, 86 N.E. 801, 803 (1909):
The first [rule] is that where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. The other and reverse rule is that where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such [favorable] termination . . . .
According to this version of the general rule, the requirement of a favorable termination can be met either by "(1) an adjudication of the merits by the tribunal in the prior action, or (2) an act of withdrawal or abandonment on the part of the party prosecuting the prior action." O'Brien, 101 F.3d at 1486.
As the Second Circuit recently stated in O'Brien, however, cases subsequent to Halberstadt "cast doubt on the viability of the second of these two methods -- that is, the abandonment prong -- of proving favorable termination." Id. Cases such as Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 448 N.E.2d 432 (1983), focused solely on the first method. In that case, the court stated that the burden of proving favorable termination could be met "only when [the] . . . final disposition is such as to indicate . . . innocence." Id. at 425-26, 461 N.Y.S.2d at 768 (quotation and citation omitted). A termination that left open the question of the plaintiff's guilt could not, under this analysis, be considered a favorable termination. Id. at 426, 461 N.Y.S.2d at 768. Most recently, the New York Court of Appeals seemed to endorse this narrower approach in MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359 (1996). There, it stated that "[a] criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused's innocence." Id. at 860, 644 N.Y.S.2d at 486.
The Second Circuit has sometimes articulated the standard in this way. In Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), for example, the Court reasoned that "proceedings are 'terminated in favor of the accused' only when their final disposition is such as to indicate the accused is not guilty." Id. at 193 (citation omitted). Similarly, in Hygh v. Jacobs, 961 F.2d 359, 368 (2d Cir. 1992), the Court found that a termination that left unanswered the question of guilt or innocence could not be considered favorable to the plaintiff.
In virtually all of these cases, however, the facts were such that the plaintiff was unable to meet either prong of the Halberstadt test. In Hollender and Singleton, the prosecutions terminated when the accused accepted an adjournment in contemplation of dismissal (an "ACD"). As the Court noted in Singleton, an ACD involves the consent of both the prosecution and the accused, and thus resembles a settlement rather than an abandonment of the case by the prosecution. 632 F.2d at 193. In MacFawn, the trial court had dismissed a criminal information as legally insufficient. However, because new charges could be brought (though they had not been), the prosecution could not be deemed abandoned. 88 N.Y.2d at 860, 644 N.Y.S.2d at 486. Thus, it cannot be inferred from these cases that the abandonment test in Halberstadt has for all purposes been eliminated.
Further guidance may be gleaned from how the courts have treated specific types of terminations. There is no doubt that some prosecutions conclude in a manner that is categorically favorable to the accused. "An acquittal is the most obvious example of a favorable termination." Russell, 68 F.3d at 36. Conversely, certain types of disposition may never, as a matter of law, be considered as favorable termination for purposes of a malicious prosecution claim. That is the case with an ACD because it involves the accused's acquiescence in what is analogous to a sentence of probation. See Singleton, 632 F.2d at 193-94.
Other dispositions are more ambiguous. "In many instances, . . . criminal proceedings are terminated in a manner that does not establish either guilt or innocence. In the absence of a decision on the merits, the plaintiff must show that the final disposition is indicative of innocence." Russell, 68 F.3d at 36 (citations omitted). Dismissals in the interest of justice are illustrative. Second Circuit cases have held that such a dismissal does not "as a matter of law" constitute a favorable termination. See Singer, 63 F.3d at 118; Hygh, 961 F.2d at 368. Yet a recent decision by an intermediate appellate court in New York indicates that while such a dismissal is not on its face favorable to the accused, a plaintiff in a malicious prosecution action is nonetheless entitled to demonstrate that the dismissal was granted because the charges against him were meritless. Hankins v. Great Atlantic & Pacific Tea Co., 208 A.D.2d 111, 115-16, 622 N.Y.S.2d 678, 680-81 (1st Dep't 1995). Citing Hankins, the Second Circuit has acknowledged that New York law may permit a dismissal in the interest of justice to constitute a favorable termination in certain instances. Pinaud v. County of Suffolk, 52 F.3d 1139, 1154 (2d Cir. 1995).
However uncertain New York law may be with respect to dismissals in the interest of justice, it has generally treated dismissals for violation of speedy trial requirements as favorable terminations, beginning with the decision in Reit v. Meyer, 160 A.D. 752, 146 N.Y.S. 75, 78-79 (1st Dep't 1914) (favorable termination where accused obtained dismissal of criminal charges because district attorney unprepared to proceed). In Loeb v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 487 (2d Dep't 1980), the Appellate Division, Second Department adopted the reasoning of Reit. It noted that "there, a dismissal for failure to prosecute granted on motion of the accused was deemed a favorable termination because the prosecutor previously had indicated an intent to seek dismissal of the indictment and thus to abandon the prosecution." Id. at 100, 432 N.Y.S.2d at 493. The court went on to reason as follows:
Reit is consistent with the Restatement view that formal abandonment of a criminal proceeding by the public prosecutor constitutes a favorable termination (Restatement Torts 2d, § 659(c)) because it implies a lack of reasonable ground for the prosecution. If, however, the prosecutor's abandonment is procured by an agreement or compromise with the accused, misconduct on the part of the accused which effectively compels the abandonment, invocation of mercy by the accused, or the impossibility of bringing the accused to trial, it must be deemed "indecisive" and not a favorable termination.