Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
MEJIA v. CITY OF NEW YORK
October 5, 2000
LUIS MEJIA AND AURA DINA MEJIA, PLAINTIFFS,
CITY OF NEW YORK, AIRBORNE FREIGHT CORPORATION, BRENDA TIPTON, DANIEL MCNICHOLAS, AND JOHN SKINNER, DEFENDANTS.
The opinion of the court was delivered by: Trager, District Judge.
Plaintiffs Luis and Aura Mejia (the "Mejias") bring this
§ 1983/Bivens action against the City of New York (the "City"),
Airborne Freight Corporation ("Airborne"), U.S. Customs Service
Special Agent Brenda Tipton ("S/A Tipton"), and Sergeant Daniel
McNicholas ("Sergeant McNicholas") and Detective John Skinner
("Detective Skinner") of the New York City Police Department
("NYPD") (the latter two individuals collectively referred to as
the "police defendants"), alleging false arrest, false
imprisonment, use of excessive force, and malicious prosecution,
all in relation to the controlled pickup of a shipment of cocaine.
The Mejias also assert pendent state law claims for false arrest,
false imprisonment, malicious prosecution, and intentional
infliction of emotional distress against various defendants. Each
of the defendants now moves for summary judgment on the basis of
probable cause, qualified immunity, and/or various procedural
The initial events precipitating this case are not in
dispute. On November 18, 1993, U.S. Customs Service ("Customs")
agents in Miami intercepted a package from Bogota, Columbia, in
which 1 pound and 1 3/8 ounces of cocaine had been hidden. The
package contained three books of textile samples, inside the
covers of which plastic bags containing cocaine had been
concealed. The package had been delivered to Miami by
International Bonded Courier ("IBC"), a Columbian express courier,
for transfer to Airborne, the connecting domestic courier. The
airbill identified the sender as "GABRIEL JARAMILLO LARA, CRA 38
No. 8-06, SANTA FE DE BOGOTA, COLUMBIA, TELEPHONE NUMBER 2686824."
The airbill designated the recipient as "COMPLETE DIAGNOSTIC, BEST
SPORTS CAR SERVICE, 188-06 HILLEIDE [sic] AVE., HOLLIS, N Y
11423, U.S.A.," and gave the recipient's telephone number as
"(718) 740-2121," but did not list an individual addressee.
Complete Diagnostic was an auto repair garage owned and operated
by plaintiff Luis Mejia.
Miami Customs officials notified the New York Customs office
of their discovery and forwarded the package to S/A Tipton, who
then worked out of the New York office. Because the package
contained less than one kilogram of cocaine, the matter fell
outside federal prosecution guidelines. At the direction of the
New York office's supervisor, Special Agent Joseph Gloria, S/A
Tipton contacted Sergeant Nicholas on November 18, 1993, about the
possibility of the NYPD conducting a controlled delivery of the
On November 19, 1993, S/A Tipton contacted Bezmen, who was
Airborne's regional security manager, and asked him to arrange to
place an entry in Airborne's computer system to reflect a delay
due to misrouting in order not to arouse the suspicion of the
unknown recipient. Bezmen agreed to the request and offered to
cooperate in any subsequent controlled delivery of the package.
On that same date, Customs Special Agent John Raffa ("S/A
Raffa") visited Complete Diagnostic. While there, S/A Raffa
picked up a business card for the garage, which included the name
"Luis" and the telephone number (718) 740-2121.
On November 22, 1993, S/A Tipton and Sergeant McNicholas
discussed tentative plans for Customs to sign over the package to
the NYPD for a controlled delivery on the following day. Later on
the 22nd, plans for a controlled delivery were abandoned when
Sergeant McNicholas reported that he had gone to the auto garage
and had seen many workers, a heavy workload, and no individual
designated to take delivery. Under these circumstances, Sergeant
McNicholas stated that he could not in good conscience proceed
with the controlled delivery since there would be no
way of knowing whether the person who happened to sign for the
package was the intended recipient.
At this point in the story, plaintiffs' and defendants'
accounts of the events diverge widely. First, the defendants'. At
some point in the day on November 29, 1993, S/A Tipton spoke to
Bezmen, who had previously left a message for her. Bezmen told
her that he had noticed an entry on Airborne's computer that
indicated someone named "Luis" had called on November 22, 1993,
asked about the package, and left the phone number (718) 740-2121 —
the number for Complete Diagnostic.*fn1 S/A Tipton and
Sergeant McNicholas then conferred to make arrangements for a
controlled pickup at Airborne's facility the next day, November
At S/A Tipton's request, Gennarelli, an Airborne cartage
supervisor, called the contact number and asked for "Luis
Mejia."*fn2 A person answered and said: "This is Luis."
Gennarelli told "Luis" that his package was available for pickup
at Airborne's Inwood station, which is located near JFK.
Gennarelli further advised "Luis" that he should come to pick up
the package after noon the next day, November 30, 1993. Gennarelli
does not recount having to give "Luis" any reasons as to why he
was required to pick up the package at the Airborne office as
opposed to it being delivered to Complete Diagnostic; Gennarelli
states that "Luis" simply agreed without asking any questions.
According to Gennarelli, the call lasted approximately two
minutes. After the call, Gennarelli advised S/A Tipton that
"Luis" said he would come to Airborne's facility the next day to
pick up the package.
On November 30, 1993, S/A Tipton brought the package to the
Airborne's Inwood station and signed it over to Detective Skinner.
According to S/A Tipton, she had no further role in the controlled
delivery, though she remained at the facility until Mr. Mejia
Detective Skinner placed the intercepted package in an
Airborne box, sealed it, and gave it to Gennarelli. The police
then waited for Mr. Mejia's arrival out of sight in prearranged
Later that day, Mr. Mejia set off for the Airborne office
along with his wife. Along the way, he got lost and had to call
for directions. Gennarelli answered, or was given, the call and
provided Mr. Mejia with additional directions. Shortly
thereafter, Luis Mejia entered Airborne's facility and walked up
to Gennarelli who was dressed in an Airborne uniform. Mr. Mejia
signed for the package, accepted delivery and walked out.
According to Gennarelli, Mr. Mejia did not inspect the package
while he was in the office or indicate in any way that the package
was unexpected. According
to Detective Skinner, who was watching from the reception area
of the Airborne office, once back in the car, Mr. Mejia handed
the package to his wife, who immediately opened it.
About ten minutes later, Sergeant McNicholas, Detective
Skinner, and several other NYPD officers pulled Mr. Mejia's car
over to the side of the road in order to effect the arrest. The
police defendants deny displaying their weapons during the arrest.
When Detective Skinner approached the car, he observed that Mrs.
Mejia had the three portfolios on her lap. After removing her
from the car, Detective Skinner examined the portfolios and
discovered that one of them had been ripped open,
and a white powdery substance was visible.*fn3
In addition, Sergeant McNicholas states that, while at the
arrest scene, Mr. Mejia spontaneously asked him: "What is this
for, the drugs?"
For her part, S/A Tipton states that she did not actively
participate in the arrest. However, while driving back to her
office, she noticed activity on the side of the road and
recognized the detectives.*fn4 S/A Tipton then pulled over,
got out of her car, and spoke to Sergeant McNicholas. S/A Tipton
states that she had no contact with the Mejias during the arrest.
At some point during the arrest, Mrs. Mejia told Sergeant
McNicholas that similar portfolios had been delivered to her and
her husband's auto garage the previous day.*fn5 With Mrs.
Mejia's consent, Sergeant McNicholas, Detective Skinner, and one
Detective Fox then went to the garage, entered the Mejias' office,
and seized similar books whose front and back covers had been
Detective Skinner states that later at the precinct house, in
the course of taking pedigree information from Mr. Mejia, Mr.
Mejia told him: "My wife doesn't know anything about this."
The police defendants deny making any disparaging remarks
about Colombians during the arrest or threatening that Mrs. Mejia
would lose her children if she went to jail.
The Mejias tell a very different story about the events
leading up to their arrest and prosecution. In essence, the
Mejias allege that they knew nothing about the package from
Colombia and that Airborne representatives (or government agents
masquerading as Airborne representatives) coaxed and cajoled them
into claiming the package under the pretense that the package was
a Christmas gift from Venezuela.
Specifically, Mr. Mejia denies that he placed a call to
Airborne inquiring about the package. Mr. Mejia testified in
deposition that one of his employees, Charlie Diego ("Diego"),
received a telephone call on November 22, 1993, from an
unidentified individual who asked who owned the business. Diego
told the caller the owner was named Luis. The caller also
allegedly asked whether the owner was Colombian and whether
everyone who worked at the garage was Spanish.
Thereafter, Mr. Mejia states that he received four
unsolicited phone calls from Airborne in which one or possibly two
purported Airborne agents beseeched him to come to the Airborne
facility and pick up the package. The first alleged call took
place early on the morning of November 29, 1993. The first
caller*fn6 asked him if he was "Luis" and told him that
Airborne had a package for him. Mr. Mejia then stated: "Okay,
why don't you deliver it." The caller responded that Airborne
could not deliver the package because it was a personal package
and that he would have to come and sign for it: "You have to come
personally to pick up the package because it is addressed to you."
Mr. Mejia then stated that he could not pick up the package that
day because he was too busy. Mr. Mejia asked whether Airborne
could just deliver the package for an extra charge, which he would
pay. The caller answered that he could not do so, again, because
the package was personal. At that point, Mr. Mejia asked where
the package was from, to which the caller responded: "Caracas,
Venezuela." Mr. Mejia then had a conversation off the phone, in
which he asked his wife whether she was expecting a package from
Venezuela. When his wife answered no, Mr. Mejia "went back to the
phone and told the man and said, `Are you sure it is coming from
Venezuela?'" The caller answered yes. Mr. Mejia then asked the
caller to describe the package. After a number of questions along
that line, the caller said:
Mr. Mejia then asked: "But where [sic] is the package?" The
caller replied: "Looks like a Christmas present." Mr. Mejia
again advised the caller: "Bring it to me and I will pay." The
caller again stated that he could not do so because the package
was already two days late and gave Mr. Mejia "a whole story about
the package. Came through Miami also, the whole story." The
caller added that the package would be sent back to Venezuela if
he did not pick it up and again emphasized that it was a Christmas
Finally, Mr. Mejia stated that he "might pick it up later
on," and asked for directions. At that point, Mr. Mejia and the
caller had a conversation about the best route to take. The
conversation ended with Mr. Mejia telling the caller that he would
pick up the package, "[p]erhaps . . . today, I don't guarantee
Mr. Mejia testified that the call lasted over twenty to
twenty-five minutes; later, he stated that it was probably even
longer, between half an hour and forty-five minutes. At no time
during the call, however, did the caller use his last name, Mejia.
The second alleged conversation occurred later on the
afternoon of the 29th, around 2:30 p.m. or 3:00 p.m., when an
unidentified, purported Airborne representative told Mr. Mejia:
"We're waiting." Mr. Mejia replied: "I'm sorry, I forgot about
it but I definitely [sic] pick it up tomorrow." Mr. Mejia then
hung up. Mr. Mejia believes the individual who made the second
call was not the first caller.
Two more calls were allegedly made on November 30, 1993. The
first came at about 9:30 or 10:00 a.m. Mr. Mejia believes this
caller was the first caller from the day before. This caller
asked: "Yes, what happened, you coming today?" Mr. Mejia
responded: "I don't know. I think I will not be able to. Why
don't you call me back later." With that, Mr. Mejia hung up.
The fourth call came that afternoon, at about 1:30 p.m. or
2:00 p.m. This caller, apparently the same one who had made the
first and third calls, said: "Luis, you going to do me a favor or
not, you picking up this package?" Mr. Mejia then states that he
finally decided to go pick up the package because the caller
convinced him it might be a Christmas present for his
daughter.*fn7 Mr. Mejia asked the caller how he knew it was
present. The caller explained that he had jiggled the box and
heard bells inside.*fn8 Mr. Mejia then made additional
inquiries regarding the description of the package. The caller
ended by suggesting that he hurry over because the office was
When he and his wife arrived at the Airborne facility, Mr.
Mejia was met by S/A Tipton, who was wearing an Airborne
uniform.*fn10 Mr. Mejia then signed for the package, and S/A
Tipton released it to him.
Once he took possession of the package, Mr. Mejia went back
to his car, opened up the package and took out one of the books.
When he discovered it contained nothing but textile samples, Mr.
Mejia decided it was "junk mail," threw the entire contents of the
package into the back of his car, and drove off. According to
Mrs. Mejia, she never touched the package or the enclosed books,
and her husband did not rip open the bindings of any of the
portfolios while they were in the car.
When asked at deposition why he did not return the package
to Airborne, Mr. Mejia stated that he thought it might be for one
of his employees, Javier Acevedo ("Acevedo"), who was allegedly
from Medellin, Colombia. Mr. Mejia stated that Acevedo had been
going through the mail at the garage and had been inquiring about
a package from Colombia beginning about three weeks before the
Mejias' arrests. The Mejias testified that, at the time of the
arrests, another one of their employees and a roommate of Acevedo,
Byron Benitez, was in Colombia. According to Mr. Mejia, Acevedo
disappeared immediately after his and his wife's arrest.*fn11
Mr. Mejia, however, conceded in deposition that he "couldn't
At any rate, about ten minutes after the Mejias left the
Airborne facility, their car was stopped by police. A number of
police officers approached the car with their guns drawn. Sergeant
McNicholas banged on the car window with his gun. The Mejias were
taken out of the car, and the police demanded that they produce
the "drugs." In particular, Sergeant McNicholas said: "Where are
the F drugs, you F Colombians, you are all the F same thing." The
Mejias state that they did not know what the police officers were
talking about. In addition, Mr. Mejia states that during the
arrest, Detective Fox, who is not a defendant in this action, held
a gun to his head and repeatedly said that he was going to "blow
up [Mr. Mejia's] F head" if Mr. Mejia moved or looked around.
Sergeant McNicholas then frisked Mrs. Mejia, "kind of quick,
rough, sort of thing," as she put it, though Mrs. Mejia
acknowledged that she did not feel any pain or suffer injury as a
result. Someone also asked Mrs. Mejia: "Bitch, tell me who this
package was for." At some point, Sergeant McNicholas remarked:
"Colombians, drug dealers from Columbia." In response, Mr. Mejia
insisted that his wife knew nothing about any drugs, but the
police officers, including Sergeant McNicholas, kept "picking on"
Mrs. Mejia then indicated to Sergeant McNicholas that similar
textile books had been delivered to her and her husband's office
on the previous day, November 29th.*fn14 As a result, Sergeant
McNicholas, Detective Skinner, and Detective Fox took Mrs. Mejia
back to the garage, where they seized the other books without
advising her that she did not have to give her consent to the
The Mejias do not know whether the books were intact when the
police seized them. The Mejias stated in deposition that they had
opened the package containing the portfolios, but did not
recognize what they were and so just left them sitting on top of a
box in the garage's office.*fn15 The Mejias deny ripping the
covers of any of the portfolios open. Mr. Mejia, however, did not
inspect the covers of the portfolios before he left for the
Airborne office on November 30th; nor did Mrs. Mejia have an
opportunity to do so when the police seized them from the office.
Both of the Mejias testified that the door to the office was
unlocked when they left to pick up the package.
After the search of the office, the police then took the
Mejias to the 105th precinct. At the precinct, Mrs. Mejia, who
was three months pregnant at the time, was told that she was
"going to have the baby in jail, you're only going to have the
baby for a year, and then the state is going to have the
baby."*fn16 Sergeant McNicholas, specifically, told her: "You
don't want to spend 7 to 15 years in jail. You wouldn't have your
baby in jail." On Sergeant McNicholas's order, Mrs. Mejia was
The only two officers, however, that the Mejias could
identify as using abusive language were Sergeant McNicholas and
Detective Fox. Neither of the Mejias allege that Detective
Skinner engaged in any derogatory language. Indeed, Mr. Mejia
stated that his only contact with Detective Skinner was at the
scene of the arrest when Detective Skinner announced that he was
the arresting officer. For her part, Mrs. Mejia stated that
Detective Skinner did not say anything at all to her during the
To explain why they might have thought that someone in
Venezuela was sending them a Christmas present, the Mejias
testified in deposition that about six months before their arrest,
their former nanny, Nelly Betancour, had moved to Venezuela.
There is no evidence that any of the defendants knew about the
nanny, and, thus, there is no explanation of why the purported
Airborne agents would have chosen to say that the package was from
Venezuela as opposed to any other country besides Columbia.
Nonetheless, Mr. Mejia's account of the four telephone calls
in which he was told the package was from Venezuela is
corroborated by two salient pieces of physical evidence. The
first is the Airborne airbill that was attached to the package
when he picked it up from the Airborne office. Unlike the IBC
airbill attached to the original packaging, which indicated the
sender's address to be in Bogota, Columbia, the new Airborne
airbill listed the sender's address simply as "Caracas."*fn17
None of the defendants claim responsibility for creating the
The second piece of evidence is the Airborne box into which
Detective Skinner placed the original package before the pickup.
The exterior of the box carries a routing slip which indicates
various airport codes. Pertinently, the section marked "ORIGIN"
bears the notation "CAR," which appears to be an attempted
reference to Caracas.*fn19
Although Gennarelli initially denied playing any role in the
repackaging of the shipment other than bringing Detective Skinner
a box and some tape and stated that he was not even in the room at
the time, he admitted later in his deposition that he filled out
the entire routing slip, including the designation of CAR as the
origin.*fn20 When asked what "CAR" stands for, Gennarelli
replied: "Just initials." Gennarelli further stated that he did
not remember who, if anyone, told him to put CAR on the package,
and did not know what it meant.*fn21 Although Gennarelli
admitted that S/A Tipton told him to put a particular airbill
number on the routing slip, he denied that S/A Tipton or anyone
else had told him that the package originated in Caracas.
Gennarelli further denied that anyone had instructed him to tell
Mr. Mejia that the package was from Caracas. Notably, S/A Tipton
and Detective Skinner were together in the room where the shipment
was being repackaging throughout the time it was being repackaged,
and Sergeant McNicholas entered the room when Detective Skinner
was finishing taping the box.
Finally, two aspects of Mr. Mejia's account of the four calls
and their content are corroborated by testimony of certain of the
defendants. First, whereas Gennarelli does not recount having to
give "Luis" any reasons why he had to come to Airborne to pick up
the package and testified that "Luis" readily agreed to do so, S/A
Tipton's notes indicate that Gennarelli had given "Luis" "several
reasons [why it] could not be delivered," though she could not
recall what those "several reasons were."
Second, Mr. Mejia's account that he received more than one
telephone call from a purported Airborne agent is corroborated by
Detective Skinner's deposition testimony. Although defendants
have represented in their motion papers that the only call placed
to Mr. Mejia was Gennarelli's call on November 29th, Detective
Skinner testified that on November 30th, after finishing the
repackaging of the portfolios, "[w]e sat around, conversated
[sic], eventually, I believe, someone, I don't know who it was, I
don't remember who it was, said `I'm going to attempt to call this
person again.'" Detective Skinner stated that Mr. Mejia arrived a
"short time later." Based on Detective Skinner's daily activity
report, which puts the time of Mr. Mejia's arrival at 2:45 p.m.,
this unidentified individual's call appears to coincide with Mr.
Mejia's estimate that he received a fourth call from a purported
Airborne agent at around 1:30 p.m. to 2:00 p.m. on the 30th.
Thereafter, state grand juries were convened.*fn22 Mrs.
Mejia was not indicted, but Mr. Mejia was. Mr. Mejia was tried in
the New York Supreme Court for Queens County, and was acquitted on
March 20, 1995.*fn23
On March 18, 1996, the Mejias served a notice of claim on the
City, alleging false arrest, false imprisonment, malicious
prosecution, and intentional infliction of emotional distress
On June 17, 1996, the Mejias commenced this action,
asserting: (1) causes of action under § 1983 against S/A Tipton,
Sergeant McNicholas, Detective Skinner, and Airborne, for false
arrest, excessive force, and malicious prosecution; (2) state law
causes of action for false arrest, false imprisonment, and IIED,
against Sergeant McNicholas, Detective Skinner, and the City; and
(3) state law causes of action for malicious prosecution and IIED
Each of the defendants, except for the City, now moves for
summary judgment on the grounds that probable cause existed for
the arrest and prosecution, and, in the alternative, that they are
entitled to qualified immunity. The City moves on the grounds
that it cannot be held vicariously liable under § 1983 for its
officers' actions and that the Mejias' notice of claim and
complaint were untimely.
Certain basic principles of law apply equally to each of the
defendants and will, therefore, be reviewed at the outset.
Separate analyses of the application of these principles to each
of the defendants will follow.
A. False Arrest under § 1983 and New York Law
Under New York law, false arrest is considered to be a
species of false imprisonment, and the two claims have identical
elements. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118
(2d Cir. 1995) (citing Broughton v. State, 37 N.Y.2d 451, 456,
373 N.Y.S.2d 87, 93 (1975)).*fn24 Moreover, a "§ 1983 claim for
false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including arrest
without probable cause, is substantially the same as a claim for
false arrest under New York law." Weyant v. Okst, 101 845, 852
(2d Cir. 1996). Therefore, the elements of a cause of action for
false arrest under both 42 U.S.C. § 1983 and New York law are:
"`(1) the defendant intended to confine [the plaintiff], (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement and (4) the confinement was not
otherwise privileged.'" Singer, 63 F.3d at 118 (quoting
Broughton, 37 N.Y.2d at 456, 373 N.Y.S.2d at 93.
Where, as here, an arrest is made without a warrant, the
existence of probable cause is an affirmative defense that must
proved by the defendant. See Broughton, 37 N.Y.2d at 458, 373
at 95; 335 N.E.2d 310; see also Weyant, 101 F.3d at 852 (holding
that "existence of probable cause to arrest constitutes justification
and `is a complete defense to an action for false arrest' (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994))).
Probable cause, or reasonable cause as it is known in New York
law, "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 about to be arrested has committed or is
committing a crime." Weyant, 101 F.3d at 852 (citations omitted);
see Raysor v. Port Auth. of N.Y. & N.J., 768 F.2d 34, 39-40 (2d
Cir. 1985) (holding that New York law "reasonable cause" standard
is equivalent to Fourth Amendment's "probable cause" standard).
Since the law seeks to protect citizens against unlawful arrest,
the determination of whether probable cause existed must be made
on the basis of the information possessed or reasonably available
to the defendant at the time of the arrest. See Lowth v. Town of
Cheektowaga, 82 F.3d 563, 570 (2d Cir. 1996). It is, therefore,
axiomatic that subsequently discovered evidence cannot be used to
cure an arrest that was made without probable cause. Cf. People
v. Gomcin, 265 A.D.2d 493, 495, 697 N.Y.S.2d 93, 95 (2d Dep't
1999) (search incident to arrest) ("[I]t is beyond cavil that the
fruit of a search incident to an arrest cannot be used to
establish probable cause to arrest."); cf. also Johnson v. United
States, 333 U.S. 10, 16-17, 68 S.Ct. 367, 370 (1948) (holding
that reasoning which would "justify the arrest by the search and
at the same time justify the search by the arrest . . . will not
B. Malicious Prosecution under § 1983 and New York Law
To establish a claim for malicious prosecution under New York
law, a plaintiff must show: "(1) the commencement or continuation
of a criminal proceeding by the defendant against the plaintiff,
(2) the termination of the proceeding in favor of the accused, (3)
the absence of probable cause for the criminal proceeding and (4)
actual malice." Broughton, 37 N.Y.2d at 457, 373 N.Y.S.2d at 94
(citation omitted). On a motion for summary judgment, malice may
be inferred from evidence showing a lack of probable cause. See
Rounseville v. Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (citing
Maxwell v. City of New York, 156 A.D.2d 28, 34-35, 554 N.Y.S.2d 502,
505-06 (1st Dep't 1990)).
The probable cause determination relevant to a malicious
prosecution claim differs from that relevant to a false arrest
claim, and the two determinations play different roles in the two
causes of action. First, in a malicious prosecution action, the
relevant probable cause determination is whether there was
probable cause to believe the criminal proceeding could succeed
and, hence, should be commenced. See Posr v. Court Officer Shield
# 207, 180 F.3d 409, 417 (2d Cir. 1999). This determination is
distinct from the question of whether there was probable cause for
the arrest, though a lack of probable cause to believe the
plaintiff committed the crime in question necessarily entails a
lack of probable cause to commence a proceeding against him or
her. See id.
Second, in a malicious prosecution action, the lack of
probable cause is an element of the tort that must be pled and
proved by the plaintiff. See Broughton, 37 N.Y.2d at 457, 373
N YS.2d at 94.
Finally, the existence, or lack, of probable cause is
measured at a different point in time in a malicious prosecution
action than a false arrest action, where the prosecution follows a
warrantless arrest. This is because a warrantless arrest is an
extrajudicial proceeding. See id. at 458, 373 N.Y.S.2d at 94. In
such cases, the judicial proceeding is not deemed to have been
commenced until the plaintiff's arraignment or an indictment by a
grand jury. See id. at 457, 373 N.Y.S.2d at 94. Accordingly, the
existence, or lack, of probable cause is measured as of the time
the judicial proceeding is commenced (e.g., the time of the
arraignment), not the time of the preceding warrantless arrest.
See 59 N.Y. Jur. 2d False Imprisonment & Malicious Prosecution
§ 73 (1987) ("Whether probable cause existed depends upon whether
a reasonably prudent person would have believed the plaintiff
guilty of the crime charged on the basis of the facts known to the
defendant at the time the prosecution was initiated or which he
then reasonably believed to be true." (emphasis added)). Thus,
information discovered by a malicious prosecution defendant after
the arrest, but before the commencement of proceedings, is
relevant to the determination of probable cause in cases where the
prosecution follows a warrantless arrest.
This distinction between the time at which probable cause is
measured in a false arrest action and in a malicious prosecution
action takes on some significance in this case, because several
pieces of (at least potentially) inculpatory evidence were
discovered between the Mejias' arrest and the commencement of
judicial proceedings against them, viz., the three similar
portfolios seized from their office.*fn27
Even where probable cause is lacking, a law enforcement
officer in a
§ 1983 action for false arrest or malicious prosecution may,
under the doctrine of qualified immunity, affirmatively defend
on the ground that it was "objectively reasonable" for an officer
in his or her position to believe that probable cause existed.
Weyant, 101 F.3d at 857-58 (citing Anderson v. Creighton,
483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39 (1987)). The
objective reasonableness of an officer's belief that probable
cause existed turns on "whether a reasonable officer could have
believed that [his actions were] lawful, in light of clearly
established law and the information the . . . officer possessed"
at the relevant time. Anderson, 483 U.S. at 641, 107 S.Ct. at
3040. The relevant time for the purposes of a false arrest action
is the time of the arrest; and the relevant time for purposes of
a malicious prosecution action is the time that the criminal
proceeding was commenced. The purpose of the qualified immunity
doctrine in this context is to protect law enforcement officials
from liability for reasonable errors of judgment. See Malley
v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986) (stating
that qualified immunity protects "all but the plainly incompetent
or those who knowingly violate the law").
With these principles in mind, an examination of plaintiffs'
various claims against each particular defendant may begin.
A. Any implicit § 1983 respondeat superior claims
plaintiffs may be making must be dismissed.
Plaintiffs' complaint does not expressly assert any § 1983
claims against the City. (See Compl. ¶ 25.) Nonetheless, the
City has moved for summary judgment on the issue, and to the
extent plaintiffs are implicitly making a § 1983 claim against it,
the issue will be addressed and decided.
As the City notes, in Monell v. Department of Social
Services, the Supreme Court held that a municipality cannot be
held vicariously liable under § 1983 for constitutional torts
committed by its employees. See 436 U.S. 658, 694, 98 S.Ct.
2018, 2037 (1978). Instead, a municipality can only be held
liable if the constitutional violation of which a plaintiff
complains resulted from an official custom, policy, practice, or
usage of the municipality. See id. at 690-91, 98 S.Ct. at
2035-36. Plaintiffs have produced no evidence that any of the
alleged constitutional violations committed in the course of their
arrest and prosecution stemmed from any policy, practice or custom
of the City. Accordingly, the City's motion for summary judgment
on plaintiffs' § 1983 claims against it, if any, is granted.
B. Plaintiffs' state law respondeat superior claims must