The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Washington Caraballo brings this action pursuant to, inter alia, 28 U.S.C. § 1983 and New York state law, alleging that the City of New York, the New York City Police Department, and Police Officer Christopher O'Hare (collectively, "defendants")*fn1 violated his constitutional rights by subjecting him to an illegal arrest and criminal prosecution. Defendants have moved for summary judgment on numerous grounds, chiefly that the arrest was supported by probable cause and that the prosecution was similarly justified. The motion will be granted in part and denied in part.
Defendants argue that Caraballo was legally arrested for impersonating a police officer after a nightclub security guard, Karl Cooper, advised police that Caraballo had shown the guard a fake badge and claimed to be a police officer.
A number of facts relating to the incident are disputed. There is agreement at least as to the following. The arrest occurred sometime during the late-night or pre-dawn hours from November 21 to November 22, 2003. Caraballo, a school bus driver, had arrived at a Manhattan nightclub accompanied by an acquaintance.*fn2 A line of people waited to be admitted. Caraballo approached a security guard, Cooper, to ask if he might enter just to see if a friend was already there, saying that he would then return outside. Cooper asked Caraballo for his identification. Caraballo produced his New York State commercial driver's license from a wallet that also contained Caraballo's membership card from a private organization known as the Police Reserve Association and a small badge also issued to him by that organization. Cooper held onto the license and allowed Caraballo to enter the club. Caraballo soon reemerged as promised.
At this point, the witnesses' accounts diverge. Caraballo testified at his deposition that, upon reemerging from the club, he asked Cooper to return his license, but that Cooper refused, stating as his reason that Caraballo's acquaintance -- who, Caraballo says, was no longer present -- had been giving him trouble about not being admitted to the club. According to Caraballo, Cooper's refusal to return his driver's license prompted him to call the police three times from his cell phone. It is undisputed that Caraballo made these calls.
At his deposition, Cooper supplied the following rather different narrative. According to Cooper, once Caraballo reemerged from the club, Cooper returned his license. Caraballo then asked Cooper to re-admit him, but this time with his acquaintance. Cooper re-admitted Caraballo without question but asked to see his acquaintance's identification. The acquaintance attempted to pass off as his own the driver's license Caraballo had just presented as his identification. Cooper refused to accept the license as the acquaintance's identification, pointing out that it was actually Caraballo's, but Caraballo denied that it was his. Cooper then confiscated the license, telling Caraballo that he could retrieve it later from a police station. Caraballo then showed Cooper the badge he carried in his wallet, saying, "I'm a cop" (Cooper Dep. 16), and demanding that his license be returned and that he be admitted to the club. Cooper refused these demands, recognizing that the badge was "obviously one of the miniaturized [private association] shields." (Id.) Cooper agrees that, when he refused to return the driver's license, Caraballo called 911.
Caraballo vigorously and explicitly denies that he ever told the guard he was a cop or showed him either his Police Reserve Association membership card or badge. (P. Dep. 61.)
Police officers -- although the record is not entirely clear about their number, names, and respective roles in the events*fn3 -- soon arrived. Caraballo testified that he approached two officers who had arrived by patrol car and told one of them that Cooper had refused to return his driver's license. He says that the officer told him to wait by the patrol car and then walked over to speak with Cooper, out of Caraballo's earshot. Cooper testified that he told the officers that Caraballo had shown him a badge and identified himself as a police officer, and that he then turned Caraballo's driver's license over to the officer. (Cooper Dep. 20-21, 50-51.) According to Cooper, following this exchange, he observed but did not overhear the police having "another conversation with [Caraballo] and the next thing I know he was being" searched and handcuffed. (Id. 21.)
Caraballo confirms that after the officer spoke with Cooper, he returned to Caraballo and asked if he had any other identification besides the driver's license. Caraballo opened his wallet and produced the Police Reserve Association membership card. According to Caraballo, the officer questioned Caraballo about his membership in the organization, his nationality, and his citizenship status. When Caraballo informed the officer that he was a U.S. citizen, the officer asked him "if I was an American citizen . . . why I don't speak perfect English." (P. Dep. 56.) The officer then informed Caraballo that "the I.D., it was fake," and "so he arrested me." (Id.) Defendants do not address Caraballo's account of this interaction.
Of the several officers possibly on the scene, defendants offer only O'Hare's account, in the form of an affidavit.*fn4 O'Hare attests that, "[b]y the time . . . I had arrived," officer Bedell "had spoken with both . . . Caraballo . . . and . . . Cooper." (O'Hare Decl. ¶ 6.) "As P.O. Bedell was putting handcuffs on . . . Caraballo and placing [him] in the patrol car," O'Hare recalls, "I spoke with Mr. Cooper and was informed by him that . . . Caraballo had shown Mr. Cooper what appeared to be a police badge and identification card in order to gain entry for [plaintiff's acquaintance], stating[,] 'What's the problem? He's with me. I'm a cop.'" (Id. ¶ 7.) O'Hare further states that he was informed by Bedell "that he had recovered a badge which states 'Police Reserve Association, City of New York member'" and "an identification card with the same inscription" from plaintiff's wallet (id. ¶ 8.) O'Hare states that he later prepared incident reports "on the basis of information supplied to me by Mr. Cooper and P.O. Bedell." (Id. ¶ 10.)
Caraballo was charged with criminal impersonation and criminal possession of a forged instrument on O'Hare's complaint. In the complaint, O'Hare repeats that he had been informed by Cooper that Caraballo "showed [Cooper] what appeared to be a police badge and identification card in order for defendant's friend . . . to gain entry to [the nightclub] and that [Caraballo] stated in substance 'What's the problem? He's with me. I'm a cop.'" (Kranis Decl., Ex. T.) The complaint further states that Bedell had told O'Hare he had "recovered" the Police Reserve Association badge and membership card "from [Caraballo's] wallet," that "no such Association is recognized by the . . . Police Department," and that Caraballo "knows said instruments to be forged based on [his] statement that he does not attend any training or meeting of said association and that he received the badge and identification card in the mail." (Id.)
Caraballo was released from custody on November 23, 2003. The charges against him were ...