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Levon Smith v. Police Officer Jorge Tobon

August 28, 2012



Plaintiff Levon Smith sued defendant, police officer Jorge Tobon, pursuant to 42 U.S.C. § 1983 for false arrest and malicious prosecution. The case was brought to trial on October 18, 2011. After a two-day trial, the jury returned a verdict in defendant's favor.

Plaintiff now moves for a new trial on the basis of the court's jury instructions.

The motion is denied.



This case arises from three encounters between plaintiff and defendant, occurring on June 25, 2002, March 19, 2003, and May 23, 2003. Plaintiff initially made claims with respect to all three incidents. In an opinion dated August 27, 2010, the court granted defendant's motion for summary judgment with respect to the June 25, 2002, and May 23, 2003 incidents. Plaintiff had also moved for summary judgment with respect to the March 19, 2003 incident. The court denied plaintiff's motion. Therefore, the only incident remaining in this case is the incident of March 19, 2003.

Plaintiff claims that on March 19, 2003, he was sitting on the passenger's side in his stopped vehicle, which was properly parked in front of his tire shop business, and that the key was not in the vehicle's ignition.

Defendant and another officer approached the vehicle and asked plaintiff for his license and registration. Defendant told plaintiff that his license had been suspended about a week earlier because of an unpaid parking ticket.

Defendant and his partner took plaintiff and his vehicle to the 25th Precinct station house, where plaintiff was processed and taken to court after over 20 hours in police custody. Plaintiff was charged with operating a vehicle with a suspended license, and was released on his own recognizance. Plaintiff continued to make court appearances until about December 2003 when the complaint was dismissed against him. Plaintiff alleges that defendant's actions on March 19, 2003, were retaliation for the fact that plaintiff was not ultimately indicted following his drug arrest on June 25, 2002. That arrest was allegedly made by defendant.

Defendant disputes plaintiff's version of the facts, claiming that plaintiff's vehicle was double-parked, that plaintiff was behind the wheel on the driver's side of the vehicle, with the key in the ignition and the engine running.

Defendant denies that he had any retaliatory motive for the arrest.

As noted above, plaintiff's claims were for false arrest and malicious prosecution. On the false arrest claim, the only issue was whether defendant had probable cause to make the arrest. On the malicious prosecution claim, the issues were probable cause, malice, initiation of prosecution, and deprivation of liberty. Because of the disputed nature of the facts, the claims turned almost entirely on plaintiff's and defendant's credibility.

As noted above, the court held a two-day jury trial, beginning on October 18, 2011, which resulted in a verdict for defendant. The only eyewitnesses to testify at trial were plaintiff and defendant.*fn1

The Current Motion

Plaintiff now moves, pursuant to Fed. R. Civ. P. 59(a)(1)(A), for a new trial on the ground that the court's jury instructions were improper. Specifically, plaintiff claims that the court failed to properly define probable cause, gave an improper missing witness charge, and gave deficient and erroneous charges with respect to the malicious prosecution claim, specifically initiation of prosecution and deprivation of liberty.

1. Probable Cause

With respect to probable cause, the court instructed the jury as follows:

A police officer can make an arrest if he has probable cause to believe the person committed a crime. He doesn't have to have proof beyond a reasonable doubt. He is not conducting a trial; he is conducting an arrest. If he has probable cause to believe that the person he is arresting committed a crime, then that is a valid arrest. It is not a false arrest; it is a valid arrest. Now very often he must rely on information which is less than certain.

Let's suppose that someone is shot and is lying in the street and the person who does the shooting runs away and let's suppose that the bystanders find a policeman and call the policeman over and tell him that John Jones shot the person and has run away. Now, the officer didn't see the crime. The officer doesn't literally know if their identification is correct. Maybe there are several people around and they say it was John Jones who did this shooting and ran away. The officer doesn't literally know for a certainty, but if he receives what he can reasonably consider as reliable information, then we say that he has probable cause to go after the person John Jones, and if he can find him, he can arrest him.

But here, the standard has been told to you and it is the standard that this arrest was proper if there was probable cause to believe that violations of law occurred and were committed by Mr. Smith. But we are really not dealing with probabilities, so I don't want you to get caught up on that. Mr. Smith has admitted that his license had been suspended because he had not paid a parking ticket. That's a certainty.

As far as whether he was operating his vehicle on 116th Street, that either happened or it didn't; either it was observed by Officer Tobon or it wasn't. Officer Tobon says he observed the operation of the vehicle and that's his testimony. Mr. Smith has a very different version. So we are not dealing with probabilities in the sense of the shooting I talked about. This is a matter of observation of definite facts. Either the facts were observed that constituted a crime, or they were not.

So the issue is really one of credibility between the two, the plaintiff and the defendant, and the issue really is not about probabilities but was there cause for the arrest. If it happened one way, there was; if it happened the other way, there was no cause for the arrest.

Tr. at 150:15-152:4. Plaintiff objected to the charge as follows:

MR. OKOLI: . . . I thought the Court spent quite some time in talking about the probable cause related to the false arrest without for once indicating the converse, which is even though he had a suspended license, if he was not operating, then the arrest would not be lawful. The Court never said that once.

THE COURT: I told them that.

MR. OKOLI: I was listening. The Court paid a lot of emphasis. All I'm saying is there is an undue emphasis and the Court kept coming back to it-whatever the transcript shows, that's what it shows-emphasizing the fact that an officer had the right, which is okay, except that equal emphasis wasn't given to the fact that-

THE COURT: I just ...

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