United States District Court, E.D. New York
DERRELL C. JONES, Plaintiff,
THE CITY OF NEW YORK, DET. ALAN DAAB, LT. DENNIS KLEIN, SGT. SHAUN MARA, DET. SEAN WARD, SGT. McKENNA, P.O. BRYAN PIERRE, JOHN AND JANE DOES, Defendants.
MEMORANDUM DECISION AND ORDER
BRIAN M. COGAN, District Judge.
Plaintiff brought this action under several provisions of the Civil Rights Act of 1871, 42 U.S.C. § 1983 et seq., and corresponding provisions of state law, for false arrest, malicious prosecution, and related claims arising out of his arrest for gun possession. Plaintiff has withdrawn his state law claims and his retaliation claim. His federal false arrest claims have been previously dismissed, and the remaining federal claims fail because plaintiff can point to no false statement that led to his prosecution, the decision to prosecute was made by a prosecutor, and there is a total absence of any facts upon which a jury could reasonably find malice.
The material facts are undisputed. One of the police defendants, Detective Daab, obtained information from a confidential informant that armed gang members were operating out of a residence and that they were illegally in possession of firearms. He obtained a search warrant based on that information and he and the other police defendants executed it.
The confidential information proved entirely correct. The place was awash in illegal guns and gang members. Plaintiff was in the living room when the police entered, and one of the people in the apartment was also in the living room holding an illegal firearm in plain view. That person bolted towards the back of the apartment together with three other males, and the police gave chase. One of the suspects threw a gun into a bathroom and another threw one into the front bedroom. Upon performing a protective sweep, police found another gun in the back bedroom, and upon a more thorough search, five guns in total were recovered: the one on the bathroom floor; three guns in the first bedroom - the one on the floor, one under a mattress, and one in a plastic bin - and the one in the rear bedroom. At least nine occupants of the apartment, including plaintiff, were arrested.
Detective Daab swore out a criminal complaint that describes the incident as set forth above. The matter then proceeded to arraignment. Plaintiff was arraigned on the gun charges together with two other defendants. As to bail, the lawyer argued, among other things, that plaintiff and one of the other criminal defendants did not have constructive possession of the guns. Their attorney (one attorney represented all three defendants at arraignment) asserted that plaintiff and one of the other criminal defendants did not live in the apartment and had no knowledge of the guns that were found in the apartment, other than the one that was held by another person sitting in the living room of the apartment. The arraignment judge noted that plaintiff had just pled guilty as a youthful offender on another charge of felony gun possession, and set bail at $100, 000, which plaintiff failed to make.
About two months later, the indictment came down and plaintiff was arraigned on it. Plaintiff was charged with criminal possession of a weapon in the second degree and other related charges. Plaintiff's bail was reduced to $75, 000 to match that of one of his codefendants, which he still could not make. At neither this bail hearing nor the prior one did plaintiff explain why he was in a house used as a gang hangout that was full of illegal guns.
Plaintiff's motion to dismiss the indictment was granted two months later. Based on its review of the grand jury testimony, the trial court reasoned that the gun held by one of the perpetrators in the living room where plaintiff was found could not be attributed to plaintiff because there was no evidence to show that plaintiff was acting in concert with that perpetrator. It further reasoned that the other guns found in the apartment could not be attributed to plaintiff because they were found in bedrooms and bathrooms, which it did not feel were common areas, nor was plaintiff ever observed to have been in these rooms. Additionally, it found that there was no evidence that plaintiff resided in or had any possessory interest in the subject premises. Since there was no probable cause to support the charges, in the trial court's view, the indictment had to be dismissed. The trial court granted the District Attorney leave to re-present the case to another grand jury.
Plaintiff then commenced this action and, after the conclusion of discovery, defendants moved for summary judgment.
At oral argument on the motion, plaintiff's counsel conceded that under these circumstances, given the fluidity of the situation at the time of arrest and the plethora of firearms and gang members, the defendant police officers were entitled to qualified immunity on the false arrest claims. The Court subsequently dismissed those claims. The primary remaining claims are for malicious prosecution and denial of the right to a fair trial.
"In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law." Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (internal citations omitted). "To establish a malicious prosecution claim under New York law, a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Id. at 161 (citations and internal quotation marks omitted).
I cannot find any evidence in this record upon which a jury could reasonably conclude that any of the defendant police officers acted with actual malice. Although absent from his brief, at oral argument, plaintiff's counsel relied heavily on the criminal complaint/affidavit filed by Detective Daab, but plaintiff's counsel could not point to anything in it that was false. The criminal complaint simply described exactly what happened as set forth in the undisputed facts above, and then concluded that plaintiff and his two fellow defendants in the criminal case were in constructive possession of a loaded firearm. It did not state anywhere that plaintiff was in physical possession of a firearm. Detective Daab's complaint specifically noted who had the firearms and who was being charged with constructive possession. Apparently, plaintiff claims that the allegation that he was in constructive possession of a firearm was a "false" statement sufficient to support a finding of malice.
When a police officer accurately details the facts leading to an arrest, and then states his conclusion as to whether those facts amount to the commission of a crime, I do not see how that can demonstrate malice. He is not a lawyer, and his conclusion of law is not a "fact" that can be "false." It is the prosecutor who reviews the facts as related, and then makes his own determination as to whether the crime that the officer has identified, or some other crime, has been committed. Beyond that, if the prosecutor reaches his own conclusion that the matter should be pursued, a grand jury must also consider that conclusion and decide whether to adopt it. When both the prosecutor and the grand jury, acting on accurate facts related by a police officer, agree that there is probable cause to believe that a crime has occurred, an allegation that the police officer acted with "malice, " made simply because ...