16‐1715‐cv Dufort v. City of New York, et al.

1

2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2016 8 9 ARGUED: MAY 3, 2017 10 DECIDED: OCTOBER 27, 2017 11 12 No. 16‐1715‐cv 13 14 RYAN DUFORT, 15 Plaintiff‐Appellant, 16 17 v. 18 19 CITY OF NEW YORK, JOSEPH MAROTTA, JAE SHIM, THOMAS CONFORTI, 20 WILLIAM SCHMITTGALL, and JOHN and JANE DOES 1 through 10, 21 Defendants‐Appellees, 22 23 RICHARD A. BROWN, PATRICK O’CONNOR, and MICHAEL VOZZO, 24 Defendants.1 25 ________ 26 27 Appeal from the United States District Court 28 for the Eastern District of New York. 29 No. 12 Civ. 2283 – Steven M. Gold, Magistrate Judge. 30 ________ 31

1 The clerk of court is directed to amend the opinion to match the caption above. 2 No. 16‐1715‐cv

1 Before: WALKER, LIVINGSTON, and LYNCH, Circuit Judges. 2 ________ 3 4 Plaintiff‐appellant Ryan Dufort appeals from a memorandum

5 and order of the United States District Court for the Eastern District

6 of New York (Steven M. Gold, M.J.) granting summary judgment to

7 the defendants, the City of New York and New York City police

8 officers Joseph Marotta, Jae Shim, Thomas Conforti, and William

9 Schmittgall (collectively, “Defendants”), on Dufort’s claims under 42

and the Fourth and Fifth Amendments for false arrest,

11 malicious prosecution, and violation of due process. Dufort was

12 arrested and charged in connection with a 2006 bar brawl that left

13 one victim dead and another severely injured, but was ultimately

14 acquitted by a jury of any criminal wrongdoing.

15 The district court concluded that (1) Dufort’s false arrest

16 claims failed because his arrest was supported by probable cause; (2)

17 his malicious prosecution claims failed, both because his prosecution

18 was supported by probable cause, and the chain of causation

19 between the arrest and the ultimate prosecution was broken by the

20 District Attorney’s decision to pursue charges and the grand jury’s

21 decision to issue an indictment; and (3) his due process claims,

22 which were premised on Dufort’s assertion that the Defendants

23 intentionally suppressed or distorted exculpatory evidence at trial, 3 No. 16‐1715‐cv

1 failed as a matter of law because the allegedly suppressed evidence

2 was elicited at trial.

3 We conclude that the district court’s grant of summary

4 judgment as to Dufort’s false arrest and malicious prosecution

5 claims was premature, because disputed questions of material fact

6 remain regarding key aspects of the criminal investigation and

7 subsequent prosecution. We further conclude that those same

8 questions of material fact preclude a grant of qualified immunity at

9 the summary judgment stage. We agree with the district court,

10 however, that Dufort’s due process claims fail as a matter of law. We

11 therefore AFFIRM in part and VACATE and REMAND in part the

12 judgment of the district court.

13 ________ 14 15 KAYLA C. BENSING (Edwin G. Schallert, on the 16 brief), Debevoise & Plimpton LLP, New York, NY, 17 for Plaintiff‐Appellant.

18 KATHY C. PARK, Assistant Corporation Counsel 19 (Fay Ng, on the brief) for Zachary W. Carter, 20 Corporation Counsel of the City of New York, 21 New York, NY, for Defendants‐Appellees.

22 ________ 23 24 JOHN M. WALKER, JR., Circuit Judge:

25 Plaintiff‐appellant Ryan Dufort appeals from a memorandum

26 and order of the United States District Court for the Eastern District 4 No. 16‐1715‐cv

1 of New York (Steven M. Gold, M.J.)2 granting summary judgment to

2 the defendants, the City of New York and New York City police

3 officers Joseph Marotta, Jae Shim, Thomas Conforti, and William

4 Schmittgall (collectively, “Defendants”), on Dufort’s claims under 42

and the Fourth and Fifth Amendments for false arrest,

6 malicious prosecution, and violation of due process. Dufort was

7 arrested and charged in connection with a 2006 bar brawl that left

8 one victim dead and another severely injured, but was ultimately

9 acquitted by a jury of any criminal wrongdoing.

10 The district court concluded that (1) Dufort’s false arrest

11 claims failed because his arrest was supported by probable cause; (2)

12 his malicious prosecution claims failed, both because his prosecution

13 was supported by probable cause, and the chain of causation

14 between the arrest and the ultimate prosecution was broken by the

15 District Attorney’s decision to pursue charges and the grand jury’s

16 decision to issue an indictment; and (3) his due process claims,

17 which were premised on Dufort’s assertion that the Defendants

18 intentionally suppressed or distorted exculpatory evidence at trial,

19 failed as a matter of law because the allegedly suppressed evidence

20 was elicited at trial.

The parties consented to have the summary judgment motion 2

adjudicated by a magistrate judge. 5 No. 16‐1715‐cv

1 We conclude that the district court’s grant of summary

2 judgment as to Dufort’s false arrest and malicious prosecution

3 claims was premature, because disputed questions of material fact

4 remain regarding key aspects of the criminal investigation and

5 subsequent prosecution. We further conclude that those same

6 questions of material fact preclude a grant of qualified immunity at

7 the summary judgment stage. We agree with the district court,

8 however, that Dufort’s due process claims fail as a matter of law. We

9 therefore AFFIRM in part and VACATE and REMAND in part the

10 judgment of the district court.

11 BACKGROUND

12 Dufort’s suit stems from his arrest and prosecution in New York

13 state court on charges of murder in the second degree and

14 manslaughter in the first degree that resulted in his acquittal by a

15 jury. On this appeal, we take the facts, most of which are not in

16 dispute, in the light most favorable to the plaintiff. See Taggart v.

17 Time Inc.,

(2d Cir. 1991).

18 I. The Attack

19 The story of this case began when, on October 7, 2006, Dufort

20 and four friends—Christopher Baez, Sebastian Yoon, Jeffrey Shih,

21 and John Bae—went to the Pastel Karaoke bar in Queens, New York.

22 Dufort, who was fifteen years old at the time, was wearing a 6 No. 16‐1715‐cv

1 maroon, zip‐up, hooded sweatshirt with a white “American Eagle”

2 logo on it. Earlier in the evening, Dufort and his four companions

3 had gone to a nearby construction site to gather pieces of pipe in

4 order to defend themselves “just in case” an altercation occurred.

5 Surveillance video shows Dufort entering Pastel Karaoke shortly

6 after midnight with a one‐and‐a‐half‐foot pipe concealed in his

7 sweatshirt. When they arrived at the club, the five friends met up

8 with a larger group of about twenty students from Bayside High

9 School, some of whom were affiliated with a local gang known as

10 the “Ghost Shadows.” This group spent most of the night in some of

11 the club’s private karaoke rooms.

12 At approximately 3:00 AM on the morning of October 8, a

13 separate group of teenagers—Jung Hwa Lee, Hwa Young Park,

14 Mink‐ki Shin, and In Hee Yoo—arrived at Pastel Karaoke. At 3:50

15 AM, as this group attempted to leave, Lee and Shin were attacked in

16 the central area of the bar. During the altercation, Sebastian Yoon

17 entered a private room occupied by Dufort and his friends and

18 informed them that a fight had broken out. Some of Dufort’s friends

19 ran out to participate in the fight. Dufort also left the private room

20 when the fight began, and surveillance footage shows him walking

21 down a corridor holding his length of pipe. There is no surveillance

22 footage, however, of the attack itself. Dufort claims that when he

23 entered the bar area he witnessed a group of ten to twenty men 7 No. 16‐1715‐cv

1 assaulting the victims, and that he stepped over either Lee or Shin,

2 who was lying on the ground, in order to leave the bar. Dufort

3 maintains that he never participated in the fight, and that he never

4 used physical force against either victim. Surveillance footage shows

5 Dufort leaving the bar with a group of other young men, some of

6 whom were holding bats. One other young man in a red, button‐

7 down shirt, who is holding a bat, is seen leaving the building

8 moments after Dufort.

9

10 II. The Criminal Investigation

11 Lee and Shin were rushed to Flushing Hospital, where Lee

12 was pronounced dead. Shin survived, but sustained a severe head

13 injury that required nine staples to close. Hwa Young Park, who had

14 witnessed part of the attack, accompanied the victims to the

15 hospital, and was interviewed there by police at approximately 5:30

16 AM. Park then accompanied the police to the 109th Precinct, where

17 she spoke with Detectives Joseph Marotta and Jae Shim. At the

18 police station, Detective Marotta showed Park surveillance video

19 and still images from the bar and asked her if she could identify

20 various individuals appearing in the footage, including Dufort, as

21 Lee and Shin’s assailants. Park replied that one of the attackers,

22 whom she had only seen from behind, was wearing a red shirt that

23 was similar in color to Dufort’s sweatshirt. However, she stated that 8 No. 16‐1715‐cv

1 she did not recognize Dufort’s face, or any other distinguishing

2 characteristics, and that she could not see whether the jacket had any

3 logo or other insignia on it. She could only confirm that she had seen

4 a person wearing a similar colored shirt participate in the attack, and

5 that she had only seen this person from behind. In a deviation from

6 normal police procedure, Detectives Marotta and Shim did not

7 contemporaneously document Park’s statements to them in a

8 “Complaint—Follow Up Informational Report,” or “DD5” form.

9 Two other individuals who had been at Pastel Karaoke that

10 night—David Han and Eric Kim—were also questioned by Marotta.

11 Both confirmed that Dufort could be seen in the surveillance

12 footage, but neither had seen him participate in the brawl.

At

13 some point after the attack, police also spoke with one of Dufort’s

14 friends, Tom Yoon, who stated that Dufort had previously claimed

15 to be a member of the “Ghost Shadows” gang, and that he had tried

16 to recruit Yoon.

17 Three days after the attack, on October 11, 2006, police

18 arrested3 Dufort and brought him to the precinct, where Detectives

19 Marotta and William Schmittgall interviewed him in the presence of

Defendants’ brief suggests that there may be some question about 3

whether the arrest about which Dufort complains occurred on October 11 or later in the investigation. See Appellees’ Br. at 28–29. Dufort assumes that October 11 is the relevant date, and, drawing all reasonable inferences in his favor, there is no indication that he was not formally taken into custody at that time. 9 No. 16‐1715‐cv

1 his parents. Dufort told the detectives that he had been at Pastel

2 Karaoke the night of the attack, but that he did not participate in the

3 brawl. Later that evening, the detectives had Dufort participate in a

4 lineup. During the lineup, Dufort was wearing a maroon sweatshirt

5 that was similar or identical to the one he had worn on the night of

6 the attack. No other participant in the lineup was wearing a red

7 shirt. Park and five other witnesses were asked if they could identify

8 Dufort as one of the assailants. Park was the only witness to identify

9 Dufort as a person involved in the attack. At trial, Park admitted

10 that her identification of Dufort at the lineup was based solely on the

11 fact that Dufort was wearing a sweatshirt similar in color to the shirt

12 or jacket worn by one of Lee and Shin’s attackers.4 Dufort’s attorney,

13 William F. Mackey, Jr., who accompanied him to the lineup,

14 submitted an affidavit stating, among other things, that, while they

15 were at the precinct, an unidentified detective told him that the

16 police knew Dufort was not involved in the attack but wanted him

17 to be a witness against other individuals who were involved.

Park testified at a 2014 deposition that she was able to distinguish 4

another red‐shirted man, shown on the surveillance video leaving the bar shortly after Dufort, from the assailant because that man had “spiky hair” (which Dufort did not). As we discuss below, there are reasons to doubt the reliability of that assertion; in any event, there is no indication in the record that Park made any claim that she could distinguish Dufort from others wearing similar clothing at the time of her lineup identification. 10 No. 16‐1715‐cv

1 Based on the surveillance video from Pastel Karaoke, and

2 Park’s identification of Dufort’s jacket, on October 13, 2006,

3 Detective Marotta swore to a criminal complaint charging Dufort

4 with second‐degree murder, first‐degree manslaughter, first‐degree

5 gang assault, and second‐degree assault.

6

7 III. The Criminal Prosecution

8 In early 2007, Assistant District Attorneys Andrea Eckhardt

9 and Michael Vozzo presented evidence to a grand jury seeking the

10 indictment of Dufort and six other defendants in connection with

11 the attack on Lee and Shin. Park’s lineup identification was the only

12 grand jury evidence directly identifying Dufort as one of the

13 assailants. Both Park and Detective Marotta, who also testified

14 regarding the lineup, indicated to the grand jury that Park had

15 identified Dufort as an assailant. Neither revealed to the grand jury

16 that the identification was based only on the color of his sweatshirt

17 nor that at least one other male seen leaving Pastel Karaoke shortly

18 after the attack wore a similarly colored shirt.5 The parties have

The entirety of Detective Marotta’s grand jury testimony as to Dufort is as 5

follows: Q. [By ADA Eckhardt] . . . Turning your attention first to the date of October 12th of 2006, at approximately 6:45pm, at the 109 Precinct. Did you have occasion to conduct a lineup on that date? A. Yes, we conducted two lineups, yes. Q. Turning your attention to the first lineup you conducted at eighteen forty‐ five hours. Was that the lineup of Ryan Dufort? 11 No. 16‐1715‐cv

1 introduced conflicting evidence regarding whether ADAs Eckhardt

2 and Vozzo were aware that Park’s identification was based soley on

3 the color of Dufort’s clothing before they initiated the prosecution

4 against him. Jonathan Putt, another person who was present at

5 Pastel Kareoke on the night of the attack, provided testimony to the

6 grand jury placing Dufort on the scene with a pipe. Specifically, Putt

7 testified that he was in a private room with Dufort and others when

8 Sebastian Yoon entered the room and announced that a fight had

9 broken out; that Dufort had followed the others to the site of the

A. I believe it was. Q. And did that lineup consist of six individuals holding numbers? A. Yes. Q. And was that lineup viewed by Miss Park? A. Yes. Q. Can you tell us what position Ryan Dufort occupied in the lineup at the time it was viewed by Miss Park? A. I, I don’t have the position. Q. Would your lineup sheet refresh your recollection? A. Yes. Q. Please tell us what position he was in the lineup as it was viewed by Miss Park? A. Position Number 3. Q. Is Ryan Dufort one of the subjects of this Grand Jury investigation? A. Yes, he is. Park’s entire grand jury testimony as to Dufort is as follows: Q. [By ADA Eckhardt]. . . Did there come a time on October 12 of 2006, at approximately 6:45pm that you went to the 109 Precinct to view a line‐up? A. Yes. Q. Did that lineup consist of six people holding numbers? A. Yes. Q. Did you recognize anyone from that line‐up? A. Yes. Q. What number did you recognize? A. I chose number 3. Q. What did you recognize number 3 as having done during the incident you just described? A. He was jumping on both victims. 12 No. 16‐1715‐cv

1 fight, taking a pipe with him; and that when John Bae stated that he

2 had hit one of the victims and that the pipes were “really good”

3 because they did not bend, Dufort expressed his agreement.

4 Months later, on November 28, 2007, one of Dufort’s co‐

5 defendants, Sebastian Yoon, pleaded guilty to manslaughter in

6 exchange for an agreement to provide testimony against the

7 remaining defendants. At his plea allocution, Yoon implicated other

8 assailants in the attack, but when he did not mention Dufort, ADA

9 Eckhardt asked him whether Dufort had participated in the brawl.

10 Yoon replied, “I think he punched.”

11 Dufort spent nearly five years incarcerated at Rikers Island

12 Prison Complex in New York City awaiting trial.6 In May of 2011,

13 Dufort, along with Bae, Baez, and two others, was tried for the

14 attack on Lee and Shin. Park testified at trial. She could not identify

15 Dufort in the courtroom. After the prosecutor showed Park the

16 surveillance video, she testified that she recognized Dufort in the

17 video, but that she recognized him by his clothing, rather than by his

We hope that shockingly long pretrial detentions like this will one soon be a 6

thing of the past. The recent report of the independent commission that recommended closing Rikers Island gives us reason for optimism. See INDEP. COMM’N ON N.Y.C. CRIMINAL JUSTICE & INCARCERATION REFORM, A MORE JUST NEW YORK CITY (2017), https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/595d48 d1e6f2e1e5bcaa411a/1499285717652/Lippman+Commission+Report+FINA L+Singles.pdf. 13 No. 16‐1715‐cv

1 face. The jury returned guilty verdicts for Dufort’s four co‐

2 defendants and acquitted Dufort of all charges.

3

4 IV. The Present Civil Suit

5 On May 8, 2012, Dufort brought the present action against the

6 City of New York and Detectives Marotta, Shim, and Schmittgall, as

7 well as Detective Thomas Conforti and several other police officers.

8 Dufort also initially named several prosecutors as defendants, but he

9 abandoned those claims during the course of the proceedings. He

10 also substantially narrowed his claims against the remaining

11 defendants.

12 On April 10, 2015, the Defendants moved for summary

13 judgment on Dufort’s remaining claims. These included claims

14 under

against the individual defendants for false

15 arrest, malicious prosecution, and denial of due process, as well as a

16 state law claim against the City of New York asserting a state law

17 malicious prosecution claim premised on a theory of respondeat

18 superior liability. On April 28, 2016, the district court granted the

19 Defendants’ motion for summary judgment as to all of Dufort’s

20 remaining claims, holding that there was no genuine dispute of

21 material fact regarding whether Dufort’s arrest and subsequent

22 prosecution were supported by probable cause. The district court

23 also justified granting summary judgment on Dufort’s malicious 14 No. 16‐1715‐cv

1 prosecution claim on the independent ground that Dufort could not

2 show that the defendant police officers “caused” his prosecution,

3 because the District Attorney’s decision to prosecute and the grand

4 jury’s indictment interrupted the chain of causation between the

5 allegedly wrongful arrest and trial. The district court granted

6 summary judgment on Dufort’s due process claim, because Dufort

7 had not proved that the evidentiary record at his criminal trial was

8 unfairly distorted.

9 Dufort now timely appeals.

10

11 DISCUSSION

12 A district court’s grant of summary judgment is reviewed de

13 novo. Gallo v. Prudential Residential Servs., Ltd. Pʹship,

,

14 1224 (2d Cir. 1994). On a motion for summary judgment, the court

15 must “resolve all ambiguities and draw all permissible factual

16 inferences in favor of the party against whom summary judgment is

17 sought.” Estate of Gustafson ex rel. Reginella v. Target Corp.,

(2d Cir. 2016) (quoting Stern v. Trustees of Columbia Univ.,

19

(2d Cir. 1997)). Summary judgment is appropriate

20 only if the pleadings, the discovery and the disclosure materials on

21 file, and any affidavits show “that there is no genuine dispute as to

22 any material fact and the movant is entitled to judgment as a matter

23 of law.” Fed. R. Civ. P. 56(a). All legal conclusions by a district court 15 No. 16‐1715‐cv

1 are reviewed de novo. United States v. Livecchi,

(2d

2 Cir. 2013) (per curiam).

3 On appeal, Dufort argues that the district court erred in

4 granting summary judgment to the Defendants because, (1) neither

5 his arrest nor his prosecution was supported by probable cause; (2)

6 neither the the ADA’s independent decision to pursue charges nor

7 the grand jury indictment broke the chain of causation between his

8 unlawful arrest and the subsequent prosecution; and (3) the

9 Defendants denied Dufort due process by fabricating inculpatory

10 evidence through an inappropriately suggestive lineup. The

11 Defendants argue that summary judgment was appropriate on all

12 counts and further argue that, in any event, they are entitled to

13 qualified immunity because their arrest of Dufort and their

14 subsequent role in his criminal prosecution were justified by

15 arguable probable cause.

16 We find that key questions of material fact regarding Dufort’s

17 false arrest and malicious prosecution claims remain in dispute, and

18 therefore remand those claims for further proceedings. We agree

19 with the Defendants, however, that Dufort’s due process claims fail

20 as a matter of law, and therefore affirm the district court’s grant of

21 summary judgment as to those claims.

22 16 No. 16‐1715‐cv

1 I. False Arrest Claim

2 In order to sustain a claim for false arrest under

1983 and New York law, a plaintiff must show that “the defendant

4 intentionally confined him without his consent and without

5 justification.” Weyant v. Okst,

(2d Cir. 1996).

6 “Because probable cause to arrest constitutes justification, there can

7 be no claim for false arrest where the arresting officer had probable

8 cause to arrest the plaintiff.” Escalera v. Lunn,

(2d

9 Cir. 2004). The district court found that the Defendants’ arrest of

10 Dufort three days after the attack on Lee and Shin was supported by

11 probable cause, and that as a result Dufort’s claim for false arrest

12 fails as a matter of law. We belive there are genuine issues of

13 material fact that should have precluded summary judgment on this

14 point.

15 Generally, “probable cause to arrest exists when the officers

16 have knowledge or reasonably trustworthy information of facts and

17 circumstances that are sufficient to warrant a person of reasonable

18 caution in the belief that the person to be arrested has committed or

19 is committing a crime.” Weyant,

. Probable cause is a

20 mixed question of law and fact. See, e.g., United States v. Singletary,

21

(2d Cir. 2015). Questions of historical fact regarding

22 the officers’ knowledge at the time of arrest are to be resolved by the

23 jury. See Kerman v. City of New York,

(2d Cir. 2004). 17 No. 16‐1715‐cv

1 However, “where there is no dispute as to what facts were relied on

2 to demonstrate probable cause, the existence of probable cause is a

3 question of law for the court.” Walczyk v. Rio,

(2d

4 Cir. 2007).

5 Probable cause is “a fluid concept . . . not readily, or even

6 usefully, reduced to a neat set of legal rules.”

(alteration in

7 original) (quoting Illinois v. Gates,

(1983)). Although

8 probable cause requires more than “mere suspicion” of wrongdoing,

9 it focuses on “probabilities,” not “hard certainties.”

(quoting

10 Gates,

). Ultimately, whether probable cause exists

11 “depends on the totality of the circumstances” of each case, and is

12 not susceptible to “precise definition or quantification into

13 percentages.” Maryland v. Pringle,

(2003). “Finely

14 tuned standards such as proof beyond a reasonable doubt or by a

15 preponderance of the evidence, useful in formal trials, have no place

16 in the [probable‐cause] decision.”

(alteration omitted) (internal

17 quotation marks omitted) (quoting Gates,

). However,

18 a determination of probable cause is not lacking in substance: it

19 must be justified by a “belief of guilt” that is “particularized with

20 respect to the person to be searched or seized.”

(citing Ybarra v.

21 Illinois,

(1979)).

22 As a preliminary matter, we can conclude that the lineup in

23 which Park “identified” Dufort (and which was the cornerstone of 18 No. 16‐1715‐cv

1 the state’s case against him) should not factor into any probable

2 cause analysis. An identification cannot be used to support probable

3 cause if the “identification procedure was ‘so defective that probable

4 cause could not reasonably be based upon it.’” Stansbury v. Wertman,

5

, 91 n.7 (quoting Jenkins v. City of New York,

,

6 93 (2d Cir. 2007)). Park’s lineup identification of Dufort resulted

7 from a paradigmatic example of an improperly suggestive lineup.

8 Park stated to officers that she did not recognize Dufort’s face, and

9 that she could only recognize the color of his sweatshirt as similar to

10 that of one of the assailants. Police then placed Dufort in a lineup in

11 which he was the only suspect wearing clothing resembling a red

12 shirt. Park picked Dufort out, again stressing that she recognized

13 only his clothing.

14 This cannot be construed as an “identification” of Dufort for

15 the purposes of probable cause. We have made clear that a lineup in

16 which the suspect is the only individual “wearing distinctive

17 clothing or otherwise matching important elements of the

18 description provided by the victim . . . substantially increases[es] the

19 danges of misidentification.” Raheem v. Kelly,

(2d

20 Cir. 2001) (quoting Israel v. Odom,

(7th Cir.

21 1975)). At most, Park confirmed a statement she had already given

22 police several times: that Dufort’s jacket was similar in color to a

23 jacket or shirt worn by one of the assailants. This statement could be 19 No. 16‐1715‐cv

1 given some weight in a probable cause analysis, albeit limited

2 weight, given the presence of one or more other people at Pastel

3 Karaoke who were similarly clothed. Its repetition during the

4 lineup, however, given the surrounding circumstances, could

5 provide no evidence that the assailant was in fact Dufort.

6 The question before us, then, is whether the undisputed

7 evidence presented by the Defendants other than Park’s lineup

8 “identification” was sufficient to establish probable cause to arrest as

9 a matter of law. We hold that it was not. A reasonable jury could

10 easily find that, apart from her “identification” at the suggestive

11 lineup, Park never identified Dufort before or after the lineup as one

12 of the assailants in either the investigation or the ensuing

13 prosecution. To the contrary, she appears to have explicitly told

14 police prior to Dufort’s arrest that she recognized him only by the

15 color of the jacket worn by one of the assailants, and that she could

16 not positively distinguish between him and another patron wearing

17 a shirt of a similar color. As Dufort has pointed out, the Defendants’

18 unusual decision to depart from normal practice and not

19 contemporaneously document their initial interview with Park in a

20 “DD5” form raises considerable doubt about the exact nature of her

21 initial identification—doubt which, at the summary judgment stage,

22 must be construed in Dufort’s favor. See, e.g., Beyer v. Cty. of Nassau,

23

(2d Cir. 2008). 20 No. 16‐1715‐cv

1 Park reiterated her jacket‐color‐only identification at several

2 points throughout the original criminal trial and this civil litigation.

3 In her 2014 deposition testimony, she stated that she recognized

4 Dufort as one of the assailants by “the color of his clothing,” but also

5 recalled having seen “at least two” people in Pastel Karaoke that

6 night wearing shirts or jackets with the same maroon color as

7 Dufort’s sweatshirt. Upon further questioning, Park admitted, “I

8 don’t know which person I saw exactly,” but that “one who were

9 [sic] wearing those kind of color [sic] was [j]umping and stomping

10 Jung Hwa Lee.” Likewise, in the criminal trial, when she was asked

11 whether she could identify Dufort, she replied, “[n]ot face but

12 clothing.”

13 The Defendants point out that Park testified at her deposition

14 in this case that the other person she had seen wearing a red shirt

15 was distinguishable from Dufort because the other patron had

16 “spiky hair, very short hair.” But there is no evidence that Park

17 made this statement before February 28, 2014—seven years after the

18 attack, and after Dufort had already been prosecuted and acquitted

19 of all charges. A reasonable jury could therefore find that the

20 statement had no bearing on whether probable cause existed to

21 arrest Dufort in 2006 or to bring criminal charges against him in

22 2007, because it sheds no light on what the Defendants knew or

23 reasonably believed when they were conducting the underlying 21 No. 16‐1715‐cv

1 criminal investigation. The Defendants have not cited any record

2 evidence to suggest that Park was able to distinguish between the

3 various suspects seen wearing red shirts prior to the criminal trial.

4 Moreover, Park’s statement regarding the suspects’ different

5 hairstyles is at odds with other statements in her civil deposition, in

6 which she repeats her position that she could not recognize Dufort

7 as one of the assailants, and only recognized the color of his jacket.

8 At most, Park’s deposition testimony indicates that the nature of her

9 identification of Dufort and her reliability as a witness are disputed

10 questions of material fact which should be resolved by a jury at trial,

11 not by a court at summary judgment. See Anderson v. Liberty Lobby,

12 Inc.,

(1986) (“Credibility determinations, the

13 weighing of the evidence, and the drawing of legitimate inferences

14 from the facts are jury functions, not those of a judge . . . [when] he is

15 ruling on a motion for summary judgment . . . .”).

16 Setting aside the inconclusive identification by Park, who was

17 the police and prosecution’s sole identification witness against

18 Dufort, the Defendants’ remaining evidence is too gossamer to

19 support the conclusion that, as a matter of law, there was probable

20 cause to arrest. There was no video of the attack on Lee and Shin;

21 none of the five eyewitnesses other than Park who were questioned

22 were able to identify Dufort as an assailant; and no forensic evidence

23 tying Dufort to the attack was ever produced. Ultimately, the most 22 No. 16‐1715‐cv

1 that the record on summary judgment establishes is that Dufort had

2 come to Pastel Karaoke on October 8, 2006 with many others, some

3 of whom who later participated in the attack on Lee and Shin; that

4 he, like others, brought a pipe to the bar “just in case” a fight

5 occurred; that he was one of at least two patrons who wore a shirt

6 similar in color to that worn by one of the assailants; that he was in

7 the vicinity of the fight when it occurred; and that he at one time

8 commented to a friend that he was in a gang called the “Ghost

9 Shadows.”

10 It is well settled that probable cause requires more than

11 suspicions, even reasonable ones. See, e.g., United States v. Sokolow,

12

(1989). Police do not have particularized probable cause

13 to make an arrest simply because a suspect has suspicious

14 acquaintances, or happens to be at the scene of a crime—particularly

15 when, as here, the crime occurs in a crowded public place. Cf. Ybarra,

16

. (“[A] person’s mere propinquity to others

17 independently suspected of criminal activity does not, without

18 more, give rise to probable cause to search that person.”). Thus, in

19 Ybarra v. Illinois,

(1979), the Supreme Court held that

20 police did not have probable cause to search patrons of a bar for

21 heroin merely because they had reliable information that the

22 bartender used the establishment to sell narcotics to customers.

23 Instead, the Court held that “[w]here the standard is probable cause, 23 No. 16‐1715‐cv

1 a search or seizure of a person must be supported by probable cause

2 particularized with respect to that person.” Id.; see also Pringle, 540

3 U.S. at 371.

4 Viewing the evidence in the light most favorable to the

5 plaintiff, a reasonable jury could find that the police arrested Dufort

6 based on little more than a witness’s statement that he wore a

7 similar shirt to that of one of Lee and Shin’s attackers. Although a

8 jury could also interpret the evidence differently, the record presents

9 genuine issues of material fact that preclude the conclusion that

10 there was probable cause as a matter of law and that, instead,

11 require a trial on the merits.

12

13 II. Malicious Prosecution

14 In the absence of federal common law, the merits of a claim

15 for malicious prosecution under § 1983 are governed by state law.

16 Janetka v. Dabe,

(2d Cir. 1989). In New York, the

17 four essential elements of a malicious prosecution claim are: “(1) the

18 commencement or continuation of a criminal proceeding by the

19 defendant against the plaintiff, (2) the termination of the proceeding

20 in favor of the accused, (3) the absence of probable cause for the

21 criminal proceeding and (4) actual malice.” Smith‐Hunter v. Harvey,

22

(2000) (internal citations and quotation marks

23 omitted). 24 No. 16‐1715‐cv

1 The district court based its grant of summary judgment on

2 Dufort’s malicious prosecution claims on the grounds that (1)

3 Dufort’s prosecution was justified by the same probable cause as his

4 arrest, and that probable cause grew stronger in subsequent months

5 by the discovery of new evidence; and (2) in any event, the decisions

6 of ADAs Eckhart and Vozzo to pursue charges and of the grand jury

7 to indict Dufort relieve the Defendants of any liability. We find that

8 key questions of material fact regarding Dufort’s malicious

9 prosecution claims remain in dispute, and therefore remand those

10 claims for further proceedings.

11

12 A. Probable Cause

13 The “existence of probable cause is a complete defense to a

14 claim of malicious prosecution in New York.” Savino v. City of New

F.3d 63, 72 (2d Cir. 2003). The fluid nature of probable

16 cause remains the same at both the arrest and prosecution stage. To

17 begin with, as noted above, the record on summary judgment does

18 not establish as a matter of law that the Defendants had probable

19 cause to arrest Dufort. By the same token, the evidence in that

20 record, without more, is not sufficient to establish probable cause for

21 the filing of criminal charges or the commencement of a prosecution.

22 The Defendants claim, and the district court held, that

23 additional evidence came to light before trial that justified Dufort’s 25 No. 16‐1715‐cv

1 prosecution, even if it could not have been sustained solely based on

2 the evidence available at the time of his arrest. But the two pieces of

3 new evidence they identified are insufficient to support a grant of

4 summary judgment, whether considered in isolation or together.

5 One was the testimony of another suspect in the fight, Jonathan Putt.

6 But Putt only testified that Dufort brought a pipe to Pastel Karaoke,

7 and that he was in a private karaoke room when the brawl began—

8 facts already established by the surveillance footage and not

9 contested by Dufort. Putt admitted at trial that he did not know

10 where Dufort was during the attack, and did not see him participate.

11 As discussed previously, the mere fact that Dufort was at Pastel

12 Karaoke on the night of the attack, or in the company of other

13 assailants, is not sufficient to establish probable cause for a criminal

14 prosecution.

15 The second piece of additional evidence the Defendants point

16 to is the testimony of assailant Sebastian Yoon. Yoon, facing a

17 maximum sentence of fifty years to life in prison, agreed to

18 cooperate, pled guilty to manslaughter, and implicated the other

19 defendants in exchange for a reduced sentence. When the prosecutor

20 prompted Yoon to comment on Dufort’s participation in the brawl,

21 his only reply was, “I think he punched.” App’x at 250. This flimsy

22 testimony as to what a cooperator “thinks” is by itself not sufficient

23 to permit the district court to grant summary judgment on Dufort’s 26 No. 16‐1715‐cv

1 malicious prosecution claims. When the existence of probable cause

2 is a question of law, the determination must be made on the basis of

3 undisputed facts. See Walczyk,

. Yoon’s weak

4 statement, made under considerable pressure, was the only

5 genuinely new evidence introduced to supplement the prosecution’s

6 case after Dufort’s arrest. The dispositive question is whether this

7 testimony was sufficiently compelling that reasonable law

8 enforcement officers could have relied on it to find probable cause to

9 pursue charges against Dufort, notwithstanding the other

10 evidentiary gaps in the state’s case. This question can only be

11 resolved by evaluating the credibility and probative weight of

12 Yoon’s account, and that assessment can only be made by a jury. See

13 Anderson,

.

14

15 B. The District Attorney’s Prosecution and Grand Jury

16 Indictment

17 We now turn to the Defendants’ argument that the District

18 Attorney’s decision to prosecute Dufort or the grand jury’s decision

19 to indict insulates them from liability.

20 As a preliminary matter, the district court granted summary

21 judgment in this case without permitting Dufort to depose the

22 prosecutors who tried him, and thus the record on the extent of their

23 knowledge is incomplete. Park testified in her deposition in this case 27 No. 16‐1715‐cv

1 that she told the police and the prosecutor at some time in October

2 2006 that her lineup identification was based solely on Dufort’s

3 clothing. Nonetheless, Dufort has submitted an affidavit from his

4 criminal defense attorney, William Mackey, testifying that, at the

5 time of the lineup, he never heard Park disclose to representatives

6 from the District Attorney’s office that she only recognized Dufort

7 by the color of his clothing. Dufort has also introduced testimony

8 from his trial attorney, Christopher Renfroe, stating that Detective

9 Marotta did not mention the limited nature of Park’s identification

10 during a pre‐trial hearing in which Dufort sought to suppress that

11 identification. Defendants have produced no evidence

12 demonstrating conclusively that the District Attorney’s office was

13 aware of the limited nature of Park’s identification. The district court

14 noted that Park stated for the first time in her 2014 civil deposition

15 (long after Dufort’s acquittal) that she had told an ADA that she had

16 identified only Dufort’s clothes. However, as Dufort points out,

17 Park’s recollection of her cooperation with the police and

18 prosecutors has been incomplete, and sometimes inconsistent.

19 Whether Park ever told prosecutors prior to trial that she

20 could only recognize Dufort by the color of his jacket is a disputed

21 question of fact, and must be evaluated by a jury. If the District

22 Attorney’s office pursued its prosecution against Dufort after it was

23 deliberately misled by the Defendants, then the decision to 28 No. 16‐1715‐cv

1 prosecute does not interrupt the chain of causation. Cf. Bermudez v.

2 City of New York,

, 374–76 (2d Cir. 2015) (holding that an

3 ADA’s decision to prosecute a suspect did not constitute an

4 intervening cause that shielded the arresting officers from liability if

5 the ADA was “not informed of the alleged problems with the

6 evidence”) Dufort has raised a triable issue of fact as to whether

7 either the grand jury’s indictment or the prosecutors’ participation

8 in his case constituted intervening causes that insulate the

9 Defendants from liability.

10 The record in this case presents a question of fact as to

11 whether the District Attorney’s office was aware of the limited

12 nature of Park’s identification testimony. “[U]nder New York law,

13 indictment by a grand jury creates a presumption of probable cause

14 that may only be rebutted by evidence that the indictment was

15 procured by ‘fraud, perjury, the suppression of evidence or other

16 police conduct undertaken in bad faith.’” Savino, 331 F.3d at 72

17 (quoting Colon v. City of New York,

(1983)). To rebut

18 this presumption, the plaintiff bears the burden of establishing “that

19 the indictment was produced by” such fraud or bad‐faith police

20 misconduct. Bernard v. United States,

(2d Cir.

21 1994) (quoting Colon, 6060 N.Y.2d at 8383) Likewise, when a plaintiff

22 pursues a claim of malicious prosecution against police officers

23 based on an “unlawful arrest,” the “intervening exercise of 29 No. 16‐1715‐cv

1 independent judgment” by a prosecutor to pursue the case usually

2 breaks the “chain of causation” unless the plaintiff can produce

3 evidence that the prosecutor was “misled or pressured” by the

4 police. Townes v. City of New York,

(2d Cir. 1999).

5 Dufort bears the burden of establishing that Defendants

6 misled the grand jury and the prosecutors by either withholding or

7 misrepresenting evidence in order to sustain the case against Dufort.

8 With respect to both actions, we conclude that Dufort has at least

9 established a question of material fact as to whether prosecutors and

10 the grand jury were aware of the limited nature of Park’s

11 identification and the highly suggestive manner in which it was

12 procured, such that their determinations break the chain of

13 causation.

14 With respect to the indictment, the record indicates that the

15 only direct evidence presented to the grand jury linking Dufort

16 directly to the attack was Park’s eyewitness identification. As noted

17 earlier, that identification was invalid because it was confined to a

18 lineup so defective that a reasonable officer could not use it to find

19 probable cause. More importantly, the record reflects (and the

20 Defendants do not contest) that the grand jury was simply told that

21 Park identified Dufort as an assailant without being informed of the

22 limited nature of Park’s identification. Detective Marotta testified

23 that Park viewed Dufort in the lineup, and Park testified that she 30 No. 16‐1715‐cv

1 picked Dufort out of the lineup as an assailant, but neither clarified

2 that she identified only his jacket. Nor was the grand jury informed

3 that Dufort was the only suspect in the lineup wearing a maroon

4 sweatshirt.

Given the critical nature of Park’s testimony to the

5 case against Dufort, these omissions were glaring and easily could

6 have affected the grand jury’s decision. We thus find that, contrary

7 to the district court’s holding, Dufort has raised a genuine issue of

8 material fact regarding whether the Defendants’ conduct rose to the

9 requisite level of bad faith to rebut the presumption of probable

10 cause ordinarily created by a grand jury indictment.

11 The Defendants also argue that Dufort has failed to satisfy the

12 “initiation” aspect of the malicious prosecution inquiry, because the

13 District Attorney (rather than the defendant police officers) initiated

14 the proceedings against him. This argument fails for the same

15 reason. The “initiation” requirement is met when the plaintiff can

16 establish that police officers forwarded statements to a prosecutor

17 without sharing that the statements were suspect. See Manganiello v.

18 City of New York,

(2d Cir. 2010). Thus, a plaintiff

19 can satisfy the initiation requirement if he can establish that an

20 indictment “was produced by fraud, perjury, the suppression of

21 evidence or other police conduct undertaken in bad faith.” Dawson v.

22 Snow,

(2d Cir. 2009) (summary

23 order) (quoting Colon,

). Because the prosecutors’ 31 No. 16‐1715‐cv

1 knowledge is uncertain as discussed above, questions of fact

2 precluding summary judgment as to the initiation of the prosecution

3 remain as well.

4 Defendants also argue that the record contains no evidence

5 that they acted with malice. RB 42‐43. Under New York law, malice

6 does not have to be actual spite or hatred, but requires only “that the

7 defendant must have commenced the criminal proceeding due to a

8 wrong or improper motive, something other than a desire to see the

9 ends of justice served.” Nardelli v. Stamberg,

, 502‐03

10 (1978). Malice may be inferred, however, from the absence of

11 probable cause. See Lowth v. Town of Cheetowaga,

, 573 (2d

12 Cir. 1996) (citing Conkey v. New York,

(4th

13 Dep’t 1980)). Moreover, Dufort’s trial attorney’s affidavit stating that

14 he was told by detectives that they were treating Dufort as a suspect

15 solely in order to induce him to testify against other participants also

16 supports the inference that the prosecution against him was

17 improperly motivated. Accordingly, the record presents genuine

18 issues of fact as to whether Defendants acted with malice.

19

20 III. Qualified Immunity

21 In the alternative, the Defendants argue that even if Dufort

22 has established the requisite elements of his false arrest and

23 malicious prosecution claims, they are nonetheless entitled to 32 No. 16‐1715‐cv

1 qualified immunity because “arguable probable cause” existed to

2 arrest and prosecute him. Qualified immunity establishes a defense

3 for a government actor acting in his official capacity. Malley v. Briggs,

4

(1986). It “provides ample protection to all but the

5 plainly incompetent or those who knowingly violate the law.”

In

6 the context of false arrest and malicious prosecution claims, an

7 officer is entitled to qualified immunity if he had either probable

8 cause or “arguable probable cause.” Martinez v. Simonetti,

(2d Cir. 2000) (internal quotation marks omitted). Arguable

10 probable cause exists “if officers of reasonable competence could

11 disagree on whether the probable cause test was met.” Gonzalez v.

12 City of Schenectady,

(2d Cir. 2013) (quoting Jenkins v.

13 City of New York,

(2d Cir. 2007)).

14 We conclude that it would be inappropriate to grant qualified

15 immunity to these Defendants at the summary judgment stage.

16 Dufort has established a dispute of material fact as to whether the

17 Defendants intentionally withheld or manipulated key evidence

18 during his arrest and prosecution. He has introduced sufficient

19 evidence from which a reasonable jury could conclude that the

20 Defendants placed him in a deeply defective lineup, extracted an

21 “identification” from Park that was limited to the color of his

22 clothing, and then withheld the suspect nature of this identification

23 from prosecutors and the grand jury. Such a “knowing” violation of 33 No. 16‐1715‐cv

1 his Fourth and Fifth Amendment rights would, if proven, be enough

2 to overcome the protection of qualified immunity. Although Dufort

3 has not produced any direct evidence of a malicious intent on the

4 part of the Defendants, he is not required to do so. Circumstantial

5 evidence is generally sufficient to prove intent, and Dufort has

6 introduced enough such evidence to survive summary judgment.

7 See Celle v. Filipino Reporter Enters. Inc.,

(2d Cir.

8 2000) (“Malice may be proved inferentially because it is a matter of

9 the defendant’s subjective mental state, revolves around facts

10 usually within the defendantʹs knowledge and control, and rarely is

11 admitted.”).

12

13 IV. Due Process Claims

14 Finally, we turn to Dufort’s claim that he is entitled to

15 damages under § 1983 because the Defendants allegedly

16 misrepresented or withheld key evidence at his criminal trial about

17 the suggestive nature of the lineup in which Park identified him and

18 the limited nature of Park’s identification in violation of his Fifth

19 Amendment right to due process. The Second Circuit has recognized

20 “a constitutional right not to be deprived of liberty as a result of the

21 fabrication of evidence by a government officer acting in an

22 investigatory capacity” that is cognizable under the Fifth

23 Amendment and § 1983. Zahrey v. Coffey,

(2d Cir. 34 No. 16‐1715‐cv

1 2000); see also Garnett v. Undercover Officer C0039,

, 275

2 (2d Cir. 2016). We have also recognized that a defendant has a

3 cognizable right to a fair trial, and may sue for damages under §

4 1983 for Brady violations that lead to a distorted evidentiary record

5 being presented to the jury. See Poventud v. City of New York,

(2d Cir. 2014) (en banc).

7 The Defendants argue that Dufort’s fair trial claims fail as a

8 matter of law, because the evidence that Dufort claims was withheld

9 or misrepresented was in fact disclosed in a straightforward manner

10 at his trial: the prosecution elicited testimony from Park that she

11 recognized Dufort not by his face, but by his clothing. We agree, and

12 accordingly we affirm the district court’s grant of summary

13 judgment with respect to these claims.

14 The “central objective of [§ 1983] . . . is to ensure that

15 individuals whose federal constitutional or statutory rights are

16 abridged may recover damages or secure injunctive relief.” Felder v.

17 Casey,

(1988) (quoting Burnett v. Grattan,

42, 55 (1984)). In defining the appropriate scope of a § 1983 claim

19 asserting the violation of a constitutional right, “courts must closely

20 attend to the values and purposes of the constitutional right at

21 issue.” Manuel v. City of Joliet,

, 920–21 (2017). The

22 constitutional right on which Dufort’s § 1983 due process claim rests

23 is the right to have one’s case tried based on an accurate evidentiary 35 No. 16‐1715‐cv

1 record that has not been manipulated by the prosecution. See Brady

2 v. Maryland,

, 87–88 (1963) (holding that the right to due

3 process has been violated whenever “[a] prosecution . . . withholds

4 evidence on demand of an accused which, if made available, would

5 tend to exculpate him or reduce the penalty,” because such a

6 withholding “casts the prosecutor in the role of an architect of a

7 proceeding that does not comport with standards of justice”); see also

8 Garnett,

(“When a police officer creates false

9 information likely to influence a jury’s decision and forwards that

10 information to prosecutors, he violates the accused’s constitutional

11 right to a fair trial, and the harm occasioned by such an

12 unconscionable action is redressable in an action for damages under

13

.” (internal quotation marks omitted)).

14 Here, even assuming arguendo that the Defendants attempted

15 to distort the trial record by misrepresenting the nature of Park’s

16 identification, it is undisputed that that attempt failed. Park herself

17 testified at trial that she could only identify Dufort by the color of

18 his jacket. Any attempt to distort the evidentiary record was fully

19 mitigated by this disclosure. Mere attempts to withhold or falsify

20 evidence cannot form the basis for a § 1983 claim for a violation of

21 the right to due process when those attempts have no impact on the

22 conduct of a criminal trial. Cf. Zahrey, 221 F.3d at 348–50 (holding

23 that “[t]he manufacture of false evidence, in and of itself, . . . does 36 No. 16‐1715‐cv

1 not impair anyone’s liberty, and therefore does not impair anyone’s

2 constitutional right” when that manufacture does nothing concrete

3 to “precipitate [a] sequence of events that result[s] in a deprivation

4 of [the plaintiff’s] liberty” (internal quotation marks and footnote

5 omitted)).7

6 CONCLUSION

7 For the reasons stated above, we VACATE in part the

8 judgment of the district court and REMAND the case for further

9 proceedings consistent with this opinion.

7 Dufort also appears to allege a “substantive due process” claim, based on his constitutional right not to be arrested or detained without probable cause. Insofar as this claim stems from the Defendants’ decision to arrest Dufort and his subsequent five‐year detention on Rikers Island, it appears to be entirely coextensive with Dufort’s claims for false arrest and malicious prosecution and is therefore subsumed under those claims. See Manuel, 137 S. Ct. at 917–19 (noting that claims for pretrial detention based on fabricated or withheld evidence are evaluated as malicious prosecution claims under the Fourth Amendment); Wallace v. Kato,

, 388–89 (2007) (noting that the forcible detention of plaintiff without probable cause is conceptualized as a false arrest claim under the Fourth Amendment for § 1983 purposes).