20-455 Washington v. Napolitano

United States Court of Appeals for the Second Circuit _____________________________________

August Term 2020

(Argued: February 3, 2021 Decided: March 23, 2022)

No. 20-455

_____________________________________

LAURENCE WASHINGTON,

Plaintiff-Appellee,

— v. —

DETECTIVE, #314 FRANK NAPOLITANO AND FRANCIS JOSEPH MCGEOUGH,

Defendants-Appellants,

HONORABLE JULIA DEWEY, DAVID ZAGAJA, PROSECUTOR, EAST HARTFORD POLICE DEPARTMENT, DETECTIVE, #310 D. ORTIZ,

Defendants. * _____________________________________

Before: JACOBS, SULLIVAN, AND BIANCO, Circuit Judges.

Defendants-Appellants Detective Frank Napolitano and Sergeant (now Lieutenant) Francis McGeough appeal from an order, entered on January 10, 2020,

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the caption above. by the United States District Court for the District of Connecticut (Bryant, J.), denying their motion for summary judgment under Federal Rule of Civil Procedure 56(a). Appellants challenge the district court’s determination that absolute prosecutorial immunity does not apply to their alleged conduct in this case, and that they are not entitled to qualified immunity at the summary judgment stage for plaintiff-appellee Laurence Washington’s Fourth Amendment claims of false arrest and malicious prosecution brought pursuant to

.

On this interlocutory appeal, our review is limited to the rulings on absolute and qualified immunity, and we affirm the district court’s denial of summary judgment on both grounds. First, we agree with the district court that absolute prosecutorial immunity did not apply to appellants’ participation in obtaining the arrest warrant for Washington. Long-standing precedent makes clear that swearing to an arrest warrant affidavit and executing an arrest are traditional police functions, and performing such functions at the direction of a prosecutor does not transform them into prosecutorial acts protected by absolute immunity. Second, the district court correctly determined that summary judgment on the issue of qualified immunity was unwarranted given the factual disputes in this case. The district court identified relevant and exculpatory omissions from the arrest warrant affidavit related to Washington’s intent and credibility that, construing the evidence in a manner most favorable to Washington, could have materially impacted a magistrate judge’s determination as to whether probable cause existed for Washington’s arrest, and such factual issues preclude summary judgment for appellants on the ground of qualified immunity at this stage of litigation.

Accordingly, we AFFIRM the order of the district court and REMAND the case for further proceedings consistent with this opinion.

TADHG DOOLEY (John M. Doroghazi, Jenny R. Chou, on the brief), Wiggin and Dana LLP, New Haven, CT, for Plaintiff-Appellee.

JAMES N. TALLBERG (Andrew Glass, on the brief), Karsten & Tallberg, LLC,

2 Rocky Hill, CT, for Defendants- Appellants.

_____________________________________

JOSEPH F. BIANCO, Circuit Judge:

Defendants-Appellants Detective Frank Napolitano and Sergeant (now

Lieutenant) Francis McGeough appeal from an order, entered on January 10, 2020,

by the United States District Court for the District of Connecticut (Bryant, J.),

denying their motion for summary judgment under Federal Rule of Civil

Procedure 56(a). Appellants challenge the district court’s determination that

absolute prosecutorial immunity does not apply to their alleged conduct in this

case, and that they are not entitled to qualified immunity at the summary

judgment stage for plaintiff-appellee Laurence Washington’s Fourth Amendment

claims of false arrest and malicious prosecution brought pursuant to

.

The lawsuit principally focuses upon the question of whether there was

probable cause to believe that Washington was a knowing participant, rather than

merely present, during a robbery and murder that took place in a car on the night

of May 16, 2016 in East Hartford, Connecticut. After placing Washington in the

witness protection program upon his self-reporting of the crime to the police on

3 the morning after the robbery/murder, as well as after obtaining an arrest warrant

for the alleged shooter based upon information provided by Washington (who

was described in the warrant affidavit as “credible”), appellants sought and

obtained an arrest warrant for Washington. The warrant affidavit for Washington

relied almost exclusively on Washington’s own statement to the police regarding

the robbery/murder to establish probable cause for his arrest. The district court

concluded that, although the affidavit contained a general denial from

Washington regarding his knowing participation in the robbery/murder, it

omitted relevant and exculpatory portions of Washington’s statement to the police

including, among other things, that: (1) Washington was unaware that the shooter

had a gun when Washington entered the car; (2) after firing a warning shot in the

car, the shooter was pointing the gun at Washington when he demanded that

Washington take the victim’s glasses in the car; and (3) Washington feared for his

own life during the events in the car and believed the shooter would try to kill

him. The district court held that summary judgment on the probable cause

question was unwarranted because the omissions in the affidavit created material

issues of fact as to the weight that a neutral magistrate judge would have given to

that exculpatory information in the probable cause determination, and as to

4 whether appellants acted deliberately or recklessly in omitting such information.

The district court similarly concluded those same issues of fact regarding the

omissions precluded summary judgment on the issue of arguable probable cause

as it related to the application of the doctrine of qualified immunity.

On this interlocutory appeal, our review is limited to the rulings on absolute

and qualified immunity, and we affirm the district court’s denial of summary

judgment on both grounds. First, we agree with the district court that absolute

prosecutorial immunity did not apply to appellants’ participation in obtaining the

arrest warrant for Washington. Long-standing precedent makes clear that

swearing to an arrest warrant affidavit and executing an arrest are traditional

police functions, and performing such functions at the direction of a prosecutor

does not transform them into prosecutorial acts protected by absolute immunity.

Second, the district court correctly determined that summary judgment on the

issue of qualified immunity was unwarranted given the factual disputes in this

case. The district court identified relevant and exculpatory omissions from the

arrest warrant affidavit related to Washington’s intent and credibility that,

construing the evidence in a manner most favorable to Washington, could have

materially impacted a magistrate judge’s determination as to whether probable

5 cause existed for Washington’s arrest, and such factual issues preclude summary

judgment for appellants on the ground of qualified immunity at this stage of

litigation.

In reaching this decision, we recognize and do not disturb well-settled

precedent establishing that an officer is not required to investigate an individual’s

innocent explanations as to an alleged crime, nor to resolve all credibility issues

between witnesses, before making an arrest based on probable cause. Neither of

these bedrock legal principles are at issue here because it is uncontroverted that

appellants already had the exculpatory information in their possession at the time

of the submission of the arrest warrant application and there is evidence that,

when construed most favorably to Washington, appellants had fully credited such

information. Accordingly, we hold that, if a police officer finds an individual’s

statements regarding his lack of intent to commit a crime to be credible in light of

the totality of the circumstances, or if (at the very least) such exculpatory

statements could materially impact the probable cause determination by a neutral

magistrate judge, that officer cannot then use the incriminating portions of those

statements as the foundation for probable cause in an arrest warrant affidavit for

that individual, while either knowingly or recklessly concealing from the judge

6 that credibility assessment (if it has been reached) and/or the exculpatory details

of those statements. It is clearly established in this Circuit that such a concealment,

which deprives the judge of material information that could impact the probable

cause determination, would not be protected by qualified immunity. Therefore,

the district court properly denied the motion for summary judgment on the

ground of qualified immunity.

Accordingly, the order of the district court is AFFIRMED, and the case is

REMANDED to the district court for further proceedings consistent with this

opinion.

I. FACTUAL BACKGROUND

In the context of a summary judgment motion, the evidence must be viewed

in the light most favorable to Washington, as the non-moving party, including all

reasonable inferences being drawn in his favor. See Amore v. Novarro,

(2d Cir. 2010). With that legal principle in mind, the evidence in support of

Washington’s claims is summarized below.

A. Washington’s Account

Washington’s account of the robbery and murder, as he told it to Detective

Napolitano, was as follows. What matters for our purposes is that exculpatory

7 portions of his statement were omitted from the warrant affidavit notwithstanding

that the officers may have credited that account before seeking the warrant.

After work on the night of May 16, 2016, Washington was drinking, smoking

marijuana, and watching basketball in his apartment with a friend, “Black.” That

evening, a recent acquaintance of Washington, Michael Gaston, known to

Washington as “G,” knocked on Washington’s door and asked if he wanted to

smoke marijuana together. Washington invited him into the apartment and the

three men continued to drink, smoke, and watch the basketball game. At halftime,

having run out of marijuana, Gaston stated he would go out to buy more, and

Washington walked with him to the local convenience store. At the store, Gaston

spoke with a man not known to Washington, later identified as Marshall Wiggins,

while Washington bought cigarettes and soda. All three men exited the store. As

Washington was about to head back to his apartment, Gaston asked Washington

to accompany him and Wiggins by car to Wiggins’ home in order to buy a larger

amount of marijuana. Washington agreed.

Washington was unaware when he entered the car that Gaston had any

intention to rob Wiggins, nor did he know that Gaston had a gun. Washington

dozed off in the back passenger seat of the car as Gaston, in the front passenger

8 seat, and Wiggins, in the driver’s seat, talked. When Washington opened his eyes

as the car stopped, he saw Gaston pointing a gun at Wiggins. Gaston then directed

Wiggins to hand over his rings and glasses, and when Wiggins did not, Gaston

fired a warning shot. 1 Gaston then pointed the gun at Washington and gestured

for Wiggins to give his glasses and rings to Washington. Washington described

feeling scared, and that he could not believe what was happening. As Wiggins

dropped the glasses in Washington’s hand, Wiggins moved for the gun in Gaston’s

hands. During their struggle for the gun, a fatal shot was fired, and Washington

jumped out of the car and ran away on foot. 2 When Washington stopped running,

he realized he still had the glasses in his hand. He then dropped them on the

ground. He also shed his sweatshirt and put it into a dumpster before continuing

to run to his apartment.

1 A bullet hole was subsequently discovered in the rear driver’s-side window of Wiggins’ car.

2 Washington further testified at his deposition that this moment – when neither Gaston nor Wiggins had a full grasp on the gun – was his “first chance” to run away. Joint App’x at 240. He stated that he had explained to appellants the context in which he was sitting in the vehicle, including that he had a gun pointed at him. Joint App’x at 240. At Detective Napolitano’s deposition, when asked if Washington had told him that he “wasn’t going to say no to Mr. Gaston while Mr. Gaston had a gun pointed at him . . . and Mr. Wiggins,” Detective Napolitano confirmed that, while not recalling the exact words, Washington had told him something to that effect. Joint App’x at 274. 9 Back at his apartment, Washington told Black what had just occurred. At

that moment, Gaston reappeared at the door asking for Washington’s help

retrieving the murder weapon from a dumpster. Fearing that Gaston sought to

kill him too, Washington lied to get away and ran to the hospital where he checked

himself in, reporting suicidal ideations.

B. Use of Washington’s Account in the Arrest Warrant

It is uncontroverted that the next day, May 17, 2016, Washington called and

reported the robbery and murder to the police. On the phone, it was arranged for

appellants to pick Washington up so that he could provide his statement at the

police station.

At the police station, Washington participated in a voluntary interview with

Detective Napolitano, who was the lead detective in the case, and his partner.

Sergeant McGeough, who was the supervising officer, watched the interview

intermittently on closed-circuit television. During the interview, Washington

recounted what he had witnessed the prior night which, in sum and substance, is

described above. According to Washington, he explained how he feared for his

life during the incident and that he was not going to say “no” to Gaston while he

had a gun pointed at him. He also identified Gaston from a photo line-up and

10 submitted to a gun residue kit, which was negative. Following a conversation with

Sergeant McGeough regarding whether Washington felt safe to return home,

appellants placed Washington in witness protection, where he remained for more

than three months, unmonitored, until he was arrested.

Two days after Washington’s interview, on May 19, 2016, Detective

Napolitano drafted an arrest warrant affidavit for Gaston. To establish probable

cause for Gaston’s arrest, he relied on Washington’s witness statement regarding

what transpired in the car and video surveillance footage from the convenience

store showing the three individuals getting into the car. The arrest warrant

affidavit for Gaston contained a statement that the information contained therein

was provided by witnesses (which included Washington) who were “prudent and

credible.” Joint App’x at 90. Based upon that affidavit, an arrest warrant was

issued, charging Gaston with robbery in the first degree, murder, felony murder,

and firearms-related offenses. (Gaston was not initially charged in the arrest

warrant with conspiracy to commit robbery.) Gaston was arrested and, on June 7,

2016, Detective Napolitano interviewed him and found him to be untruthful.

11 C. Washington’s Arrest and Prosecution

On June 7, 2016, Washington left a voicemail message with the State’s

Attorney’s Office in Manchester stating he wanted his incarcerated girlfriend to be

released or he would not continue to cooperate in the Gaston prosecution. Later

that summer, in August, after Washington had been in witness protection,

unmonitored for more than three months, both appellants participated in

obtaining the arrest warrant for Washington – namely, Detective Napolitano

drafted the arrest warrant affidavit and swore to it, and Sergeant McGeough

reviewed and signed it as the individual administering the oath. According to

appellants, the arrest warrant application, containing the affidavit, was prepared

and submitted at the direction of the prosecutor. The arrest warrant affidavit for

Washington contained no new information beyond what was already known at

the time of Gaston’s arrest. The warrant application was submitted to the

Connecticut Superior Court and an arrest warrant was issued by the judge,

charging Washington with felony murder, robbery in the first degree, and

conspiracy to commit robbery in the first degree. A conspiracy count was similarly

added to Gaston’s charges.

12 On September 6, 2016, Washington voluntarily surrendered on the charges.

It is undisputed that Washington learned that appellants had obtained a warrant

for his arrest, that he then called Detective Napolitano, and that Washington and

Detective Napolitano agreed that Washington could turn himself in to the police

after the Labor Day weekend holiday. Washington claims that at the time of his

arrest Detective Napolitano stated to him that “this is not our work,” “not what

we want,” and obtaining the warrant was the “prosecutor’s call.” Joint App’x at

181–82.

In January 2017, after a probable cause hearing, the Connecticut Superior

Court found no probable cause existed for the charge of felony murder (based

upon the lack of probable cause for the robbery) and dismissed the felony murder

charge. In July 2017, after a bench trial, Washington was acquitted of the

remaining robbery and conspiracy charges. Washington had been in jail for almost

one year. 3

3 Washington later testified as a witness at trial against Gaston who was found guilty of murder, felony murder, and robbery in the first degree on June 6, 2018. Gaston was acquitted on the conspiracy to commit robbery charge. 13 II. PROCEDURAL HISTORY

In August 2017, Washington brought this lawsuit in which he asserted, as

relevant here, false arrest and malicious prosecution claims. Appellants moved

for summary judgment and argued, inter alia, that they were entitled to absolute

prosecutorial immunity or, at a minimum, qualified immunity. The district court

denied summary judgment, holding that absolute prosecutorial immunity did not

apply and that there were genuine disputes as to material issues of fact, including

on the issue of qualified immunity. More specifically, with respect to probable

cause and qualified immunity, the court identified the following “relevant and

exculpatory” information that was known to appellants and omitted from the

arrest warrant affidavit for Washington:

• Washington stated that he was not aware that Gaston had a gun until

Gaston pulled it out in the car, nor was he aware that Gaston would rob

Wiggins.

• Washington reported that Gaston pointed the gun at Washington when he

told Washington to take the victim’s glasses.

14 • Washington also reported that Gaston had fired a warning shot in the car

prior to that demand, and police found a bullet hole in the rear driver’s side

window.

• Washington had been placed in witness protection due to his fear of Gaston,

at Sergeant McGeough’s suggestion.

• Surveillance footage showed Washington initially walking towards his

apartment and away from Gaston at the convenience store.

• Washington repeatedly told police of his shock, terror, and fear for his life

during the events in the car.

• Washington believed Gaston would try to kill him too.

• After witnessing the Wiggins murder, Washington sought treatment at

Hartford Hospital, and he was still wearing his hospital bracelet when he

was interviewed by Detective Napolitano.

Special App’x at 18. The district court also noted that some aspects of

Washington’s exculpatory statements were corroborated by other evidence. For

example, “[b]y the time Washington was arrested, the police had the corner store’s

security footage, which showed Gaston gesturing to Washington to come with

him.” Id. at 21. This supported Washington’s statement that, when he left the

15 store, he initially had no intention of accompanying Gaston into Wiggins’ car. In

addition, the police had a photograph of Wiggins’ car, displaying a bullet hole in

the rear driver’s side window, which supported Washington’s contention that

Gaston had fired a warning shot in the car before pointing the gun at him

(Washington).

After reviewing the record, the district court concluded that summary

judgment was precluded on the issue of probable cause. In particular, the district

court explained that “[b]ecause some of the omitted information was relevant,

questions of fact arise as to what weight a neutral magistrate would likely have

given such information, and whether defendants acted deliberately or recklessly

in omitting the information from the arrest warrants.” Id. at 22.

Moreover, the district court concluded that “the omissions from the affidavit

for Washington’s arrest warrant application were relevant for finding arguable

probable cause that Washington conspired with Gaston to commit first degree

robbery,” as it related to the qualified immunity inquiry. Id. at 24–25. In reaching

this decision, the district court explained that much of the omitted information

bore upon Washington’s credibility:

[S]everal of these omissions go to Washington’s credibility: Washington’s claim that he didn’t know Gaston had a gun provides

16 corroborating detail to his claim that he had not planned to rob Wiggins; the corner store outdoor surveillance footage supports his claim that he had not made any agreement to rob Wiggins; the bullet hole in the rear side window of the car supports his claim that he had accepted Wiggins’ possession in fear of his own life; and the hospital bracelet and offer of witness protection support his claim that he was scared and disturbed by the events in the car. The omission of this information creates additional questions of fact about what conclusions a reasonable officer or judicial official would draw as to Washington’s credibility.

Id. at 25. In short, the district court held that, “[s]ince there are questions of fact as

to arguable probable cause, the Court does not grant summary judgment on the

basis of qualified immunity.” Id.

This appeal followed.

III. DISCUSSION

A. Standard of Review and Jurisdiction

We review the district court’s decision to grant summary judgment de novo,

resolving all ambiguities and drawing all permissible factual inferences in favor of

the non-moving party. See Coollick v. Hughes,

(2d Cir. 2012).

Summary judgment is appropriate only when the movant demonstrates that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law. See

17 Moreover, although we may generally only hear appeals from “final

decisions” of the district court,

, under the “collateral order

doctrine,” we may review a denial of summary judgment based on qualified

immunity on an interlocutory basis if it may be resolved “on stipulated facts, or

on the facts that the plaintiff alleges are true, or on the facts favorable to the

plaintiff that the trial judge concluded the jury might find,” Salim v. Proulx,

(2d Cir. 1996). However, in this Circuit, interlocutory appeals may not be

taken from denials of qualified immunity “[i]f resolution of the immunity defense

depends upon disputed factual issues.” DiMarco v. Rome Hosp. & Murphy Mem'l

Hosp.,

, 665 (2d Cir. 1992). The same is true for a denial of absolute

immunity. See Nixon v. Fitzgerald,

, 742–43 (1982); accord San Filippo v.

U.S. Tr. Co. of N.Y.,

, 248 (2d Cir. 1984). Nevertheless, this Court’s

appellate review “extends to whether a given factual dispute is ‘material’ for

summary judgment purposes.” Escalera v. Lunn,

(2d Cir. 2004).

B. Absolute Immunity

Appellants contend that they are entitled to absolute prosecutorial

immunity for their involvement in the arrest warrant application and affidavit

18 charging Washington because they acted at the direction of the prosecutor. We

disagree.

In determining whether absolute prosecutorial immunity applies, courts

must take a “‘functional approach,’ looking to the function being performed rather

than to the office or identity of the defendant.” Hill v. City of New York,

(2d Cir. 1995) (citing Buckley v. Fitzsimmons,

(1993)). In

Malley v. Briggs, the Supreme Court explicitly rejected the contention that a police

officer should have absolute immunity for submitting a complaint and supporting

affidavit to a court in order to obtain an arrest warrant and, instead, held that such

a function is only protected by qualified immunity.

, 342–43 (1986).

Contrary to appellants’ argument, the fact that a prosecutor may have directed the

officers to perform this police function does not alter the analysis. We recognize

that absolute immunity extends not only to prosecutors “performing discretionary

acts of a judicial nature, but also [to] individual employees who assist such

[prosecutor] and who act under that [prosecutor’s] direction in performing

functions closely tied to the judicial process.” Hill,

(citation omitted).

However, swearing to arrest warrant affidavits and executing arrests are not

“functions closely tied to the judicial process.”

For example, in Simon v. City of

19 New York, we held that the officers there were not entitled to absolute immunity

for following a prosecutor’s instruction in executing a material witness warrant.

(2d Cir. 2013). Similarly, in the instant case, the prosecutor’s

direction to obtain an arrest warrant for an individual does not transform a police

officer’s action, in swearing to the arrest warrant affidavit or participating in the

arrest, into a prosecutorial act cloaked with absolute immunity. In fact, the

Supreme Court has made clear that, if a prosecutor acts as a complaining witness

by testifying to the evidentiary basis for an arrest warrant application, “the only

function that she performs in giving sworn testimony is that of a witness,” and

absolute immunity cannot extend even to a prosecutor in such a situation. 4 Kalina

v. Fletcher,

(1997). Accordingly, the district court correctly held

that absolute prosecutorial immunity does not apply to the alleged conduct

4 Appellants point to O’Neal v. Morales,

(2d Cir. 2017), in which absolute immunity applied on the ground that the conduct at issue involved an officer confirming a discrete fact for a prosecutor that was relevant to a witness’s testimony in an imminent trial. However, unlike here, the investigative activity in O’Neal was “in furtherance of the advocacy function of preparing for judicial proceedings” and thus was “intimately associated with the judicial phase of the criminal process.”

(internal quotation marks omitted). 20 regarding the arrest warrant affidavit by appellants, and that such conduct is

properly analyzed under the qualified immunity standard. 5

C. Qualified Immunity

Appellants also argue that “the district court erred in concluding that

purported omissions from the affidavit for plaintiff’s arrest defeated probable

cause, or at the very least, arguable probable cause such that the defendants were

not entitled to qualified immunity.” Appellants’ Br. at 1. Before addressing the

5 Although any advice or direction from the prosecutor regarding the arrest does not support absolute immunity for appellants, there is the separate question of whether there are circumstances under which reliance on counsel may be considered in connection with the doctrine of qualified immunity. See Taravella v. Town of Wolcott,

, 135 n.3 (2d Cir. 2010) (“We need not decide whether reliance on legal advice constitutes an ‘extraordinary circumstance’ sufficient by itself to give rise to qualified immunity, because at the very least the solicitation of legal advice informs the reasonableness inquiry.” (citation omitted)). But see In re County of Erie,

(2d Cir. 2008) (holding that the separate question of “whether a right is ‘clearly established’ is determined by reference to the case law extant at the time of the violation” and that “[t]his is an objective, not a subjective test, and reliance upon advice of counsel therefore cannot be used to support the defense of qualified immunity”). However, we need not – and do not – address that issue here because appellants did not make this specific argument as it relates to qualified immunity and, in any event, the record is unclear as to whether appellants supplied the exculpatory details to the prosecutor before receiving any such advice or direction. 21 evidence in the record, we briefly summarize the legal standards for probable

cause and qualified immunity.

Probable cause constitutes an absolute defense to a false arrest claim, see

Singer v. Fulton Cnty. Sheriff,

, 118 (2d Cir. 1995), and similarly defeats a

claim for malicious prosecution, see Betts v. Shearman,

(2d Cir. 2014).

Our probable cause analysis looks to the law of the state where the arrest and

prosecution occurred. See Davis v. Rodriguez,

(2d Cir. 2004). The

probable cause standard under Connecticut law and federal law are substantively

identical, requiring a showing that “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 to be arrested has

committed or is committing a crime.” Walczyk v. Rio,

(2d Cir.

2007) (internal quotation marks omitted). The existence of probable cause depends

on the totality of the circumstances. See Dufort v. City of New York,

(2d Cir. 2017). In addition, “[o]nce a police officer has a reasonable basis for

believing there is probable cause, he is not required to explore and eliminate every

theoretically plausible claim of innocence before making an arrest.” Ricciuti v.

N.Y.C. Transit Auth.,

(2d Cir. 1997); see also Krause v. Bennett, 887

(2d Cir. 1989) (“It would be unreasonable and impractical to require

that every innocent explanation for activity that suggests criminal behavior be

proved wrong, or even contradicted, before an arrest warrant could be issued with

impunity.”).

When an official raises qualified immunity as a defense, the court must

consider, pursuant to the two-step framework articulated by the Supreme Court

in Saucier v. Katz,

(2001), whether: “(1) . . . the official violated a

statutory or constitutional right, and (2) . . . the right was ‘clearly established’ at

the time of the challenged conduct.” Ricciuti v. Gyzenis,

(2d Cir.

2016) (quoting Ashcroft v. al-Kidd,

, 735 (2011)). An arresting officer is

entitled to qualified immunity even if probable cause is lacking “so long as

‘arguable probable cause’ was present when the arrest was made.” Figueroa v.

Mazza,

(2d Cir. 2016). “A police officer has arguable probable

cause ‘if either (a) it was objectively reasonable for the officer to believe that

probable cause existed, or (b) officers of reasonable competence could disagree on

23 whether the probable cause test was met.’”

(quoting Zalaski v. City of Hartford,

(2d Cir. 2013)).

Moreover, as relevant here, it is well settled that “the issuance of a warrant

by a neutral magistrate, which depends on a finding of probable cause, creates a

presumption that it was objectively reasonable for the officers to believe that there

was probable cause,” such that the officers are entitled to qualified immunity.

Golino v. City of New Haven,

(2d Cir. 1991). To overcome this

presumption, a plaintiff must show that the officers knowingly or recklessly

omitted material information from the warrant affidavit. See Mara v. Rilling,

(2d Cir. 2019). In other words, “[w]here an officer knows, or has reason

to know, that he has materially misled a magistrate on the basis for a finding of

probable cause, as where a material omission is intended to enhance the contents

of the affidavit as support for a conclusion of probable cause, the shield of qualified

immunity is lost.” Golino,

(internal citations omitted).

In assessing materiality, we “consider a hypothetical corrected affidavit,

produced by deleting any alleged misstatements from the original warrant

affidavit and adding to it any relevant omitted information.” Ganek v. Leibowitz,

(2d Cir. 2017). If the corrected affidavit provides an “objective basis

24 to support arguable probable cause, remaining factual disputes are not material to

the issue of qualified immunity and summary judgment should be granted to the

defendant on the basis of qualified immunity.” Escalera,

.

Materiality is a mixed question of law and fact such that “[t]he legal component

depends on whether the information is relevant to the probable cause

determination under controlling substantive law.” Velardi v. Walsh,

(2d Cir. 1994). Once the concealed information is determined by the court to

be relevant, then “questions of fact may arise as to what weight a neutral

magistrate would likely have given such information, and whether defendants

acted deliberately or recklessly in omitting the information from the warrant

affidavits.” Walczyk,

(internal quotation marks, alterations, and

citations omitted). We have emphasized that “[e]ven in such circumstances,

however, a court may grant summary judgment based on qualified immunity

where the evidence, viewed in the light most favorable to the plaintiffs, discloses

no genuine dispute that a magistrate would have issued the warrant on the basis

25 of the corrected affidavits.”

(internal quotation marks, citations, and emphasis

omitted).

Applying that standard here, the district court outlined portions of

Washington’s statement that were omitted from the arrest warrant affidavit that it

concluded were not immaterial as a matter of law to the probable cause analysis.

Appellants argue that the district court erred because “[t]he facts and

circumstances not subject to dispute on the record before the district court show

‘beyond doubt that [the] plaintiff can prove no set of facts’ even under a corrected

warrant analysis by which to rebut the presumption of probable cause flowing

from the duly issued warrant for his arrest.” Appellants’ Br. at 27 (quoting Kass v.

City of New York,

(2d Cir. 2017)). We disagree. As discussed

below, construing the evidence most favorably to Washington, we cannot

conclude, at the summary judgment stage, that the omitted information was

immaterial as a matter of law to the probable cause determination. The district

court correctly concluded that disputed issues of material fact precluded

26 resolution of the qualified immunity question at this stage of the proceeding for

several reasons. 6

1. Omitted Exculpatory Information. A substantial portion of the information

omitted from Washington’s statement was relevant and clearly exculpatory in

nature, including the following assertions: (1) Washington did not know Gaston

had a gun nor that Gaston intended to rob Wiggins; (2) Gaston pointed the gun at

Washington when he told Washington to take the victim’s glasses; (3) Washington

did not realize he still had the glasses in his hand when he fled the car; and

(4) Washington believed Gaston would try to kill him too. To the extent appellants

suggest that such exculpatory evidence cannot impact the probable cause analysis

because duress is an affirmative defense, we find that argument unpersuasive. As

6 Appellants suggest that “it was not clearly established that the omitted information needed to be contained in the warrant.” Appellants’ Br. at 31. That is incorrect. As noted supra, at the time of the relevant events in this case, it was well established under Second Circuit law that “an officer may not disregard plainly exculpatory evidence,” Panetta v. Crowley,

(2d Cir. 2006), including facts establishing a defense, Jocks v. Tavernier,

(2d Cir. 2003), and fail to disclose those materially exculpatory facts to the judge issuing the warrant, see Golino,

(“Given . . . the evidence that appellants’ nondisclosure of the exculpatory information was deliberate, the district court properly concluded it could not rule as a matter of law that it was objectively reasonable for appellants to believe there was probable cause for the arrest and prosecution of [plaintiff]. Summary judgment was properly denied.”). Thus, our inquiry focuses on whether the omitted information was immaterial to the probable cause determination as a matter of law, such that qualified immunity should attach in this case at the summary judgment stage. 27 a threshold matter, if these exculpatory statements by Washington were deemed

credible, he would have lacked the requisite intent to be part of any robbery

conspiracy, regardless of any potential duress defense. In any event, this is one of

the circumstances under which “a police officer’s awareness of the facts

supporting a defense can eliminate probable cause.” Jocks,

(concluding that probable cause may be defeated if the officer “deliberately

disregard[s] facts known to him which establish justification”).

To be sure, we have held that an “officer’s failure to investigate an arrestee’s

protestations of innocence generally does not vitiate probable cause,” Panetta,

, as “[i]t is up to the factfinder to determine whether a defendant’s story

holds water, not the arresting officer,” Krause, 887 F.2d at 372. But we have also

consistently held, as relevant here, that “an officer may not disregard plainly

exculpatory evidence.” Panetta,

.

Here, it is uncontroverted (from the police paperwork) that appellants

already possessed knowledge of the exculpatory information and Washington

asserts that, by omitting the exculpatory information in the arrest warrant

affidavit, appellants deprived the judge of the fair ability to make the necessary

assessment of whether the “story holds water” for probable cause purposes.

28 Moreover, although appellants seek to argue the immateriality of the omissions

one-by-one, we must consider those omissions “as a whole in determining if

probable cause continues to exist.” United States v. Marin-Buitrago,

(2d Cir. 1984) (emphasis added); see also Andrews v. Scuilli,

, 703

n.16 (3d Cir. 2017) (“[T]here may be instances when no single omission or

misrepresentation is sufficient to defeat a finding of probable cause, but the

combined effect of the omissions and misrepresentations suffices to call into

question the reliability of the affiant and the affiant’s witnesses such that the

question of probable cause cannot be resolved on a summary judgment motion.”).

2. Materiality. It is central to the materiality of Washington’s omitted

statements that his police interview was the cornerstone of the arrest warrant

affidavit and the only basis of appellants’ ability to demonstrate probable cause.

Other than corroborating that Washington and Gaston met Wiggins at the

convenience store with surveillance footage, the affidavit’s only evidence of

Washington’s presence at the robbery is his own statements. Even though the

affidavit generally notes Washington’s purported lack of knowledge regarding the

incident, it omits the details that account for why his presence was innocent. This

is not a case where probable cause was firmly based on substantial other evidence

29 (such as a victim’s statement, an eyewitness account, and/or forensic evidence)

independent of a defendant’s statement to the police, such that the details of the

defendant’s denial could not have possibly been material to the judge’s

determination of probable cause. Where a witness statement is the lynchpin of the

probable cause analysis, the materiality of one or more omissions from that

witness’s interview may be magnified.

3. Context. The affidavit also specifically used a piece of Washington’s own

statement to rebut his denial of knowledge without providing the critical context.

In particular, the affidavit explains:

Washington stated that he had no knowledge of the intended robbery and stated that Gaston acted on his own, however, Washington admitted to running away with the victim’s stolen sunglasses and acknowledged that he watched Gaston point a gun at Wiggins and order Wiggins to hand over his property. Washington was sitting in the back seat of the vehicle and could have exited the vehicle if he truly had no part in the robbery.

Joint App’x at 95. Thus, the affidavit utilizes Washington’s admissions, that he ran

away with the victim’s sunglasses and that he stayed in the back seat during the

robbery, to establish his intent and rebut his denial of knowledge of the robbery

without advising the judge that, among other things, Washington also stated that

Gaston pointed the gun at Washington (not Wiggins) when he told the victim to

30 hand Washington the glasses; that Gaston fired a warning shot into the backseat

(as corroborated by the officers finding a bullet hole in the rear passenger door –

another omitted fact); and that Washington was so afraid that he did not realize

the glasses were in his hand as he fled the car.

Appellants assert that the inclusion in the affidavit of Washington’s general

denial was sufficient for the neutral magistrate judge “to weigh that information

against the other information contained in the warrant.” Appellants’ Br. at 20–21.

That assertion, however, overlooks that there are undeniably circumstances

where, as here, omitting the details of the defendant’s statement and simply noting

a general denial of guilt in the affidavit could deprive the judge of information

necessary both to properly evaluate and to weigh the reliability of the statement

and potentially impact the outcome of the probable cause determination. For

example, if a police officer simply notes in an affidavit that the defendant admitted

to taking money from a bank’s safe during a robbery but denied any involvement

in the robbery, the judge could not properly examine the weight to be given to that

statement for probable cause purposes, without knowing that the defendant also

told the police that he was an employee of the bank and had delivered the money

31 to the robbers at gunpoint. In short, the context of a statement may make all the

difference.

The statement that Washington took the glasses from Wiggins is

contextually distinct from the statement that he did so after Gaston pointed the gun

at Washington. The dissent concludes that this additional fact – that Gaston was

pointing the gun at Washington when Washington took the glasses from the

victim – is “a rather minor detail in the context of what the Officers disclosed.”

Post at 4. We respectfully disagree. As we have held, although “the law does not

demand that an officer applying for a warrant volunteer every fact that arguably

cuts against the existence of probable cause,” the officer must “not omit

circumstances that are critical to its evaluation.” Walczyk,

(internal

quotation marks and citation omitted); see also Wilson v. Russo,

(3d Cir. 2000) (emphasizing that “[w]e cannot demand that police officers relate

the entire history of events leading up to a warrant application with every

potentially evocative detail that would interest a novelist or gossip,” but also

noting that “a police officer cannot make unilateral decisions about the materiality

32 of information, or, after satisfying him or herself that probable cause exists, merely

inform the magistrate or judge of inculpatory evidence”). 7

To the extent that appellants and the dissent suggest that our decision

means that a police officer must include every detail from a suspect’s statement in

an arrest warrant affidavit, that is not our holding. We hold only that factual

7 The dissent’s reliance on our decision in Krause, post at 6, is misplaced. In Krause, there was no issue as to whether the officer had omitted any material fact from the arrest warrant application seeking to charge Krause with possession of stolen property. See 887 F.2d at 365–67. Instead, as to Krause’s purported lack of knowledge that the traffic sign hanging in his garage was stolen, the warrant application specifically disclosed that “[t]he defendant made an oral statement that he had this sign for about three or four years” and that he “also stated he received this sign from a friend.” Id. at 366. In short, there was no claim by Krause of any improper omission of facts in the warrant application; rather, the question was whether the officer (and the judge) had sufficient evidence of probable cause to infer knowledge of the stolen nature of the stop sign based upon the information possessed by the officer and disclosed to the judge at the time of Krause’s arrest. Id. at 369–70 (“Krause’s argument on appeal focuses on the reasonableness of [the officer’s] belief that Krause knowingly possessed stolen property. To a lesser extent, Krause also questions whether the information presented to the town justice who signed the arrest warrant was sufficient to infer that Krause possessed the requisite knowledge.”). Thus, Krause is inapposite to the circumstances here regarding the omission of potentially material facts from the arrest warrant affidavit for Washington. 33 details must be included where, as here, they may be critical to the assessment of

probable cause for the arrest warrant by the issuing judge. 8

4. Credibility Assessment. Beyond the omission of the exculpatory details of

Washington’s statement from the arrest affidavit, there is also a material question

of whether appellants had, in fact, credited Washington’s exculpatory statement.

We have emphasized that an assessment reached by a police officer as to the

credibility or reliability of a particular witness not only may be considered as part

of the objective probable cause analysis, but may often be crucial. See McColley v.

County of Rensselaer,

(2d Cir. 2014) (“A confidential informant’s

credibility is plainly relevant – even critical – to the probable cause

8 The dissent argues that “it is hard to imagine that these so-called omissions, taken in the context with the disclaimers actually contained in the affidavit, would have made any difference to the magistrate’s probable-cause determination.” Post at 4–5. As an initial matter, to the extent the dissent points to what it views as “internally inconsistent deposition testimony,” id. at 5, any such inconsistencies are legally irrelevant to the probable cause determination at the time of Washington’s arrest. In any event, it should not be difficult to imagine how the omissions could have affected the probable cause determination because, when the court was actually presented with Washington’s full exculpatory explanation at a hearing following his arrest, it found no probable cause to believe Washington was guilty of robbery and dismissed the felony murder charge. See Joint App’x at 898–901 (“The issue is whether there is probable cause to believe the accused, while acting with Michael Gaston, committed a robbery. . . . After consideration of the state’s evidence, with its reliance on the accused’s written statement, and the totality of the circumstances, the Court finds that the State failed to establish probable cause to require the defendant to be put on trial for the crime of Felony Murder as charged.”). 34 determination.”). Although an officer’s motivation for an arrest (or a subjective

belief as to whether probable cause exists) is irrelevant to the legal determination

of probable cause, see Golino,

; accord Arkansas v. Sullivan,

, 771–72 (2001), an officer’s credibility assessment of a witness whose statement

is relied upon is a “fact[] known to the [warrant] applicant” potentially material to

the probable cause analysis. 9 McColley,

.

For example, it is well settled that an officer can rely upon a statement by a

putative victim or eyewitness to establish probable cause unless the officer has

reason to doubt the witness’s veracity. See Panetta,

. Thus, our cases

9 The dissent suggests that, even when an officer has reached a conclusive assessment of the credibility of a witness that would undermine the statement of that witness being presented in the warrant application to support probable cause, the officer can conceal that credibility assessment because “those views are entitled to no weight in the magistrate’s probable-cause determination” and “they merit no attention on appeal.” Post at 9. We respectfully disagree. As the above-referenced precedent makes clear, credibility assessments are part of the probable cause determination and, thus, the officer would need to disclose any credibility assessment reached by the officer that undermined the very witness statement upon which he or she was basing probable cause in the affidavit (and also disclose the basis for that credibility assessment). In any event, the dissent does acknowledge that the officers would need to disclose the material facts in the warrant application that would allow the court to make its own credibility determination as to that statement by the witness in such a situation. See id. at 8 (recognizing that officers are required to disclose “objective facts and information that might bolster or diminish a suspect’s (or informant’s) credibility in the eyes of the issuing magistrate”). As discussed supra, we independently conclude that there are issues of fact that preclude summary judgment on whether appellants sufficiently disclosed the material facts about Washington’s statement that would have allowed the magistrate judge to properly assess the credibility of his exculpatory statement. 35 often focus on whether the officer concealed information from the judge that

tended to show that a particular witness lacks credibility. See Ganek,

(explaining that “a warrant issuance question might arise where the credibility of

certain evidence (e.g., from a source with a motive to lie), or the sufficiency of

corroboration (e.g., for an anonymous tip) informs a probable cause

determination”). Here, the credibility issue flows in the opposite direction –

namely, whether appellants had in fact assessed Washington’s exculpatory

explanation as credible and knowingly concealed that credibility assessment, as

well as the underlying details of the exculpatory explanation itself, from the judge

issuing the warrant – but remains relevant to the objective probable cause analysis.

Construing the evidence most favorably to Washington, a rational jury

could find that, at the time the affidavit was signed and submitted to the judge for

Washington’s arrest, appellants had found credible the entirety of Washington’s

statement, including his exculpatory explanation. Washington has pointed to the

following evidence: (1) on May 18, 2016, which was the date after his police

interview, Washington was placed in witness protection and remained there for

several months without being charged with any crime and without monitoring;

(2) on May 19, 2016, an arrest warrant affidavit for Gaston was prepared by

36 Detective Napolitano based on Washington’s statement and contained references

to the “prudent and credible” witnesses upon which Detective Napolitano had

relied, which necessarily included Washington, Joint App’x at 90; (3) the record

contains no evidence of any information obtained by appellants that contradicted

or undermined Washington’s version of the events between the time he

volunteered his statement in May 2016 and his arrest in August 2016 (and the

arrest warrant affidavit for Washington was substantially identical to the affidavit

for Gaston); (4) Detective Napolitano allegedly stated to Washington when he was

being arrested and charged that “this is not our work,” “not what we want,” and

obtaining the warrant was the “prosecutor’s call,” Joint App’x at 181–82; 10 and (5)

Washington, even after his arrest (and the subsequent unsuccessful prosecution

against him), was put on the witness stand by the prosecutor to testify at Gaston’s

trial. Appellants counter that “the fallacy that the defendants believed plaintiff

when he stated he was not aware of or involved with Gaston’s decision to rob and

murder Marshall Wiggins” is “soundly contradicted by record evidence,”

Appellants’ Reply Br. at 4, by pointing to their own deposition testimony (in which

10Detective Napolitano acknowledged that it is possible he told Washington that the warrant was “bogus,” but explained that any such statement was only to gain Washington’s confidence, as he was a potential witness. Joint App’x at 312–13. 37 they stated that they believed Washington was culpable in the robbery) and

arguing that such testimony “compels a finding” in their favor on this issue,

Appellants’ Reply Br. at 6. We disagree and conclude, notwithstanding

appellants’ deposition testimony, that there is sufficient evidence to create a

material issue of fact as to whether appellants did find his exculpatory explanation

credible.

Rather than address these facts collectively, drawing all reasonable

inferences in Washington’s favor (as the law requires us to do), the dissent

selectively isolates particular facts to conclude that each such fact is insufficient to

infer that the appellants found Washington’s exculpatory evidence to be credible.

For example, the dissent characterizes Detective Napolitano’s statements to

Washington at the time of the arrest as “innocuous” and as “not remotely

suggest[ing] that the Officers believed they were arresting an innocent man.” Post

at 12. The dissent fixes on our brief mention (in outlining Washington’s evidence

above) of his placement in the witness protection program and belabors the fact

that mere placement of an individual in witness protection does not mean the

police believe that the individual is innocent.

at 11–12. Of course, we make no

suggestion to the contrary. More generally, we examined these facts cumulatively,

38 rather than in isolation, applying the requisite “totality of the circumstances”

analysis. As we have emphasized:

The totality of the circumstances test is no mere formality; it may frequently alter the outcome of a case. Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the officer had probable cause), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist. The significance of each relevant factor may be enhanced or diminished by surrounding circumstances. Review for probable cause should encompass plainly exculpatory evidence alongside inculpatory evidence to ensure the court has a full sense of the evidence that led the officer to believe that there was probable cause to make an arrest. A story is never a single chapter, it is the experience of the entire tale; the same is true of probable cause.

Stansbury v. Wertman,

, 92–93 (2d Cir. 2013) (Wesley, J.) (internal

quotation marks, alterations, and citations omitted).

It is the combination of all the facts in relation to each other (outlined supra

and in the district court’s opinion), while drawing all inferences in Washington’s

favor, that creates the issue of fact as to whether the appellants found

Washington‘s exculpatory statement credible and lacked probable cause, but

charged him anyway (and concealed their positive credibility assessment in the

warrant application, along with certain facts that would have allowed the

39 magistrate judge to independently make that assessment) in the warrant

application.

The failure to disclose that positive credibility assessment, assuming a jury

determines such an assessment was reached as to Washington by appellants, is

even more problematic because the affidavit goes so far as to cast doubt upon the

witness’s truthfulness by stating that “Washington was sitting in the back seat of

the vehicle and could have exited the vehicle if he truly had no part in the robbery.” Joint

App’x at 95 (emphasis added). Obviously, if appellants had found Washington’s

exculpatory explanation credible, the affidavit should not misleadingly suggest

otherwise.

In any event, assuming that appellants in fact found Washington’s

explanation lacking in credibility as suggested in the affidavit, Washington’s

ability to exit the car during the incident is directly contradicted by his relevant

and exculpatory statement to officers – omitted from the arrest warrant affidavit –

that Gaston pointed a gun at him and Gaston had already fired that gun inside the

vehicle. See Joint App’x at 99. Thus, as discussed supra, there is a question, at

minimum, as to whether appellants offered to the magistrate judge their own

subjective, personal assessment of the credibility of Washington’s denial based

40 upon a particular fact (namely, Washington’s failure to leave the car when the

robbery began), while failing to include other critical details surrounding that fact

that would allow the neutral magistrate judge to weigh that fact in assessing the

credibility of Washington’s denial.

* * *

In sum, the disputed issues of material fact, including on the issue of

whether appellants found Washington’s exculpatory statements to be fully

credible, preclude summary judgment on whether arguable probable cause

existed – that is, “whether officers of reasonable competence could disagree on

whether the probable cause test was met” in this particular factual context.

Escalera,

; see also Walczyk, 496 F.3d at 163–64 (“Because a resolution

of some of these [disputed] matters in favor of [the plaintiff] could preclude one

or more defendants from claiming they acted with arguable probable cause . . . ,

the district court correctly concluded that defendants did not yet establish their

entitlement to qualified immunity.”). Given that the probable cause for

Washington’s arrest was based almost entirely on Washington’s statement, no

41 reasonable officer would have believed probable cause existed for Washington’s

arrest if Washington’s exculpatory explanation was deemed credible.

“The exact weight that the judge would have given this information remains

a question of fact that prevents this Court from exercising jurisdiction over the

district court’s denial of summary judgment on the claim of qualified immunity.”

McColley,

; see also Velardi,

(“[T]he weight that a neutral

magistrate would likely have given such information is a question for the finder

of fact, so that summary judgment is inappropriate in doubtful cases.”). We

express no view as to how these factual disputes may be resolved at trial, and only

conclude that the district court properly denied qualified immunity at the

summary judgment stage.

IV. CONCLUSION

For the foregoing reasons, the order of the district court is AFFIRMED, and

the case is REMANDED for further proceedings consistent with this opinion.

42 RICHARD J. SULLIVAN, Circuit Judge, dissenting:

Although I agree with the majority that Detective Frank Napolitano and

then-Sergeant Francis McGeough (the “Officers”) are not entitled to absolute

prosecutorial immunity, I believe that they are entitled to summary judgment

based on qualified immunity because there was at least arguable probable cause

to arrest Laurence Washington for robbery.

The majority concludes first that the affidavit accompanying the warrant for

Washington’s arrest may have omitted relevant and exculpatory facts sufficient to

defeat the presumption of probable cause that an arrest warrant ordinarily carries.

See Mara v. Rilling,

(2d Cir. 2019). Chief among these supposed

omissions is the nondisclosure of whether the Officers subjectively believed

Washington’s protestations of innocence. The majority further holds that, were

we to “correct” the deficient affidavit by supplying the supposedly missing

information, there is a question of fact as to whether even arguable probable cause

would have supported Washington’s arrest. Figueroa v. Mazza,

(2d

Cir. 2016) (explaining that police officers are immune from wrongful-arrest suits

“so long as ‘arguable probable cause’ was present when the arrest was made”)

(citation omitted). In my view, the Court falters at both steps, and in the process

1 muddies the longstanding rule that the probable-cause inquiry is objective and

does not depend on police officers’ subjective motivations or views.

The undisputed facts are these: Laurence Washington admitted to the police

that he was in the vehicle when Michael Gaston held Marshall Wiggins at

gunpoint, that he had been with Gaston shortly before they entered the car with

Wiggins, that he and Gaston were seeking to procure marijuana from Wiggins

(who was a marijuana dealer), that he took Wiggins’s glasses and jewelry and

removed them from the car during the robbery, that he then disposed of Wiggins’s

property as he was running away from the car, and that he changed his clothes

after the robbery. Many of those details were later corroborated by video and

physical evidence. These admissions plainly gave the Officers “knowledge or

reasonably trustworthy information . . . sufficient to warrant a person of

reasonable caution in the belief that [Washington] ha[d] committed . . . a crime.”

Walczyk v. Rio,

(2d Cir. 2007) (citation omitted).

The majority nevertheless insists that the Officers may have submitted a

misleading affidavit because they (putatively) failed to include in the affidavit

Washington’s claims of innocence and lack of knowledge concerning Gaston’s

plan to rob Wiggins. But the law is clear that “[o]nce a police officer has a

2 reasonable basis for believing there is probable cause, he is not required to explore

and eliminate every theoretically plausible claim of innocence before making an

arrest.” Ricciuti v. N.Y.C. Transit Auth.,

(2d Cir. 1997). Moreover,

the affidavit submitted to the magistrate did disclose Washington’s assorted

disclaimers and assertions of innocence, including that it was Washington who

initiated contact with the police to discuss the shooting; that Washington claimed

to have screamed at Gaston when he drew a weapon on Wiggins in the car, yelling

“that [Gaston] was crazy and that [Washington] wanted no part in this,” J. App’x

at 94; that Washington told the Officers “that he was scared, and could not believe

what was happ[en]ing,” J. App’x at 94; and that Washington asserted “he had no

knowledge of the intended robbery and . . . that Gaston acted on his own,”

J. App’x at 95.

Notwithstanding these disclosures, the majority contends that the affidavit

should also have provided more detailed descriptions of Washington’s

disclaimers, including his assertions that he did not know that Gaston had a gun

or intended to rob Wiggins; that Gaston pointed the gun at Washington during the

robbery; that Washington did not realize he still had Wiggins’s possessions in his

3 hand when he exited the car; and that Washington thought Gaston was going to

kill him, too. Maj. Op. at 27.

But these “omissions” are either immaterial to the assessment of probable

cause, or else redundant in light of what the Officers did disclose. For instance,

Washington’s claim that he did not know Gaston either had a gun or intended to

rob Wiggins is indistinguishable from the affidavit’s disclosures that Washington

claimed to have no knowledge of the intended robbery and that he cried out in

alarm and terror when Gaston drew his gun on Wiggins. If anything, the

affidavit’s vivid description of Washington’s incredulous exclamations upon

Gaston’s drawing his weapon is more helpful to his claim of innocence than a rote

assertion that he claimed not to know that Gaston had a gun. Cf. Maj. Op. at 30–

32 (describing the importance of supplying relevant context and details in the

affidavit).

And while the majority makes much of Washington’s assertion that Gaston

pointed the gun in a threatening manner at him during the robbery, Maj. Op. at 9–

10, 30–32, this, too, is a rather minor detail in the context of what the Officers

disclosed. Moreover, Washington’s blatantly inconsistent descriptions of this

incident also severely undermine its exculpatory value: his contemporaneous

4 police statement avers that Gaston pointed the gun at him only when Gaston

“order[ed] [Wiggins] to give [Washington] his glasses and rings,” J. App’x at 99,

as if indicating that Wiggins should hand his valuables to Washington as Gaston’s

ostensible accomplice; his internally inconsistent deposition testimony asserted

both that he told the Officers that Gaston was pointing the gun at him “at all

times,” J. App’x at 240, but also seemingly that Gaston was pointing it back and

forth in an attempt to hold Wiggins and Washington at gunpoint simultaneously,

J App’x at 149–50. Even buoyed by the deference owed on summary judgment to

Washington’s factual narrative, the majority can’t explain why this inconsistently

recounted detail was so compelling that it required the Officers not just to believe

(some version of) it, but also to disclose it in their affidavit as a fact “critical to [the

probable-cause] evaluation.” Walczyk,

(citation omitted).

In sum, it is hard to imagine that these so-called omissions, taken in context

with the disclaimers actually contained in the affidavit, would have made any

difference to the magistrate’s probable-cause determination. 1 Our cases reinforce

1To refute this point, the majority surprisingly relies on the fact that, after a hearing, a Connecticut judge declined to find probable cause to try Washington for felony murder. See Maj. Op. at 34 n.8. But that determination is wholly beside the point for purposes of this appeal. At a Connecticut probable cause hearing, “[t]he accused person shall have the right to counsel and may attend and[] . . . participate in such hearing, present argument to the court, [and] cross- examine witnesses against him.”

-46a(b). Plainly, the conclusion reached by 5 the point that we ordinarily require far more before undertaking a corrected

affidavit analysis. For instance, in Golino v. City of New Haven, we conducted a

corrected affidavit analysis when the officers failed to disclose that the suspect

they sought to arrest looked nothing like the man described by eyewitnesses as the

killer and that the suspect’s fingerprints did not match a set, believed to belong to

the killer, that was found on the victim’s car.

, 867 (2d Cir. 1991).

Meanwhile, in Krause v. Bennett, we granted qualified immunity to the arresting

officer even though the officer had failed to disclose that the plaintiff, who was

charged with receipt of a stolen traffic sign found in his garage, had given specific

details about how he came into possession of the sign; in fact, the warrant

application in Krause made no mention whatsoever of the plaintiff’s general denial

of knowledge that the sign was stolen.

, 365–66 (2d Cir. 1989).

Even reading the omissions in this case expansively, they plainly fall closer

to those in Krause than Golino. And this case certainly bears no resemblance to the

hypothetical offered by the majority, in which “an affidavit [discloses] that the

defendant admitted to taking money from a bank’s safe during a robbery but

[omits that] the defendant also told the police that he was an employee of the bank

a judge after that process sheds no light on the magistrate’s probable cause determination, what the Officers should have disclosed to the magistrate, or anything else relevant to this case. 6 and had delivered the money to the robbers at gunpoint.” Maj. Op. at 31–32. Put

differently, if these omissions are enough to land the Officers in corrected affidavit

territory, it is difficult to see what remains of our longstanding rule that “the law

does not demand that an officer applying for a warrant ‘volunteer every fact that

arguably cuts against the existence of probable cause.’” Walczyk,

(quoting Brown v. D’Amico,

(2d Cir. 1994)).

That leaves us with the one omission on which the majority’s holding

necessarily hinges – the Officers’ failure to profess their own subjective belief as to

the veracity of Washington’s statements in the affidavit. The majority concludes

that the Officers might have believed Washington’s protestations of innocence,

and it holds that they should have disclosed as much. Maj. Op. at 34–40. But the

majority’s reliance on the Officers’ credibility assessment is misplaced for the

simple reason that we have never required law enforcement affiants to offer their

subjective views of the evidence in warrant applications. That is no doubt because

“the probable cause inquiry is based upon whether the facts known by the

arresting officer at the time of the arrest objectively provided probable cause to

arrest.” Jaegly v. Couch,

(2d Cir. 2006) (emphasis added). Our

case law accordingly stresses that the justification for an arrest is measured solely

7 against the “facts” or the “information” available to a police officer at the time of

arrest. See, e.g., Devenpeck v. Alford,

(2004); Figueroa,

; Jaegly,

; Escalera v. Lunn,

(2d Cir. 2004).

The concepts of “facts” and “information” do not encompass an officer’s

subjective assessment of a suspect’s credibility. Rather, they are limited to the

objective facts and information that might bolster or diminish a suspect’s (or

informant’s) credibility in the eyes of the issuing magistrate. The very cases the

majority cites illustrate the point. See, e.g., McColley v. County of Rensselaer,

(2d Cir. 2014) (Maj. Op. at 34–35) (holding that it was a material omission

for police not to disclose the events and information that “fail[ed] to corroborate a

confidential informant’s account”). The majority’s attempt to fit an officer’s

subjective credibility assessment into our objective probable-cause paradigm is

belied by its failure to cite a single case that places any weight upon how officers

“had in fact” assessed someone’s credibility. Maj. Op. at 36. At most, the Officers

were obligated to disclose whether independent corroboration of Washington’s

account existed – as they did by informing the magistrate that physical evidence

and video corroborated aspects of Washington’s story.

8 The objective nature of the probable-cause inquiry is a longstanding feature

of our case law, and I fear that the majority’s holding will effectively require law

enforcement officers to announce their subjective views as to each fact or statement

presented in an affidavit. Indeed, if “an officer’s credibility assessment . . . is a ‘fact

known to the warrant applicant,’” then so are officers’ views of every aspect of the

case. Maj. Op. 35 (citation omitted) (alterations adopted). Since those views are

entitled to no weight in the magistrate’s probable-cause determination, they merit

no attention on appeal. 2

But even if the subjective beliefs of the Officers could be deemed relevant to

the magistrate’s probable-cause determination, they would bear upon the Officers’

liability only if the Officers actually believed Washington was innocent. And on

that point, I remain unpersuaded that “there is . . . a material question of whether

[the Officers] had, in fact, credited Washington’s exculpatory statement,” Maj. Op.

at 34, i.e., that “a rational jury could find that, at the time the affidavit was signed

and submitted to the judge for Washington’s arrest, [the Officers] had found

2The majority attributes to me the view that an officer can “conceal” a “conclusive assessment of the credibility of a witness,” Maj. Op. at 35 n.9, as if there is something self-evidently in error about that proposition, even though we have never before held that such an assessment must be disclosed. In any case, an officer in such circumstances would almost certainly have arrived at that firm credibility view based on facts and information – which, as explained above, would need to be, and in this case were, disclosed.

9 credible the entirety of Washington’s statement, including his exculpatory

explanation,” Maj. Op. at 36. The majority points to three facts in support of this

proposition: (1) that the Officers relied on Washington’s testimony in the arrest

warrant for Gaston and described him as “prudent and credible,” J. App’x at 90;

(2) that the Officers arranged for Washington to be placed in witness protection,

where he remained for several months without being charged; and (3) that

Detective Napolitano allegedly stated to Washington when he was being arrested

that “this is not our work,” “not what we want,” and was “the prosecutor’s call,”

J. App’x at 181–82. But none of these supports an inference that the Officers

credited the entirety of Washington’s statement, including his denials of

involvement in the robbery.

Law enforcement officers – like juries, sentencing judges, and “any other

factfinder who assesses witness credibility” – are not required to accept the

statements of witnesses in an all-or-nothing fashion. United States v. Norman,

(2d Cir. 2015) (citation omitted). Clearly, the Officers believed parts of

Washington’s story, much of which was corroborated by other evidence, including

the video, glasses, and crime-scene forensic evidence. To that extent, Washington

was credible and reliable, and the Officers were justified in describing him as such

10 in the affidavit. But I know of no authority in this Circuit or elsewhere that

requires law enforcement officers to adopt the entirety of a witness’s statements

merely because they determine that portions of such statements are true. See

J. App’x at 282 (setting forth Napolitano’s deposition testimony, in which he said

he found “part[s] of [Washington’s] statement [not] credible” because he

“believe[d] [Washington] was involved in the robbery”).

The fact that the Officers arranged to put Washington into witness

protection provides even less basis for concluding that they believed his

exculpatory statements. As even the most casual observer of the criminal justice

system knows, witness protection is full of accomplice witnesses who, like

Washington, have legitimate concerns about being retaliated against for

cooperating against violent criminals. See, e.g., Marshall v. Cathel,

,

454 n.3 (3d Cir. 2005) (describing a defendant who pleaded guilty “to conspiracy

to commit murder” and then entered into the witness protection program); United

States v. Balsam,

(1st Cir. 2000); Jarrett v. United States,

,

1440 & n.1 (7th Cir. 1987); United States v. Bufalino,

, 647–48 (2d Cir.

1982). The majority curiously suggests that placement in witness protection

somehow supports an inference of innocence, without citing any authority – or

11 even logic – for such a proposition. Contra Allen v. Woodford,

(9th

Cir. 2005) (characterizing “admission to the witness protection program” as part

of a battery of “impeaching evidence”) (emphasis added). At the risk of stating the

obvious, witness protection is designed to keep people safe, not pure, and it is

hardly surprising that co-conspirators are among the most conspicuous denizens

of the program, since they usually possess the most damning information about

the most dangerous targets. See, e.g., United States v. Persico,

(2d Cir. 2011) (recounting that Joseph Massino, a former boss of the Bonanno crime

family, entered witness protection); Joseph P. Fried, Ex-Mob Underboss Given

Lenient Term for Help as Witness, N.Y. Times (Sept. 27, 1994) (discussing the

imminent witness-protection placement of Sammy “the Bull” Gravano, a former

underboss of the Gambino crime family who testified against John Gotti).

Detective Napolitano’s alleged statements to Washington at the time of the

arrest are equally innocuous and do not remotely suggest that the Officers

believed they were arresting an innocent man. Napolitano’s acknowledgment that

the decision to arrest Washington was “the prosecutor’s call” and “not what we

want[ed]” at most reflects the Officers’ belief that Washington’s cooperation

merited a non-prosecution agreement. Maj. Op. at 13, 37 (quotation marks

12 omitted). That’s not an unreasonable opinion, and Napolitano would not be the

first, or the last, law enforcement officer to hold such a view on behalf of an

accomplice witness. But it is certainly a stretch to conclude that statements of this

sort, made to an angry witness, raise the specter that the Officers “found

Washington’s exculpatory statements to be fully credible.” Maj. Op. at 41.

Beyond these thin and speculative reeds, the majority can point to no

evidence indicating that the Officers “found credible the entirety of Washington’s

statement, including his exculpatory explanation.” Maj. Op. at 36. 3 In fact, the

only clear evidence in the record on this point shows the precise opposite, since in

signing the affidavit, Napolitano swore to his belief that “probable cause exist[ed]

to arrest Laurence Washington” for robbery and felony murder. J. App’x at 95. If

the three considerations the majority cites are enough to overcome the Officers’

sworn-to contrary belief, then examining an officer’s subjective views of various

pieces of evidence is likely to become a feature in every wrongful arrest case.

***

3 The majority complains that I have improperly examined facts “in isolation,” rather than “cumulatively” under the “requisite” totality-of-the-circumstances analysis. Maj. Op. at 38–39. Not so. And the mere invocation of the phrase “the totality of the circumstances” cannot turn a slew of negligible facts into a smoking gun, as the majority would have it do here. 13 Notwithstanding Washington’s admissions concerning the details of the

robbery and his possession of the victim’s property during and after the crime, see

Conn. Gen. Stat. § 53a-134, the majority holds that Washington has raised a

genuine dispute about “whether any reasonable officer, out of the wide range of

reasonable people who enforce the laws in this country, could have determined”

that probable cause supported his arrest. Figueroa,

. I see no room

for such a dispute. At the very least, the record reflects the existence of arguable

probable cause, and for that reason I would reverse the decision of the district

court and hold the Officers immune from this suit. Accordingly, I respectfully

dissent from the Court’s contrary decision.

14