Bermudez v. City of New York, 790 F.3d 368

Background

In August 1991 Fernando Bermudez was arrested, tried, and convicted for a murder he did not commit; he spent 18 years in prison before being exonerated and released in 2009 after key witnesses recanted and the Manhattan DA conceded innocence.
Police conducted collective photo-review and a subsequent six-photo array and live lineup; several witnesses identified Bermudez after group viewing and interaction; other witnesses did not identify him.
Witness Efraim Lopez gave inconsistent statements and later affidavits alleging police coercion; police and an ADA videotaped interviews in which the reported accounts conflicted with later recantations.
ADA James Rodriguez prosecuted after interviewing witnesses; a grand jury indicted Bermudez based principally on testimony from Thompson and Velasquez who told the ADA they had seen Bermudez at the scene.
Bermudez later obtained vacatur in state court (People v. Bermudez) where the court found the photo procedures impermissibly suggestive and accepted recantations; Bermudez then sued the investigators under 42 U.S.C. § 1983 (due process / Brady) and New York malicious prosecution law.
The district court granted summary judgment for defendants; the Second Circuit affirmed in part (malicious prosecution) and vacated in part (due process), remanding for further proceedings on due process and Brady-related claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were defendants liable under § 1983 for violating due process by using suggestive ID procedures and coercing witnesses?	Bermudez: officers used impermissibly suggestive photo/lineup procedures and coerced witnesses, and withheld that from ADA, so officers proximately caused deprivation.	Defs: ADA Rodriguez independently decided to prosecute; his independent decision was a superseding cause cutting off officer liability.	Triable issues of fact exist whether officers misled or withheld information from ADA such that his decision was tainted; summary judgment on due process claims reversed and remanded.
Did officers commit a Brady violation by withholding exculpatory information from the prosecutor?	Bermudez: officers failed to disclose suggestive procedures and alleged coercion, so prosecutor was uninformed and Brady violated.	Defs: ADA interviewed witnesses and prosecuted independently; not a Brady violation tied to officers.	Same disputed facts relevant to Brady; triable issues exist so summary judgment improper (remanded).
Is there a viable malicious prosecution claim under New York law?	Bermudez: indictment resulted from police suppression/misconduct and therefore lacked probable cause and was malicious.	Defs: grand jury indictment creates presumption of probable cause; ADA’s interviews of Thompson and Velasquez supplied probable cause regardless of earlier procedures.	No genuine issue of material fact on probable cause—ADA’s witness interviews provided probable cause; summary judgment for defendants on malicious prosecution affirmed.
Are defendants entitled to qualified immunity on due process claims?	Bermudez: officers violated clearly established rights by using/coercing suggestive IDs and withholding exculpatory information.	Defs: reasonable officers could have believed conduct lawful.	Triable issues of fact on the alleged coercive conduct; qualified immunity denied at summary judgment—reversed as to qualified immunity.

Key Cases Cited

Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) (prosecutor’s independent decision can be a superseding cause barring officer liability where not misled)
Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007) (officer liability cut off if prosecutor/trial judge not misled or pressured by officer conduct)
Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998) (prosecutor’s judgment is not a superseding cause when constrained by police nondisclosure)
Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010) (police may be liable for malicious prosecution if they played an active role in prosecution)
Green v. Montgomery, 219 F.3d 52 (2d Cir. 2000) (grand jury indictment creates presumption of probable cause that can be rebutted only by evidence of fraud, perjury, suppression, or bad faith by police)
Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) (recognition of due-process protection against deprivation of liberty by fabrication of evidence)
Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992) (police liability under § 1983 for withholding exculpatory evidence from prosecutors)