KWAME GARNETT, Plaintiff-Appellee-Cross-Appellant, v. UNDERCOVER OFFICER C0039, Individually and In his official capacity, Defendant-Appellant-Cross-Appellee, UNDERCOVER OFFICER C0243, Individually and In his official capacity, Defendant-Appellee, CITY OF NEW YORK, NEFTALI BETANCES, Individually and In his official capacity, KEITH CARPENTER, Individually and In his official capacity, ABEL JOSEPH, Individually and In his official capacity, ERICK ORTIZ, Individually and In his official capacity, CARLOS SIERRA, Individually and In his official capacity, TYRONE VIRUET, Individually and In his official capacity, JOHN DOES, Nos. 1-10, Individually and In their official capacity (the names John and Jane Doe being fictitious, as the true names are presently unknown), JANE DOES, Nos. 1-10, Individually and In their official capacity, (the names John and Jane Doe being fictitious, as the true names are presently unknown), Defendants.
Docket Nos. 15-1489 (Lead), 15-1500 (XAP)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2015 (Argued: June 7, 2016 Decided: September 30, 2016)
Before: POOLER, SACK, and LYNCH, Circuit Judges.
15-1489 (L) Garnett v. Undercover Officer C0039, at al.
Affirmed.
ROBERT T. PERRY, Brooklyn, NY, for Plaintiff-Appellee-Cross-Appellant Kwame Garnett.
RICHARD DEARING, of counsel (Cecilia Chang, Ingrid R. Gustafson, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellant-Cross-Appellee
OPINION
POOLER, Circuit Judge:
Both plaintiff-appellee-cross-appellant Kwame Garnett and defendant-appellant-cross-appellee Undercover Officer C0039‘s (“UC 39“) appeal from a judgment, entered after a jury trial in the United States District Court for the Southern District of New York (Gregory H. Woods, J.), finding UC 39 liable for denying Garnett his right to a fair trial by fabricating evidence in connection with criminal charges against Garnett, and awarding Garnett $1 in nominal damages and $20,000 in punitive damages. UC 39 argues that the district court erred in denying his motion for judgment as a matter of law, and Garnett contends that the court erred in denying his motion for a new trial.
Garnett was arrested by UC 39 in the wake of an undercover “buy and bust” operation, and was subsequently charged based in part on UC 39‘s account of his own observations during the alleged drug sale, including a statement he said Garnett made during the transaction. Garnett denied making the statement and, after being held for nearly eight months pending trial, was acquitted at a state criminal trial. In its rulings following Garnett‘s civil jury trial, the district
In Ricciuti, we held that, even if there is probable cause to arrest a defendant, an officer who subsequently fabricates that defendant‘s confession “and forwards that information to prosecutors . . . violates the accused‘s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under
BACKGROUND
I. Factual Background
A. Garnett‘s Arrest and Prosecution
This case arises from a so-called “buy and bust” operation conducted by the New York City Police Department (“NYPD“) on November 19, 2011. On that evening, a team of NYPD officers, including defendant-appellant-cross-appellee UC 39 and defendant-appellee Undercover Officer C0243 (“UC 243“), conducted an operation in East Harlem where the undercover officers attempted to purchase drugs.
There are commonly two roles in a “buy and bust” operation: the “primary” tries to buy the drugs, while the “ghost” serves to protect the safety of the primary. UC 39 was the ghost. UC 243, the primary, met non-parties Naquan Cintron and Naim Roper. Roper was allegedly stating something along the lines
Garnett was also arrested in connection with the drug sale. While UC 243 spoke with Cintron and Roper, UC 39 was scanning the area and stated that he observed an individual, identified as Garnett, standing by the curb outside the bodega. UC 39 testified that he saw Garnett also scanning the area.1 UC 39 stated that, based on his experience, he believed Garnett was keeping a lookout for police during the sale. UC 39 wrote in a “DD-5,” a complaint follow-up form, and told the arresting officer and a prosecutor, that Garnett entered the bodega during the sale and told Cintron and Roper, “Yo, hurry up. Y‘all ain‘t done yet? Get that money. I‘m not looking to get locked up tonight. Let‘s go.” App‘x at 263-64, 603. UC 243 heard Garnett speak, but did not hear exactly what Garnett had
B. Roper and Cintron Plead Guilty; Garnett‘s Criminal Trial
Six days after the arrests, Roper pled guilty in state court to one count of criminal sale of marijuana in the fourth degree and one count of criminal facilitation in the fourth degree. Cintron and Garnett were both indicted by a state grand jury, but Cintron then pled guilty to one count of criminal sale of a controlled substance (cocaine). In his plea allocution, Cintron stated that he acted “in concert with” Garnett in selling “a narcotic drug to a police officer.”2 App‘x at 781.
Garnett then proceeded to a state criminal trial. Prior to Garnett‘s criminal trial, UC 39 communicated the information in UC 39‘s original DD-5 report to the Assistant District Attorney prosecuting the case. UC 39 also explained that he
Garnett has consistently denied having any involvement in the drug sale and denies making the statement attributed to him by UC 39. After he was arrested, Garnett was searched and no drugs, other contraband, or any other evidence of criminal activity, were found on his person. Nevertheless, Garnett was arraigned and charged with criminal sale of a controlled substance in the
C. Garnett‘s Federal Damages Lawsuit
On October 4, 2013, Garnett filed a lawsuit in the district court for the Southern District of New York (Rakoff and Woods, JJ.). On December 9, 2013, Garnett filed his amended complaint against officers involved in his arrest, including UC 39 and UC 243, alleging, among other things, false arrest, malicious prosecution, failure to intervene, and denial of the right to a fair trial under
On March 27, 2014, defendants moved for summary judgment. On April 8, 2014, the case was reassigned from Judge Rakoff to Judge Woods. On August 13, 2014, the district court (Gregory H. Woods, J.) granted the motion in part and denied it in part, in particular denying summary judgment on Garnett‘s false arrest, malicious prosecution, and fair trial claims against UC 39, and the failure to intervene claim against UC 243. On October 14, 2014, the district court denied defendants’ motion for reconsideration.
D. The Federal Damages Trial
On November 17, 2014, the case proceeded to trial on those four claims. At trial, Garnett testified on his own behalf and presented five additional witnesses in his case-in-chief: UC 39, UC 243, Lieutenant Neftali Betances, Roper, and Detective Tyrone Viruet. UC 39 and UC 243 adopted the testimony of the police officer witnesses presented in Garnett‘s case and rested.
UC 39 testified, in relevant part, that Garnett entered Lexington Grocery while Cintron, Roper, and UC 243 were conducting the “buy” transaction, at
Despite UC 39 testifying that Garnett told Roper and Cintron to “hurry up,” UC 39 went on to testify that Garnett went to the counter in the bodega to conduct a transaction. That testimony was inconsistent with the testimony UC 39 had given before the grand jury. At Garnett‘s civil trial, UC 39 was confronted with his grand jury testimony where he stated that Garnett went to the counter before “turn[ing] around” and saying to Cintron and Roper, “Yo, hurry up. What the hell is taking so long? I‘m not trying to go back to jail. Get that money, get that money, let‘s go.” App‘x at 257-58. UC 39 then testified that, after conducting
For his part, UC 243 testified that he did not notice Garnett outside the bodega, that UC 39 did not alert him to Garnett‘s presence, and that he did not see Cintron or Roper make eye contact with a third person outside the store. UC 243 did testify that he saw Garnett enter the store and say something. After being presented with his grand jury testimony, UC 243 also testified that he recalled that Garnett‘s statement “grabbed [] Cintron‘s attention” and that “Cintron looked over [UC 243‘s] left shoulder” and Roper “started moving quickly.” App‘x at 317-18. But he also testified that, although he has “good hearing” and was “standing only a few feet away” from Garnett, he “did not hear what [] Garnett said[.]” App‘x at 321.
Garnett‘s account at trial differed greatly from those of UC 39 and UC 243. Garnett testified that, in the late morning of November 19, 2011, he went to his grandmother‘s house in order to drop off his niece and then sent a text message to a friend, Quincy Brown, who invited Garnett to Brown‘s apartment and also
Garnett testified that he left Brown‘s apartment, alone, around “nighttime.” App‘x at 363. Garnett said he went to Crown Fried Chicken, a restaurant, which was near the bodega. Garnett said he did not see Roper or Cintron “again after [he] left [Brown‘s] apartment.” At Crown Fried Chicken, Garnett testified that he ordered “the center breast,” then “stepped out,” and “was going to walk in the [grocery] store” but saw that “it was crowded.” App‘x at 364. Garnett said he was going to the bodega to buy a soda because the sodas were cheaper in the bodega than they were at Crown Fried Chicken. But Garnett denied entering the grocery store because the “doorway[] was, like, crowded” and then he “heard the guy that work[ed] [at] the chicken spot knock on the window, so [he] went back in there and grabbed the chicken, and found out [he]
Garnett testified that he spoke to his cousin Shedy Bolton in the game store, but then was handcuffed by a police officer, searched both outside the game store and later at the 25th Precinct, and that the officers found no drugs,4 contraband, or money, and that the only items he had on him at the time of his arrest were an iPod, a cell phone, Blistex, and the chicken. Importantly, Garnett testified that he had no involvement in the sale, did not act as a lookout, did not enter the store during the sale, and did not say anything to Cintron and Roper. Garnett flatly denied committing any crime on November 19, 2011.
Roper also testified at the federal trial. He confirmed that he, Cintron, and Garnett were at Quincy Brown‘s apartment earlier in the day on November 19, 2011, but, somewhat inconsistently with Garnett‘s testimony, Roper stated that all three of them—Garnett, Cintron, and Roper—“left Quincy Brown‘s house and headed to Lexington Avenue together.” App‘x at 453 (emphasis added). But
Roper also testified that he and Cintron were “chilling” in front of the bodega when the “informants“—presumably UC 39 and UC 243—arrived and so Roper and Cintron “decided to go inside the store and make a sale[.]” App‘x at 453. Roper testified that he believed that, at the time, Garnett was still at the “chicken spot, because if he was with us, he would have went inside the store with us.” App‘x at 453-54. Roper said he did not “remember seeing [Garnett] inside the store at all” and said he “remember[ed] it like it was yesterday.” App‘x at 454. Roper did not recall whether Garnett entered the store at any point and stated that he never heard Garnett say anything along the lines of “Hurry up, y‘all ain‘t done yet. Get that money[.]” App‘x at 449. Indeed, Roper testified that while he was in the store, he saw Garnett “cross the street” with a “brown bag in his hand.” App‘x at 449. Roper flatly denied that Garnett was involved in the sale.
II. Procedural History
A. The Jury Instructions, Deliberations, and Verdict
At the conclusion of trial, the district court instructed the jury that, in order to establish his claims under
At some point during the jury‘s deliberations, the district court received a note from the jury stating, in relevant part:
[W]e ask for clarification on probable cause. If an individual reasonably appears to have knowledge of a criminal transaction currently taking place, but does not appear to be involved, is probable cause established?
App‘x at 568-69. Garnett‘s counsel asked the district court to instruct the jury that mere knowledge of activity without involvement in the activity does not constitute probable cause to arrest. The officers’ counsel objected, stating a response to that effect would “answer the question for [the jury].” App‘x at 571. Instead, the officers’ counsel suggested the court should “refer the[ jury] back to the law and explain the law.” App‘x at 571. The district court agreed, explaining:
What I think I would like to do is to develop with you, counsel, a proposed response that will both refer the[ jury] back to the relevant language in the existing set of instructions, and try to point the[ jury] more closely to what it is that they‘re supposed to be evaluating here. Namely, whether or not a reasonable person would understand that Mr. Garnett was involved in criminal activity. And that that is taken from the point of view of a reasonable officer under the circumstances.
The district court then distributed a proposed supplemental instruction which stated, in relevant part, “[i]f a reasonable person in the officer‘s shoes looking at the totality of the circumstances would believe there is a probability that the plaintiff had committed a crime or is committing a crime, there would be probable cause for his arrest.” App‘x at 574. Garnett‘s counsel renewed his objection, again asking for an instruction that mere knowledge is not sufficient. After a colloquy between counsel and the court, the district court revised the proposed instruction and added a sentence that stated if “a reasonable person in the officer‘s shoes looking at the totality of the circumstances would not believe that there was a probability that the plaintiff had committed a crime or was committing a crime, there would not be probable cause for his arrest.” App‘x at 575. Garnett‘s counsel maintained his objection, arguing the language was not responding to the jury‘s question, but conceded that the instruction was an
The jury subsequently returned a verdict finding that Garnett had proven his denial of the right to a fair trial claim by a preponderance of the evidence but had not proven his false arrest, malicious prosecution, or failure to intervene claims. The jury awarded Garnett punitive damages of $20,000 and nominal damages of $1.
B. The District Court‘s Decision on the Post-Trial Motions
Following the trial, UC 39 moved for, in relevant part, judgment as a matter of law pursuant to
At the same time, Garnett moved for a new trial pursuant to
DISCUSSION
I. The District Court Did Not Err in Denying UC 39‘s Motion for Judgment As A Matter of Law
A. Standard of Review
This court reviews a district court‘s denial of a motion for judgment as a matter of law de novo. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010). In doing so, the court “appl[ies] the same standards that are required of the district court.” Id. (internal quotation marks and citation omitted). Accordingly, the court “must draw all reasonable inferences in favor of the nonmoving party,” “may not make credibility determinations or weigh the evidence[,]” and “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. (internal quotation marks, emphases, and citations omitted).
The instant case presents this court with an important legal question: whether Ricciuti‘s holding—that a Section 1983 plaintiff may sue for denial of the right to a fair trial based on a police officer‘s fabrication of information—applies when the information fabricated is the officer‘s own account of his or her observations of alleged criminal activity, which he or she then conveys to a prosecutor. We answer that question in the affirmative, while emphasizing the essential limiting principles encompassed by the Ricciuti standard.
In Ricciuti, the court flatly rejected the argument that “as long as [an] arrest complied with the
During Ricciuti‘s subsequent Section 1983 federal civil case for violation of his constitutional right to a fair trial, the district court granted defendants’ motion for summary judgment based in relevant part on defendants’ argument that “so long as there was probable cause for Alfred Ricciuti‘s arrest—independent of the allegedly fabricated evidence—the fabrication of evidence is legally irrelevant.” Id. at 129-30. On appeal, the panel decisively rejected defendants’ argument in an opinion that is worth quoting at length:
This argument—an ill-conceived attempt to erect a legal barricade to shield police officials from liability—is built on the most fragile of foundations; it is based on an incorrect analysis of the law and at the same time betrays a grave misunderstanding of those responsibilities which the
police must have toward the citizenry in an open and free society. No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice. Like a prosecutor‘s knowing use of false evidence to obtain a tainted conviction, a police officer‘s fabrication and forwarding to prosecutors of known false evidence works an unacceptable corruption of the truth-seeking function of the trial process. When a police officer creates false information likely to influence a jury‘s decision and forwards that information to prosecutors, he violates the accused‘s constitutional right to a fair trial, and the harm occasioned by such unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983. Here, a reasonable jury could find, based on the evidence, that defendants . . . violated the plaintiffs’ clearly established constitutional rights by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury‘s verdict. These defendant police officers are not entitled to summary judgment on the ground of qualified immunity. Qualified immunity is unavailable where, as here, the action violates an accused‘s clearly established constitutional rights, and no reasonably competent police officer could believe otherwise.
Id. at 130 (internal quotation marks and citations omitted). Ricciuti‘s reasoning applies as much to a situation where, as here, the falsified information was the officer‘s account, conveyed to prosecutors, of what he heard the defendant say or do during the alleged offense, as it did in Ricciuti, where the officer was describing what he heard the defendant say during an interview after his arrest.
On the first point, UC 39 is incorrect that Ricciuti‘s holding is limited to the question of immunity. In Ricciuti, the panel held that fabrication of evidence violated a “clearly established constitutional right[]” and thus the officers were not entitled to qualified immunity. Ricciuti, 124 F.3d at 130 (“Qualified immunity is unavailable where, as here, the action violates an accused‘s clearly established constitutional rights, and no reasonably competent police officer could believe otherwise.“). Thus, in order to find that the officers were not entitled to qualified
UC 39‘s reliance on Jovanovic v. City of New York, a non-precedential summary order, is also misplaced. In Jovanovic, the court stated that the elements of a denial of the right to a fair trial claim were: “an (1) investigating official (2) fabricates evidence (3) that is likely to influence a jury‘s decision, (4) forwards
First, the cited language is not the holding of the case, which neither purports to decide any new point of law nor claims to constrict or revise the holding of Ricciuti. The recitation of elements is simply a restatement of the holdings of prior cases. Second, that formulation is in fact derived from the following language in Ricciuti: “When a police officer creates false information likely to influence a jury‘s decision and forwards that information to prosecutors, he violates the accused‘s constitutional right to a fair trial, and the harm occasioned by such unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti, 124 F.3d at 130; see Jovanovic, 486 F. App‘x at 152 (citing Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003), and Ricciuti, 124 F.3d at 130); Jocks, 316 F.3d at 138 (quoting Ricciuti, 124 F.3d at 130). But that language
Third, the conclusion is entirely sound. An arrest is lawful when supported by probable cause—a rather low threshold. But an arrest in itself may involve only a limited deprivation of liberty. The setting of bail, which may make the difference between freedom and confinement pending trial, and the prosecutor‘s decision to pursue charges rather than to dismiss the complaint without further action, may depend on the prosecutor‘s and magistrate‘s assessments of the strength of
In short, a Section 1983 claim for the denial of a right to a fair trial based on an officer‘s provision of false information to prosecutors can stand even if the officer had probable cause to arrest the Section 1983 plaintiff. The language of Jovanovic cannot support the meaning UC 39 assigns to it.
UC 39‘s second argument, that Garnett‘s claim based on falsified information is only cognizable as a claim for malicious prosecution or for false arrest under the
First, claims alleging the denial of a right to a fair trial based on fabricated information are redressable under the Constitution, regardless of which constitutional provision provides the basis for the claim—“[c]ertain wrongs affect more than a single right and, accordingly, can implicate more than one of
Second, probable cause, which is a
Third and lastly, any limitation of false information allegations to false arrest and malicious prosecution claims would ignore the collateral consequences that are associated with fabricated information even if the officer had probable cause for the initial arrest. As the Fifth Circuit has observed, “[b]eing framed and falsely charged” damages an individual‘s reputation, requires that individual to “mount a defense, and places him in the power of a court of law[.]” Cole, 802 F.3d at 772 (footnote omitted). “[T]hese wrongs . . . do not disappear where there is no violation of [the Fourth A]mendement” and, “where there is no more specific constitutional protection available, the
Although we hold that any information fabricated by an officer can serve as the basis of a claim for a denial of the right to a fair trial, we acknowledge concerns raised by the City of New York (“City“) about attaching liability for false information to an officer‘s account of his or her own observations of an alleged criminal activity giving rise to an arrest. For example, the City posits that an affirmance of Ricciuti would lead to the retrial of every unsuccessful state prosecution as a federal Section 1983 action and would turn an individual‘s resentment at being prosecuted into allegations of fabrication against police officers. The City cautions that such retrials would impose burdens on society by chilling the work of honest officers and by diverting energy away from general policing and towards defensive litigation.
This court does not take those concerns lightly. Nonetheless, the City‘s proposed distinction between fabricated testimony about what an officer claims
As the jury was properly instructed here, the standard in Ricciuti restricts fair trial claims based on fabrication of information to those cases in which an (1) investigating official (2) fabricates information (3) that is likely to influence a jury‘s verdict, (4) forwards that information to prosecutors, and (5) the plaintiff
In particular, the requirements that the information be both false and likely to influence a jury‘s decision constrain the types of information that can serve as the basis for a denial of the right to a fair trial claim. Ricciuti has been the law for nearly twenty years, without the dire results that the City predicts from the perfectly routine application of its principles to the facts here. Experience thus suggests that the limiting principles of Ricciuti have proven effective to date in restricting claims for a denial of the right to a fair trial against police officers on
II. The District Court Did Not Err in Denying Garnett‘s Motion for A New Trial
A. Standard of Review of Jury Instructions
This court reviews supplemental jury charges for abuse of discretion. See Uzoukwu v. City of New York, 805 F.3d 409, 414 (2d Cir. 2015). “[I]f a supplemental jury charge is legally correct, the district court enjoys broad discretion in determining how, and under what circumstances, that charge will be given.” Id. (internal quotation marks and citation omitted). Further, “a trial court responding to a note from a deliberating jury is only required to answer the particular inquiries posed” and it “enjoys considerable discretion in construing the scope of a jury inquiry and in framing a response tailored to the inquiry.” United States v. Rommy, 506 F.3d 108, 126 (2d Cir. 2007) (citations omitted).
In his cross-appeal, Garnett argues that the district court erred in declining to instruct the jury, in response to the jury‘s request for clarification on the issue, that mere knowledge of criminal activity without involvement in the activity does not constitute probable cause to arrest.
We find the district court did not abuse its discretion in declining to give this instruction. First, Garnett‘s counsel agreed that the supplemental instruction in response to the jury‘s note “accurate[ly]” stated the law to the extent that it charged “an innocent person could be arrested if it appears to a reasonable officer that a crime was being committed [by that person].” App‘x at 577-78. “[A] jury instruction will be deemed adequate, so long as the charge, taken as a whole, is correct and sufficiently covers the case so that a jury can intelligently determine the questions presented to it.” Care Travel Co. v. Pan Am. World Airways, 944 F.2d 983, 996 (2d Cir. 1991) (internal quotation marks and citations omitted). Because the district court‘s probable cause instruction was “correct and sufficiently covered the essential issues[,]” Luciano v. Olsten Corp., 110 F.3d 210, 218 (2d Cir. 1997) (internal quotation marks and citation omitted), we cannot say
Furthermore, the district court expressly permitted the jury to send another note if its supplemental instruction did not answer the original question, but the jury did not do so. Thus, this court is satisfied that the district court did not abuse its discretion in giving the challenged supplemental jury charge.
CONCLUSION
For the foregoing reasons, this court holds that the district court did not err in denying UC 39‘s motion for judgment as a matter of law or in denying Garnett‘s motion for a new trial. In doing so, this court confirms that the holding of Ricciuti, along with the limiting standard therein, applies to false information