CHRISTOPHER G. PITT, SR. AND TELA HANSOM-PITT v. DISTRICT OF COLUMBIA, ET AL.
No. 05-7157
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 28, 2007 Decided June 26, 2007
Consolidated with 05-7163 and 06-7009
Appeals from the United States District Court for the District of Columbia (No. 01cv02225)
Carl J. Schifferle, Assistant Attorney General, Office of Attorney General for the District of Columbia, argued the cause for appellees/cross-appellants. With him on the briefs were Linda Singer, Attorney General, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Solicitor General.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: The events giving rise to this case are troubling. After a violent robbery, the police arrested the wrong person – plaintiff Christopher Pitt – then initiated criminal proceedings against Mr. Pitt despite overwhelming evidence of his innocence. Mr. Pitt and his wife subsequently brought suit against the District of Columbia and three individual police officers, seeking relief under federal law and D.C. common law for malicious prosecution, false arrest, and intentional infliction of emotional distress. After trial, the jury returned a split verdict and the district court entered judgment for the plaintiffs for $153,000. The defendants then moved for judgment as a matter of law on all clаims, which the district court granted in part and denied in part. On appeal both sides challenge the district court‘s rulings on the motions for judgment as a matter of law. We affirm in part, reverse in part, and remand to the district court for further proceedings.
I.
A.
At approximately 12:00 p.m. on January 2, 2001, two senior citizens – Henry and Gloria Feldman – were violently robbed in their apartment building in Northwest Washington. The robber had followed the Feldmans into their building and then into the elevator. In the hallway outside the Feldmans’ apartment, the robber “socked” Mr. Feldman in the face and took his wallet, then grabbed Mrs. Feldman‘s purse before escaping down a nearby staircase. The Feldmans immediately called 911. During the 911 call, Mrs. Feldman described the robber as a black man around 5‘8” tall with a medium complexion and dark hair, who was wearing a black leather jacket and a “beige-y” shirt. She told the operator that the perpetrator had not used a weapon during the robbery.
Meanwhile, Keith Dade, an emрloyee of the apartment building, was notified of the robbery and saw the perpetrator leaving the building. Mr. Dade followed the man and attempted to ask him a few questions, but the robber told Mr. Dade to “back up” and started to run away. Mr. Dade saw the robber make a suspicious “gesture” as though he might have had a weapon, but did not actually see a weapon. After following the perpetrator out of the building and across the street, Mr. Dade lost sight of him. Mr. Dade gave a description of the robber to the police, who subsequently broadcast a lookout alert to officers in the area.
Responding to the lookout alert, Officers Bryan Adams and Steven Baxter arrived at the intersection where Mr. Dade last saw the perpetrator. After conferring with other officers at the scene, Officer Adams looked down the street and saw an individual who matched the description of the perpetrator get into a car and begin driving toward Rock Creek Park. The individual spotted by Officer Adams was the plaintiff, Christopher Pitt. Officers Adams and Baxter returned to their vehicle and
After being notified that a suspect had been apprehended, other police officers brought the Feldmans and Mr. Dade to the Taft Bridge for a “show-up” identification to determine whether any of the eyewitnesses could identify plaintiff as the robber. Mrs. Feldman told the officers she got a “good look” at the robber, and that she was “certain” plaintiff was not the person who had robbed them. Mr. Feldman told the police he “wasn‘t sure” whether plaintiff was the perpetrator, but that he “doesn‘t think so.” Mr. Dade thought plaintiff looked somewhat like the robber, but he “couldn‘t make a positive ID” because the plaintiff‘s hair was “longer and curlier” than the robber‘s, and the plaintiff – unlike the robber – was wearing a hat.
Lieutenant Josiah Eaves was at the Feldmans’ apartment building reviewing the building‘s security videotapes when he heard over the radio that a suspect had been arrested. Surveillance cameras had captured the robber‘s image as he entered the building behind the Feldmans. Lt. Eaves went to the Taft Bridge to determine whether plaintiff was the person seen on the tapes. Lt. Eaves told the officers on the scene that he was confident plaintiff was the robber.
While the show-up identification was being conducted, two other officers – Detectives Sean Caine and James Bovino – conducted a brief investigation of plaintiff‘s alibi that he was making deliveries at a nearby embassy at the time of the robbery. The two detectives questioned a guard at the Kuwaiti Embassy about whether plaintiff had been there earlier that day, but the details of this interaction are disputed. Detective Caine testified at trial that the guard told him that “he hasn‘t seen Chris today.” However, the embassy guard testified that he told the officers that a “Chris” had been at the embassy on the day of the robbery.
After the show-up, Mr. Pitt was arrested and taken into custody. The next day, Officers Adams and Baxter presented the case to screening prosecutors from the U.S. Attorney‘s Office. Officer Adams gave the prosecutors an affidavit that contained a detailed description of the robbery, but did not mention the negative identifications or Mr. Pitt‘s alibi. It is disputed whether the officers’ handwritten notes – which did describe the negative identification and alibi – were given to the screening prosecutors along with the affidavit. The affidavit also stated that a cell phone ear piece cover was found at the scene of the robbery, and that Mr. Pitt‘s cell phone ear piece was “missing its cover.”
Based on the information contained in this affidavit, on January 3, 2001, a Superior Court Magistrate Judge ordered Mr. Pitt committed to a halfway house. Mr.
B.
On October 29, 2001, Christopher Pitt and his wife Tela Hansom-Pitt (“plaintiffs”) brought suit in U.S. District Court against the District of Columbia, Officer Bryan Adams, Officer Steven Baxter, and Detective James Bovino. In their complaint, plaintiffs sought relief under
After an eight-day jury trial, the defendants moved for judgment as a matter of law on all of the plaintiffs’ claims. The district court granted the defendants’ motion with respect to the
The jury found all three officers liable for false arrest under
After the verdict was received, the defendants renewed their motion for judgment as a matter of law. In a memorandum opinion and order, the district court granted the defendants’ motion with respect to the
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In Section II, we address the arguments raised by the District and the three officers. The defendants argue that there was insufficient evidence to hold all four defendants liable for common law malicious prosecution, and to hold the District liable for intentional infliction of emotional distress. Defendants also argue that the evidence was insufficient to support an award of punitive damages against the three officers. We reverse the district court‘s denial of the defendants’ motion for judgment as a matter of law with respect to Ms. Hansom-Pitt‘s intentional infliction of emotional distress claim. We also hold that there was insufficient evidence to find Detective Bovino liаble for malicious prosecution, and thus we reverse the district court on this issue. However, we affirm the district court‘s denial of the defendants’ motion for judgment as a matter of law on each of the other common law claims. We affirm the award of $1,000 in punitive damages against Officers Adams and Baxter, but we set aside the punitive damage award against Detective Bovino.
In Section III, we address the arguments raised on appeal by the plaintiffs. Plaintiffs argue that the district court erred by holding that the three defendant officers were entitled to qualified immunity on the false arrest and malicious prosecution claims brought under
II.
A. Common Law Malicious Prosecution Claims
To reiterate, after trial, the jury returned a verdict in favor of the plaintiff against the District and each of the three officers on the common law malicious prosecution claims. The defendants moved for judgmеnt as a matter of law, but the district court denied the motion. Defendants now appeal, arguing that the evidence received at trial was insufficient to support the jury‘s verdict for the plaintiff on the malicious prosecution claims. We affirm the district court‘s denial of the defendants’ motion for judgment as a matter of law with respect to the District and Officers Adams and Baxter, but we reverse with respect to Detective Bovino.
Under District of Columbia law, there are four elements to the tort of malicious prosecution: (1) termination of the underlying suit in plaintiff‘s favor; (2) malice on the part of the defendant; (3) lack of probable cause for the underlying suit; and (4) special injury occasioned by plaintiff as a result of the original action. Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980). The first and fourth elements are not contested on appeal, and thus we address only the issues of probable cause and malice.
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To support an action for malicious prosecution in the District of Columbia, the plaintiff must shоw that “the original action was instituted . . . without probable cause.” Ammerman v. Newman, 384 A.2d 637, 639 (D.C. 1978). In a civil action for malicious prosecution, probable cause is defined as the existence of “facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting
In this case, we agree with the district court‘s conclusion that the defendants initiated сriminal proceedings against Mr. Pitt without probable cause. Most importantly, both victims of the crime told the police that Mr. Pitt was not the person who had robbed them. The perpetrator followed the Feldmans into the apartment building, then rode the elevator with them up to the eighth floor before committing the robbery. Mrs. Feldman got a “good look” at the robber while waiting for the elevator, while getting off the elevator, and during the robbery. After having observed the robber at close range, she told the police “right away” that Mr. Pitt was not the perpetrator, and that she was “very certain” of her identification. More specifically, she “knew right away from the shape of his head and his physique that it was not him.” Mrs. Feldman‘s negative identification was unqualified, and she emphasized that “I won‘t forget that guy‘s face.” Mr. Feldman did not see the perpetrator as clearly as Mrs. Feldman, but he also had doubts about whether Mr. Pitt was the robber. He told the police that he “wasn‘t sure, 50/50, but I don‘t think so.” Mr. Feldmаn also described his identification as “more on the negative side than on the positive side.” In sum, both victims of the crime provided negative identifications of Mr. Pitt – Mrs. Feldman told the police she was “certain” that Mr. Pitt was not the robber, and Mr. Feldman stated that he “didn‘t think so.”
Why the police chose to initiate criminal proceedings against Mr. Pitt despite negative identifications by the victims of the crime is somewhat baffling. As we have noted in previous cases, show-up identifications are often problematic because they are inherently suggestive. See, e.g., United States v. Rattler, 475 F.3d 408, 413 (D.C. Cir. 2007). The fact that both victims provided negative identifications of Mr. Pitt despite the inherent suggestiveness of an identification in which only one individual is shown to the eyewitness should have been strong evidence of Mr. Pitt‘s innocence. Defendants cite several cases for the proposition that one exculpatory fact – such as a negative identification – is insufficient to defeat probable cause. However, those casеs involved witnesses’ failure to identify a suspect rather than an outright negative identification. See Wilson v. Russo, 212 F.3d 781, 785, 791-92 (3d Cir. 2000) (one witness “could not say with certainty” that the robber‘s picture was included in a photo array); Olinger v. Larson, 134 F.3d 1362, 1365-66 (8th Cir. 1998) (witness was unable to identify suspect based on a black-and-white videotape of the robbery). The defendants have not cited a single case – from any jurisdiction – in which a court held that there was probable cause to arrest or prosecute a suspect notwithstanding a victim‘s unambiguous negative identification of the suspect.
Defendants point to several other facts that purportedly supplied probable cause to initiate the prosecution of Mr. Pitt. First, they note that Mr. Pitt‘s “clothing” and “physical description” matched the description of the robber. However, this fact has little probative value, given that the persons who provided these descriptions – Mr. and Mrs. Feldman – both provided negative identifications of Pitt during the show-up identification. Second, defendants claim that Mr. Pitt left the scene in a direction and manner “consistent with flight.” The record does not support this contention. The officers saw Mr. Pitt get into his car and drive away from the scene approximately eight minutes after the robbery had taken place. Had Mr. Pitt been “fleeing” – as the defendants now contend – he might well have been gone from the scene much faster than that. Moreover, Officer Adams testified that Mr. Pitt was not speeding, and that he pulled over “voluntarily” as soon as one of the officers instructed him to stop. Based on the evidence in the record, we cannot conclude that Mr. Pitt‘s actions were “consistent with flight.” Third, the police assert that they found “instruments of robbery” – a knife and a BB gun – in Mr. Pitt‘s car. However, we fail to see the relevance of this evidence, given that the victims did not allege that the robber had used a weapon. And Mr. Pitt provided a reasonable explanation for why he had these items – he was a courier who needed them for his protection. Lastly, defendants contend that Mr. Pitt resembled the images of the robber captured on security videotapes from the Feldmans’ apartment building. Before arresting Mr. Pitt, Lt. Eaves watched the tape and concluded that Mr. Pitt was the perpetrator. However, there is a significant factual dispute over how closely Mr. Pitt resembled the person seen on the videotape. Lt. Eaves conceded that when he compared a picture of Mr. Pitt to a still-frame photo from the video during the trial, he had doubts about whether Mr. Pitt was the person seen on the tape. Similarly, in his deposition, Officer Baxter stated that when he viewed the tape, he “couldn‘t make a positive determination” of whether Mr. Pitt was the robber. We have independently reviewed a still-frame scene from the video, and we see several significant differences between the perpetrator and Mr. Pitt – most notably, the perpetrator clearly had a receding hairline, while Mr. Pitt has a full head of hair, and the perpetrator appears stockier than Mr. Pitt. Drawing all reasonable inferences in favor of the plaintiff, the video is at least ambiguous, and might even be a significant piece of exculpatory evidence.
Overall, in light of the negative identifications of Mr. Pitt by the victims of the crime, we do not believe that any of the aforementioned facts were probative enough to provide probable cause to initiate criminal proceedings against Mr. Pitt.
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Defendants also contend that the evidence offered at trial was insufficient to
Here, a reasonable jury could have concluded that Officers Adams and Baxter acted with malice because the arrest report and the affidavit submitted to prosecutors contained several material misstatements and omissions. Most significantly, the affidavit – which was signed by Officer Adams and largely copied from the arrest report prepared by Officer Baxter – contained absolutely no mention of the Feldmans’ negative identifications. The affidavit contained minute details about the robbery and about the stop of Mr. Pitt‘s car, but it completely omitted the fact that neither victim of the crime believed that Mr. Pitt was the perpetrator. Defendants assert that the officers’ notes – which did describe the show-up identification with the Feldmans – were included in the “jacket” of the case file that was submitted to prosecutors from the U.S. Attorney‘s Office. However, during his deposition, Officеr Baxter testified that he did not recognize the notes, and that he did not know whether the notes had been given to the screening prosecutors. Similarly, AUSA Richard Tischner testified that “very many times,” the officers’ notes are not included in the case jackets. At the very least, there is a factual dispute over whether the prosecutors actually received these notes, and given that the jury returned a plaintiff‘s verdict on the malicious prosecution claims, we must resolve this factual question in favor of the plaintiff.
The affidavit also contained at least one statement that was unambiguously false. According to the affidavit, an officer observed Mr. Pitt getting into a car “within seconds” after a building employee saw the robber leave the building. However, Officer Adams testified that approximately ten minutes had passed from the time the building employee lost sight of the perpetrator until the officers saw Mr. Pitt. The affidavit gave the false impression that the police were hоt on the trail of the robber when they observed Mr. Pitt getting into his car. On the evidence, the perpetrator had been gone for at least eight minutes by the time the police spotted Mr. Pitt in the area. In sum, we agree with the district court that a reasonable jury could have concluded that Officers Adams and Baxter acted with malice in initiating criminal proceedings against Mr. Pitt.
Officers Adams and Baxter argue that they are protected from liability for malicious prosecution because they acted in reliance upon the advice of counsel – namely, the prosecutors in the U.S. Attorney‘s Office. “Proof that a person who institutes a criminal proceeding placed the facts fully and fairly before counsel and acted upon his advice is a good defense to the charge of want of probable cause.” Jarett v. Walker, 201 A.2d 523, 526 (D.C. 1964). The burden of proof is on the defendant to show by a preponderance of the evidence that he is entitled to an affirmative defеnse. Cf. District of Columbia v. Sterling, 578 A.2d 1163, 1165 (D.C. 1990) (holding that defendants bear the burden of proving contributory negligence by a preponderance of the evidence). Here, defendants have not met their burden of establishing that they are entitled to the “advice of counsel” defense. AUSA Richard Tischner typed portions of the officers’ arrest report, but Mr. Tischner testified that the facts contained in the report were based solely upon “what the police officers have to tell us.” AUSA Tischner also
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Although we affirm with respect to Officers Adams and Baxter, we reverse the district court‘s denial of the defendants’ motion for judgment as a matter of law with respect to Detective Bovino. There is no evidence in the record that Det. Bovino had any role in initiating criminal proceedings against Mr. Pitt. Det. Bovino did participate in the investigation of the robbery – he took statements from eyewitnesses, watched the security videotape, and investigated Mr. Pitt‘s alibi. However, these facts are insufficient to establish that Det. Bovino was “responsible for the institution of the malicious proceedings.” 52 AM. JUR. 2d Malicious Prosecution § 21, at 154-55 (2000); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (noting thаt malicious prosecution actions may only be brought against “persons who have wrongfully caused the charges to be filed”). Police officers who “sign and swear to a criminal complaint on which the public authorities base their prosecution of the plaintiff” may be liable. 52 AM. JUR. 2d § 22, at 155. For example, Officer Adams – who signed the false and misleading affidavit upon which the prosecution was based – could be held liable for malicious prosecution. But there is no evidence in the record that Det. Bovino had any involvement in this case beyond routine investigatory duties. He did not prepare or sign the arrest report or the affidavit that was presented to the prosecutors, and he did not speak to the screening attorneys in the U.S. Attorney‘s Office. In sum, based on the evidence received at trial, no reasonable jury could find Det. Bovino liable for malicious prosecution. Thus, we reverse the district court on this issue and remand with instructions to enter judgment for Detectivе Bovino on the common law malicious prosecution claims.
B. Intentional Infliction of Emotional Distress Claims
On the intentional infliction of emotional distress (“IIED”) claims, the jury returned a defense verdict for each of the three police officers. However, the jury returned a verdict for the plaintiffs – both Christopher Pitt and Tela Hansom-Pitt – against the District. The District moved for judgment as a matter of law on these claims, but the district court denied the motion. The District now appeals. We affirm the district court‘s denial of the District‘s motion for judgment as a matter of law with respect to Mr. Pitt‘s IIED claim, but we reverse with respect to Ms. Hansom-Pitt‘s claim.
Under District of Columbia tort law, a plaintiff seeking relief for IIED must offer proof of “extreme or outrageous conduct” that intentionally or recklessly causes the plaintiff to suffer “severe emotional
Here, a reasonable jury could have returned a verdict for Mr. Pitt on his IIED claim. As explained in the previous section, the plaintiffs offered evidence that the officers’ affidavit contained several glaring omissions and at least one false statement. Similarly, the jury could have inferred from the evidence that at least one officer tampered with evidence in an attempt to link Mr. Pitt to the scene of the crime. During their investigation, the police found an “eаr piece cover for a cell phone” at the scene of the robbery. In the affidavit that was submitted to prosecutors, Officer Adams stated that Mr. Pitt‘s “ear piece was missing its cover.” Yet Mr. Pitt testified that his cell phone ear piece was “brand new” and that the foam cover was intact when the police seized his phone. From these facts, a reasonable jury could conclude that an officer may have removed the ear piece cover from Mr. Pitt‘s cell phone in order to link him to the scene of the robbery. Taking the evidence in the light most favorable to the plaintiff, we agree with the district court that a reasonable jury could have found the District‘s actions sufficiently “outrageous” to support a verdict for Mr. Pitt on his IIED claim.
The District argues that the verdict should be set aside as fatally inconsistent because the jury found the District liable for IIED while finding the individual officers not liable. We reject the District‘s arguments. In both the civil and criminal contexts, cоurts have held that inconsistency alone is not a sufficient basis for setting aside a jury verdict. See United States v. Dykes, 406 F.3d 717, 722-23 (D.C. Cir. 2005) (holding that a “criminal defendant convicted by a jury on one count cannot attack that conviction because it was inconsistent with the jury‘s verdict of acquittal on another count” (citations omitted)); United States v. Johnson, 440 F.3d 1286, 1295 (11th Cir. 2006) (holding that “consistent verdicts are unrequired in joint trials for conspiracy: where all but one of the charged conspirators are acquitted, the verdict against the one can stand” (citation omitted)); Mosley v. Wilson, 102 F.3d 85, 89-90 (3d Cir. 1996) (holding that it was error for a district court to “enter[] judgment as a matter of law solely on the basis of inconsistent verdicts”). In any event, the verdicts here are not necessarily inconsistent. The jury found each individual officer not liable, which means that the jury could not conclude by a preponderance of the evidence that any individual officer was liable for IIED. However, at the same time, the jury could have reasonably concluded that the group of police officers as a whole acted sufficiently “outrageously” or “recklessly” that the District should be liable. As explained above, several different officers were involved in Mr.
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Although we affirm the district court with respect to Mr. Pitt‘s IIED claim, we reverse the district court‘s denial of the District‘s motion for judgment as a matter of law on Ms. Hansom-Pitt‘s IIED claim. The District of Columbia has adopted the standard for intentional infliction of emotional distress from the Restatement (Second) of Torts. See Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (quoting Restatement for the elements of IIED); Abourezk v. N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir. 1990) (per curiam) (same). Section 46 of the Restatement states:
Where such [extreme and outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress . . . to a member of such person‘s immediate family who is present at the time, whether or not such distress results in bodily harm.
RESTATEMENT (SECOND) OF TORTS § 46(2) (1965). Thus, under D.C. tort law, a family member can only recover for IIED if she was “present” when the extreme or outrageous conduct took place.
As explained above, the “extreme or outrageous” conduct in this case was the filing of a false and misleading affidavit and possible evidence tampering. Based on the evidence in the record, it appears that the affidavit was prepared at the police station and then presented to prosecutors from the U.S. Attorney‘s Office. It cannot be said that Ms. Hansom-Pitt was “present at the time” of this conduct. In common parlance, the word “present” connotes physical proximity. See WEBSTER‘S NEW INTERNATIONAL DICTIONARY 1793 (3d ed. 1961) (defining “present” as “being in one place and not elsewhere; being within reach, sight or call or within contemplated limits; being in view or at hand”). We cannot hold that Ms. Hansom-Pitt was in any way physically “present” at the location where this affidavit was prepared or filed. Were we to allow Ms. Hansom-Pitt to recovеr for IIED, we would be substantially expanding the scope of the third-party IIED tort under District of Columbia law. Of course, in considering common law claims, federal courts must apply existing law – we have no power to alter or expand the scope of D.C. tort law. See Tidler v. Eli Lilly & Co., 851 F.2d 418, 424 (D.C. Cir. 1988) (noting that a federal court adjudicating state law claims “is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits” (quoting Day & Zimmerman v. Challoner, 423 U.S. 3, 4 (1975)). Accordingly, we reverse the district court and remand with instructions to enter judgment for the District on Ms. Hansom-Pitt‘s IIED claim.
C. Punitive Damages
The jury assessed $1,000 in punitive damages against each of the three defendant officers. The defendants moved to set aside the punitive damages, arguing that the evidence offered at trial did not show that the officers’ conduct was “outrageous or egregious.” The district court denied the motion. We affirm with respect tо Officers Adams and Baxter but set aside the punitive damage award against Detective Bovino.
Under District of Columbia law, “[p]unitive damages are warranted
However, we set aside the award of punitive damages against Detective Bovino. As explained above, the evidence offered at trial was insufficient to find Det. Bovino liable for malicious prosecution. There was no evidence that Det. Bovino was responsible for the prosecution of Mr. Pitt. He did not prepare the arrest report or the affidavit, and he did not present the case to screening prosecutors. And there was no evidence that any of his notes from the investigation were false or misleading. It cannot be said that Det. Bovino acted with “malice,” “recklessness,” or “wilful disregard” of Mr. Pitt‘s rights. Thus, we set aside the $1,000 punitive damage award against Detective Bovino.
III.
A. False Arrest Claims Under 42 U.S.C. § 1983
Plaintiffs argue that the district court erred in holding that the defendants were entitled to qualified immunity on the claims for false arrest under
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The Supreme Court has held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Wilson v. Layne, 526 U.S. 603, 614 (1999) (holding that qualified immunity turns upon the “objective legal reasonableness of the officers’ action, assessed in light of the legal rules that were clearly established at the time the action was taken” (internal quotation marks and citation omitted)).
Courts have emphasized that whether a
[A]lthough the jury may be suited for making factual findings relevant to the question of qualified immunity, we believe it far better for the court, not the jury, to answer the ultimate legal question of whether a defendant is entitled to qualified immunity. The nature of the analysis – requiring an examination of current federal law and federal law as it existed at the time of the alleged violation – makes for an awkward determination by the jury, at best.
Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir. 2001) (internal citation omitted). See also Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007) (“Whether the right at issue in a claim of qualified immunity is clearly established . . . is a pure question of law . . . .”); Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997) (same); Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990) (“The ultimate legal determination whether, on the facts found, a reasonable police officer should have known he acted unlawfully is a question of law better left for the court to decide.”).
We reverse the district court‘s order insofar as it grants the defendants’ motion for judgment as a matter of law on the plaintiff‘s claim for arrest without probable cause under
B. Malicious Prosecution Claims Under 42 U.S.C. § 1983
Plaintiffs also sought relief for malicious prosecution under
Section 1983 creates a cause of action to remedy certain deprivations of federal rights, but it is not a source of substantive rights. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (noting that “[section 1983] is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes”). To determine whether a given right may be enforced through section 1983, we must look to the underlying constitutional provision that the plaintiff seeks to enforce. Here, the plaintiff asserts that the defendant officers initiated a criminal prosecution against Mr. Pitt without probable cause, in violation of his rights under the Fourth Amendment.2
This court has not yet addressed whether malicious prosecution can give rise to a violation of the Fourth Amendment. However, nearly every other Circuit has held that malicious prosecution is actionable under the Fourth Amendment to the extent that the defendant‘s actions cause the plaintiff to be “seized” without probable cause. See Britton v. Maloney, 196 F.3d 24, 28-29 (1st Cir. 1999) (holding that “[f]or a state actor to violate the Fourth Amendment by initiating a malicious prosecution against someone, the criminal charges at issue must have imposed some deprivation of liberty consistent with the concept of a seizure” (citation omitted)); Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (holding that “[t]he Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person”); Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (holding that in a malicious
We join the large majority of circuits in holding that malicious prosecution is actionable under
Although prosecution without probable cause can give rise to constitutional injury under the Fourth Amendment, the district court correctly held that the three defendant officers are entitled to qualified immunity on these claims because this right was not “clearly established” at the time of the actions at issue in this case.
Government officials being sued under
Based on the aforementioned cases, we hold that at the time of the officers’ actions, it had not been “clearly established” in this Circuit that malicious prosecution was a violation of any constitutional rights. Accordingly, the defendant officers are entitled to qualified immunity on the malicious prosecution claims brought under
IV.
The district court‘s orders are affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
So ordered.