LAURENCE WASHINGTON v. DETECTIVE, #314 FRANK NAPOLITANO AND FRANCIS JOSEPH MCGEOUGH, HONORABLE JULIA DEWEY, DAVID ZAGAJA, PROSECUTOR, EAST HARTFORD POLICE DEPARTMENT, DETECTIVE, #310 D. ORTIZ
No. 20-455
United States Court of Appeals for the Second Circuit
March 23, 2022
August Term 2020
(Argued: February 3, 2021)
Defendants-Appellants Detective Frank Napolitano and Sergeant (now Lieutenant) Francis McGeough appeal from an order, entered on January 10, 2020,*
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,
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
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
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
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
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, 624 F.3d 522, 529 (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
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 stоre. 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
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
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 storе 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.
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 wаs 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.
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
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.
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 еxample, “[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
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
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, 699 F.3d 211, 219 (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 id.
B. Absolute Immunity
Appellants contend that they are entitled to absolute prosecutorial immunity for their involvement in the arrest warrant application and affidavit
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, 45 F.3d 653, 660 (2d Cir. 1995) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 269 (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. 475 U.S. 335, 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 employeеs who assist such [prosecutor] and who act under that [prosecutor‘s] direction in performing functions closely tied to the judicial process.” Hill, 45 F.3d at 660 (citation omitted). However, swearing to arrest warrant affidavits and executing arrests are not “functions closely tied to the judicial process.” Id. For example, in Simon v. City of 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. 727 F.3d 167, 174 (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, 522 U.S. 118, 131 (1997). Accordingly, the district court correctly held that absolute prosecutorial immunity does not apply to the alleged conduct
regarding the arrest warrant affidavit by appellants, and that such conduct is properly analyzed under the qualified immunity standard.5C. 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
Probable cause constitutes an absolute defense to a false arrest claim, see Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995), and similarly defeats a claim for malicious prosecution, see Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). Our probable cause analysis looks to the law of the state where the arrest and prosecution occurred. See Davis v. Rodriguez, 364 F.3d 424, 433 (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, 496 F.3d 139, 156 (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, 874 F.3d 338, 348 (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., 124 F.3d 123, 128 (2d Cir. 1997); see also Krause v. Bennett, 887 F.2d 362, 372 (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, 533 U.S. 194 (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, 834 F.3d 162, 167 (2d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 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, 825 F.3d 89, 100 (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
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, 950 F.2d 864, 870 (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, 921 F.3d 48, 73 (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, 950 F.2d at 871 (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, 874 F.3d 73, 82 (2d Cir. 2017). If the corrected affidavit provides an “objective basis
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, 864 F.3d 200, 206 (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
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
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, 460 F.3d at 396, 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, 460 F.3d at 395.
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.
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
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
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
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 glassеs 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, 496 F.3d at 161 (internal quotation marks and citation omitted); see also Wilson v. Russo, 212 F.3d 781, 787 (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
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
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. Wе 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, 740 F.3d 817, 825 (2d Cir. 2014) (“A confidential informant‘s credibility is plainly relevant - even critical - to the probable cause
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, 460 F.3d at 395. Thus, our cases
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
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 Washingtоn 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. Id. at 11-12. Of course, we make no suggestion to the contrary. More generally, we examined these facts cumulatively,
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, 721 F.3d 84, 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
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 аs 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
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.
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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, 361 F.3d at 746; 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 cаuse for Washington‘s arrest was based almost entirely on Washington‘s statement, no
“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, 740 F.3d at 825; see also Velardi, 40 F.3d at 574 (“[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.
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, 921 F.3d 48, 73 (2d Cir. 2019). Chief among thеse 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, 825 F.3d 89, 100 (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
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, 496 F.3d 139, 156 (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
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
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
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
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
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 аt the time of the arrest objectively provided probable cause to arrest.” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006) (emphasis added). Our case law accordingly stresses that the justification for an arrest is measured solely
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, 740 F.3d 817, 825 (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.
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
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, 776 F.3d 67, 78 (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
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, 428 F.3d 452, 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, 203 F.3d 72, 81 (1st Cir. 2000); Jarrett v. United States, 822 F.2d 1438, 1440 & n.1 (7th Cir. 1987); United States v. Bufalino, 683 F.2d 639, 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
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
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.
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