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Defendant, a County Sheriff, May Not Have Had the Authority to Order the Plaintiff to Leave the Airport/Questions of Fact Raised About Whether Defendant Had Probable Cause to Arrest Plaintiff for Trespass and Disorderly Conduct/Questions of Fact Raised About Whether Excessive Force Was Used and Whether Plaintiff Was Subjected to Retaliation for the Use of Protected Speech

The Third Department determined Supreme Court properly denied defendant’s motion for summary judgment on plaintiff’s “false arrest” cause of action, and Supreme Court erred in granting the defendant’s motion for summary judgment on plaintiff’s “excessive force” and “retaliation for the use of protected speech” causes of action. The lawsuit stemmed from plaintiff’s being told by airport personnel that her daughter had not arrived as expected because she missed a connecting flight.  Plaintiff became upset when she couldn’t learn more about the status of her daughter.  Defendant, a county sheriff, came on the scene, ordered plaintiff to leave the airport, and, when plaintiff refused, arrested her for trespass and disorderly conduct. The Third Department determined there were questions of fact about whether defendant had probable cause to arrest plaintiff, as well as whether excessive force was used and whether the defendant acted in retaliation for protected speech. With respect to the trespass arrest, the court noted that defendant may not have had the authority to order plaintiff to leave the airport:

In assessing whether defendant met his initial burden of establishing that he had arguable probable cause to arrest plaintiff for trespass, proof of defendant’s authority to issue the blanket order directing plaintiff to leave the public facility must be examined. This is so because the “right to exclude ‘has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights'” … and, unless otherwise authorized, police do not have the inherent and general rights of a property owner (see e.g. US Const 4th Amend). The record demonstrates that, on the day in question, defendant was a county employee working in the county airport, a public facility. In support of his motion, defendant provided no proof that he was either prescribed by law or directed by the Tompkins County legislature to exercise any authority to lawfully order a citizen to leave this public property (see County Law § 650…). Nor did defendant’s proffer demonstrate that he was asked to remove plaintiff from the airport property by someone with the authority to do so … . Therefore, defendant did not establish as a matter of law that he had arguable probable cause to arrest plaintiff for criminal trespass because issues of fact exist as to whether, at the time of arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order … . Brown v Hoffman, 2014 NY Slip Op 08099, 3rd Dept 11-20-14

 

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The Existence of Probable Cause Required Dismissal of Causes of Action for False Arrest, False Imprisonment, Malicious Prosecution and Violation of Civil Rights (42 USC 1983)

The Second Department, reversing Supreme Court, determined the existence of probable cause was a complete defense to the causes of action alleging false arrest, false imprisonment, malicious prosecution and violation of civil rights (42 USC 1983):

The existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution …, including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that are the federal-law equivalents of state common-law false arrest and malicious prosecution causes of action … . Generally, probable cause is established where an identified crime victim “communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator” … .

The appellants demonstrated their prima facie entitlement to judgment as a matter of law by establishing the existence of probable cause for the plaintiff’s arrest. Paulos v City of New York, 2014 NY Slip Op 07994, 2nd Dept 11-19=-14

 

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Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14

 

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Plaintiff Arrested Without a Warrant Based Upon Illegally Seized Evidence Granted Summary Judgment in False Arrest/Imprisonment Action

The Second Department determined plaintiff was entitled to summary judgment on his false arrest/imprisonment cause of action. Plaintiff was arrested without an arrest warrant based upon evidence seized in an illegal search:

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” … . ” The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim'” … .When an arrest is made without a warrant, a presumption arises that it was unlawful, and a defendant must then show that a factual question exists as to whether the arrest was based on probable cause … . Evidence which is illegally obtained in violation of a plaintiff’s rights may not be used to establish probable cause … . Fakoya v City of New York, 2014 NY Slip Op 01709, 2nd Dept 3-19-14

 

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Elements of False Arrest and Malicious Prosecution Explained

The Second Department reversed Supreme Court and dismissed plaintiff’s false arrest and malicious prosecution action. The court explained the elements of the two intentional torts:

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” … . “The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim of false imprisonment or false arrest”… . Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest'” … . * * *

“The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” … . “Once a suspect has been indicted, . . . the indictment creates a presumption of probable cause to believe that the suspect committed the crime” … . “The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted in bad faith” … . Williams v City of New York, 2014 NY Slip Op 01165, 2nd Dept 2-19-14

 

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Opening Statement Provided Grounds for Dismissal of False Arrest/Malicious Prosecution Action

The Second Department affirmed Supreme Court’s grant of a judgment as a matter of law to the defendant in a false arrest/malicious prosecution case based upon plaintiff’s counsel’s opening statement. In the opening, counsel stated the defendant had been arrested after the eyewitness victim made an in-person identification of the plaintiff to a police officer.  Because the eyewitness identification provided probable cause for the arrest, the false arrest and malicious prosecution causes of action were not viable:

An application for judgment as a matter of law may be made at the close of an opposing party’s case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party’s case is generally disfavored … . However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants”… . * * *

Here, the plaintiff, through his counsel, admitted that the eyewitness victim of the alleged crimes made an in-person identification of the plaintiff to a police officer, which led to his immediate arrest by that officer. This admission by the plaintiff, through his counsel, “so completely compromised” his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City…. Okunubi v City of New York, 2013 NY Slip Op 05886, 2nd Dept 9-18-13

 

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Elements of Malicious Prosecution, False Arrest, False Imprisonment, Libel and Slander Explained

In affirming Supreme Court, which dismissed some causes of action and allowed others to stand, the Fourth Department explained elements of several intentional torts, including malicious prosecution, false arrest, false imprisonment, libel and slander.

Malicious prosecution:

“The elements of the tort of malicious prosecution are:(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” . ;. . “In the context of a malicious prosecution cause of action, probable cause ‘consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty’ ”…Actual malice “means that the defendant must have commenced the . . . criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served”… . * * *

False arrest, false imprisonment:

It is well settled that a plaintiff’s appearance in court as a result of the issuance of a criminal summons or appearance ticket is insufficient to support a claim of false arrest or false imprisonment…, and here “the record establishes that plaintiff was never arrested or held in actual custody by any law enforcement agency as a result of the charge . . . filed against [him]” … .

Libel:

…W]e conclude that the court properly denied that part of their motion seeking to dismiss the libel cause of action (eighth cause of action). [Defendant’s] statement that plaintiff made “several threats toward[] [defendant] and [her] residence,” which was contained in her supporting deposition that she provided to the police, “tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or [to] induce an evil opinion of him in the minds of right-thinking persons” … .Moreover, contrary to the contention of the …defendants, proof of special damages is not required for libel on its face or libel per se…

Slander:

The two allegedly defamatory statements pleaded in the complaint do not constitute slander per se because they do not “charg[e] plaintiff with a serious crime” or “tend to injure [plaintiff] in his . . . trade, business or profession”… .Contrary to the contention of plaintiff, stalking in the fourth degree does not constitute a “serious crime” for purposes of slander per se … . “To be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [the plaintiff]’s character or qualities. Rather, the statement must reflect on [the plaintiff’s] performance or be incompatible with the proper conduct of [the plaintiff’s] business”… .  Zetes v Stephens, et al, 406, 4th Dept 7-5-13

 

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Criteria for 1983 Action Against Municipality Based On Policy or Custom

In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

… [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of “(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right” … . “For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers'” …, or have occurred pursuant to a practice “so permanent and well settled as to constitute a custom or usage’ with the force of law” … .

“A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff’s rights” … . Liability for a violation of 42 USC § 1983 may be predicated on “a single act, as long as it is the act of an official authorized to decide policy in that area” … .  Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13

 

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False Arrest, Malicious Prosecution, and 1983 Actions Allowed to Proceed

In reversing the trial court’s grant of summary judgment to the defendants in an action for false arrest, malicious prosecution and violation of 42 USC 1983, the Second Department wrote:

…[I]n opposition to the Allstate defendants’ prima facie showing, the plaintiff raised triable issues of fact as to whether the Allstate defendants affirmatively induced law enforcement officials to act by taking an active part in the arrest and procuring it to be made, or by engaging in active, officious, and undue zeal to the point where the law enforcement officials were not acting of their own volition … . The plaintiff’s submissions were also sufficient to raise triable issues of fact as to whether the Allstate defendants intentionally provided false information to law enforcement officials or withheld material information …, thereby permitting an inference of actual malice … . The plaintiff’s submissions additionally raised triable issues of fact as to whether the Allstate defendants “engaged in a conspiracy with state officials to deprive [plaintiff] of federal rights” … . Accordingly, the Supreme Court should have denied the Allstate defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Robles v City of New York, 2013 NY Slip Op 01814, 2011-11017, Index No 27364/07, 2nd Dept. 3-20-13

 

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