Police Misconduct: the word of an unreliable civilian complainant should not serve as probable cause to arrest

Often, a client of potential police misconduct will have been arrested on the basis of an allegation made by a civilian, not a police officer (e.g., a claim of assault that the police did not witness).   In these instances, it cannot be argued that the police fabricated the evidence against the client, since the allegations, right or wrong, were provided by a third party.   These third party allegations will ordinarily confer probable cause upon the police officer to make an arrest.  Or, at the very least, will provide the officer with a “qualified immunity defense” that his actions were reasonable.   In fact, the practitioner can anticipate a motion to dismiss from the defendants in nearly every “civilian complainant” case.  But do not despair, the law does not permit the police to blindly arrest people based upon the allegations of a civilian if those allegations, on their face, have transparent credibility issues.

First and foremost, it is the defendant in a false arrest case who has the burden to prove the arrest was justified, or “privileged”.    That is, a defense to the claim of false arrest, that the confinement is privileged, can be established by a finding that the police had probable cause to make the arrest.  This probable cause determination is ordinarily a question of fact for the jury.  It is well-settled that “[w]here the question of whether an arresting officer had probable cause is predominantly factual in nature, as where there is a dispute as to the pertinent events, the existence vel non of probable cause is to be decided by the jury.” Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Accord  Weyant v. Okst, 101 F.3d 845, 854 (2d  Cir. 1996) (“The weighing of the evidence and the determination as to which version of the events to accept are matters for the jury.”); Wu v. City of New York,  934 F.Supp. 581, 588 (S.D.N.Y. 1996) (“Where the defense of probable cause is based on conflicting evidence, the question is resolved by the jury.”); Parkin v. Cornell University, 78 N.Y.2d 523, 529 (1991) (probable cause can be decided by the court “only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts”).

Defendants often will argue that a plaintiff’s false arrest claim must be dismissed because there was probable cause to arrest plaintiff based solely on the word of the complaining witness.  However, it is well-settled that “officers are not absolutely privileged to arrest upon a charge by any private individual who claims to be a victim.”  Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998).  Rather, such an arrest may be made only “absent circumstances that raise doubts as to the victim’s veracity.” Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995); see also Bullard v. City of New York, No. 01 Civ. 11613, 2003 WL 168444, at *4 (S.D.N.Y. Jan. 20, 2003) (refusing to dismiss complaint where “there were sufficient indications that the complainants were not reliable sources of probable cause and the defendants did nothing to investigate the allegations, corroborate them, or pursue [plaintiff’s] claims that he was innocent”);  Miloslavsky v. AES Eng’g Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) (probable cause can be established by information from an eyewitness “who it seems reasonable to believe is telling the truth”).

“The fact that a victim provides the police with information of an alleged crime does not, without more, establish probable cause.  Rather, the officer has a duty to assess the reliability of the victim and, if circumstances call into doubt the victim’s veracity, to investigate the allegations and corroborate them.”  Jovanovic v. City of New York, 2006 U.S. Dist. LEXIS 59165 (August 17, 2006).  In Jovanovic, the plaintiff had been accused of sexually assaulting a student he met over the internet.  The student told a bizarre tale of being held captive, burned with candle wax and repeatedly raped.  Her claims, however, were not supported by medical or forensic evidence.  Plaintiff was convicted at trial, but the matter was overturned on appeal and set down for a new trial.  The prosecution ultimately dismissed the charges and plaintiff brought a subsequent action for, inter alia, false arrest and malicious prosecution.  The defendant City of New York moved to dismiss the charges and the District Court denied its motion, finding that the sole, unsupported allegation of a complainant did not on its face confer probable cause where other circumstances raised issues as to the veracity of the claim.  The Court reasoned:

“As the Second Circuit explained in Singer v. Fulton County Sheriff, “[a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has         probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity .63 F.3d 110, 119 (2d Cir.1995) (emphasis added). “[T]he failure to make a further inquiry when a reasonable person would have done           so may be evidence of a lack of probable cause.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996) (internal quotation marks omitted); see also Bullard v. City of New York, 2003 WL 168444, a (S.D.N.Y. Jan. 20, 2003)      (denying a motion to dismiss where the facts as alleged by the plaintiff in his complaint established that the victim was not a reliable source of probable cause, and yet “he defendants did nothing to investigate the allegations, corroborate them, or pursue [the plaintiff’s] claims that he was innocent.”).”

Thus, if there are “circumstances that raise[d] doubts as to the victim’s veracity”, the police were under some limited duty to investigate the matter further.  Singer, 63 F.3d at 119.   This is especially true where the client and the complainant knew each other prior to the alleged incident.  See Mistretta, 5 F. Supp. 2d at 133 (“The most common situation in which such doubts arise is when there exists a prior relationship between the victim and the accused that gives rise to a motive for a false accusation.”).   Based on the above, be sure to investigate the specific allegations made against your client and the circumstances surrounding those allegations.  If it is objectively clear that the complainant bore false witness against your client, it is possible the police should have considered and/or investigated the matter further.  A false allegation by a civilian complainant should not be permitted to serve as a rubber stamp for an arrest.

Myers, Singer & Galiardo LLP

Myers, Singer & Galiardo LLP