478 F.3d 76 (2nd Cir. 2007), 06-0182, Jenkins v. City of New York

Docket Nº:Docket No. 06-0182-CV.
Citation:478 F.3d 76
Party Name:Pierre JENKINS (A.K.A. Pierre Burton), Plaintiff-Appellant, v. CITY OF NEW YORK, New York City Police Department, Walter Mack, Detective, Shield No. 4235, Jerome Parrino, Detective, Shield No. 1734, Steven Hunter, Detective, Shield No. 1344 and Robert Shulman, Detective, Shield No. 5456, Defendants-Appellees.
Case Date:February 06, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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478 F.3d 76 (2nd Cir. 2007)

Pierre JENKINS (A.K.A. Pierre Burton), Plaintiff-Appellant,


CITY OF NEW YORK, New York City Police Department, Walter Mack, Detective, Shield No. 4235, Jerome Parrino, Detective, Shield No. 1734, Steven Hunter, Detective, Shield No. 1344 and Robert Shulman, Detective, Shield No. 5456, Defendants-Appellees.

Docket No. 06-0182-CV.

United States Court of Appeals, Second Circuit.

Feb. 6, 2007

Argued: Nov. 15, 2006.

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Robert G. Androsiglio, Radna Androsiglio, LLP, New York, NY, for Plaintiff-Appellant.

Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y. (Pamela S. Dolgow, Sheryl Bruzzese, Fay Ng, on brief), for Defendants-Appellees.

Before: CALABRESI, WESLEY, Circuit Judges, OBERDORFER, District Judge. [*]

WESLEY, Circuit Judge.

Plaintiff-appellant Pierre Jenkins filed claims of false arrest and malicious prosecution under 42 U.S.C. § 1983 and New York law, as well as state law claims of libel, slander and intentional infliction of emotional distress, against defendants-appellees--the City of New York, the New York City Police Department (NYPD) and Detectives Mack, Parrino, Hunter and Schulman. Jenkins appeals from a December 8, 2005 judgment of the district court (Glasser, J.) granting defendants' motion for summary judgment and dismissing all claims. For the reasons stated below, we vacate in part and affirm in part, and remand to the district court for further proceedings consistent with this opinion.


Between June 21 and July 12, 1999, a series of robberies and a homicide occurred in Brooklyn, New York. Based on witness and victim descriptions, the police came to believe that the same person was involved in each of the crimes. In a number of the robberies and the homicide, witnesses indicated the participation of a second individual. The robberies were labeled Robbery Pattern 101 and assigned to Detective Parrino of the Brooklyn Robbery Squad, and the homicide was assigned to Detective Mack at the 73rd Precinct in Brooklyn.

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During the first robbery, the victim's red Honda Civic was stolen. The Honda was subsequently described by five of the other robbery victims as the vehicle used by their assailants. When police recovered the Honda on July 13, 1999, they discovered, along with property belonging to one of the robbery victims, the fingerprints of Derrick Blyther. On July 15, 1999, Detectives Parrino, Schulman and Hunter went with members of the Brooklyn Robbery Squad to Blyther's apartment to arrest him. 1

What happened next is in sharp dispute. By Jenkins' and Blyther's account, early that morning they were startled by a loud banging at the door and, when Blyther opened the door, they claim, the police burst in with guns drawn, threw Blyther to the ground and placed him in handcuffs. Other officers headed straight for Jenkins, who was sitting on the couch, forced him to the ground and placed him in handcuffs as well. Blyther and Jenkins insist that at no point did they attempt to flee.

The police offer a different account. The police contend that upon knocking on Blyther's door and announcing their presence Blyther and Jenkins came running out of the apartment. Detectives tackled both men and placed them in handcuffs. In his deposition, Detective Mack testified that tackling a suspect who attempts to flee constitutes the use of physical force and would be noted in a police report. Yet, the Means of Apprehension form prepared by Detective Hunter on the date of arrest makes no mention of the suspects' attempted flight or use of physical force during the arrest. Neither Jenkins nor Blyther was charged with resisting arrest. Not a single post-arrest document suggests that either Jenkins or Blyther attempted to flee the apartment. In their depositions in this action, however, Detectives Amodeo and Hunter recounted the escape attempt.

Jenkins and Blyther were taken to the precinct and placed in lineups by Detective Mack. Jason Chambers, who witnessed the murder of David Diaz, identified Jenkins as the shooter. Later that evening, two victims of the Robbery Pattern 101 crimes, Keith Golden and Vinette Tummings, identified Jenkins as one of their assailants. Several witnesses also identified Blyther. Both men were put in jail. Jenkins was arraigned on several counts of murder and robbery. Prosecutors presented evidence against Jenkins to two separate grand juries which indicted Jenkins on the murder and robbery charges.

During the course of Jenkins' criminal proceeding, the New York Supreme Court (Juviler, J.) held a hearing on Jenkins' motion to suppress the lineup identifications under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Judge Juviler denied Jenkins' Wade motion, finding the lineups free from undue suggestion, but granted Jenkins' Dunaway motion, finding the lineup identifications were fruits of an unlawful arrest, without probable cause. The court then granted the prosecutor's request to demonstrate that courtroom identifications by these three witnesses would have a source independent of the lineup.

Almost eight months after the arrest, an assistant district attorney interviewed Blyther, who informed him that Harvey Dixon, not Jenkins, was the second perpetrator in the murder of David Diaz and the

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robbery of Keith Golden. In addition, Blyther noted that his accomplices in the other robberies were various crack heads from around the neighborhood. Blyther was clear that Jenkins was not involved in any of the Robbery Pattern 101 crimes.

Over three days in late March 2000, Judge Juviler conducted the independent source hearing. During the hearing, Chambers was asked whether the detectives conducting the lineup said anything to him to suggest whom he should pick out. Chambers responded that the lineup was kind of pressured. They said, you got to pick somebody. It was like, you got to get him. Pick somebody. During the break between the first and second days of the hearing, Chambers was presented with a photo array that included Harvey Dixon. Chambers then recanted his identification of Jenkins and instead identified Dixon as the man who shot Diaz. When asked why he picked Jenkins as the shooter during the precinct lineup, Chambers stated, Because the detectives were, like, you had to pick somebody. I just wanted to go home and they were just, like, forcing me to pick somebody. Judge Juviler later noted that [Jenkins] does resemble Dixon. Because Chambers was the only witness linking Jenkins to the Diaz murder, prosecutors decided to drop the murder charges against Jenkins. They continued to pursue the robbery charges, however, on the expectation that Judge Juviler would permit courtroom identifications by Tummings and Golden.

On April 6, 2000, Judge Juviler concluded that prosecutors failed to satisfy their burden of demonstrating that courtroom identifications by Golden and Tummings would have a source independent of the lineup identifications. With respect to Tummings, Judge Juviler indicated he was troubled very much by the corrosive effect of the lineup procedure which came to light when Dr. Tummings testified. Judge Juviler found that when the police called Tummings to request that she come view the lineup, they told her that they had caught the guy and that he fit her description. Shortly after that, she learned from [Golden] that the police had found his watch on the guy. While we know that the guy turned out to be Blyther, this was not evident to Dr. Tummings. Judge Juviler stated that the conduct of the police, in conjunction with Tummings' eagerness to bring someone to justice, created a serious risk that Tummings would pick[] out the person in the lineup who closest resemble[d] the person who had robbed her.

With respect to Golden, Judge Juviler found that the police had shown Golden his stolen watch after telling him that someone in the lineup was in custody. The police did not say who in the lineup was the suspect and the person with the watch, but the police conduct in the context of the previous fact created a substantial risk that Golden would pick the person in the lineup who was most like the second robber.

With the eyewitness identifications suppressed, the District Attorney moved to dismiss the robbery charges. On May 12, 2000, all charges against Jenkins were dismissed. By the time of his release, Jenkins had spent nearly nine months in prison.

Jenkins filed a claim for damages under 42 U.S.C. § 1983 and New York law against the City of New York, the NYPD, and Detectives Mack, Parrino, Hunter and Schulman, asserting federal and state law false arrest claims, and various other claims. Defendants sought summary judgment on all causes of action. The district court divided Jenkins' false arrest claims into two groups based on the relevant

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periods: (1) pre-lineup detention and (2) post-lineup detention.

With respect to Jenkins' pre-lineup detention, the district court noted Judge Juviler's finding that Jenkins' initial arrest was not supported by probable cause and gave that finding preclusive effect. The district court nevertheless dismissed Jenkins' pre-lineup claims, finding the detective defendants were entitled to qualified immunity. The district court noted that an arresting officer is immune from personal liability for false arrest so long as he has arguable probable cause. In the district court's view, Detectives Shulman, Hunter and Parrino 2 had arguable probable cause because, when...

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