721 F.3d 84 (2nd Cir. 2013), 12-713-cv, Stansbury v. Wertman

Docket Nº:12-713-cv.
Citation:721 F.3d 84
Opinion Judge:WESLEY, Circuit Judge.
Party Name:Linda STANSBURY, Plaintiff-Appellee, v. Chad WERTMAN, Defendant-Appellant, Joseph Lutz and John Does 1 Through 10, Defendants.
Attorney:Sudarsana Srinivasan, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecelia C. Chang, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Appellant Chad Wertman. Randolph M. McLaughlin (Jeffrey M. ...
Judge Panel:Before: WALKER, SACK, and WESLEY, Circuit Judges.
Case Date:June 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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721 F.3d 84 (2nd Cir. 2013)

Linda STANSBURY, Plaintiff-Appellee,


Chad WERTMAN, Defendant-Appellant,

Joseph Lutz and John Does 1 Through 10, Defendants. [*]

No. 12-713-cv.

United States Court of Appeals, Second Circuit.

June 26, 2013

Argued: March 11, 2013.

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Sudarsana Srinivasan, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecelia C. Chang, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Appellant Chad Wertman.

Randolph M. McLaughlin (Jeffrey M. Norton, on the brief), Newman Ferrara LLP, New York, NY, for Appellee Linda Stansbury.

Before: WALKER, SACK, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

Chad Wertman (" Wertman" ) appeals from the January 24, 2012 opinion and order of the United States District Court for the Southern District of New York (Holwell, J. ) denying Wertman's motion for summary judgment. Linda Stansbury (" Stansbury" ) brought this action pursuant to 42 U.S.C. § 1983 alleging false arrest and malicious prosecution. Wertman moved for summary judgment, asserting that (1) there was probable cause for the arrest and prosecution, or, in the alternative that (2) he was entitled to qualified immunity based on the existence of arguable probable cause.

The district court analyzed each piece of evidence in the case seriatim and in isolation and concluded that there was a genuine issue of material fact as to whether Wertman had probable cause or arguable probable cause to arrest Stansbury. This was error. Analyzing the evidence in its totality, we hold that no reasonable trier of fact could conclude that Wertman did not have probable cause to arrest and to prosecute Stansbury. We therefore reverse the district court's opinion and remand the case with instructions to enter judgment for Wertman.


At 8:30 p.m. on April 4, 2006, a woman shoplifted approximately $800 of goods from a Stop & Shop supermarket in Somers, New York. Mary Sue Cirrincione (" Cirrincione" ), the store detective who was trained " to focus on distinctive facial characteristics," observed the crime on the store's three-inch by five-inch monitor. Cirrincione Decl.; see also Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 183849, at *1 (S.D.N.Y. Jan. 24, 2012). Cirrincione alerted co-worker Mark John (" John" ), who physically observed the perpetrator and watched her open tightly-folded, crisp, new Old Navy bags and place items from the shelves into the bags and then in her shopping cart. Id. When she tried to leave, John attempted to block the perpetrator's exit and asked to see her receipt; she ran around him, exited the building, and jumped into a white van. Id. John noted the van's license plate number as it drove away. Id.

Cirrincione and John reported the incident to the police, and New York State Trooper Chad Wertman arrived to investigate. Wertman recovered a bus receipt from an Old Navy bag the perpetrator had left behind. He watched the videotape of the theft and took the tape as evidence. Cirrincione and John both described the perpetrator as a " black female wearing blue jeans and a maroon windbreaker; " John added that she was " about 5'5" ." Id. The bus ticket and license plate number did not yield any additional leads.

Noting that the perpetrator's Old Navy bags were in mint condition, Wertman traveled to one of the two nearby Old Navy stores. The Old Navy manager reported that a middle-aged black woman had attempted to buy some clothing at the store at 8:08 p.m. that evening, but that her credit card was declined. The manager

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reported that new bags, typically stored in the rear of the store, were discovered strewn on the ground near the door around the same time. Id. at *2. Wertman traced the credit card receipt to a card belonging to Nicole Stansbury (" Nicole" ), Linda Stansbury's daughter. After repeated attempts, Wertman was able to contact Nicole by telephone; she alleged that she had been in Old Navy on April 4 before visiting an A & P supermarket and returning to her mother's house.

Wertman went to Stansbury's house on May 22 to interview Nicole. Wertman asserts that on his arrival, " he recognized Linda Stansbury as the perpetrator he had seen on the videotape." Id. He interviewed both women, but his " notes of the interview reflect that Linda was nervous, that she would not answer his questions directly, and that Nicole answered many of the questions he asked of her mother." Id.

After the interview, Wertman reviewed Stansbury's criminal history and discovered an arrest for grand larceny. He then obtained a DMV photograph of Stansbury and asked another trooper to prepare a photo array. Before the array was complete, Wertman and two senior officers reviewed the videotape, compared it to the DMV photograph and confirmed their collective belief that Stansbury was the perpetrator.

Wertman scheduled a follow-up interview with Linda and Nicole Stansbury at the police barracks in Somers. He planned to have Cirrincione and John come to the station and view Linda Stansbury to see if they could identify her as the shoplifter; the Stansburys never arrived. Id. at *3. Because the photo array was not yet ready, Wertman showed Stansbury's DMV photograph to Cirrincione and John without any control photographs, in violation of the New York State Police Field Manual (" Field Manual" ).1 Both Cirrincione and John identified Stansbury as the perpetrator and signed a sworn statement under penalty of perjury to that effect. Cirrincione confirmed " without any doubt or reservation" that Stansbury was the perpetrator, and John " was positively without a doubt able to identify" her as the thief. After Wertman spoke with her attorney, Stansbury turned herself in the next day; she was listed as 5'9" tall upon arrest.

Stansbury was tried for petit larceny in Somers Town Court. After a two-day bench trial including testimony by Cirrincione and John, Stansbury was acquitted. Two years later she commenced this suit, alleging false arrest and malicious prosecution under 42 U.S.C. § 1983. Wertman moved for summary judgment; finding " genuine issues of material fact with respect to probable cause," the district court denied his motion in January 2012. Id. at *9. Wertman timely filed this appeal.


I. Jurisdiction and Standard of Review

This Court has jurisdiction to hear interlocutory appeals of denials of motions for summary judgment where the motion is predicated in whole or in part on assertions of qualified immunity. See, e.g., Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.2010). Wertman alleges both that he is entitled to qualified immunity based on the existence of arguable probable cause and that he is entitled to judgment as a

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matter of law based on the existence of probable cause.

We may exercise pendent jurisdiction to decide whether Stansbury " has alleged a constitutional violation at all" before deciding whether Wertman is shielded by qualified immunity. Finigan v. Marshall, 574 F.3d 57, 61 (2d Cir.2009). Although it is no longer required, see Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), the probable cause inquiry may precede any inquiry into qualified immunity because there cannot be an allegation of a constitutional violation where probable cause justifies an arrest and prosecution. Panetta v. Crowley, 460 F.3d 388, 394-95 (2d Cir.2006). In this case, it is " beneficial," Pearson, 555 U.S. at 236, 129 S.Ct. 808, to first address whether Wertman had probable cause, because it best serves the interests of judicial economy, see Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir.2004). Thus, because the probable cause inquiry is inextricably intertwined with the immunity question, we will exercise our " discretion[ ][to] consider otherwise nonappealable issues" based on our review of the question of qualified immunity. San Filippo v. U.S. Trust Co. of N.Y., Inc., 737 F.2d 246, 255 (2d Cir.1984); see also Golino v. City of New Haven, 950 F.2d 864, 868-69 (2d Cir.1991).

The standard of review here is well-established.2 We conclude that Wertman had both probable cause and arguable probable cause to arrest and prosecute Stansbury; the district erred in denying Wertman's motion for summary judgment as to the false arrest and malicious prosecution claims.

II. False Arrest

" ‘ [P]robable cause is an absolute defense to a false arrest claim.’ " Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129, 139 (2d Cir.2010) (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.2006)). " An officer has probable cause to arrest when he or she has 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 ... a crime." Jaegly, 439 F.3d at 152. A court " must consider [only] those facts available to the officer at the time of the arrest and immediately before it." Panetta, 460 F.3d at 395 (internal quotation marks and emphasis omitted). A court examines each piece of evidence and considers its probative value, and then " look[s] to the totality of the circumstances" to evaluate whether there was probable cause to arrest and prosecute the plaintiff. Id. (quotation marks omitted). If probable cause existed, it presents a total defense to Stansbury's actions for false arrest and malicious prosecution; Wertman would be entitled to judgment as a matter of law. Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003).3

A. Available Evidence as to Probable

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Cause 4

The district court analyzed five separate pieces of evidence before concluding that Wertman was not entitled to a probable cause determination:

(1) Cirrincione's and John's eyewitness accounts...

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