Golino v. City of New Haven, 352

Decision Date03 December 1991
Docket NumberNo. 352,D,352
Citation950 F.2d 864
PartiesAnthony GOLINO, Plaintiff-Appellee, v. CITY OF NEW HAVEN, William Farrell, Robert Lillis, Anthony DiLullo, Leonard Pastore, Mary Fish-MacDonald, Joyce Carasone Lupone, John and/or Mary Doe One Through John and/or Mary Doe Ten, Being Officers, Agents or Employees of the City of New Haven, the State of Connecticut or Those Acting in Concert With Them, Whose Names are Presently Unknown to the Plaintiff, Defendants, Robert Lillis, Leonard Pastore, Anthony DiLullo, Mary Fish-MacDonald, Defendants-Appellants. ocket 91-7600.
CourtU.S. Court of Appeals — Second Circuit

Steven Traub, New Haven, Conn. (Hugh F. Keefe, Lynch, Traub, Keefe & Errante, on the brief), for plaintiff-appellee.

William C. Longa, Bridgeport, Conn. (David P. Atkins, Shelley R. Sadin, Zeldes, Needle & Cooper, Bridgeport, Conn., Martin S. Echter, Deputy Corp. Counsel, City of New Haven, New Haven, Conn., on the brief), for defendants-appellants.

Before KAUFMAN, KEARSE and McLAUGHLIN, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Robert Lillis, Leonard Pastore, Anthony DiLullo, and Mary Fish-MacDonald appeal from so much of an order of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, as denied their motion for summary judgment dismissing claims against them by plaintiff Anthony Golino under 42 U.S.C. § 1983 (1988) for malicious prosecution. Appellants moved for summary judgment on the grounds that (1) a state-court finding during the prior criminal proceeding collaterally estops Golino from litigating in the present case the issue of whether there was probable cause to prosecute him, and (2) as police officers, they enjoy qualified immunity from the present suit. The district court denied appellants' motion on the grounds that (1) collateral estoppel was inappropriate because Golino had not had a sufficient opportunity in the prior proceeding to litigate the probable cause question, and (2) there were genuine issues of material fact to be tried with respect to the immunity defense. On appeal, appellants contend that the district court erred in concluding (1) that Golino did not have an adequate opportunity to litigate the question of probable cause, and (2) that any existing questions of fact with respect to probable cause are material. For the reasons below, we reject both contentions and affirm the order of the district court.

I. BACKGROUND

The present action arises out of an 11-year investigation by the City of New Haven Police Department into the 1973 murder of Concetta ("Penny") Serra. Lillis, a police sergeant, supervised the investigation. DiLullo and Pastore, police detectives, and Fish-MacDonald, a police officer, had primary operational responsibility for the investigation. In July 1984, Golino was arrested pursuant to an arrest warrant and charged with the murder.

In August 1984, following a preliminary evidentiary hearing held pursuant to state law ("1984 state hearing"), Connecticut Superior Court Judge Frank Kinney found probable cause to support the murder charge. At that hearing, Judge Kinney permitted Golino's counsel to cross-examine the state's witnesses and to make a brief written offer of proof, but he denied Golino's request to introduce evidence. In May 1987, just prior to the scheduled start of Golino's trial for murder, a court-ordered blood test revealed that Golino's blood type did not match that of the killer. The charges against Golino were then dismissed.

In January 1988, Golino commenced the present action against appellants and several other defendants. To the extent pertinent here, he asserted claims against appellants under § 1983 for malicious prosecution. After a period of discovery, appellants moved for summary judgment dismissing these claims on the grounds that (1) as police officers, they were entitled to qualified immunity because there existed no genuine issue of fact as to the existence of probable cause to arrest and try Golino, or (2) Judge Kinney's probable cause determination precluded Golino from relitigating that issue in the present case.

In a ruling reported at 761 F.Supp. 962 (1991), the district court denied this motion, stating that "the record as it currently stands contains evidence from which a reasonable jury might infer that plaintiff was maliciously prosecuted." Id. at 964. The court noted that in order to establish a As to the merits of the probable cause question, the court concluded that there existed genuine issues of material fact because the affidavit leading to the warrant for Golino's arrest, and to his subsequent prosecution, contained false statements and made numerous material omissions. To begin with, Golino was connected to the Serra murder principally by statements that the police attributed to his former wife, Joyce Carasone Lupone (from whom he had separated in 1980, and who testified at the 1984 state hearing that she hated Golino and would do anything she could to keep him from getting custody of their son), whom the police knew to be involved in acrimonious divorce proceedings with Golino. The warrant affidavit quoted Lupone as stating that on more than one occasion Golino had made incriminating remarks to her, i.e., threatening to do to her "the same ... as he had done to Penny Serra." The affidavit did not disclose, however, that Lupone had also made statements to the police that were inconsistent with the statements it attributed to her, and it omitted mention of the fact that at one time Lupone told the police that Golino never made the quoted statements. The affidavit also stated that an informant, Neil Russo, told police that Golino had dated Serra. The district court noted the probable falsity of this statement in light of Russo's deposition testimony in the present case that he had never made this statement to the police and that when they interviewed him, he would "say one thing and they put down another thing."

                §   1983 claim for malicious prosecution, a plaintiff must show, inter alia, that the prosecution was without probable cause.   See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984) (state law defines elements of a malicious prosecution claim asserted under § 1983, see 42 U.S.C. § 1988 (1988));  McGann v. Allen, 105 Conn. 177, 185, 134 A. 810, 813 (1926) (absence of probable cause is one element of malicious prosecution claim under Connecticut law).   As to appellants' defense of issue preclusion, the court found that the authorities cited for the proposition that a state-court probable cause hearing generally has collateral estoppel effect did not establish that proposition.   In addition, noting that it was undisputed that Golino had not been permitted to present evidence at the 1984 state hearing, the court concluded that he had not been given an adequate opportunity at that hearing to contest probable cause.   Thus, the court concluded that litigation here of the issue of probable cause was not foreclosed by principles of collateral estoppel
                

The court also noted that a number of other evidently pertinent facts had been omitted from the arrest warrant affidavit. For example, the affidavit described the killer only as "a white male wearing a light colored shirt and dark trousers, carrying a shiney [sic ] object in his hand," notwithstanding the fact that several eyewitnesses had given descriptions in considerably greater detail. Thus, one eyewitness described the killer as "approximately 5'8"' tall, 150 to 160 pounds [with a] slim build"; another stated that he had a "thin face" and "skinny arms"; a third eyewitness also described the killer as having a "thin face." The significance of these omissions was that Golino, at the time of Serra's death, weighed approximately 215 pounds. All three of these eyewitnesses also stated that the killer had no mustache. Golino, at the time, had a mustache. A fourth eyewitness had described the killer as having a mustache; but that eyewitness had, within hours of the murder, affirmatively identified another person, from both a photo array and a lineup, as the killer, and the person identified was Serra's boyfriend. Further, the affidavit did not mention that the killer's blood type was known but that the police had not bothered to seek a court order for a test to determine Golino's blood type. It also failed to mention that fingerprints on Serra's car that the police strongly believed to belong to her killer did not match the fingerprints of Golino. DiLullo testified at his deposition in the present case that it was his general practice to omit exculpatory information from affidavits submitted in support of applications for warrants.

The district court concluded that it could not rule as a matter of law that it was " 'objectively reasonable for [appellants] to believe that they were acting in a fashion that did not violate [Golino's] established federally protected right[s].' " 761 F.Supp. at 971-72 (quoting Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir.1991)). Accordingly, an order was entered denying so much of appellants' motion as sought dismissal of the malicious prosecution claims. This appeal followed.

II. DISCUSSION

On appeal, appellants pursue their contentions that they were entitled to summary judgment dismissing the malicious prosecution claims on grounds of collateral estoppel and qualified immunity. For the reasons below, we conclude that the district court properly denied appellants' motion. We note first, however, a question as to appellate jurisdiction.

A. Appellate Jurisdiction

The denial of summary judgment is ordinarily not an appealable "final decision" within the meaning of 28 U.S.C. § 1291 (1988). A district court's denial of a summary judgment motion that is based upon a substantial claim of qualified immunity, however, is immediately appealable where the district court has rejected the defense as a matter of law. See, e.g., Mitchell v....

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