Kee v. City of N.Y.

• Decision Date: 30 August 2021
• Docket Number: August Term 2020,No. 20-2201-cv,20-2201-cv
• Citation: 12 F.4th 150
• Parties: Tito KEE, Plaintiff-Appellant, v. The CITY OF NEW YORK, Detective Rudy Anzalone, Lieutenant John Ryan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

12 F.4th 150

Tito KEE, Plaintiff-Appellant,

v.The CITY OF NEW YORK, Detective Rudy Anzalone, Lieutenant John Ryan, Defendants-Appellees.^*

No. 20-2201-cv

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: April 30, 2021

Decided: August 30, 2021

Michael Lumer, Lumer Law Group, New York, NY, for Plaintiff-Appellant.

Julie Steiner (Richard Dearing, Ingrid R. Gustafson, on the brief) for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before: Lohier, Bianco, Circuit Judges, Abrams, District Judge.^**

Joseph F. Bianco, Circuit Judge:

On New Year's Eve 2015, Plaintiff-Appellant Tito Kee was arrested in Staten Island for alleged violations of state drug laws by New York City Police Department ("NYPD") Detective Rudy Anzalone and NYPD Lieutenant John Ryan (together, "individual defendants"). More than seven months later, Kee moved to dismiss the charges on speedy trial grounds, and state prosecutors did not oppose. Kee then brought this action, asserting federal civil rights and state law tort claims against the individual defendants and the City of New York ("City").

Kee's claims center around Detective Anzalone's contention that he saw Kee and another individual in a car smoking marijuana as the car was being driven on local streets. According to Detective Anzalone, a few minutes after he had observed Kee smoking in the car, he saw Kee standing on the sidewalk next to the same car and, upon searching the vehicle, observed heroin, cocaine, and a lit and burning marijuana cigarette inside the car. Based upon these reported observations, Kee was arrested and charged with possession of the narcotics and marijuana found in the car. Kee, however, denies that he was ever in that car at any point during the entire day, and that he was ever smoking marijuana in or near the car. Kee further claims that Detective Anzalone lied by stating that he found Kee's cell phone in the car, when the phone was recovered during a search of his person. Kee asserts that this evidence that was fabricated by Detective Anzalone (and approved by Lieutenant Ryan) was the basis for his arrest and prosecution on narcotics and marijuana charges.

By judgment dated June 11, 2020, the United States District Court for the Eastern District of New York (Matsumoto, J. ), inter alia , dismissed Kee's claims under 42 U.S.C. § 1983 (" Section 1983") for false arrest, malicious prosecution, and denial of a right to a fair trial against the individual defendants, as well as Kee's state law malicious prosecution claims against the City, Detective Anzalone, and Lieutenant Ryan (collectively, "defendants").

We conclude that the district court properly granted summary judgment on Kee's Section 1983 false arrest claim because, regardless of the drug-related charges, probable cause existed for his arrest on the charge of loitering for the purpose of gambling. With respect to the federal malicious prosecution claim, we hold that the district court erred in concluding that the dismissal of Kee's underlying narcotics charges on speedy trial grounds could not satisfy the "favorable termination" element for that claim. We also find that the record evidence raises disputed issues of material fact that preclude summary judgment on the issue of probable cause for the federal and state malicious prosecution claims, and that the district court's dismissal of these claims on summary judgment against the City and Detective Anzalone was unwarranted. Similarly, we conclude that there was sufficient evidence to overcome summary judgment on the fair trial claim based upon allegedly fabricated evidence conveyed to the prosecutors.¹

Accordingly, we VACATE the district court's dismissal of Kee's malicious prosecution claims against Detective Anzalone and the City and his fair trial claim against the individual defendants, we AFFIRM the district court's grant of summary judgment in all other respects, and we REMAND the case to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background

This civil rights action arises from Tito Kee's arrest in Staten Island, New York, on New Year's Eve 2015. The following facts are drawn from the record on appeal and are construed in the light most favorable to Kee, as the non-moving party. See Lucente v. County of Suffolk , 980 F.3d 284, 296 (2d Cir. 2020). We note, however, that the parties offer divergent versions of what transpired in connection with Kee's arrest, as outlined in their deposition testimony and other evidence in the record; because some of these differences bear on our legal analysis, we discuss the differing accounts of the facts when necessary.

On December 31, 2015, sometime after 7:00 p.m., NYPD Detective Anzalone and NYPD Lieutenant Ryan were on an anti-crime assignment in an unmarked vehicle in Staten Island, New York, with Anzalone driving and Ryan seated in the passenger seat.²

According to defendants, while driving the unmarked police vehicle on Henderson Avenue with the windows down, Detective Anzalone saw what he believed to be marijuana smoke emanating from a four-door sedan traveling in the opposite direction. Detective Anzalone also smelled marijuana smoke coming from the sedan and believed he saw one of the occupants of the sedan smoking a marijuana cigarette; he relayed these observations to Lieutenant Ryan. When Detective Anzalone was less than a car length from the approaching sedan, he identified the occupants as two males. And when Detective Anzalone passed the sedan, he identified Kee sitting in the passenger seat. Detective Anzalone was able to recognize Kee because he had previously arrested him on two other occasions. Upon passing the sedan, Detective Anzalone continued to drive for a few moments and then made a U-turn and attempted to follow the car. At some point during this process, Detective Anzalone and Lieutenant Ryan lost sight of the sedan, but only for "[a] few seconds," and they soon after discovered the sedan parked in front of 705 Henderson Avenue, which is a liquor store. Joint App'x at 239. Neither Detective Anzalone nor Lieutenant Ryan observed the sedan parking in that location. Detective Anzalone pulled up and parked next to the unoccupied sedan. When Detective Anzalone and Lieutenant Ryan found the sedan, Kee was standing next to the car on the sidewalk.³

Although Kee admits that he was standing in front of 705 Henderson Avenue, he vigorously denies that he was ever in that sedan earlier that day. Instead, according to Kee, he was at the residence of his girlfriend's mother from approximately 12:00 p.m. until later in the evening, when he left that residence to meet a friend who lived nearby. He then walked to the liquor store located at 705 Henderson Avenue and saw his friend "Larry" as he arrived. The two began "rolling dice" for money on the sidewalk outside of the store. Joint App'x at 149. After Kee and Larry had been rolling dice for about two minutes, Detective Anzalone and Lieutenant Ryan arrived in their vehicle.

The parties agree that, when Detective Anzalone walked up to Kee and searched his person, Anzalone recovered over $2,000 in U.S. currency but found no contraband. Larry, Kee's friend, was also searched, and was later released from the scene without being arrested.

Raymond Tavares, the owner of the sedan, testified that he came outside from a residence he was visiting at 704 Henderson Avenue and found police surrounding and inside his car, the doors to which had been unlocked.⁴ At this point, Tavares identified himself as the owner of the sedan to the police. Detective Anzalone then searched the sedan. According to Detective Anzalone, during the search, he observed and recovered ten decks of heroin and twelve zips of cocaine in the center console, as well as one lit and burning marijuana cigarette from the ashtray in the center console, all of which were subsequently vouchered.⁵

Upon the discovery of the drugs in Tavares's car, Detective Anzalone approached Kee and advised him that they had found drugs in the car and, according to Kee, Anzalone said, "[Y]ou're finished." Joint App'x at 156. Kee testified that he responded, "You seen what I was out here doing. I was rolling dice. If you're going to lock me up for anything, you should lock me up for what I'm doing, not what I'm not doing." Joint App'x at 156–57.

The police arrested Kee and Tavares and charged them both with various drug-related offenses. Defendants also contend that Detective Anzalone observed and recovered Kee's cell phone from the passenger side of Tavares's sedan.⁶ Kee denies that his cell phone was recovered from Tavares's sedan, and testified that the police took the phone from his pocket. Moreover, Kee denies leaving anything in, or ever being in, Tavares's sedan on December 31, 2015. Kee alleges that the first time he saw Tavares on December 31, 2015, was when Tavares appeared and identified himself as the owner of the sedan to the police.

Tavares, for his part, testified in his deposition that (1) he had parked his sedan in front of 705 Henderson Avenue at least one to two hours prior to the arrest, (2) nobody else was with him and nobody had used his sedan that day, (3) he had not been smoking marijuana in the car, and (4) the drugs found in the car did not belong to him.

After his arrest, Kee was transported to the 120th Precinct, and Detective Anzalone drafted arrest paperwork, which he then forwarded to the Richmond County District Attorney's office ("RCDA").⁷ The arrest reports indicated that Kee and Tavares "were observed smoking a lit marijuana cigarette in vehicle." Joint App'x at 66, 69. The RCDA data analysis sheet indicated that the officers (including Detective Anzalone) observed Kee and Tavares inside the sedan "windows down" and "marijuana smoke coming from open windows." Joint App'x at 121. The sheet also noted that one cell phone was found on Tavares, and two additional cell...