05-3341-cv
W ray v. City of New York
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2005
6
7 (Argued: February 7, 2006 Decided: June 18, 2007)
8
9 Docket No. 05-3341-cv
10
11 - - - - - - - - - - - - - - - - - - - -x
12 RAYMOND WRAY,
13
14 Plaintiff-Appellee,
15
16 - v.-
17
18 CITY OF NEW YORK, DANIEL MARTORANO,
19 WILLIAM WELLER, JAMES MCCAVERA and
20 NEW YORK CITY POLICE DEPARTMENT,
21
22 Defendants-Appellants.
23
24 - - - - - - - - - - - - - - - - - - - -x
25
26 Before: JACOBS, Chief Judge, POOLER, and GIBSON,
27 Circuit Judges.*
28
29 Interlocutory appeal from an order of the United States
30 District Court for the Eastern District of New York
31 (Weinstein, J.) denying motions for summary judgment by
32 defendants-appellants City of New York and New York City
33 Police Officer William Weller.
*
The Honorable John R. Gibson, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
1
1 Vacated and Remanded.
2
3 ALAN BECKOFF, Assistant
4 Corporation Counsel (Michael A.
5 Cardozo, Corporation Counsel of
6 the City of New York, on the
7 brief; Stephen J. McGrath, Liora
8 Jacobi, of counsel), New York,
9 New York, for Defendants-
10 Appellants.
11
12 DAWN M. CARDI (Robert Rosenthal,
13 on the brief), New York, New
14 York, for Plaintiff-Appellee.
15 DENNIS JACOBS, Chief Judge:
16 Having prevailed in federal habeas proceedings and
17 avoided retrial on the charge of armed robbery, Raymond Wray
18 brought suit under 42 U.S.C. § 1983 against various parties
19 he deemed responsible for the constitutional violation that
20 led to his conviction. The United States District Court for
21 the Eastern District of New York (Weinstein, J.) granted the
22 defendants summary judgment on all claims but two. In
23 denying summary judgment on those two claims--Wray’s claims
24 against Officer William Weller of the New York City Police
25 Department and the City of New York--the district court
26 recited that immediate appellate review of that ruling is
27 desirable because they involve controlling questions of law
28 as to which there is substantial ground for difference of
2
1 opinion. Pursuant to 28 U.S.C. § 1292(b), we accepted
2 defendants’ interlocutory appeal.
3 This interlocutory appeal raises two controlling issues
4 of law: where the admission of testimony at trial regarding
5 a witness identification violated a defendant’s right to due
6 process and a fair trial, whether the defendant [i] can
7 establish a § 1983 claim against the officer who conducted
8 the identification procedure; and [ii] can establish a §
9 1983 “failure to train and supervise” claim against the
10 police department. We answer both questions in the
11 negative. The district court’s denial of summary judgment
12 is therefore reversed and we remand to the district court
13 with instructions to enter judgment for defendants on Wray’s
14 remaining two claims.
15
16 BACKGROUND
17 A detailed background of Wray’s arrest, prosecution,
18 and conviction is found in our opinion reversing the denial
19 of Wray’s habeas petition. See Wray v. Johnson, 202 F.3d
20 515, 517-24 (2d Cir. 2000). We summarize only the facts
21 that bear on the issues presented on this appeal, construing
22 the evidence in the light most favorable to Wray, as the
3
1 non-moving party. Huminski v. Corsones, 396 F.3d 53, 69 (2d
2 Cir. 2005).
3 Three New York City police officers were conducting a
4 stakeout observation from the roof of a Queens restaurant in
5 November 1990, when they saw a man wearing a long black coat
6 and a hat who was pointing a gun at another man and took his
7 jacket. The victim and the robber were each accompanied by
8 another man.
9 Officers William Weller and James McCavera left the
10 rooftop and apprehended on the street the person who was
11 with the robber (Dennis Bailey). Having learned that the
12 man in the coat and hat had gone inside the restaurant,
13 Officers Weller and McCavera went in, found the stolen
14 jacket, and arrested Raymond Wray, who was wearing a long
15 black coat and a hat.
16 The victim of the robbery, Melvin Mitchell, and Craig
17 Williams (who accompanied him) were no longer at the scene;
18 but Mitchell was told shortly thereafter by another officer
19 that the robbers had been apprehended and that he should go
20 to the police station. Within hours of the arrests,
21 Mitchell and Williams went to the station. According to the
22 police, each was taken to look at Wray, who was in a holding
4
1 cell, and each independently confirmed that Wray was the
2 gunman. Williams later testified that he believed the name
3 of the officer who conducted the showup identification
4 “starts with a W. Wellie”--which could reasonably be found
5 to be Officer Weller.
6 Wray was indicted on multiple counts of first-degree
7 robbery and weapons possession. Bailey pled guilty to one
8 count of criminal possession of a weapon, but went to trial
9 on the robbery and other weapons charges. At the start of
10 his trial in New York Supreme Court, Queens County, in April
11 1992, the trial court held a Wade hearing on Wray’s motion
12 to suppress the stationhouse showup identifications.
13 Mitchell, Williams, and Officer Daniel Martorano (the third
14 officer at the scene) testified as to the identification
15 procedure. After the hearing, the trial court granted
16 Wray’s motion to suppress Mitchell’s stationhouse
17 identification, but ruled that Williams could testify as to
18 his identification of Wray at the stationhouse.
19 Williams so testified, and the jury convicted Wray of
20 two counts of first-degree robbery, one count of second-
21 degree criminal possession of a weapon, and one count of
22 third-degree criminal possession of a weapon.
5
1 On appeal, the Appellate Division, Second Department,
2 ruled that the trial court had erred in admitting testimony
3 regarding Williams’s stationhouse showup identification,
4 because it was the product of unduly suggestive police
5 procedures; but the Appellate Division nonetheless confirmed
6 the conviction on the ground that the error was harmless.
7 People v. Wray, 640 N.Y.S.2d 122 (App. Div. 1996). Leave to
8 appeal to the New York Court of Appeals was denied. People
9 v. Wray, 88 N.Y.2d 1025 (1996).
10 Wray petitioned for a federal writ of habeas corpus in
11 the Eastern District of New York, arguing that the admission
12 of testimony regarding Williams’s showup identification
13 violated his constitutional rights to due process and a fair
14 trial. The district court denied the petition on the ground
15 of harmless error. Wray v. Johnson, No. 96 CV 5139, 1998
16 U.S. Dist. LEXIS 10625 (E.D.N.Y. June 18, 1998). On
17 February 2, 2000, this Court concluded that the error was
18 not harmless and reversed, granting the petition
19 conditionally unless Wray was retried Wray within 90 days.
20 Wray v. Johnson, 202 F.3d 515 (2d Cir. 2000). The Queens
21 District Attorney’s Office declined to retry Wray, and he
22 was released after eight years in prison.
6
1 On July 20, 2001, Wray filed this § 1983 action in the
2 Eastern District of New York. His second amended complaint
3 was filed on August 8, 2003 naming as defendants Officers
4 Weller, Martorano, and McCavera, the New York City Police
5 Department, and the City of New York. The complaint alleges
6 violations of the United States Constitution and state law,
7 including denial of due process, false arrest, malicious
8 prosecution, and failure to train and supervise police
9 officers.
10 On April 14, 2004, defendants moved for summary
11 judgment pursuant to Fed. R. Civ. P. 56, arguing probable
12 cause, qualified immunity, and failure to state a claim. By
13 opinion and order dated October 18, 2004, the district court
14 granted summary judgment to defendants on all but two of
15 Wray’s claims, but noted the desirability of an
16 interlocutory appeal of its decisions with respect to the
17 two remaining claims against: [i] Officer Weller for
18 performing an unduly suggestive showup, and [ii] the City of
19 New York for failing to adequately train and supervise its
20 police officers on proper identification procedures. Wray
21 v. City of New York, 340 F. Supp. 2d 291 (E.D.N.Y. 2004).
22 Both parties sought interlocutory review of the
7
1 district court’s opinion and order. On June 30, 2005, this
2 Court denied Wray’s motion but granted defendants’.
3
4 DISCUSSION
5 We review de novo the district court’s denial of
6 summary judgment. Maxwell v. City of New York, 102 F.3d
7 664, 667 (2d Cir. 1996). In doing so, we construe the
8 evidence in the light most favorable to the non-moving party
9 and draw all reasonable inferences in its favor. Maguire v.
10 Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.
11 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
12 255 (1986)). Summary judgment is appropriate only where
13 “there is no genuine issue as to any material fact and . . .
14 the moving party is entitled to a judgment as a matter of
15 law.” Fed. R. Civ. P. 56(c).
16
17 A. The Suggestive Showup Identification
18 Wray alleges that Officer Weller violated his
19 constitutional due process and fair trial rights by
20 conducting the unduly suggestive showup identification, and
21 seeks damages under § 1983 for his conviction and
22 incarceration. Officer Weller argues that he cannot be held
8
1 liable for Wray’s conviction or incarceration because, even
2 assuming (as we must on summary judgment) that Officer
3 Weller conducted the suggestive showup identification,
4 superseding acts by both the prosecutor and trial judge
5 broke the chain of causation between Weller’s conduct and
6 the violation of Wray’s constitutional rights.
7 As we explained when we conditionally granted Wray’s
8 habeas petition, we have not held that a suggestive
9 identification alone is a constitutional violation; rather,
10 the constitutional violation is that Wray’s right to a fair
11 trial was impaired by the admission of testimony regarding
12 the unreliable identification:
13 In the context of an identification following a
14 police procedure that was impermissibly
15 suggestive, the due process focus is principally
16 on the fairness of the trial, rather than on the
17 conduct of the police, for a suggestive procedure
18 “does not itself intrude upon a constitutionally
19 protected interest.”
20
21 Wray, 202 F.3d at 524 (quoting Manson v. Brathwaite, 432
22 U.S. 98, 113, n.13 (1977)) (emphasis added); see also Wray,
23 340 F. Supp. 2d at 302 (explaining that there is no
24 constitutional right not to be subjected to an
25 unconstitutionally suggestive identification). “Suggestive
26 procedures are disapproved ‘because they increase the
9
1 likelihood of misidentification,’ and it is the admission of
2 testimony carrying such a ‘likelihood of misidentification
3 which violates a defendant’s right to due process.’” Wray,
4 202 F.3d at 524 (quoting Neil v. Biggers, 409 U.S. 188, 198
5 (1972)).
6 The question is whether Wray can establish a claim
7 against Officer Weller for the erroneous admission at trial
8 of testimony regarding the unduly suggestive identification.
9 We agree with the defendants that extending liability to
10 Officer Weller is unprecedented and unwarranted. In the
11 absence of evidence that Officer Weller misled or pressured
12 the prosecution or trial judge, we cannot conclude that his
13 conduct caused the violation of Wray’s constitutional
14 rights; rather, the violation was caused by the ill-
15 considered acts and decisions of the prosecutor and trial
16 judge.
17
18 * * *
19 Our analysis of constitutional torts--like any other
20 tort--is guided by common-law principles of tort. See,
21 e.g., Malley v. Briggs, 475 U.S. 335, 345 (1986) (“As we
22 stated in Monroe v. Pape, 365 U.S. 167, 187 (1961),
10
1 [overruled on other grounds by Adarand Constructors v. Pena,
2 515 U.S. 200, 233 (1995),] § 1983 ‘should be read against
3 the background of tort liability that makes a man
4 responsible for the natural consequences of his actions.’
5 Since the common law recognized the causal link between the
6 submission of a complaint and an ensuing arrest, we read §
7 1983 as recognizing the same causal link.”); Lombard v.
8 Booz-Allen & Hamilton, Inc., 280 F.3d 209, 216 (2d Cir.
9 2002) (quoting Palka v. Servicemaster Mgmt. Servs. Corp., 83
10 N.Y.2d 579 (1994)); Zahrey v. Coffey, 221 F.3d 342, 351 (2d
11 Cir. 2000) (collecting cases); Townes v. City of New York,
12 176 F.3d 138, 147 (2d Cir. 1999) (same).
13 Our conclusion follows from our previous holding in
14 Townes, a § 1983 case brought by a plaintiff whose
15 conviction was reversed on the ground that the trial court
16 had erroneously denied a motion to suppress illegally-seized
17 evidence. The plaintiff sued the officers who conducted the
18 illegal search, seeking damages for his conviction and
19 incarceration. We ruled that the officers’ conduct violated
20 the plaintiff’s right to privacy, but that damages for this
21 violation had not been sought and were likely nominal. We
22 declined, however, to allow recovery against the officers
11
1 for the conviction and incarceration, holding that the trial
2 judge’s decision to admit the evidence constituted a
3 superseding cause. Townes, 176 F.3d at 147.
4 The causation alleged by Wray is even more tenuous than
5 the causation alleged in Townes. In Townes, the officers
6 conducted an illegal search that both [i] was in itself a
7 violation of plaintiff’s constitutional rights, and [ii]
8 contributed to the events that led to plaintiff’s conviction
9 and incarceration; of these, only the former was deemed a
10 possible claim, albeit for nominal damages (and attorney’s
11 fees). In Wray’s case, the alleged conduct of Officer
12 Weller was not in itself illegal or unconstitutional. The
13 constitutional harm occurred when the showup was
14 impermissibly used to compromise the fairness of Wray’s
15 trial--at behest of the prosecutor, by order of the trial
16 court, and beyond Officer Weller’s control.
17 Townes involved a Fourth Amendment claim, but there is
18 no reason to read Townes as so limited. The holding in
19 Townes rests on the broad principles that [i] “the goal of
20 the Court’s § 1983 jurisprudence has been to tailor
21 liability to fit the interests protected by the particular
22 constitutional right in question,” and [ii] “§ 1983 damages
12
1 should be made available only for risks that are
2 constitutionally relevant.” Townes, 176 F.3d at 148
3 (internal quotation marks omitted). See also Zahrey, 221
4 F.3d at 350-51 (stating that a § 1983 court is concerned
5 with the “legally cognizable result” of misconduct). Wray
6 advocates a distinction between Fourth Amendment violations
7 (which result in a violation of privacy) and the admission
8 of testimony regarding an impermissibly suggestive
9 identification (which may result in unreliable convictions).
10 But that distinction bears only on damages, and particular
11 consequences of a violation (if there is one). Since
12 Officer Weller’s conduct was not itself a constitutional
13 violation, there is a “gross disconnect” between the conduct
14 and the injury for which Wray seeks to recover. Townes, 176
15 F.3d at 148.
16 Wray also relies on Zahrey, a § 1983 case against an
17 Assistant United States Attorney (“AUSA”) who allegedly
18 conspired to fabricate evidence and then used the fabricated
19 evidence to prosecute Zahrey, who was indicted by a grand
20 jury but later acquitted. The district court dismissed the
21 claim. In reversing, we held that Zahrey adequately pled a
22 deprivation of liberty. Although an AUSA enjoys absolute
13
1 immunity in introducing evidence before the grand jury
2 (regardless of its veracity), the evidence in Zahrey was
3 fabricated in the course of an investigation, as to which
4 that AUSA’s immunity was merely qualified. The absolutely
5 privileged act did not break the chain of causation because,
6 under our line of cases extending liability where the
7 wrongdoer misled or coerced the intervening decision-maker,
8 the AUSA would have been liable even if the fabricated
9 evidence had been adduced by another prosecutor. Zahrey,
10 221 F.3d at 353 & n.10 (“It would be a perverse doctrine of
11 tort and constitutional law that would hold liable the
12 fabricator of evidence who hands it to an unsuspecting
13 prosecutor but exonerate[s] the wrongdoer who enlists
14 himself in a scheme to deprive a person of liberty.”).
15 Wray’s claim against Officer Weller is readily
16 distinguishable from Zahrey on two sufficient grounds: [i]
17 Officer Weller’s conduct, which later formed the basis of
18 the constitutional deprivation, was not in itself a
19 violation of Wray’s constitutional rights; and [ii] the
20 constitutional deprivation was caused by an intervening
21 actor, not by Officer Weller. See id. at 353-54
22 (emphasizing that “the same person” committed the initial
14
1 wrong and then used the tainted evidence at trial). Weller
2 testified at Wray’s trial, but there is no allegation that
3 Wray misled the persons whose acts effected the
4 constitutional violation.
5 Wray seizes on language in Zahrey that notes tension in
6 § 1983 jurisprudence between cases, such as our discussion
7 in Townes, in which the chain of causation was broken by the
8 intervening exercise of independent judgment, and cases in
9 which defendants were liable for consequences caused by
10 reasonably foreseeable intervening forces. The latter cases
11 typically involve situations in which the defendant misled
12 or coerced the intervening decision-maker such that the
13 decision-maker’s conduct was tainted; but the Zahrey opinion
14 wondered aloud why such misconduct would be necessary under
15 the doctrine of reasonable foreseeability:
16 Even if the intervening decision-maker (such as a
17 prosecutor, grand jury, or judge) is not misled or
18 coerced, it is not readily apparent why the chain
19 of causation should be considered broken where the
20 initial wrongdoer can reasonably foresee that his
21 misconduct will contribute to an “independent”
22 decision that results in a deprivation of liberty.
23
24 Zahrey, 221 F.3d at 352. The court declined to decide that
25 issue because Zahrey involved “the unusual circumstance that
26 the same person took both the initial act of alleged
15
1 misconduct and the subsequent intervening act,” so that the
2 case could be decided “[h]owever the causation issue is to
3 be resolved in the law enforcement context in cases where an
4 initial act of misconduct is followed by the act of a third
5 person.” Id. The causation analysis in that case therefore
6 did not reach or decide the causation issues raised by Wray
7 here.
8 In Zahrey, we posed the question why an “initial
9 wrongdoer” may escape the reasonably foreseeable
10 consequences of his actions. It is always possible that a
11 judge who is not misled or deceived will err; but such an
12 error is not reasonably foreseeable, or (to use the phrase
13 employed in Zahrey, 221 F.3d at 350-51) it is not the
14 “legally cognizable result” of an investigative abuse.
15 Moreover, in the absence of evidence that Officer Weller
16 misled or pressured the prosecution or trial judge, he was
17 not an “initial wrongdoer.” Id. at 352. And if his conduct
18 amounted to a wrong under state common law or statutory law,
19 it would still not constitute a violation of a federal
20 constitutional right enforceable under § 1983. We therefore
21 conclude that Officer Weller cannot be held liable under §
22 1983 for Wray’s conviction and incarceration.
16
1 B. Failure to Train and Supervise
2 “[T]o hold a city liable under § 1983 for the
3 unconstitutional actions of its employees, a plaintiff is
4 required to plead and prove three elements: (1) an official
5 policy or custom that (2) causes the plaintiff to be
6 subjected to (3) a denial of a constitutional right.”
7 Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). The
8 failure to train or supervise city employees may constitute
9 an official policy or custom if the failure amounts to
10 “deliberate indifference” to the rights of those with whom
11 the city employees interact. City of Canton v. Harris, 489
12 U.S. 378, 388 (1989). To establish “deliberate
13 indifference,” a plaintiff must show that: [i] a policymaker
14 knows “to a moral certainty” that city employees will
15 confront a particular situation; [ii] the situation either
16 presents the employee with “a difficult choice of the sort
17 that training or supervision will make less difficult” or
18 “there is a history of employees mishandling the situation;”
19 and [3] “the wrong choice by the city employee will
20 frequently cause the deprivation of a citizen’s
21 constitutional rights.” Walker v. City of New York, 974
22 F.2d 293, 297-98 (2d Cir. 1992). “[A] policymaker does not
17
1 exhibit deliberate indifference by failing to train
2 employees for rare or unforeseen events.” Id. at 297.
3 Moreover, where (as here), a city has a training program, a
4 plaintiff must--in addition--“identify a specific deficiency
5 in the city’s training program and establish that that
6 deficiency is ‘closely related to the ultimate injury,’ such
7 that it ‘actually caused’ the constitutional deprivation.”
8 Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d
9 Cir. 2004) (quoting City of Canton, 489 U.S. at 391).
10 In light of our conclusion that there was a break in
11 the chain between Officer Weller’s alleged conduct and the
12 denial of Wray’s constitutional rights, Wray’s claim
13 regarding the City’s failure to train or supervise its
14 police officers likewise fails for lack of causation.
15 Officer Weller’s conduct was not itself the cause of the
16 constitutional deprivation; the City’s alleged failure to
17 train him adequately--a step even further removed--cannot,
18 therefore, be the “actual cause” of the constitutional
19 deprivation.
20 Moreover, Wray has failed to adduce evidence that any
21 failure to train reflected “deliberate indifference” to the
22 rights of others. “Deliberate indifference” involves the
18
1 conscious disregard of the risk that poorly-trained
2 employees will cause deprivations of clearly established
3 constitutional rights. Amnesty Am., 361 F.3d at 127 n.8.
4 The record evidence establishes that, since 1988, the New
5 York City Police Department has engaged in extensive
6 training on how to conduct identifications. Although Wray
7 posits defects in the Department’s testing procedures, Wray
8 has put forth no evidence that these defects are the result
9 of deliberate indifference. See City of Canton, 489 U.S. at
10 391 (“Neither will it suffice to prove that an injury or
11 accident could have been avoided if an officer had had
12 better or more training, sufficient to equip him to avoid
13 the particular injury-causing conduct.”). Wray submitted a
14 list of New York cases in which suggestive show-up
15 identification evidence was impermissibly admitted by
16 courts; but only one post-dates 1992--a telling datum when
17 one considers the thousands of identifications conducted by
18 each New York City Police Department precinct each year.
19 The police training thus appears to be largely successful.
20
21 Conclusion
22 For the foregoing reasons, we VACATE the judgment of
19
1 the district court and REMAND the case to the district court
2 with instructions to enter judgment as a matter of law in
3 favor of defendants on the remaining claims.
20