Kee v. City of New York

20-2201
Kee v. City of New York

United States Court of Appeals
for the Second Circuit
_____________________________________

August Term 2020

(Argued: April 30, 2021 Decided: August 30, 2021)

No. 20-2201-cv

_____________________________________

TITO KEE,

Plaintiff-Appellant,

— v. —

THE CITY OF NEW YORK, DETECTIVE RUDY ANZALONE, LIEUTENANT JOHN RYAN,

Defendants-Appellees. *
_____________________________________

Before: LOHIER, BIANCO, Circuit Judges, ABRAMS, District Judge. ∗∗

On New Year’s Eve 2015, New York City police officers arrested Plaintiff-
Appellant Tito Kee for alleged violations of state drug laws. More than seven
months later, state prosecutors did not oppose Kee’s motion to dismiss the charges
on speedy trial grounds. Kee appeals from a judgment of the United States District
Court for the Eastern District of New York (Matsumoto, J.), challenging the

* The Clerk of Court is respectfully instructed to amend the caption as set forth above.

∗∗
Judge Ronnie Abrams, of the United States District Court for the Southern District of
New York, sitting by designation.
dismissal of his claims under 42 U.S.C. § 1983 for false arrest, malicious
prosecution, and denial of a right to a fair trial against defendants New York City
Police Department Detective Rudy Anzalone and Lieutenant John Ryan, as well
as his state law malicious prosecution claims against the City of New York,
Detective Anzalone, and Lieutenant Ryan.

We conclude that the district court properly granted summary judgment on
Kee’s false arrest claim because 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.

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 Detective Anzalone and Lieutenant Ryan, 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.

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.

2
 _____________________________________

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

3
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

4
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.

1 Although the district court denied defendants’ motion for summary judgment on Kee’s
Section 1983 excessive force claim against Detective Anzalone, Kee voluntarily dismissed
that claim with prejudice in order to pursue this appeal. Additionally, the district court
granted defendants’ motion for summary judgment on Kee’s Section 1983 failure to
intervene claim against Lieutenant Ryan, but Kee does not challenge that ruling on
appeal. Furthermore, as discussed infra, Kee has abandoned any challenge to the
dismissal of his malicious prosecution claims against Lieutenant Ryan by failing to brief
on appeal whether the district court erred in concluding that Kee did not establish the
initiation element as to Ryan.
5
 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

2 Another NYPD officer, a non-party to this action, was in the vehicle on duty with
Detective Anzalone and Lieutenant Ryan.
6
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

3 Detective Anzalone testified that Kee was “[r]ight outside” or “2 feet” from the sedan,
Joint App’x at 240–41, but Kee testified that he was at least a car’s length away from the
sedan when the police arrived at the liquor store.
7
 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

4 Detective Anzalone testified that Tavares was in an alleyway across the street, not a
residence.

8
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

5 Detective Anzalone testified that he did not ask for consent to search the sedan, but
rather believed that he could search the sedan because he “observed them committing a
crime in the vehicle”—namely, smoking marijuana. Joint App’x at 245–46.

6 Detective Anzalone testified that, because Kee did not want to leave his phone behind
in Tavares’s car, he (Kee) told Anzalone that the phone was in the sedan. Additionally,
Lieutenant Ryan testified that he overheard Kee tell a passerby to get his phone from the
car.
9
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

7 Detective Anzalone also appeared to acknowledge at this deposition that he orally
conveyed at least some of his observations to the RCDA. See, e.g., Joint App’x at 260
(Detective Anzalone testifying that he informed the RCDA of a particular observation
regarding Kee but “didn’t type it” in his reports).

10
(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 phones were recovered from the car. 8

On January 1, 2016, the RCDA drafted a criminal complaint based on

Detective Anzalone’s statements—and Anzalone signed the complaint—charging

Kee with two counts of Criminal Possession of a Controlled Substance in the Third

Degree, in violation of New York Penal Law § 220.16(1) (class B felony); two counts

of Criminal Possession of a Controlled Substance in the Seventh Degree, in

violation of New York Penal Law § 220.03 (class A misdemeanor); and one count

of Criminal Possession of Marijuana in the Fifth Degree, in violation of New York

Penal Law § 221.10(1) (class B misdemeanor). Kee was arraigned on January 2,

2016; he was unable to post bail. He was then transported to Rikers Island, where

he remained in custody until his release on January 7, 2016. During a court

appearance on July 13, 2016, Kee moved to dismiss the case on speedy trial

grounds. See N.Y. Crim. P. Law § 30.30. The state did not oppose the motion, and

Kee’s criminal case was dismissed.

8 Evidence vouchers suggested that two of the three cell phones belonged to Kee.
11
 B. Procedural History

Following the dismissal of their criminal charges, Kee and Tavares

commenced this civil rights action on September 6, 2017, asserting causes of action

against defendants under Section 1983 and state law for, inter alia, false arrest,

malicious prosecution, and denial of a right to a fair trial. On January 31, 2019,

defendants moved for summary judgment on all of plaintiffs’ claims. On April 6,

2020, the district court issued a Memorandum and Order granting defendants’

motion for summary judgment and dismissing all of Kee’s claims relevant to this

appeal. 9 Kee timely appealed.

II. DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment de novo. Jaffer v.

Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In doing so, “we must construe the facts in

the light most favorable to the non-moving party and must resolve all ambiguities

and draw all reasonable inferences against the movant.” Lucente, 980 F.3d at 296

(internal quotation marks omitted). Summary judgment is appropriate only when

9 As noted supra, even though the district court denied defendants’ motion for summary
judgment on Kee’s Section 1983 claim against Detective Anzalone for excessive force, Kee
voluntarily dismissed that claim with prejudice to pursue this appeal. All of Tavares’s
claims were dismissed by the district court, and he did not appeal.
12
“the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists “where the evidence is such that a reasonable jury

could decide in the non-movant’s favor.” Beyer v. County of Nassau, 524 F.3d 160,

163 (2d Cir. 2008). Thus, “[s]ummary judgment dismissing a claim is

inappropriate when the admissible materials in the record make it arguable that

the claim has merit.” Lucente, 980 F.3d at 296 (internal quotation marks omitted).

B. False Arrest

Kee challenges the district court’s dismissal of his Section 1983 claim against

Detective Anzalone and Lieutenant Ryan for false arrest. The district court

granted summary judgment to Detective Anzalone and Lieutenant Ryan on the

false arrest claim on the ground that the individual defendants had probable cause

to arrest Kee for a gambling offense because Kee “admitted to illegally gambling

on a public sidewalk.” Special App’x at 13. On appeal, Kee argues that the district

court erred in finding probable cause existed to arrest Kee for a gambling offense.

Specifically, Kee asserts that no evidence in the record establishes that, at the time

of his arrest, the officers were aware that he had been gambling for money. Kee

also argues that, under New York law, loitering for the purpose of gambling is a

13
violation, see N.Y. Penal Law § 240.35(2), not a crime, and thus the officers must

have observed Kee in the act of gambling in order to have had probable cause to

effectuate his arrest. As set forth below, we agree with the district court that the

uncontroverted evidence in the record establishes probable cause to arrest Kee for

loitering for the purpose of gambling in violation of Section 240.35(2).

“A § 1983 claim for false arrest, resting on the Fourth Amendment right of

an individual to be free from unreasonable seizures . . . is substantially the same

as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852

(2d Cir. 1996) (internal citations omitted); accord Jaegly v. Couch, 439 F.3d 149, 151–

52 (2d Cir. 2006). “Under New York law, to prevail on a claim for false arrest, a

plaintiff must show that (1) the defendant intended to confine [the plaintiff], (2) the

plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the

confinement, and (4) the confinement was not otherwise privileged.” Ashley v.

City of New York, 992 F.3d 128, 136 (2d Cir. 2021) (alteration in original, internal

quotation marks omitted). Probable cause to arrest is a complete defense to a false

arrest claim. See, e.g., id. “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

14
person to be arrested has committed or is committing a crime.” Jaegly, 439 F.3d at

152 (internal quotation marks omitted). To assess probable cause, a court

considers only the facts “available to the officer at the time of the arrest and

immediately before it.” Ashley, 992 F.3d at 136 (internal quotation marks omitted).

Additionally, “when faced with a claim for false arrest, we focus on the

validity of the arrest, and not on the validity of each charge.” Jaegly, 439 F.3d at

154 (emphasis omitted). In other words, a police officer is not liable for a false

arrest under Section 1983 if probable cause to arrest the plaintiff existed “for any

crime—whether or not that particular crime was closely related to the offense the

officers said was the reason for arrest.” Berg v. Kelly, 897 F.3d 99, 111 (2d Cir. 2018).

Here, defendants argue that, even if Kee’s sworn denials related to the drug

offenses create disputed issues of fact as to the issue of probable cause on the drug

charges, Kee “admitted to other facts at the arrest scene that, together with further

undisputed facts, yielded probable cause for a separate gambling-related offense,”

namely, loitering for the purpose of gambling. Appellees’ Br. at 15.

In relevant part, under New York Penal Law § 240.35(2), “[a] person is guilty

of loitering when he . . . [l]oiters or remains in a public place for the purpose of

gambling with cards, dice or other gambling paraphernalia.” Under New York

15
Penal Law § 225.00(2), “[a] person engages in gambling when he stakes or risks

something of value upon the outcome of a contest of chance or a future contingent

event not under his control or influence, upon an agreement or understanding that

he will receive something of value in the event of a certain outcome.” As one New

York court explained, “[t]o break it down to its simplest terms, in New York State

it is a violation for people to roll dice for money even if they are only players, if

they do so in a public place.” People v. Greenhill, 94 N.Y.S.3d 539, 2017 WL 6601862,

at *3 (N.Y. Crim. Ct. Dec. 26, 2017).

It is also important to note that loitering for the purpose of gambling is a

violation under New York Law; it is not a crime. N.Y. Penal Law § 240.35; compare

id. § 10.00(3) (“‘Violation’ means an offense, other than a ‘traffic infraction,’ for

which a sentence to a term of imprisonment in excess of fifteen days cannot be

imposed.”), with id. § 10.00(6) (“‘Crime’ means a misdemeanor or a felony.”).

Pursuant to New York law, because loitering for the purpose of gambling is only

a violation, the offense must occur in the officer’s presence to provide probable

cause to arrest. See N.Y. Crim. Proc. Law § 140.10(1) (explaining that a police

officer may arrest a person for a crime when the officer has “reasonable cause to

believe that such person has committed such crime, whether in [the officer’s] presence

16
or otherwise,” but that an officer may arrest a person for a violation only when the

officer has “reasonable cause to believe that such person has committed such

offense in his or her presence” (emphases added)); see also People v. Johnson, 66 N.Y.2d

398, 402 n.2 (N.Y. 1985) (explaining that “reasonable cause” as used in N.Y. Crim.

Proc. Law § 140.10(1) is equivalent to “probable cause.”).

Here, it is undisputed that, when Detective Anzalone and Lieutenant Ryan

approached Kee, he was in front of the liquor store at 705 Henderson Avenue

playing dice for money with his friend Larry, thereby violating Section 240.35(2).

Kee, however, disputes whether the officers observed this conduct. In particular,

although Kee does not challenge that the officers did observe either Kee or his

friend with dice in his hand, 10 Kee asserts that Detective Anzalone and Lieutenant

Ryan did not see Kee playing dice with Larry for money, which is required to be

guilty of a violation for such activity under New York law. See Appellant’s Br. at

24 (“While Anzalone and Ryan were aware that Larry had dice, there was no

10 Lieutenant Ryan recalled, at the time he and Detective Anzalone first observed Kee in
front of the liquor store, either Kee or his friend were holding dice in their hand.
Detective Anzalone testified that, when he encountered Kee on the sidewalk, he believed
Kee had dice in this hand, but he was not sure. In any event, Kee confirmed in his
deposition that the officers saw the dice. Thus, Kee concedes this fact. See Appellant’s
Br. at 25 (“Viewed in the light most favorable to Kee, the evidence was that the Officers
were aware . . . Kee or the person he was with were in possession of dice.”).
17
objective evidence of gambling.”). That argument, however, is unpersuasive

given Kee’s accompanying statement to Detective Anzalone during their

encounter, that he was “rolling dice,” and that, “[i]f 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. From this statement, a police officer “of reasonable caution”

could reasonably infer that Kee was illegally gambling with Larry when the police

first encountered Kee in front of the liquor store. Jaegly, 439 F.3d at 152. As the

Supreme Court has frequently emphasized, probable cause to arrest does not

require certainty, “only a probability or substantial chance of criminal activity.”

District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal quotation marks

omitted). When Kee admitted that he was “rolling dice” and suggested that he

should be arrested for that activity (and not a drug offense), Joint App’x at 156–57,

there was certainly a “probability or substantial chance” that he was on the public

sidewalk for the purpose of rolling dice for money, thus establishing probable

cause to arrest him for a violation of New York Penal Law § 240.35(2). 11 Wesby,

138 S. Ct. at 586.

11Defendants also argue that the Court should consider “Kee’s undisputed possession of
$2,000 in cash” in determining whether he was engaged in gambling for money.
Appellees’ Br. at 15. Kee’s deposition testimony does seem to suggest that the $2,000 was
found by the officers on his person before the search of the car and his arrest on narcotics
18
 Kee attempts to discount his incriminating statement by contending that,

although he admitted at his deposition to making the statement to Detective

Anzalone, there is no evidence in the record to establish that the police officers

ever heard his statement, and thus the defense cannot rely on the statement to

demonstrate probable cause existed for the arrest. This argument is unavailing.

As an initial matter, we note that the officers were never asked at their deposition

whether they heard Kee’s statement. Moreover, there is nothing in the record

about the circumstances to suggest that Detective Anzalone or Lieutenant Ryan

did not hear Kee tell Anzalone that he was “rolling dice” and that “[Anzalone]

should lock [him] up for [that].” Joint App’x at 156–57. To the contrary, according

to Kee, he made this incriminating statement during a heated conversation with

Detective Anzalone. In particular, Kee confirmed in his deposition that, during

this encounter with Detective Anzalone, he was “mad” and “[s]creaming.” Joint

charges. See Joint App’x at 151 (“They [i.e., the officers] get out of the car, and they see
me and he comes right to me, comes right to me and starts searching.”). However,
Detective Anzalone did not testify as to the timing of the search of Kee’s person, and
Lieutenant Ryan’s testimony was less clear as to whether the search occurred before or
after Kee’s arrest. See id. at 294 (Lieutenant Ryan testifying that he did not recall the
timing of the search of Kee’s person in relation to the decision to arrest). Therefore, we
have not considered this additional fact as part of our analysis and, nevertheless, find
that there was probable cause, as the district court did, based upon other uncontroverted
evidence.
19
App’x at 158. Given these uncontroverted facts, any attempt to argue that the

officers did not hear Kee’s admission would be pure speculation that is wholly

unsupported by any rational inference from the record. Thus, the district court

properly relied upon Kee’s admission to Detective Anzalone in concluding that

probable cause existed for the gambling-related offense.

Finally, Kee argues that Detective Anzalone and Lieutenant Ryan could not

have had probable cause to arrest him for loitering for the purpose of gambling

because the offense did not occur in the officers’ presence, as required under New

York law. That contention, however, misstates the record and is similarly

unpersuasive. As noted above, Kee concedes he was playing dice with his friend

Larry when the officers approached him, and even admitted to that fact during his

interaction with Detective Anzalone. Our analysis on this issue can end there; the

temporal requirement imposed by New York law on police officers effectuating

an arrest for a violation—requiring that the violation be committed in the officer’s

presence—was met. See N.Y. Crim. Proc. Law § 140.10(1)(a).

The officers need not have seen Kee actually rolling the dice on the ground

to satisfy this requirement; rather, their observation of the dice in the hand of Kee

or his friend, combined with Kee’s statement to Detective Anzalone to “lock [him]

20
up” for “rolling dice,” Joint App’x at 156–57, were sufficient to provide the officers

with probable cause to believe that Kee was engaged in gambling for money with

Larry when they approached the men in front of the liquor store. See, e.g., People

v. Bothwell, 261 A.D.2d 232, 234–35 (1st Dep’t 1999) (holding that probable cause

existed to arrest the defendant for possessing an open container holding an

alcoholic beverage in a public place with intent to consume it—a violation of the

City’s Administrative Code—even though the officer had not seen the defendant

drinking from the beer bottle in his hand, because “[e]ven if the bottle were empty,

it was reasonable to infer that the defendant had just finished consuming it”); see

also People v. Lewis, 50 A.D.3d 595, 595 (1st Dep’t 2008) (finding statement that “I

got tickets, Billy Joel tickets” provided probable cause for arrest on the violation

of offering to sell tickets within 1,500 feet of entertainment venue).

In sum, although Kee was not charged with loitering for the purpose of

gambling, the uncontroverted facts established probable cause for Detective

Anzalone and Lieutenant Ryan to arrest Kee for that violation of New York Penal

Law § 240.35(2). 12 See Ashley, 992 F.3d at 136; Berg, 897 F.3d at 111. The district

12 The individual defendants also argued, in the alternative, that they had arguable
probable cause to arrest and, therefore, are entitled to qualified immunity. Given the
existence of probable cause, we need not address this alternative argument.
21
court therefore did not err in granting summary judgment to the individual

defendants on the Section 1983 false arrest claim.

C. Malicious Prosecution

Kee also challenges the district court’s grant of summary judgment to the

individual defendants on his Section 1983 malicious prosecution claim and to all

defendants on Kee’s state law malicious prosecution claim. The district court

concluded that these claims fail because (i) dismissal of Kee’s underlying criminal

charges on speedy trial grounds is not a favorable termination under federal law,

and (ii) defendants had probable cause to prosecute Kee for the narcotics offenses.

We agree with Kee that the district court erred in dismissing his malicious

prosecution claims against the City and Detective Anzalone on these grounds on

summary judgment.

To prevail on a malicious prosecution claim under New York law and

federal law, a plaintiff must show: “(1) the commencement or continuation of a

criminal proceeding by the defendant against the plaintiff, (2) the termination of

the proceeding in favor of the accused, (3) the absence of probable cause for the

criminal proceeding and (4) actual malice.” Smith-Hunter v. Harvey, 734 N.E.2d

750, 752 (N.Y. 2000) (internal quotation marks omitted); accord Murphy v. Lynn, 118

22
F.3d 938, 947 (2d Cir. 1997). For a malicious prosecution claim under Section 1983,

a plaintiff also must demonstrate a “sufficient post-arraignment liberty restraint.”

Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).

As an initial matter, for both his state and federal claims, Kee does not

challenge the district court’s holding that he failed to establish the initiation

element of malicious prosecution for Lieutenant Ryan. Even after defendants

highlighted this omission in their brief to us, Kee, in his reply brief, did not address

the district court’s initiation-element conclusion as it pertained to Lieutenant

Ryan. Kee has therefore abandoned any challenge to the district court’s judgment

in favor of Lieutenant Ryan on the state and federal malicious prosecution claims,

and the judgment is affirmed. See, e.g., Doe v. Trump Corp., 6 F.4th 400, 2021 WL

3176760, at *7 n.6 (2d Cir. 2021). Therefore, on appeal, only two elements—

pertinent to both Kee’s federal malicious prosecution claim against Detective

Anzalone and corresponding state claim as to Anzalone and the City—are at issue.

1. Favorable Termination

As noted above, under Section 1983 and New York law, a plaintiff seeking

to prevail on a tort claim for malicious prosecution must prove that the underlying

criminal proceeding against the plaintiff terminated “in favor of the accused [i.e.,

23
the plaintiff].” Smith-Hunter, 734 N.E.2d at 752; see, e.g., Murphy, 118 F.3d at 947.

In this case, the district court did not analyze whether Kee’s state law malicious

prosecution claim against the defendants failed under the favorable termination

element. Instead, the district court disposed of the state law claim on probable

cause grounds. On appeal, the defendants do not dispute that the dismissal of

Kee’s criminal prosecution on speedy trial grounds is a favorable termination

under state law in the context of his state tort claim for malicious prosecution. We

agree and reiterate that, under New York State law, dismissal of a criminal

prosecution on speedy trial grounds, see N.Y. Crim. Proc. Law § 30.30, is generally

a favorable termination for the purpose of a New York tort claim for malicious

prosecution. See Smith-Hunter, 734 N.E.2d at 755 (explaining that, as a “general

rule[,] . . . a dismissal on speedy trial grounds is a favorable termination”).

The dispute on appeal as to this element is whether, as a matter of federal

law, a speedy trial dismissal satisfies the favorable termination element for

purposes of a malicious prosecution claim brought under Section 1983. Kee

challenges the district court’s determination that, under federal law, a dismissal

on speedy trial grounds does not qualify as a favorable termination. Specifically,

he asserts that under general principles of traditional common law, and following

24
the precedent of our Circuit, speedy trial dismissals are favorable. In contrast,

defendants assert that the district court correctly granted them summary

judgment on Kee’s Section 1983 malicious prosecution claim because, under

federal law, a plaintiff must show that the underlying prosecution terminated in a

manner indicating innocence and that the dismissal of Kee’s prosecution on

speedy trial grounds is merely “neutral as to innocence and equally consistent

with guilt.” Appellees’ Br. at 25. The district court, as well as defendants, support

their analysis by relying upon our decision in Lanning v. City of Glens Falls, 908 F.3d

19 (2d Cir. 2018).

As discussed below and in Lanning, New York state tort law has diverged

from traditional common law with respect to what qualifies as a favorable

termination. This divergence has unfortunately been the source of some confusion

in Section 1983 litigation, and district courts in the Circuit have reached different

conclusions regarding the impact of our decision in Lanning on the question of

whether a speedy trial dismissal is a favorable termination in the context of a

federal malicious prosecution claim. Compare Blount v. City of New York, 15-CV-

5599 (PKC) (JO), 2019 WL 1050994, at *5 (E.D.N.Y. Mar. 5, 2019) (“Lanning makes

clear that, as the Circuit consistently held pre-Lanning, dismissals on speedy trial

25
grounds are terminations in the favor of the accused.”), with Minus v. City of New

York, 488 F. Supp. 3d 58, 66 (S.D.N.Y. 2020) (concluding, after reviewing Lanning

and prior case authority, that “a speedy trial dismissal is not a favorable

termination for purposes of a Section 1983 claim without an affirmative indication

of the accused’s innocence”); see generally Herrera-Amador v. N.Y.C. Police Dep’t, 16-

CV-5915 (NGG) (VMS), 2021 WL 3012583, at *4 (E.D.N.Y. July 16, 2021) (collecting

cases).

We now clarify that Lanning did not modify, but rather re-affirmed, the

longstanding “indicative of innocence” standard for Section 1983 malicious

prosecution claims under which this Court has repeatedly held, and holds again

today, that a speedy trial dismissal generally constitutes a “favorable

termination.”

In Murphy v. Lynn, citing both common law (as reflected in the Restatement

(Second) of Torts (Am. Law Inst. 1977) (“Restatement”)) and New York law, we

made clear that “[w]here the prosecution did not result in an acquittal, it is deemed

to have ended in favor of the accused, for these purposes, only when its final

disposition is such as to indicate the innocence of the accused.” 118 F.3d at 948.

Applying that “indicative of innocence” standard, we held that “dismissals for

26
lack of timely prosecution should generally be considered, for purposes of a claim

of malicious prosecution, a termination favorable to the accused.” Id. at 950. In

reaching this decision, we explained that “[p]art of the rationale for viewing a

dismissal for the prosecution’s failure to prosecute in a timely fashion as favorable

to the accused is that the failure to proceed to the merits compels an inference of

such an unwillingness or inability to do so as to imply a lack of reasonable grounds

for the prosecution.” Id. at 949 (internal quotation marks omitted). We further

reasoned that “to view a dismissal for failure to prosecute within the time allowed

as a termination not favorable to the accused would have the effect of unfairly

compelling one charged with a criminal offense to waive his constitutional or

statutory right to a speedy trial in order to preserve his right to civil retribution for

a demonstrated wrong.” Id. at 949–50 (alterations and internal quotation marks

omitted). We also noted that our decision was not only consistent with New York

law and the Restatement, but with the decisions of numerous other states. Id. at

950 (collecting cases).

We reiterated Murphy’s holding in several subsequent decisions. See, e.g.,

Posr v. Ct. Off. Shield No. 207, 180 F.3d 409, 418 (2d Cir. 1999) (“Under the law and

logic of Murphy, [plaintiff] cannot be required to waive his right to dismissal on

27
speedy trial grounds in order to preserve the possibility of bringing a malicious

prosecution suit. Accordingly, the district court erred in its determination that

[plaintiff] failed to plead favorable termination [based on a speedy trial

dismissal].”); see also Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002) (explaining

that, in Murphy, we “ruled that the state’s effective abandonment of a prosecution,

which resulted in a dismissal for violation of the accused’s speedy trial rights,

without an adjudication of his guilt or innocence, constituted a favorable

termination”).

Our recent decision in Lanning did not overrule or modify this well-settled

precedent articulated in Murphy and subsequent cases. In Lanning, which did not

involve a dismissal of charges based upon a speedy trial violation, we addressed

the potential impact of the expansion under New York law of the definition of a

“favorable termination” on federal malicious prosecution claims. More

specifically, we discussed how, up until the early 2000s, “New York courts

adhered to . . . traditional common law principles relating to the favorable

termination element of a claim of malicious prosecution.” Lanning, 908 F.3d at 27.

Pursuant to “traditional common law principles,” id. at 26, “[p]roceedings are

terminated in favor of the accused . . . only when their final disposition is such as

28
to indicate the innocence of the accused,” Restatement § 660 cmt. a (emphasis added).

However, in the early 2000s, the New York Court of Appeals broadened the

definition of favorable termination, departing from the traditional common law.

Lanning summarized this change in a clear and concise manner:

In 2000 . . . the New York Court of Appeals, in Smith-Hunter v. Harvey
(a case involving dismissal for violation of the defendant’s right to a
speedy trial), . . . rejected the notion that a plaintiff asserting a [s]tate
tort claim for malicious prosecution, at least under the particular
circumstances presented in that case, must demonstrate innocence in
order to satisfy the favorable termination prong. In 2001, in Cantalino
v. Danner, [754 N.E.2d 164 (N.Y. 2001)], the Court of Appeals
appeared to go further. In Cantalino, the Court of Appeals
characterized Smith-Hunter as holding that any termination of a
criminal prosecution, such that the criminal charges may not be
brought again, qualifies as a favorable termination, so long as the
circumstances surrounding the termination are not inconsistent with
the innocence of the accused. The rule announced in Smith-Hunter,
the Court of Appeals explained, is one of general application. . . .
[Thus], Cantalino appeared to deviate (as State courts are entitled to
do with regard to claims under State law) from the traditional
common law of torts, which, as reflected in the Restatement, requires
that a favorable termination affirmatively indicate the innocence of
the accused.

Lanning, 908 F.3d at 27–28 (internal alterations, citations, quotation marks and

footnotes omitted).

Notwithstanding this broadening of the “favorable termination” definition

under New York law, which must be applied for purposes of a state malicious

29
prosecution claim, we clarified in Lanning that “federal law defines the elements

of a § 1983 malicious prosecution claim, and that a State’s tort law serves only as a

source of persuasive authority rather than binding precedent in defining these

elements.” Id. at 25. In other words, we concluded that “we are not bound to

apply New York law to malicious prosecution claims arising under § 1983.” Id. at

28. Instead, we continued to apply the common law standard—namely, that a

termination affirmatively indicates innocence—that had been articulated in

Murphy and numerous other decisions prior to Lanning. Thus, “regardless of

developments in New York State malicious prosecution law,” we reiterated that

“[o]ur prior decisions requiring affirmative indications of innocence to establish

‘favorable termination’ . . . continue to govern § 1983 malicious prosecution

claims.” Id. at 25. We then held, under that standard, that the dismissal of

plaintiff’s charges without specification as to how, or on what grounds, the charges

were dismissed, was not indicative of innocence and did not qualify as a

“favorable termination” for the purpose of a Section 1983 malicious prosecution

claim. Id. at 29.

Not only did we continue in Lanning to apply the same “indicative of

innocence” test—used in Murphy to find a speedy trial dismissal to be a favorable

30
termination—but we also explicitly noted in Lanning that our holding did nothing

to change the calculus of our favorable termination analysis for dismissals on

speedy trial grounds. More specifically, we were careful to underscore, in footnote

six of Lanning, that a dismissal on speedy trial grounds is a favorable termination

“still reflect[ing] the traditional common law.” See id. at 27 n.6 (citing Restatement

§ 660 cmt. d and Murphy, 118 F.3d at 949–50). This is because, even though a

speedy trial dismissal is, in practice, neutral with respect to guilt or innocence,

such neutrality inures, as a matter of law, to the benefit of the plaintiff because

“claims of constitutional or other privilege” are at issue. 13 Restatement § 660

cmt. d; see also Murphy, 118 F.3d at 949 (“An abandonment brought about by the

accused’s assertion of a constitutional or other privilege . . . such as the right to a speedy

trial, does not fall within . . . categories [of abandonment of prosecution that are

facially neutral but are not considered favorable terminations].” (emphasis

added)).

13 The right of a criminal defendant to a speedy trial is enshrined in the United States
Constitution. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial.”); see also Klopfer v. State of North Carolina, 386 U.S.
213, 226 (1967) (holding that the right to a speedy trial secured by the Sixth Amendment
“is one of the most basic rights preserved by our Constitution” and applying that right to
the states through the Fourteenth Amendment). Additionally, in New York, the right to
a speedy trial is guaranteed by statute. See N.Y. Crim. Proc. Law § 30.20; N.Y. Civil Rights
Law § 12; see also People v. Romeo, 12 N.Y.3d 51, 55 (N.Y. 2009).
31
 Therefore, we again hold that Murphy is good law and binding precedent—

namely, a speedy trial dismissal is generally a favorable termination for purposes

of a malicious prosecution claim under Section 1983. In clarifying that a dismissal

on speedy trial grounds is generally a favorable termination, we note the qualifier.

Although such dismissals are generally (or presumed to be) favorable, the

defendant may attempt to present evidence to rebut this presumption. Thus, as

explained in Murphy, a plaintiff will prevail on this “favorable termination”

element as a matter of law when there was a speedy trial dismissal unless the

defendant produces evidence of a “non-merits-based explanation for the failure to

pursue the prosecution” of the plaintiff. 118 F.3d at 951.

In the instant case, it is undisputed that Kee’s dismissal was on speedy trial

grounds. 14 Moreover, there was no evidence in the record of a non-merits-based

explanation for the dismissal. Although defendants assert that the state offered

Kee a plea deal on July 13, 2016, and thus, by their logic, the offer indicates that

14 Kee was charged with two counts of a B felony—criminal possession of a controlled
substance in the third degree, in violation of N.Y. Penal Law § 220.16(1)—and thus if the
state was not “ready for trial . . . within six months of the commencement of [the] criminal
action,” Kee’s motion to dismiss on speedy trial grounds “must be granted.” N.Y. Crim.
Proc. Law § 30.30(1)(a). Kee was arraigned January 2, 2016, and he moved to dismiss the
case on speedy trial grounds on July 13, 2016—more than six months after the
commencement of the criminal action—and the state did not oppose.
32
the state was not abandoning Kee’s prosecution for any merits-based reason, we

find this argument unpersuasive. First, the plea offer came after the speedy trial

clock had run. Second, the plea offer was not to the pending felony charge, but

rather to a violation and a conditional discharge. Put simply, a non-merits-based

explanation for the dismissal of the felony charges cannot be rationally inferred

from the mere fact that a prosecutor made an offer to the defendant to plead to a

violation and conditional discharge after the speedy trial clock had run. Under

these circumstances, that offer to plead guilty to the lesser offense can carry no

weight on this issue. Thus, because dismissal of Kee’s charges on speedy trial

grounds is generally (or presumptively) a favorable termination and there is no

evidence in the record to support a non-merits-based reason for the dismissal, the

district court erred in concluding Kee had failed to satisfy this element on his

federal malicious prosecution claim.

2. Probable Cause to Prosecute

Kee also challenges on appeal the district court’s conclusion that the

defendants acted with probable cause to prosecute Kee for the state drug charges.

Specifically, Kee argues that the district court erred in finding that the defendants’

version of events was “undisputed.” We agree and conclude that, in light of the

33
disputed facts, the probable cause issue in this case cannot be decided on summary

judgment. 15

As discussed above, malicious prosecution claims under both New York

and federal law require that a plaintiff prove the defendant lacked probable cause

to prosecute. See Murphy, 118 F.3d at 947; Smith-Hunter, 734 N.E.2d at 752.

“Probable cause, in the context of malicious prosecution, has . . . been described as

such facts and circumstances as would lead a reasonably prudent person to believe

the plaintiff guilty.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003).

Although probable cause to prosecute is a complete defense to a claim of malicious

prosecution, see Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003), such

probable cause must be shown as to each crime charged in the underlying criminal

action, see Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Lowth v. Town of

15 As an initial matter, we note that the defendants, in their brief, did not raise any
argument one way or the other regarding the issue of probable cause to prosecute Kee
for the narcotics offenses. Defendants, however, noted during oral argument that they
do not concede that the district court erred in its probable-cause-to-prosecute
determination. In any event, notwithstanding the defendants’ failure to brief the issue
on appeal, we have fully analyzed the issue and conclude that disputed issues of fact
preclude summary judgment on the probable cause element.
34
Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996). Thus, probable cause to prosecute

should not be conflated with probable cause to arrest. See Posr, 180 F.3d at 417.

With respect to the evidence, at the summary judgment stage, the district

court is not permitted to make credibility determinations or weigh the evidence

on the probable cause element or any other element, for these are “jury functions,

not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); accord

Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015). “The function of the

district court in considering the motion for summary judgment is not to resolve

disputed questions of fact but only to determine whether, as to any material issue,

a genuine factual dispute exists.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d

Cir. 2010). “Summary judgment is inappropriate when the admissible materials

in the record make it arguable that the claim has merit, for the court in considering

such a motion must disregard all evidence favorable to the moving party that the

jury is not required to believe.” Rogoz, 796 F.3d at 246 (internal emphasis, citations,

and quotation marks omitted); accord Lucente, 980 F.3d at 296.

Here, there are disputed factual issues in the record that preclude summary

judgment on the issue of whether there was probable cause to prosecute Kee for

the drug offenses. The district court concluded that “the defendants conveyed to

35
the District Attorney information and evidence regarding the recovery of the

narcotics from the Tavares vehicle in which plaintiffs were observed riding, and

these undisputed facts were sufficient to give rise to probable cause to prosecute.”

Special App’x at 18 (emphasis added). However, the critical fact regarding the

observations of Kee in the sedan was disputed. Although Detective Anzalone

asserts he saw Kee in Tavares’s sedan smoking marijuana shortly before he

searched the vehicle and discovered other narcotics, there is evidence in the record

that contradicts Anzalone’s observations. In particular, Kee denies ever being in

Tavares’s vehicle on December 31, 2015, and claims that he did not see Tavares

until Tavares arrived by foot on the scene immediately before the arrests. Kee also

denies that the officers found a cell phone belonging to him in Tavares’s car and,

instead, contends that the police confiscated his phone from his pocket. Moreover,

Tavares claims to have parked his car on Henderson Avenue approximately an

hour and a half prior to his and Kee’s arrest, which directly contradicts Detective

Anzalone’s statement that he saw Kee in Tavares’s moving car shortly before the

arrest. Tavares also testified that he drove alone before parking in front of 704

Henderson Avenue. And both Kee and Tavares deny smoking marijuana in

Tavares’s car on December 31, 2015.

36
 In short, Detective Anzalone’s statement that he observed Kee in the car

with marijuana smoke emanating from the window was a critical fact that

supported probable cause for Kee’s arrest in connection with the drugs allegedly

found in that car, and there is evidence in the record contradicting that fact. 16 In

other words, if the testimony of Kee and Tavares is credited, which it must be on

summary judgment, there is sufficient evidence in the record from which a rational

jury could find that probable cause to prosecute Kee for the drug offenses was

lacking. See Rogoz, 796 F.3d at 246. Therefore, the district court erred in concluding

at the summary judgment stage that the defendants had probable cause to

prosecute. 17

Accordingly, we hold that the district court erred in granting summary

judgment to Detective Anzalone on Kee’s Section 1983 malicious prosecution

claim, and likewise hold that the court erred in granting summary judgment to

Anzalone and the City on Kee’s state law malicious prosecution claim.

16 As noted above, Kee similarly has placed in dispute Detective Anzalone’s statement
that he found a phone belonging to Kee in the sedan; Kee testified that his phone was
seized from his pocket.

17 To the extent the district court also referenced Kee’s failure to proffer evidence of
malicious intent, malice may be inferred if Kee is able to demonstrate a lack of probable
cause or, as discussed infra, the fabrication of evidence. See Boyd, 336 F.3d at 78 (“A lack
of probable cause generally creates an inference of malice.”).
37
 D. Fair Trial

Kee also argues that the district court erred in granting summary judgment

to the individual defendants on his Section 1983 fair trial claim. The claim is based

upon fabricated information allegedly supplied by Detective Anzalone (and

allegedly approved by Lieutenant Ryan with knowledge of the fabrication) to

prosecutors orally and in arrest paperwork, which became the basis for the

criminal court complaint against Kee that was signed by Anzalone and filed by

prosecutors. In particular, Kee contends that “Anzalone’s false statements to

prosecutors that he saw Kee—smoking marijuana—in Tavares’s car minutes

before the arrest, and that he recovered Kee’s phone from the vehicle, bear directly

on whether Anzalone provided fabricated evidence to prosecutors that was likely

to influence a jury’s decision.” Appellant’s Br. at 18.

The district court found that the claim fails because the allegedly fabricated

evidence was “not presented at a trial and had no impact on the fairness of any

proceeding.” Special App’x at 23. The district court also concluded that the

allegedly fabricated documents—namely, the arrest paperwork and criminal court

complaint—“contain inadmissible hearsay and do not meet the evidentiary bar to

support a claim at the summary judgment stage.” Special App’x at 22–23. The

38
district court further noted that Kee had “offered no evidence to dispute these

documents beyond simply alleging that they are false.” Special App’x at 23. As

set forth below, we conclude that the district court erred in granting summary

judgment on these grounds.

To prove a Section 1983 fair trial claim, a plaintiff must establish that (1) the

officer created false information, (2) the officer forwarded the false information to

prosecutors, (3) the false information was likely to influence a jury’s decision, and

(4) the plaintiff suffered a deprivation of life, liberty, or property as a result of the

officer’s actions. Garnett v. Undercover Officer C0039, 838 F.3d 265, 279–80 (2d Cir.

2016).

As defendants concede, after the district court’s decision in this case, we

held that a Section 1983 fair trial claim is available to a defendant even if the

underlying criminal charges are dismissed and the fabricated evidence is never

presented at trial. See Frost v. N.Y.C. Police Dep’t, 980 F.3d 231 (2d Cir. 2020). In

Frost, we explained that “[n]otwithstanding the nomenclature [i.e., a fair trial

claim], a criminal defendant’s right to a fair trial protects more than the fairness of

the trial itself.” Id. at 249. Thus, “a criminal defendant can bring a fair trial claim

even when no trial occurs at all.” Id. This separate and distinct right, see id. at 250

39
(“[W]e have expressly distinguished this right from the separate, although related,

right not to be convicted based on the use of false evidence at trial.”), “protects

against [the] deprivation of liberty that results when a police officer fabricates and

forwards evidence to a prosecutor that would be likely to influence a jury’s

decision, were that evidence presented to the jury,” id. When a police officer violates

a defendant’s right to a fair trial in such a manner, “the harm occasioned by such

an unconscionable action is redressable in an action for damages under 42 U.S.C.

§ 1983.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). Indeed,

“a Section 1983 claim for the denial of a right to a fair trial based on an officer’s

provision of false information to prosecutors can stand even if the officer had

probable cause to arrest the Section 1983 plaintiff,” and, thus, “fair trial claims

cover kinds of police misconduct not addressed by false arrest or malicious

prosecution claims.” Garnett, 838 F.3d at 277–78. In short, the fact that Kee’s

criminal case did not proceed to trial does not preclude him from pursuing his fair

trial claim.

Even though defendants acknowledge that a fair trial claim is cognizable

even in the absence of a trial under Frost, they argued in their brief that Kee still

must satisfy a “favorable termination” requirement that is identical in its scope to

40
that same element in the context of a malicious prosecution claim, and they

asserted Kee failed to meet that requirement. The Supreme Court recently held

that a fair trial claim based on fabricated evidence does not accrue until the

underlying criminal proceeding terminates in the plaintiff’s favor. See McDonough

v. Smith, -- U.S. --, 139 S. Ct. 2149, 2158–61 (2019). Moreover, in McDonough, the

Supreme Court suggested that there may be a need “for a context-specific and

more capacious understanding of what constitutes ‘favorable’ termination for

purposes of a § 1983 false-evidence claim.” Id. at 2160 n.10. However, because the

plaintiff’s acquittal on the underlying criminal charges “was unquestionably a

favorable termination,” the Supreme Court had “no occasion to address the

broader range of ways a criminal prosecution . . . might end favorably to the

accused” in the fair trial context. Id.

As an initial matter, because we have already concluded that Kee has met

the “favorable termination” requirement mandated for a malicious prosecution

claim, defendants’ argument is moot because, even if that identical standard were

to be applied to a fair trial claim, Kee would still satisfy that requirement. In any

event, in Smalls v. Collins, -- F.4th --, 2021 WL 3700194 (2d Cir. Aug. 20, 2021), we

41
recently addressed this issue in the wake of McDonough and rejected the precise

argument asserted by the defendants here:

The core question . . . is what constitutes a favorable termination
sufficient to trigger McDonough’s accrual rule for fabricated-evidence
claims. The defendants point out that McDonough’s accrual rule for
fabricated-evidence claims was premised on an analogy to malicious-
prosecution claims and argue that McDonough’s favorable-
termination requirement should thus be interpreted to be coextensive
with malicious prosecution’s favorable-termination requirement,
under which a plaintiff must establish that the proceeding ended in a
manner indicative of innocence. This argument is inconsistent with
the reasoning and holding of McDonough and, we think, lacks merit.

Id. at 11. Instead, we held that “[w]here the plaintiff asserts a section 1983 fair-trial

claim based on fabricated evidence, all that is required is that the underlying

criminal proceeding be terminated in such a manner that the lawsuit does not

impugn an ongoing prosecution or outstanding conviction.” Id. at 13. 18

Applying that standard here, because Kee’s underlying criminal proceeding

was dismissed on speedy trial grounds, his fair trial claim does not impugn an

ongoing prosecution, nor would it potentially invalidate any outstanding

conviction if he were to prevail. Accordingly, this dismissal on speedy trial

18 In light of this holding, defendants concede in a recent letter to this Court that “Smalls
forecloses our argument that, in order to bring a fair trial claim, Kee must show that his
criminal proceeding terminated in a manner indicative of his innocence.” Appellees’
Rule 28(j) Letter at 1 (Aug. 24, 2021), ECF No. 67.
42
grounds constitutes a favorable termination under the standard articulated in

Smalls, which is necessary for the accrual of a fair trial claim based upon fabricated

evidence under McDonough. Thus, we turn to Kee’s challenge to the district court’s

decision regarding whether certain evidence in the record can be used by Kee to

establish his fair trial claim.

In this case, Kee’s fair trial claim rests on the alleged false statements that

Detective Anzalone supplied to the RCDA, which provided the factual predicate

for the charges leveled against Kee in the criminal complaint and to which

Anzalone swore. Our decision in Garnett makes clear that Kee may rely on

allegedly false information in the criminal complaint, as well as other documents

in the record—such as the RCDA’s intake form (“data analysis sheet”) and arrest

paperwork —to bring a “claim for a denial of the right to a fair trial.” 838 F.3d at

279 (“[A]ny information fabricated by an officer can serve as the basis of a claim

for a denial of the right to a fair trial.”). Thus, although our decision in Ricciuti v.

New York City Transit Authority addressed an allegedly fabricated confession, we

explained in Garnett that “Ricciuti’s holding”—that an officer’s violation of a

defendant’s right to a fair trial is redressable in a Section 1983 action—“applies to

falsified information contained in an officer’s account of his or her observations of

43
alleged criminal activity which he or she conveys to prosecutors.” Garnett, 838

F.3d at 280. Such falsified information underlying the claim may be conveyed in

documents, or orally, to prosecutors.

Moreover, although the district court concluded that inadmissible hearsay

(which the district court did not identify) in the documents prevented Kee from

using those documents to support his claim on summary judgment, we disagree.

As an initial matter, to the extent that the district court may have been referring to

the allegedly fabricated statements by Detective Anzalone contained in any

documents, such statements are not hearsay because they are not being offered for

the truth of the matter asserted. See Fed. R. Evid. 801(c). Moreover, other

statements in any documents created by Detective Anzalone about what he

observed would be admissible as party admissions. See Fed. R. Evid. 801(d)(2). In

any event, insofar as the arrest paperwork or other documents do contain

inadmissible hearsay, we note that, so long as Kee can show that admissible

evidence would be available at trial, summary judgment is inappropriate at this

stage in the litigation. Cf. Burlington Coat Factory Warehouse Corp. v. Esprit De Corp.,

769 F.2d 919, 924 (2d Cir. 1985). Defendants do not argue on appeal that Kee will

be unable to overcome any hearsay issues relating to the admissibility of

44
documents that he contends contain—or were based on—fabricated information,

either provided orally or in writing by Detective Anzalone. In fact, Detective

Anzalone conceded in his deposition that he conveyed his version of the relevant

events to prosecutors in written documents as the criminal complaint was being

drafted, and seemed to suggest that at least some of the information was also orally

conveyed to prosecutors. Thus, we cannot conclude at this juncture that Kee will

be unable to utilize the contents of these documents from an evidentiary

standpoint in conjunction with other evidence in the case, to attempt to prove that

Detective Anzalone conveyed fabricated evidence to prosecutors.

Finally, we disagree with the district court’s conclusion that Kee has

“offered no evidence to dispute these documents beyond simply alleging that they

are false.” Special App’x at 23. As noted supra, to support his allegation that the

observation of him smoking marijuana in Tavares’s car is fabricated, Kee has

offered his testimony, as well as the testimony of Tavares, that he was never in the

car prior to the arrest. For purposes of summary judgment, we must assume that

the jury will credit plaintiff’s version of the events. See Lucente, 980 F.3d at 296.

Thus, construing the evidence most favorably to Kee, there is a triable issue

as to whether Detective Anzalone created false statements that were conveyed to

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the RCDA to support the charges in the criminal complaint (which Anzalone

signed), and whether the allegedly false statements were likely to influence a jury’s

decision if the criminal case had proceeded to trial. 19 Accordingly, the district

court erred in granting summary judgment to the individual defendants on Kee’s

Section 1983 fair trial claim.

III. CONCLUSION

For the reasons set forth above, 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.

19 We note, with respect to Lieutenant Ryan’s liability, Kee generally asserted to the
district court that Ryan approved of the information supplied to prosecutors by Detective
Anzalone with knowledge of the fabrication. On appeal, defendants make no specific
arguments regarding the sufficiency of the proof on the fair trial claim as it relates to
Lieutenant Ryan, but rather make general legal arguments (discussed above) that would
apply to both individual defendants. Because we have rejected those arguments, the fair
trial claim as to Lieutenant Ryan also survives summary judgment.
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