Keyes v. the City of New York ( 2023 )

21-2406-cv
Keyes v. The City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of January, two thousand twenty-three.
PRESENT:
ROBERT D. SACK,
JOSEPH F. BIANCO,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
Mytayari Keyes,
Plaintiff-Appellant,
v. 21-2406-cv
The City of New York, Police Officer Peter
Cassidy, in his individual capacity, Police
Officer Michael Looney, in his individual
capacity, The New York City Police
Department, Police Officer Manuel Silva, in
his individual and official capacity,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Henry Bell, Bell Law PLLC, New York, NY.
FOR DEFENDANTS-APPELLEES: Diana Lawless, Richard Dearing, Deborah A.
Brenner, of Counsel, for Hon. Sylvia O. Hinds-
Radix, Corporation Counsel of the City of New
York, New York, NY.
Appeal from the judgment of the United States District Court for the Southern District of
New York (Oetken, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Mytayari Keyes appeals from the grant of summary judgment, entered
on August 24, 2021, to defendants-appellees the City of New York (the “City”), the New York
City Police Department (the “NYPD”), and Police Officers Manuel Silva, Peter Cassidy, and
Michael Looney (collectively, “defendants”) with respect to Keyes’s false arrest and malicious
prosecution claims under 42 U.S.C. § 1983. 1 In 2017, Keyes was arrested in Times Square by
officers in the plainclothes patrol for allegedly touching numerous women’s buttocks. According
to the officers, they each followed Keyes at different times during their patrol after observing him
walking unusually close to several women with his hands near the women’s handbags. The
officers testified that, as they were tailing Keyes, they witnessed him touch the buttocks of multiple
women. As a result, Keyes was arrested and charged with two misdemeanors—namely, forcible
touching under New York Penal Law (“NYPL”) § 130.52 and third-degree sex abuse under NYPL
§ 130.55. After a bench trial, Keyes was acquitted of both charges. Keyes then brought this action.
1
Although Keyes asserted other claims in his complaint, he explicitly abandoned in the district court his
Section 1983 claim for municipal liability against the City, his Section 1983 fair trial claim, his malicious
prosecution claims against Michael Looney, and his state-law false arrest claims. Moreover, on appeal,
Keyes does not challenge the district court’s determination that he also abandoned his remaining state-law
claims because he did not address them in his opposition to defendants’ summary judgment motion. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). In addition, the NYPD cannot be independently
sued as an agency of the City. See Jenkins v. City of New York., 478 F.3d 76, 93 n.19 (2d Cir. 2007).
Therefore, the only remaining claims on appeal are the Section 1983 false arrest claim against the three
individual officers and the Section 1983 malicious prosecution claim against Officers Silva and Cassidy.
2
We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal, to which we refer only as necessary to explain our decision to
affirm.
DISCUSSION
We review de novo a district court’s decision to grant summary judgment, construing the
evidence in the light most favorable to the party against whom summary judgment was granted
and drawing all reasonable inferences in that party’s favor. Guan v. City of New York, 37 F.4th
797, 804 (2d Cir. 2022). Summary judgment is appropriate only if “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).
The district court concluded that the uncontroverted facts demonstrated that the officers
had probable cause to arrest and prosecute Keyes and thus granted summary judgment to
defendants. Keyes argues that the district court erred in its probable cause determination because
he raised genuine disputes of material fact that precluded summary judgment on these claims. We
disagree.
I. False Arrest
Probable cause is a complete defense to a Section 1983 false arrest claim. Ackerson v. City
of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (per curiam). Probable cause exists when officers
“have knowledge or reasonably trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.” Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir.
2021) (internal quotation marks and citation omitted). This determination is based on the “totality
of the circumstances” and courts “must consider only those facts available to the officer at the time
of the arrest and immediately before it.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)
3
(alteration adopted) (internal quotation marks and citation omitted). This standard “does not
demand that an officer’s good-faith belief that a person has committed a crime be ‘correct or more
likely true than false.’” Mara v. Rilling, 921 F.3d 48, 69 (2d Cir. 2019) (quoting Texas v. Brown,
460 U.S. 730, 742 (1983)). In other words, probable cause “requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates,
462 U.S. 213, 243 n.13 (1983) (internal citation omitted). Moreover, “the fact that an innocent
explanation may be consistent with the facts alleged . . . does not negate probable cause, and an
officer’s failure to investigate an arrestee’s protestations of innocence generally does not vitiate
probable cause.” Panetta v. Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (alteration adopted)
(internal quotation marks and citation omitted). Thus, probable cause “is not a high bar.” District
of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal quotation marks and citation omitted).
Here, Officers Cassidy and Silva each testified to separately following Keyes after he
caught their attention by walking very closely to female pedestrians and appearing to look at their
waistlines, creating a concern that he was pickpocketing. According to both officers, they
observed, from different vantage points, that Keyes was touching the buttocks of multiple women.
In particular, Officer Cassidy testified that, as he followed Keyes, he observed Keyes walk closely
behind about five different women. Officer Silva testified that he saw Keyes touch the buttocks
of seven to nine different women, the last of which was also witnessed by Officer Cassidy. 2 The
district court correctly concluded that these direct observations by Officers Cassidy and Silva were
collectively sufficient to lead an officer of reasonable caution to believe that Keyes touched these
2
Officer Silva testified that he saw the reaction of at least one female victim, who looked back at Keyes as
he touched her, causing Keyes to turn and quickly walk away. Officer Silva approached the woman and,
after identifying himself as a police officer, explained what he had seen and asked if she felt uncomfortable.
According to Officer Silva, the woman looked confused, and he was unsure whether she spoke English.
She shook her head, waved her hand to indicate “no,” and walked away.
4
women on an intimate area, without receiving consent and for the purpose of gratifying his sexual
desire, and thus established probable cause for his arrest under NYPL § 130.52(1) and/or NYPL §
130.55. 3 See, e.g., People v. Hatton, 26 N.Y.3d 364, 369 (2015) (holding that defendant’s
“smack[ing] the buttocks” of the complainant on a public street established forcible touching under
NYPL § 130.52); accord People v. Perez, 2020 N.Y. Slip Op. 51184(U), at *1 (App. Term 1st
Dep’t Oct. 9, 2020) (per curiam) (holding that defendant’s touching of victim’s buttocks on
subway platform satisfied elements of third-degree sexual abuse under NYPL § 130.55). In
addition, Sergeant Looney, who also participated in the arrest, was entitled to rely upon his fellow
officers’ observations. See Panetta, 460 F.3d at 395.
Keyes argues that the officers’ observations were insufficient, at summary judgment, to
establish probable cause because: (1) Keyes testified that he did not actually touch any of the
women; (2) the last alleged victim denied feeling anything when questioned by the officers; and
(3) inconsistencies in the officers’ testimony support the inference that the officers fabricated their
testimony. However, we find these arguments unpersuasive.
Even crediting Keyes’s testimony that he did not touch any of the women (as is required at
the summary judgment stage), such testimony does not vitiate the probable cause established by
the officers’ observations, much of which is uncontroverted by any evidence in the record. More
specifically, Keyes has submitted no evidence that disputed the officers’ testimony that he walked
closely behind multiple women even though there was room on the sidewalk for him to maintain
more distance. In addition, although Keyes denied touching the women, he never testified to where
his hands were while he walked closely behind these women, and it is thus uncontroverted that, at
3
Under NYPL § 130.52(1), it is a class A misdemeanor for a person to “intentionally, and for no legitimate
purpose . . . forcibly touch[] the sexual or other intimate parts of another person for the purpose of . . .
gratifying the actor’s sexual desire.” Under NYPL § 130.55, it is a class B misdemeanor for a person to
“subject[] another person to sexual contact without the latter’s consent.”
5
the very least, his hands were in close proximity to the women’s backsides. In other words, these
uncontroverted facts were sufficient to establish probable cause for his arrest, even if the officers
ultimately were mistaken in their observations. 4 See Fabrikant v. French, 691 F.3d 193, 217 (2d
Cir. 2012) (noting that whether an individual “actually committed” a crime, “while determinative
of her guilt or innocence” on the criminal charges, “does not create a genuine issue of material fact
as to the existence of probable cause” for the individual’s arrest (emphasis omitted)); Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994) (“[P]robable cause can exist even where it is based
on mistaken information, so long as the arresting officer acted reasonably and in good faith in
relying on that information.”); see also Liverpool v. Cleveland, 848 F. App’x 468, 469 (2d Cir.
2021) (summary order) (“Because [the defendant officer] observed the [plaintiff’s] concealed hand
movement, even if he misperceived that movement as a lewd act, both he and the arresting officer
. . . had probable cause to arrest [the plaintiff].”), cert. denied, 142 S. Ct. 2727 (2022).
Similarly, the alleged last victim’s denial of any touching by Keyes when questioned by
the officers did not vitiate the probable cause established by the officers’ observations. Defendants
argue that “[u]nlike the police officers, the victims had no way of knowing that what they may
have perceived as an errant or accidental touch was actually part of a repeated pattern.” Appellees’
Br. at 22. Defendants further posit that “the women may have wished to ignore what happened
rather than face the indignities of reporting a sexually-based offense” and that “the plainclothes
4
The district court also noted that the probable cause established by the officers’ observations was
buttressed by the undisputed fact (captured on an audio recording made by Keyes) that, at the time of
Keyes’s arrest, he stated the following before he was even advised of the basis for that arrest: “She [i.e.,
the victim] did not say that I did this . . . . [D]oesn’t she have to press charges on me?” Joint App’x at 715;
see People v. O’Kane, 865 N.Y.S 2d 61, 63 (1st Dep’t 2008) (holding that defendant’s spontaneous
statement at the time of arrest evincing consciousness of guilt supported probable cause determination).
However, because it appears that these statements were made after Keyes was in the process of being
arrested, we do not consider them in assessing whether there is probable cause for the arrest. See Stansbury,
721 F.3d at 89.
6
officers reasonably suspected that the women they approached were reluctant to speak up because
they were unsure that they were really police officers, or because of a language barrier.” Id.However, we need not discern the motivations of the victim in denying the touching because, under
the circumstances confronting the officers, neither the denial of touching by one alleged victim
nor the absence of any victim statement was sufficient to undermine the probable cause established
by the unrebutted aspects of the officers’ observations of Keyes, including those related to multiple
other women. The officers were permitted to rely on the “totality of the circumstances” in
determining probable cause, rather than the potentially limited vantage point of a particular
witness. As the Supreme Court recently noted, in describing the “totality of the circumstances”
analysis for probable cause determinations, “the whole is often greater than the sum of its parts—
especially when the parts are viewed in isolation.” Wesby, 138 S. Ct. at 588.
Finally, we also find unavailing Keyes’s focus on minor inconsistencies in the officers’
deposition testimony—given more than two years after his arrest—to attempt to create a disputed
material issue of fact. No reasonable juror could find that these alleged inconsistencies call into
question the officers’ core observations which supported their probable cause to arrest Keyes. See
Bernard, 25 F.3d at 103 (rejecting plaintiff’s argument that probable cause to arrest did not exist
because of alleged factual inconsistencies); see also Thorpe v. Duve, No. 20-3679-cv, 2022 WL
332804, at *3 (2d Cir. Feb. 4, 2022) (summary order) (“Variations in one’s testimony or with other
witnesses’ testimony do not mean that testimony is untrustworthy.” (citing Colon v. City of New
York, 60 N.Y.2d 78, 83 (1983))).
In sum, the district court did not err in concluding that summary judgment was warranted
on the false arrest claim because, notwithstanding certain factual disputes, the remaining
uncontroverted facts were sufficient to establish probable cause for his arrest.
7
II. Malicious Prosecution
Probable cause is also a complete defense to a Section 1983 claim for malicious
prosecution. Kee v. City of New York, 12 F.4th 150, 166 (2d Cir. 2021). For purposes of malicious
prosecution, probable cause is assessed in light of the facts known or reasonably believed by the
officers at the initiation of the prosecution, not the arrest. See Rothstein v. Carriere, 373 F.3d 275,
292 (2d Cir. 2004). However, if the officers had probable cause to arrest the plaintiff, a suspect,
there can be no claim for malicious prosecution unless facts emerge following the arrest showing
that the charges against the suspect are groundless. See Lowth v. Town of Cheektowaga, 82 F.3d
563, 571 (2d Cir. 1996) (“In order for probable cause to dissipate, the groundless nature of the
charges must be made apparent by the discovery of some intervening fact.”).
The district court granted summary judgment on the malicious prosecution claim because
“Keyes identifie[d] no evidence that would have established his innocence between the time of his
arrest and the time of his prosecution.” Special App’x at 9. On appeal, Keyes does not point to
any evidence in the record to contradict the district court’s conclusion nor does he even address
this issue. 5 In short, because of the absence of any intervening facts between Keyes’s arrest and
his prosecution that dissipated the existing probable cause, summary judgment on the malicious
prosecution claim was properly granted.
* * *
5
Instead, Keyes contests only the district court’s additional determination that the state court probable
cause hearing established a presumption of probable cause that Keyes failed to rebut. However, because
probable cause existed independent of any such presumption, we need not address this alternative ground
relied upon by the district court.
8
We have considered Keyes’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
9