New York’s Appellate Division Clarifies the Line between Negligent Investigation and Egregious Deviation from Police Procedures
Dec 21, 2015
The Appellate Division, Second Department, has sided with the City of New York and four former police officers (the “City”) in a case that stood on the line between a negligent police investigation and conduct that could be deemed an egregious deviation from police procedures. In Batten v. City of New York, the Second Department reversed the Kings County Supreme Court’s decision that denied summary judgment as to the plaintiff’s claim alleging malicious prosecution.
Under New York law, to succeed on a claim alleging malicious prosecution, a plaintiff must establish: (1) the initiation of a proceeding; (2) a favorable termination; (3) lack of probable cause for the initiation of the proceeding; and (4) malice. See Colon v. City of New York, 60 N.Y.2d 78, 82. With respect to the probable cause requirement, a Grand Jury indictment creates a rebuttable presumption of probable cause. See Colon, 60 N.Y.2d at 82. This presumption may be rebutted with evidence that the conduct of the police deviated from proper police procedures to such an extent as to demonstrate an intentional or reckless disregard for such procedures. See Lee v. City of Mount Vernon, 49 N.Y.2d 1041, 1043.
In Batten, plaintiff was identified in a photo array as one of the perpetrators in a 1983 Brooklyn armed robbery and homicide. Based on the eyewitness identification, Batten was arrested and charged with second degree murder. He was indicted by the Grand Jury and subsequently convicted of second degree murder.
After unsuccessful appeals to the Appellate Division and the Court of Appeals, Batten made several Freedom of Information Law (“FOIL”) requests to the Kings County District Attorney’s Office for police documents related to his prosecution. Eventually, Batten obtained several police reports he claimed neither he nor his attorney received during the prosecution. One of the police reports documented a call, after the indictment, from a confidential informant to one of the investigating officers that identified an employee of the store as possibly involved in the planning for the robbery or the robbery itself.
Based on this information, Batten petitioned the United States District Court for the Eastern District of New York for a writ of habeas corpus. Batten’s petition was granted in August 2003 and he was released from custody. Batten then commenced an action against the city alleging various civil rights claims, including a claim for malicious prosecution.
The city relied upon the Grand Jury’s indictment as evidence of probable cause to prosecute Batten. In opposition, Batten relied upon a report from the confidential informant and actions taken in response to that report as evidence of an egregious deviation from proper police procedures.
The Second Department held that the city established there was probable cause to arrest Batten based on the identification of the eyewitness, who observed the perpetrators during and immediately after the robbery/homicide. The fact that there may have been discrepancies between the eyewitness’s description and Batten’s appearance when he was arrested four days later did not negate probable cause. Thus, since the Grand Jury indicted Batten based on the eyewitness’s identification, the Second Department held that the city established a presumption of probable cause to arrest and prosecute Batten.
The court went on to find that Batten failed to rebut this presumption through evidence of an egregious deviation from proper police procedures. In its decision, the court went through many of the steps taken during the investigation of the robbery/homicide. Immediately after the robbery/homicide, the police canvassed the area for additional eyewitnesses but only located the one eyewitness who identified Batten in a photo array. Once identified, the police searched New York City and New York State Department of Corrections records to determine whether or not Batten was in prison at the time of the robbery/homicide.
The investigating officers spoke with Batten’s godfather, whom Batten claimed could provide an alibi for the time of the robbery/homicide, but determined that his godfather could only provide any alibi for after the crime. Criminal background checks were performed on all employees of the store where the crime occurred. Fingerprints recovered from the store were analyzed. Investigating officers interviewed a woman who left the store shortly before the crime occurred, another employee of the store, owners of other stores in the area and the security guard of the school where Batten’s godfather worked.
The court also noted that the police report documenting a telephone call from a confidential informant did not exonerate or exclude Batten as a suspect. Rather, this report merely supplied information regarding the other perpetrator in the store, or another potential individual involved in the crime. Further, the fact that the investigating officers turned an employee of the store whom the confidential informant may have identified to federal immigration authorities was not an egregious deviation from police procedures because there was insufficient evidence to detain this employee.
The Batten decision adds a degree of clarity to what type of police conduct will be actionable in a malicious prosecution lawsuit and what conduct will be categorized as mere negligent investigation, information that will be useful for municipalities when evaluating representation of their police officers, litigation strategy, and the settlement value of a particular case. Much of Batten’s value lies in the detailed analysis the Second Department undertook with respect to each step of the investigation. This analysis is critical in such cases, particularly where opposing counsel continually try to find fault with each step of an investigation. In the wake of this decision, it appears that, at least at the appellate level, courts are willing to conduct the necessary legal and factual analysis to resolve the tension in favor of the police investigators where appropriate.