Alberty v. Hunter

23-7564-cv
Alberty v. Hunter
United States Court of Appeals 1
for the Second Circuit 2
3
A UGUST TERM 2024 4
No. 23-7564-cv 5
6
7
WENDY ALBERTY , 8
Plaintiff-Appellant, 9
10
v. 11
12
R OBERT A. H UNTER , S ERGEANT S TEPHEN J. S AMSON, D ANIEL DEPTULA, 13
Defendants-Appellees. 14
15
16
A RGUED: NOVEMBER 22, 2024 17
D ECIDED: JULY 21, 2025 18
19
20
Before: L IVINGSTON, Chief Judge, JACOBS , and MENASHI, 21
Circuit Judges. 22
23
During a layover on an interstate bus trip, a passenger entered 24
the luggage compartment to retrieve her cellphone charger—only to 25
be locked in when the bus driver, Wendy Alberty, closed the 26
compartment door on her. The passenger called the police from the 27
luggage compartment, and the police rescued the passenger and then 28
arrested Alberty for reckless endangerment and breach of the peace. 29
A charge of unlawful restraint was later added. All charges were 30
eventually dropped, and Alberty filed this action against three police 31
officers for false arrest, malicious prosecution, and retaliatory 32
prosecution, all based on lack of probable cause. The district court 33

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2
dismissed the driver’s claims on summary judgment, holding that the 1
officers had probable cause to arrest the driver and arguable probable 2
cause to prosecute. 3
4
We affirm. The district court properly concluded that 5
Defendants had probable cause to arrest Alberty. As to the 6
remaining malicious and retaliatory prosecution claims, we affirm on 7
the alternative ground that Defendants had probable cause to 8
prosecute Alberty for reckless endangerment, breach of the peace, 9
and unlawful restraint. 10
AFFIRMED. 11
12
NATHANIEL B ABER , Aeton Law 13
Partners LLP, Middletown, 14
Connecticut, for Plaintiff- 15
Appellant. 16
17
JANELLE R. MEDEIROS , 18
Assistant Attorney General, for 19
William Tong, Attorney 20
General for the State of 21
Connecticut, for Defendants- 22
Appellees. 23

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3
D ENNIS JACOBS , Circuit Judge: 1
Wendy Alberty, a Peter Pan bus driver, sues three police 2
officers who arrested and charged her following an incident in which 3
she locked a passenger in a bus’s luggage compartment. After police 4
rescued the passenger, they arrested Alberty for reckless 5
endangerment and breach of the peace. During processing, the 6
police added a charge of unlawful restraint. 7
After all charges were dropped, Alberty filed this action against 8
the three police officers under 42 U.S.C. § 1983 and Connecticut state 9
law, alleging false arrest, malicious prosecution, and retaliatory 10
prosecution for her exercise of First Amendment rights. The United 11
States District Court for the District of Connecticut (Hall, J.) dismissed 12
her claims on summary judgment, holding that the officers had 13
probable cause to arrest Alberty and arguable probable cause to 14
prosecute her. 15
For the reasons that follow, we affirm. As the district court 16
held, the Defendants had probable cause to arrest Alberty based on 17

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4
the evidence available at the time of arrest. As to the malicious and 1
retaliatory prosecution claims, we affirm the dismissal on the 2
alternative ground that Defendants had probable cause to prosecute 3
Alberty for breach of the peace, reckless endangerment, and unlawful 4
restraint. 5
I 6
The Bus Stop Incident. On August 4, 2019, Alberty was 7
operating the first leg of a Peter Pan bus trip from Manhattan to 8
Boston, with a brief stop in Hartford to change drivers. At Hartford, 9
a passenger stepped off the bus and asked Alberty for permission to 10
retrieve a cellphone charger from her bag, which was inside one of 11
the luggage compartments under the bus. Alberty held the luggage 12
compartment door open for her. 13
An acquaintance soon approached Alberty and placed his arm 14
around her—blocking her view of the luggage compartment. The 15
two talked and laughed for several seconds. During this exchange, 16
and just a few feet away, the passenger climbed completely inside the 17

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5
luggage compartment. As Alberty’s acquaintance left, Alberty said, 1
“Ha! Enjoy the ride!” and shut the luggage compartment door, 2
locking the passenger inside. At this point, a second driver, Gary 3
Jeanbaptiste, took over, and Alberty re-boarded the bus as a 4
passenger. 5
After the bus left Hartford, the passenger called 911 from inside 6
the luggage compartment. She exclaimed, “I’m not okay, the bus 7
driver locked me under the bus.” “I’m afraid . . . I don’t know if she’s 8
ever going to let me out . . . please, I need help, no one knows where 9
I am.” The passenger added: “I’m so scared, please help!” 10
Defendant Trooper Hunter, on highway patrol, received notice 11
from Dispatch. After seeing the Peter Pan bus go by, Trooper 12
Hunter initiated a traffic stop and directed Jeanbaptiste to open the 13
luggage compartments. The passenger then emerged, and 14
explained that a woman, not Jeanbaptiste, locked her inside. 15
Jeanbaptise retrieved Alberty from the bus. The passenger 16
“immediately identified” Alberty as the person who had locked her 17

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6
under the bus, claiming, “[y]ou saw me, you laughed and shut the 1
door!” Alberty exclaimed that she didn’t know the passenger was 2
in the compartment, but the passenger retorted, “yes, you did, you 3
saw me!” 4
As Hunter began to investigate, Defendant Sergeant Samson 5
arrived on the scene. Samson reminded Hunter that the Hartford 6
Station likely had captured the incident on video. He directed 7
Hunter to ask another trooper to “find out about the video.” Hunter 8
relayed the request to Dispatch. 9
The officers took statements from Alberty, the passenger, and 10
Jeanbaptiste. 11
Alberty admitted that she had opened the luggage 12
compartment for the passenger but explained to Trooper Hunter that 13
she “didn’t know [the passenger] was in there. [The passenger] told 14
me that she was going to get something, [Jeanbaptiste] took over for 15
15 minutes, I came out and we [were] all on the bus.” Alberty 16
reiterated that she walked away for “ten or twelve minutes” when the 17

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7
passenger entered the compartment, then came back and shut the 1
door. But she admitted that, under Peter Pan’s policy, she was not 2
supposed to let passengers access the luggage compartment at the 3
Hartford station. 4
Jeanbaptiste stated that before leaving the Hartford stop, 5
Alberty “had already checked” the luggage compartment, and that 6
Alberty was “responsible for this bus,” and had to “make sure all the 7
compartments are closed.” He confirmed that it was Peter Pan 8
policy that drivers do “not let passengers into the bays.” and “usually 9
only handle baggage during loading and unloading times.” 10
The passenger reiterated her version of events. Alberty 11
“knew I was under there and . . . laughed and shut the door,” 12
intentionally locking her under the bus. The passenger explained 13
that the bus had left the Hartford station “[a]pproximately 5-6 14
minutes” after she was locked in the luggage compartment—not 15 15
minutes, as Alberty had claimed. The passenger also decided that 16
she wanted to press charges. 17

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8
Finding “no reason for [the passenger] to lie,” Trooper Hunter 1
and Sergeant Samson arrested Alberty on charges of reckless 2
endangerment and breach of the peace. When offered the 3
opportunity to give a custodial statement about the incident, Alberty 4
chose not to do so without the presence of a lawyer. 5
The Video Footage. Around that time, Trooper Gonzalez 6
arrived at the Hartford bus station to watch the surveillance footage. 7
He told Dispatch that the incident “honestly does look accidental.” 8
While the passenger “was inside looking for her bag, [Alberty] looked 9
away, she started talking to her friend. They start[ed] laughing, and 10
then she went back to the compartment, and then closed it all up and 11
just walked right back on the bus.” He concluded that “[i]t looks like 12
she either forgot or she just thought the person already . . . got the 13
luggage and left.” Only 21 seconds elapsed between the opening 14
and closing of the compartment. 15
Dispatch called Samson, who was still at the scene. Samson 16
learned that, based on the footage, Gonzalez thought the incident 17

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9
“appears to be accidental.” Dispatch gave Samson no other details, 1
except for noting that Trooper Gonzalez was “a new guy.” 2
The Police Station. While Hunter was processing Alberty, he 3
too received a phone call informing him that Gonzalez, “the new kid,” 4
looked at the footage and thought it “clearly looks accidental.” 5
Hunter acknowledged the information, but he continued to process 6
Alberty. 7
During Alberty’s processing, Sergeant Samson discussed the 8
arrest with his supervisor, Defendant Master Sergeant Deptula. 9
Samson and Deptula testified that they do not recall Samson 10
mentioning Trooper Gonzalez’s opinion about the video during their 11
discussion. After hearing Samson’s summary of the incident, 12
Deptula “asked [Samson] whether he felt [a charge of] unlawful 13
restraint would also apply.” Samson agreed and “relayed to 14
Trooper Hunter that the charge of [u]nlawful [r]estraint should be 15
added.” The record reflects no further involvement by Master 16
Sergeant Deptula. Trooper Hunter’s report to the State’s Attorney’s 17

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10
office included the unlawful restraint charge and advised that footage 1
of the incident existed. 2
On December 15, 2019, the charges against Alberty were 3
dismissed nolle prosequi. Until this litigation, neither Hunter nor 4
Samson reviewed the station footage. 5
II 6
Alberty’s amended complaint alleged § 1983 violations against 7
Trooper Hunter, Sergeant Samson, and Master Sergeant Deptula. 8
The district court granted the Defendants’ motion for summary 9
judgment, as follows: 10
• The false arrest claim was dismissed on the ground that 11
probable cause existed at the time of arrest for reckless 12
endangerment and breach of the peace. 13
• The malicious prosecution claim was dismissed on the 14
ground that arguable probable cause existed for all three 15
charges, notwithstanding the bus station video. 16

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11
• The retaliatory prosecution claim—premised on the 1
assertion that the unlawful restraint charge was added 2
because Alberty refused to make a statement to the police 3
without her lawyer—was similarly dismissed on the ground 4
of arguable probable cause. 5
III 6
This Court reviews “a district court’s grant of summary 7
judgment de novo.” Kravitz v. Purcell, 87 F.4th 111, 118 (2d Cir. 2023). 8
“Summary judgment is proper only when, construing the evidence in 9
the light most favorable to the non-movant, ‘there is no genuine 10
dispute as to any material fact and the movant is entitled to judgment 11
as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 12
2011) (quoting Fed. R. Civ. P. 56(a)). 13
The district court’s grant of summary judgment to Defendants 14
rested on a finding of probable cause as to the false arrest claims. But 15
as to the claims of malicious prosecution and retaliatory prosecution, 16
the court found no more than arguable probable cause—because by 17

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12
then, the police officers (other than Deptula) knew of the video’s 1
existence and Trooper Gonzalez’s opinion that the closing of the door 2
appeared to be accidental. We agree with the first conclusion but 3
disagree with the second to the extent that the district court thought 4
probable cause had dissipated. For reasons explained below, we 5
conclude that Defendants at all relevant times had probable cause to 6
arrest and prosecute Alberty for breach of the peace, reckless 7
endangerment, and unlawful restraint; and Trooper Gonzalez’s 8
opinion that the incident appeared accidental was insufficiently 9
exculpatory to dissipate probable cause. 10
A. False Arrest 11
Alberty argues on appeal that Defendants lacked probable 12
cause to arrest her for reckless endangerment and breach of the peace 13
due to their “failure to investigate and/or consider basic evidence 14
available to them” at the time of arrest, i.e., the video. 15
Courts should “generally look[] to the law of the state in which 16
the arrest occurred” to determine the elements of a § 1983 claim for 17

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13
false arrest. See Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004) 1
(applying Connecticut false arrest law). A “false arrest” is “the 2
unlawful restraint by one person of the physical liberty of another.” 3
Russo v. City of Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007) (quoting 4
Outlaw v. City of Meriden, 43 Conn. App. 387, 392 (1996)). To prevail 5
on a false arrest claim under Connecticut law, a plaintiff must 6
establish that “(1) the defendant intentionally arrested [the plaintiff] 7
or had [her] arrested; (2) the plaintiff was aware of the arrest; (3) there 8
was no consent to the arrest; and (4) the arrest was not supported by 9
probable cause.” Sharnick v. D'Archangelo, 935 F. Supp. 2d 436, 443 10
(D. Conn. 2013) (quoting Weinstock v. Wilk, 296 F. Supp. 2d 241, 246 11
(D. Conn. 2003)). Accordingly, “a false arrest claim cannot lie when 12
the challenged arrest was supported by probable cause.” Russo, 479 13
F.3d at 203. 14
Under “both federal and Connecticut law, probable cause to 15
arrest exists when police officers have knowledge or reasonably 16
trustworthy information of facts and circumstances that are sufficient 17

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14
to warrant a person of reasonable caution in the belief that the person 1
to be arrested has committed or is committing a crime.” Zalaski v. 2
City of Hartford, 723 F.3d 382, 389–90 (2d Cir. 2013) (internal quotation 3
marks and citation omitted). Probable cause is determined by 4
“examin[ing] the events leading up to the arrest, and then decid[ing] 5
whether these historical facts, viewed from the standpoint of an 6
objectively reasonable police officer, amount to probable cause.” 7
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks 8
omitted). “[W]e consider the totality of the circumstances at the time 9
of the challenged arrest[].” Zalaski, 723 F.3d at 393. Probable cause 10
is a “fluid” standard that does not demand “hard certainties” or 11
“mechanistic inquiries.” Id. at 389 (first quoting Illinois v. Gates, 462 12
U.S. 213, 239 (1983), then quoting Florida v. Harris, 568 U.S. 237, 243– 13
44 (2013)). “Review for probable cause should encompass ‘plainly 14
exculpatory evidence’ alongside inculpatory evidence to ensure the 15
court has a full sense of the evidence that led the officer to believe that 16
there was probable cause.” Stansbury v. Wertman, 721 F.3d 84, 93 (2d 17
Cir. 2013) (quoting Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012)). 18

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15
Under Connecticut law, “[a] person is guilty of reckless 1
endangerment in the second degree when he recklessly engages in 2
conduct which creates a risk of physical injury to another person.” 3
Conn. Gen. Stat. § 53a-64 (emphasis added). Similarly, a person is 4
guilty of breach of the peace in the second degree when a person, 5
“with intent to cause inconvenience, annoyance or alarm, or recklessly 6
creating a risk thereof, . . . [inter alia,] creates a public and hazardous 7
or physically offensive condition by any act which such person is not 8
licensed or privileged to do.” Id. § 53a-181 (emphasis added). One 9
acts “recklessly” when one “is aware of and consciously disregards a 10
substantial and unjustifiable risk.” See id. § 53a-3(13). “The risk must 11
be of such nature and degree that disregarding it constitutes a gross 12
deviation from the standard of conduct that a reasonable person 13
would observe in the situation.” Id. 14
When a crime entails mens rea, the police are afforded 15
substantial latitude in determining probable cause. See Zalaski, 723 16
F.3d at 393. “Finely tuned standards such as proof beyond a 17

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16
reasonable doubt or by a preponderance of the evidence . . . have no 1
place in the probable cause decision”; rather, all that is required is 2
“the kind of ‘fair probability’ on which ‘reasonable and prudent 3
people, not legal technicians, act.’” Harris, 568 U.S. at 243–44 4
(alterations omitted) (quoting Gates, 462 U.S. at 231, 235, 238); see also 5
id. at 244 (describing probable cause as “practical,” “common- 6
sensical,” “all-things-considered” standard for assessing probabilities 7
in particular factual contexts). 8
Trooper Hunter and Sargeant Samson had probable cause to 9
arrest Alberty for reckless endangerment and breach of the peace. 10
There is no genuine dispute about the facts known to Hunter and 11
Samson at the time of Alberty’s arrest. Both were aware of the 911 12
call in which the victim stated, inter alia, “I’m not okay, the bus driver 13
locked me under the bus,” and “I’m afraid . . . I don’t know if she’s 14
ever going to let me out.” The passenger’s predicament was 15
confirmed when the bus was pulled over, the luggage compartment 16
was opened, and the passenger came out. She promptly identified 17

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17
Alberty, and told Trooper Hunter that Alberty had seen her enter the 1
compartment and had “laughed and shut the door.” Defendants 2
had no reason to doubt the passenger’s identification, as Alberty 3
herself confirmed that she had opened the luggage compartment for 4
the passenger and secured it before the bus left the station. This 5
identification alone would be enough to provide Defendants with 6
probable cause to arrest. See Stansbury, 721 F.3d at 90 (“[A]bsent 7
circumstances that raise doubts as to the victim’s veracity, a victim’s 8
identification is typically sufficient to provide probable cause.” 9
(internal quotation marks omitted)). 10
Probable cause was reinforced when Trooper Hunter took a 11
statement from Jeanbaptiste, who said that Peter Pan company policy 12
forbids drivers from letting passengers into the compartments, and 13
that it was Alberty’s responsibility to secure the compartments before 14
the bus departed. This information—taken together with the 15
passenger’s account of the incident, her emergence from the luggage 16
compartment, and her identification of Alberty—easily established a 17

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18
“fair probability” that Alberty knew she had locked the passenger in 1
the luggage compartment or “consciously disregard[ed] a substantial 2
and unjustifiable risk” that she had done so. Conn. Gen. Stat. § 53a- 3
3(13). And it is self-evident that locking someone in the luggage 4
compartment of a moving bus creates a risk of physical injury. There 5
was therefore probable cause to believe that Alberty “recklessly 6
engage[d] in conduct which create[d] a risk of physical injury to 7
another person” by opening the compartment and enabling the 8
passenger to enter, and closing it without checking to see that the 9
passenger was out. Id. § 53a-64. 10
For largely the same reasons, the Defendants had probable 11
cause to arrest Alberty for breach of the peace. At the time of the 12
arrest, the Defendants had sufficient information to reasonably 13
conclude that Alberty “recklessly create[ed]” a “public and 14
hazardous or physically offensive condition” that she was “not 15
licensed or privileged to do.” Conn. Gen. Stat. § 53a-181. 16
Alberty argues that probable cause dissipated by the 17

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Defendants’ failure to investigate the video when they became aware 1
of it. We disagree. Although “an officer may not disregard plainly 2
exculpatory evidence” in determining probable cause, see Panetta v. 3
Crowley, 460 F.3d 388, 395 (2d Cir. 2006), officers are “not required to 4
explore and eliminate every theoretically plausible claim of innocence 5
before making an arrest,” Ricciutti v. N.Y. City Trans. Auth., 124 F.3d 6
123, 128 (2d Cir. 1997); see also Triolo v. Nassau County, 24 F.4th 98, 107 7
(2d Cir. 2022) (stating that an officer “had no duty to seek . . . out” 8
plainly exculpatory evidence). Plainly exculpatory evidence is 9
evidence showing “a person cannot as a matter of law be guilty of a 10
crime.” Garcia v. Does, 764 F.3d 170, 184 (2d Cir. 2014). 11
Neither Trooper Hunter nor Sergeant Samson was aware of 12
what the video showed until after Alberty was arrested, and their 13
awareness that it existed pre-arrest was not “plainly exculpatory.”1 14
1 Alberty disputes that Defendants were unaware of the video’s
contents but cites no evidence in the record to contradict Sergeant
Samson’s testimony that he became aware of the video’s contents at
the scene only after Alberty had already been arrested. See Samson
Decl. ¶ 16 (“After Ms. Alberty had been placed in custody by Trooper

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Nor did they have a duty to further investigate the video before 1
arresting Alberty, such as by waiting to arrest Alberty until they 2
learned what the video showed.2 “[P]robable cause does not require 3
an officer to be certain that subsequent prosecution of the arrestee will 4
be successful. It is therefore of no consequence that a more thorough 5
or more probing investigation might have cast doubt upon the 6
Hunter and en route to Troop C, it was relayed to me that Trooper
Gonzalez . . . viewed video of the incident . . . [and] opined that it
appeared accidental.”).
2 Alberty relies on a Tenth Circuit case for the proposition that “when
a videotape of the conduct at issue is both known and readily
accessible to an officer investigating an alleged crime, the officer must
view the videotape so as to avoid improperly delegating the officer’s
duty to determine probable cause.” Baptiste v. J.C. Penney Co.,
147 F.3d 1252, 1257 n.8 (10th Cir. 1998). But the Tenth Circuit has
recently described this statement as “dictum” and explained that
Bapiste turned on the specific facts of that case. See Craft v. White,
840 F. App’x 372, 376 (10th Cir. 2021). Indeed, the video here was
not readily accessible at the time of arrest—Trooper Hunter and
Sergeant Samson would have had to travel to the Hartford station to
view it. And even if the video’s existence was known to Hunter and
Samson, we have never adopted a rule that officers must watch a
video known to them before arresting a suspect. See Walston v. City
of New York, 289 F. Supp. 3d 398, 414 (E.D.N.Y. 2018) (“[C]ourts in this
Circuit have expressly held that police do not have to review
surveillance video in order to establish probable cause.”), aff’d 754 F.
App’x 65 (2d Cir. 2019). We do not do so here either.

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21
situation.” Fabrikant, 691 F.3d at 214 (quoting Krause v. Bennett, 887 1
F.2d 362, 371 (2d Cir. 1989)). In any event, the video did not show 2
plainly exculpatory evidence, see infra p. 26–27, nor should the police 3
at the scene have expected it would do so. For these reasons, we 4
affirm the dismissal of Alberty’s false arrest claim. 5
B. Malicious Prosecution 6
Alberty argues on appeal that Defendants had neither probable 7
cause nor (as the district court found) arguable probable cause to 8
prosecute her for breach of the peace, reckless endangerment, and 9
unlawful restraint without first investigating the bus station video 10
that was available to them. We disagree. 11
“In order to prevail on a § 1983 claim against a state actor for 12
malicious prosecution, a plaintiff must . . . establish the elements of a 13
malicious prosecution claim under state law.” Manganiello v. City of 14
New York, 612 F.3d 149, 160–61 (2d Cir. 2010). A plaintiff in an action 15
alleging malicious prosecution under Connecticut law must show 16
“(1) the defendant initiated or continued criminal proceedings against 17

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22
the plaintiff,” (2) “the criminal proceeding terminated in favor of the 1
plaintiff,” (3) “the defendant acted without probable cause,” and 2
(4) “the defendant acted with malice.”3 Roberts v. Babkiewicz, 582 3
F.3d 418, 420 (2d Cir. 2009) (per curiam) (quoting McHale v. W.B.S. 4
Corp., 446 A.2d 815, 817 (Conn. 1982)). The “existence of probable 5
cause is a complete defense to a malicious prosecution claim.” 6
Cornelio v. Connecticut, 32 F.4th 160, 178–79 (2d Cir. 2022). And as 7
described previously, police are afforded substantial latitude in 8
determining probable cause in the context of mens rea crimes. See 9
Zalaski, 723 F.3d at 393. 10
“[E]ven when probable cause is present at the time of arrest, 11
evidence could later surface which would eliminate that probable 12
cause. In order for probable cause to dissipate, the groundless 13
nature of the charge must be made apparent by the discovery of some 14
intervening fact.” Kinzer v. Jackson, 316 F.3d 139, 144 (2d Cir. 2003) 15
3 The parties do not dispute that the first two elements of malicious
prosecution are established.

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23
(quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996), 1
as amended (May 21, 1996)). That is what Alberty’s malicious 2
prosecution claim contends. But, for reasons stated, Defendants had 3
probable cause for reckless endangerment and breach of the peace, see 4
supra pp. 17–21; and between the decision to arrest and the decision 5
to prosecute, the only intervening datum that came available to 6
Defendants was Trooper Gonzalez’s opinion that the incident looked 7
accidental in the bus station video. This intervening evidence alone 8
did not dissipate probable cause for any of the charges. Id. 9
Reckless Endangerment and Breach of the Peace. As to the 10
charges of reckless endangerment and breach of the peace—for which 11
a showing of recklessness is sufficient—Trooper Hunter and Sergeant 12
Samson had enough evidence to conclude at a minimum that Alberty 13
acted recklessly. See supra pp. 17–21. The opinion of Trooper 14
Gonzalez confirmed that the event happened. And his claim that it 15
“appear[ed] accidental” is not inconsistent with recklessness, 16
especially given Jeanbaptiste’s statement suggesting that Alberty 17

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24
violated Peter Pan’s safety standards. See State v. Edwards, 214 Conn. 1
57, 65 (1990) (“To assert that something is an accident does not resolve 2
the fact-bound question of whether that ‘accident’ was the result of 3
criminally reckless or negligent conduct.”). 4
Unlawful Restraint. Unlawful restraint “requires proof not 5
only that the defendant actually restricted the complainant's 6
movements in such a manner as to interfere substantially with her 7
liberty, without her consent, but that [s]he did so intentionally, that 8
is, with the ‘conscious objective’ of causing that result.” State v. Tony 9
O., 211 Conn. App. 496, 516 (2022) (citing Conn. Gen. Stat. § 53a-3(11)). 10
At first glance, Gonzales’s opinion—that the event “appear[ed] 11
accidental”—undermines a finding of intentional misconduct. But 12
probable cause is not thereby dispelled. Rather, the strength of the 13
exculpatory evidence must be weighed against the totality of 14
evidence supporting probable cause. Stansbury, 721 F.3d at 94; 15
Harris, 568 U.S. at 244. There was sufficient evidence—including the 16
statement that Alberty laughed as she locked the passenger away 17

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25
after she had opened the luggage compartment, in violation of Peter 1
Pan policy—to conclude that Alberty intended to do what the video 2
confirmed she did. Trooper Gonzalez’s opinion that the incident 3
“appear[ed] accidental” is not “plainly exculpatory” evidence such as 4
to make apparent the “groundless nature” of adding the unlawful 5
restraint charge. Lowth, 82 F.3d at 571. This opinion, by a single 6
inexperienced officer, was based on a snippet of video without sound. 7
And because Gonzalez’s opinion was transmitted to Defendants via 8
intermediaries, Defendants did not have the detailed observations 9
Gonzalez made to the intermediaries. See Bhatia v. Debek, 287 Conn. 10
397, 410 (2008) (clarifying that probable cause to prosecute is based on 11
an officer’s “knowledge of facts” (emphasis added) (citation omitted)). 12
Defendants therefore reasonably concluded there was a “fair 13
probability” that Alberty intentionally locked the passenger in the 14
luggage compartment. Id. (quoting Gates, 462 U.S. at 239)). 15
Nor is the video itself “plainly exculpatory.” The video shows 16
no more than Alberty (i) opening the luggage compartment door for 17

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26
the passenger, (ii) laughing with another individual, and (iii) closing 1
the door with the passenger inside, all within a matter of seconds. In 2
fact, the video refutes Alberty’s statement that she walked away for 3
“ten or twelve minutes” before closing the luggage compartment and 4
confirms the passenger’s account in two ways. First, the video 5
shows that, in quick succession, Alberty opened the luggage 6
compartment, laughed, and locked her inside. Second, the video 7
shows that the bus departed only a few minutes after Alberty locked 8
the passenger in the luggage compartment. While the overall 9
impression of the video may be exculpatory, it also suggests that the 10
passenger’s account was the more reliable of the two. Thus, 11
Defendants Samson and Hunter at all times possessed a reasonable 12
basis for concluding that Alberty unlawfully restrained the 13
passenger. 14
As to the third Defendant, Master Sergeant Deptula, the 15
evidence is undisputed that he had no knowledge of the video’s 16
contents or of Trooper Gonzalez’s opinion that the incident appeared 17

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27
accidental. Alberty points to no record evidence that Deptula was 1
made aware of Trooper Gonzalez’s opinion before he recommended 2
adding the unlawful restraint charge. Based on the information 3
available to him, Deptula reasonably believed that probable cause 4
existed to charge Alberty with unlawful restraint. 5
Because Defendants had probable cause to prosecute Alberty 6
for all three charges—despite not having examined the Hartford 7
station video—we affirm the judgment of the district court as to the 8
malicious prosecution claims. 9
C. Retaliatory Prosecution 10
Alberty alleges that Defendants added the unlawful restraint 11
charge because she exercised her constitutional right to make no 12
formal statement without the presence of a lawyer. 13
Retaliatory prosecution is a species of First Amendment 14
retaliation claims. See Hartman v. Moore, 547 U.S. 250, 256 (2006). 15
To survive a motion for summary judgment in the context of First 16

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Amendment retaliation, including retaliatory prosecution, a plaintiff 1
must proffer evidence to show that “(1) he has a right protected by 2
the First Amendment; (2) the defendant’s actions were motivated or 3
substantially caused by his exercise of that right; and (3) the 4
defendant’s actions caused him some injury.” Dorsett v. County of 5
Nassau, 732 F.3d 157, 160 (2d Cir. 2013); see also Curley v. Village of 6
Suffern, 268 F.3d 65, 73 (2d Cir. 2001). As is the case with malicious 7
prosecution, a finding of probable cause will defeat a claim of 8
retaliatory prosecution. 4 See Hartman, 547 U.S. at 265; see also 9
Mangino v. Incorporated Village of Patchogue, 808 F.3d 951, 956 (2d Cir. 10
2015). 11
As explained above, probable cause existed to charge Alberty 12
4 The Supreme Court has recognized an exception to this rule in the
context of retaliatory arrest claims when a plaintiff produces
“objective evidence that he was arrested when otherwise similarly
situated individuals not engaged in the same sort of protected speech
had not been.” Nieves v. Bartlett, 587 U.S. 391, 407 (2019). This is a
“slim” exception, Gonzalez v. Trevino, 602 U.S. 653, 658 (2024), that
does not apply to Alberty’s claim.

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with unlawful restraint and no “plainly exculpatory” evidence 1
dissipated probable cause. See supra pp. 25–28. Alberty, therefore 2
cannot make out a case for retaliatory prosecution, notwithstanding 3
her exercise of constitutional rights. 4
CONCLUSION 5
We have considered all of Alberty’s remaining arguments and 6
find them to be without merit. 5 Accordingly, Defendants had 7
probable cause at all relevant times to arrest and charge Alberty for 8
breach of the peace, reckless endangerment, and unlawful restraint. 9
The judgment is AFFIRMED. 10
5 Alberty’s brief gives no more than perfunctory treatment to a
claim of unreasonable search and seizure. Issues not sufficiently
argued in briefs are considered abandoned. See Gerstenbluth v. Credit
Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013).

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