Dufort v. City of New York, et al. 1 In the

16‐1715‐cv
Dufort v. City of New York, et al.
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2016 7
8
A RGUED: MAY 3, 2017 9
D ECIDED: O CTOBER 27, 2017 10
11
No. 16‐1715‐cv 12
13
R YAN D UFORT, 14
Plaintiff‐Appellant, 15
16
v. 17
18
C ITY OF NEW Y ORK, JOSEPH MAROTTA, JAE S HIM , THOMAS C ONFORTI, 19
WILLIAM SCHMITTGALL, and JOHN and JANE D OES 1 through 10, 20
Defendants‐Appellees, 21
22
R ICHARD A. B ROWN, PATRICK O’C ONNOR , and MICHAEL VOZZO , 23
Defendants.1 24
________ 25
26
Appeal from the United States District Court 27
for the Eastern District of New York. 28
No. 12 Civ. 2283 – Steven M. Gold, Magistrate Judge. 29
________ 30
31
1 The clerk of court is directed to amend the opinion to match the
caption above.

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2 No. 16‐1715‐cv
Before: WALKER , L IVINGSTON, and L YNCH , Circuit Judges. 1
________ 2
3
Plaintiff‐appellant Ryan Dufort appeals from a memorandum 4
and order of the United States District Court for the Eastern District 5
of New York (Steven M. Gold, M.J.) granting summary judgment to 6
the defendants, the City of New York and New York City police 7
officers Joseph Marotta, Jae Shim, Thomas Conforti, and William 8
Schmittgall (collectively, “Defendants”), on Dufort’s claims under 42 9
U.S.C. § 1983 and the Fourth and Fifth Amendments for false arrest, 10
malicious prosecution, and violation of due process. Dufort was 11
arrested and charged in connection with a 2006 bar brawl that left 12
one victim dead and another severely injured, but was ultimately 13
acquitted by a jury of any criminal wrongdoing. 14
The district court concluded that (1) Dufort’s false arrest 15
claims failed because his arrest was supported by probable cause; (2) 16
his malicious prosecution claims failed, both because his prosecution 17
was supported by probable cause, and the chain of causation 18
between the arrest and the ultimate prosecution was broken by the 19
District Attorney’s decision to pursue charges and the grand jury’s 20
decision to issue an indictment; and (3) his due process claims, 21
which were premised on Dufort’s assertion that the Defendants 22
intentionally suppressed or distorted exculpatory evidence at trial, 23

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3 No. 16‐1715‐cv
failed as a matter of law because the allegedly suppressed evidence 1
was elicited at trial. 2
We conclude that the district court’s grant of summary 3
judgment as to Dufort’s false arrest and malicious prosecution 4
claims was premature, because disputed questions of material fact 5
remain regarding key aspects of the criminal investigation and 6
subsequent prosecution. We further conclude that those same 7
questions of material fact preclude a grant of qualified immunity at 8
the summary judgment stage. We agree with the district court, 9
however, that Dufort’s due process claims fail as a matter of law. We 10
therefore AFFIRM in part and VACATE and REMAND in part the 11
judgment of the district court. 12
________ 13
14
K AYLA C. B ENSING (Edwin G. Schallert, on the 15
brief), Debevoise & Plimpton LLP, New York, NY, 16
for Plaintiff‐Appellant. 17
K ATHY C. PARK, Assistant Corporation Counsel 18
(Fay Ng, on the brief) for Zachary W. Carter, 19
Corporation Counsel of the City of New York, 20
New York, NY, for Defendants‐Appellees. 21
________ 22
23
JOHN M. WALKER , JR ., Circuit Judge: 24
Plaintiff‐appellant Ryan Dufort appeals from a memorandum 25
and order of the United States District Court for the Eastern District 26

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4 No. 16‐1715‐cv
of New York (Steven M. Gold, M.J.)2 granting summary judgment to 1
the defendants, the City of New York and New York City police 2
officers Joseph Marotta, Jae Shim, Thomas Conforti, and William 3
Schmittgall (collectively, “Defendants”), on Dufort’s claims under 42 4
U.S.C. § 1983 and the Fourth and Fifth Amendments for false arrest, 5
malicious prosecution, and violation of due process. Dufort was 6
arrested and charged in connection with a 2006 bar brawl that left 7
one victim dead and another severely injured, but was ultimately 8
acquitted by a jury of any criminal wrongdoing. 9
The district court concluded that (1) Dufort’s false arrest 10
claims failed because his arrest was supported by probable cause; (2) 11
his malicious prosecution claims failed, both because his prosecution 12
was supported by probable cause, and the chain of causation 13
between the arrest and the ultimate prosecution was broken by the 14
District Attorney’s decision to pursue charges and the grand jury’s 15
decision to issue an indictment; and (3) his due process claims, 16
which were premised on Dufort’s assertion that the Defendants 17
intentionally suppressed or distorted exculpatory evidence at trial, 18
failed as a matter of law because the allegedly suppressed evidence 19
was elicited at trial. 20
2 The parties consented to have the summary judgment motion
adjudicated by a magistrate judge.

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5 No. 16‐1715‐cv
We conclude that the district court’s grant of summary 1
judgment as to Dufort’s false arrest and malicious prosecution 2
claims was premature, because disputed questions of material fact 3
remain regarding key aspects of the criminal investigation and 4
subsequent prosecution. We further conclude that those same 5
questions of material fact preclude a grant of qualified immunity at 6
the summary judgment stage. We agree with the district court, 7
however, that Dufort’s due process claims fail as a matter of law. We 8
therefore AFFIRM in part and VACATE and REMAND in part the 9
judgment of the district court. 10
BACKGROUND 11
Dufort’s suit stems from his arrest and prosecution in New York 12
state court on charges of murder in the second degree and 13
manslaughter in the first degree that resulted in his acquittal by a 14
jury. On this appeal, we take the facts, most of which are not in 15
dispute, in the light most favorable to the plaintiff. See Taggart v. 16
Time Inc., 924 F.2d 43, 46 (2d Cir. 1991). 17
I. The Attack 18
The story of this case began when, on October 7, 2006, Dufort 19
and four friends—Christopher Baez, Sebastian Yoon, Jeffrey Shih, 20
and John Bae—went to the Pastel Karaoke bar in Queens, New York. 21
Dufort, who was fifteen years old at the time, was wearing a 22

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6 No. 16‐1715‐cv
maroon, zip‐up, hooded sweatshirt with a white “American Eagle” 1
logo on it. Earlier in the evening, Dufort and his four companions 2
had gone to a nearby construction site to gather pieces of pipe in 3
order to defend themselves “just in case” an altercation occurred. 4
Surveillance video shows Dufort entering Pastel Karaoke shortly 5
after midnight with a one‐and‐a‐half‐foot pipe concealed in his 6
sweatshirt. When they arrived at the club, the five friends met up 7
with a larger group of about twenty students from Bayside High 8
School, some of whom were affiliated with a local gang known as 9
the “Ghost Shadows.” This group spent most of the night in some of 10
the club’s private karaoke rooms. 11
At approximately 3:00 AM on the morning of October 8, a 12
separate group of teenagers—Jung Hwa Lee, Hwa Young Park, 13
Mink‐ki Shin, and In Hee Yoo—arrived at Pastel Karaoke. At 3:50 14
AM, as this group attempted to leave, Lee and Shin were attacked in 15
the central area of the bar. During the altercation, Sebastian Yoon 16
entered a private room occupied by Dufort and his friends and 17
informed them that a fight had broken out. Some of Dufort’s friends 18
ran out to participate in the fight. Dufort also left the private room 19
when the fight began, and surveillance footage shows him walking 20
down a corridor holding his length of pipe. There is no surveillance 21
footage, however, of the attack itself. Dufort claims that when he 22
entered the bar area he witnessed a group of ten to twenty men 23

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7 No. 16‐1715‐cv
assaulting the victims, and that he stepped over either Lee or Shin, 1
who was lying on the ground, in order to leave the bar. Dufort 2
maintains that he never participated in the fight, and that he never 3
used physical force against either victim. Surveillance footage shows 4
Dufort leaving the bar with a group of other young men, some of 5
whom were holding bats. One other young man in a red, button‐ 6
down shirt, who is holding a bat, is seen leaving the building 7
moments after Dufort. 8
9
II. The Criminal Investigation 10
Lee and Shin were rushed to Flushing Hospital, where Lee 11
was pronounced dead. Shin survived, but sustained a severe head 12
injury that required nine staples to close. Hwa Young Park, who had 13
witnessed part of the attack, accompanied the victims to the 14
hospital, and was interviewed there by police at approximately 5:30 15
AM. Park then accompanied the police to the 109th Precinct, where 16
she spoke with Detectives Joseph Marotta and Jae Shim. At the 17
police station, Detective Marotta showed Park surveillance video 18
and still images from the bar and asked her if she could identify 19
various individuals appearing in the footage, including Dufort, as 20
Lee and Shin’s assailants. Park replied that one of the attackers, 21
whom she had only seen from behind, was wearing a red shirt that 22
was similar in color to Dufort’s sweatshirt. However, she stated that 23

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8 No. 16‐1715‐cv
she did not recognize Dufort’s face, or any other distinguishing 1
characteristics, and that she could not see whether the jacket had any 2
logo or other insignia on it. She could only confirm that she had seen 3
a person wearing a similar colored shirt participate in the attack, and 4
that she had only seen this person from behind. In a deviation from 5
normal police procedure, Detectives Marotta and Shim did not 6
contemporaneously document Park’s statements to them in a 7
“Complaint—Follow Up Informational Report,” or “DD5” form. 8
Two other individuals who had been at Pastel Karaoke that 9
night—David Han and Eric Kim—were also questioned by Marotta. 10
Both confirmed that Dufort could be seen in the surveillance 11
footage, but neither had seen him participate in the brawl. Id. At 12
some point after the attack, police also spoke with one of Dufort’s 13
friends, Tom Yoon, who stated that Dufort had previously claimed 14
to be a member of the “Ghost Shadows” gang, and that he had tried 15
to recruit Yoon. 16
Three days after the attack, on October 11, 2006, police 17
arrested3 Dufort and brought him to the precinct, where Detectives 18
Marotta and William Schmittgall interviewed him in the presence of 19
3 Defendants’ brief suggests that there may be some question about
whether the arrest about which Dufort complains occurred on October 11
or later in the investigation. See Appellees’ Br. at 28–29. Dufort assumes
that October 11 is the relevant date, and, drawing all reasonable inferences
in his favor, there is no indication that he was not formally taken into
custody at that time.

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9 No. 16‐1715‐cv
his parents. Dufort told the detectives that he had been at Pastel 1
Karaoke the night of the attack, but that he did not participate in the 2
brawl. Later that evening, the detectives had Dufort participate in a 3
lineup. During the lineup, Dufort was wearing a maroon sweatshirt 4
that was similar or identical to the one he had worn on the night of 5
the attack. No other participant in the lineup was wearing a red 6
shirt. Park and five other witnesses were asked if they could identify 7
Dufort as one of the assailants. Park was the only witness to identify 8
Dufort as a person involved in the attack. At trial, Park admitted 9
that her identification of Dufort at the lineup was based solely on the 10
fact that Dufort was wearing a sweatshirt similar in color to the shirt 11
or jacket worn by one of Lee and Shin’s attackers.4 Dufort’s attorney, 12
William F. Mackey, Jr., who accompanied him to the lineup, 13
submitted an affidavit stating, among other things, that, while they 14
were at the precinct, an unidentified detective told him that the 15
police knew Dufort was not involved in the attack but wanted him 16
to be a witness against other individuals who were involved. 17
4 Park testified at a 2014 deposition that she was able to distinguish
another red‐shirted man, shown on the surveillance video leaving the bar
shortly after Dufort, from the assailant because that man had “spiky hair”
(which Dufort did not). As we discuss below, there are reasons to doubt
the reliability of that assertion; in any event, there is no indication in the
record that Park made any claim that she could distinguish Dufort from
others wearing similar clothing at the time of her lineup identification.

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10 No. 16‐1715‐cv
Based on the surveillance video from Pastel Karaoke, and 1
Park’s identification of Dufort’s jacket, on October 13, 2006, 2
Detective Marotta swore to a criminal complaint charging Dufort 3
with second‐degree murder, first‐degree manslaughter, first‐degree 4
gang assault, and second‐degree assault. 5
6
III. The Criminal Prosecution 7
In early 2007, Assistant District Attorneys Andrea Eckhardt 8
and Michael Vozzo presented evidence to a grand jury seeking the 9
indictment of Dufort and six other defendants in connection with 10
the attack on Lee and Shin. Park’s lineup identification was the only 11
grand jury evidence directly identifying Dufort as one of the 12
assailants. Both Park and Detective Marotta, who also testified 13
regarding the lineup, indicated to the grand jury that Park had 14
identified Dufort as an assailant. Neither revealed to the grand jury 15
that the identification was based only on the color of his sweatshirt 16
nor that at least one other male seen leaving Pastel Karaoke shortly 17
after the attack wore a similarly colored shirt.5 The parties have 18
5 The entirety of Detective Marotta’s grand jury testimony as to Dufort is as
follows:
Q. [By ADA Eckhardt] . . . Turning your attention first to the date of October
12th of 2006, at approximately 6:45pm, at the 109 Precinct. Did you have occasion to
conduct a lineup on that date?
A. Yes, we conducted two lineups, yes.
Q. Turning your attention to the first lineup you conducted at eighteen forty‐
five hours. Was that the lineup of Ryan Dufort?

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11 No. 16‐1715‐cv
introduced conflicting evidence regarding whether ADAs Eckhardt 1
and Vozzo were aware that Park’s identification was based soley on 2
the color of Dufort’s clothing before they initiated the prosecution 3
against him. Jonathan Putt, another person who was present at 4
Pastel Kareoke on the night of the attack, provided testimony to the 5
grand jury placing Dufort on the scene with a pipe. Specifically, Putt 6
testified that he was in a private room with Dufort and others when 7
Sebastian Yoon entered the room and announced that a fight had 8
broken out; that Dufort had followed the others to the site of the 9
A. I believe it was.
Q. And did that lineup consist of six individuals holding numbers?
A. Yes.
Q. And was that lineup viewed by Miss Park?
A. Yes.
Q. Can you tell us what position Ryan Dufort occupied in the lineup at the time
it was viewed by Miss Park?
A. I, I don’t have the position.
Q. Would your lineup sheet refresh your recollection?
A. Yes.
Q. Please tell us what position he was in the lineup as it was viewed by Miss
Park?
A. Position Number 3.
Q. Is Ryan Dufort one of the subjects of this Grand Jury investigation?
A. Yes, he is.
Park’s entire grand jury testimony as to Dufort is as follows:
Q. [By ADA Eckhardt]. . . Did there come a time on October 12 of 2006, at
approximately 6:45pm that you went to the 109 Precinct to view a line‐up?
A. Yes.
Q. Did that lineup consist of six people holding numbers?
A. Yes.
Q. Did you recognize anyone from that line‐up?
A. Yes.
Q. What number did you recognize?
A. I chose number 3.
Q. What did you recognize number 3 as having done during the incident you
just described?
A. He was jumping on both victims.

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12 No. 16‐1715‐cv
fight, taking a pipe with him; and that when John Bae stated that he 1
had hit one of the victims and that the pipes were “really good” 2
because they did not bend, Dufort expressed his agreement. 3
Months later, on November 28, 2007, one of Dufort’s co‐ 4
defendants, Sebastian Yoon, pleaded guilty to manslaughter in 5
exchange for an agreement to provide testimony against the 6
remaining defendants. At his plea allocution, Yoon implicated other 7
assailants in the attack, but when he did not mention Dufort, ADA 8
Eckhardt asked him whether Dufort had participated in the brawl. 9
Yoon replied, “I think he punched.” 10
Dufort spent nearly five years incarcerated at Rikers Island 11
Prison Complex in New York City awaiting trial.6 In May of 2011, 12
Dufort, along with Bae, Baez, and two others, was tried for the 13
attack on Lee and Shin. Park testified at trial. She could not identify 14
Dufort in the courtroom. After the prosecutor showed Park the 15
surveillance video, she testified that she recognized Dufort in the 16
video, but that she recognized him by his clothing, rather than by his 17
6 We hope that shockingly long pretrial detentions like this will one soon be a
thing of the past. The recent report of the independent commission that
recommended closing Rikers Island gives us reason for optimism. See I NDEP .
C OMM ’ N ON N.Y.C. C RIMINAL J USTICE & I NCARCERATION REFORM, A MORE J UST
NEW YORK C ITY (2017),
https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/595d48
d1e6f2e1e5bcaa411a/1499285717652/Lippman+Commission+Report+FINA
L+Singles.pdf.

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13 No. 16‐1715‐cv
face. The jury returned guilty verdicts for Dufort’s four co‐ 1
defendants and acquitted Dufort of all charges. 2
3
IV. The Present Civil Suit 4
On May 8, 2012, Dufort brought the present action against the 5
City of New York and Detectives Marotta, Shim, and Schmittgall, as 6
well as Detective Thomas Conforti and several other police officers. 7
Dufort also initially named several prosecutors as defendants, but he 8
abandoned those claims during the course of the proceedings. He 9
also substantially narrowed his claims against the remaining 10
defendants. 11
On April 10, 2015, the Defendants moved for summary 12
judgment on Dufort’s remaining claims. These included claims 13
under 42 U.S.C. § 1983 against the individual defendants for false 14
arrest, malicious prosecution, and denial of due process, as well as a 15
state law claim against the City of New York asserting a state law 16
malicious prosecution claim premised on a theory of respondeat 17
superior liability. On April 28, 2016, the district court granted the 18
Defendants’ motion for summary judgment as to all of Dufort’s 19
remaining claims, holding that there was no genuine dispute of 20
material fact regarding whether Dufort’s arrest and subsequent 21
prosecution were supported by probable cause. The district court 22
also justified granting summary judgment on Dufort’s malicious 23

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14 No. 16‐1715‐cv
prosecution claim on the independent ground that Dufort could not 1
show that the defendant police officers “caused” his prosecution, 2
because the District Attorney’s decision to prosecute and the grand 3
jury’s indictment interrupted the chain of causation between the 4
allegedly wrongful arrest and trial. The district court granted 5
summary judgment on Dufort’s due process claim, because Dufort 6
had not proved that the evidentiary record at his criminal trial was 7
unfairly distorted. 8
Dufort now timely appeals. 9
10
DISCUSSION 11
A district court’s grant of summary judgment is reviewed de 12
novo. Gallo v. Prudential Residential Servs., Ltd. Pʹship, 22 F.3d 1219, 13
1224 (2d Cir. 1994). On a motion for summary judgment, the court 14
must “resolve all ambiguities and draw all permissible factual 15
inferences in favor of the party against whom summary judgment is 16
sought.” Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 17
673, 675 (2d Cir. 2016) (quoting Stern v. Trustees of Columbia Univ., 18
131 F.3d 305, 312 (2d Cir. 1997)). Summary judgment is appropriate 19
only if the pleadings, the discovery and the disclosure materials on 20
file, and any affidavits show “that there is no genuine dispute as to 21
any material fact and the movant is entitled to judgment as a matter 22
of law.” Fed. R. Civ. P. 56(a). All legal conclusions by a district court 23

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15 No. 16‐1715‐cv
are reviewed de novo. United States v. Livecchi, 711 F.3d 345, 351 (2d 1
Cir. 2013) (per curiam). 2
On appeal, Dufort argues that the district court erred in 3
granting summary judgment to the Defendants because, (1) neither 4
his arrest nor his prosecution was supported by probable cause; (2) 5
neither the the ADA’s independent decision to pursue charges nor 6
the grand jury indictment broke the chain of causation between his 7
unlawful arrest and the subsequent prosecution; and (3) the 8
Defendants denied Dufort due process by fabricating inculpatory 9
evidence through an inappropriately suggestive lineup. The 10
Defendants argue that summary judgment was appropriate on all 11
counts and further argue that, in any event, they are entitled to 12
qualified immunity because their arrest of Dufort and their 13
subsequent role in his criminal prosecution were justified by 14
arguable probable cause. 15
We find that key questions of material fact regarding Dufort’s 16
false arrest and malicious prosecution claims remain in dispute, and 17
therefore remand those claims for further proceedings. We agree 18
with the Defendants, however, that Dufort’s due process claims fail 19
as a matter of law, and therefore affirm the district court’s grant of 20
summary judgment as to those claims. 21
22

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16 No. 16‐1715‐cv
I. False Arrest Claim 1
In order to sustain a claim for false arrest under 42 U.S.C. § 2
1983 and New York law, a plaintiff must show that “the defendant 3
intentionally confined him without his consent and without 4
justification.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). 5
“Because probable cause to arrest constitutes justification, there can 6
be no claim for false arrest where the arresting officer had probable 7
cause to arrest the plaintiff.” Escalera v. Lunn, 361 F.3d 737, 743 (2d 8
Cir. 2004). The district court found that the Defendants’ arrest of 9
Dufort three days after the attack on Lee and Shin was supported by 10
probable cause, and that as a result Dufort’s claim for false arrest 11
fails as a matter of law. We belive there are genuine issues of 12
material fact that should have precluded summary judgment on this 13
point. 14
Generally, “probable cause to arrest exists when the officers 15
have knowledge or reasonably trustworthy information of facts and 16
circumstances that are sufficient to warrant a person of reasonable 17
caution in the belief that the person to be arrested has committed or 18
is committing a crime.” Weyant, 101 F.3d at 852. Probable cause is a 19
mixed question of law and fact. See, e.g., United States v. Singletary, 20
798 F.3d 55, 59 (2d Cir. 2015). Questions of historical fact regarding 21
the officers’ knowledge at the time of arrest are to be resolved by the 22
jury. See Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004). 23

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17 No. 16‐1715‐cv
However, “where there is no dispute as to what facts were relied on 1
to demonstrate probable cause, the existence of probable cause is a 2
question of law for the court.” Walczyk v. Rio, 496 F.3d 139, 157 (2d 3
Cir. 2007). 4
Probable cause is “a fluid concept . . . not readily, or even 5
usefully, reduced to a neat set of legal rules.” Id. at 156 (alteration in 6
original) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Although 7
probable cause requires more than “mere suspicion” of wrongdoing, 8
it focuses on “probabilities,” not “hard certainties.” Id. (quoting 9
Gates, 462 U.S. at 231). Ultimately, whether probable cause exists 10
“depends on the totality of the circumstances” of each case, and is 11
not susceptible to “precise definition or quantification into 12
percentages.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). “Finely 13
tuned standards such as proof beyond a reasonable doubt or by a 14
preponderance of the evidence, useful in formal trials, have no place 15
in the [probable‐cause] decision.” Id. (alteration omitted) (internal 16
quotation marks omitted) (quoting Gates, 462 U.S. at 235). However, 17
a determination of probable cause is not lacking in substance: it 18
must be justified by a “belief of guilt” that is “particularized with 19
respect to the person to be searched or seized.” Id. (citing Ybarra v. 20
Illinois, 444 U.S. 85, 91 (1979)). 21
As a preliminary matter, we can conclude that the lineup in 22
which Park “identified” Dufort (and which was the cornerstone of 23

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18 No. 16‐1715‐cv
the state’s case against him) should not factor into any probable 1
cause analysis. An identification cannot be used to support probable 2
cause if the “identification procedure was ‘so defective that probable 3
cause could not reasonably be based upon it.’” Stansbury v. Wertman, 4
721 F.3d 84, 91 n.7 (quoting Jenkins v. City of New York, 478 F.3d 76, 5
93 (2d Cir. 2007)). Park’s lineup identification of Dufort resulted 6
from a paradigmatic example of an improperly suggestive lineup. 7
Park stated to officers that she did not recognize Dufort’s face, and 8
that she could only recognize the color of his sweatshirt as similar to 9
that of one of the assailants. Police then placed Dufort in a lineup in 10
which he was the only suspect wearing clothing resembling a red 11
shirt. Park picked Dufort out, again stressing that she recognized 12
only his clothing. 13
This cannot be construed as an “identification” of Dufort for 14
the purposes of probable cause. We have made clear that a lineup in 15
which the suspect is the only individual “wearing distinctive 16
clothing or otherwise matching important elements of the 17
description provided by the victim . . . substantially increases[es] the 18
danges of misidentification.” Raheem v. Kelly, 257 F.3d 122, 134 (2d 19
Cir. 2001) (quoting Israel v. Odom, 521 F.2d 1370, 1374 (7th Cir. 20
1975)). At most, Park confirmed a statement she had already given 21
police several times: that Dufort’s jacket was similar in color to a 22
jacket or shirt worn by one of the assailants. This statement could be 23

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19 No. 16‐1715‐cv
given some weight in a probable cause analysis, albeit limited 1
weight, given the presence of one or more other people at Pastel 2
Karaoke who were similarly clothed. Its repetition during the 3
lineup, however, given the surrounding circumstances, could 4
provide no evidence that the assailant was in fact Dufort. 5
The question before us, then, is whether the undisputed 6
evidence presented by the Defendants other than Park’s lineup 7
“identification” was sufficient to establish probable cause to arrest as 8
a matter of law. We hold that it was not. A reasonable jury could 9
easily find that, apart from her “identification” at the suggestive 10
lineup, Park never identified Dufort before or after the lineup as one 11
of the assailants in either the investigation or the ensuing 12
prosecution. To the contrary, she appears to have explicitly told 13
police prior to Dufort’s arrest that she recognized him only by the 14
color of the jacket worn by one of the assailants, and that she could 15
not positively distinguish between him and another patron wearing 16
a shirt of a similar color. As Dufort has pointed out, the Defendants’ 17
unusual decision to depart from normal practice and not 18
contemporaneously document their initial interview with Park in a 19
“DD5” form raises considerable doubt about the exact nature of her 20
initial identification—doubt which, at the summary judgment stage, 21
must be construed in Dufort’s favor. See, e.g., Beyer v. Cty. of Nassau, 22
524 F.3d 160, 163 (2d Cir. 2008). 23

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20 No. 16‐1715‐cv
Park reiterated her jacket‐color‐only identification at several 1
points throughout the original criminal trial and this civil litigation. 2
In her 2014 deposition testimony, she stated that she recognized 3
Dufort as one of the assailants by “the color of his clothing,” but also 4
recalled having seen “at least two” people in Pastel Karaoke that 5
night wearing shirts or jackets with the same maroon color as 6
Dufort’s sweatshirt. Upon further questioning, Park admitted, “I 7
don’t know which person I saw exactly,” but that “one who were 8
[sic] wearing those kind of color [sic] was [j]umping and stomping 9
Jung Hwa Lee.” Likewise, in the criminal trial, when she was asked 10
whether she could identify Dufort, she replied, “[n]ot face but 11
clothing.” 12
The Defendants point out that Park testified at her deposition 13
in this case that the other person she had seen wearing a red shirt 14
was distinguishable from Dufort because the other patron had 15
“spiky hair, very short hair.” But there is no evidence that Park 16
made this statement before February 28, 2014—seven years after the 17
attack, and after Dufort had already been prosecuted and acquitted 18
of all charges. A reasonable jury could therefore find that the 19
statement had no bearing on whether probable cause existed to 20
arrest Dufort in 2006 or to bring criminal charges against him in 21
2007, because it sheds no light on what the Defendants knew or 22
reasonably believed when they were conducting the underlying 23

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21 No. 16‐1715‐cv
criminal investigation. The Defendants have not cited any record 1
evidence to suggest that Park was able to distinguish between the 2
various suspects seen wearing red shirts prior to the criminal trial. 3
Moreover, Park’s statement regarding the suspects’ different 4
hairstyles is at odds with other statements in her civil deposition, in 5
which she repeats her position that she could not recognize Dufort 6
as one of the assailants, and only recognized the color of his jacket. 7
At most, Park’s deposition testimony indicates that the nature of her 8
identification of Dufort and her reliability as a witness are disputed 9
questions of material fact which should be resolved by a jury at trial, 10
not by a court at summary judgment. See Anderson v. Liberty Lobby, 11
Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the 12
weighing of the evidence, and the drawing of legitimate inferences 13
from the facts are jury functions, not those of a judge . . . [when] he is 14
ruling on a motion for summary judgment . . . .”). 15
Setting aside the inconclusive identification by Park, who was 16
the police and prosecution’s sole identification witness against 17
Dufort, the Defendants’ remaining evidence is too gossamer to 18
support the conclusion that, as a matter of law, there was probable 19
cause to arrest. There was no video of the attack on Lee and Shin; 20
none of the five eyewitnesses other than Park who were questioned 21
were able to identify Dufort as an assailant; and no forensic evidence 22
tying Dufort to the attack was ever produced. Ultimately, the most 23

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22 No. 16‐1715‐cv
that the record on summary judgment establishes is that Dufort had 1
come to Pastel Karaoke on October 8, 2006 with many others, some 2
of whom who later participated in the attack on Lee and Shin; that 3
he, like others, brought a pipe to the bar “just in case” a fight 4
occurred; that he was one of at least two patrons who wore a shirt 5
similar in color to that worn by one of the assailants; that he was in 6
the vicinity of the fight when it occurred; and that he at one time 7
commented to a friend that he was in a gang called the “Ghost 8
Shadows.” 9
It is well settled that probable cause requires more than 10
suspicions, even reasonable ones. See, e.g., United States v. Sokolow, 11
490 U.S. 1, 7 (1989). Police do not have particularized probable cause 12
to make an arrest simply because a suspect has suspicious 13
acquaintances, or happens to be at the scene of a crime—particularly 14
when, as here, the crime occurs in a crowded public place. Cf. Ybarra, 15
444 U.S. at 91. (“[A] person’s mere propinquity to others 16
independently suspected of criminal activity does not, without 17
more, give rise to probable cause to search that person.”). Thus, in 18
Ybarra v. Illinois, 444 U.S. 85 (1979), the Supreme Court held that 19
police did not have probable cause to search patrons of a bar for 20
heroin merely because they had reliable information that the 21
bartender used the establishment to sell narcotics to customers. Id. 22
Instead, the Court held that “[w]here the standard is probable cause, 23

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23 No. 16‐1715‐cv
a search or seizure of a person must be supported by probable cause 1
particularized with respect to that person.” Id.; see also Pringle, 540 2
U.S. at 371. 3
Viewing the evidence in the light most favorable to the 4
plaintiff, a reasonable jury could find that the police arrested Dufort 5
based on little more than a witness’s statement that he wore a 6
similar shirt to that of one of Lee and Shin’s attackers. Although a 7
jury could also interpret the evidence differently, the record presents 8
genuine issues of material fact that preclude the conclusion that 9
there was probable cause as a matter of law and that, instead, 10
require a trial on the merits. 11
12
II. Malicious Prosecution 13
In the absence of federal common law, the merits of a claim 14
for malicious prosecution under § 1983 are governed by state law. 15
Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). In New York, the 16
four essential elements of a malicious prosecution claim are: “(1) the 17
commencement or continuation of a criminal proceeding by the 18
defendant against the plaintiff, (2) the termination of the proceeding 19
in favor of the accused, (3) the absence of probable cause for the 20
criminal proceeding and (4) actual malice.” Smith‐Hunter v. Harvey, 21
95 N.Y.2d 191, 195 (2000) (internal citations and quotation marks 22
omitted). 23

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24 No. 16‐1715‐cv
The district court based its grant of summary judgment on 1
Dufort’s malicious prosecution claims on the grounds that (1) 2
Dufort’s prosecution was justified by the same probable cause as his 3
arrest, and that probable cause grew stronger in subsequent months 4
by the discovery of new evidence; and (2) in any event, the decisions 5
of ADAs Eckhart and Vozzo to pursue charges and of the grand jury 6
to indict Dufort relieve the Defendants of any liability. We find that 7
key questions of material fact regarding Dufort’s malicious 8
prosecution claims remain in dispute, and therefore remand those 9
claims for further proceedings. 10
11
A. Probable Cause 12
The “existence of probable cause is a complete defense to a 13
claim of malicious prosecution in New York.” Savino v. City of New 14
York, 331 F.3d 63, 72 (2d Cir. 2003). The fluid nature of probable 15
cause remains the same at both the arrest and prosecution stage. To 16
begin with, as noted above, the record on summary judgment does 17
not establish as a matter of law that the Defendants had probable 18
cause to arrest Dufort. By the same token, the evidence in that 19
record, without more, is not sufficient to establish probable cause for 20
the filing of criminal charges or the commencement of a prosecution. 21
The Defendants claim, and the district court held, that 22
additional evidence came to light before trial that justified Dufort’s 23

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25 No. 16‐1715‐cv
prosecution, even if it could not have been sustained solely based on 1
the evidence available at the time of his arrest. But the two pieces of 2
new evidence they identified are insufficient to support a grant of 3
summary judgment, whether considered in isolation or together. 4
One was the testimony of another suspect in the fight, Jonathan Putt. 5
But Putt only testified that Dufort brought a pipe to Pastel Karaoke, 6
and that he was in a private karaoke room when the brawl began— 7
facts already established by the surveillance footage and not 8
contested by Dufort. Putt admitted at trial that he did not know 9
where Dufort was during the attack, and did not see him participate. 10
As discussed previously, the mere fact that Dufort was at Pastel 11
Karaoke on the night of the attack, or in the company of other 12
assailants, is not sufficient to establish probable cause for a criminal 13
prosecution. 14
The second piece of additional evidence the Defendants point 15
to is the testimony of assailant Sebastian Yoon. Yoon, facing a 16
maximum sentence of fifty years to life in prison, agreed to 17
cooperate, pled guilty to manslaughter, and implicated the other 18
defendants in exchange for a reduced sentence. When the prosecutor 19
prompted Yoon to comment on Dufort’s participation in the brawl, 20
his only reply was, “I think he punched.” App’x at 250. This flimsy 21
testimony as to what a cooperator “thinks” is by itself not sufficient 22
to permit the district court to grant summary judgment on Dufort’s 23

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26 No. 16‐1715‐cv
malicious prosecution claims. When the existence of probable cause 1
is a question of law, the determination must be made on the basis of 2
undisputed facts. See Walczyk, 496 F.3d at 157. Yoon’s weak 3
statement, made under considerable pressure, was the only 4
genuinely new evidence introduced to supplement the prosecution’s 5
case after Dufort’s arrest. The dispositive question is whether this 6
testimony was sufficiently compelling that reasonable law 7
enforcement officers could have relied on it to find probable cause to 8
pursue charges against Dufort, notwithstanding the other 9
evidentiary gaps in the state’s case. This question can only be 10
resolved by evaluating the credibility and probative weight of 11
Yoon’s account, and that assessment can only be made by a jury. See 12
Anderson, 477 U.S. at 255. 13
14
B. The District Attorney’s Prosecution and Grand Jury 15
Indictment 16
We now turn to the Defendants’ argument that the District 17
Attorney’s decision to prosecute Dufort or the grand jury’s decision 18
to indict insulates them from liability. 19
As a preliminary matter, the district court granted summary 20
judgment in this case without permitting Dufort to depose the 21
prosecutors who tried him, and thus the record on the extent of their 22
knowledge is incomplete. Park testified in her deposition in this case 23

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27 No. 16‐1715‐cv
that she told the police and the prosecutor at some time in October 1
2006 that her lineup identification was based solely on Dufort’s 2
clothing. Nonetheless, Dufort has submitted an affidavit from his 3
criminal defense attorney, William Mackey, testifying that, at the 4
time of the lineup, he never heard Park disclose to representatives 5
from the District Attorney’s office that she only recognized Dufort 6
by the color of his clothing. Dufort has also introduced testimony 7
from his trial attorney, Christopher Renfroe, stating that Detective 8
Marotta did not mention the limited nature of Park’s identification 9
during a pre‐trial hearing in which Dufort sought to suppress that 10
identification. Defendants have produced no evidence 11
demonstrating conclusively that the District Attorney’s office was 12
aware of the limited nature of Park’s identification. The district court 13
noted that Park stated for the first time in her 2014 civil deposition 14
(long after Dufort’s acquittal) that she had told an ADA that she had 15
identified only Dufort’s clothes. However, as Dufort points out, 16
Park’s recollection of her cooperation with the police and 17
prosecutors has been incomplete, and sometimes inconsistent. 18
Whether Park ever told prosecutors prior to trial that she 19
could only recognize Dufort by the color of his jacket is a disputed 20
question of fact, and must be evaluated by a jury. If the District 21
Attorney’s office pursued its prosecution against Dufort after it was 22
deliberately misled by the Defendants, then the decision to 23

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28 No. 16‐1715‐cv
prosecute does not interrupt the chain of causation. Cf. Bermudez v. 1
City of New York, 790 F.3d 368, 374–76 (2d Cir. 2015) (holding that an 2
ADA’s decision to prosecute a suspect did not constitute an 3
intervening cause that shielded the arresting officers from liability if 4
the ADA was “not informed of the alleged problems with the 5
evidence”) Dufort has raised a triable issue of fact as to whether 6
either the grand jury’s indictment or the prosecutors’ participation 7
in his case constituted intervening causes that insulate the 8
Defendants from liability. 9
The record in this case presents a question of fact as to 10
whether the District Attorney’s office was aware of the limited 11
nature of Park’s identification testimony. “[U]nder New York law, 12
indictment by a grand jury creates a presumption of probable cause 13
that may only be rebutted by evidence that the indictment was 14
procured by ‘fraud, perjury, the suppression of evidence or other 15
police conduct undertaken in bad faith.’” Savino, 331 F.3d at 72 16
(quoting Colon v. City of New York, 60 N.Y.2d 78, 83 (1983)). To rebut 17
this presumption, the plaintiff bears the burden of establishing “that 18
the indictment was produced by” such fraud or bad‐faith police 19
misconduct. Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 20
1994) (quoting Colon, 6060 N.Y.2d at 8383) Likewise, when a plaintiff 21
pursues a claim of malicious prosecution against police officers 22
based on an “unlawful arrest,” the “intervening exercise of 23

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29 No. 16‐1715‐cv
independent judgment” by a prosecutor to pursue the case usually 1
breaks the “chain of causation” unless the plaintiff can produce 2
evidence that the prosecutor was “misled or pressured” by the 3
police. Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999). 4
Dufort bears the burden of establishing that Defendants 5
misled the grand jury and the prosecutors by either withholding or 6
misrepresenting evidence in order to sustain the case against Dufort. 7
With respect to both actions, we conclude that Dufort has at least 8
established a question of material fact as to whether prosecutors and 9
the grand jury were aware of the limited nature of Park’s 10
identification and the highly suggestive manner in which it was 11
procured, such that their determinations break the chain of 12
causation. 13
With respect to the indictment, the record indicates that the 14
only direct evidence presented to the grand jury linking Dufort 15
directly to the attack was Park’s eyewitness identification. As noted 16
earlier, that identification was invalid because it was confined to a 17
lineup so defective that a reasonable officer could not use it to find 18
probable cause. More importantly, the record reflects (and the 19
Defendants do not contest) that the grand jury was simply told that 20
Park identified Dufort as an assailant without being informed of the 21
limited nature of Park’s identification. Detective Marotta testified 22
that Park viewed Dufort in the lineup, and Park testified that she 23

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30 No. 16‐1715‐cv
picked Dufort out of the lineup as an assailant, but neither clarified 1
that she identified only his jacket. Nor was the grand jury informed 2
that Dufort was the only suspect in the lineup wearing a maroon 3
sweatshirt. Id. Given the critical nature of Park’s testimony to the 4
case against Dufort, these omissions were glaring and easily could 5
have affected the grand jury’s decision. We thus find that, contrary 6
to the district court’s holding, Dufort has raised a genuine issue of 7
material fact regarding whether the Defendants’ conduct rose to the 8
requisite level of bad faith to rebut the presumption of probable 9
cause ordinarily created by a grand jury indictment. 10
The Defendants also argue that Dufort has failed to satisfy the 11
“initiation” aspect of the malicious prosecution inquiry, because the 12
District Attorney (rather than the defendant police officers) initiated 13
the proceedings against him. This argument fails for the same 14
reason. The “initiation” requirement is met when the plaintiff can 15
establish that police officers forwarded statements to a prosecutor 16
without sharing that the statements were suspect. See Manganiello v. 17
City of New York, 612 F.3d 149, 163 (2d Cir. 2010). Thus, a plaintiff 18
can satisfy the initiation requirement if he can establish that an 19
indictment “was produced by fraud, perjury, the suppression of 20
evidence or other police conduct undertaken in bad faith.” Dawson v. 21
Snow, 356 F. App’x 526, 529 (2d Cir. 2009) (summary 22
order) (quoting Colon, 60 N.Y.2d at 83). Because the prosecutors’ 23

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31 No. 16‐1715‐cv
knowledge is uncertain as discussed above, questions of fact 1
precluding summary judgment as to the initiation of the prosecution 2
remain as well. 3
Defendants also argue that the record contains no evidence 4
that they acted with malice. RB 42‐43. Under New York law, malice 5
does not have to be actual spite or hatred, but requires only “that the 6
defendant must have commenced the criminal proceeding due to a 7
wrong or improper motive, something other than a desire to see the 8
ends of justice served.” Nardelli v. Stamberg, 44 N.Y.2d 500, 502‐03 9
(1978). Malice may be inferred, however, from the absence of 10
probable cause. See Lowth v. Town of Cheetowaga, 82 F.3d 563, 573 (2d 11
Cir. 1996) (citing Conkey v. New York, 427 N.Y.S.2d 330, 332 (4th 12
Dep’t 1980)). Moreover, Dufort’s trial attorney’s affidavit stating that 13
he was told by detectives that they were treating Dufort as a suspect 14
solely in order to induce him to testify against other participants also 15
supports the inference that the prosecution against him was 16
improperly motivated. Accordingly, the record presents genuine 17
issues of fact as to whether Defendants acted with malice. 18
19
III. Qualified Immunity 20
In the alternative, the Defendants argue that even if Dufort 21
has established the requisite elements of his false arrest and 22
malicious prosecution claims, they are nonetheless entitled to 23

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32 No. 16‐1715‐cv
qualified immunity because “arguable probable cause” existed to 1
arrest and prosecute him. Qualified immunity establishes a defense 2
for a government actor acting in his official capacity. Malley v. Briggs, 3
475 U.S. 335, 341 (1986). It “provides ample protection to all but the 4
plainly incompetent or those who knowingly violate the law.” Id. In 5
the context of false arrest and malicious prosecution claims, an 6
officer is entitled to qualified immunity if he had either probable 7
cause or “arguable probable cause.” Martinez v. Simonetti, 202 F.3d 8
625, 634 (2d Cir. 2000) (internal quotation marks omitted). Arguable 9
probable cause exists “if officers of reasonable competence could 10
disagree on whether the probable cause test was met.” Gonzalez v. 11
City of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013) (quoting Jenkins v. 12
City of New York, 478 F.3d 76, 87 (2d Cir. 2007)). 13
We conclude that it would be inappropriate to grant qualified 14
immunity to these Defendants at the summary judgment stage. 15
Dufort has established a dispute of material fact as to whether the 16
Defendants intentionally withheld or manipulated key evidence 17
during his arrest and prosecution. He has introduced sufficient 18
evidence from which a reasonable jury could conclude that the 19
Defendants placed him in a deeply defective lineup, extracted an 20
“identification” from Park that was limited to the color of his 21
clothing, and then withheld the suspect nature of this identification 22
from prosecutors and the grand jury. Such a “knowing” violation of 23

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33 No. 16‐1715‐cv
his Fourth and Fifth Amendment rights would, if proven, be enough 1
to overcome the protection of qualified immunity. Although Dufort 2
has not produced any direct evidence of a malicious intent on the 3
part of the Defendants, he is not required to do so. Circumstantial 4
evidence is generally sufficient to prove intent, and Dufort has 5
introduced enough such evidence to survive summary judgment. 6
See Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir. 7
2000) (“Malice may be proved inferentially because it is a matter of 8
the defendant’s subjective mental state, revolves around facts 9
usually within the defendantʹs knowledge and control, and rarely is 10
admitted.”). 11
12
IV. Due Process Claims 13
Finally, we turn to Dufort’s claim that he is entitled to 14
damages under § 1983 because the Defendants allegedly 15
misrepresented or withheld key evidence at his criminal trial about 16
the suggestive nature of the lineup in which Park identified him and 17
the limited nature of Park’s identification in violation of his Fifth 18
Amendment right to due process. The Second Circuit has recognized 19
“a constitutional right not to be deprived of liberty as a result of the 20
fabrication of evidence by a government officer acting in an 21
investigatory capacity” that is cognizable under the Fifth 22
Amendment and § 1983. Zahrey v. Coffey, 221 F.3d 342, 344 (2d Cir. 23

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34 No. 16‐1715‐cv
2000); see also Garnett v. Undercover Officer C0039, 838 F.3d 265, 275 1
(2d Cir. 2016). We have also recognized that a defendant has a 2
cognizable right to a fair trial, and may sue for damages under § 3
1983 for Brady violations that lead to a distorted evidentiary record 4
being presented to the jury. See Poventud v. City of New York, 750 F.3d 5
121, 132 (2d Cir. 2014) (en banc). 6
The Defendants argue that Dufort’s fair trial claims fail as a 7
matter of law, because the evidence that Dufort claims was withheld 8
or misrepresented was in fact disclosed in a straightforward manner 9
at his trial: the prosecution elicited testimony from Park that she 10
recognized Dufort not by his face, but by his clothing. We agree, and 11
accordingly we affirm the district court’s grant of summary 12
judgment with respect to these claims. 13
The “central objective of [§ 1983] . . . is to ensure that 14
individuals whose federal constitutional or statutory rights are 15
abridged may recover damages or secure injunctive relief.” Felder v. 16
Casey, 487 U.S. 131, 139 (1988) (quoting Burnett v. Grattan, 468 U.S. 17
42, 55 (1984)). In defining the appropriate scope of a § 1983 claim 18
asserting the violation of a constitutional right, “courts must closely 19
attend to the values and purposes of the constitutional right at 20
issue.” Manuel v. City of Joliet, 137 S. Ct. 911, 920–21 (2017). The 21
constitutional right on which Dufort’s § 1983 due process claim rests 22
is the right to have one’s case tried based on an accurate evidentiary 23

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35 No. 16‐1715‐cv
record that has not been manipulated by the prosecution. See Brady 1
v. Maryland, 373 U.S. 83, 87–88 (1963) (holding that the right to due 2
process has been violated whenever “[a] prosecution . . . withholds 3
evidence on demand of an accused which, if made available, would 4
tend to exculpate him or reduce the penalty,” because such a 5
withholding “casts the prosecutor in the role of an architect of a 6
proceeding that does not comport with standards of justice”); see also 7
Garnett, 838 F.3d at 275 (“When a police officer creates false 8
information likely to influence a jury’s decision and forwards that 9
information to prosecutors, he violates the accused’s constitutional 10
right to a fair trial, and the harm occasioned by such an 11
unconscionable action is redressable in an action for damages under 12
42 U.S.C. § 1983.” (internal quotation marks omitted)). 13
Here, even assuming arguendo that the Defendants attempted 14
to distort the trial record by misrepresenting the nature of Park’s 15
identification, it is undisputed that that attempt failed. Park herself 16
testified at trial that she could only identify Dufort by the color of 17
his jacket. Any attempt to distort the evidentiary record was fully 18
mitigated by this disclosure. Mere attempts to withhold or falsify 19
evidence cannot form the basis for a § 1983 claim for a violation of 20
the right to due process when those attempts have no impact on the 21
conduct of a criminal trial. Cf. Zahrey, 221 F.3d at 348–50 (holding 22
that “[t]he manufacture of false evidence, in and of itself, . . . does 23

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36 No. 16‐1715‐cv
not impair anyone’s liberty, and therefore does not impair anyone’s 1
constitutional right” when that manufacture does nothing concrete 2
to “precipitate [a] sequence of events that result[s] in a deprivation 3
of [the plaintiff’s] liberty” (internal quotation marks and footnote 4
omitted)).7 5
CONCLUSION 6
For the reasons stated above, we VACATE in part the 7
judgment of the district court and REMAND the case for further 8
proceedings consistent with this opinion. 9
7 Dufort also appears to allege a “substantive due process” claim, based on his
constitutional right not to be arrested or detained without probable cause. Insofar as this
claim stems from the Defendants’ decision to arrest Dufort and his subsequent five‐year
detention on Rikers Island, it appears to be entirely coextensive with Dufort’s claims for
false arrest and malicious prosecution and is therefore subsumed under those claims. See
Manuel, 137 S. Ct. at 917–19 (noting that claims for pretrial detention based on fabricated
or withheld evidence are evaluated as malicious prosecution claims under the Fourth
Amendment); Wallace v. Kato, 549 U.S. 384, 388–89 (2007) (noting that the forcible
detention of plaintiff without probable cause is conceptualized as a false arrest claim
under the Fourth Amendment for § 1983 purposes).

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