Ferguson v. City of N.Y.

• Court: Court of Appeals for the Second Circuit
• Decided: June 30, 2025
• Docket: 23-1315
• Status: Unpublished

Opinion

23-1315-cv Ferguson v. City of N.Y. et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of June, two thousand twenty-five.

PRESENT: DENNY CHIN, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges.

__________________________________________

RASHAUN FERGUSON,

Plaintiff-Appellant,

v. 23-1315-cv

CITY OF NEW YORK; MICHAEL GILDEA; DETECTIVE JAEGER,

Defendants-Appellees,

UNIDENTIFIED MEMBERS OF THE NYPD, all sued herein in their individual capacities,

Defendants. __________________________________________ FOR PLAINTIFF-APPELLANT: FRED B. LICHTMACHER, New York, NY, (Stephen Bergstein, Bergstein & Ullrich, New Paltz, NY, on the brief).

FOR DEFENDANTS-APPELLEES: JAMISON DAVIES (Devin Slack, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District

of New York (Vitaliano, J.).

UPON DUE CONSIDERATION, the August 31, 2023, judgment of the District

Court is AFFIRMED.

Plaintiff-appellant Rashaun Ferguson brought this action against defendants-

appellees the City of New York, Detective Michael Gildea, and Detective Quinn Jaeger

pursuant to 42 U.S.C. §1983 and state law, asserting three claims: (1) malicious prosecution

in violation of the Fourth Amendment, (2) violation of his right to a fair trial as guaranteed

by the Fourth, Fifth, Sixth, and Fourteenth Amendments, and (3) malicious prosecution in

violation of New York common law. These claims arose out of Ferguson’s acquittal of

charges related to a fatal 2013 shooting after a jury trial in New York state court. The

District Court granted summary judgment to defendants-appellees, and Ferguson appealed.

We assume the parties’ familiarity with the underlying facts, procedural history, and issues

on appeal, to which we refer only as necessary to explain our decision.

On appeal, Ferguson argues that the District Court improperly granted summary

judgment to the defendants-appellees on his claims for malicious prosecution and the

2 violation of his right to a fair trial. This Court

review[s] de novo a district court’s decision to grant summary judgment, construing the evidence in the light most favorable to the party against whom summary judgment was granted and drawing all reasonable inferences in that party’s favor. Summary judgment is required if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Unkechaug Indian Nation v. Seggos, 126 F.4th 822, 828 (2d Cir. 2025) (citation and

quotation marks omitted). Assertions of fact made in connection with a motion for

summary judgment must be supported by citations “to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory answers, or other materials.” Fed.

R. Civ. P. 56(c)(1)(A). A party “cannot rely on inadmissible hearsay in opposing a motion

for summary judgment,…absent a showing that admissible evidence will be available at

trial.” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924

(2d Cir. 1985) (citations omitted). On de novo review, we conclude that the defendants-

appellees were entitled to summary judgment because Ferguson has failed to proffer

sufficient evidence that would be admissible at trial to substantiate his malicious

prosecution and fair trial claims. We address each in turn.

I. Malicious Prosecution

Defendants-appellees were entitled to summary judgment on Ferguson’s malicious

prosecution claims. “Claims for malicious prosecution brought under Section 1983 are

substantially the same as claims for malicious prosecution brought under state law.” Ortiz

v. Stambach, 137 F.4th 48, 61 (2d Cir. 2025). “To establish a malicious prosecution claim

3 under New York law, a plaintiff must prove (1) the initiation or continuation of a criminal

proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack

of probable cause for commencing the proceeding; and (4) actual malice as a motivation

for defendant’s actions.” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.

2010) (citation and quotation marks omitted). “A presumption of probable cause is created,

however, by a grand jury’s indictment.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir.

2003). Ferguson was indicted by a grand jury. To overcome the presumption, he was

therefore required to present evidence from which a reasonable jury could conclude “that

the indictment was produced by fraud, perjury, the suppression of evidence or other police

conduct undertaken in bad faith.” Id. (citation and quotation marks omitted); see also

Savino v. City of New York, 331 F.3d 63, 73 (2d Cir. 2003) (“[T]he plaintiff . . . bears the

burden of proof in rebutting the presumption of probable cause that arises from the

indictment.”).

Ferguson has failed to identify evidence in the record that could rebut the

presumption of probable cause created by the grand jury indictment. While Ferguson

makes several allegations related to the grand jury process, as discussed below, he has

failed to accompany those allegations with citations to supporting evidence that would be

admissible at trial. See Burlington Coat Factory, 769 F.2d at 924.

Ferguson’s primary argument is that “Defendants suppressed evidence about [a

school surveillance] video which provided them ample opportunity to identify the real

shooter, no DD5 was generated about the viewing, and [Angela] Logan Smith, an

4 eyewitness to the apparent shooter running away, was never disclosed to Ferguson’s

defense team.” Appellant’s Br. at 18. However, Ferguson points to no admissible evidence

to support an inference that either of the individual defendants ever saw the school

surveillance footage or knew about Logan-Smith, much less that they intentionally

suppressed the footage or her identity. Ferguson states that Logan-Smith testified that she

showed the footage to two police officers. But she could not remember the identities of

the officers, and both Gildea and Jaeger testified that they did not view the footage or meet

Logan-Smith. It is undisputed that Gildea and Jaeger were not the only two officers who

investigated the shooting. Indeed, Ferguson admits that it was two different detectives who

initially went to the school to attempt to view the footage. Ferguson also contends that

Gildea testified that Jaeger saw the video but in fact, Gildea testified only that he

“believe[d]” that he (Gildea) had told the prosecutor that Jaeger had seen the video. App’x

at 309. This testimony does not establish that Gildea had personal knowledge that Jaeger

actually saw the video.

Ferguson also argues that the record “supports the inference that Gildea actively

intimidated witnesses and added falsehoods to police documents that were different than

those provided by witnesses.” Appellant’s Br. at 18. Specifically, he contends that

although Wheeling, an eyewitness, “allegedly identified Plaintiff as the shooter,

Wheel[ing] did not write the handwritten statement” on the photo array “that purportedly

memorialized this identification; this notation was in Gildea’s handwriting.” Id. at 24

(citations omitted). Ferguson relies on Jaeger’s testimony at his deposition that the writing

5 on the Wheeling statement that says, “[y]es, that is the guy with the gun,” was in

handwriting that “looks like Detective Gildea.” App’x at 281. But even if Wheeling did

not write those words himself, and even if Gildea wrote them, that does not suggest that

Wheeling was “intimidated” by Gildea or that Gildea “added falsehoods to police

documents.” Appellant’s Br. at 18. As the District Court observed, “[e]ven if the testimony

of Detective Jaeger were found to be admissible lay opinion evidence [regarding the

handwriting] and could be used to support the assertion that Gildea in fact wrote the

statement, which is far from clear, it does nothing to suggest that he did so after Wheeling

signed it.” Special App’x at 10.

Next, Ferguson asserts that “Wheeling told [Ferguson’s private] investigator,

DeLeon, that he did not identify Plaintiff as the shooter during the photo array” and “that

he never told these officers that he saw a dark gray Ford Escape leave the scene of the

shooting.” Appellant’s Br. at 24. In opposing summary judgment, Ferguson cited an

unsworn report prepared by DeLeon and the deposition testimony of an Assistant District

Attorney, both of which stated that Wheeling told them, years after Ferguson was indicted,

that Wheeling had seen a different vehicle and had not identified Ferguson. This evidence

was appropriately deemed hearsay by the District Court. Ferguson does not challenge that

determination on appeal, and does not represent that he could present it at trial in an

admissible form; it is therefore insufficient to defeat summary judgment. 1 See Patterson

1 Ferguson does not contend that Wheeling would be willing to testify directly at a civil trial so as to eliminate the hearsay problem. To the contrary, at his deposition, Wheeling invoked his Fifth Amendment privilege, the State’s Attorney’s Office declined to immunize

6 v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (“[A]n affidavit’s hearsay

assertion that would not be admissible at trial if testified to by the affiant is insufficient to

create a genuine issue for trial.”).

Ferguson also asserts that “Defendants’ zeal to prosecute [him] is further proven by

their efforts to intimidate another witness, McCummings, to identify him as the shooter.”

Appellant’s Br. at 24. According to Ferguson, “McCummings testified that the police were

pressuring him to make an identification, and they focused on Plaintiff ‘almost immediately

when they put [McCummings] in the room with them.’” Id. at 24-25 (citations omitted).

But this mischaracterizes McCummings’s deposition testimony. McCummings testified

that the police “were pressuring [him] trying to get [him] to identify somebody” – not that

they were targeting Ferguson in particular – by “saying that they did have witnesses saying

that they could put [McCummings] on the scene, that [he] was the driver of the getaway

car,” which made McCummings fear that he might be charged in the shooting. App’x at

357 (emphasis added). That fear led McCummings to present an alibi; when the alibi was

confirmed, he was released. McCummings’s testimony, even construed in the light most

favorable to Ferguson, does not suggest that the police were trying to intimidate

McCummings into identifying Ferguson.

Ferguson also asserts that “Evans, who survived the shooting and was in the best

position to know what the shooter looked like, told Jaeger that the shooter was light-

him, and the District Court denied Ferguson’s motion to compel his testimony. See Ferguson v. City of New York, et al., 1:17CV06871(ENV)(SJB), ECF No. 65 (E.D.N.Y. Feb. 24, 2020).

7 skinned; yet, Plaintiff has a dark complexion. Further suggesting that Plaintiff was not the

shooter, the Preliminary Investigation Report stated that the gunman was 5’9”. Plaintiff is

over six-feet tall.” Appellant’s Br. at 21 (citations omitted). But Evans unequivocally

identified Ferguson as the shooter in both a photo array and in a live lineup before the

indictment was issued, and identified Ferguson again at the criminal trial. Thus, any issues

relating to Evans’s initial description do not create a genuine dispute of material fact as to

Evans’s identification of Ferguson.

Finally, Ferguson argues that “the record permits the inference that Defendants did

not target a more likely suspect, Marcus Ortiz.” Appellant’s Br. at 24. The only evidence

in the record suggesting that Ortiz might have been the shooter was Gildea’s testimony that

he learned Keith Gulley, the murder victim, had previously shot Ortiz. Even assuming this

evidence of a potential motive is sufficient to identify Ortiz as a suspect, it does not suggest

that he was a more likely suspect than Ferguson – especially given that Ferguson was

identified as the shooter by the surviving victim.

Taken together, these allegations, even construed in the light most favorable to

Ferguson, do not give rise to a genuine dispute of material fact “that, as to a fact crucial to

the existence of probable cause, the arresting officers may have lied in order to secure an

indictment” or that “the indictment was secured through bad faith or perjury.”

Manganiello, 612 F.3d at 162 (citation and quotation marks omitted). Thus, Ferguson has

failed to present sufficient evidence to rebut the presumption of probable cause created by

his grand jury indictment, and the District Court properly granted summary judgment to

8 the defendants-appellees on Ferguson’s malicious prosecution claims.

II. Fair Trial

Defendants-appellees are also entitled to summary judgment on Ferguson’s fair trial

claim. To succeed on a fair trial claim based on fabricated evidence, “a plaintiff must

establish that an (1) investigating official (2) fabricated information (3) that is likely to

influence a jury’s verdict, (4) forwarded that information to prosecutors, and (5) the

plaintiff suffered a deprivation of life, liberty, or property as a result.” Barnes v. City of

New York, 68 F.4th 123, 128 (2d Cir. 2023) (citation and quotation marks omitted).

Ferguson failed to establish a genuine dispute of material fact on his fair trial claim;

he has not presented any evidence from which a jury could reasonably conclude that Gildea

or Jaeger created or forwarded fabricated information to the prosecutors in Ferguson’s case.

Ferguson asserts that “Defendants generated DD5’s with intentionally inaccurate

information, in particular the fraudulent statements they added on Wheeling’s behalf.

Equally malicious was their failure to generate DD5’s regarding the initial identification of

the shooter as light-skinned, the fraudulent reports of a Ford Escape, and the intentional

failure to document the viewing of the video and to have that video and a key witness’s

name preserved.” Appellant’s Br. at 29-30 (citations omitted). Ferguson also asserts that

“important evidence was withheld, exonerating information was not memorialized, the key

witness was hidden, and witnesses were coerced to provide false information.” Id. at 30.

Finally, Ferguson asserts that he can proceed on his fair trial claim on the basis of a Brady

violation.

9 Again, however, Ferguson points to no admissible evidence in support of these

claims that could be presented at trial. See Burlington Coat Factory, 769 F.2d at 924. The

only evidence supporting Ferguson’s assertion that the detectives incorrectly recorded

Wheeling’s statements during the photo identification in 2013 was the private

investigator’s 2017 report, which the District Court properly disregarded as hearsay. And,

regardless of whether Wheeling himself wrote “this is the guy I saw with the gun” on the

photo array, App’x at 127, it is undisputed that Wheeling signed the photo array identifying

Ferguson as the shooter. With respect to the purported failure to include the description of

the suspect as “light-skinned” in a report, Jaeger testified that he provided the underlying

notes, which included this initial description, to the prosecution, and Ferguson presents no

evidence to the contrary. As to the alleged “fraudulent reports of a Ford Escape,” the only

evidence presented by Ferguson – the private investigator’s report and deposition

testimony from a third party about statements Wheeling made years after the shooting –

was appropriately deemed inadmissible hearsay. Ferguson’s allegations about the

surveillance video and Logan-Smith are equally unsupported because, as detailed above,

Ferguson provides no evidence to support his allegation that either Gildea or Jaeger viewed

this footage or knew about Logan-Smith. Finally, because Ferguson has presented no

evidence from which a jury could infer that the defendants withheld any relevant evidence

from the prosecution, his attempt to root his fair-trial claim in a Brady violation, even

assuming that such a claim is available where a plaintiff is acquitted at trial, likewise fails.

It is undoubtedly tragic that Ferguson was detained for almost four years on charges

10 that were eventually insufficient to sustain a conviction. But Ferguson’s acquittal does not

mean that the evidence against him was fabricated or that the prosecution was undertaken

in bad faith. On the record before us, we conclude that Ferguson has failed to present

admissible evidence sufficient to sustain his claims.

Accordingly, for the foregoing reasons, the judgment of the District Court is

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court