Marshall v. Sullivan

105 F.3d 47
CourtCourt of Appeals for the Second Circuit
DecidedOctober 17, 1996
DocketNos. 93, 94, Dockets 95-9286, 95-9288
StatusPublished
Cited by28 cases

This text of 105 F.3d 47 (Marshall v. Sullivan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Sullivan, 105 F.3d 47 (2d Cir. 1996).

Opinion

KEARSE, Circuit Judge:

Defendants Town of Greenburgh, New York (the “Town” or “Greenburgh”), and Cornelius F. Sullivan, who at the pertinent times was a Town police lieutenant, appeal from so much of an order entered in the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, as denied their motions for summary dismissal of the claims of plaintiff William R. Marshall seeking damages from them under 42 U.S.C. § 1983 (1994) and state law for false arrest and malicious prosecution. Sullivan and the Town moved for summary judgment principally on the ground that Sullivan had had probable cause to arrest Marshall; Sullivan sought summary judgment on the alternative ground that he was entitled to qualified immunity. The district court denied their motions on the ground that there were genuine issues of fact to be tried as to the existence of probable cause, the reasonableness of any belief on the part of Sullivan as to the existence of probable cause, and the culpability of the Town for the conduct of Sullivan. Appellants seek to challenge these rulings on appeal. For the reasons that follow, we dismiss both appeals for lack of appellate jurisdiction.

I. BACKGROUND

The events giving rise to the present litigation began with a verbal altercation between Marshall and defendant Kevin Khosrowshahi, the owner of a Greenburgh nightclub called “Colours.” Most of the events are not in dispute; the contents of certain important conversations are sharply disputed.

A. The Undisputed Events

On the night of Friday, November 6, 1992, Marshall, who was employed as a corrections officer by the Westchester County Department of Corrections, went with a companion to Colours. Christian Binnie, a fellow corrections officer, worked at Colours during the evenings as a “bouncer.” Marshall asked Binnie to direct him to someone at Colours to whom Marshall could speak about getting a job as a bouncer; Binnie referred Marshall to Khosrowshahi. Marshall conversed with Khosrowshahi near the club’s dance floor, against a background of loud music. Marshall and Khosrowshahi disagree as to some of the content of their conversation, and their differing versions are summarized in Part I.B, below. Both agree, however, that the conversation had acrimonious aspects, with Khosrowshahi later describing his own behavior as “obnoxious” (e.g., Deposition of Khosrowshahi at 25), and Marshall admitting that he threatened to “slap” Khosrowshahi (e.g., Deposition of Marshall at 28). Following the conclusion of the conversation, Marshall left the nightclub.

Shortly after Marshall’s departure, Khos-rowshahi hailed a Town police officer patrolling the area and told him that Marshall had said, inter alia, that, having come into “our territory,” Khosrowshahi was going to have problems and that Marshall wanted a share of Khosrowshahi’s business. At the officer’s suggestion, Khosrowshahi lodged his complaint at the Greenburgh police department on the following Monday, November 9. The detective on duty prepared a detailed “incident report.”

On the night of November 12, Marshall, accompanied by three companions, returned to Colours. Upon learning of Marshall’s arrival, Khosrowshahi instructed the club’s manager to call the Greenburgh police. In the meantime, Khosrowshahi spoke with Marshall a second time, outside the presence of Marshall’s companions. Marshall apologized for his intemperate behavior at their first meeting and disavowed any intent to take part of Khosrowshahi’s business from him. Khosrowshahi said he had enough security staff. The differing versions of the remainder of the conversation are summarized in Part I.B. below. Following the end of the conversation, the two shook hands, and Marshall rejoined his companions.

[50]*50Shortly thereafter, four Greenburgh police officers, including Sullivan, a lieutenant, arrived at Colours in response to the call placed by the club manager after Marshall’s arrival. Sullivan and Khosrowshahi conversed for a few minutes alone. ■ Sullivan and the other officers then approached Marshall and his companions and asked to speak with them in the nightclub’s office, where it was quieter. When the group, with Khosrowsh-ahi, entered the office, Sullivan asked what had happened and Marshall replied that he was just looking for a job. Sullivan then asked Khosrowshahi whether Marshall or his friends had asked for money or demanded a share of Khosrowshahi’s business. Khos-rowshahi responded, “No.”

Sullivan thereupon asked Khosrowshahi to join him outside the office. The two then had a 5-to-8 minute conversation alone. After reentering the nightclub’s office, Sullivan directed the officers to place Marshall and his companions under arrest for attempted extortion. Marshall pleaded in vain that they had done nothing wrong.

In December 1992, a felony hearing, see N.Y.Crim.Pro.Law §§ 180.10-180.80 (McKinney 1993), was held before the Greenburgh Town Court, which, to the extent pertinent here, ruled that there was sufficient evidence to hold Marshall for the action of a grand jury. In February 1993, Marshall was indicted on four counts of attempted grand larceny in the second degree and two counts of attempted grand larceny in the fourth degree. He moved to dismiss the indictment on the ground that the evidence before the grand jury was insufficient to make out a prima facie case on the charges in the indictment; his motion was denied.

Thereafter, Marshall went to trial and was acquitted of all charges.

Marshall then commenced the present action against, inter alios, Khosrowshahi, the Town, and Sullivan under § 1983 and state law, seeking damages for false arrest and malicious prosecution. The complaint alleges, inter alia, that Sullivan and Khosrowsh-ahi acted in concert to cause his arrest and prosecution in violation of his Fourth Amendment and state-law! rights; it also alleges that Sullivan and Khosrowshahi gave false and materially incomplete testimony at the felony hearing and before the grand jury. Marshall asserts that the Town is liable on the ground that it inadequately trained the arresting officers, including Sullivan, and that it inadequately supervised Sullivan. Eventually all of the defendants moved for-summary dismissal of Marshall’s claims against them on various grounds. Only the motions of Sullivan and the Town are pertinent to the present appeals.

B. The Disputes as to the Contents of the Various Conversations

The disputes center principally on what Khosrowshahi told Sullivan just prior to Marshall’s arrest, for each of Marshall’s claims raises issues of probable cause. Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without being privileged to do so, see, e.g., Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 313-14, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975), and a § 1983 claim for false arrest requires “substantially the same,” Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991). The existence of probable cause gives an officer the privilege to arrest and “is a complete defense to an action for false arrest.”

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Bluebook (online)
105 F.3d 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-sullivan-ca2-1996.