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Media Alerts - Garnett v. Undercover Officer C0039, et al.
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October 3, 2016
  Garnett v. Undercover Officer C0039, et al.
Headline: Second Circuit Holds that Officer's False Account of the Details Surrounding an Arrest--Even When There Was Probable Cause for the Arrest--is Sufficient Basis for a Denial of Fair Trial Claim

Area of Law: Criminal Procedure

Issues Presented: Whether the fair trial right is violated when an officer, after having had probable cause to make an arrest, then fabricates his or her own observations of what occurred and conveys that false account to a prosecutor.

Brief Summary: Kwame Garnett was arrested during an undercover drug "buy and bust" based on Undercover Officer C0039's ("UC 39") personal observations, which included an incriminating statement Garnett allegedly made. Garnett, however, consistently denied making the statement. Garnett was subsequently acquitted in state court. He then filed a Section 1983 action in the Southern District of New York, alleging various claims against UC 39 and others. In particular, he argued that UC 39 had fabricated his account and therefore violated his right to a fair trial. After a jury trial, UC 39 was held liable on that basis, and Garnett was awarded $1 in nominal damages and $20,000 in punitive damages. Both sides appealed: UC 39 argued that the district court erred in denying his motion for judgment as a matter of law; and Garnett argued that the jury instructions were inaccurate. The Second Circuit affirmed the judgment, explaining that its prior precedents about the right to a fair trial meant that even if an officer had probable cause to arrest a defendant, that defendant could later sue for denial of the right to a fair trial based on a "police officer's fabrication of information...[including] when the information fabricated is the officer's own account of his or her observations of alleged criminal activity." To read the full opinion, please visit:

Extended Summary: On November 19, 2011, Undercover Officer C0039 ("UC 39") and Undercover Officer C0243 ("UC 243") were involved in a drug "buy and bust" operation in East Harlem. UC 243 was the officer attempting to purchase the drugs while UC 39 was there to provide security for UC 243. UC 243 entered a bodega with two thought-to-be drug dealers, Naquan Cintron and Naim Roper, and purchased small amounts of crack cocaine and marijuana from them. Cintron and Roper were subsequently arrested.

Garnett was also arrested in connection with the drug sale by Cintron and Roper. UC 39 scanned the area while UC 243 was talking with Cintron and Roper and saw Garnett standing outside the bodega. Based on UC 39's experience, he believed Garnett was keeping lookout for police while Cintron and Roper made the drug sale. UC 39, in addition to writing in a "DD-5" complaint follow-up form, told the arresting officer and prosecutor that Garnett entered the bodega during the sale and told Cintron and Roper, "Yo, hurry up.... I'm not looking to get locked up tonight. Let's go." UC 243 testified that he only heard Garnett speak -- not what he said.

Roper and Cintron eventually both pled guilty criminal charges related to the drug sale. Cintron, in his plea allocution, stated that he acted "in concert with" Garnett in selling "a narcotic drug to a police officer." Garnett proceeded to his state criminal trial. In preparation for trial, UC 39 provided the Assistant District Attorney with the information in in UC 39's DD-5 report. UC 39 also disclosed that Garnett had previously attempted to rob UC 39 during an investigation -- a fact that UC 39 did not realize until after the arrest because he did not recognize Garnett since the attempted robbery took place three years earlier.

Garnett denied having any involvement with the drug sale and was free of any drugs or contraband when searched. Garnett was subsequently charged. Unable to post bail, he was held for eight months until his trial. Garnett was ultimately acquitted of criminal sale of a controlled substance in the third degree and criminal sale of marijuana in the fourth degree.

On October 4, 2013, Garnett then filed a lawsuit against officers involved in his arrest alleging various claims. After summary judgment, the only claims remaining were false arrest, malicious prosecution, a fair trial claim against UC 39, and a failure to intervene claim against UC 243. At trial, UC 39 gave testimony relating to whether Garnett went inside the bodega that was inconsistent with his grand jury testimony. UC 243 testified that he saw Garnett enter the store and say something that caught Cintron and Roper's attention, but did not actually hear what Garnett said.

Garnett testified that he was in the same apartment earlier in the day with Cintron and Roper, but did not speak with them, and that he left alone. Garnett testified that after he left, he went to a restaurant near the bodega. While waiting for his food, he went to get a soda at the bodega, but decided not to because it was crowded. Garnett was later arrested in a video game store near the bodega. Roper also testified at Garnett's trial stating that although Garnett, Cintron, and Roper left the apartment together, Garnett was "a little bit separated from us" and that Garnett was not in the store and did not say anything in the store to Cintron and Roper.

After the jury was charged, the district court received a note from the jury asking for clarification on probable cause. The district court then distributed a supplemental instruction stating: "[if] a reasonable person in the officer's shoes looking at the totality of the circumstances would not believe that there was a probability that the plaintiff had committed a crime or was committing a crime, there would not be probable cause for his arrest." The jury only found for Garnett on his right to a fair trial claim, awarding him $20,000 punitive damages and $1 in nominal damages.

UC 39 moved for judgment as a matter of law, arguing that the fabricated evidence did not cause Garnett's deprivation of liberty because UC 39 had probable cause to arrest Garnett. Relying on Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 129 (2d Cir. 1997), the district court denied UC 39's motion. Garnett, meanwhile, moved for a new trial on his false arrest, malicious prosecution, and failure to intervene claims asserting the district court erred in its response to the jury's question.

The Second Circuit held that Ricciuti is as applicable when an officer falsifies information contained in his own account, conveyed to prosecutors, of what he heard the defendant say or do during the alleged offense, as it is when an officer falsifies information about a defendant's confession (the situation in Ricciuti).

UC 39 asserted that Ricciuti was distinguishable on two grounds: (1) that Ricciuti is limited to whether qualified immunity was available to officers who willfully fabricate evidence and (2) that falsification of evidence has always been addressed under the auspices of false arrest and malicious prosecution claims under the Fourth Amendment. The Second Circuit rejected UC 39's view and interpretation of a summary order, Jovanovic v. City of New York, 486 F. App'x 149, 152 (2d Cir. 2012), holding that a "Section 1983 claim for the denial of a right to a fair trial based on an officer's provision of false information to prosecutors can stand even if the officer had probable cause to arrest the Section 1983 plaintiff." The Second Circuit also rejected UC 39's second theory that fabrication of evidence can only implicate one constitutional provision and that a Fourth Amendment concept like probable cause should not immunize an officer who violates an arrestee's non-Fourth Amendment rights.

Garnett's appeal relating to the jury issue was also denied by the district court, which the Second Circuit affirmed after finding that "the charge, taken as a whole made clear that for UC 39 to have probable cause to believe that Garnett was aiding and abetting a drug sale, the officer would have to have had a reasonable belief that Garnett not only knew that an illegal transaction was occurring, but was also 'intentionally aiding' that sale of narcotics."

Panel: Circuit Judges Pooler, Sack, and Lynch

Argument Date: June 7, 2016

Date of Issued Opinion: September 30, 2016

Docket Number: 15-1489(L)

Decided: Affirmed

Case Alert Author: Scott L. Wenzel

Robert T. Perry for Plaintiff-Appellee-Cross-Appellant Kwame Garnett and Richard Dearing for Zachary W. Carter, Corporation Counsel of the City of New York for Defendant-Appellant-Cross Appellee.

Author of Opinion:
Judge Pooler

Circuit: Second Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/03/2016 08:12 PM     2nd Circuit  

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