False arrest cases: look at the whole picture

In this false arrest case, Stop and Shop store detectives saw a woman place merchandise into her Old Navy bag without paying for it. When a detective approached her, she ran out of the store and drove off in a white van. The Stop and Shop people called the police and told them what they saw. The officer, Wertman, looked at the videotape, which suggested that a woman who fit the description of the shoplifter was the perpetrator. Further investigation at a nearby Old Navy store showed that the perp was in that store and Old Navy bags were strewn on the floor. The investigation was not perfect, though. The perp was identified in a faulty photo array, however, and she was arrested but later acquitted following a bench trial. She sues for false arrest.

The case is Stansbury v. Wertman, decided on June 26. You can win the false arrest case if the police lacked probable cause to arrest. An acquittal is certainly a good start, but it's not enough. That faulty photo array was also a good start. The district court denied Wertman's motion for summary judgment, but the Court of Appeals (Wesley, Sack and Walker) reverses, and the false arrest (and malicious prosecution) case is gone.

Where did the district court go wrong? It said the jury could find no probable cause after it examined each piece of evidence in isolation, finding deficiencies in the case against Stansbury. You had the bad photo array, in which Stansbury's was the only photo for review. You had the fuzzy videotape. The eyewitness accounts were problematic. But, while the case against Stansbury was not air-tight, that does not give you a false arrest case. Under the totality of the circumstances, the police had probable cause to arrest her.

The Court of Appeals has held in the past that the totality test governs these inquiries. It furthers that doctrine in this case, citing a case from the D.C. Circuit Court of Appeals and some New York State cases to that effect. The D.C. Circuit's language now applies in the Second Circuit: “Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the [officer had probable cause]), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist.” Under these rules, the police had enough to arrest Stansbury. Here's how the Court of Appeals wraps it up:

Although the identifications from the photographic array in this case were less probative than even the two imperfect lineups in Jenkins, the evidence implicated Stansbury before any flawed identification. Prior to the identifications, Wertman was aware that, 22 minutes before the shoplifting, a middle-aged black woman had used Nicole Stansbury’s credit card at a nearby Old Navy and that new shopping bags were seen strewn on the floor near the exit of the store. When questioned about her whereabouts that evening, Wertman observed that Stansbury was nervous and evasive. Stansbury, moreover, had a previous arrest for a similar crime.

On top of the circumstantial evidence against Stansbury, five individuals (including three trained officers and two innocent victims with no alleged motive to lie, one of whom had training in facial identification) could not distinguish her from the perpetrator in admittedly flawed photographic arrays. The two victims submitted sworn affidavits expressing no uncertainty that Stansbury was the perpetrator. The fact that the victims did not offer timely detailed descriptions of the perpetrator means that probable cause could not be based on Stansbury’s matching these descriptions; it does not mean that the victims could not meaningfully identify Stansbury.