Some injustices will simply go unremedied

This really bears repeating. The police are allowed to make an arrest based on the victim's say-so, even if the person under arrest turns out to be innocent. Unless the police have reason to doubt the victim's first-hand account, the police have probable cause to credit that account.

The case is McIntosh v. City of New York, a summary order decided on January 25. We had a judge in the United States Courthouse in White Plains who used to say that when the police arrested someone but then dropped the charges, the police were giving him a ticket to the courthouse. That was only partially true. You could file the suit and frame the complaint in a way that makes it look like the police lacked probable cause, but an acquittal or dismissal without a criminal trial does not mean you can successfully sue the police.

In this case, the plaintiff got into a fight with her boyfriend, who called the police and showed them her injuries from the fight. The charges against McIntosh were later dropped. McIntosh then sued the police for false arrest. The Court of Appeals (Katzmann, Pooler and Kearse) affirms the grant of summary judgment against the plaintiff. Not only were the arresting officers dispatched to the scene after the boyfriend alleged that plaintiff had attacked him, but the police saw the boyfriend's  scratches and bite marks. This was enough to arrest plaintiff for assault and harassment.

In trying to avoid summary judgment, plaintiff argued that the police should have known better than to believe the boyfriend's version of events and that they should have credited plaintiff's account instead. This argument has been rejected in prior cases. "Absent circumstances that raise doubts about the victim's veracity, the veracity of citizen complaints who are the victims of the very crime they report to the police is assumed." That language is from Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997).

Interesting footnote turns up in this case. Plaintiff argues the police fabricated evidence against her, a substantive due process violation. But manufactured evidence by itself does not give you a case, especially if the arrest is otherwise supported by probable cause. As it happens, the Court of Appeals says in a footnote, the district court said the existence of probable cause is enough to defeat the due process claim. That was incorrect, the Circuit says, as per a Second Circuit ruling, Garnett v. Undercover Officer, 838 F.3d 265 (2d Cir. 2016), which said a Section 1983 case based on an officer's false information can proceed even if the police have probable cause to arrest. But that is harmless error in this case because the trial court reached the correct result. The footnote continues with this:

although we note that there may be some tension in our jurisprudence concerning the fabrication of evidence, we need not resolve any such confusion here because McIntosh was not subjected any deprivation due to fabricated evidence. Compare, e.g., Dufort v. City of New York, 874 F.3d 338, 355 (2d Cir. 2017) (“Mere attempts to withhold or falsify evidence cannot form the basis for a § 1983 claim for a violation of the right to due process when those attempts have no impact on the conduct of a criminal trial” because “[t]he constitutional right on which [such a] claim rests is the right to have one’s case tried based on an accurate evidentiary record that has not been manipulated by the prosecution.”); with Garnett, 838 F.3d at 277 (“The setting of bail, which may make the difference between freedom and confinement pending trial, and the prosecutor’s decision to pursue charges rather than to dismiss the complaint without further action, may depend on the prosecutor’s and magistrate’s assessments of the strengths of the case, which in turn may be critically influenced by fabricated evidence. Thus, a further deprivation of liberty can result from the fabrication of evidence even if the initial arrest is lawful.”).

So we have some confusion in the Second Circuit about when you can sue over false police evidence. That conflict will be resolved some day, just not this case.