Bah v. Apple Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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OUSMANE BAH,

Plaintiff, 19-cv-3539 (PKC)

-against- OPINION

AND ORDER

APPLE INC. et al.,

Defendants.

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CASTEL, U.S.D.J.

Presently before the Court are defendants’ motions to dismiss the Third Amended

Complaint (the “Complaint” or “TAC”) for failure to state a claim. This action stems from the

misidentification of plaintiff Ousmane Bah as the individual who committed a series of thefts from

Apple stores over the course of approximately eight months.

The Court previously held that the First Amended Complaint (Doc 23) stated claims

for New York-based defamation and malicious prosecution against defendants Apple, Inc.

(“Apple”) and a firm it employed, Security Industry Specialists, Inc. (“SIS”). (Doc 49 (“MTD

Opinion”)). The Court concluded that the statements and actions of Apple and SIS were protected

by New York’s qualified privilege but that Bah plausibly alleged actual malice in connection with

his defamation and malicious prosecution claims. The conclusion was based principally on

allegations that Apple and SIS had identified two different individuals as Bah prior to reporting

the New York-based thefts to police. “As such, any statement identifying Bah as a thief, which

was based on this unreliable method of identification, was made with a reckless disregard for the

truth and made with a high degree of awareness that the identification was probably inaccurate,

based on defendants’ own records.” (MTD Op. 24).

The Court dismissed the claims based upon non-New York incidents because of the

limited reach of New York’s long arm statute in cases sounding in defamation. (MTD Op. 12).

The Court concluded that there is both a basis for personal jurisdiction and a plausible allegation

of defamation and malicious prosecution arising out of the New York Incidents. (MTD Op. 7–10,

14–15).

After the Court’s ruling on the first motion to dismiss, the case proceeded to

discovery. Although discovery had been conducted for nine months prior to the Court’s entry of a

stay for the purposes of the present motions, it has not been concluded and documents or testimony

obtained in discovery may not be permissibly considered on motions to dismiss. The present

version of the complaint is Bah’s fourth, and the Court has twice granted Bah leave to amend since

the decision on the motion to dismiss the First Amended Complaint. (Docs 79, 133). Bah continues

to assert claims for New York-based defamation and malicious prosecution against Apple and SIS

and has added SIS’s employee John Woodruff as a defendant. Notably, the Third Amended

Complaint alleges that the individual who engaged in the series of thefts was Mamadou Barrie.

(TAC ¶¶ 107–108),

In addition, the Third Amended Complaint added claims under section 1983

against Detectives Reinhold, Pagan, White Granato and Patelli of New York Police Department

(the “NYPD”) and defendant City of New York (the “City”). 42 U.S.C. §1983.

Each defendant has moved to dismiss the TAC. 1 For reasons to be explained, the

motions to dismiss of Apple, SIS and Woodruff will be denied and the motions to dismiss by each

of the NYPD detectives and the City will be granted.

1 Apple, SIS and SIS’s employee Woodruff initially moved to dismiss the Second Amended Complaint and

subsequently filed letters directing their pending motions to the TAC. (Docs 140 & 141).

BACKGROUND

I. The Complaint’s Factual Allegations.

Because the allegations in the Third Amended Complaint at times differ materially

from those considered by the Court in its first MTD Opinion, they will be described in some detail.

The first theft identified in the Complaint occurred on April 16, 2016, from an

Apple store in Montreal, Canada. The Complaint alleges that an individual named “Ousmane

Bah” was detained by Apple and SIS following an accusation that this individual had stolen

merchandise from the Montreal store. (TAC ¶ 19). Bah alleges that his physical features do not

match this individual’s features. (TAC ¶ 20).

The next relevant event alleged did not occur until 2018. As the Court previously

described, “[o]n March 26, 2018, Bah received a temporary New York State learner’s permit,

which contained Bah’s personal descriptive details, such as height, weight, date of birth, and eye

color, but did not include a photograph. By May 2018, Bah had lost this temporary learner’s

permit.” (MTD Op. at 2 (internal citations omitted)); (TAC ¶¶ 17–18). During 2018, Bah was a

high-school student who resided in New York City.

Starting in April 2018 and continuing for approximately eight months, Bah alleges

that Apple and SIS employees mistakenly identified him as the individual who committed a series

of thefts at Apple Stores in New York, New Jersey, Massachusetts, and Connecticut. The

Complaint asserts that the actual thief was Mamadou Barrie. (TAC ¶ 108). Bah alleges that his

physical features do not match Barrie’s features. (TAC ¶ 25).

In April 2018, Mamadou Barrie was detained in Greenwich, Connecticut, following

an accusation by Apple and SIS that an individual had stolen merchandise from one of Apple’s

stores (the “First Connecticut Incident”). (TAC ¶ 22). The Complaint alleges that during the

relevant period SIS provided security services at Apple’s New Jersey stores and performed

investigation and security services for Apple. (TAC ¶¶ 14–15). Barrie identified himself as

“Ousmane Bah” using Bah’s temporary New York State learner’s permit. (TAC ¶¶ 23, 26).

Though Barrie’s apparent physical features did not match the physical features described in the

temporary learner’s permit (5’7” vs. 6’1”), Apple and SIS informed the police that the thief was

“Ousmane Bah”. (TAC ¶ 26). Apple and SIS created an internal security record, matching

surveillance footage from Apple’s store of Barrie committing the theft with Bah’s name and

retained portions of surveillance footage showing the alleged theft. (TAC ¶¶ 26–27). They also

“published” the allegation that Bah was the thief to their own employees. (TAC ¶¶ 27, 175, 188).

On May 24, 2018, Mamadou Barrie was detained for shoplifting from an Apple

store in Paramus, New Jersey and identified himself as “Ousmane Bah” using Bah’s temporary

learner’s permit (the “First New Jersey Incident”). (TAC ¶¶ 30–32). An SIS employee reported

to the Paramus police that the name of the person detained by store security was “Ousmane Bah”

but, in fact, the person was Barrie. (TAC ¶¶ 34, 37). Apple and SIS created a “Be on the Lookout,”

or “BOLO,” notice under the name “Ousmane Bah” and internally matched surveillance footage

of Barrie’s theft with Bah’s name. (TAC ¶¶ 39, 176). Apple and SIS sent the BOLO notice to

their own employees, the police and unidentified others. (TAC ¶¶ 39, 175, 188). The Complaint

asserts that using their identification from the Paramus theft, Apple and SIS mistakenly began

attributing to “Ousmane Bah” prior thefts committed by Mamadou Barrie, including a May 5, 2018

theft from an Apple store in Short Hills, New Jersey that was reported to local police. (TAC ¶ 38).

On May 31, 2018, Apple and SIS employees reported to the Boston, Massachusetts

police that a Boston Apple store had suffered a theft, committed by the same individual that

committed the theft at the Connecticut store (the “Massachusetts Incident”). (TAC ¶¶ 41, 43).

Bah alleges that the theft was in fact committed by Barrie. (TAC ¶ 45). Apple and SIS identified

the thief to the Boston police as Bah based on the BOLO notice from the First New Jersey Incident

as well as surveillance video and internal records from the Connecticut Incident. (TAC ¶¶ 44, 51,

69). They also “published” this allegation regarding the Massachusetts Incident to their employees

and law enforcement. (TAC ¶¶ 175, 188).

The Complaint alleges that Barrie committed two thefts from Apple stores in

Cherry Hill, New Jersey and Freehold, New Jersey on September 18, 2018 (the “Second New

Jersey Incident”). (TAC ¶¶ 75, 77). Apple and SIS employees reported to the local police that

these stores had suffered a theft and identified Bah as the thief. (TAC ¶¶ 76, 80). Bah also alleges

that Apple and SIS “published” these allegations to their own employees and law enforcement.

(TAC ¶¶ 175, 188). On December 6, 2018, plaintiff Bah received notice of charges against him

relating to the theft of the Freehold Apple store. (TAC ¶ 142). On December 12, 2018, charges

against Bah relating to theft of the Cherry Hill store were dropped after an individual who was not

Bah appeared in response to a summons. (TAC ¶¶ 147–49).

The Complaint alleges that Barrie committed another theft at an Apple store in

Rockaway, New Jersey on October 18, 2018 (the “Third New Jersey Incident”). (TAC ¶ 96).

Defendant John Woodruff, an SIS employee providing security at the Rockaway store, identified

the theft upon a review of surveillance footage. (TAC ¶ 96). Woodruff named Bah as the

individual responsible to the Rockaway Police. (TAC ¶ 99). In addition, Apple employees

reported the theft to a central database maintained by SIS called the “Global Security Operations

Center,” which maintained information tying Bah to multiple thefts. (TAC ¶¶ 97–98). Bah also

alleges that Apple and SIS “published” this allegation to their own employees. (TAC ¶¶ 175, 188).

The foregoing chronology is the lead up to the New York arrest of Bah. The

Complaint alleges that Mamadou Barrie committed thefts at an Apple store in Staten Island, New

York on October 22, 2018 and October 24, 2018 (the “New York Incidents”). (TAC ¶¶ 100–01).

On November 8, 2018, defendant Detective John Reinhold of the NYPD issued a “METRORCA

Alert,” which requested information on the New York Incidents and included a description and

photograph from store surveillance video of the thief. (TAC ¶ 102 & Ex. 2). In response to this

alert, on November 15, 2018, Woodruff emailed Detective Reinhold informing him that the

individual “is known to us as Ousmane Bah” and that “he has been hitting Apple stores for quite

a few months and doesn’t appear to be stopping.” (TAC Ex. 2; TAC ¶ 103). The Complaint also

alleges that based on a surveillance video image from the Staten Island store, Reinhold ran a search

to identify the individual using facial recognition technology. It asserts that the results from a

NYPD database search identified both Barrie and Bah. (TAC ¶ 107).

In the early morning hours of November 29, 2018, Bah was arrested at his home by

NYPD detectives, defendants Pagan, White, Granata and Pattelli (the “Arresting Officers”). (TAC

¶ 118). The Complaint alleges that following Bah’s arrest he was taken to an NYPD precinct

where Reinhold determined that Bah did not match the physical appearance of the thief from the

New York Incidents after comparing Bah’s appearance to images of the individual captured on

surveillance video. (TAC ¶ 126). Bah was released and, subsequently, the charges related to the

New York Incidents were dropped. (TAC ¶ 126).

The Complaint details two additional thefts. On October 28, 2018, less than a week

after the New York Incidents, but before Bah was arrested by the NYPD, Apple and SIS employees

reported to the Trumbull, Connecticut police that a Trumbull Apple store had suffered a theft.

(TAC ¶¶ 92). An Apple employee, relying on information from the Global Security Operation

Center, named Bah as the thief. (TAC ¶ 92). The Complaint alleges that the thief was in fact

Barrie. (TAC ¶ 141).

On December 1, 2018, two days after Bah’s arrest in New York, Barrie was

allegedly detained for shoplifting from an Apple store in Holyoke, Massachusetts. (TAC ¶ 135).

Apple and SIS employees reported the theft to the Holyoke police, who arrested and fingerprinted

Barrie. (TAC ¶ 138). Through fingerprinting, the Holyoke police identified the thief as Barrie.

(TAC ¶ 138).

DISCUSSION

II. Apple, SIS and Woodruff’s Motions to Dismiss.

Apple, SIS and Woodruff (the “private defendants”) urge that Bah’s claims of

defamation and malicious prosecution, premised on statements related to and the arrest arising

from the New York Incidents, should be dismissed. As noted, the present motions to dismiss are

presented in an atypical context. Discovery has been ongoing for nine months, yet the fruits of

discovery are not permissibly considered on this motion to dismiss. While the grounds asserted

for dismissing the claims are context dependent, the context has not and cannot be fully presented

on this motion. The Court will deny the motions to dismiss the private defendants’ motions

without prejudice to reassertion of the grounds on a full evidentiary record.

In the first MTD Opinion, the Court set forth the applicable pleading standard

under Rule 12(b)(6), Fed. R. Civ. P., and the legal standards for claims of defamation and

malicious prosecution (MTD Op. at 18 – pleading standard; id. at 19–22 – defamation; id. at 25–

28 – malicious prosecution). Familiarity with the Court’s MTD opinion is assumed.

A. Defamation.

Apple, SIS and Woodruff raise two grounds for dismissal of Bah’s defamation

claim. They urge that (i) Bah fails to allege a false statement of fact and (ii) fails to plead actual

or common law malice sufficient to overcome New York’s qualified privileges.

i. False Statement of Fact.

Falsity is an element of a defamation claim under New York law. Accordingly, “a

plaintiff must plead facts demonstrating falsity to prevail on a motion to dismiss the complaint in

federal court.” Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 247 (2d Cir.

2017); see also Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 34 (1st Dep’t 2014) (“Because

the falsity of the statement is an element of the defamation claim, the statement’s truth or

substantial truth is an absolute defense.”). “‘Substantial truth’ is the standard by which New York

law . . . determines an allegedly defamatory statement to be true or false.” Tannerite Sports, 864

F.3d at 242. “A statement is substantially true if the statement would not have a different effect

on the mind of the reader from that which the pleaded truth would have produced.” Id. (internal

quotation marks and alteration omitted). “When a court interprets a publication in an action for

defamation, ‘[t]he entire publication, as well as the circumstances of its issuance, must be

considered in terms of its effect upon the ordinary reader.’” Id. at 243 (quoting Silsdorf v. Levine,

59 N.Y.2d 8, 13 (1983)).

Apple and SIS urge that Woodruff’s email to Detective Reinhold is substantially

true. Woodruff’s alleged defamatory email stated that the individual shown in the Staten Island

store’s surveillance image “is known to us as Ousmane Bah” and that “he has been hitting Apple

stores for quite a few months and doesn’t appear to be stopping.” (TAC Ex. 2). Apple and SIS

argue that the phrase “known to us” makes this a true statement because, at the time, they believed

Bah was the individual depicted in the image and had committed a series of thefts.

Under New York law, courts are required to consider the statement’s context in

assessing whether it was substantially true. See Franklin v. Daily Holdings, Inc., 135 A.D.3d 87,

94 (1st Dep’t 2015) (“A reader could read the alleged defamatory statement in the context of the

rest of the article and think that plaintiff was actually present in the club, prepared to shoot a

firearm; whereas, a reader of plaintiff's isolated statement on Twitter may not have the same

impression.”). Woodruff’s statement was made in response to Detective Reinhold’s request for

information on the thief who committed the New York Incidents. Woodruff’s response was not

transmitted to the public at large but to members of law enforcement with the sophistication and

experience to draw a distinction between the phrase “known to us” and an unqualified confirmation

of identity. But the Court will allow the parties to develop a complete factual record which would

enable the Court to decide the issue in the surrounding context.

ii. Actual Malice.

The Court previously held that although Apple and SIS’s statements fell within

New York’s qualified privileges covering communications with law enforcement or persons with

common interests, Bah sufficiently alleged actual malice to overcome those qualified privileges.

(MTD Op. at 19). Apple and SIS again move to dismiss the Complaint on this ground, namely,

that Bah has failed to allege actual or common law malice sufficient to overcome the qualified

privileges.

As an initial matter, the Court concludes that based on the allegations in the

Complaint, the alleged defamatory statements are still covered by New York’s qualified privileges.

The Complaint alleges these defendants published statements identifying Bah as the thief either to

the NYPD or to persons who were in an employment or vendor relationship with each other and

concerned that commercial relationship. Such statements are covered by the qualified law

enforcement privilege and qualified common interest privilege, respectively.

The Court previously held that the First Amended Complaint plausibly alleged

actual malice based on allegations that, at the time of the New York Incidents, Apple and SIS

“‘knew or were constructively aware that [their] identification of the thief as Bah was unreliable’

because they had ‘identified two very different persons as Bah.’” (MTD Op. at 24 (quoting First

Amended Complaint ¶ 37)). The private defendants had identified the individual in the

Massachusetts Incident and in the Connecticut Incident as Bah, even though they were two

different individuals neither of whom was the plaintiff Bah. Bah no longer alleges that the private

defendants identified two different individuals in the Massachusetts and Connecticut Incidents as

Bah.

The Complaint alleges that on April 16, 2016 an individual named Ousmane Bah

was detained at an Apple Store in Montreal, Canada and subsequently arrested for shoplifting.

(TAC ¶ 19). While the Complaint asserts that the Montreal thief’s physical features did not match

plaintiff Bah’s physical features, there are no allegations suggesting that Apple and SIS ever

believed plaintiff Bah was responsible for the Montreal theft.

The Complaint alleges that at the time of the Massachusetts Incident on May 31,

2018, Apple and SIS had identified “at least two, and possibly more, different persons as Bah.”

(TAC ¶ 47). But this assertion is contradicted by the TAC’s allegations of the shoplifting incidents

that preceded the Massachusetts Incident. The Complaint now alleges that Apple and SIS only

identified one individual as the shoplifter, later determined to be Barrie, in connection with the

Connecticut Incident and First New Jersey Incident. (TAC ¶¶ 25, 37). There is no longer a

plausible claim that two different individuals were identified as Bah in connection with these

thefts.

Lastly, the Complaint references two other instances of individuals who “were

described as or whose images were produced in response to charges against” Bah. (TAC ¶ 157).

Neither of these instances bear on the issue of whether Apple or SIS had identified multiple

individuals as Bah prior to publishing any statements relating to the New York Incident. First, in

January 2019, prosecutors in Massachusetts produced a surveillance video of an unidentified

individual, other than Barrie, committing a theft in the Boston Apple store on the same date of the

Massachusetts Incident. (TAC ¶ 156). However, the Complaint does not allege that Apple and

SIS ever identified this individual as Bah when it made statements to the NYPD or police in other

jurisdictions prior to the New York Incidents. (TAC ¶¶ 156–57). Second, on December 12, 2018,

the Complaint alleges that a SIS employee was present in New Jersey state court when charges

against Bah were dropped after an individual named Ousmane Bah, other than plaintiff, responded

to the summons. (TAC ¶¶ 147–50; 157). Again, there is no allegation that Apple or SIS ever

identified or named the individual who appeared in New Jersey Court as a thief.

Because the Complaint no longer plausibly alleges that Apple and SIS’ identified

two different individuals as Bah, the Court must consider whether the allegations in the Complaint

otherwise allege common law or actual malice sufficient to overcome the qualified privileges. For

a defamatory statement to be made with actual malice, a plaintiff must allege that defendants acted

in reckless disregard of the truth, i.e., that they knew there was a high probability that the thief was

not Bah and therefore that their statements identifying Bah as such were false. Liberman v.

Gelstein, 80 N.Y.2d 429, 437–38 (1992).

Bah fails to allege that Apple and SIS had actual knowledge that their naming of

Bah as the thief in connection with the New York Incidents was false. Woodruff’s email to

Detective Reinhold was sent on November 15, 2018 and other statements made by Apple or SIS

relating to the New York Incidents were made sometime prior to Bah’s arrest on November 29,

2018. At the time that Reinhold released Bah from custody, none of the charges brought against

Bah in other jurisdictions had been dropped. (TAC ¶¶ 122, 132). Indeed, the TAC now alleges

that it was not until the period of late November to mid-December 2018 that Apple and SIS had

“actual knowledge” that the person who had been committing thefts at the Apple stores in different

locations was not Osumane Bah, the plaintiff. (TAC ¶¶ 152–53). But, reading the TAC as a whole,

it appears that the private defendants only learned sometime after the November 29 arrest of

plaintiff Bah that he was not the person in the photograph of the actual thief. (TAC ¶ 118–20).

Without a plausible allegation that Apple, SIS or Woodruff knew Bah to be innocent of the thefts

until after he was arrested by NYPD, Bah must rely solely upon the argument that the actual malice

requirement is satisfied because the private defendants are alleged to have acted with a reckless

disregard for the truth. As explained in the MTD Opinion, the reckless disregard standard requires

facts to be alleged showing a “high degree of awareness” of the probable falsity of the statements.

(MTD Op. at 22).

In an effort to satisfy this standard, Bah ascribes significance to the legend on the

Temporary Learner’s Permit that it may not be used for identification purposes. But, legend or

not, possession by the real thief of the Temporary Learner’s Permit would likely have significance

to law enforcement or store security personnel. Neither a library card nor a utility bill is a

customary means of identification yet finding such a document on a suspect’s person could lead

an investigator to develop a reasonable hypothesis that the person bearing the document was the

person named in the document.

Bah makes much of the height discrepancy between the person described on the

Temporary Learner’s Permit and the person seen committing the thefts in the video surveillance.

But without considering the content of the video surveillance footage, it is not possible to know

whether the height variance would have had much significance even to a sophisticated viewer.

The thin allegations of a “high degree of awareness” of the falsity of the statements

made by the private defendants in connection with the New York Incidents are best assessed after

the conclusion of discovery. As noted in the Court’s prior opinion, this “case may look very

different at the summary stage.” (MTD Op. at 24). The Court will deny defendants’ motion to

dismiss the defamation claim for failing to plausibly allege actual malice.

B. Malicious Prosecution.

The private defendants move to dismiss Bah’s malicious prosecution claim on

grounds that the Complaint neither pleads commencement of a judicial proceeding by these

defendants nor actual malice. The remaining claim of malicious prosecution arises solely from the

New York proceeding against Bah.

As to the first element, “New York law has long equated the civil defendant’s

failure to make a full and complete statements of the facts to the District Attorney or the court, or

holding back information that might have affected the results, with that defendant’s initiation of a

malicious prosecution.” Ramos v. City of New York, 729 N.Y.S.2d 678, 690 (1st Dep’t 2001)

(citing Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296, 300 (1928)). The Court previously

stated that pleading this element for defendants who are non-governmental entities requires Bah

to “allege that defendants knew their accusations were false or that they withheld information that

might have influenced the decision to prosecute.” (MTD Op. at 26–27). Finding that Apple and

SIS withheld information in their statements to the NYPD that the identification of Bah relied upon

an unreliable internal security system, which had labeled two physically distinct individuals as

Bah, the Court concluded that Bah adequately alleged this element. (Id.) Although, as discussed

above, Bah no longer alleges that two different individuals were identified, the Complaint still

alleges sufficient facts to infer that Apple and SIS withheld information.

The only alleged statement identifying Bah as a thief to the NYPD was Woodruff’s

statement to Detective Reinhold. The November 15, 2018 email from Woodruff was in response

to an alert sent by Reinhold requesting information on the alleged theft at the Staten Island Apple

store. (TAC Ex. 2). Bah alleges that Woodruff failed to disclose the basis for the identification of

Bah including that it was based on Bah’s Temporary Learner’s Permit and the process by which

Apple’s and SIS’ internal security records matched a surveillance photo of Barrie with Bah’s name.

Whether these facts would have been material to law enforcement cannot be assessed on the

pleadings alone. Drawing all reasonable inferences in Bah’s favor and without the context of a

complete factual record, the Court will deny the private defendants’ motions to dismiss the

malicious prosecution claim.

III. City Defendants’ Motion to Dismiss.

Bah asserts claims under section 1983 alleging arrest without probable cause and

false arrest against Reinhold based on his identification of Bah as the thief responsible for the New

York Incidents and against Pagan, White, Granata and Pattelli as the officers who arrested Bah.2

42 U.S.C. § 1983. The Complaint also asserts that the City is liable for the alleged constitutional

violations based on its failure to train NYPD officers in the use of facial recognition technologies

to make identifications.

When reviewing a motion to dismiss, a court may consider “the facts alleged in the

complaint, documents attached to the complaint as exhibits, and documents incorporated by

reference in the complaint” as well as “document[s] ‘integral’ to the Complaint.” DiFolco v.

MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court may take judicial notice of

relevant matters of public record “in order to determine what statements [they] contained—but []

not for the truth of the matters asserted.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)

(internal quotation marks omitted); see also Shmueli v. City of New York, 424 F.3d 231, 233 (2d

Cir. 2005) (“[The] prosecution of Shmueli is a matter of public record, of which we take judicial

2 A government-official defendant can be held liable if he or she “directly participated” in a constitutional violation.

Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Reinhold and the Arresting Officers do not challenge the

adequacy of the allegation of their personal involvement in the alleged constitutional violation.

notice.”); Corley v. Vance, 365 F. Supp. 3d 407, 432 (S.D.N.Y. 2019) (“In considering a motion

to dismiss, the Court may consider matters of which judicial notice may be taken under Fed. R.

Evid. 201, including public records such as Plaintiff's arrest reports, indictments, and criminal

disposition data.”). Bah has annexed to his opposition memorandum documents including arrest

reports, criminal complaints and NYPD “Investigation Cards.” (See generally Doc 149; Doc 148,

Exs. A–N; Pl’s Opp. at 4–10). These documents are not otherwise incorporated by reference or

attached to or integral to the Complaint, and the City, Reinhold and the Arresting Officers object

to their being considered on this motion. (City Reply 2–3; Doc 152). Although the Court will take

judicial notice of the public records submitted by Bah for the limited purpose described above, it

otherwise declines to convert this Rule 12 motion into one for summary judgment.

A. Legal Standard for Claims under Section 1983.

To state a claim under section 1983, a plaintiff must allege that state officials, acting

under color of state law, deprived him or her of a right guaranteed by the Constitution or federal

law. 42 U.S.C. § 1983; see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A claim for

false arrest brought under section 1983 is “substantially the same as a claim for false arrest under

New York law.” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015) (quoting Jenkins

v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007)). “To state a claim for false arrest under New

York law, a plaintiff must show that ‘(1) the defendant intended to confine the plaintiff, (2) the

plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement,

and (4) the confinement was not otherwise privileged.’” Savino v. City of New York, 331 F.3d

63, 75 (2d Cir. 2003) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).

“Probable cause is a complete defense to a constitutional claim of false arrest . . . . ”

Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). Probable cause exists when the arresting officer

has “knowledge or reasonably trustworthy information of facts and circumstances that are

sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has

committed or is committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “When

determining whether probable cause existed to support an arrest, [the court] ‘consider[s] those

facts available to the officer at the time of arrest and immediately before it,’ and . . . must render

[its] decision based on the ‘totality of the circumstances.’” Simpson, 793 F.3d at 265 (quoting

Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)). Even in the absence of probable cause, an

officer may prevail on a section 1983 claim of false arrest under the doctrine of qualified immunity.

“An officer is entitled to qualified immunity from a federal false arrest and imprisonment claim if

he had arguable probable cause to arrest the plaintiff for any offense, regardless of the offense with

which the plaintiff was actually charged.” Kass v. City of New York, 864 F.3d 200, 206 (2d Cir.

2017).

B. Bah Fails to State a Claim Against Reinhold and the Arresting Officers.

Defendants urge that the section 1983 claims against Detectives Reinhold, Pagan,

White, Granata and Pattelli, should be dismissed because there was probable cause or, at least,

arguable probable cause to arrest Bah. For reasons to be explained, Bah’s claims against Reinhold

and the Arresting Officers will be dismissed because the Complaint alleges that Bah was arrested

pursuant to a valid arrest warrant.

According to the Complaint, Reinhold was the detective responsible for

investigating the New York Incident. Bah alleges that on November 8, 2018, Reinhold sent an

alert through a system accessible to individuals outside the NYPD requesting information on the

thief from the New York Incidents. (TAC ¶ 102). This alert also included an image of the thief

taken from the surveillance video of the Staten Island Apple store. (TAC ¶ 102). On November

15, 2018, Woodruff responded to this alert via email and stated:

The below individual is known to us as Ousmane Bah. He has been hitting Apple

stores for quite a few months now and doesn’t seem to be stopping. I am not sure

if you have a contact with our Apple LP district managers but I recently heard from

an Apple manager at Staten Island that you were trying to ID him. I can give u

whatever I have on his cases and losses we have experienced if you have not already

gotten it. Looks like he hits from Connecticut to south Jersey. Feel free to reach out

to me anytime.

(TAC. ¶ 103 & Ex. B).

In November 2018, prior to Bah’s arrest, the Complaint alleges that Reinhold

submitted the surveillance video image of the thief from the New York Incidents to the NYPD’s

Facial Identification Section (“FIS”), who uses facial recognition technology to make

identifications. (TAC ¶ 106). The FIS matched two names with the image that was submitted:

Bah and Barrie. (TAC ¶ 107). Reinhold resubmitted the image to the FIS, but they did not perform

a second search and instead referenced its previous results. (TAC ¶¶ 111–12). The Complaint

alleges that under FIS’ procedures if a search identifies two individuals, it will not run a second

search and “should be abandoned as a means of identification.” (TAC ¶¶ 109, 112). Bah asserts

that Reinhold did not take additional investigative steps to determine whether Barrie was the thief

upon receiving the results from the FIS. (TAC ¶¶ 110, 113).

Notably, the Complaint also alleges that a “warrant” was issued for Bah’s arrest.

(TAC ¶¶ 114–15, 118–20). It asserts that the Arresting Officers possessed the warrant when

arresting Bah and that the warrant contained a photo of Barrie. (Id.). Under New York’s Criminal

Procedure Law, “[a] warrant of arrest is a process issued by a local criminal court directing a police

officer to arrest a defendant designated in an accusatory instrument filed with such court . . . .”

N.Y. Crim. Pro. L. § 120.10(1). The warrant must “be subscribed by the issuing judge . . . .” Id.

§ 120.10(2).3

Where an officer makes an arrest pursuant to a warrant it is presumed to be

reasonable and to have been issued on probable cause. See Walczyk v. Rio, 496 F.3d 139, 155–

56 (2d Cir. 2007) (“Ordinarily, an arrest or search pursuant to a warrant issued by a neutral

magistrate is presumed reasonable because such warrants may issue only upon a showing of

probable cause.”). Similarly, under New York law, “[w]here the confinement or detention of an

individual against his or her will is privileged, a cause of action alleging false arrest will not lie.”

Ali v. City of New York, 145 A.D.3d 838, 839 (2d Dep’t 2016). “A confinement is privileged

when it is ‘based on an arrest warrant, valid on its face, issued by a court having jurisdiction.’”

Urena v. City of New York, 127 A.D.3d 538, 539 (1st Dep’t 2015) (quoting Saunsen v. State of

New York, 81 A.D.2d 252, 253 (2d Dep’t 1981)).

Bah alleges that his arrest was effectuated pursuant to a warrant, and he does not

contest that warrant’s facial validity or claim that it was procured through fraud, misrepresentation

or other misconduct. See Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993). The Complaint

further asserts that Reinhold and the Arresting Officers were aware of the warrant.

Accordingly, the Court concludes that Bah’s arrest was privileged, Urena, 127

A.D.3d at 539, and his claims under section 1983 for false arrest against Reinhold and the Arresting

Officers fail as a matter of law. See Southerland v. Garcia, 483 F. App’x 606, 608 (2d Cir. 2012)

(“[Plaintiff’s] false arrest and imprisonment claim must fail because he was arrested pursuant to a

facially valid warrant.”); Vasquez v. Reilly, No. 15 cv 9528 (KMK), 2017 WL 946306, at *7

3 The City Defendants assert in their Memorandum of Law that no warrant was issued relating to the New York

Incidents but that there were three outstanding warrants for Bah’s arrest from other incidents. (City Mem. at 4 n. 2.)

Whether the warrant or warrants were issued by a New York court or a sister state court is not material to the

disposition of the motion.

(S.D.N.Y. Mar. 9, 2017) (“Plaintiff cannot rebut the presumption of probable cause created by the

issuance of a valid arrest warrant, and Plaintiff has thus failed to state a claim for false arrest under

either federal or New York law.”); Jones v. Trump, 971 F. Supp. 783, 788–89 (S.D.N.Y. 1997)

(“As plaintiff concedes, he was arrested on October 5, 1995 pursuant to a warrant issued by Judge

Cataldo of the Criminal Court of New York City. Plaintiff has therefore failed to allege that

defendants were not entitled to arrest him . . . .”) (internal citation omitted)). Even if the arrest

was made pursuant to out-of-state warrants, as the City asserts in its memorandum, Bah’s claim

would still fail. Rosado v. Vill. of Goshen, No. 16 cv 6916 (NSR), 2019 WL 1437522, at *7

(S.D.N.Y. Mar. 31, 2019) (dismissing on a rule 12(b)(6) motion plaintiff’s section 1983 claim for

false arrest against New York police officers where the arrest was made pursuant to an out-of-state

warrant); Justice v. Kuhnapfel, No. 13 cv 659 (MKB), 2014 WL 2434139, at *3 (E.D.N.Y. May

29, 2014); Johnson v. Kings Cty. Dist. Attorney's Off., 308 A.D.2d 278, 286 (2d Dep’t 2003); see

also Case v. Kitsap County Sheriff’s Dept, 249 F.3d 921, 927–28 (9th Cir. 2001) (dismissing

section 1983 claim on qualified immunity grounds where plaintiff’s arrest in Washington was

made pursuant to an Oregon warrant).

Reinhold’s investigation, which according to the Complaint consisted of the email

from Woodruff and the results of a search using NYPD’s facial recognition technology, does not

alter the Court’s analysis. In combination with the warrant issued for Bah’s arrest, the

identification by Woodruff provided further information suggesting that Bah was responsible for

the New York Incidents. Cf. United States v. Towne, 870 F.2d 880, 884 (2d Cir.1989) (finding

probable cause to arrest in the context of a motion to suppress where officer learned of out-of-state

warrant after conducting a background check on NCIC and receiving a certified copy of warrant

before arresting the defendant); Betts, 751 F.3d at 82 (“[P]robable cause exists if a law enforcement

officer ‘received . . . information from some person, normally the putative victim or eyewitness,

unless the circumstances raise doubt as to the person’s veracity.’”) (quoting Crowley, 460 F.3d at

395). The allegations that Bah did not have the same physical appearance as the warrant

photograph, standing alone, does not undermine the presumption of probable cause from the

issuance of an arrest warrant. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.

1997) (“Once a police officer has a reasonable basis for believing there is probable cause, he is not

required to explore and eliminate every theoretically plausible claim of innocence before making

an arrest.”).

Lastly, this is not a “so-called ‘misnomer case[],’ where warrants could have been

applied with complete accuracy to two or more persons.” Davis v. City of Syracuse, 66 N.Y.2d

840, 842–43 (1985). The warrant was for Bah’s arrest and could not have been applied to Barrie

as it did not list Barrie’s name. Because Bah was the individual that the Arresting Officers intended

to arrest, they “were obliged only to assure” themselves that they were “arresting the person

described therein, and that the description bore a reasonable resemblance to the arrestee.” Id. at

843. The bare allegation that Bah did not physically resemble the individual from the photo in the

warrant, where Bah was the individual named in the warrant, does not prevent the arrest from

being privileged. See Hernandez v. United States, 939 F.3d 191, 200–01 (2d Cir. 2019)

(concluding that plaintiff stated claim under the FTCA for false arrest where he was seized

pursuant to an immigration detainer that was issued for a person with a different name than

plaintiff, and because the names did not match, further inquiry was required by law enforcement).

The Court concludes that Bah has failed to plausibly allege a claim under section

1983 against Reinhold or the Arresting Officers. Because Bah has failed to state a claim, the Court

declines to address these defendants’ argument that they are immune from liability under the

doctrine of qualified immunity.

C. Bah Fails to State a Claim Against the City of New York.

Bah asserts that the City is liable for the deprivation of his constitutional rights

pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).

To the extent that Bah has failed to plausibly allege that Reinhold, the Arresting Officers or other

municipal actors violated his constitutional rights, Bah’s Monell claim also fails. Askins v. Doe

No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (“Unless a plaintiff shows that he has been the victim of

a federal law tort committed by persons for whose conduct the municipality can be responsible,

there is no basis for holding the municipality liable.”). Even if the Court were to assume Bah’s

constitutional rights had been violated, the Complaint fails to plausibly allege that the City’s failure

to train its officers or its polices or customs led to such a constitutional violation.

“In order to establish municipal liability, ‘a plaintiff must show that the violation

of his constitutional rights resulted from a municipal custom or policy.’” DeCarlo v. Fry, 141 F.3d

56, 61 (2d Cir. 1998) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d

Cir. 1991)). A municipality may not be held liable on section 1983 claims solely “by application

of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986).

Instead, municipal liability can be found where: (1) “a particular municipal action itself violates

federal law, or directs an employee to do so,” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown,

520 U.S. 397, 404 (1997) (emphasis in original), (2) an “authorized decisionmaker has

intentionally deprived a plaintiff of a federally protected right,” Id. at 405, (3) unconstitutional

“practices [are] so persistent and widespread as to practically have the force of law,” Connick v.

Thompson, 563 U.S. 51, 61 (2011), and (4) a municipality’s failure to train its employees about

their legal duty to avoid violating a citizen’s rights amounts to “deliberate indifference.” Id. In

any case, “a plaintiff must show that the municipal action was taken with the requisite degree of

culpability and must demonstrate a direct causal link between the municipal action and the

deprivation of federal rights.” Bryan Cty., 520 U.S. at 404.

“A municipality’s culpability for a deprivation of rights is at its most tenuous where

a claim turns on a failure to train.” Connick, 563 U.S. at 61. A plaintiff who seeks to hold a

municipality liable for its failure to train must show that such a failure amounted to “deliberate

indifference.” Id. “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that

a municipal actor disregarded a known or obvious consequence of his action.” Id. “A showing of

simple or even heightened negligence will not suffice.” Hernandez, 939 F.3d at 207 (quoting

Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018)). Generally, “[a] pattern of similar

constitutional violations by untrained employees is [] necessary to demonstrate deliberate

indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (internal quotation marks

omitted).

At the motion to dismiss stage, the Second Circuit utilizes a three-prong test to

determine whether plaintiffs have demonstrated a municipality’s “deliberate indifference” in the

context of a failure to train claim. Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir.

1992). “First, the plaintiff must show that a policymaker knows to a moral certainty that her

employees will confront a given situation.” Id. at 297 (internal quotation marks omitted).

“Second, the plaintiff must show that the situation either presents the employee with a difficult

choice of the sort that training or supervision will make less difficult or that there is a history of

employees mishandling the situation.” Id. And third, “the plaintiff must show that the wrong

choice by the city employee will frequently cause the deprivation of a citizen’s constitutional

rights.” Id. at 298. Where all three elements are established a plaintiff has stated a plausible

Monell claim based on a failure to train. Id.; see also Amnesty Am. v. Town of W. Hartford, 361

F.3d 113, 130 n. 10 (2d Cir. 2004).

The Complaint’s theory of Monell liability is based on the City’s failure to train

its officers in instances where facial recognition technology identifies more than one individual.

(TAC ¶¶ 223–24). It alleges that the NYPD has a protocol that addresses the use of the facial

recognition search results when multiple individuals are identified. (TAC ¶¶ 222–24). Reinhold

allegedly violated this protocol by relying on the results of a search that identified both Bah and

Barrie. A violation of departmental policy does not, in and of itself, amount to the violation of a

right protected by the Constitution or federal law. See United States v. Wilson, 699 F.3d 235,

238, 243 (2d Cir. 2012) (finding that “the Fourth Amendment does not generally incorporate

local statutory or regulatory restrictions,” such that a seizure in violation of departmental policy

and state law did not amount to a constitutional violation). Nor does the fact that such a policy

violation occurred, without more, indicate inadequate training on the part of the City. See De

Michele v. City of New York, No. 09 cv 9334 (PGG), 2012 WL 4354763, at *21–22 (S.D.N.Y.

Sep. 24, 2012). See also Bah v. City of New York, No. 13 cv 6690 (PKC), 2017 WL 435823, at

*6 (S.D.N.Y. Jan. 31, 2017).

Further the Complaint fails to allege a history or pattern of officers ignoring the

NYPD’s facial recognition protocol when search results identify more than one individual; it

merely alleges a single instance of Reinhold not following the policy. See City of Canton v. Harris,

489 U.S. 378, 390 (1989) (“That a particular officer may be unsatisfactorily trained will not alone

suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors

other than a faulty training program.”).

Bah’s opposition memorandum attempts to buttress his failure to train claim with

allegations not in the Complaint and other materials that the Court cannot consider on a motion to

dismiss. (Pl’s Mem. 24–27). Even if the Court were to consider these allegations, Bah would still

fail to state a Monell claim, and therefore any motion to amend, without more, would be futile.

In his opposition memorandum, Bah appears to advance a theory of municipal

liability based on the City’s failure to train officers regarding the identification of suspects, which

he alleges leads to arrests without probable cause. First, Bah points to a 2019 study by the

American Civil Liberties Union (“ACLU”) that criticizes the FIS’s use of facial technology to

identify individuals. (Pl’s Mem. at 24; Tariq Decl. Ex. N). The ACLU study broadly criticizes

police departments for over relying on facial recognition technology and identifies what appears

to be four instances of the NYPD misidentifying suspects using the technology. (Pl’s Mem. at 24–

25). Other than the ACLU article, Bah fails to point any other instances of individuals being

misidentified by the NYPD through the use of facial recognition technology, and he points to no

instances where such misidentifications led to findings of liability against the City for

constitutional violations. The ACLU article only provides conclusory support to Bah’s assertion

that the City has failed to train its officers regarding the use of facial recognition technology.

Second, Bah’s memorandum asserts that the City has failed to properly train its

officers to ensure that victims of impersonation are not misidentified as the impersonator. (Pl’s

Mem. 25). Bah asserts that on July 17, 2018 and September 6, 2018, non-defendant NYPD officers

arrested Barrie. (Pl’s Mem. at 4–5). In both cases, Barrie allegedly identified himself as Bah to

the arresting officers. The NYPD records associated with these arrests, of which the Court may

take judicial notice, list “Ousmane Bah” as the “defendant” even though Barrie was the individual

arrested. (Tariq Decl. Exs. D & E). These are the only two instances identified by Bah of this

alleged failure to train officers in completing arrest records. Such allegations, limited to

circumstances relating to Bah, fail to allege a broader history or pattern of misidentifying victims

of impersonation and fail to support the plausible inference that the City was on notice that its

training was deficient in the manner alleged by Bah. See Boddie v. City of New York, No. 15 cv

4275 (GHW), 2016 WL 1466555, at *4 (S.D.N.Y. Apr. 13, 2016) (“[T]he handful of specific

incidents described in the Report are not similar enough to the alleged violation at issue here to

plead that the City was deliberately indifferent to a pattern of constitutional violations.”); Pluma

v. City of New York, No. 13 cv 2017 (LAP), 2015 WL 1623828, at *12 (S.D.N.Y. Mar. 31, 2015)

(holding that allegations of a “handful of dissimilar incidents occurring over the course of more

than a decade is too sparse to put the City on notice that the NYPD's training program produces

officers who are likely to commit constitutional violations through their deployment of pepper

spray”); cf. Connick, 563 U.S. at 62 (holding that four overturned Brady convictions “could not

have put [the defendant] on notice that the office’s Brady training was inadequate with respect to

the sort of Brady violation at issue here.”). Accordingly, the Court concludes that Bah fails to

plausibly allege that the City acted with deliberate indifference, and therefore his theory of

municipality liability based on a failure to train will be dismissed.

In addition, Bah’s memorandum asserts that the City, through the NYPD, has a

“practice or policy” of “identify[ing] victims of impersonation as the offender.” (Pl’s Mem. 26).

For the reasons described above, Bah has failed to plausibly allege that the City had a policy or

custom of incorrectly identifying victims of impersonation that was “so persistent and widespread

as to practically have the force of law.” Connick, 563 U.S. at 61; accord Hu v. City of New York,

927 F.3d 81, 106 (2d Cir. 2019). (A plaintiff “must show that ‘the alleged practice [was] so

manifest as to imply the constructive acquiescence of senior policymaking officials.’”) (quoting

Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006)). Even at the motion to dismiss stage,

such limited instances of the alleged policy or custom are insufficient to state a claim. See Hu,

927 F.3d at 106 (affirming dismissal of the complaint where it “only identifie[d] four instances”

of the alleged municipal policy or custom); cf. Jones v. Town of East Haven, 691 F.3d 72, 85 (2d

Cir. 2012) (“Plaintiff's evidence showed two instances, or at the most three, over a period of several

years . . . . This evidence fell far short of showing a policy, custom, or usage of officers . . . .”).

The Court concludes that Bah fails to plausibly allege a claim for municipal liability

against the City under section 1983.

CONCLUSION

The motions of Apple, SIS and Woodruff to dismiss the Third Amended Complaint

are DENIED. (Docs 109 & 112). The motions of Detectives Reinhold Pagan, White, Granata and

Pattelli and the City, to dismiss the Third Amended Complaint are GRANTED. (Doc 142). The

Clerk is directed to terminate these motions. (Docs 109, 112 & 142).

The motions to seal portions of the Loss Prevention Report (Docs 145 & 146) are

GRANTED without prejudice to further application after the close of discovery. The presumption

of public access to these judicial documents is overcome by the nature of the information relating

to both the suspect and the loss prevention officer. Lugosch v. Pyramid Co. of Onondaga, 435

F.3d 110, 119–120 (2d Cir. 2006).

The time has come for the parties to put aside their energetic efforts at amendments

followed by equally energetic motion practice. The stay of discovery is vacated. The parties are

advised to complete the outstanding discovery and bring the case to the point where it can be

resolved on a motion for summary judgment or trial. At the time of the stay, fact discovery had

less than a month to run. Submit a revised case management plan and proposed scheduling order

within 14 days.

SO ORDERED.

LZ Pepe Pl

United States District Judge

Dated: New York, New York

September 8, 2021

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