Zlatkis v. Raptis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ELIZAVETA ZLATKIS, :

:

Plaintiff, :

: MEMORANDUM DECISION AND

-against- : ORDER

:

NYPD OFFICER DEMITRIO RAPTIS and : 22-cv-7402 (BMC)

NYPD SERGEANT CHRISTOPHER M. :

COLON, :

:

Defendants. :

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COGAN, District Judge.

Plaintiff brings this case for malicious prosecution and fabrication of evidence under 42

U.S.C. § 1983.1 The case arises out of the execution of a search warrant based on information

from a confidential informant (“CI”) that led to the recovery of what officers say they believed

were 14 firearms. Plaintiff’s argument is that the police knew or should have known that these

firearms were either just starter pistols or otherwise not operable instead of charging plaintiff

with felony firearms counts which did not cover inoperable weapons.

The case is before me on defendants’ motion for summary judgment on both claims and

plaintiff’s motion for summary judgment on her fabrication of evidence claim. At the very least,

defendants have qualified immunity as to plaintiff’s malicious prosecution claim. However,

because plaintiff raises a genuine question as to a material fact on her fabrication of evidence

claim, both parties’ motions for summary judgment on that claim is denied.

1 As a result of prior rulings in the case and plaintiff’s withdrawal of claims against certain defendants, only

plaintiff’s claims for malicious prosecution and fabrication of evidence against Officer Raptis and Sgt. Colon

remain. Her claims on behalf of her children have also been withdrawn.

BACKGROUND

Defendant and then-Sgt. Christopher Colon received information from a CI that

plaintiff’s husband, with whom she resided, had firearms within his residence and in the

basement of the residence. The CI reported that plaintiff was also present in the apartment when

her husband showed the CI the firearms, although she did not witness the actual showing.

Plaintiff did, however, observe through a window the CI extending her arms, holding what

appeared to be a weapon.

Based on the CI’s information, the District Attorney obtained a search warrant. At the

time the warrant was executed, plaintiff was in the apartment with her two children, but her

husband, the target of the search, was not. Police recovered what they say they believed were

nine firearms behind a vanity in the bathroom (where the CI had said they would be) as well as

ammunition in socks. Police also recovered three .38 caliber starter pistols, a box of shell

casings, and what defendants stated to be a defaced black revolver and a .6 mm Derringer pistol.

Plaintiff was arrested and charged with two counts of felony possession of multiple

firearms under the New York Penal Code; misdemeanor possession of imitation pistols and

ammunition under the New York City Administrative Code; and misdemeanor charges under the

New York State Penal Code for endangering the welfare of a child. The defendant officers

inventoried and turned the weapons over to the NYPD Firearms Laboratory. Officer Raptis sent

documents and photographs related to plaintiff’s arrest to the District Attorney and provided an

assistant District Attorney with the information necessary to draft a felony complaint against

plaintiff, which Officer Raptis also reviewed for accuracy before executing. There is no

evidence that the defendant officers had anything to do with the case after that. After

arraignment, plaintiff was released on her own recognizance without conditions or restrictions.

Two or three days after plaintiff’s arraignment, the items seized in the search were tested

by the NYPD Firearms Laboratory. The following chart lists the items seized and the results of

the evaluation. “NAF” means “Not a Firearm,” which is defined as “anything appearing to be a

firearm but [which] is not capable of firing a cartridge.”

Item Recovered Recovering Location of Criminal Crt Firearms

Defendant Item Charge Lab

Results

1 Zoraki (Aatak Arms)-model914- LaClair Bathroom Vanity Firearm (PL 265) NAF

TD-9mm Serial# 1116-002121

2 Zoraki (Atak Arms)- model R1- LaClair Bathroom Firearm (PL 265) NAF

TD 9mm Revolver Serial# 0417- Vanity

000249

3 EKOL- Model special 99- 9mm LaClair Bathroom Firearm (PL 265) NAF

Serial #EV780142 Vanity

4 Mondial- model 99x-.22 Caliber LaClair Bathroom Firearm (PL 265) NAF

Serial #UNK Vanity

5 Mondial-model 199-.22 Caliber LaClair Bathroom Firearm (PL 265) NAF

Serial # UNK Vanity

6 Mondial- model 999- .22 LaClair Bathroom Firearm (PL 265) NAF

Caliber Serial l#A97876 Vanity

7 RTS- model 1962- Unk caliber- LaClair Bathroom Firearm (PL 265) NAF

Serial # UNK Vanity

8 Mondial- model 99x- .22 LaClair Bathroom Firearm (PL 265) NAF

caliber- Serial # UNK Vanity

9 Walther AirPistol - Serial # LaClair Bathroom Imitation pistol (AC NAF

11L08668 Vanity 10-131)

10 Starter Revolvers Denix Mark IV Porcelli Box in dining Imitation pistol (AC NAF

.38 Cal Starter Revolvers Serial room 10-131)

#s UNK

11 Starter Revolvers Denix Mark IV Porcelli Box in dining Imitation pistol (AC NAF

.38 Cal Starter Revolvers Serial room 10-131)

#s UNK

12 Starter Revolvers Denix Mark IV Porcelli Box in dining Imitation pistol (AC NAF

.38 Cal Starter Revolvers Serial room 10-131)

#s UNK

13 Black revolver Porcelli Box in dining Firearm (PL 265) Inoperable

room

14 Derringer/Kimar- .6mm Caliber Goldberg Camera bag in Firearm (PL 265) NAF

Model: unk Serial # D18722 bedroom

About one year after the release of the lab report, the District Attorney dropped the felony

charges against plaintiff, but continued to prosecute her on the possession charges and for

endangering the welfare of a child. Two years after plaintiff’s initial arrest, plaintiff accepted an

adjournment in contemplation of dismissal, which resulted in dismissal of the remaining charges

against her.

DISCUSSION

I. Malicious Prosecution

To maintain a malicious prosecution claim under 42 U.S.C. § 1983, a plaintiff must show

a violation of her rights under the Fourth Amendment and must establish the elements of a

malicious prosecution claim under state law. Cornelio v. Connecticut, 32 F.4th 160, 178 (2d Cir.

2022). To state a claim for malicious prosecution under New York law, a plaintiff must show:

“(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the

proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and

(4) actual malice as a motivation for the defendant’s actions.” Dettelis v. Sharbaugh, 919 F.3d

161, 163-64 (2d Cir. 2019) (internal quotation marks and quotation omitted). In addition, to

survive summary judgment on a claim for malicious prosecution under § 1983, the plaintiff must

establish that “there was . . . a sufficient post-arraignment liberty restraint to implicate the

plaintiff’s Fourth Amendment rights.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d

Cir. 2000) (citation omitted).

Courts apply a two-step process in evaluating whether qualified immunity applies.

Qualified immunity shields federal and state officials from money damages unless the facts

demonstrate “(1) that the official violated a statutory or constitutional right, and (2) that the right

was clearly established at the time of the challenged conduct.” Sabir v. Williams, 52 F.4th 51,

58 (2d Cir. 2022) (internal quotation marks and quotation omitted). For a right to be clearly

established, the “contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). It is not necessary to find a “case directly on point” to show that the law governing a

plaintiff’s claim is clearly established, but existing precedent must have placed the constitutional

right “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).

Additionally, the right must have been recognized by either the Supreme Court or the Second

Circuit. Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009)

(citing Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004)).

When qualified immunity shields defendants from liability, courts may “exercise their

sound discretion in deciding which of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the particular case at hand.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009). “The qualified immunity defense, thus, is a broad shield

that protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Kass v.

City of New York, 864 F.3d 200, 206 (2d Cir. 2017) (quoting Zalaski v. City of Hartford, 723

F.3d 382, 389 (2d Cir. 2013)).

Plaintiff has not responded to or addressed defendants’ invocation of qualified immunity.

That may be because no case clearly establishes or even suggests a right to be free from

prosecution for possessing what appear to be firearms where only a later, post-arrest lab report

informs the prosecutor whether the firearms, although appearing to be firearms, meet the

technical specifications required under particular statutes for the type of weapon charged.

Requiring police officers at the time of arrest or arraignment to make that determination of what

the lab report would later say strikes this Court as similar to requiring officers to decide on the

scene which of two conflicting witnesses to believe, which of course is not required. See Islam

v. Tirelli, No. 22-cv-812, 2024 WL 4467188 (E.D.N.Y. Oct. 10, 2024).

In the absence of any caselaw defining the “contours of the right” that plaintiff advances,

plaintiff relies on some circumstantial evidence in an effort to show that these defendants knew,

or at least should have known, that some of the items seized did not technically fall within the

felony firearm statutes under which she was charged. Specifically, she points out that the “black

revolver” (item 13) didn’t have a trigger, firing pin, or hammer; that the Zoraki revolver (item 1

or 2) displayed the word “Blank” on its barrel and was recovered with literature explaining that it

is not an operable firearm, which Officer Raptis testified as remembering seeing during the

search; that defendants were experienced with firearms; that the brand names of some of the

items (Zoraki, Mondial, Ekol), put the defendants on notice that these were not firearms; and that

two of the items (the Zoraki and Ekol) were loaded with blank ammunition. Moreover, she

points out that defendants admitted at their depositions that they were not sure whether some of

the items described in the felony complaint were technically firearms within the definition of the

felony firearms statute. At the very least, plaintiff contends, these facts suggest that defendants

were reckless in filing a criminal complaint charging her with felony weapons possession.

Defendants respond on a weapon-by-weapon basis. The black revolver (item 13),

although it did not have a trigger, firing pin, or a hammer, was recovered in the same box as a set

of gun parts that included triggers and firing pins. Defendants next point out that the record is

undisputed that the Zoraki, Mondial and Ekol pistols could easily be converted into live-fire

weapons. And plaintiff has not explained how defendants could have deduced that the Derringer

was considered “not a firearm” under the statute. Finally, defendants point out that they

inventoried those weapons that were starter pistols as starter pistols, which demonstrates that

they took care to differentiate the type of instruments they seized.

Both sides’ contentions, however, are offered in the context of probable cause. As noted

above, plaintiff did not respond to defendants’ qualified immunity argument. When viewed in

that context, the facts on which plaintiff relies inexorably demonstrate why qualified immunity is

proper here. A court may grant qualified immunity after a finding of liability “if an officer has

made a reasonable mistake of law, i.e., if the constitutional violation he [or she] has committed

was not a ‘clearly established’ violation.” Jackson v. Tellado, 236 F. Supp. 3d 636, 662

(E.D.N.Y. 2017) (citation omitted). Most importantly for our purposes, “[t]he qualified

immunity standard is an objective standard, asking not whether the defendant officer acted in

good faith or what he himself [or she herself] knew or believed, but rather what would have been

known to or believed by a reasonable officer in the defendant’s position.” Outlaw v. City of

Hartford, 884 F.3d 351, 367 (2d Cir. 2018) (citation omitted).

Because the standard is objective, defendants’ experience with or knowledge of firearms,

uncertainty about whether the felony firearms statute covered these particular firearms, or

whether the firearms could be made operable or lethal simply attaching parts that were found

adjacent to them, are not material facts for purposes of qualified immunity. The question is not

what they did or knew; it is what a reasonable police officer in their situation would have done or

known. Id. On that question, plaintiff has offered nothing. She appears to consider it intuitive

that a reasonable police officer would not have charged felony firearms possession under these

circumstances. But it is not intuitive to me. Although I do not accept defendants’ argument that

plaintiff had to submit an expert affidavit from a police procedure or ballistics expert to

demonstrate that defendants’ charging decision was beyond the pale, it seems to me that

defendants have introduced enough undisputed facts to make out a prima facie case of their

qualified immunity defense, and with plaintiff simply assuming that a reasonable police officer

would have acted otherwise, defendants’ qualified immunity argument stands unrebutted.

A very similar situation occurred in Vett v. City of New York, No. 20-cv-2945, 2023 WL

7325926 (S.D.N.Y. Nov. 7, 2023). There, the plaintiff was charged with attempted criminal

possession of a firearm even though the “weapon” he possessed was a plastic frame of a firearm

that certainly wasn’t shootable – it was merely a plastic 3-D print of the weapon’s frame.

Nevertheless, the court noted that “it certainly looks like part of a gun: it has a handle, an

opening where a barrel would typically go, and two parallel pieces of plastic protruding from the

front of it, where a cylinder could be attached.” Id. at *3. The court therefore dismissed

plaintiff’s false arrest claim based on qualified immunity:

[E]ven if Defendants did not have probable cause to arrest Plaintiff, they had

“arguable probable cause” to do so, and so are qualifiedly immune from the suit.

…

[Plaintiff’s] arguments against qualified immunity do not address “arguable

probable cause.” They are based [on] the legally incorrect premise that Defendant

Officer Taylor needed to have some specialized knowledge of 3D printing and

firearms operability in order to have arguable probable cause. When assessing

arguable probable cause/qualified immunity, the issue is not Taylor’s subjective

beliefs, but whether a reasonable officer could have objectively believed, based

on what he saw and was told, that a crime was being perpetrated. Taylor’s lack of

personal knowledge about 3D printers and firearm operability, while undoubtedly

relevant to the existence of actual probable cause, is not relevant to the question

of a reasonable police officer’s objective belief upon seeing a partially printed gun

and being told that there was bad blood between the person doing the printing and

his co-workers. . . . At the time of the arrest, that was all the information

available to Taylor and Kelly. A reasonable officer could have concluded that a

crime was being perpetrated – or, at the very least, it is not possible that no

reasonable officer could have reached such a conclusion, based on the available

information.

Id. at *14-15.

The same result obtains here. The police officers did not have to be experts on firearms

alterations. The weapons leading to the charges had the appearance of firearms that were or

could be readily converted to shootable weapons. The officers delivered the weapons to the

police lab; the lab did the technical work and reported the results to the District Attorney; and the

District Attorney made the decision as to what charges to press going forward. Accordingly,

defendants are protected by qualified immunity from plaintiff’s malicious prosecution claim.

II. Fabrication of Evidence

To maintain a fabrication of evidence of claim under § 1983, a plaintiff must show that

the defendant officer knowingly fabricated evidence; that the evidence would be likely to

influence a jury’s decision; that the officer forwarded the fabricated evidence to the prosecutor;

and that the plaintiff suffered a deprivation of liberty as a result. Ashley v. City of New York,

992 F.3d 128, 139 (2d Cir. 2021) (quotations omitted). An officer’s mistake in identifying

evidence, without any suggestion that he deliberately misidentified it, cannot support a claim for

fabrication of evidence. See Bennett v. Vidal, 267 F. Supp. 3d 487, 499 (S.D.N.Y. 2017).

Unlike on a malicious prosecution claim, neither probable cause for an arrest nor

qualified immunity are available defenses. See Garnett v. Undercover Officer C0039, 838 F.3d

265, 275-76 (2d Cir. 2016); Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 129-30 (2d Cir.

1997). In other words, a fabrication of evidence claim “can stand even if the officer had

probable cause to arrest the . . . plaintiff.” Garnett, 838 F.3d at 277-78. The question is not what

a reasonable officer would have done in the situation, but whether these defendants knowingly

forwarded fabricated evidence to the prosecutor.

On a fabrication of evidence claim, “[i]nformation may be ‘false’ if material omissions

render an otherwise true statement false.” Morse v. Fusto, 804 F.3d 538, 548 (2d Cir. 2015).

Both affirmative misrepresentations and misleading omissions “threaten the integrity of the

judicial process by injecting it with falsity provided by officers of the state whose official status

gives this misinformation a special aura of reliability.” Id. at 548-49. Here, plaintiff provides

sufficient evidence to raise a genuine question of whether defendants reported the items

recovered from plaintiff’s apartment as firearms to the District Attorney while knowingly

omitting that the weapons were inoperable or otherwise not firearms.

Defendants themselves admit that the items were “misidentified” in the criminal court

complaint against plaintiff based on information provided to the assistant District Attorney by

Officer Raptis and as reviewed by him for accuracy. And as discussed above, plaintiff presents

evidence that the items recovered from her apartment were visibly inoperable or not firearms and

that defendants observed these visible cues while searching her apartment. For example, both

defendants admitted to inspecting the items recovered from plaintiff’s apartment, knowing that a

trigger and firing pin are necessary for an item to be deemed a firearm, and yet the item listed as

a black revolver in the criminal court complaint visibly lacked a trigger, firing pin, and hammer.

Another item clearly displayed the work “blank” on its barrel and was recovered from a box that

also contained a pamphlet, clearly visible on Officer Raptis’ bodycam, stating prominently “GAS

ALARM” and “BLANK REVOLVER.” Officer Raptis admitted to seeing this pamphlet during

the search. Despite these obvious indications that the item was not a firearm, there is no mention

of such classification in the criminal court complaint. Although not sufficient evidence to

conclude beyond dispute that defendants knew the weapons were inoperable or not firearms, this

evidence is sufficient to at least raise a genuine dispute as to defendants’ knowledge, and thus

defeat their motion for summary judgment.

As to the other elements of a fabrication of evidence claim, it is indisputable that the

operability and classification as a firearm of the items recovered from plaintiff’s home would

influence a jury’s decision as to whether she was guilty of felony possession of multiple

firearms, as such charges require the possession of operable firearms. This element of a

fabrication of evidence claim is met when the fabricated evidence would be likely to influence a

jury’s decision if the case came before a jury. See Nnodimele v. Derienzo, No. 13-cv-3461,

2016 WL 337751, at *12-13 (E.D.N.Y. Jan. 27, 2016). Thus, “defendants err in arguing that

only that evidence admissible at [a] criminal trial can provide a basis for an evidence

manufacturing fair trial claim.” Id. at *12 (admissibility “is not a prerequisite to recover for

injuries caused by the fabrication.”).

Furthermore, plaintiff suffered a deprivation of liberty because she was prosecuted for a

year on felony charges based on the omission of the true nature of the items recovered from her

home. See Barnes v. City of New York, 68 F.4th 123, 129-30 (2d Cir. 2023) (“The use of

fabricated evidence in initiating a prosecution . . . may amount to a deprivation of liberty even in

the absence of a conviction based on the fabricated evidence.”). Such a prosecution constitutes a

deprivation of liberty caused by the fabrication of evidence even if “a plaintiff simultaneously

was charged, detained, tried, and convicted for a separate offense.” Id. “[B]eing framed and

falsely charged damages an individual’s reputation, requires that individual to mount a defense,

and places him in the power of a court of law,” constituting a deprivation of liberty. Id. at 130

(quoting Garnett, 838 F.3d at 279).

Because plaintiff raises a genuine question of material fact, but does not prove, whether

defendants knowingly fabricated the information sent to the District Attorney, both motions for

summary judgment are denied as to this claim.

CONCLUSION

Defendants’ motion for summary judgment is granted as to plaintiff's malicious

prosecution claim. Both motions for summary judgment are denied as to plaintiffs fabrication

of evidence claim. By separate order, the Court will set this matter down for trial on plaintiff’ s

fabrication of evidence claim.

SO ORDERED.

U.S.D.J.

Dated: Brooklyn, New York

March 7, 2025

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