# Mejia v. City of New York

> District Court, E.D. New York · October 5, 2000 · 119 F. Supp. 2d 232

URL: https://www.frixlaw.com/law-library/cases/2327581

## Case

- **Full name:** Luis MEJIA and Aura Dina Mejia, Plaintiffs, v. CITY OF NEW YORK, Airborne Freight Corporation, Brenda Tipton, Daniel McNicholas, and John Skinner, Defendants
- **Court:** District Court, E.D. New York
- **Decided:** October 5, 2000
- **Citations:** 119 F. Supp. 2d 232; 2000 U.S. Dist. LEXIS 17423; 2000 WL 1643859
- **Precedential status:** Published
- **Opinion:** Opinion by Trager
- **Judges:** Trager
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2327581

## How later opinions describe it (automated extraction)

- concluding plaintiffs “produced evidence of conduct sufficiently extreme and outrageous”, including that the officer “conspired to manufacture the evidence on which . . . a conviction would be based”, made “disparaging remarks . . . regarding [plaintiffs’] Colombian nationalit…
- finding triable issue of fact as to existence of extreme and outrageous conduct where, in addition to allegedly using excessive force, arresting officer, who lacked probable cause to arrest, subjected pregnant suspect to ethnic slurs, told her that her unborn child and other c…
- concluding that an alleged extended course of conduct intended to cause emotional distress could give rise to recovery, even if “certain of plaintiffs’ allegations would not, by themselves, necessarily rise to the level of extremity and outrageousness to support” such a claim
- holding “plaintiffs arrest cannot serve as the predicate deprivation of liberty because it occurred prior to his arraignment and without a warrant, and therefore was not pursuant to legal process, ie., not one that arose from malicious prosecution as opposed to false arrest”
- explaining that the probable cause determination relevant to a malicious prosecution claim differs from that relevant to a false arrest claim, and the two determinations play different roles in the We causes of action

## Opinion text

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CORRECTED OPINION
TRAGER, District Judge.
Plaintiffs Luis and Aura Mejia (the “Me-jias”) bring this § 1983 /
Bivens
action against the City of New York (the “City”), Airborne Freight Corporation (“Airborne”), U.S. Customs Service Special Agent Brenda Tipton (“S/A Tipton”), and Sergeant Daniel McNicholas (“Sergeant McNicholas”) and Detective John Skinner (“Detective Skinner”) of the New York City Police Department (“NYPD”) (the latter two individuals collectively referred to as the “police defendants”), alleging false arrest, false imprisonment, use of excessive force, and malicious prosecution, all in relation to the controlled pickup of a shipment of cocaine. The Mejias also assert pendent state law claims for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress against various defendants. Each of the defendants now moves for summary judgment on the basis of probable cause, qualified immunity, and/or various procedural grounds.
Background
(1)
The initial events precipitating this case are not in dispute. On November 18,1993, U.S. Customs Service (“Customs”) agents in Miami intercepted a package from Bogota, Columbia, in which 1 pound and 1 % ounces of cocaine had been hidden. The package contained three books of textile samples, inside the covers of which plastic bags containing cocaine had been concealed. The package had been delivered to Miami by International Bonded Courier (“IBC”), a Columbian express courier, for transfer to Airborne, the connecting domestic courier. The airbill identified the sender as “GABRIEL JARAMILLO LARA, CRA 38 No. 8-06, SANTA FE DE BOGOTA, COLUMBIA, TELEPHONE NUMBER 2686824.” The airbill designated the recipient as “COMPLETE DIAGNOSTIC, BEST SPORTS CAR SERVICE, 188-06 HILLEIDE [sic] AVE., HOLLIS, N.Y. 11423, U.S.A.,” and gave the recipient’s telephone number as “(718) 740-2121,” but did not list an individual addressee. Complete Diagnostic was an auto repair garage owned and operated by plaintiff Luis Mejia.
Miami Customs officials notified the New York Customs office of their discovery and forwarded the package to S/A Tipton, who then worked out of the New York office. Because the package contained less than one kilogram of cocaine, the matter fell outside federal prosecution guidelines. At the direction of the New York office’s supervisor, Special Agent Joseph Gloria, S/A Tipton contacted Sergeant Nicholas on November 18, 1993, about the possibility of the NYPD conducting a controlled delivery of the package.
On November 19, 1993, S/A Tipton contacted Bezmen, who was Airborne’s regional security manager, and asked him to arrange to place an entry in Airborne’s computer system to reflect a delay due to misrouting in order not to arouse the suspicion of the unknown recipient. Bezmen agreed to the request and offered to cooperate in any subsequent controlled delivery of the package.
On that same date, Customs Special Agent John Raffa (“S/A Raffa”) visited Complete Diagnostic. While there, S/A Raffa picked up a business card for the garage, which included the name “Luis” and the telephone number (718) 740-2121.
On November 22, 1993, S/A Tipton and Sergeant McNicholas discussed tentative plans for Customs to sign over the package to the NYPD for a controlled delivery on the following day. Later on the 22nd, plans for a controlled delivery were abandoned when Sergeant McNicholas reported that he had gone to the auto garage and had seen many workers, a heavy workload, and no individual designated to take delivery. Under these circumstances, Sergeant McNicholas stated that he could not in good conscience proceed with the controlled delivery since there would be no
*244
way of knowing whether the person who happened to sign for the package was the intended recipient.
(2)
At this point in the story, plaintiffs’ and defendants’ accounts of the events diverge widely. First, the defendants’. At some point in the day on November 29, 1993, S/A Tipton spoke to Bezmen, who had previously left a message for her. Bezmen told her that he had noticed an entry on Airborne’s computer that indicated someone named “Luis” had called on November 22, 1993, asked about the package, and left the phone number (718) 740-2121' — the number for Complete Diagnostic.
1
S/A Tipton and Sergeant McNicholas then conferred to make arrangements for a controlled pickup at Airborne’s facility the next day, November 30,1993.
At S/A Tipton’s request, Gennarelli, an Airborne cartage supervisor, called the contact number and asked for “Luis Mejia.”
2
A person answered and said: “This is Luis.” Gennarelli told “Luis” that his package was available for pickup at Airborne’s Inwood station, which is located near JFK. Gennarelli further advised “Luis” that he should come to pick up the package after noon the next day, November 30, 1993. Gennarelli does not recount having to give “Luis” any reasons as to why he was required to pick up the package at the Airborne office as opposed to it being delivered to Complete Diagnostic; Gennarelli states that “Luis” simply agreed without asking any questions. According to Gennarelli, the call lasted approximately two minutes. After the call, Gennarelli advised S/A Tipton that “Luis” said he would come to Airborne’s facility the next day to pick up the package.
On November 30, 1993, S/A Tipton brought the package to the Airborne’s In-wood station and signed it over to Detective Skinner. According to S/A Tipton, she had no further role in the controlled delivery, though she remained at the facility until Mr. Mejia arrived.
Detective Skinner placed the intercepted package in an Airborne box, sealed it, and gave it to Gennarelli. The police then waited for Mr. Mejia’s arrival out of sight in prearranged positions.
Later that day, Mr. Mejia set off for the Airborne office along with his wife. Along the way, he got lost and had to call for directions. Gennarelli answered, or was given, the call and provided Mr. Mejia with additional directions. Shortly thereafter, Luis Mejia entered Airborne’s facility and walked up to Gennarelli who was dressed in an Airborne uniform. Mr. Mejia signed for the package, accepted delivery and walked out. According to Gennarelli, Mr. Mejia did not inspect the package while he was in the office or indicate in any way that the package was unexpected. Accord
*245
ing to Detective Skinner, who was watching from the reception area of the Airborne office, once back in the car, Mr. Mejia handed the package to his wife, who immediately opened it.
About ten minutes later, Sergeant McNicholas, Detective Skinner, and several other NYPD officers pulled Mr. Mejia’s car over to the side of the road in order to effect the arrest. The police defendants deny displaying their weapons during the arrest. When Detective Skinner approached the car, he observed that Mrs. Mejia had the three portfolios on her lap. After removing her from the car, Detective Skinner examined the portfolios and discovered that one of them had been ripped open, and a white powdery substance was visible.
3
In addition, Sergeant McNicholas states that, while at the arrest scene, Mr. Mejia spontaneously asked him: “What is this for, the drugs?”
For her part, S/A Tipton states that she did not actively participate in the arrest. However, while driving back to her office, she noticed activity on the side of the road and recognized the detectives.
4
S/A Tip-ton then pulled over, got out of her car, and spoke to Sergeant McNicholas. S/A Tipton states that she had no contact with the Mejias during the arrest.
At some point during the arrest, Mrs. Mejia told Sergeant McNicholas that similar portfolios had been delivered to her and her husband’s auto garage the previous day.
5
With Mrs. Mejia’s consent, Sergeant McNicholas, Detective Skinner, and one Detective Fox then went to the garage, entered the Mejias’ office, and seized similar books whose front and back covers had been torn.
The books seized from the Mejias’ office had been mailed in a package that bore the same address as the intercepted package, including the misspelling of Hillside Avenue (“Hilleide”). In addition, the package had almost the same return address (“Kr 38 no. 8-06, tel. 2686524, Santa Fe de Bogota, Colombia”) as the intercepted
*246
package. On the package recovered-from the office, the sender identified itself as “INDUNALTEX,” the same name emblazoned on the cover of the books seized by Customs agents. No cocaine was detected in the portfolios recovered from the Meji-as’ office.
Detective Skinner states that later at the precinct house, in the course of taking pedigree information from Mr. Mejia, Mr. Mejia told him: “My wife doesn’t know anything about this.”
The police defendants deny making any disparaging remarks about' Colombians during the arrest or threatening that Mrs. Mejia would lose her children if she went to jail.
(3)
The Mejias tell a very different story about the events leading up to their arrest and prosecution. In essence, the Mejias allege that they knew nothing about the package from Colombia and that Airborne representatives (or government agents masquerading as Airborne representatives) coaxed and cajoled them into claiming the package under the pretense that the package was a Christmas gift from Venezuela.
Specifically, Mr. Mejia denies that he placed a call to Airborne inquiring about the package. Mr. Mejia testified in deposition that one of his employees, Charlie Diego (“Diego”), received a telephone call on November 22, 1993, from an unidentified individual who asked who owned the business. Diego told the caller the owner was named Luis. The caller also allegedly asked whether the owner was Colombian and whether everyone who worked at the garage was Spanish.
Thereafter, Mr. Mejia states that he received four unsolicited phone calls from Airborne in which one or possibly two purported Airborne agents beseeched him to come to the Airborne facility and pick up the package. The first alleged call took place early on the morning of November 29, 1993. The first caller
6
asked him if he was “Luis” and told him that Airborne had a package for him. Mr. Mejia then stated: “Okay, why don’t you deliver it.” The caller responded that Airborne could not deliver the package because it was a personal package and that he would have to come and sign for it: “You have to come personally to pick up the package because it is addressed to you.” Mr. Mejia then stated that he could not pick up the package that day because he was too busy. Mr. Mejia asked whether Airborne could just deliver the package for an extra charge, which he would pay. The caller answered that he could not do so, again, because the package was personal. At that point, Mr. Mejia asked where the package was from, to which the caller responded: “Caracas, Venezuela.” Mr. Mejia then had a conversation off the phone, in which he asked his wife whether she was expecting a package from Venezuela. When his wife answered no, Mr. Mejia “went back to the phone and told the man and said, ‘Are you sure it is coming from Venezuela?’ ” The caller answered yes. Mr. Mejia then asked the caller to describe the package. After a number of questions along that line, the caller said:
“Look, this package, it was supposed— this package is supposed to be picked up few days going on, if you’re not picking up the package, we are going to send it back and I’m going to get into trouble, because this package, I suppose [sic] to
*247
send it out and I forgot to send it out.... So please come and pick it up .... [sic] Put it away for you and you just come and take out this package.”
Mr. Mejia then asked: “But where [sic] is the package?” The caller replied: “Looks like a Christmas present.” Mr. Mejia again advised the caller: “Bring it to me and I will pay.” The caller again stated that he could not do so because the package was already two days late and gave Mr. Mejia “a whole story about the package. Came through Miami also, the whole story.” The caller added that the package would be sent back to Venezuela if he did not pick it up and again emphasized that it was a Christmas present.
Finally, Mr. Mejia stated that he “might pick it up later on,” and asked for directions. At that point, Mr. Mejia and the caller had a conversation about the best route to take. The conversation ended with Mr. Mejia telling the caller that he would pick up the package, “[p]erhaps ... today, I don’t guarantee that.”
Mr. Mejia testified that the call lasted over twenty to twenty-five minutes; later, he stated that it was probably even longer, between half an hour and forty-five minutes. At no time during the call, however, did the caller use his last name, Mejia.
The second alleged conversation occurred later on the afternoon of the 29th, around 2:30 p.m. or 3:00 p.m., when an unidentified, purported Airborne representative told Mr. Mejia: “We’re waiting.” Mr. Mejia replied: “I’m sorry, I forgot about it but I definitely [sic] pick it up tomorrow.” Mr. Mejia then hung up. Mr. Mejia believes the individual who made the second call was not the first caller.
Two more calls were allegedly made on November 30, 1993. The first came at about 9:30 or 10:00 a.m. Mr. Mejia believes this caller was the first caller from the day before. This caller asked: “Yes, what happened, you coming today?” Mr. Mejia responded: “I don’t know. I think I will not be able to. Why don’t you call me back later.” With that, Mr. Mejia hung up.
The fourth call came that afternoon, at about 1:30 p.m. or 2:00 p.m. This caller, apparently the same one who had made the first and third calls, said: “Luis, you going to do me a favor or not, you picking up this package?” Mr. Mejia then states that he finally decided to go pick up the package because the caller convinced him it might be a Christmas present for his daughter.
7
Mr. Mejia asked the caller how he knew it was present. The caller explained that he had jiggled the box and heard bells inside.
8
Mr. Mejia then made additional inquiries regarding the description of the package. The caller ended by suggesting that he hurry over because the office was closing early.
Ultimately, Mr. Mejia relented and decided to pick up the package. According to Mr. Mejia, the only reason he did so was because his wife wanted to pick up some fresh chickens at a store that the last Airborne caller indicated was near the Airborne office.
9
So, he and his wife left the
*248
garage for the Airborne office. Along the way, they got lost, and Mr. Mejia called for directions. A woman answered the phone and said: “Luis?” Mr. Mejia said “yes,” and the woman gave him additional directions.
When he and his wife arrived at the Airborne facility, Mr. Mejia was met by S/A Tipton, who was wearing an Airborne uniform.
10
Mr. Mejia then signed for the package, and S/A Tipton released it to him.
Once he took possession of the package, Mr. Mejia went back to his car, opened up the package and took out one of the books. When he discovered it contained nothing but textile samples, Mr. Mejia decided it was “junk mail,” threw the entire contents of the package into the back of his car, and drove off. According to Mrs. Mejia, she never touched the package or the enclosed books, and her husband did not rip open the bindings of any of the portfolios while they were in the car.
When asked at deposition why he did not return the package to Airborne, Mr. Mejia stated that he thought it might be for one of his employees, Javier Acevedo (“Acevedo”), who was allegedly from Medellin, Colombia. Mr. Mejia stated that Acevedo had been going through the mail at the garage and had been inquiring about a package from Colombia beginning about three weeks before the Mejias’ arrests. The Mejias testified that, at the time of the arrests, another one of their employees and a roommate of Acevedo, Byron Benitez, was in Colombia. According to Mr. Mejia, Acevedo disappeared immediately after his and his wife’s arrest.
11
Mr. Mejia, however, conceded in deposition that he “couldn’t accuse [Javier].”
At any rate, about ten minutes after the Mejias left the Airborne facility, their car was stopped by police. A number of police officers approached the car with their guns drawn. Sergeant McNicholas banged on the car window with his gun. The Mejias were taken out of the car, and the police demanded that they produce the “drugs.” In particular, Sergeant McNicholas said: “Where are the F drugs, you F Colombians, you are all the F same thing.” The Mejias state that they did not know what the police officers were talking about. In addition, Mr. Mejia states that during the arrest, Detective Fox, who is not a defendant in this action, held a gun to his head and repeatedly said that he was going to “blow up [Mr. Mejia’s] F head” if Mr. Mejia moved or looked around.
Sergeant McNicholas then frisked Mrs. Mejia, “kind of quick, rough, sort of thing,” as she put it, though Mrs. Mejia acknowledged that she did not feel any pain or suffer injury as a result. Someone also asked Mrs. Mejia: “Bitch, tell me who this package was for.” At some point, Sergeant McNicholas remarked: “Colombians, drug dealers from Columbia.” In response, Mr. Mejia insisted that his wife knew nothing about any drugs, but the police officers, including Sergeant McNi-cholas, kept “picking on” her.
S/A Tipton was also on the scene.
12
S/A Tipton did not say anything to the Mejias during the arrest, other than to ask Mrs. Mejia whether she had children.
13
S/A Tipton did speak with Sergeant McNicho-
*249
las at some point, after which he went to the back of the car and took the books from the backseat.
Mrs. Mejia then indicated to Sergeant McNicholas that similar textile books had been delivered to her and her husband’s office on the previous day, November 29th.
14
As a result, Sergeant McNicholas, Detective Skinner, and Detective Fox took Mrs. Mejia back to the garage, where they seized the other books without advising her that she did not have to give her consent to the search.
The Mejias do not know whether the books were intact when the police seized them. The Mejias stated in deposition that they had opened the package containing the portfolios, but did not recognize what they were and so just left them sitting on top of a box in the garage’s office.
15
The Mejias deny ripping the covers of any of the portfolios open. Mr. Mejia, however, did not inspect the covers of the portfolios before he left for the Airborne office on November 30th; nor did Mrs. Mejia have an opportunity to do so when the police seized them from the office. Both of the Mejias testified that the door to the office was unlocked when they left to pick up the package.
After the search of the office, the police then took the Mejias to the 105th precinct. At the precinct, Mrs. Mejia, who was three months pregnant at the time, was told that she was “going to have the baby in jail, you’re only going to have the baby for a year, and then the state is going to have the baby.”
16
Sergeant McNicholas, specifically, told her: “You don’t want to spend 7 to 15 years in jail. You wouldn’t have your baby in jail.” On Sergeant McNieho-las’s order, Mrs. Mejia was strip searched.
Mr. Mejia states that at the precinct, Detective Fox told him: ‘You Colombians
*250
are all alike, garbage.” Other officers also repeatedly made derogatory comments about his and his wife’s Colombian nationality.
The only two officers, however, that the Mejias could identify as using abusive language were Sergeant McNicholas and Detective Fox. Neither of the Mejias allege that Detective Skinner engaged in any derogatory language. Indeed, Mr. Mejia stated that his only contact with Detective Skinner was at the scene of the arrest when Detective Skinner announced that he was the arresting officer. For her part, Mrs. Mejia stated that Detective Skinner did not say anything at all to her during the arrest.
(4)
To explain why they might have thought that someone in Venezuela was sending them a Christmas present, the Mejias testified in deposition that about six months before their arrest, their former nanny, Nelly Betancour, had moved to Venezuela. There is no evidence that any of the defendants knew about the nanny, and, thus, there is no explanation of why the purported Airborne agents would have chosen to say that the package was from Venezuela as opposed to any other country besides Columbia.
Nonetheless, Mr. Mejia’s account of the four telephone calls in which he was told the package was from Venezuela is corroborated by two salient pieces of physical evidence. The first is the Airborne airbill that was attached to the package when he picked it up from the Airborne office. Unlike the IBC airbill attached to the original packaging, which indicated the sender’s address to be in Bogota, Columbia, the new Airborne airbill listed the sender’s address simply as “Caracas.”
17
None of the defendants claim responsibility for creating the Caracas airbill.
18
The second piece of evidence is the Airborne box into which Detective Skinner placed the original package before the pickup. The exterior of the box carries a routing slip which indicates various airport codes. Pertinently, the section marked “ORIGIN” bears the notation “CAR,” which appears to be an attempted reference to Caracas.
19
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Although Gennarelli initially denied playing any role in the repackaging of the shipment other than bringing Detective Skinner a box and some tape and stated that he was not even in the room at the time, he admitted later in his deposition that he filled out the entire routing slip, including the designation of CAR as the origin.
20
When asked what “CAR” stands for, Gennarelli replied: “Just initials.” Gennarelli further stated that he did not remember who, if anyone, told him to put CAR on the package, and did not know what it meant.
21
Although Gennarelli admitted that S/A Tipton told him to put a particular airbill number on the routing slip, he denied that S/A Tipton or anyone else had told him that the package originated in Caracas. Gennarelli further denied that anyone had instructed him to tell Mr. Mejia that the package was from Caracas. Notably, S/A Tipton and Detective Skinner were together in the room where the shipment was being repackaging throughout the time it was being repackaged, and Sergeant McNicholas entered the room when Detective Skinner was finishing taping the box.
Finally, two aspects of Mr. Mejia’s account of the four calls and their content are corroborated by testimony of certain of the defendants. First, whereas Gennarelli does not recount having to give “Luis” any reasons why he had to come to Airborne to pick up the package and testified that “Luis” readily agreed to do so, S/A Tip-ton’s notes indicate that Gennarelli had given “Luis” “several reasons [why it] could not be delivered,” though she could not recall what those “several reasons were.”
Second, Mr. Mejia’s account that he received more than one telephone call from a purported Airborne agent is corroborated by Detective Skinner’s deposition testimony. Although defendants have represented in their motion papers that the only call placed to Mr. Mejia was Gennarelli’s call on November 29th, Detective Skinner testified that on November 30th, after finishing the repackaging of the portfolios, “[w]e sat around, conversated [sic], eventually, I believe, someone, I don’t know who it was, I don’t remember who it was, said ‘I’m going to attempt to call this person again.’ ” Detective Skinner stated that Mr. Mejia arrived a “short time later.” Based on Detective Skinner’s daily activity report, which puts the time of Mr. Mejia’s arrival at 2:45 p.m., this unidentified individual’s call appears to coincide .with Mr. Mejia’s estimate that he received a fourth call from a purported Airborne agent at around 1:30 p.m. to 2:00 p.m. on the 30th.
(5)
The events subsequent to the arrest are not in dispute. After the arrest, Detective Skinner swore out an arrest affidavit charging the Mejias with Criminal Possession of a Controlled Substance in the First
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Degree, in violation of New York Penal Law § 220.21. Mrs. Mejia was released on bail the next day, and Mr. Mejia was released on bail three days later.
Thereafter, state grand juries were convened.
22
Mrs. Mejia was not indicted, but Mr. Mejia was. Mr. Mejia was tried in the New York Supreme Court for Queens County, and was acquitted on March 20, 1995.
23
On March 18, 1996, the Mejias served a notice of claim on the City, alleging false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress (“IIED”).
On June 17, 1996, the Mejias commenced this action, asserting: (1) causes of action under § 1983 against S/A Tipton, Sergeant McNicholas, Detective Skinner, and Airborne, for false arrest, excessive force, and malicious prosecution; (2) state law causes of action for false arrest, false imprisonment, and IIED, against Sergeant McNicholas, Detective Skinner, and the City; and (3) state law causes of action for malicious prosecution and IIED against Airborne.
Each of the defendants, except for the City, now moves for summary judgment on the grounds that probable cause existed for the arrest and prosecution, and, in the alternative, that they are entitled to qualified immunity. The City moves on the grounds that it cannot be held vicariously liable under § 1983 for its officers’ actions and that the Mejias’ notice of claim and complaint were untimely.
Discussion
Certain basic principles of law apply equally to each of the defendants and will, therefore, be reviewed at the outset. Separate analyses of the application of these principles to each of the defendants will follow.
(1)
Applicable Law
A. False Arrest under § 1983 and New York Law
Under New York law, false arrest is considered to be a species of false imprisonment, and the two claims have identical elements.
See Singer v. Fulton County Sheriff,
63 F.3d 110, 118 (2d Cir. 1995) (citing
Broughton v. State,
37 N.Y.2d 451, 456 , 373 N.Y.S.2d 87, 93 , 335 N.E.2d 310 (1975)).
24
Moreover, a “ § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law.”
Weyant v. Okst,
101 845, 852 (2d Cir.1996). Therefore, the elements of a cause of action for false arrest under both 42 U.S.C. § 1983 and New York law are: “ ‘(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.’ ”
Singer,
63 F.3d at 118 (quoting
Broughton,
37 N.Y.2d at 456 , 373 N.Y.S.2d at 93 , 335 N.E.2d 310 ).
Where, as here, an arrest is made without a warrant, the existence of probable cause is an affirmative defense that must proved by the defendant.
See Broughton,
37 N.Y.2d at 458 , 373 N.Y.S.2d
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at 95, 335 N.E.2d 310 ;
see also Weyant, 101 F.3d
at 852 (holding that “existence of probable cause to arrest constitutes justification and ‘is a complete defense to an action for false arrest’ ” (quoting
Bernard v. United States,
25 F.3d 98, 102 (2d Cir. 1994))). Probable cause, or reasonable cause as it is known in New York law, “exists when the officers have 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 about to be arrested has committed or is committing a crime.”
Weyant,
101 F.3d at 852 (citations omitted);
see Raysor v. Port Auth. of N.Y. & N.J.,
768 F.2d 34, 39-40 (2d Cir.1985) (holding that New York law “reasonable cause” standard is equivalent to Fourth Amendment’s “probable cause” standard). Since the law seeks to protect citizens against unlawful arrest, the determination of whether probable cause existed must be made on the basis of the information possessed or reasonably available to the defendant at the time of the arrest.
See Lowth v. Town of Cheektowaga,
82 F.3d 563 , 570 (2d Cir.1996), It is, therefore, axiomatic that subsequently discovered evidence cannot be used to cure an arrest that was made without probable cause.
Cf. People v. Gomcin,
265 A.D.2d 493, 495 , 697 N.Y.S.2d 93, 95 (2d Dep’t 1999) (search incident to arrest) (“[I]t is beyond cavil that the fruit of a search incident to an arrest cannot be used to establish probable cause to arrest.”);
cf. also Johnson v. United States,
333 U.S. 10, 16-17 , 68 S.Ct. 367, 370 , 92 L.Ed. 436 (1948) (holding that reasoning which would “justify the arrest by the search and at the same time justify the search by the arrest ... will not do”).
25
B. Malicious Prosecution under § 1983 and New York Law
To establish a claim for malicious prosecution under New York law, a plaim tiff must show: “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice.”
Broughton,
37 N.Y.2d at 457 , 373 N.Y.S.2d at 94 , 335 N.E.2d 310 (citation omitted). On a motion for summary judgment, malice may be inferred from evidence showing a lack of probable cause.
See Rounseville v. Zahl,
13 F.3d 625, 631 (2d Cir.1994) (citing
Maxwell v. City of New York,
156 A.D.2d 28, 34-35 , 554 N.Y.S.2d 502, 505-06 (1st Dep’t 1990)).
In order to establish a claim for malicious prosecution under § 1983, a plaintiff must show: (1) that elements of the common law tort of malicious prosecution are satisfied; and (2) that the malicious prosecution led to a deprivation of liberty sufficient to constitute a “seizure” within the meaning of the Fourth Amendment, or must otherwise establish that the malicious prosecution violated a right, priv
*254
ilege, or immunity secured by the Constitution and laws of the United States.
See
42 U.S.C. § 1983 ;
Singer,
63 F.3d at 116 & n. 5.
26
The probable cause determination relevant to a malicious prosecution claim differs from that relevant to a false arrest claim, and the two determinations play different roles in the two causes of action. First, in a malicious prosecution action, the relevant probable cause determination is whether there was probable cause to believe the criminal proceeding could succeed and, hence, should be commenced.
See Posr v. Court Officer Shield, #207,
180 F.3d 409, 417 (2d Cir.1999). This determination is distinct from the question of whether there was probable cause for the arrest, though a lack of probable cause to believe the plaintiff committed the crime in question necessarily entails a lack of probable cause to commence a proceeding against him or her.
See id.
Second, in a malicious prosecution action, the lack of probable cause is an element of the tort that must be pled and proved by the plaintiff.
See Broughton,
37 N.Y.2d at 457 , 373 N.Y.S.2d at 94 , 335 N.E.2d 310 .
Finally, the existence, or lack, of probable cause is measured at a different point in time in a malicious prosecution action than a false arrest action, where the prosecution follows a warrantless arrest. This is because a warrantless arrest is an extrajudicial proceeding.
See id.
at 458 , 373 N.Y.S.2d at 94 , 335 N.E.2d 310 . In such cases, the judicial proceeding is not deemed to have been commenced until the plaintiffs arraignment or an indictment by a grand jury.
See id.
at 457 , 373 N.Y.S.2d at 94 , 335 N.E.2d 310 . Accordingly, the existence, or lack, of probable cause is measured as of the time the judicial proceeding is commenced (e.g., the time of the arraignment), not the time of the preceding warrantless arrest.
See
59 N.Y. Jur.2d
False Imprisonment & Malicious Prosecution
§ 73 (1987) (“Whether probable cause existed depends upon whether a reasonably prudent person would have believed the plaintiff guilty of the crime charged on the basis of the facts known to the defendant
at the time the prosecution was initiated
or which he then reasonably believed to be true.” (emphasis added)). Thus, information discovered by a malicious prosecution defendant after the arrest, but before the commencement of proceedings, is relevant to the determination of probable cause in cases where the prosecution follows a warrantless arrest.
This distinction between the time at which probable cause is measured in a false arrest action and in a malicious prosecution action takes on some significance in this case, because several pieces of (at least potentially) inculpatory evidence were discovered between the Mejias’ arrest and the commencement of judicial proceedings against them, viz., the three similar portfolios seized from their office.
27
C. Qualified Immunity
Even where probable cause is lacking, a law enforcement officer in a
*255
§ 1983 action for false arrest or malicious prosecution may, under the doctrine of qualified immunity, affirmatively defend on the ground that it was “objectively reasonable” for an officer in his or her position to believe that probable cause existed.
Weyant,
101 F.3d at 857-58 (citing
Anderson v. Creighton,
483 U.S. 635, 638-39 , 107 S.Ct. 3034, 3038-39 , 97 L.Ed.2d 523 (1987)). The objective reasonableness of an officer’s belief that probable cause existed turns on “whether a reasonable officer could have believed that [his actions were] lawful, in light of clearly established law and the information the ... officer! ] possessed” at the relevant time.
Anderson,
483 U.S. at 641 , 107 S.Ct. at 3040 . The relevant time for the purposes of a false arrest action is the time of the arrest; and the relevant time for purposes of a malicious prosecution action is the time that the criminal proceeding was commenced. The purpose of the qualified immunity doctrine in this context is to protect law enforcement officials from liability for reasonable errors of judgment.
See Malley v. Briggs,
475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986) (stating that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”).
With these principles in mind, an examination of plaintiffs’ various claims against each particular defendant may begin.
(2)
City of New York
A. Any implicit § 1983 respondeat superior claims plaintiffs may be making must be dismissed.
Plaintiffs’ complaint does not expressly assert any § 1983 claims against the City.
(See
Compl. ¶ 25.) Nonetheless, the City has moved for summary judgment on the issue, and to the extent plaintiffs are implicitly making a § 1983 claim against it, the issue will be addressed and decided.
As the City notes, in
Monell v. Department of Social Services,
the Supreme Court held that a municipality cannot be held vicariously liable under § 1983 for constitutional torts committed by its employees.
See
436 U.S. 658, 694 , 98 S.Ct. 2018, 2037 , 56 L.Ed.2d 611 (1978). Instead, a municipality can only be held liable if the constitutional violation of which a plaintiff complains resulted from an official custom, policy, practice, or.usage of the municipality.
See id.
at 690-91 , 98 S.Ct. at 2035-36 . Plaintiffs have produced no evidence that any of the alleged constitutional violations committed in the course of their arrest and prosecution stemmed from any policy, practice or custom of the City. Accordingly, the City’s motion for summary judgment on plaintiffs’ § 1983 claims against it, if any, is granted.
B. Plaintiffs’ state law respondeat superior claims must be dismissed.
The City correctly argues that plaintiffs’ state law respondeat superior claims against it must be dismissed for failure to comply with a condition precedent. In cases where a plaintiff seeks to sue a municipality for torts arising out of the conduct of police officers in the course of their employment with the municipality, New York General Municipal Law §§ 50-e and 50 — i require that a plaintiff file a notice of claim within ninety days after the
*256
accrual of the causes of action on which the claim is based. Here, plaintiffs did not file a notice of claim against the City until March 18, 1996, which is more than ninety days after the accrual of the last-accruing cause of action they have pled (viz., March 20, 1995, the date on which Mr. Mejia’s malicious prosecution claim accrued as a result of his acquittal,
see Scomello v. Caronia,
232 A.D.2d 625, 625 , 648 N.Y.S.2d 688, 689 (2d Dep’t 1996)). Accordingly, the City’s motion for summary judgment on plaintiffs’ state law claims is also granted.
(3)
Airborne
A. Plaintiffs’ § 1983 false arrest and malicious prosecution claims present issues for the jury.
As an initial matter, it is noted that “[p]rivate persons, jointly engaged with state officials in [a] prohibited action, are acting 'under color’ of law for purposes of [§ 1983],”
United States v. Price,
383 U.S. 787, 794 , 86 S.Ct. 1152, 1157 , 16 L.Ed.2d 267 (1966), and Airborne does not contest its state actor status in this case. Instead, Airborne argues that plaintiffs’ § 1983 claims against it should be dismissed because (1) it had probable cause for the Mejias’ arrest, and (2) even if it did not, it is entitled to qualified immunity. Each argument is considered in turn below.
1. Probable Cause
In order to establish that it had probable cause, Airborne attempts to enlists the aid of two presumptions: first, that the grand jury indictment of Mr. Mejia creates a presumption of probable cause; and (2) that Mrs. Mejia’s presence in a vehicle in which a controlled substance was found creates a statutory presumption that she knowingly possessed the controlled substance,
see
N.Y. Penal Law § 220.25 (providing, with limited exceptions, that “presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found”).
Neither presumption avails. First, the presumption created by Mr. Mejia’s grand jury indictment has no application to false arrest claims, but only to malicious prosecution claims.
See Broughton,
37 N.Y.2d at 456 , 373 N.Y.S.2d at 93-93 , 335 N.E.2d 310 . Moreover, with respect to the malicious prosecution claim, the presumption created by the grand jury indictment may be rebutted where there is evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the police or other police conduct undertaken in bad faith.
See Marshall v. Sullivan,
105 F.3d 47, 54 (2d Cir. 1996);
Colon v. City of New York,
60 N.Y.2d 78, 82-83 , 468 N.Y.S.2d 453, 455-56 , 455 N.E.2d 1248 (1983). To the extent that an indictment was obtained against Mr. Mejia based on the defendants’ alleged misrepresentations regarding the exchange of calls between Airborne and Mr. Mejia, plaintiffs have produced evidence of fraud, suppression of evidence, and police misconduct sufficient to rebut the presumption that there was probable cause for his prosecution.
Second, the presumption created by New York Penal Law § 220.25 is “evidentiary” in nature and may be rebutted “by defendant’s own testimony or by any other evidence in the case, including the inherent or developed incredibility of the prosecution’s own witnesses.”
People v. Leyva,
38 N.Y.2d 160, 167 , 379 N.Y.S.2d 30, 36 , 341 N.E.2d 546 (1975). If Mr. Mejia’s account of the four calls is true, then a jury could find that the Mejias’ were not the intended recipients of the package, did not know it contained cocaine, and only went to the Airborne office to claim the package because of misrepresentations concerning its origin. In those cir-
*257
cumstanees, the presence of the package in the Mejias’ car would not, contrary to the statutory presumption, constitute evidence that Mrs. Mejia knowingly possessed the cocaine within the package. Thus, neither of the presumptions of probable cause relied upon by Airborne apply in this case.
It is, therefore, necessary to examine whether probable cause in fact existed to believe that Mejias were the intended recipients of the package and, hence, guilty of criminal possession of a controlled substance. As noted above, the existence of probable cause must be measured at two different points in time in this case: viz., at the time of the arrest for the false arrest claim, and at the time of the commencement of criminal proceedings for the malicious prosecution claim.
See supra
Discussion (1)(A)-(B). Viewing the evidence on this motion for summary judgment in the light most favorable to the Mejias and drawing all reasonable inferences in their favor,
see Sologub v. City of New York,
202 F.3d 175, 178 (2d Cir.2000), probable cause did not exist for their arrest or the commencement of proceedings against them.
a. Probable cause at the time of the arrest.
A person is guilty of violation of New York Penal Law § 220.21 only if he or she knowingly possesses the controlled substance.
See
N.Y. Penal Law § 220.21 ;
People v. Cifuentes,
259 A.D.2d 558, 559 , 686 N.Y.S.2d 437, 438 (2d Dep’t 1999). There is no question that the Mejias possessed the package containing the cocaine after the pickup. The only question, then, is whether they did so knowingly.
i. Mr. Mejia
Arguably, Bezmen’s alleged discovery that “Luis” had called Airborne to inquire about the package would, at that point in time, have given the defendants probable cause to believe that any “Luis” who came to claim the package was its intended recipient and, thus, was aware of its contents. The Mejias speculate that there never was such a call and point to the fact that defendants have been unable to provide documentary evidence of the alleged Airborne computer entry,
see supra
note 1, and to Mr. Mejia’s denial that he placed a call to Airborne inquiring about the package. However, Mr. Mejia’s denial is consistent with the possibility that someone else called Airborne and gave the name “Luis” in order to disguise his true identity. As an alternative explanation of how the law enforcement defendants obtained the name “Luis,” the Mejias point to the fact that S/A Raffa obtained a business card from Complete Diagnostic on November 19, 1993 that bore the name “Luis.”
28
Based on this fact and the lack of documentary evidence of the Airborne computer entry, a reasonable juror could infer that there never was a call to Airborne from “Luis,” in which case probable cause was certainly lacking when defendants began to make arrangements for their second attempt at a controlled delivery on November 29,1993.
29
Moreover, even if there was such a call, a reasonable juror could find that subse
*258
quent events dissipated any probable cause that it may have created with respect to Mr. Mejia and, hence, Mrs. Mejia.
See Lowth,
82 F.3d at 571 (holding that probable cause may dissipate if “the groundless nature of the charges [becomes] apparent by the discovery of some intervening fact” (citing
Callan v. State,
73 N.Y.2d 731 , 535 N.Y.S.2d 590 , 532 N.E.2d 96 (1988))). Assuming, as the court must, that Mr. Mejia’s account of the four calls regarding the package’s Venezuelan origin and his reluctance to claim it is true, then no “person of reasonable caution,”
Weyant,
101 F.3d at 852, who was aware of the content of those four calls would be warranted in the belief that Mr. Mejia was the “Luis” who had called to inquire about the package from Colombia. Pertinently, there is sufficient evidence for a reasonable juror to conclude that Airborne’s employees were so aware and, thus, that Airborne knowingly participated in the ruse.
Mr. Mejia testified that he received four telephone calls from individuals who identified themselves as Airborne representatives who implored him to claim a package that they represented to be from Venezuela. As detailed above,
supra
Background (4), Mr. Mejia’s account of the four telephone calls is corroborated by: (1) two salient pieces of physical evidence, viz., the phony airbill that indicates the origin of the package to be Caracas, and the routing slip
on
the exterior of the Airborne box, which designates “CAR” as the package’s origin, (PL’s Ex. N.); (2) S/A Tipton’s tes- ■ timony that Gennarelli gave “Luis” “several [unspecified] reasons” why the package could not be delivered, (Tipton Dep. at 119, 121-22); and (3) Detective Skinner’s testimony that, on the afternoon of November 30th, “someone” at the Airborne office stated he was going to place a call to “this person again,” (Skinner Dep. at 37). If a reasonable juror credited Mr. Mejia’s account of the four telephone calls, then he or she could infer that Gennarelli’s account of his telephone conversation with Mr. Mejia on November 29th was false and that Airborne did participate in making the alleged misrepresentations concerning the package’s Venezuelan origin to Mr. Mejia. Moreover, Gennarelli’s own admission that he wrote the notation “CAR” on the routing slip and his failure to provide any explanation as to why he did so, (Gennarel-li Dep. at 57, 59-60, 62-63), provide persuasive evidence of Airborne’s involvement in the alleged ruse.
Of course, Airborne’s participation in the ruse would not defeat a finding that they had probable cause if Airborne believed that the package was from Venezuela. However, there is circumstantial evidence upon which a reasonable juror could find that Airborne knew or learned from law enforcement that the package was in fact from Bogota, Colombia. First, on and before November 30th, Bezmen and Gennar-elh had several conversations with S/A Tipton (who knew the package was from Colombia) and with one another regarding the controlled delivery of the package. A reasonable juror could infer that the origin of the package was mentioned at some point in these conversations. Second, Bez-men had reviewed Airborne’s own computerized tracking records related to the package in the course of the investigation, (Bezmen Dep. at 40, 42), and these records may have indicated that the package originated in Colombia.
Thus, a reasonable juror could find, on the evidence presented, that Airborne participated in deceiving Mr. Mejia into believing that he was claiming a package from Venezuela, when it knew that the package was from Columbia. In those circumstances, Airborne would not have probable cause to believe that the Mr. Mejia was the intended recipient of the package.
ii. Mrs. Mejia
Airborne also argues that probable cause was created by Detective Skinner’s observation that the portfolios were in Mrs. Mejia’s lap when he approached the car and his subsequent discovery that the
*259
cover of one of the portfolios had been ripped open. However, Mrs. Mejia has denied that she even touched the portfolios, much less ripped one of them open. Instead, the Mejias testified that Mr. Mejia had simply opened the package, looked at one of the portfolios, decided it was “junk mail,” and then tossed the package and its contents onto the floor in the back of the car. Moreover, there are inconsistencies in Detective Skinner’s testimony on this point. Before the grand jury, he testified that one of the portfolios was open and he could already see what appeared to be cocaine when he first approached the car. But in his deposition, Detective Skinner testified that the portfolios were merely sitting on Mrs. Mejia’s lap and that it was only on subsequent inspection that he discovered one of them had been ripped open. Finally, S/A Tipton testified that one of the portfolios had already been “ripped open,” not merely punctured, by Miami Customs officials and that the cocaine pouch was visible when she received the package from Miami.
See supra
note 3. Notably, Detective Skinner testified in deposition that he closely examined the portfolios when he was repackaging them and that S/A Tipton had pointed out to him the “hole” caused by the field-test in Miami. Thus, a reasonable juror could find that the portfolios were not on Mrs. Mejia’s lap when the car was stopped, and that Detective Skinner knew that one of the portfolios had already been ripped open before Mr. Mejia claimed the package. Under those circumstances, the location and condition of the portfolios .in the Mejias’ car would not create probable cause to believe they were aware of the package’s contents.
b. Probable cause at the time criminal proceedings were commenced against the Mejias.
The determination of whether a particular defendant had probable cause must be made on the basis of the information possessed by, or reasonably available to, that defendant.
See
59 N.Y. Jur.2d
False Imprisonment & Malicious Prosecution
§ 71 (1987). In this case, there is no evidence that at the time criminal proceedings were commenced, any Airborne employee was aware of the seizure of the additional portfolios from the Mejias’ office. Moreover, even if the police defendants’ knowledge of the additional portfolios can be imputed to Airborne,
cf. Davis v. Little,
851 F.2d 605, 607 (2d Cir.1988) (holding that probable cause may be determined on basis of collective knowledge of police), that additional evidence would still not be enough to preclude a reasonable juror from finding that Airborne lacked probable cause.
Whether the additional portfolios created probable cause (and with respect to which of the plaintiffs) depends on the condition they were in when the police seized them. On this question, there is conflicting evidence. The police defendants testified that the covers of each of the portfolios had been ripped open, thus suggesting that they had also contained cocaine and that the Mr. Mejia (or much less likely Mrs. Mejia in view of the fact that she alerted the police defendants to their existence) had removed it. In contrast, the Mejias deny that they ripped open the portfolios. Mr. Mejia testified that, before he left for the Airborne office on November 30th, the portfolios were in still in the same place he had left them, and Mrs. Mejia testified that they were still in the same spot when she returned to the garage with the police. Mrs. Mejia admitted, however, she did not have an opportunity to inspect the condition of the portfolios at the time the police seized them.
While the Mejias’ testimony does not directly contradict that of the police defendants since it is possible that someone may have entered the Mejias’ unlocked office during the one and one-half to two hours after they left for the Airborne office, removed any cocaine that may have been in the portfolios, and carefully placed
*260
them back in their original position, the police defendants’ testimony that the portfolios had been ripped open before they were seized cannot be credited on this motion for summary judgment. As the Second Circuit has noted, a witness’s “ ‘disregard of his oath is enough to justify the belief that the witness is capable of any amount of falsification, and to make it no more than prudent to regard all that he says with strong suspicion, and to place no reliance on his mere statements.’ ”
United States v. Weinstein,
452 F.2d 704, 713 (2d Cir.1971) (Friendly, C.J.) (quoting
Knowles v. People,
15 Mich. 408, 412 (1867)). A reasonable juror could discredit the police defendants’ testimony as to their actions in arranging the controlled pickup,
see infra
Discussion (5)(A)(1), (6)(A)(1), as well as other inculpatory observations to which they have testified, and which the Mejias have denied, e.g., that Mrs. Mejia handled the portfolios or that Mr. Mejia got out of his car and said, “What is this for, the drugs?” Thus, a reasonable juror could also discredit the police defendants’ testimony that the additional portfolios had been opened.
Therefore, viewing the evidence in the light most favorable to the Mejias and drawing all reasonable inferences in their favor, what the police defendants seized were (1) similar portfolios from a similar address in Bogota, Colombia, (2) which had not been opened by the Mejias, (3) which had been left in plain view on top of a box, rather than secreted away, and (4) which Mrs. Mejia, against the penal interests of her and her husband, had spontaneously offered to the police.
30
In light of Airborne’s assumed knowledge of the deception required to induce Mr. Mejia to claim the first set of portfolios, the discovery of these additional, unopened portfolios in the Mejias’ office would not warrant a person of reasonable caution to believe that the Mejias were the intended recipients of the first set of portfolios. A fortiori, a person of reasonable caution would not be warranted in believing that criminal proceedings could be successfully commenced against them on this basis.
See Post,
180 F.3d at 417 . At most, the additional portfolios would be evidence of an ongoing
effort
to smuggle drugs through the Mejias’ garage, which Sergeant McNicholas knew employed several individuals, any one of whom could have been the intended recipient. Thus, even assuming Airborne can be imputed knowledge of the additional portfolios— which is by no means clear, a reasonable juror could find that Airborne did not have the requisite probable cause at the time criminal proceedings were commenced against the Mejias.
2. Qualified Immunity
The basic test for determining whether a public official is entitled to assert qualified immunity was established by the Supreme Court in
Harlow v. Fitzgerald,
457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). When the defendant is a private actor, however, a court must first determine whether qualified immunity is even available to the defendant. This is because “private actors are not automatically immune (i.e., § 1983 immunity does not automatically follow § 1983 liability).”
Richardson v. McKnight,
521 U.S. 399, 412 , 117 S.Ct. 2100, 2108 , 138 L.Ed.2d 540 (1997). The discussion below will, therefore, proceed in two stages: first, it will be considered whether qualified immunity is even available to private actors in Airborne’s position with respect to either the false • arrest or malicious prosecution claims; and, if so, whether Airborne is entitled to qualified immunity in light of the evidence presented in this case.
a. Qualified Immunity for False Arrest
i. Is qualified immunity available to private actors in Airborne’s position?
In deciding whether a private actor is entitled to assert qualified immunity
*261
under § 1983, the Supreme Court has held that a court must look first to whether “[hjistory ... reveal[s] [that] a ‘firmly rooted tradition’ of immunity [is] applicable” to the class of private actors involved in the case,
Richardson,
521 U.S. at 404 , 117 S.Ct. at 2104 , and, second, to “Whether the immunity doctrine’s purposes warrant immunity” for that type of private actor,
id.
at 407 , 117 S.Ct. at 2105 . The first inquiry entails an examination of whether the “parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871— § 1 of which is codified at 42 U.S.C. § 1983 ,”
Wyatt v. Cole,
504 U.S. 158, 164 , 112 S.Ct. 1827, 1831 , 118 L.Ed.2d 504 (1992), and the second, an examination of whether the policy reasons that support granting qualified immunity to public officials apply to the relevant class of private actors,
see Richardson,
521 U.S. at 407-12 , 117 S.Ct. at 2105-07 .
To conduct these inquiries properly, it is essential first to describe correctly the relevant class of private actors.
See Murphy v. New York Racing Ass’n, Inc.,
76 F.Supp.2d 489, 505-06 (S.D.N.Y. 1999). Airborne argues that, as a courier service, its activities are analogous to those of the U.S. Postal Service, and that the court’s inquiry should, therefore, focus on the same considerations that would apply in determining whether immunity is available to the government mail service. Airborne, however, is not being sued in this case for its activities in delivering mail. Rather, plaintiffs have sued Airborne for being a private actor enlisted by law enforcement to make an allegedly unlawful arrest. It is this latter, functional description of Airborne’s role in the circumstances that precipitated this action that defines the relevant class of private actors for the purposes of determining whether qualified immunity is available to Airborne.
Cf. id.
(holding, in § 1983 action against board of directors of state racing commission, that availability of qualified immunity would be determined on basis of board members’ status as corporate officers, not their status as “parties engaged in horse racing”).
31
Although it is presumably common place for private citizens to assist law enforcement in making arrests, the question of whether qualified immunity is available to such persons turns out to be surprisingly novel. No court in this circuit has addressed the issue, and the few decisions from courts in other circuits that have addressed similar questions, were decided before
Richardson
or else do not conduct the historical inquiry required by
Richardson .
32
It is, therefore, necessary to start
*262
from scratch on this issue and turn to the two inquiries mandated by
Richardson .
I. History
Professional law enforcement’s practice of enlisting private citizens to assist in making arrests has its origins in the English sheriffs common-law “power of the county” to summon a posse comitatus to suppress riots and civil disorders.
See, e.g., Coyles v. Hurtin,
10 Johns. 85 , 1813 WL 967 at *4 (N.Y.Sup.1813);
Hooker v. Smith,
19 Vt. 151 , -, 1847 WL 2697 (1847); 1 William Blackstone,
Commentaries *343.
33
In the nineteenth century, most states of the Union codified by statute the sheriffs common-law power and provided criminal penalties for citizens who refused to provide such aid.
See, e.g., Watson v. State,
83 Ala. 60 , 3 So. 441 , 441 (1888) (citing statute);
Robinson v. State,
93 Ga. 77 , 18 S.E. 1018, 1019 (1893) (same);
Firestone v. Rice,
71 Mich. 377 , 38 N.W. 885, 886 (1888) (same);
Elder v. Morrison,
10 Wend. 128 , -, 1833 WL 3052 (N.Y.Sup.Ct.1833) (same);
Hooker,
19 Vt. at-, 1847 WL 2697 (same). Thus, by 1871, there was a firmly rooted tradition in this country of private citizens acting as adjuncts to professional law enforcement. The common law’s treatment of private citizens who assisted in making unlawful arrests, however, is somewhat less clear.
Surveying the common law on this issue, an A.L.R. annotation states that:
The view which may be said to represent the weight of authority is that where a private individual is requested or persuaded by a known peace officer to give assistance in the making of an arrest he is under no obligation, or at most the very slightest, to determine the lawfulness of the officer’s conduct; since every citizen is bound to assist a known peace officer in making an arrest when called upon to do so, it would be inequitable to impose liability for conduct which the actor is under a legal obligation to perform; consequently, a private citizen so assisting an officer is not liable for false arrest or false imprisonment if it ultimately develops that the officer was acting unlawfully in making the arrest.
F.G. Madara, Annotation,
Liability, for False Imprisonment or Arrest, of a Private Person Answering Call of Known or Asserted Peace or Police Officer to Assist in Making Arrest which Turns Out to be Unlawful,
29 A.L.R.2d 825 , at § 2 (1953) (footnote omitted); see
also
32 Am.Jur.2d
False Imprisonment
§ 42 (1995) (“Private Persons Assisting Officer on Request”) (similar); 35 C.J.S.
False Imprisonment
§ 43, at 568 (1960) (similar). Several nine
*263
teenth-century decisions, some of which predate the enactment of § 1983, confirm the reasoning and result summarized in the ALR annotation.
See Watson,
3 So. at 441-42;
Reed v. Rice,
25 Ky. 44 , -, 1829 WL 1312 , at *3 (1829);
Firestone,
38 N.W. at 886-87 ;
Taylor v. Alexander,
6 Ohio 144, 147-48 (1833);
Weatherford v. State,
31 Tex.Crim. 530 , 21 S.W. 251, 252 (1893);
Hooker v. Smith,
19 Vt. at-, 1847 WL 2697 (“It is said by a very accurate elementary writer, that, in the arrest of a party for crime, those who. obey the sheriffs command will be thereby justified, though the sheriff himself might be acting without authority.”);
McMahan v. Green,
34 Vt. 69 , --, 1861 WL 3365 (1861). Later decisions also support this understanding of the common law.
See Mackie v. Ambassador Hotel & Invest. Corp.,
123 Cal.App. 215 , 11 P.2d 3, 6 (1932) (followed in
Peterson v. Robison,
43 Cal.2d 690 , 277 P.2d 19, 24 (1954));
Edger v. Burke,
96 Md. 715 , 54 A. 986, 989 (1903);
Moyer v. Meier,
205 Okla. 405 , 238 P.2d 338, 340 (1951);
Presley v. Ft. Worth D.C. Ry. Co.,
145 S.W. 669, 671-72 (Tex.Civ.App.1912, no writ);
cf. State v. Bertchey,
77 N.J.L. 640 , 73 A. 524, 526 (N.J.Err. & App.1909).
There was, however, a contrary line of common law authority,
which support[s] the general theory that a citizen summoned by a known peace officer to aid in making an arrest has no greater immunity from liability for false arrest or false imprisonment than the officer has; everybody is presumed to know the law, and consequently a citizen so situated is presumed to know whether the officer is acting lawfully or unlawfully; accordingly it is the duty of such a citizen to determine the lawfulness or unlawfulness of the officer’s proposed action, and if he decides wrongly that the officer is acting properly in making the arrest, he must be regarded as having made the decision at his peril, with the result that the person falsely arrested or imprisoned has a remedy against the assisting citizen.
Madara,
supra,
29 A.L.R.2d 825 , at § 2 (citing
Mitchell v. State,
12 Ark. 50 (1851);
Pow v. Beckner,
3 Ind. 475 (1852);
Vinton v. Weaver,
41 Me. 430 (1856);
Elder v. Morrison,
10 Wend. 128 (N.Y.Sup.Ct. 1833);
Martin v. Houck,
141 N.C. 317 , 54 S.E. 291 (1906);
Kirbie v. State,
5 Tex. App. 60 (1878);
overruled on other grounds, Staples v. State,
14 Tex.App. 136 , 1883 WL 8880 (1883);
Staples,
14 Tex.App. at-, 1883 WL 8880 , at *3-4);
see also Oystead v. Shed,
12 Mass. 506 ,-, 1815 WL 992 , at *4-5 (1815) (“[W]here the original act of the officer is unlawful in itself, any stranger who aids him in it will be liable to the party injured, although he act by the officer’s command.... [I]n the case at bar the illegality of his proceedings was not so obvious; and these two defendants may be supposed to have been ignorant of the law in this respect. But this, if true, would not excuse their conduct, nor dimmish in any degree the injury which the plaintiff sustained.”).
Finally, other decisions that approached the issue simply state that a person who is enlisted by an officer in making an arrest may claim the same justifications as the officer himself.
See Robinson,
18 S.E. at 1019 ;
Goodwine v. Stephens,
63 Ind. 112 , -, 1878 WL 6104 , at *3-4 (1878);
Jennings v. Carter,
2 Wend. 446 , -, 1829 WL 2300 , at *4 (N.Y.Sup.1829).
Limiting one’s attention to the decisions issued on or before 1912, as did the Court in Richardson,
34
it, thus, appears that courts in seven jurisdictions (viz., Alabama, Kentucky, Maryland, Michigan, Ohio, Texas, and Vermont) that expressly considered the issue held that persons who are enlisted by an officer to assist in making an arrest are justified in doing so even if the officer had no lawful authority to make the arrest at the time, while courts in an
*264
equal number of jurisdictions (viz., Arkansas, Connecticut, Indiana, Maine, New York, North Carolina, and Texas) held that such persons were not so justified. While the A.L.R. annotation may be correct in asserting that a preference for immunity was the majority view at the time it was written (1953), there simply was not a uniform common law rule on the subject at the time Congress enacted § 1983.
Richardson
itself provides little guidance as to how equivocal the common law can be and still constitute a firmly rooted tradition, for in that case the Court found no firmly rooted tradition where there was no evidence of a common-law immunity at all.
See Richardson,
521 U.S. at 404-07 , 117 S.Ct. at 2104-05 ;
see also id.
at 415, 117 S.Ct. at 2109 (Scalia, J., dissenting) (stating that there was one pre-1871 decision in support of immunity). The
Richardson
majority adds, unhelpfully, that the single contrary case found by the dissent is not evidence of a firmly rooted tradition.
See id.
at 406 , 117 S.Ct. at 2105 . One must, therefore, look to common sense for a reasonable interpretation of the phrase “firmly rooted tradition.” Obviously, the fact that one or even a few states followed a contrary rule cannot defeat a claim that a particular rule of immunity followed in all other states constituted a firmly root tradition in the common law at the time of § 1983’s enactment, any more than can a single decision in support demonstrate that such a tradition did exist. But, here, the states were closely split on the question of whether the common law recognized such a defense. Under these circumstances, it is not clear whether immunity from tort liability for private persons called upon to assist in making an unlawful arrest can be deemed to have been a firmly rooted tradition in the common law at the relevant time.
II. Purposes of the Qualified Immunity Doctrine
Richardson’s second, policy-oriented inquiry, however, clearly weighs in favor of recognizing such an immunity under § 1983.
Richardson
explained that the purposes of the qualified immunity doctrine are: (1) “to protect government’s ability to perform its traditional functions by providing immunity where necessary to preserve the ability of government officials to serve the public good,” (2) “to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service,” and (3) to protect “the public from unwarranted timidity on the part of public officials.”
Richardson,
521 U.S. at 408 , 117 S.Ct. at 2105 (internal quotation marks and citations omitted). Each of these policy reasons is considered in turn below.
First, the necessity of protecting the government’s ability to perform its traditional law enforcement function weighs heavily in favor of recognizing the availability of qualified immunity to private actors who are enlisted by law enforcement officials to assist in making arrests that prove to be unlawful. There can be little doubt that the threat of civil liability will “ ‘distrac[t]’ ” private citizens “ 'from their ... dut[y],’ ”
Mitchell v. Forsyth,
472 U.S. 511, 526 , 105 S.Ct. 2806, 2815 , 86 L.Ed.2d 411 (1985) (quoting
Harlow,
457 U.S. at 816 , 102 S.Ct. at 2737 ), to promptly render aid to the police when it is needed and, thus, will hinder law enforcement,
see Reed,
25 Ky. at-, 1829 WL 1312 , at *3 (“The right and power of an officer to summon the citizen to aid in the execution of precepts to him directed, is highly necessary, if not indispensable to the well being of society. If all those summoned had to examine and judge of the legality of the process, and then act upon their own responsibility, this necessary power in the officer would, in practice, be paralyzed in a great degree.”).
Indeed, the necessity for prompt and largely unquestioning assistance by private persons, where such assistance is required by a police officer, is expressly cited as justification for according immunity to such persons in several of the leading common law decisions. For example, in
Wat
*265
son,
the Supreme Court of Alabama reasoned:
The power of the officer to command assistance, when necessary, is essential to the due execution of the criminal law, and to the protection of society. This power, which extends to calling to his aid the posse comitatus, oftentimes would be unavailing, especially in emergencies requiring prompt action and assistance, if the person summoned was required to examine the papers of the officer, and determine his authority to make the particular arrest, — whether it would be safe to assist him. The officer is empowered by the statute to determine the necessity and time of assistance, and prompt obedience is the duty of the person summoned or commanded. The necessity does not admit of delay.
3 So. at 441. And, in
Firestone ,
the Supreme Court of Michigan expressed similar sentiments:
We do not think that a man called upon by the sheriff is required, at his peril, to ascertain whether the sheriff has a proper warrant, or whether the offense charged against the person to be arrested is a felony, or that he may refuse to act until he is satisfied that the sheriff is acting legally, or within the scope of his office, in a criminal case. If he were allowed to do this, the object of the law would be defeated, and the statute rendered nugatory in many cases. There is often no time for inquiry, as action must be immediate. The necessity of the case will not permit the person thus summoned to stop to examine papers, or take counsel as to the legality of the process in the officer’s hands, or to inquire whether any process is necessary in the particular case where his aid is required.
38 N.W. at 886 ;
see also McMahan,
34 Vt. at-, 1861 WL 3365 (“The necessity of the case forbids that [a private citizen] should have the means of knowing or the time to inquire into the anterior proceedings. Nor does the law intend that any such inquiry should be tolerated, or that men called upon to aid officers in arresting criminals shall stop to examine papers and to take counsel as to the legality of the process under which the officers act.”).
There are, of course, limiting principles that apply to this justification,
see infra
Discussion (3)(A)(2)(a)(ii), but the necessity for prompt assistance by private actors is especially strong in circumstances such as those presented by this case. Drug traffickers often make use of air courier services to smuggle drugs into this country. Without the assistance of the courier services, it would not be possible to make effective controlled pick-ups or deliveries of courier shipments containing contraband, and criminals using such services, who could otherwise be readily apprehended, would succeed in the importation of illegal drugs into this country.
See generally Illinois
v.
Andreas,
463 U.S. 765, 769-70 , 103 S.Ct. 3319, 3323-24 , 77 L.Ed.2d 1003 (1983) (noting usefulness of controlled delivery as technique in apprehending drug traffickers). Moreover, it is essential that the courier service’s cooperation be prompt, for a delay in the delivery of an expected' shipment of drugs may signal to the sophisticated trafficker that the package has been intercepted and that law enforcement officials have become aware of its contents. Thus, time will generally not permit the local management of a courier service to consult the company’s general counsel in deciding whether and how to cooperate with law enforcement in making a controlled pick-up or delivery. In a very real sense, then, in such circumstances, assistance delayed is assistance denied.
The second policy consideration cited in
Richardson
— ensuring that talented candidates are not deterred by the threat of damages suits from entering public service — also weighs in favor of extending qualified immunity to private actors who are enlisted by law enforcement to assist in making arrests. The appropriate analog for this consideration in the present
*266
case is ensuring that the private actors best situated to assist law enforcement are not discouraged from rendering their aid by the threat of civil liability. In the circumstances of this case, this means encouraging the cooperation of the particular courier service that the drug trafficker expects to deliver the shipment of contraband; obviously, it would do the police or Customs agents no good to have a different, unexpected courier attempt to effect the pickup or delivery. In other cases, such as that of an officer on the street who requires assistance in subduing a suspect who resists arrest, it will mean encouraging the nearest, able-bodied by-stander to come to the officer’s aid. The threat of liability without the hope of immunity would, no doubt, often have the untoward result that the private actor best situated to assist the police will simply choose not to become involved. Moreover, for this class of private actors, the fear of liability is not countervailed by the profit motive and insurance coverage of the
Richardson
defendants.
Cf.
521 U.S. at 411 , 117 S.Ct. at 2107 .
Finally, the third purpose behind the qualified immunity doctrine — preventing unwarranted timidity in the performance of public duties, which the Supreme Court identified as the “most important,”
Richardson,
521 U.S. at 409 , 117 S.Ct. at 2106 , decidedly weighs in favor of according qualified immunity to private actors enlisted by law enforcement to make arrests. In
Richardson ,
the Court found that this policy concern does not warrant extending qualified immunity to privately-employed prison guards because it “is less likely present, or at least is not special, when a private company subject to competitive market pressures operates a prison.”
Id.
Because these market pressures “encourage vigorous performance” of the guards’ duties, there is no need to afford them qualified immunity to encourage such performance.
Id.
at 411 , 117 S.Ct. at 2107 . In reaching this result, the Court specifically cited the following features of the private firm for which the guards worked: (1) the guards worked for a private firm “systematically organized to perform a major administrative task for profit”; (2) the firm “performs that task independently, with relatively less ongoing direct state supervision [than publicly operated prisons]”; (3) by statute, the firm “must buy insurance sufficient to compensate victims of civil rights torts”; (4) “since the firm’s first contract expires after three years, its performance is disciplined, not only by state review, but also by pressure from potentially competing firms who can try to take its place”; and (5) “the contract’s provisions — -including those that might permit employee indemnification and avoid many civil service restrictions — grant this private firm freedom to respond to [this threat of replacement] through rewards and penalties that operate directly upon the employees.”
Id.
at 409-10 , 117 S.Ct. at 2106-07 (citations omitted).
None of these features characterize the class of private actors exemplified by Airborne. First, Airborne, like the private defendants in the common law cases that support granting immunity, was not compensated for its assistance in making the arrest and, thus, had no profit motive to assist law enforcement.
35
Second, Airborne’s involvement in the law enforcement was, again like that of those private defendants, brief and isolated, and its actions were directed entirely by the law enforcement defendants. This distinction between Airborne and the
Richardson
defendants is particularly significant in light of the fact that the
Richardson
court closed with the “caveat” that its decision to deny qualified immunity was “narrowly” tailored to the circumstances of that case and intimated that the same result might not obtain in a case, like this one, that “involve[s] a private individual briefly associated with a government body, serving as
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an adjunct to government in an essential governmental activity, or acting under close official supervision.” 521 U.S. at 413 , 117 S.Ct. at 2108 . Third, there is no evidence before the court that Airborne carries insurance for civil rights torts against non-employees. While Airborne presumably has commercial general liability and employer liability insurance, those types of policies may not cover intentional torts against non-employees. Moreover, private individuals in Airborne’s position will virtually never carry such insurance. Fourth, Airborne did not act pursuant to a renewable contract with the NYPD or Customs. Rather, it was uniquely called upon for assistance by law enforcement for the simple reason that the package to be delivered was an Airborne package. Airborne and other such private actors enlisted by the police on particular, isolated occasions are, therefore, not disciplined by a desire to be repeat players in the business of assisting the police in making arrests. Finally, there is no evidence before the court that Airborne’s contracts with its employees create a mechanism whereby it can effectively police its own actions when assisting law enforcement, and, again, Airborne has no incentive to create such a self-policing mechanism in order to increase its chances of being asked to assist law enforcement in making future arrests. Still less does this fifth factor have any application to the (probably more typical) case of a private individual who answers the call of the police to assist in making an arrest. Thus, for private defendants in Airborne’s position, the threat of § 1983 liability without the promise of qualified immunity is not countervailed by any of the factors that discouraged unwarranted timidity in the performance of the
Richardson
defendants’ duties.
In sum, then, there was (1) strong support in the common law as of 1871 for shielding private citizens who are enlisted by the police to assist in making unlawful arrests, though that support probably does not rise to the level of a firmly rooted tradition, and (2) the purposes behind qualified immunity all strongly weigh in favor of recognizing the availability of qualified immunity in such cases.
The conflict between the two prongs of the
Richardson
test in this case, thus, raises the question whether the
Richardson
test is truly conjunctive in nature. On the one hand,
Richardson
could be interpreted as commanding a reviewing court to examine both history and policy in deciding whether qualified immunity is available, but allowing the court to weigh the two considerations against each other if the two inquiries yield opposite results. On the other hand,
Richardson
may require that both inquiries be made and that each of them weigh in favor of recognizing the availability of qualified immunity.
The Supreme Court’s decision in
Wyatt
partially answers this question. There, the justices made clear that “irrespective of the common law support, we will not recognize an immunity available at common law if § 1983’s history or purpose counsel against applying it in § 1983 actions.”
Wyatt,
504 U.S. at 164 , 112 S.Ct. at 1831 (citing
Tower v. Glover,
467 U.S. 914, 920 , 104 S.Ct. 2820, 2824 , 81 L.Ed.2d 758 (1984);
Imbler v. Pachtman,
424 U.S. 409, 424-429 , 96 S.Ct. 984, 992-994 , 47 L.Ed.2d 128 (1976)). Thus, it is clear that the strength of common law tradition alone cannot justify extending qualified immunity to a given class of § 1983 defendants. However, this result leaves open the question presented by this case: whether sufficiently strong policy considerations, buttressed by a clear line of common law authority, though not one that can be properly described as a firmly rooted tradition, suffice to establish qualified immunity for a particular class of private actors.
The Supreme Court’s statements on the issue of necessity of common-law support, although at times conflicting, appear to provide an affirmative answer. In
Tower ,
the Court declined to extend immunity to public defenders on the basis of policy considerations alone, stating that “[w]e do
*268
not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy.” 467 U.S. at 922-23 , 104 S.Ct. at 2826 . However, in
Anderson ,
the plaintiffs argued that no immunity should be provided to police officers who conduct warrantless searches of innocent third parties’ homes in search of fugitives if the fugitive was, in fact, not present, since the English common law provided for strict liability in such circumstances. The Court rejected this argument, explaining:
Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the “common-law tradition,” we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by
Harlow ,
where the Court completely reformulated qualified immunity along principles not at all embodied in the common law ...
483 U.S. at 644-45 , 107 S.Ct. at 3041-42 (citations omitted) (footnote omitted);
see also Wyatt,
504 U.S. at 166 , 112 S.Ct. at 1832 (affirming this characterization of Harlow). The distinction between
Tower
and
Anderson
perhaps lies in the fact that in
Tower ,
the Court found no common-law support for the immunity in question, while in
Anderson ,
it did, albeit not for the precise factual scenario there in question.
Compare Tower,
467 U.S. at 922 , 104 S.Ct. at 2825 (finding that common law did not shield defense lawyers from tort liability for intentional misconduct),
with Anderson,
483 U.S. at 645 , 107 S.Ct. at 3042 (holding that common law would shield officers from liability if fugitive was present in third-party’s home). Thus, in cases such as this, where there is strong, though not univocal, common law support for extending qualified immunity, policy considerations may play a dispositive role.
In this regard, it is significant that in both of its private actor-qualified immunity decisions, the Court conducted an extended examination of the policy considerations that weighed for and against recognizing qualified immunity in favor of the defendants therein, even after it found no common-law support for extending immunity.
See Richardson,
521 U.S. at 408-12 , 117 S.Ct. at 2106-07 ;
Wyatt,
504 U.S. at 167-68 , 112 S.Ct. at 1833-34 . It may be inferred, then, that the
Richardson
and
Wyatt
courts contemplated that qualified immunity might be available in cases where policy considerations strongly support extending qualified immunity, even if the relevant common law authorities do not univocally support its recognition.
This case presents exactly such a scenario, and the above discussion of the relevant policy considerations leads to the conclusion that qualified immunity is available to private actors who are enlisted by law enforcement officials to assist in making an arrest.
This holding, however, marks only the beginning of the inquiry as to whether Airborne is entitled to qualified immunity in this case. Two more questions must first be answered to make that determination: (1) Under what circumstances is a private defendant in a given case entitled to the qualified immunity so recognized?, and (2) Have those circumstances been shown in this particular case?
ii. Requirements for Entitlement to Qualified Immunity for Private Defendants in Airborne’s Position
In
Harlow ,
the Supreme Court announced the general standard for granting qualified immunity in cases involving public officials: qualified immunity shields public officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Id.
at 818 , 102 S.Ct. at 2738 . The
Harlow
standard is one of “objective reasonableness,” not, as earlier precedent had held, subjective good faith or malice.
Id. at
815-19 , 102 S.Ct. at 2736-39 . As previously discussed,
*269
in the context of a § 1983 false arrest suit against a police officer, the
Harlow
standard implies that the arresting officer is entitled to qualified immunity if and only if it was objectively reasonable for him to believe that probable cause for the arrest existed.
See Malley,
475 U.S. at 343-45 , 106 S.Ct. at 1097-98 . The determination of whether an officer’s belief that probable caused existed was objectively reasonable will often require an examination of the information possessed by the officer and clearly established law at the time of arrest.
Cf. Anderson,
483 U.S. at 641 , 107 S.Ct. at 3040 (applying standard in illegal search case).
In adapting this standard to private actors enlisted by law enforcement to assist in making an arrest, it is appropriate again to look to history and policy to determine the contours of the qualified immunity available in such cases. Certainly, at a minimum, the private defendant seeking qualified immunity should have determined whether the request for assistance came from someone who was in fact a law enforcement officer before acting, since the requestor’s status as a known law enforcement official will be an important and easily recognized indicia of probable cause for a reasonable private actor in the defendant’s position. Therefore, a private defendant who acts without first making even this minimal determination is rightly held to act at his peril. This threshold requirement is consistent with the common law underpinnings of the qualified immunity here recognized, for even those common law courts that otherwise acknowledged cooperation with law enforcement as a defense to liability for false arrest held that the defense would be lost if the private defendant did not act at the request of a known law enforcement official.
See Madam, supra,
29 A.L.R.2d 825 , at § 3 (citing
Cincinnati, N.O. & T.P.R. Co. v. Cundiff,
166 Ky. 594 , 179 S.W. 615 (1915));
see also Watson,
3 So. at 441 (relying on fact that private defendant had responded to call of a known officer);
McMahan,
34 Vt. at --, 1861 WL 3365 (same).
However, the mere fact the request for assistance in making an arrest came from a known law enforcement official generally will not be sufficient to grant qualified immunity, for the law enforcement official himself may be proceeding without an objectively reasonable belief that probable cause exists. Granting qualified immunity in such instances would thwart § 1983’s purpose of preventing the abuse of official authority. Indeed, one of the primary concerns of those common law courts that refused to recognize cooperation with law enforcement as a defense in false arrest actions was that private defendants should not be shielded from liability for their assistance in patent abuses of police authority.
See, e.g., Oystead v. Shed,
12 Mass.-, 1815 WL 992 , at *5 (“Suppose the officer in this case had proceeded, without necessity or provocation, to beat and wound the plaintiff or his family, it is very clear that these two defendants would not be justified in aiding him in such wanton abuse.”).
But see Watson,
3 So. at 441 (‘When [the officer’s] general power is known, his call will justify the citizen in yielding obedience,
unless [the private citizen] has notice of the want of authority in the particular case in which assistance is
required.” (emphasis added)); Restatement (Second) of Torts § 139 cmt. d (1965) (stating that “the [private] actor is privileged to rely upon the officer’s request and assist him unless the facts are such that the actor knows or is convinced beyond a reasonable doubt that the officer’s suspicion is unreasonable”).
Nevertheless, it would not be appropriate to apply the same standards to a private defendant as would be applied to an actual law enforcement official when gauging the objective reasonableness of the former’s belief that probable cause existed. Probable cause, strictly construed, is a concept that often confounds even professional law enforcement officials, who have received (one hopes) at least rudi
*270
mentary training on the applicable rules of law. The typical private citizen has had no such training and, therefore, cannot fairly be held to the same standard as professionals in the field. Moreover, the policy concerns voiced by several of the common law courts recognizing such an immunity — viz., that the necessity of prompt action makes it inappropriate to require the private citizen to cross-examine the police officer who calls for his aid regarding his authority to make the arrest and the lawfulness thereof — further argue in favor of such a result.
See Watson,
3 So. at 441;
Firestone,
38 N.W. at 886 ;
McMahan,
34 Vt. at-, 1861 WL 3365 . On the other hand, at some point, even private citizens untrained in the niceties of probable cause must be presumed to know that a particular arrest is without justification or that a course of action in effecting an arrest is patently abusive. A proper balancing of § 1983’s protective purpose and the strong policy considerations in favor of recognizing qualified immunity, thus, suggests that the appropriate standard for gauging the objective reasonableness of a private defendant’s belief is that of the reasonable private citizen in the defendant’s position, rather than that of the reasonable law enforcement official.
Cf., e.g., Rodrigues,
950 F.2d at 816 (holding physician in action based on illegal cavity search to standard of “a reasonable physician”).
The facts necessary to establish the objective reasonableness of a private actor’s belief under this standard will necessarily turn on the circumstances of the case.
Cf. Anderson, 483 U.S. at
641, 107 S.Ct. at 3040 . For example, in the case of a bystander who comes to the aid of a uniformed police officer who is chasing a fleeing suspect, the bystander’s recognition of the officer as such and the officer’s call for help may be all that is required. But an officer’s subsequent beating of an arrestee who no longer poses a danger would not privilege the private citizen to assist in the beating. And in other circumstances, where, as here, the private actor possesses considerably more information and has the opportunity for a greater degree of reflection, it is not unreasonable to expect more careful consideration on the part of the private citizen of the appropriateness of the assistance that he is furnishing. In all cases, however, the private citizen’s belief is unreasonable when the assistance he furnishes to a law enforcement official is a patently abusive misuse of police authority.
Finally, an assisting private person who materially deviates from the directions given to him by law enforcement cannot reasonably expect that his unsupervised actions will be shielded from liability. This principle is, again, consistent with the common law basis for recognizing qualified immunity.
See Firestone,
38 N.W. at 886-87 (holding that private person requested to assist known police officer in making arrest is not liable “if, in his acts, he confines himself to the order and direction of the sheriff’);
Edger,
54 A. at 989 (holding private defendant would not be liable “if he ... kept within [the deputy sheriffs] orders and directions.”). Nor should the law encourage such deviations by the promise of qualified immunity, for the risk of a constitutional violation is greatly enhanced when the assisting private person takes action without the authorization of a trained law enforcement professional. In such circumstances, the private defendant, again, may be properly held to act at his peril.
On the basis of these competing considerations and the standards for qualified immunity announced in
Harlow, Malley,
and
Anderson ,
it follows that in order
to
be entitled to qualified immunity from liability under § 1983 for false arrest, a private person enlisted by a law enforcement official to assist in making an arrest must show that: (1) he acted at the request of one whom he knew to be, and who in fact was, a law enforcement official; (2) the assistance requested by the law enforcement official and provided by the private citizen was not patently abusive; and (3) his actions did not materially deviate from
*271
those that the law enforcement official directed him to take.
iii. Application of the Qualified Immunity Standard to Airborne
In this case, there is no dispute that Airborne responded to a request for assistance from known law enforcement officials, and none of the parties has alleged that Airborne’s employees took any action that they were not directed to take by those officials. The dispositive question in deciding whether to grant Airborne qualified immunity is, therefore, whether, in light of the information Airborne possessed at the time, a reasonable private citizen in its position would have believed the conduct it undertook in assisting in the Mejias’ arrest was not patently abusive.
Although the grounds required to establish an objectively reasonable belief that a practice is not patently abusive are necessarily slimmer than those required to establish probable cause, the considerations discussed above,
supra
Discussion (3)(A)(l)(a), are sufficiently strong to undermine any objectively reasonable belief that Airborne could have had that conduct in question here did not fall into the patently-abusive category.
Again, viewing the evidence in the light most favorable to plaintiffs, the jury could find that there was never an initial call to Airborne from “Luis,” and that Airborne knew that the “Luis” it spoke to on November 29th and 30th claimed the package solely on the strength of misrepresentations that it was a toy or game of some sort from Venezuela. A reasonable layperson would have to recognize that it was a patently abusive tactic on the part of the police to induce someone to pick up a package through a representation that it was from Venezuela and then to arrest that person on the pretense that they were the intended recipients of a package of contraband from Columbia. No reasonable layperson could view what was done here as anything other than a set-up or believe that Mr. Mejia thought he was coming to pick up drugs. This is not a case where a layperson is forced to make subtle legal distinctions about the precise boundaries of probable cause but rather is an instance where ordinary common sense dictates only one conclusion: viz., that the practice in question, assuming Airborne participated in it knowingly, which we must for these purposes, was patently abusive.
Therefore, plaintiffs’ version of the facts would warrant the conclusion that Airborne possessed information that made it objectively unreasonable for a private actor in its position to believe that the Meji-as’ arrest was not patently abusive, and Airborne is consequently not entitled to qualified immunity on the Mejias’ § 1983 false arrest claims. See
Green v. Montgomery,
219 F.3d 52, 59 (2d Cir.2000) (holding that where defendant claiming qualified immunity relies on facts that are in dispute, qualified immunity cannot be granted).
36
b. Qualified immunity from liability for malicious prosecution is not available to private actors in Airborne’s position or to the other defendants in the circumstance of this case.
Airborne, as well as the other defendants, appears to assume that in this case qualified immunity is equally available (if it is available at all) with respect to both the false arrest claims and the malicious prosecution claims, and that the same
*272
standards for entitlement apply. The assumption is mistaken. Plaintiffs’ false arrest claims turn on what defendants allegedly did
before
the arrest, whereas their malicious prosecution claims depend crucially on what defendants allegedly did
after
the arrest. Consequently, different historical and policy considerations come to bear on the determination of whether qualified immunity is available with respect to plaintiffs’ malicious prosecution claims.
To begin, it must be noted what plaintiffs’ malicious prosecution claim is not. Plaintiffs’ claim is not that Airborne or the other defendants simply went to prosecutors and related the facts as they honestly believed them to be and then let the prosecutor make his or her determination whether to commence proceedings.
37
Instead, the gist of plaintiffs’ malicious prosecution claims is that, after having deceived the plaintiffs into claiming the package, defendants thereafter misrepresented to, and concealed from, prosecutors the true circumstances leading to the arrest, and, thus, induced the prosecutor to commence proceedings based on manufactured evidence. Defendants further induced the prosecutor to continue the proceedings by giving testimony before the grand jury that was false and/or contained material omissions. Qualified immunity is not available to either Airborne, or the law enforcement defendants, in such circumstances.
While the law does recognize an immunity'—indeed, an absolute immunity—for some individuals who give false information to the prosecutor and who testify falsely before a grand jury, the availability of immunity turns on whether the individual was a complaining witness.
See White v. Frank,
855 F.2d 956, 959-61 (2d Cir.1988). Complaining witnesses'—be they private citizens or police officers— who testify falsely before a grand jury, or other non-adversarial pre-trial proceedings, are not entitled to absolute immunity.
See Malley,
475 U.S. at 340 , 106 S.Ct. at 1096 (warrant application);
White,
855 F.2d at 959 (grand jury);
id.
at 962 n. 6 (noting that immunity analysis
for
false testimony by complaining witness does not turn on whether defendant is police officer or private citizen (citing
Briscoe v. LaHue,
460 U.S. 325, 335-36 , 103 S.Ct. 1108, 1116 , 75 L.Ed.2d 96 (1983))). Whether a witness is a complaining witness is a fact-based question that coincides with the determination of whether the witness played such a role in initiating the proceedings that it can be said the witness commenced or continued proceedings against the plaintiff within the meaning of the law of malicious prosecution.
See id.
at 959, 962.
A witness, such as Detective Skinner, who files a charging affidavit is clearly a complaining witness, but other witnesses may be considered complaining witness as well if the information they falsely gave the prosecutor induced the prosecutor to act.
See Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123 , 130 (2d Cir. 1997). In addition, persons who conspire with a complaining witness to manufacture evidence that is likely to influence the prosecutor’s decision to commence proceedings and the jury’s verdict are jointly liable for malicious prosecution.
See id.
at 131. Because there is sufficient evidence for a reasonable juror to find that Airborne knowingly participated in the manufacture of evidence on which the prosecutor relied—viz., defendants’ account that the Mejias readily and willingly claimed the package without any pretense having been made as to its origin, Airborne, whose employees Bezmen and Gennarelli met with the prosecutor and testified be
*273
fore the grand jury, must be considered a complaining witness, or, at the very least, an actor that conspired with a complaining witness.
The question here, then, is whether a complaining witness who knowingly provides false information on which a prosecutor relies, or a defendant who conspires with one who does, is, nonetheless, entitled to at least qualified immunity. In view of the general purpose of the qualified immunity doctrine, the question almost answers itself. As the Supreme Court noted in
Malley ,
qualified immunity does not protect those who “knowingly violate the law,”
Malley,
475 U.S. at 341 , 106 S.Ct. at 1096 , and “[t]he right to be free from ... prosecution in the absence of probable cause is a long established constitutional right,”
Ricciuti,
124 F.3d at 128. Therefore, one who gives false information to a prosecutor that he knows will induce a prosecutor to commence or continue proceedings against a plaintiff, knowingly violates the law and is not entitled to qualified immunity for his actions.
Cf id.
at 131 (action against police officers who “create[d] false information likely to influence a jury’s decision and forward[ed] that information to prosecutors”). Moreover, extension of qualified immunity in such circumstances would thwart the basic purpose of § 1983 itself— to protect persons from abuse of official authority,
see Wyatt,
504 U.S. at 161 , 112 S.Ct. at 1830 , and, thus, must be rejected in any event.
See id.
at 164 , 112 S.Ct. at 1831 (holding that “irrespective of the common law support, we will not recognize an immunity available at common law if § 1983’s history or purpose counsel against applying it in § 1983 actions”).
38
An examination of the specific inquiries mandated by
Richardson
confirm this result.
See
521 U.S. at 404 , 117 S.Ct. at 2104 (holding that court must “look both to history and to the purposes that underlie government employee immunity”'to determine whether qualified immunity is available in given context). With respect to common law tradition, in
White
the Second Circuit conducted an extensive examination of whether the common law provided a defense or immunity from malicious prosecution to complaining witness before the grand jury or other individuals who induce a prosecutor to act.
See
855 F.2d at 959-61 . The Second Circuit found that the common law did not provide a defense or immunity to such individuals, regardless of whether they were private persons or police officers.
See id.
at 959-61 , 962 n. 6. Thus, as in
Tower ,
the proposed extension of qualified- immunity to defendants who manufacture evidence may be rejected as
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completely lacking in any common law basis.
See
467 U.S. at 920-22 , 104 S.Ct. at 2825 .
As an independent ground for rejecting the proposed extension of qualified immunity, none of the specific policy concerns cited by
Richardson
— preserving the government’s ability to perform its traditional functions (here, prosecuting wrongdoers); encouraging qualified candidates to enter public service; and discouraging unwarranted timidity on the part of public officials in the performance of their duties by removing the threat of liability for reasonable errors of judgment — support extending qualified immunity in the circumstances alleged in this case.
See
521 U.S. at 407-08 , 117 S.Ct. at 2105-06 .
First, imposing liability for malicious prosecution without the promise
of
qualified immunity for individuals — be they private actors or law enforcement officers— who induce prosecutors to commence proceedings against someone against whom they have manufactured evidence will not hamper the government’s ability to prosecute wrongdoers, since by hypothesis the accused has been framed. Moreover, with respect to private actors who would seek qualified immunity in such circumstances, the necessity for rendering prompt and largely unquestioning assistance to law enforcement when asked to do so and the statutory duty to provide such assistance — considerations that figured so prominently in the preceding discussion of whether qualified immunity is available to private actors who answer law enforcement’s call for assistance — plays no role at the prosecutorial stage of law enforcement. By that time, a private actor who has been asked to participate in the manufacture of evidence has had an opportunity to reflect on whether probable cause or objectively reasonable grounds for probable cause existed, and the private actor cannot invoke any duty, statutory or otherwise, that would justify continuing to assist law enforcement officers who, with its help, have manufactured evidence against the accused.
Second, denying qualified immunity to those who would manufacture evidence against an accused and induce a prosecutor to act on it will not discourage qualified candidates from entering public service, since by definition such individuals are not fit for public service.
Third, timidity in engaging in the manufacture of evidence and submission of that evidence to the prosecutor is fully warranted. In sum, none of purposes of the qualified immunity doctrine cited by
Richardson
are served in such circumstances.
The evidence the plaintiffs have produced permits a reasonable juror to conclude that Airborne and the other defendants knowingly manufactured evidence without any indication of valid law enforcement considerations to necessitate or excuse such actions. Viewing the evidence in the light most favorable to plaintiffs, (1) it is questionable whether Airborne ever received a call from “Luis”; (2) Airborne, it must be assumed, knew of the alteration of the package to show a delivery from Venezuela, not Columbia, its true point of origin, and has offered no explanation for this deception;© the Mejias did not rip open any of the portfolios in the package; and (4) Mrs. Mejia voluntarily alerted the police defendants to the presence of what must be assumed were similar but unopened portfolios in her and her husband’s office. Therefore, plaintiffs have demonstrated that there is a genuine issue of material fact as to whether Airborne and the other defendants knowingly participated in the manufacture of evidence against them and then induced the prosecutor to act on that evidence, and if a jury finds these to be the facts, qualified immunity from malicious prosecution would not be available to either Airborne or the other defendants in this case.
39
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3. Summary
Plaintiffs have demonstrated that genuine issues of material fact exist (1) as to whether Airborne had probable cause either at the time of their arrest or at the time criminal proceedings were commenced, (2) as to whether it was objectively reasonable for Airborne to believe their conduct with respect to the Mejias’ arrest was not patently abusive, and (3) that preclude even the availability of qualified immunity on their malicious prosecution claims to private actors in Airborne’s position. Accordingly, Airborne’s motion for summary judgment on plaintiffs’ § 1983 false arrest and malicious prosecution claims is denied.
4. Respondeat Superior
Throughout the foregoing discussion, it was assumed that Airborne can be held liable under § 1983 for the actions of its employees in this case. Although Airborne did not raise the issue in its briefs, this assumption does not appear to be correct. As previously discussed, under
Monell,
a municipality cannot be held vicariously liable under § 1983 for the actions of its employees.
See
436 U.S. at 694 , 98 S.Ct. at 2037 . Instead, a municipality can only be held liable if the constitutional violation of which a plaintiff complains resulted from an official custom, policy, practice, or usage of the municipality.
See id.
at 690-91 , 98 S.Ct. at 2035-36 . The Second Circuit, along with every other court of appeals that has considered the issue, has held that
Monell
applies with equal force to private corporations sued under § 1983.
See Rojas v. Alexander’s Dep’t Store, Inc.,
924 F.2d 406, 408-09 (2d Cir.1990);
Powell v. Shopco Laurel Co.,
678 F.2d 504, 506 (4th Cir.1982);
Iskander v. Village of Forest Park,
690 F.2d 126, 128-29 (7th Cir.1982);
Sanders v. Sears, Roebuck & Co.,
984 F.2d 972, 975-76 (8th Cir.1993);
Taylor v. List,
880 F.2d 1040, 1045 (9th Cir.1989);
Harvey v. Harvey,
949 F.2d 1127, 1129-30 (11th Cir.1992);
see also Draeger v. Grand Cent., Inc.,
504 F.2d 142, 145-46 (10th Cir.1974) (predating
Monell,
but holding that private employers are not liable under § 1983 for constitutional torts of their employees);
Smith v. Brookshire Bros.,
519 F.2d 93, 94 (1975) (per curiam) (same).
Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under
Monell
for a single act of an employee with final policymaking authority in the particular area involved,
see Austin v. Paramount Parks, Inc.,
195 F.3d 715, 728-29 (4th Cir. 1999) (citing
Pembaur v. City of Cincinnati,
475 U.S. 469, 480 , 106 S.Ct. 1292, 1298 , 89 L.Ed.2d 452 (1986) (plurality opinion)), the two Airborne employees involved in the Mejias’ arrest and prosecution do not appear to have been final corporate policymakers in the area of cooperation with law enforcement.
40
Bezmen was Airborne’s
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regional security manager for the greater New York area only,
41
while Gennarelli was the “cartage supervisor” for the particular Airborne office through which the controlled pickup was conducted.
42
Other courts have held that corporate employees in similar positions are not final policymakers for § 1983 purposes.
See, e.g., Austin v. Paramount Parks,
195 F.3d 715, 729-30 (4th Cir.1999) (holding that theme park’s manager of loss prevention was not a final policymaker);
Smith v. United States,
896 F.Supp. 1183, 1186 (M.D.Fla.1995) (holding that facility manager of particular halfway house run by private corporation was not final policymaker);
Miller v. Correctional Med. Sys., Inc.,
802 F.Supp. 1126, 1132 (D.Del.1992) (holding that state medical director of prison medical services corporation was not final policymaker).
See generally Jeffes v. Barnes,
208 F.3d 49, 57-58 (2d Cir.2000) (discussing standard for determining whether employee is final policymaker and noting that authority to exercise discretion in performance of duties is not, by itself, sufficient). Notably, a plaintiff has the burden of proof on the issue of whether an employee is a final policymaker, and “it is incumbent on the plaintiff to establish that element as a matter of law.”
Jeffes,
208 F.3d at 57-58 . Airborne would, therefore, not appear to have any liability under § 1983 for Bezmen or Gennarelli’s actions.
43
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Ordinarily, a district court should not raise sua sponte a nonjurisdietional defense not raised by the parties, unless the defense implicates values that transcend the concerns of the parties to an action.
See Acosta v. Artuz,
221 F.3d 117, 122 (2d Cir.2000).
44
However, “the question of whether a given official is the [corporation's final policymaking official in a given area is a matter of law
to be decided by the court.” Jeffes,
208 F.3d at 57 (emphasis added). Therefore, this court is not at liberty to respond to Airborne’s omission simply by deferring the question to the jury.
Under these circumstances, this court is left with two options: (1) allowing plaintiffs’ § 1983 claims against Airborne to proceed to trial, and determining the issue of Gennarelli and Bezmen’s final policymaker status at the close of plaintiffs’ case, or (2) granting Airborne leave to renew its motion for summary judgment on the issue. Because the question of final policymaker status presents a discrete issue that is not otherwise intertwined with the resolution of the principal fact issues in this case and is one on which the court would benefit from written briefs by the parties, the latter approach will be taken. Accordingly, Airborne is given leave to renew its motion for summary judgment with respect to plaintiffs’ § 1983 false arrest and malicious prosecution claims on this ground.
B. Plaintiffs’ § 1983 excessive force claim against Airborne must be dismissed.
Plaintiffs have not alleged that any Airborne employee was even present during the actual arrest, much less that an Airborne employee participated in the arrest and used excessive force against either plaintiff. Instead, plaintiffs predicate Airborne’s liability for use of excessive force on its alleged role as an “active aider and abettor and co-conspirator” with the police defendants and S/A Tipton. (Comply 25.) Plaintiffs, however, have presented absolutely no evidence that any Airborne employee even reached a tacit understanding with the other defendants as to the amount of force to be used in making the Mejias’ arrest. Accordingly, Airborne’s motion for summary judgment on plaintiffs’ § 1983 excessive force claims is granted.
C. Plaintiffs’ IIED claim against Airborne must be dismissed.
In their complaint, plaintiffs rely on the same allegations underlying their false arrest and malicious prosecution
*278
claims to support their claim that Airborne intentionally inflicted emotional distress on them, (Compilé 24, 26), and their opposition brief on this motion does not otherwise amplify or clarify the basis of their IIED claim against it,
(see
Pis.’ Mem. Opp’n at 41-43). Evidence of lack of probable cause that would support a claim for false arrest or malicious prosecution, however, is not sufficient to support an IIED claim, unless there is also evidence that the arrest or prosecution was accompanied by “extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society.”
Murphy v. County of Nassau,
203 A.D.2d 339, 341 , 609 N.Y.S.2d 940, 942 (2d Dep’t 1994) (denying summary judgment on false arrest and malicious prosecution claims, but granting summary judgment on IIED claim). Although plaintiffs have alleged conduct on Sergeant McNicholas’s part that a jury could find extreme and outrageous,
see infra
Discussion (5)(D)(1), plaintiffs have not alleged, much less produced evidence, that any Airborne employee used any ethnic slur or made any threats against the Mejias during the course of the controlled pickup or arrest. Indeed, it is undisputed that no Airborne employee was even present at the scene of the actual arrest. Accordingly, Airborne’s motion for summary judgment on plaintiffs’ IIED claim is granted.
D. Plaintiffs’ state law claims for malicious prosecution, though meritorious, appear time-barred.
Because a reasonable juror could find that as a result of Airborne’s knowing participation in the manufacturing of the incriminating evidence, it lacked probable cause for the Mejias’ prosecution,
see supra
Discussion (3)(A)(l)(b), (3)(A)(2)(b), Airborne’s motion for summary judgment on plaintiffs’ state law malicious prosecution claim is denied.
Notably, however, under New York law, a claim for malicious prosecution must be brought within one year after the cause of action accrues.
See
N.Y. C.P.L.R. § 215 (3);
Bardi v. Warren County Sheriffs Dep’t,
260 A.D.2d 763, 764 , 687 N.Y.S.2d 775, 776 (3d Dep’t 1999). A cause of action for malicious prosecution accrues on the date that the criminal proceeding is terminated in favor of the plaintiff.
See Scomello,
232 A.D.2d at 625 , 648 N.Y.S.2d at 689 . Here, Mr. Mejia was acquitted on March 20, 1995, and the grand jury had declined to indict Mrs. Mejia at an earlier date not specified in any of the briefs.
(See
Compl. ¶¶ 18-19.) Thus, plaintiffs’ state law causes of action for malicious prosecution accrued on March 20, 1995, at the latest. Since plaintiffs’ complaint was not filed until June 17, 1996—more than one year later—plaintiffs’ state law malicious prosecution claims against Airborne appear time-barred.
Strangely, Airborne did not raise this issue in its motion papers, despite the fact that it included the running of the statute of limitations among the defenses set forth in its answer. Instead, Airborne simply argues that plaintiffs’ state law claims should be dismissed for lack of supplemental jurisdiction in the event that its motion for summary judgment on plaintiffs’ federal claims is granted,
(see
Airborne’s Mem. Supp. at 16)—an argument that is not well-taken since this court would retain diversity jurisdiction over plaintiffs’ state law claims against it,
see supra
note 42. Nonetheless, it is welles-tablished that the running of the statute of limitations is a nonjurisdictional defense that a district court may raise sua sponte, where the grounds for the defense appear on the face of the complaint and the defendant has pled untimeliness as a defense in its answer.
See Leonhard v. United States,
633 F.2d 599 , 609 n. 11 (2d Cir. 1980),
cited with approval, Snider v. Melindez,
199 F.3d 108, 112 (2d Cir.1999). Here, as in
Leonhard ,
that is the case. Accordingly, Airborne is given leave to renew its motion for summary judgment
*279
on plaintiffs’ state law claims on the ground that they are untimely.
(4)
S/A Tipton
Plaintiffs style their action against S/A Tipton as one arising under
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), and S/A Tipton has not contested the applicability of
Bivens
to this case.
45
In
Bivens ,
the Supreme Court held that a cause of action arises directly from the Fourth Amendment where persons acting “under color of federal law” violate a person’s right to be free from unreasonable searches and seizures.
See id.
at 392 , 91 S.Ct. at 2002 . Since the remedial purposes of
Bivens
and § 1983 are the essentially the same, courts have generally looked to the principles established in the case law construing § 1983 when deciding cases brought under
Bivens. See, e.g., Butz v. Economou,
438 U.S. 478, 498-501 , 98 S.Ct. 2894, 2906-08 , 57 L.Ed.2d 895 (1978);
Tavarez v. Reno,
54 F.3d 109, 110 (2d Cir.1995) (per curiam). The general principles discussed above in relation to § 1983 are, therefore, equally applicable to plaintiffs’ constitutional claims against S/A Tipton.
A. Plaintiffs’
Bivens
false arrest and malicious prosecution claims present issues for the jury.
S/A Tipton moves for summary judgment on plaintiffs’
Bivens
false arrest claims on the grounds of probable cause and qualified immunity. Each set of claims is discussed in turn below.
1. False arrest
a. Mr. Mejia
For the reasons set forth above,
supra
Discussion (3)(A)(l)(a), (3)(A)(2)(a)(iii), whether S/A Tipton had probable cause at the time of Mr. Mejias’s arrest or is otherwise entitled to qualified immunity on Mr. Mejia’s false arrest claims reduces to two questions of fact: (1) Did she participate in the Venezuelan ruse?, and (2) Did she know that the package was from Colombia? Plaintiffs have demonstrated genuine issues of material fact on both questions.
First, it is simply inconceivable that Airborne’s Gennarelli or Bezmen would have developed the idea to deceive Mr. Mejia about the package’s origin on his own initiative. Thus, a reasonable juror could easily infer that one of the law enforcement officers involved in the case directed them to do so. S/A Tipton is the most obvious suspect, for she had numerous conversations with Bezmen and Gennarelli and arranged for the pickup to be made at Gennarelli’s station on November 30th. At the very least, a reasonable juror could infer she was aware that “Luis” was being told the package was from Venezuela since: (1) she admits Gennarelli reported the content of the first phone call to “Luis” to her; and (2) she was at the Airborne office throughout the time that the portfolios were being repackaged and, thus, presumably at the time the Caracas airbill was created. Second, a reasonable juror could easily infer that S/A Tipton knew the package was in fact from Colombia, given her involvement in the case from its inception. Thus, a reasonable juror could find that she participated in the deception and did so knowingly. Accordingly, S/A Tip-ton’s motion for summary judgment on
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Mr. Mejias’
Bivens
false arrest claims is ■ denied.
b. Mrs. Mejia
S/A Tipton argues that regardless of whether she can be held liable for Mr. Mejia’s arrest, she cannot be held liable under
Bivens
for Mrs. Mejia’s arrest because she did not directly and personally participate in Mrs. Mejia’s arrest.
(See
S/A Tipton’s Mem. Supp. at 19-20.) Although it is true that S/A Tipton did not personally effect Mrs. Mejia’s arrest, there is another important basis for liability under § 1983 and, hence,
Bivens .
Pertinently:
A police officer “has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.”
O’Neill v. Krzeminski,
839 F.2d 9 , 11 (2d Cir.1988). Failure to intercede to prevent an unlawful arrest can be grounds for § 1983 liability.
Id.
To recover on that ground, of course, a plaintiff must still overcome the hurdle of qualified immunity. A police officer cannot be held liable in damages for failure to intercede unless such failure permitted fellow officers to violate a suspect’s “clearly established statutory or con

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2327581. Public record. Not legal advice.