Garrett Collick v. William Paterson University

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 21-2281

__________

GARRETT COLLICK; NOAH WILLIAMS; NANCY WILLIAMS

v.

WILLIAM PATERSON UNIVERSITY; KATHLEEN M. WALDRON;

ROBERT FULLEMAN; ELLEN DESIMONE;

WILLIAM PATERSON UNIVERSITY POLICE DEPARTMENT;

JOHN DOES 1–20 (names fictitious as presently unknown),

employees, representatives, and/or agents of defendant

WILLIAM PATERSON UNIVERSITY POLICE DEPARTMENT;

JANE DOES 1–20 (names fictitious as presently unknown),

employees, representatives, and/or agents of defendant

WILLIAM PATERSON UNIVERSITY POLICE DEPARTMENT;

JOHN SMITH 1–5 (names fictitious as presently unknown),

employees, representatives, agents, and/or spokespersons

of defendant WILLIAM PATERSON UNIVERSITY;

JANE SMITH 1–5 (names fictitious as presently unknown),

employees, representatives, agents, and/or spokespersons of

defendant WILLIAM PATERSON UNIVERSITY

Garrett Collick; Noah Williams,

Appellants

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2:16-cv-00471)

District Judge: Hon. Kevin McNulty

__________

Submitted Under Third Circuit L.A.R. 34.1(a)

on March 31, 2022

Before: RESTREPO, ROTH, and FUENTES, Circuit Judges

(Opinion filed: October 24, 2022)

_________

OPINION*

__________

FUENTES, Circuit Judge.

Garrett Collick and Noah Williams (“Plaintiffs-Appellants”), two students at

William Paterson University (“the University”), were arrested by the William Paterson

University Police (“University Police”) in November 2014 for the aggravated sexual

assault of M.M., a fellow student at the University. After a grand jury declined to indict

them, Plaintiffs-Appellants filed a lawsuit against the University; the University Police;

Robert Fulleman, the University Police Director of Public Safety; and University Police

Detective Sergeant Ellen DeSimone (together, “Defendants-Appellees”), asserting both

tort and constitutional claims. Defendants-Appellees filed a motion to dismiss Plaintiffs-

Appellants’ claims, which the District Court granted in part and denied in part.

Defendants-Appellees appealed, and we affirmed in part and reversed and vacated in part.

At the conclusion of discovery, Defendants-Appellees filed a motion for summary

judgment on the remaining claims, which the District Court granted. Plaintiffs-

Appellants timely appealed. Because we conclude that Sergeant DeSimone had probable

cause to arrest Plaintiffs-Appellants, we will affirm.

*

This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not

constitute binding precedent.

2

I.

We assume the parties’ familiarity with the facts and describe only those necessary

to explain our decision. On November 25, 2014, the University Police responded to a

call from the University health center about a female student, M.M., who claimed that she

had been the victim of a sexual assault. The responding officer was Sergeant DeSimone.

M.M. told Sergeant DeSimone that she had been sexually assaulted by five individuals

after midnight earlier that day. She specifically named Plaintiffs-Appellants as two of the

individuals. Sergeant DeSimone then took M.M. to the hospital for a sexual assault

forensic examination.

At the hospital, M.M. told the nurse conducting her forensic interview,1 Joanne

Hatt, about what happened earlier that day. M.M. reported the following facts: She and

Collick had plans to see each other the previous day, November 24, 2014, but Collick did

not show up.2 M.M. went to look for him and eventually found him in Termaine Scott’s

dorm room with four other individuals: Scott, Williams, Darius Singleton, and Williams’s

cousin (identified as “Walt”). M.M. tried to convince Collick to go to her room, but he

refused and told her that “if she wanted to have sex with him[,] she would have to have

sex with all of them.”3 M.M. then tried to leave but was prevented from doing so by

someone standing at the door. M.M. told Sergeant DeSimone and Nurse Hatt that the

men in the room began taunting her for sex. Collick then forced M.M. to perform oral

1

Sergeant DeSimone was present for the forensic interview.

2

Earlier, M.M. had disclosed to Sergeant DeSimone that she previously had “consensual

sexual activity” with Collick.

3

Joint Appendix (“JA”) 214.

3

sex on him. Shortly thereafter, an unknown individual (later identified as Jahmel

Latimer) entered the room and forced M.M. to perform oral sex on him while Collick

groped her. When M.M. tried to get up, Collick again forced his penis in M.M.’s mouth.

Latimer then pulled down M.M.’s pants and began having vaginal sex with her, but

pulled out when M.M. told him the condom had broken inside of her. After, M.M. was

forced to perform oral sex on Singleton, who also digitally penetrated M.M. and

commented that “she is so dry.”4 Williams then attempted to force his penis into M.M.’s

mouth, while Collick attempted to have vaginal sex with her. However, Collick could

not maintain an erection, and M.M. remarked, “Oh, I see you have stage fright.”5

M.M. eventually left Scott’s room and was walked back to her dorm room by

Williams, Scott, and Walt. Once there, they demanded that Williams be allowed to

“finish” and that Walt “do something.”6 They refused to leave, so M.M. “gave up and

just laid there” while Williams and Walt vaginally penetrated her.7 Williams and Walt

left M.M.’s room after they each had vaginal sex with her. Scott asked if he would get a

turn, to which she responded that she had been “forced to do something [she] didn’t want

to do” and asked him to leave “because [she was] about to cry.”8

While Nurse Hatt conducted her physical examination of M.M., Sergeant

DeSimone showed M.M. photographs of Collick, Williams, Scott, and Singleton. M.M.

4

Id. at 216.

5

Id. at 722.

6

Id. at 216.

7

Id.

8

Id. at 217.

4

positively identified the men in the photographs, including Plaintiffs-Appellants. After

conducting the physical examination, Nurse Hatt told Sergeant DeSimone that M.M.’s

“throat was red and it appeared to have abnormalities” and that M.M. complained of pain

while swallowing.9 In her report, Nurse Hatt identified a “redden[ed] area and several

small pinpoint red area [sic]” on a diagram representing M.M.’s mouth.10

The following day, November 26, 2014, Sergeant DeSimone reviewed video

surveillance and identification card access data for the dormitories where the alleged

sexual assaults took place. These confirmed that Collick, Williams, Scott, Singleton, and

Walt were in Scott’s dormitory at the time of the alleged sexual assault, and that

Williams, Scott, and Walt went to M.M.’s dormitory later that night. That day, Sergeant

DeSimone also spoke with the University Police Director for Public Safety, Robert

Fulleman, about seeking arrest warrants. A couple of days later, on November 28, 2014,

Sergeant DeSimone conferred with the Senior Assistant Prosecutor for Passaic County in

charge of the Domestic Violence Unit, Gina Pfund, about potential charges. After

consulting with Fulleman and Pfund, Sergeant DeSimone contacted the Wayne

Municipal Court Clerk to request arrest warrants for Plaintiffs-Appellants, along with

9

Id.

10

Id. at 730. At her deposition, Nurse Hatt referred to these findings as “petechiae inside

of [M.M.’s] mouth.” Id. at 749. She defined “petechiae” as “little blood vessels that

rupture and cause red pinpoint marks” that can be caused by trauma such as

strangulation. Id. at 749–50. She testified that when she made this observation, she

believed the petechiae were an injury, and that “the oral sex as described by MM . . .

could have caused it.” Id. at 752. Although Nurse Hatt noted that she likely would not

have reported this to Sergeant DeSimone, Sergeant DeSimone testified at her deposition

that her understanding of M.M.’s throat having “abnormalities” was that “there was [sic]

injuries to her throat.” Id. at 497.

5

Latimer, Singleton, and Scott. These warrants were approved. Plaintiffs-Appellants

were arrested on November 29, 2014, and charged with aggravated sexual assault in the

first degree, among other charges.

On January 26, 2015, a Passaic grand jury declined to indict them. The Passaic

County Prosecutor’s Office (“PCPO”) subsequently issued a twelve-point memorandum

that criticized the University Police’s investigation, instituted a policy that the University

Police notify and consult the PCPO regarding all sexual assault investigations, and

prohibited the University Police from making charging decisions in sexual assault cases.

In December 2015, Plaintiffs-Appellants sued Defendants-Appellees in the

Superior Court of New Jersey asserting both tort and constitutional claims. Defendants-

Appellees subsequently removed the case to the United States District Court for the

District of New Jersey and filed a motion to dismiss. The District Court granted the

motion as to certain claims but declined to dismiss Plaintiffs-Appellants’ Fourth

Amendment-based § 1983 claims on qualified immunity grounds.11 Defendants

appealed, and we affirmed.12 After discovery concluded, Defendants-Appellees moved

11

In May 2019, certain claims were voluntarily dismissed.

12

Collick v. William Paterson Univ., 699 F. App’x 129 (3d Cir. 2017).

6

for summary judgment on the remaining claims.13 The District Court granted the motion

and dismissed Plaintiffs-Appellants’ remaining claims, concluding that probable cause to

arrest defeated these claims. This appeal followed.

II.

The District Court had jurisdiction over Plaintiffs-Appellants’ claims under

28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291. Our review of the

District Court’s grant of summary judgment is plenary.14 We will affirm the District

Court only if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”15 We must view facts in the light most favorable

to the non-moving party.16 The non-moving party “is entitled to every reasonable

13

The remaining claims included: (1) a § 1983 claim against Sergeant DeSimone and

Director Fulleman for deprivations of Plaintiffs-Appellants’ Fourth Amendment rights

(Count 2); (2) a § 1983 claim against the University and University Police for

governmental liability for violations of Plaintiffs-Appellants’ Fourth Amendment rights

(Count 5); (3) a claim under the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann.

§ 10:6-2, against Sergeant DeSimone and Director Fulleman for violations of Plaintiffs-

Appellants’ Fourth Amendment rights and corresponding rights under the New Jersey

Constitution (Count 6); (4) an NJCRA claim against the University and University Police

for governmental liability for violations of Plaintiffs-Appellants’ Fourth Amendment

rights and corresponding rights under the New Jersey Constitution (Count 7); (5) false

arrest and imprisonment under New Jersey law against Sergeant DeSimone and Director

Fulleman (Count 9); (6) malicious prosecution under New Jersey law against Defendants-

Appellees (Count 10); (7) negligent training and supervision under New Jersey law

against Director Fulleman, the University, and University Police (Count 15);

(8) intentional infliction of emotional distress under New Jersey law against all

defendants (Count 16); (9) negligence and gross negligence under New Jersey law

against all defendants (Counts 18 & 19); and (10) respondeat superior liability under New

Jersey law against the University and University Police for Sergeant DeSimone and

Director Fulleman’s torts (Count 20).

14

Reedy v. Evanson, 615 F.3d 197, 210 (3d. Cir 2010).

15

Fed. R. Civ. P. 56(a).

16

Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016).

7

inference that can be drawn from the record.”17 “We do not weigh the evidence; rather,

we determine ‘whether the evidence of record is such that a reasonable jury could return

a verdict for the nonmoving party.’”18 Here, summary judgment is only appropriate if we

determine that “a reasonable jury could not find a lack of probable cause.”19

III.

A.

Because the claims at issue turn on whether there was probable cause to arrest

Plaintiffs-Appellants for aggravated sexual assault in the first degree, we focus our

analysis on a finding of probable cause.20 As the District Court recognized, the question

17

Id. (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000)).

18

Id. (quoting Reedy, 615 F.3d at 210).

19

Id. (quoting Montgomery v. DeSimone, 159 F.3d 120, 124 (3d Cir. 1998)).

20

Plaintiffs-Appellants do not discuss any specific claims in their briefs, instead focusing

on the probable cause analysis which is dispositive of all claims dismissed by the District

Court at summary judgment. See Dempsey, 834 F.3d at 479 (affirming district court’s

grant of summary judgment dismissing § 1983 claims because “no reasonable jury could

determine that the affidavit lacked probable cause”); Herman v. City of Millville, 66 F.

App’x 363, 365 n.3, 368 (3d Cir. 2003) (non-precedential) (affirming district court’s

grant of summary judgment dismissing claims for negligence, negligent

training/supervision, and intentional infliction of emotional distress under New Jersey

law because there was probable cause to arrest); Wildoner v. Borough of Ramsey, 744

A.2d 1146, 1154 (N.J. 2000) (“[P]robable cause is an absolute defense to Plaintiff’s false

arrest, false imprisonment, and malicious prosecution claims.”); Cruz v. Camden Cnty.

Police Dep’t, 245 A.3d 254, 261 (N.J. Super. Ct. App. Div. 2021) (“‘[P]robable cause is

an absolute defense’ to NJCRA claims.” (citation omitted)). Because a finding of

probable cause to arrest precludes Sergeant DeSimone and Director Fuller from being

held liable for any of the tort claims asserted against them, the University and University

Police cannot be held liable under a theory of respondeat superior. See Smith v. Spina,

477 F.2d 1140, 1147 (3d Cir. 1973) (stating that under a respondeat superior theory,

“liability of . . . servant was a necessary prerequisite to the liability of the master”).

Similarly, Plaintiffs-Appellants’ failure to show a constitutional violation by the police

defeats the derivative claims brought in Counts 5, 7, and 15. See Vargas v. City of

Philadelphia, 783 F.3d 962, 974–75 (3d Cir. 2014) (§ 1983); Szemple v. Corr. Med.

8

is “whether, at the time, police had evidence amounting to probable cause,” not “whether

Collick and Williams were actually guilty of sexual assault, whether Sergeant

DeSimone’s investigation can be criticized, or whether all the evidence we now possess

would have supported such charges.”21 Probable cause “is not a high bar.”22

A warrantless arrest is subject to a totality-of-the-circumstances analysis of

probable cause.23 “[P]robable cause to arrest exists when the facts and circumstances

within the arresting officer’s knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is being committed by the person

to be arrested.”24 In short, there must be “a ‘fair probability’ that the person committed

the crime at issue.”25 An officer must consider plainly exculpatory evidence when

making a probable cause determination, “even if substantial inculpatory evidence

(standing by itself) suggests that probable cause exists.”26 However, “the probable cause

inquiry . . . does not require that officers correctly resolve conflicting evidence,” only that

Servs., Inc., 493 F. App’x 238, 241 (3d Cir. 2012) (non-precedential) (“The NJCRA is

interpreted as analogous to § 1983. . . To sustain a § 1983 claim, or a NJCRA claim, a

plaintiff must show that a defendant had in place a custom or policy which resulted in

constitutional deprivation.” (citations omitted)).

21

JA 15 (citing, inter alia, Dempsey, 834 F.3d at 477).

22

District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal quotation marks

and citation omitted).

23

The District Court recognized that “[t]he probable cause analysis differs depending on

whether the arrest occurred pursuant to a valid warrant” and ultimately “default[ed] to the

[warrantless arrest] totality-of the-circumstances test for probable cause” because no

“constitutionally adequate process for obtaining a warrant was followed.” JA 12.

Plaintiffs-Appellants do not challenge the District Court’s application of this test.

24

Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (citation omitted).

25

Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (citation omitted).

26

Id. at 790 (internal quotation marks and citation omitted).

9

“their belief was not unreasonable in light of the information the officer[] possessed at the

time.”27

“Whether any particular set of facts suggest[s] that arrest is justified by probable

cause requires an examination of the elements of the crime at issue.”28 The crime at issue

here is aggravated sexual assault in the first degree. A person is guilty of aggravated

sexual assault in the first degree if he (1) “commits an act of sexual penetration with

another person”; (2) “is aided or abetted by one or more other persons”; and (3) “commits

the act using coercion or without the victim’s affirmative and freely-given permission.”29

Where “the State does not allege violence or force extrinsic to the act of penetration,” the

key question is “whether the defendant’s act of penetration was undertaken in

circumstances that led the defendant reasonably to believe that the alleged victim had

freely given affirmative permission to the specific act of sexual penetration.”30 “Such

permission can be indicated either through words or through actions that, when viewed in

the light of all the surrounding circumstances, would demonstrate to a reasonable person

affirmative and freely given authorization for the specific act of sexual penetration.”31

With those standards in mind, we now turn to the evidence available to Sergeant

DeSimone at the time of Plaintiffs-Appellants’ arrests to determine whether a reasonable

27

Wright v. City of Philadelphia, 409 F.3d 595, 603 (3d Cir. 2005) (citation omitted).

28

Id.at 601 (citations omitted).

29

N.J. Stat. Ann. § 2C:14-2. Plaintiffs-Appellants do not dispute that a sexual act

occurred or that multiple parties were involved. Rather, they contend that M.M.

“consented to and was a willing and active participant” in the sexual acts that occurred

that night. Appellants’ Opening Br. at 16.

30

State ex rel. M.T.S., 609 A.2d 1266, 1278 (N.J. 1992).

31

Id.

10

officer would have concluded that there was a fair probability that Plaintiffs-Appellants

had committed aggravated sexual assault in the first degree. First, M.M. told Sergeant

DeSimone, both at the University health center and later at the hospital, that she had been

sexually assaulted by five individuals. Specifically, M.M. told Sergeant DeSimone that

both Plaintiffs-Appellants tried to force their penis into her mouth, and that when she

returned to her dorm room with Williams, Scott, and Walt, they refused to leave, so she

“gave up and just laid there” while Williams and Walt vaginally penetrated her.32

Second, M.M. positively identified Plaintiffs-Appellants when Sergeant DeSimone

showed her their photographs. Third, Nurse Hatt told Sergeant DeSimone that M.M.’s

“throat was red and it appeared to have abnormalities,” and that M.M. complained of pain

while swallowing.33 Fourth, Sergeant DeSimone reviewed video surveillance and

identification card access data that placed Plaintiffs-Appellants in Scott’s and M.M.’s

dormitories at the time of the sexual assaults.34

32

JA 216.

33

Id. at 217.

34

Plaintiffs-Appellants argue that the District Court’s holding that “‘the security

information’s corroborative effect generally bolstered M.M.’s credibility and placed

Collick and Williams at the scene[]’ . . . ignores the undisputed fact that subject evidence

did not []and does not place plaintiffs and other accused individuals ‘at the scene’

because they all lived in the subject dormitory building that housed other students.”

Appellants’ Opening Br. at 18 (emphasis omitted) (quoting JA 21). They assert that

DeSimone admitted that there was “(a) no video footage of the alleged assault; (b) no

video footage from the dorm building’s hallway; and (c) there was nothing unusual with

plaintiffs and the other accused men walking in and out of the dorm building where they

all lived.” Id. (citations omitted). Plaintiffs-Appellants’ argument ignores the undisputed

fact that Plaintiffs-Appellants were in the subject dormitories at the time of the alleged

assaults (as opposed to elsewhere). Additionally, as the District Court noted, “probable

cause does not require officers to rule out [an] innocent explanation for suspicious facts

. . . . [T]he relevant inquiry is not whether the particular conduct is innocent or guilty, but

11

This is sufficient to support a finding of probable cause. Sergeant DeSimone

reasonably believed that M.M. was a reliable witness given her consistent recounting of

the assault35 and the generally corroborative evidence in both M.M.’s physical exam and

the dormitory video surveillance and identification card access data that Sergeant

DeSimone reviewed.36 M.M. also correctly identified Plaintiffs-Appellants from an array

of photographs.37 Based on these facts, we find that Sergeant DeSimone had probable

cause to arrest Plaintiffs-Appellants.

B.

In determining whether there was probable cause to arrest Plaintiffs-Appellants for

aggravated sexual assault in the first degree, we must also consider whether there is

“[i]ndependent exculpatory evidence or substantial evidence of [M.M.’s] own

the degree of suspicion that attaches to particular types of noncriminal acts.” JA 20

(quoting Wesby, 138 S. Ct. at 588). Thus, viewed in light of the totality of the

circumstances, the fact that Plaintiffs-Appellants were in the subject dormitories at the

time of the alleged assaults corroborates M.M.’s version of events and supports our

finding of probable cause.

35

Wilson, 212 F.3d at 790 (“[N]on-trivial discrepancies, or external evidence powerfully

undermining the reliability of the witness’s identification, might translate into a finding

that there was no probable cause.” (citing Lallemand v. Univ. of R.I., 9 F.3d 214, 217

(1st Cir. 1993))); cf. Andrews v. Scuilli, 853 F.3d 690, 695 (3d Cir. 2017) (finding a lack

of probable cause where victim-witness’s later identification of the accused’s car

contradicted her original report).

36

See Dempsey, 834 F.3d at 438–39 (holding that statements of victim-witness and

corroborative physical evidence support a finding of probable cause).

37

See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (“When a police officer has

received a reliable identification by a victim of his or her attacker, the police have

probable cause to arrest.” (citing Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir.

1991)), abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007).

12

unreliability that outweighs the probable cause otherwise established.”38 Plaintiffs-

Appellants contend that the District Court improperly disregarded several pieces of

exculpatory evidence going to the issue of consent: (1) M.M.’s prior sexual relationship

with Collick; (2) M.M.’s statement regarding Collick’s sexual performance during the

assault (“Oh, I see you have stage fright.”); (3) M.M.’s “suggestion to [Nurse Hatt] that

she not only walked willingly to her room with Williams, . . . Scott, and Walt, but that

she consented to sexual acts in her room with both Williams and Walt”;39 and (4) the

absence of injuries on M.M.’s body.

This alleged exculpatory evidence does not outweigh the probable cause

previously established. Despite Plaintiffs-Appellants’ arguments to the contrary, a

victim’s previous sexual relationship with an alleged perpetrator does not have “a

substantial bearing on the issue of consent.”40 As the District Court noted, a large portion

of sexual assaults occur between people with a previous sexual history.41 Just because

M.M. consented to sexual activity with Collick in the past does not necessarily mean that

she consented to the later sexual acts with Collick or with the other individuals.42 Next,

38

Dempsey, 834 F.3d at 479; see also Harvard v. Cesnalis, 973 F.3d 190, 200 (3d Cir.

2020) (“[Courts] must determine whether the plainly exculpatory evidence available to

the arresting officer ‘outweighs the probable cause otherwise established’ through

inculpatory evidence.” (quoting Dempsey, 834 F.3d at 478, 490)).

39

Appellants’ Opening Br. at 17.

40

Id. at 15.

41

See M.T.S., 609 A.2d at 1278 (“[M]ore than half of all rapes are committed by male

relatives, current or former husbands, boyfriends or lovers.”) (citing Diana Russell, The

Prevalence and Incidence of Forcible Rape and Attempted Rape of Females,

7 VICTIMOLOGY 81 (1982)).

42

See M.T.S., 609 A.2d at 1277 (“[A]ny act of sexual penetration engaged in by the

defendant without the affirmative and freely-given permission of the victim to the

13

even assuming that M.M. consented to Williams and Walt having sex with her in her

dorm room because she “gave up and just laid there,” this fact does not outweigh the

probable cause that the earlier assault occurred.43 That being said, considering what

occurred in her dorm room “in light of the surrounding circumstances” suggests that she

did not consent to the second encounter either.44 In light of these same circumstances,

M.M.’s comment regarding Collick’s sexual performance during the assault also does not

outweigh the probable cause established. Lastly, contrary to Plaintiffs-Appellants’

assertion, M.M. did have what Sergeant DeSimone believed to be injuries consistent with

her version of events. It was reasonable for Sergeant DeSimone to believe that the

“abnormalities” in M.M.’s throat were a result of rough oral sex, even if at the time Nurse

Hatt did not communicate that to her. Viewed in the light most favorable to Plaintiffs-

Appellants and using a totality-of-the-circumstances approach, we agree with the District

Court that the alleged exculpatory evidence does not undermine a finding of probable

cause.45

specific act of penetration constitutes the offense of sexual assault.” (emphasis added));

Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948–49 (1st Cir. 1987) (“A woman does

not waive her right to refuse to have sex on one occasion by consenting to sex on a prior

one, even under circumstances that some might consider unacceptable.”).

43

JA 216.

44

M.T.S., 609 A.2d at 1277; see also United States v. Gomez-Gomez, 547 F.3d 242, 248

(5th Cir. 2008) (en banc) (“A mere word or action indicating consent that is given under

duress, whether through physical or nonphysical means, and against the free will of the

victim, indicates nothing about whether the victim in fact wishes to engage in sex.”),

superseded by regulation on other grounds, as recognized in United States v. Diaz-

Corado, 648 F.3d 290, 294 (5th Cir. 2011).

45

See Dempsey, 834 F.3d at 468 (“While it is axiomatic that at the summary judgment

stage, we view the facts in the light most favorable to the nonmoving party, it does not

follow that we exclude from the probable cause analysis unfavorable facts an officer

14

C.

Plaintiffs-Appellants contend that the District Court failed to view all disputed

facts in their favor, ignored critical facts, and relied on incorrect facts. These contentions

are baseless. Plaintiffs-Appellants identify three sets of facts: (1) M.M.’s actions and

comments that purportedly have “a substantial bearing on the issue of consent”;

(2) deficiencies in the police investigation; and (3) certain statements by the District

Court.46

As discussed, M.M.’s actions and comments do not outweigh the probable cause

established by considering the totality of the circumstances.47 And neither do alleged

deficiencies in the police investigation, including investigative mistakes resulting from a

lack of thoroughness.48 Further, alleged deficiencies identified later, either by the PCPO

otherwise would have been able to consider. Instead, we view all such facts and assess

whether any reasonable jury could conclude that those facts, considered in their totality in

the light most favorable to the nonmoving party, did not demonstrate a ‘fair probability’

that a crime occurred. Only then would the existence of conflicting evidence rise to the

level of a ‘genuine dispute as to any material fact’ such that summary judgment would be

inappropriate. Thus, where the question is one of probable cause, the summary judgment

standard must tolerate conflicting evidence to the extent it is permitted by the probable

cause standard.”).

46

Appellants’ Opening Br. at 15.

47

Plaintiffs-Appellants also argue that the District Court “viewed each [exculpatory] fact

in isolation, rather than as a factor in the totality of the circumstances.” Appellants’

Opening Br. at 19–20 (quoting Wesby, 138 S. Ct. at 588). This is plainly false. The

District Court explicitly conducted the probable cause analysis using a totality-of-the-

circumstances approach. Indeed, it would appear that Plaintiffs-Appellants are the ones

who want us to view these exculpatory facts in isolation without considering the other

evidence available to Sergeant DeSimone. This we cannot do. See supra note 45.

48

See Orsatti, 71 F.3d at 484 (probable cause analysis “focuse[s] on the information the

officers had available to them, not on whether the information resulted from exemplary

police work”); Merkle, 211 F.3d at 790 n.8 (“[An officer is] not required to undertake an

exhaustive investigation in order to validate the probable cause that, in [her] mind,

15

or by Plaintiffs-Appellants’ policies-and-procedures expert, also do not undermine our

previous probable cause determination. As we observed in Dempsey: “[I]n reviewing

probable cause determinations made by law enforcement, the role of the courts is not that

of the much-maligned ‘Monday morning quarterback’ whose critiques are made possible

only by the benefits of hindsight.”49

Plaintiffs-Appellants further contend that the District Court relied on incorrect

facts. Specifically, they complain that (1) the District Court incorrectly stated that “[t]his

motion largely concerns the facts as reported to the police by M.M. the night of the

incident, and not those developed later”; (2) the District Court incorrectly stated that

Sergeant DeSimone showed M.M. photographs of plaintiffs and the other accused

students and “M.M. positively identified each picture by the subject’s first name”; and

(3) the District Court falsely stated that “plaintiffs are not here suing M.M. for making a

false complaint; they are suing the University Police for believing her[]” and that

plaintiffs’ position was “that the police were constitutionally required to disregard what

appeared to be a credible, detailed allegation of sexual assault.”50

The District Court’s reliance on purportedly incorrect facts does not change our

probable cause analysis. The fact that the initial investigation took place the afternoon

after the assault, and not “the night of the incident” is irrelevant. And although M.M.

already existed.” (citations omitted)); Wright, 409 F.3d at 603 (“The probable cause

inquiry . . . does not require that officers correctly resolve conflicting evidence or that

their determinations of credibility, were, in retrospect, accurate.”);

49

Dempsey, 834 F.3d at 469.

50

JA 5–6.

16

identified “Termaine Scott” as “Jermaine,” she positively identified the other three

individuals, including Plaintiffs-Appellants. The fact that she identified one individual as

“Jermaine” instead of “Termaine” does not undermine a finding of probable cause as to

Plaintiffs-Appellants.51 Finally, although Plaintiffs-Appellants disagree with the District

Court’s characterization of their position, even if it were incorrect, this also does not

change our analysis. However, we find that the District Court’s characterization of

Plaintiffs-Appellants’ position is accurate and not grounds to overturn the District Court’s

decision.

Lastly, Plaintiffs-Appellants contend that the District Court erroneously

established a per se rule that “a victim’s account of a sexual assault is sufficient as a

matter of law to establish probable cause.”52 Not so. In Dempsey, we noted that, in

conducting the probable cause analysis, “we . . . must bear in mind our Circuit’s rule that

the statements of a victim witness are typically sufficient to establish probable cause in

the absence of ‘[i]ndependent exculpatory evidence or substantial evidence of [a]

witness’s own unreliability’ that ‘outweigh[s]’ the probable cause that otherwise

exists.”53 The District Court reiterated this rule, but noted that “it [would] not stop there”

and went on to consider the “totality of the evidence,” including evidence that

corroborated M.M.’s account.54

51

Dempsey, 834 F.3d at 478 (“[S]ome ‘unreliability or exculpatory evidence’ will not

‘fatally undermine[]’ probable cause otherwise established.”)

52

Appellants’ Opening Br. at 26.

53

Dempsey, 834 F.3d 477–78 (citations omitted).

54

JA 17.

17

IV.

Because we conclude that Sergeant DeSimone had probable cause to arrest

Plaintiffs-Appellants, we will affirm the judgement of the District Court.55

55

Since we conclude that the Sergeant DeSimone had probable cause to arrest Plaintiffs-

Appellants, we need not address the issue of qualified immunity.

18