1 

14-4788-cv

Keith v. City of New York

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 7th day of March, two thousand sixteen. 

PRESENT: JOSÉ A. CABRANES, 

BARRINGTON D. PARKER, 

GERARD E. LYNCH, 

Circuit Judges. 

 

RICHARD KEITH, 

Plaintiff-Appellant, 

 

v. No. 14-4788-cv 

THE CITY OF NEW YORK, DETECTIVE JARRET BROWN,

LIEUTENANT FRANCIS MORRISSEY, DETECTIVE EVELYN 

GUITIERREZ, SHIELD #946, DETECTIVE SARAH MATHERS,

SHIELD #4327, DETECTIVE ELIZABETH MURRAY, SHIELD 

#29078, 

 Defendants-Appellees. 

 

FOR PLAINTIFF-APPELLANT: DAVID A. ZELMAN, Law Offices of David 

A. Zelman, Brooklyn, NY. 

FOR DEFENDANTS-APPELLEES: AMANDA SUE NICHOLS (Richard Dearing 

& Cecelia Chang, of counsel, on the brief) 

for Zachary W. Carter, Corporation 
2 

Counsel of the City of New York, New 

York, NY. 

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Katherine Polk Failla, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. 

Plaintiff-appellant Richard Keith (“Keith”) appeals from a December 1, 2014 opinion and 

order of the District Court granting summary judgment to defendants-appellees on his federal and 

state false-arrest and malicious-prosecution claims, as well as his federal denial-of-fair-trial claim. See 

Keith v. City of New York, No. 11-CV-3577 (KPF), 2014 WL 6750211 (S.D.N.Y. Dec. 1, 2014). We 

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the 

issues on appeal. 

“This Court reviews a grant of summary judgment by the district court de novo.” Lawrence + 

Mem’l Hosp. v. Burwell, —F.3d—, 2016 WL 423702, at *5 (2d Cir. Feb 4, 2016). Upon de novo review 

of the record and relevant law, we affirm. 

Turning first to the District Court’s dismissal of Keith’s false-arrest claims, “[a]n officer is 

entitled to qualified immunity against a suit for false arrest if he can establish that he had ‘arguable 

probable cause’ to arrest the plaintiff. Arguable probable cause exists if either (a) it was objectively 

reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable 

competence could disagree on whether the probable cause test was met.” Garcia v. Does, 779 F.3d 84, 

92 (2d Cir. 2014) (citation and some internal quotation marks omitted); see also Gonzalez v. City of 

Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (“The existence of probable cause to arrest constitutes 

justification and is a complete defense to an action for false arrest, whether that action is brought 

under state law or under § 1983.” (internal quotation marks omitted)). 

“Under both federal and New York law, an officer has probable cause to arrest when he or 

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

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

committed or is committing a crime.” Garcia, 779 F.3d at 92 (internal quotation marks omitted). 

“[A]bsent circumstances that raise doubts as to the victim’s veracity, a victim’s identification is 

typically sufficient to provide probable cause.” Stansbury v. Wertman, 721 F.3d 84, 90 (2d Cir. 2013) 

(internal quotation marks omitted); see also Fabrikant v. French, 691 F.3d 193, 216 (2d Cir. 2012) (“A 

law enforcement official has probable cause to arrest if he received his information from some 

person, normally the putative victim or eyewitness, unless the circumstances raise doubt as to the 

person’s veracity.”) (alterations and internal quotation marks omitted)). 
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Assuming for present purposes that Keith was in fact “arrested” before his participation in 

the lineup, we find that the arresting officers had at least “arguable probable cause” to effect that 

arrest, because the victim of the rape positively identified Keith after seeing him walking in her 

neighborhood.1

 Specifically, when asked during her deposition whether there “c[a]me a time . . . that 

[she] called the police to say that [she had seen] the person [who had] attacked [her],” the victim 

responded, “Yeah. . . . I tell them I saw the person. I saw the person. I saw somebody who looked 

like the person . . . .” RA-570. 

Keith nevertheless claims that arguable probable cause was lacking, because “the victim here 

never positively identified plaintiff; instead, she only stated that plaintiff looked like the attacker.” Pl.’s 

Br. 30 (emphasis in original). In other words, Keith argues that the victim’s use of the phrase 

“looked like”—instead of, say, the word “was”—suggests that her identification was equivocal. 

When read in context, however, the phrase “looked like” cannot bear the weight that Keith 

places on it. As the quotation from the victim’s deposition testimony reproduced above 

demonstrates, three other statements that she made while giving the same answer indicate that her 

identification was definitive. Additionally, the definitiveness of her identification is reinforced by the 

contemporary understanding of the police. See RA-667 (police record describing the victim’s 

statement “that she did see perp”); RA-480 (deposition of police officer recounting that he spoke 

with the victim by telephone the day after her identification of Keith, and that he asked her whether 

“she was sure that that was the person that had raped her,” to which she responded “that she was,” 

and that he also asked her whether “there was any possibility that perhaps she had recognized him 

just from the neighborhood, that he may have been familiar to her from the neighborhood and may, 

in fact, not be the rapist,” to which she responded, “[n]o, I . . . recognized him as the person that 

attacked me” (internal quotation marks omitted)). 

Under these circumstances, there is no reason to believe that the victim was using the phrase 

“looked like” to communicate uncertainty. As such, the instant case is readily distinguishable from 

the case that Keith cites in support of his argument, see Pl.’s Br. 29, in which the victim responded to 

being shown a photograph of the plaintiff by stating “that he would be her assailant if he had shorter 

hair and a thinner face,” Williams v. Moore, 602 N.Y.S.2d 199, 201 (2d Dep’t 1993) (emphasis 

supplied) (alterations and internal quotation marks omitted). We will not permit Keith to 

manufacture a genuine issue of material fact by “read[ing] [the victim’s] statement out of context.” 

 

1

 The District Court found that the police did not arrest Keith before his participation in the 

lineup. According to the District Court, “the stop was merely an investigatory detention,” and as a 

result, “the officers needed only reasonable suspicion,” not probable cause, “that [Keith] may have 

been involved in a crime.” Keith, 2014 WL 6750211, at *12 (internal quotation marks omitted). We 

need not address this finding, because we hold that the police had arguable probable cause to arrest 

Keith at that time, and are therefore entitled to qualified immunity. 
4 

Abuelyaman v. Ill. State Univ., 667 F.3d 800, 812 (7th Cir. 2011); see also Hill v. Walker, 737 F.3d 1209, 

1219 (8th Cir. 2013) (suggesting that a party cannot create a genuine issue of material fact by reading 

a statement out of context). 

What is more, we are unaware of any pertinent case in which a court has suggested that, in 

order for a witness’s identification of a perpetrator to provide probable cause, it must be made with 

complete certainty. Indeed, courts have explicitly held that it need not be. See People v. Pelzer, 982 

N.Y.S.2d 316 (1st Dep’t 2014) (“The victim’s identification of defendant from a photo array need 

not be made with complete certainty to give rise to probable cause.”); People v. Rhodes, 488 N.Y.S.2d 

821, 822 (2d Dep’t 1985) (“Although the identification was not made with complete certainty, it was 

sufficient to establish probable cause to arrest defendant for the crimes alleged.”); cf. Norwood v. 

Mason, 524 F. App’x 762, 765 (2d Cir. 2013) (non-precedential summary order) (“New York courts 

routinely hold that a victim’s photo identification of a person provides the police with probable 

cause to arrest that person, even where the identification may not be 100% reliable.”).

In short, at an absolute minimum, an “officer[ ] of reasonable competence” could have 

concluded that “the probable cause test [had been] met” on the basis of the victim’s identification of 

Keith, which is all that is necessary for qualified immunity to attach. Garcia, 779 F.3d at 92 (internal 

quotation marks omitted). 

Keith argues in the alternative that “there were sufficient doubts about the victim’s veracity 

and/or credibility such that further investigation would be warranted even after a positive 

identification.” Pl.’s Br. 34. We are not persuaded. For example, Keith relies throughout his brief on 

the notion that the victim had “not seen her attacker’s face.” Pl.’s Br. 35; see also id. at 36 (“[T]he 

victim testified that she did not see the attacker[’]s[ ] face . . . .”). But this is contradicted by the 

victim’s own deposition testimony. See, e.g., RA-553 (“Q: During the assault or after the assault, did 

you get a good look at [your attacker]? A: Yes.”). Further, to the extent that portions of the victim’s 

deposition testimony could be read to suggest that she did not see her attacker’s face, see, e.g., id. at 

565 (“I couldn’t really make out his face.”), there is no evidence in the record whatsoever that the 

victim ever communicated this information to the police, see id. at 559 (“Q: Did you tell the police 

that you didn’t have a good look of the person? A: No, I can’t remember.”); id. at 566 (“Q: Now, 

again, did you tell the police, at some point prior, that you didn’t get a good look at the person’s 

face? Did you ever tell them that? A: I can’t remember, no.”), which would be necessary to 

undermine the existence of arguable probable cause, see Shamir v. City of New York, 804 F.3d 553, 557 

(2d Cir. 2015) (“Probable cause is determined on the basis of facts known to the arresting officer at 

the time of the arrest.” (internal quotation marks omitted)). For all of these reasons, we affirm the 

District Court’s dismissal of Keith’s false-arrest claims. 

Turning next to the District Court’s dismissal of Keith’s malicious-prosecution claims, we 

note that, “[b]ecause lack of probable cause is an element of a malicious prosecution claim, the 

existence of probable cause is [also] a complete defense to a claim of malicious prosecution.” 
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Stansbury, 721 F.3d at 94–95 (internal quotation marks omitted); see also Torres v. Jones, —N.E.3d—, 

2016 WL 697947 (N.Y. Feb. 23, 2016) (“Just as in the false arrest context, the plaintiff in a malicious 

prosecution action must also establish at trial the absence of probable cause to believe that he or she 

committed the charged crimes . . . .”). “The existence . . . of probable cause in a malicious 

prosecution suit is . . . determined . . . as of the time the prosecution is commenced.” Rothstein v. 

Carriere, 373 F.3d 275, 292 (2d Cir. 2004). 

Although “[t]he probable cause standard in the malicious prosecution context is slightly 

higher than the standard for false arrest cases,” Stansbury, 721 F.3d at 95, “information from an 

identified citizen accusing another individual of the commission of a specific crime is [generally still] 

sufficient to provide the police with probable cause.” Okunubi v. City of New York, 971 N.Y.S.2d 338, 

340 (2d Dep’t 2013) (dismissing the plaintiff’s malicious-prosecution claim because “the eyewitness 

victim of the alleged crimes made an in-person identification of the plaintiff to a police officer”); see 

also Fortunato v. City of New York, 882 N.Y.S.2d 195, 196 (2d Dep’t 2009) (suggesting that “a witness’s 

identification of a suspect generally may be sufficient to establish probable cause” and thereby defeat 

a claim of malicious prosecution). Thus, “our finding that the officers had arguable probable cause 

to arrest [Keith] necessarily entitles the defendants to qualified immunity on his malicious 

prosecution claim as well,” Pinter v. City of New York, 448 F. App’x 99, 105 n.6 (2d Cir. 2011) (nonprecedential summary order), unless Keith can identify some fact that came to the attention of the 

police before the commencement of his prosecution that was sufficient to “dissipate” the probable 

cause that existed at the time of his putative arrest, see Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 

(2d Cir. 1996) (“In order for probable cause to dissipate, the groundless nature of the charges must 

be made apparent by the discovery of some intervening fact.”); see also Betts v. Shearman, 751 F.3d 78, 

82 (2d Cir. 2014) (“[P]robable cause is a defense to a claim of malicious prosecution if it is not later 

nullified by information establishing the defendant’s innocence . . . .”).

Keith does not even attempt to do so here. And even if he had, that attempt would have 

failed. If anything, the events that took place after Keith’s putative arrest strengthen our 

determination that arguable probable cause existed, because the victim positively identified him once 

again, this time during a lineup. See RA-574–75 (“Q: [W]hen you looked through the peephole to 

view the lineup, did you see anyone that you recognized . . . ? A: Well, I recognized . . . the person 

looks like the person and I tell them, ‘That is the person. That is the person.’”). For all of these 

reasons, we also affirm the District Court’s dismissal of Keith’s malicious-prosecution claims.2

 

2

 Keith also pleaded claims against defendant-appellee the City of New York (the “City”) for 

false arrest and malicious prosecution. His claims against the City based on the actions of the 

individual defendants require him to show that the violation of his rights resulted from a municipal 

custom or policy. See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991). Because Keith 

has failed to produce any evidence tending to prove that his arrest and prosecution were pursuant to 
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Finally, Keith’s denial-of-fair-trial claim, “as alleged in the complaint, is based on [his] factual 

claim that, despite the fact that defendants knew or should have known that the victim never 

positively identified [Keith], defendants still forwarded information to the prosecutor which stated 

that the victim identified [him].” Pl.’s Br. 57. Having determined above that the victim did positively 

identify Keith, we affirm the District Court’s holding that this claim has no basis. 

CONCLUSION 

We have considered all of Keith’s other arguments on appeal and found them to be without 

merit. Accordingly, we AFFIRM the District Court’s December 1, 2014 opinion and order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk 

 

a City policy or custom, summary judgment in favor of the City was appropriate. See Goenaga v. March 

of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).