13-4403 

Liffiton v. Kiszewski

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 ASUMMARY ORDER@). A PARTY CITING TO 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 4th day of November, two thousand fifteen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge,

ROSEMARY S. POOLER, 

DENNY CHIN,

Circuit Judges. 

_____________________________________ 

John D. Liffiton, 

Plaintiff-Appellant,

v. 13-4403 

Detective Sherry Kiszewski, John Doe, 

Detective Ronald Barrett, Supervisory 

Personnel of the Buffalo Police Department 

not yet identified, 

Defendants-CounterClaimants-Appellees, 

County of Erie, John Doe, Erie County 

Deputy Sheriffs yet to be identified, 

 Defendants-Cross- 

 Appellees. 

_____________________________________ 
2 

FOR PLAINTIFF-APPELLANT: John D. Liffiton, pro se, Getzville, 

NY.

FOR DEFENDANTS-COUNTERCLAIMANTS-APPELLEES: Timothy Alfred Ball, Office of the 

Corporation Counsel, Buffalo, NY. 

FOR DEFENDANTS-CROSS-APPELLEES: Brian Richard Liebenow, Labor 

Relations Office, Fredonia, NY. 

 Appeal from a judgment of the United States District Court for the Western District of New 

York (Foschio, M.J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

 Appellant John D. Liffiton, proceeding pro se, appeals the district court’s judgment, 

following a jury verdict in his false arrest action, finding that defendants, City of Buffalo Police 

Detectives Sherry Kiszewski and Ronald Barrett, had probable cause to arrest him. We assume 

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

on appeal. 

First, Liffiton’s contention that, in the absence of exigent circumstances, a warrant is a 

prerequisite to an arrest misconstrues the law. A warrantless arrest is permissible when supported 

by probable cause and when, as here, the arrest takes place in public. See, e.g., United States v. 

Watson, 423 U.S. 411, 423 (1976). 

Second, Liffiton’s assertion that the issue of probable cause should not have been 

submitted to the jury is unavailing. “The question of whether or not probable cause existed may 

be determinable as a matter of law if there is no dispute as to the pertinent events and the 

knowledge of the officers, or may require a trial if the facts are in dispute.” Weyant v. Okst, 101 

F.3d 845, 852 (2d Cir. 1996) (internal citation omitted). Here, there were disputes as to the extent 
3 

of Detective Kiszewski’s knowledge prior to the arrest, including, for example, whether Kiszewski 

had received a statement attacking Pamela Morse’s credibility that Liffiton claimed to have faxed 

to her and whether she was aware of the reasons why Liffiton failed to show up for scheduled 

interviews. Because these factual disputes inform the probable cause analysis, the issue of 

whether probable cause existed was properly submitted to the jury. 

Third, the jury instructions on probable cause were not erroneous. We review de novo

challenges to jury instructions in civil cases, “and will grant a new trial if we find an error that is 

not harmless.” Rasanen v. Doe, 723 F.3d 325, 331 (2d Cir. 2013) (internal quotation marks 

omitted). “A jury charge is erroneous if it misleads the jury as to the correct legal standard, or if it 

does not adequately inform the jury of the law.” Hathaway v. Coughlin, 99 F.3d 550, 552 (2d Cir. 

1996). Conversely, “a jury instruction will be deemed adequate if the charge, taken as a whole, is 

correct and sufficiently covers the case so that a jury can intelligently determine the questions 

presented to it.” Id. at 553 (internal quotation marks omitted). 

“Probable cause requires an officer to have ‘knowledge or reasonably trustworthy 

information sufficient to warrant a person of reasonable caution in the belief that an offense has 

been committed by the person to be arrested.”’ Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 

2006) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)). “When determining 

whether probable cause exists courts must consider those facts available to the officer at the time 

of the arrest and immediately before it.” Id. (internal quotation marks omitted) (emphasis 

omitted). “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. . . . An identified citizen informant is presumed to be reliable.” 

Fabrikant v. French, 691 F.3d 193, 216 (2d Cir. 2012) (internal citations, quotation marks, and 
4 

alterations omitted). “[A]n officer may not disregard plainly exculpatory evidence,” but “the fact 

that an innocent explanation may be consistent with the facts alleged does not negate probable 

cause, and an officer’s failure to investigate an arrestee’s protestations of innocence generally does 

not vitiate probable cause.” Panetta, 460 F.3d at 395-96 (alteration and internal citation omitted). 

The jury instructions in this case were consistent with these precedents. Moreover, the 

instructions were sufficiently tailored to the particular facts of the case to allow the jury to 

“intelligently determine the questions presented to it.” Hathaway, 99 F.3d at 553. 

Fourth, we construe Liffiton’s assertions that Kiszewski had reason to doubt the veracity of 

Morse’s criminal complaint as a challenge to the sufficiency of the evidence supporting the jury’s 

verdict, and we reject it. In reviewing the sufficiency of the evidence at trial, we “view the facts 

of the case in the light most favorable to the prevailing party.” Kosmynka v. Polaris Indus., Inc., 

462 F.3d 74, 77 (2d Cir. 2006). “[J]udges have a very limited role in controlling jury fact-finding, 

acting only when they think it highly likely that the jury decided wrongly” or that “the jury relied 

only on the bases of unsupported surmise and conjecture.” Sanders v. N.Y. City Human Rights 

Res. Admin., 361 F.3d 749, 753 (2d Cir. 2004). Further, we “defer[] to the jury’s assessment of 

witness credibility.” United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (internal 

quotation marks omitted). 

Kiszewski testified that Liffiton’s arrest was based on Morse’s complaint and that she had 

no knowledge of Liffiton’s faxed statement attacking Morse’s credibility based on their prior 

landlord-tenant relationship. This testimony, along with Morse’s felony report and the signed 

statement from her interview with Kiszewski, was sufficient to support the jury’s verdict. 

Liffiton’s contention that Kiszewski was required to conduct a further investigation because there 

were inconsistencies between the felony report and the signed statement is meritless. The 
5 

substance of the two statements is substantially the same, and the minor discrepancies that Liffiton 

identifies are immaterial. Further, Morse was forthcoming – she notified Kiszewski that she had 

recently been evicted – and Liffiton, in Kiszewski’s view, was evasive – he canceled two 

scheduled interviews. The jury was entitled to credit Kiszewski’s version of events and to reject, 

as it apparently did, Liffiton’s assertion that the circumstances raised doubt as to Morse’s veracity. 

We defer to those assessments, see Chavez, 549 F.3d at 124, and with them, the evidence was 

sufficient to support the jury’s finding that there was probable cause for Liffiton’s arrest. 

We have considered all of Liffiton’s remaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk