Re: Another alleged botched high-profile investigation by the New Haven Police
The following court decision is from a lawsuit brought by Anthony Golino for his wrongful arrest in 1984 following an 11 year investigation into the 1973 murder of Penny Serra. "In May 1987, just prior to the scheduled start of Golino's trial for murder, a court-ordered blood test revealed that Golino's blood type did not match that of the killer. The charges against Golino were then dismissed." Officer Dilullo has been part of the Jovin murder investigation.
A few things to keep in mind: (1) the allegations against Dilullo and other NH detectives are exactly that, allegations; the court decision is not in any way a finding that the accusations are/were true, even though a reasonable conclusion can be made they were; (2) neither the appellate court decision nor the lower district court opinion passed on the truth of the allegations; the issue was merely whether sufficient facts had been alleged to permit the case to go to trial, or whether Dilullo and the other officers were entitled to summary judgment in their favor as a matter of law; (3) ultimately, the officers prevailed at trial and the jury ruled against Golino.
I include this case to show that even though Golino did not prevail, it is certainly fair to say that Dilullo and other New Haven officers were accused of making false representations and material omissions in order to obtain the arrest of a man who ultimately was proved to be innocent, in a notorious and long-unsolved New Haven murder case.
- Jeff
=====
Anthony GOLINO, Plaintiff-Appellee,
v.
CITY OF NEW HAVEN, William Farrell, Robert Lillis, Anthony DiLullo, Leonard Pastore, Mary Fish-MacDonald, Joyce Carasone Lupone, John and/or Mary Doe One Through John and/or Mary Doe Ten, Being Officers, Agents or Employees of the City of New Haven, the State of Connecticut or Those Acting in Concert With Them, Whose Names are Presently Unknown to the Plaintiff, Defendants, Robert Lillis, Leonard Pastore, Anthony DiLullo, Mary Fish-MacDonald, Defendants-Appellants.
No. 352, Docket 91-7600.
United States Court of Appeals,
Second Circuit.
Argued Oct. 18, 1991.
Decided Dec. 3, 1991.
Murder suspect brought õ 1983 civil rights action against arresting police officers for malicious prosecution arising from alleged arrest without probable cause. The United States District Court for the District of Connecticut, > 761 F.Supp. 962, Jos‚ A. Cabranes, J., denied officers' motion for summary judgment. Officers appealed. The Court of Appeals, Kearse, Circuit Judge, held that: (1) under Connecticut law, finding in state criminal hearing did not collaterally estop suspect from litigating probable cause issue, and (2) whether it was objectively reasonable for officers to believe probable cause existed in light of withheld information was fact question.
Affirmed.
> 1. FEDERAL COURTS K> 574
170B ----
170BVIII Courts of Appeals
170BVIII(C) Decisions Reviewable
170BVIII(C)2 Finality of Determination
170Bk572 Interlocutory Orders Appealable
> 170Bk574 Other particular orders.
C.A.2 (Conn.) 1991.
Denial of summary judgment motion that is based upon substantial claim of qualified immunity is immediately appealable where defense has been rejected as matter of law, even though denial of motion for summary judgment is not ordinarily appealable final decision. > 28 U.S.C.A. õ 1291.
> 2. FEDERAL COURTS K> 574
170B ----
170BVIII Courts of Appeals
170BVIII(C) Decisions Reviewable
170BVIII(C)2 Finality of Determination
170Bk572 Interlocutory Orders Appealable
> 170Bk574 Other particular orders.
C.A.2 (Conn.) 1991.
Denial of summary judgment is not immediately appealable where trial court has ruled that adjudication of immunity defense requires resolution of genuinely disputed questions of material fact. > 28 U.S.C.A. õ 1291.
> 3. FEDERAL COURTS K> 420
170B ----
170BVI State Laws as Rules of Decision
170BVI(C) Application to Particular Matters
> 170Bk420 Judgments.
C.A.2 (Conn.) 1991.
Rule that federal courts must give state-court judgment same preclusive effect as would be given at judgment under law of state in which judgment was rendered applies to determine preclusive effect of state court judgment on subsequent > õ 1983 civil rights suit brought in federal court. > 28 U.S.C.A. õ 1738; > 42 U.S.C.A. õ 1983.
> 4. JUDGMENT K> 648
228 ----
228XIV Conclusiveness of Adjudication
228XIV(A) Judgments Conclusive in General
228k643 Nature of Action or Other Proceeding
> 228k648 Civil or criminal proceedings.
C.A.2 (Conn.) 1991.
Under Connecticut law, state court determination in murder prosecution that probable cause for arrest existed did not collaterally estop suspect from litigating existence of probable cause in subsequent > õ 1983 civil rights action for malicious prosecution where suspect was prohibited from presenting evidence at state court hearing, suspect was limited to cross-examining state's witnesses and submitting written offer of proof, and suspect had no access to police investigative file which contained exculpatory information. > 42 U.S.C.A. õ 1983.
> 5. CIVIL RIGHTS K> 214(6)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)1 In General
78k211 Privilege or Immunity; Good Faith and Probable Cause
78k214 Governmental Agencies
> 78k214(6) Sheriffs, police, and other peace officers.
C.A.2 (Conn.) 1991.
Qualified immunity shields police officers from personal liability for damages for conduct which does not violate clearly established statutory or constitutional rights of which reasonable person would have known or if it was objectively reasonable for police officers to believe that their acts did not violate those rights. > 42 U.S.C.A. õ 1983.
> 6. CIVIL RIGHTS K> 214(2)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)1 In General
78k211 Privilege or Immunity; Good Faith and Probable Cause
78k214 Governmental Agencies
> 78k214(2) Good faith and reasonableness; knowledge and clarity
of law; motive and intent, in general.
C.A.2 (Conn.) 1991.
Right not to be arrested or prosecuted without probable cause is clearly established constitutional right for purposes of > õ 1983 civil rights action. > 42 U.S.C.A. õ 1983.
> 7. CIVIL RIGHTS K> 133
78 ----
78I Rights Protected and Discrimination Prohibited
78I(A) In General
78k132 Police, Investigative, or Law Enforcement Activities
> 78k133 Arrest and detention.
C.A.2 (Conn.) 1991.
"Probable cause" to arrest, for purposes of > õ 1983 civil rights action, exists when authorities have knowledge or reasonably trustworthy information sufficient to warrant person of reasonable caution in belief that offense has been committed by person to be arrested. > 42 U.S.C.A. õ 1983.
See publication Words and Phrases for other judicial constructions and definitions.
> 8. CIVIL RIGHTS K> 214(6)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)1 In General
78k211 Privilege or Immunity; Good Faith and Probable Cause
78k214 Governmental Agencies
> 78k214(6) Sheriffs, police, and other peace officers.
C.A.2 (Conn.) 1991.
Arresting officer is entitled to qualified immunity from suit for damages on claim for arrest without probable cause if either: it was objectively reasonable for officer to believe probable cause existed, or officers of reasonable competence could disagree on whether probable cause test was met. > 42 U.S.C.A. õ 1983.
> 9. CIVIL RIGHTS K> 240(4)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)2 Proceedings
78k239 Evidence
78k240 Presumptions and Burdens of Proof
> 78k240(4) Criminal law enforcement; police and prosecutors.
C.A.2 (Conn.) 1991.
Issuance of warrant by neutral magistrate creates presumption that it was objectively reasonable for officers to believe that there was probable cause, for purposes of > õ 1983 civil rights action for alleged arrest without probable cause. > 42 U.S.C.A. õ 1983.
> 10. CIVIL RIGHTS K> 214(6)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)1 In General
78k211 Privilege or Immunity; Good Faith and Probable Cause
78k214 Governmental Agencies
> 78k214(6) Sheriffs, police, and other peace officers.
[See headnote text below]
> 10. CIVIL RIGHTS K> 240(4)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)2 Proceedings
78k239 Evidence
78k240 Presumptions and Burdens of Proof
> 78k240(4) Criminal law enforcement; police and prosecutors.
C.A.2 (Conn.) 1991.
Intentional or reckless omissions of material information from magistrate may serve as basis for challenge to qualified immunity in > õ 1983 civil rights action against arresting officers for alleged arrest without probable cause; recklessness may be inferred where omitted information was critical to probable cause determination. 42 U.S.C.A. > õ 1983.
> 11. CIVIL RIGHTS K> 214(6)
78 ----
78II Federal Remedies
78II(B) Civil Actions
78II(B)1 In General
78k211 Privilege or Immunity; Good Faith and Probable Cause
78k214 Governmental Agencies
> 78k214(6) Sheriffs, police, and other peace officers.
C.A.2 (Conn.) 1991.
Police officer loses qualified immunity shield in > õ 1983 civil rights action for alleged arrest without probable cause where officer knows or has reason to know that officer materially misled magistrate on basis for finding of probable cause, such as where material omission is intended to enhance contents of affidavit as support for conclusion of probable cause. > 42 U.S.C.A. õ 1983.
> 12. FEDERAL CIVIL PROCEDURE K> 2470.1
170A ----
170AXVII Judgment
170AXVII(C) Summary Judgment
170AXVII(C)1 In General
170Ak2465 Matters Affecting Right to Judgment
> 170Ak2470.1 Materiality and genuineness of fact issue.
C.A.2 (Conn.) 1991.
Whether item of information is material, in context of motion for summary judgment, is mixed question of law and fact which depends on whether information is relevant to given question in light of controlling substantive law and whether information would likely be given weight by person considering question.
> 13. FEDERAL CIVIL PROCEDURE K> 2491.5
170A ----
170AXVII Judgment
170AXVII(C) Summary Judgment
170AXVII(C)2 Particular Cases
> 170Ak2491.5 Civil rights cases in general.
C.A.2 (Conn.) 1991.
Whether arresting officers were entitled to qualified immunity in > õ 1983 civil rights action for arrest of murder suspect without probable cause was fact question which precluded summary judgment, even though state court magistrate found probable cause for arrest, where officers deliberately withheld from magistrate information that most of eyewitnesses described killer as thin and clean shaven, whereas suspect weighed 215 pounds and had moustache, one eyewitness positively identified another person as the killer, suspect's prime accuser was his former wife who had extreme bias against suspect and had made inconsistent statements, and fingerprints believed to have been left by killer did not match prints of suspect. > 42 U.S.C.A. õ 1983.
Steven Traub, New Haven, Conn. (Hugh F. Keefe, Lynch, Traub, Keefe & Errante, on the brief), for plaintiff-appellee.
William C. Longa, Bridgeport, Conn. (David P. Atkins, Shelley R. Sadin, Zeldes, Needle & Cooper, Bridgeport, Conn., Martin S. Echter, Deputy Corp. Counsel, City of New Haven, New Haven, Conn., on the brief), for defendants-appellants.
Before KAUFMAN, KEARSE and McLAUGHLIN, Circuit Judges.
KEARSE, Circuit Judge:
Defendants Robert Lillis, Leonard Pastore, Anthony DiLullo, and Mary Fish-MacDonald appeal from so much of an order of the United States District Court for the District of Connecticut, Jos‚ A. Cabranes, Judge, as denied their motion for summary judgment dismissing claims against them by plaintiff Anthony Golino under > 42 U.S.C. õ 1983 (1988) for malicious prosecution. Appellants moved for summary judgment on the grounds that (1) a state-court finding during the prior criminal proceeding collaterally estops Golino from litigating in the present case the issue of whether there was probable cause to prosecute him, and (2) as police officers, they enjoy qualified immunity from the present suit. The district court denied appellants' motion on the grounds that (1) collateral estoppel was inappropriate because Golino had not had a sufficient opportunity in the prior proceeding to litigate the probable cause question, and (2) there were
genuine issues of material fact to be tried with respect to the immunity defense. On appeal, appellants contend that the district court erred in concluding (1) that Golino did not have an adequate opportunity to litigate the question of probable cause, and (2) that any existing questions of fact with respect to probable cause are material. For the reasons below, we
reject both contentions and affirm the order of the district court.
I. BACKGROUND
The present action arises out of an 11-year investigation by the City of New Haven Police Department into the 1973 murder of Concetta ("Penny") Serra. Lillis, a police sergeant, supervised the investigation. DiLullo and Pastore, police detectives, and Fish-MacDonald, a police officer, had primary operational responsibility for the investigation. In July 1984,
Golino was arrested pursuant to an arrest warrant and charged with the murder.
In August 1984, following a preliminary evidentiary hearing held pursuant to state law ("1984 state hearing"), Connecticut Superior Court Judge Frank Kinney found probable cause to support the murder charge. At that hearing, Judge Kinney permitted Golino's counsel to cross-examine the state's witnesses and to make a brief written offer of proof, but he denied Golino's request to introduce evidence. In May 1987, just prior to the scheduled start of Golino's trial for murder, a court-ordered blood test revealed that Golino's blood type did not match that of the killer. The charges against Golino were then dismissed.
In January 1988, Golino commenced the present action against appellants and several other defendants. To the extent pertinent here, he asserted claims against appellants under > õ 1983 for malicious prosecution. After a period of discovery, appellants moved for summary judgment dismissing these claims on the grounds that (1) as police officers, they were entitled to qualified immunity because there existed no genuine issue of fact as to the existence of probable cause to arrest and try Golino, or (2) Judge Kinney's probable cause determination precluded Golino from relitigating that issue in the present case.
In a ruling reported at > 761 F.Supp. 962 (1991), the district court denied this motion, stating that "the record as it currently stands contains evidence from which a reasonable jury might infer that plaintiff was maliciously prosecuted." > Id. at 964. The court noted that in order to establish a > õ 1983 claim for malicious prosecution, a plaintiff must show, inter alia, that the prosecution was without probable cause. See > Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984) (state law defines elements of a malicious prosecution claim asserted under > õ 1983, see > 42 U.S.C. õ 1988 (1988)); > McGann v. Allen, 105 Conn. 177, 185, 134 A. 810, 813 (1926) (absence of probable cause is one element of malicious prosecution claim under Connecticut law). As to appellants' defense of issue preclusion, the court found that the authorities cited for the proposition that a state-court probable cause hearing generally has collateral estoppel effect did not establish that proposition. In addition, noting that it was undisputed that Golino had not been permitted to present evidence at the 1984 state hearing, the court concluded that he had not been given an adequate opportunity at that hearing to contest probable cause. Thus, the court concluded that litigation here of the issue of probable cause was not foreclosed by principles of collateral estoppel.
As to the merits of the probable cause question, the court concluded that there existed genuine issues of material fact because the affidavit leading to the warrant for Golino's arrest, and to his subsequent prosecution, contained false statements and made numerous material omissions. To begin with, Golino was connected to the Serra murder principally by statements that the police attributed to his former wife, Joyce Carasone Lupone (from whom he had separated in 1980, and who testified at the 1984 state hearing that she hated Golino and would do anything she could to keep him from getting custody of their son), whom the police knew to be involved in acrimonious divorce proceedings with Golino. The warrant affidavit quoted Lupone as stating that on more than one occasion Golino had made incriminating remarks to her, i.e., threatening to do to her "the same ... as he had done to Penny Serra." The affidavit did not disclose, however, that Lupone had also made statements to the police that were inconsistent with the statements it attributed to her, and it omitted mention of the fact that at one time Lupone told the police that Golino never made the quoted statements. The affidavit also stated that an informant, Neil Russo, told police that Golino had dated Serra. The district court noted the probable falsity of this statement in light of Russo's deposition testimony in the present case that he had never made this statement to the police and that when they interviewed him, he would "say one thing and they put down another thing."
The court also noted that a number of other evidently pertinent facts had been omitted from the arrest warrant affidavit. For example, the affidavit described the killer only as "a white male wearing a light colored shirt and dark trousers, carrying a shiney [sic ] object in his hand," notwithstanding the fact that several eyewitnesses had given descriptions in considerably greater detail. Thus, one eyewitness described the killer as "approximately 5' 8"' tall, 150 to 160 pounds [with a] slim build"; another stated that he had a "thin face" and "skinny arms"; a third eyewitness also described the killer as having a "thin face." The significance of these omissions was that Golino, at the time of Serra's death, weighed approximately 215 pounds. All three of these eyewitnesses also stated that the killer had no mustache. Golino, at the time, had a mustache. A fourth eyewitness had described the killer as having a mustache; but that eyewitness had, within hours of the murder, affirmatively identified another person, from both a photo array and a lineup, as the killer, and the person identified was Serra's boyfriend. Further, the affidavit did not mention that the killer's blood type was known but that the police had not bothered to seek a court order for a test to determine Golino's blood type. It also failed to mention that fingerprints on Serra's car that the police strongly believed to belong to her killer did not match the fingerprints of Golino. DiLullo testified at his deposition in the present case that it was his general practice to omit exculpatory information from affidavits submitted in support of applications for warrants.
The district court concluded that it could not rule as a matter of law that it was " 'objectively reasonable for [appellants] to believe that they were acting in a fashion that did not violate [Golino's] established federally protected right[s].' " > 761 F.Supp. at 971-72 (quoting > Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir.1991)). Accordingly, an order was entered denying so much of appellants' motion as sought dismissal of the malicious prosecution claims. This appeal followed.
II. DISCUSSION
On appeal, appellants pursue their contentions that they were entitled to summary judgment dismissing the malicious prosecution claims on grounds of collateral estoppel and qualified immunity. For the reasons below, we conclude that the district court properly denied appellants' motion. We note first, however, a question as to appellate jurisdiction.
A. Appellate Jurisdiction
> [1] > [2] The denial of summary judgment is ordinarily not an appealable "final decision" within the meaning of > 28 U.S.C. õ 1291 (1988). A district court's denial of a summary judgment motion that is based upon a substantial claim of qualified immunity, however, is immediately appealable where the district court has rejected the defense as a matter of law. See, e.g., > Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); > Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir.1990). Where the district court has ruled that adjudication of the immunity defense requires resolution of genuinely disputed questions of material fact, the denial of summary judgment is not immediately appealable. See, e.g., > Mitchell v. Forsyth, 472 U.S. at 530, 105 S.Ct. at 2817; > Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir.1991); > Hurlman v. Rice, 927 F.2d at 79; > Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir.1989). Thus, we have jurisdiction to review appellants' immunity defense only to the extent that it can be decided as a matter of law. These principles have significance here in two respects.
Leaving aside for the moment appellants' claim of collateral estoppel, the district court ruled that the merits of appellants' claim of qualified immunity could not be decided on summary judgment because there were material issues of facts to be determined with respect to (a) whether there was probable cause, and (b) whether it was objectively reasonable for appellants to believe they had probable cause. Since the court ruled that the resolution of these probable cause issues involved questions of fact, the ruling is not, in principle, immediately appealable.
In contrast, there are no questions of fact to be determined with respect to the collateral estoppel argument. There is no dispute as to what occurred at the state-court hearing, or as to what questions were before the court, or as to what issues were necessarily decided. Thus, the district court's ruling that, in light of the undisputed facts, there is no collateral estoppel is a ruling on a question of law. This ruling has twofold significance to appellants' qualified immunity defense, for if appellants had probable cause to arrest and prosecute Golino, (a) there would have been no violation of his constitutional rights, see > Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (defendant entitled to qualified immunity where, as a matter of law, plaintiff cannot prove a constitutional violation), and (b) it would have been objectively reasonable for them to believe that those actions did not violate his constitutional rights. Accordingly, since the rejection of the collateral estoppel argument was a purely legal ruling and affects whether qualified immunity is available as a matter of law, we have jurisdiction to review the denial of summary judgment on the collateral estoppel ground.
As noted above, the court's ruling that the merits of the probable cause issue turn on questions of fact was not, in and of itself, appealable. However, where we have jurisdiction to consider some questions on appeal, we may exercise our discretion to take pendent jurisdiction over related questions. See, e.g., San Filippo v. United States Trust Co. of New York, 737 F.2d 246, 255 (2d Cir.1984) ("once we have taken jurisdiction over one issue in a case, we may, in our discretion, consider otherwise nonappealable issues in the case as well, where '[t]here is sufficient overlap in the factors relevant to [the appealable and nonappealable] issues to warrant our exercising plenary authority over [the] appeal' ") (quoting > Sanders v. Levy, 558 F.2d 636, 643 (2d Cir.1976), rev'd on other grounds sub nom. > Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)), cert. denied, > 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). Given the close relationship between the collateral estoppel issue, i.e., whether Golino had an adequate opportunity to contest the existence of probable cause, and the merits of the probable cause issues, we will exercise our discretion in this case to review the district court's ruling that there exist material questions of fact as to the existence of probable cause and the objective reasonableness of any belief on the part of appellants that there existed probable cause.
B. The Collateral Estoppel Argument
> [3] Pursuant to > 28 U.S.C. õ 1738 (1988), the federal courts "must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." > Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). This rule applies to determine the preclusive effect of a state court judgment on a subsequent suit in federal court brought pursuant to > õ 1983. See > Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); > Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 183 (2d Cir.), cert. denied, > 502 U.S. 866, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991). Nonetheless, "[c]ollateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court." > Allen v. McCurry, 449 U.S. at 101, 101 S.Ct. at 418.
Under Connecticut law, " '[f]or an issue to be subject to collateral estoppel, [1] it must have been fully and fairly litigated in the first action. [2] It also must have been actually decided and [3] the decision must have been necessary to the judgment.' " > Aetna Casualty and Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414, 421 (1991) (quoting > Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243, 1245 (1988)); > P.X. Restaurant, Inc. v. Town of Windsor, 189 Conn. 153, 454 A.2d 1258, 1262 (1983). As to the first condition, the only one of the three at issue here, the Connecticut Supreme Court has explained that "[t]he requirement of full and fair litigation ensures fairness, which is a 'crowning consideration' in collateral estoppel cases." > Aetna Casualty and Surety Co. v. Jones, 220 Conn. at 306, 596 A.2d at 425. Thus, "if the nature of the hearing carries procedural limitations that would not be present at a later hearing, the party might not have a full and fair opportunity to litigate." > Id. at 306, 596 A.2d at 426; see also > Bailey v. Andrews, 811 F.2d 366, 370 (7th Cir.1987) (finding of probable cause in state-court hearing, at which suspect was not allowed to present evidence or cross-examine witnesses, not given preclusive effect in subsequent > õ 1983 suit); > Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir.1987) (state-court finding of probable cause given preclusive effect in subsequent > õ 1983 suit because prior proceeding, at which suspect had a right to call witnesses and cross-examine witnesses, afforded him a full and fair opportunity to litigate the issue of probable cause).
> [4] We think the district court was correct in its assessment that, for collateral estoppel purposes, the 1984 state hearing entailed procedural limitations that curtailed Golino's efforts to secure the full and fair litigation of the probable cause issue. The purpose of such a hearing is generally the evaluation of the "sufficiency" of the evidence to constitute probable cause, not the "integrity" of the evidence. See, e.g., > Schertz v. Waupaca County, 875 F.2d 578, 581 (7th Cir.1989); > Bailey v. Andrews, 811 F.2d at 369-70. Thus, at such a hearing under Connecticut law, the suspect apparently has no right to call any witnesses or to introduce any evidence of his own. Nor did the state court exercise discretion to permit Golino to call witnesses or offer evidence. Rather, he was limited to cross-examining the state's witnesses and submitting a written offer of proof identifying witnesses and evidence he wished to present. Further, in connection with the preliminary hearing, Golino had no access to the police investigative file. As has transpired in the present action, that file contained numerous items of evidence that could have been used to cross-examine the police officers who testified and to create substantial questions about the existence of probable cause to prosecute Golino.
Given (a) the substantial showing in the present case that appellants' presentations in support of probable cause contained numerous significant misstatements and omissions, and (b) the limitations on Golino's ability to present his own evidence and to gain access to undisclosed significant facts known to the police in order to cross-examine the state's witnesses, we conclude that the 1984 state hearing did not provide Golino a full and fair opportunity, for collateral estoppel purposes, to litigate the issue of probable cause. Accordingly, the district court properly ruled that the probable cause decision of Judge Kinney should not be given preclusive effect..
C. The Merits of the Qualified Immunity Defense
> [5] > [6] > [7] > [8] The qualified or "good faith" immunity enjoyed by police officers shields them from personal liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," > Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also > Hurlman v. Rice, 927 F.2d at 78; > Robison v. Via, 821 F.2d 913, 920 (2d Cir.1987), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights, see > Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); > Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); > Hurlman v. Rice, 927 F.2d at 78; > Calamia v. City of New York, 879 F.2d 1025, 1035 (2d Cir.1989). The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right. Probable cause to arrest exists when the authorities 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. > Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 2254 n. 9, 60 L.Ed.2d 824 (1979). An arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause 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. > See Malley v. Briggs, 475 U.S. at 341, 106 S.Ct. at 1096; > Robison v. Via, 821 F.2d at 921. In order to be entitled to summary judgment on such a defense, the officer must adduce sufficient facts that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could conclude that it was objectively unreasonable for the officer to believe that probable cause did not exist. See id.
> [9] > [10] > [11] Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause, see > United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), and a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden, see, e.g., > Rivera v. United States, 928 F.2d 592, 602 (2d Cir.1991) (search warrant). In order to mount such a challenge, the plaintiff must make a "substantial preliminary showing" that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a fal |
