 05-3341-cv
 W ray v. City of New York


 1                                   UNITED STATES COURT OF APPEALS
 2
 3                                      FOR THE SECOND CIRCUIT
 4
 5                                         August Term, 2005
 6
 7          (Argued: February 7, 2006                    Decided: June 18, 2007)
 8
 9                                       Docket No. 05-3341-cv
10
11       - - - - - - - - - - - - - - - - - - - -x
12       RAYMOND WRAY,
13
14                           Plaintiff-Appellee,
15
16                           - v.-
17
18       CITY OF NEW YORK, DANIEL MARTORANO,
19       WILLIAM WELLER, JAMES MCCAVERA and
20       NEW YORK CITY POLICE DEPARTMENT,
21
22                           Defendants-Appellants.
23
24       - - - - - - - - - - - - - - - - - - - -x
25
26                Before:               JACOBS, Chief Judge, POOLER, and GIBSON,
27                                      Circuit Judges.*
28
29                Interlocutory appeal from an order of the United States

30       District Court for the Eastern District of New York

31       (Weinstein, J.) denying motions for summary judgment by

32       defendants-appellants City of New York and New York City

33       Police Officer William Weller.


                  *
               The Honorable John R. Gibson, United States Court of
         Appeals for the Eighth Circuit, sitting by designation.

                                                   1
1        Vacated and Remanded.

 2
 3                                 ALAN BECKOFF, Assistant
 4                                 Corporation Counsel (Michael A.
 5                                 Cardozo, Corporation Counsel of
 6                                 the City of New York, on the
 7                                 brief; Stephen J. McGrath, Liora
 8                                 Jacobi, of counsel), New York,
 9                                 New York, for Defendants-
10                                 Appellants.
11
12                                 DAWN M. CARDI (Robert Rosenthal,
13                                 on the brief), New York, New
14                                 York, for Plaintiff-Appellee.

15   DENNIS JACOBS, Chief Judge:

16       Having prevailed in federal habeas proceedings and

17   avoided retrial on the charge of armed robbery, Raymond Wray

18   brought suit under 42 U.S.C. § 1983 against various parties

19   he deemed responsible for the constitutional violation that

20   led to his conviction.   The United States District Court for

21   the Eastern District of New York (Weinstein, J.) granted the

22   defendants summary judgment on all claims but two.    In

23   denying summary judgment on those two claims--Wray’s claims

24   against Officer William Weller of the New York City Police

25   Department and the City of New York--the district court

26   recited that immediate appellate review of that ruling is

27   desirable because they involve controlling questions of law

28   as to which there is substantial ground for difference of


                                    2
1    opinion.     Pursuant to 28 U.S.C. § 1292(b), we accepted

2    defendants’ interlocutory appeal.

3        This interlocutory appeal raises two controlling issues

4    of law:     where the admission of testimony at trial regarding

5    a witness identification violated a defendant’s right to due

6    process and a fair trial, whether the defendant [i] can

7    establish a § 1983 claim against the officer who conducted

8    the identification procedure; and [ii] can establish a §

9    1983 “failure to train and supervise” claim against the

10   police department.    We answer both questions in the

11   negative.     The district court’s denial of summary judgment

12   is therefore reversed and we remand to the district court

13   with instructions to enter judgment for defendants on Wray’s

14   remaining two claims.

15

16                              BACKGROUND

17       A detailed background of Wray’s arrest, prosecution,

18   and conviction is found in our opinion reversing the denial

19   of Wray’s habeas petition.    See Wray v. Johnson, 202 F.3d

20   515, 517-24 (2d Cir. 2000).    We summarize only the facts

21   that bear on the issues presented on this appeal, construing

22   the evidence in the light most favorable to Wray, as the


                                     3
1    non-moving party.   Huminski v. Corsones, 396 F.3d 53, 69 (2d

2    Cir. 2005).

3        Three New York City police officers were conducting a

4    stakeout observation from the roof of a Queens restaurant in

5    November 1990, when they saw a man wearing a long black coat

6    and a hat who was pointing a gun at another man and took his

7    jacket.   The victim and the robber were each accompanied by

8    another man.

9        Officers William Weller and James McCavera left the

10   rooftop and apprehended on the street the person who was

11   with the robber (Dennis Bailey).   Having learned that the

12   man in the coat and hat had gone inside the restaurant,

13   Officers Weller and McCavera went in, found the stolen

14   jacket, and arrested Raymond Wray, who was wearing a long

15   black coat and a hat.

16       The victim of the robbery, Melvin Mitchell, and Craig

17   Williams (who accompanied him) were no longer at the scene;

18   but Mitchell was told shortly thereafter by another officer

19   that the robbers had been apprehended and that he should go

20   to the police station.   Within hours of the arrests,

21   Mitchell and Williams went to the station.   According to the

22   police, each was taken to look at Wray, who was in a holding


                                   4
1    cell, and each independently confirmed that Wray was the

2    gunman.   Williams later testified that he believed the name

3    of the officer who conducted the showup identification

4    “starts with a W. Wellie”--which could reasonably be found

5    to be Officer Weller.

6        Wray was indicted on multiple counts of first-degree

7    robbery and weapons possession.   Bailey pled guilty to one

8    count of criminal possession of a weapon, but went to trial

9    on the robbery and other weapons charges.   At the start of

10   his trial in New York Supreme Court, Queens County, in April

11   1992, the trial court held a Wade hearing on Wray’s motion

12   to suppress the stationhouse showup identifications.

13   Mitchell, Williams, and Officer Daniel Martorano (the third

14   officer at the scene) testified as to the identification

15   procedure.   After the hearing, the trial court granted

16   Wray’s motion to suppress Mitchell’s stationhouse

17   identification, but ruled that Williams could testify as to

18   his identification of Wray at the stationhouse.

19       Williams so testified, and the jury convicted Wray of

20   two counts of first-degree robbery, one count of second-

21   degree criminal possession of a weapon, and one count of

22   third-degree criminal possession of a weapon.


                                   5
1        On appeal, the Appellate Division, Second Department,

2    ruled that the trial court had erred in admitting testimony

3    regarding Williams’s stationhouse showup identification,

4    because it was the product of unduly suggestive police

5    procedures; but the Appellate Division nonetheless confirmed

6    the conviction on the ground that the error was harmless.

7    People v. Wray, 640 N.Y.S.2d 122 (App. Div. 1996).        Leave to

8    appeal to the New York Court of Appeals was denied.       People

9    v. Wray, 88 N.Y.2d 1025 (1996).

10       Wray petitioned for a federal writ of habeas corpus in

11   the Eastern District of New York, arguing that the admission

12   of testimony regarding Williams’s showup identification

13   violated his constitutional rights to due process and a fair

14   trial.   The district court denied the petition on the ground

15   of harmless error.   Wray v. Johnson, No. 96 CV 5139, 1998

16   U.S. Dist. LEXIS 10625 (E.D.N.Y. June 18, 1998).     On

17   February 2, 2000, this Court concluded that the error was

18   not harmless and reversed, granting the petition

19   conditionally unless Wray was retried Wray within 90 days.

20   Wray v. Johnson, 202 F.3d 515 (2d Cir. 2000).   The Queens

21   District Attorney’s Office declined to retry Wray, and he

22   was released after eight years in prison.


                                   6
1        On July 20, 2001, Wray filed this § 1983 action in the

2    Eastern District of New York.       His second amended complaint

3    was filed on August 8, 2003 naming as defendants Officers

4    Weller, Martorano, and McCavera, the New York City Police

5    Department, and the City of New York.       The complaint alleges

6    violations of the United States Constitution and state law,

7    including denial of due process, false arrest, malicious

8    prosecution, and failure to train and supervise police

9    officers.

10       On April 14, 2004, defendants moved for summary

11   judgment pursuant to Fed. R. Civ. P. 56, arguing probable

12   cause, qualified immunity, and failure to state a claim.       By

13   opinion and order dated October 18, 2004, the district court

14   granted summary judgment to defendants on all but two of

15   Wray’s claims, but noted the desirability of an

16   interlocutory appeal of its decisions with respect to the

17   two remaining claims against: [i] Officer Weller for

18   performing an unduly suggestive showup, and [ii] the City of

19   New York for failing to adequately train and supervise its

20   police officers on proper identification procedures.      Wray

21   v. City of New York, 340 F. Supp. 2d 291 (E.D.N.Y. 2004).

22       Both parties sought interlocutory review of the


                                     7
1    district court’s opinion and order.     On June 30, 2005, this

2    Court denied Wray’s motion but granted defendants’.

3

4                               DISCUSSION

5         We review de novo the district court’s denial of

6    summary judgment.   Maxwell v. City of New York, 102 F.3d

7    664, 667 (2d Cir. 1996).   In doing so, we construe the

8    evidence in the light most favorable to the non-moving party

9    and draw all reasonable inferences in its favor.     Maguire v.

10   Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.

11   1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

12   255 (1986)).   Summary judgment is appropriate only where

13   “there is no genuine issue as to any material fact and . . .

14   the moving party is entitled to a judgment as a matter of

15   law.”   Fed. R. Civ. P. 56(c).

16

17   A.   The Suggestive Showup Identification

18        Wray alleges that Officer Weller violated his

19   constitutional due process and fair trial rights by

20   conducting the unduly suggestive showup identification, and

21   seeks damages under § 1983 for his conviction and

22   incarceration.   Officer Weller argues that he cannot be held


                                      8
1    liable for Wray’s conviction or incarceration because, even

2    assuming (as we must on summary judgment) that Officer

3    Weller conducted the suggestive showup identification,

4    superseding acts by both the prosecutor and trial judge

5    broke the chain of causation between Weller’s conduct and

6    the violation of Wray’s constitutional rights.

7        As we explained when we conditionally granted Wray’s

8    habeas petition, we have not held that a suggestive

9    identification alone is a constitutional violation; rather,

10   the constitutional violation is that Wray’s right to a fair

11   trial was impaired by the admission of testimony regarding

12   the unreliable identification:

13            In the context of an identification following a
14            police procedure that was impermissibly
15            suggestive, the due process focus is principally
16            on the fairness of the trial, rather than on the
17            conduct of the police, for a suggestive procedure
18            “does not itself intrude upon a constitutionally
19            protected interest.”
20
21   Wray, 202 F.3d at 524 (quoting Manson v. Brathwaite, 432

22   U.S. 98, 113, n.13 (1977)) (emphasis added); see also Wray,

23   340 F. Supp. 2d at 302 (explaining that there is no

24   constitutional right not to be subjected to an

25   unconstitutionally suggestive identification).   “Suggestive

26   procedures are disapproved ‘because they increase the


                                  9
1    likelihood of misidentification,’ and it is the admission of

2    testimony carrying such a ‘likelihood of misidentification

3    which violates a defendant’s right to due process.’”     Wray,

4    202 F.3d at 524 (quoting Neil v. Biggers, 409 U.S. 188, 198

5    (1972)).

6        The question is whether Wray can establish a claim

7    against Officer Weller for the erroneous admission at trial

8    of testimony regarding the unduly suggestive identification.

9    We agree with the defendants that extending liability to

10   Officer Weller is unprecedented and unwarranted.    In the

11   absence of evidence that Officer Weller misled or pressured

12   the prosecution or trial judge, we cannot conclude that his

13   conduct caused the violation of Wray’s constitutional

14   rights; rather, the violation was caused by the ill-

15   considered acts and decisions of the prosecutor and trial

16   judge.

17

18                             *   *    *

19       Our analysis of constitutional torts--like any other

20   tort--is guided by common-law principles of tort.     See,

21   e.g., Malley v. Briggs, 475 U.S. 335, 345 (1986) (“As we

22   stated in Monroe v. Pape, 365 U.S. 167, 187 (1961),


                                   10
1    [overruled on other grounds by Adarand Constructors v. Pena,

2    515 U.S. 200, 233 (1995),] § 1983 ‘should be read against

3    the background of tort liability that makes a man

4    responsible for the natural consequences of his actions.’

5    Since the common law recognized the causal link between the

6    submission of a complaint and an ensuing arrest, we read §

7    1983 as recognizing the same causal link.”); Lombard v.

8    Booz-Allen & Hamilton, Inc., 280 F.3d 209, 216 (2d Cir.

9    2002) (quoting Palka v. Servicemaster Mgmt. Servs. Corp., 83

10   N.Y.2d 579 (1994)); Zahrey v. Coffey, 221 F.3d 342, 351 (2d

11   Cir. 2000) (collecting cases); Townes v. City of New York,

12   176 F.3d 138, 147 (2d Cir. 1999) (same).

13       Our conclusion follows from our previous holding in

14   Townes, a § 1983 case brought by a plaintiff whose

15   conviction was reversed on the ground that the trial court

16   had erroneously denied a motion to suppress illegally-seized

17   evidence.   The plaintiff sued the officers who conducted the

18   illegal search, seeking damages for his conviction and

19   incarceration.   We ruled that the officers’ conduct violated

20   the plaintiff’s right to privacy, but that damages for this

21   violation had not been sought and were likely nominal.    We

22   declined, however, to allow recovery against the officers


                                  11
1    for the conviction and incarceration, holding that the trial

2    judge’s decision to admit the evidence constituted a

3    superseding cause.   Townes, 176 F.3d at 147.

4        The causation alleged by Wray is even more tenuous than

5    the causation alleged in Townes.   In Townes, the officers

6    conducted an illegal search that both [i] was in itself a

7    violation of plaintiff’s constitutional rights, and [ii]

8    contributed to the events that led to plaintiff’s conviction

9    and incarceration; of these, only the former was deemed a

10   possible claim, albeit for nominal damages (and attorney’s

11   fees).   In Wray’s case, the alleged conduct of Officer

12   Weller was not in itself illegal or unconstitutional.      The

13   constitutional harm occurred when the showup was

14   impermissibly used to compromise the fairness of Wray’s

15   trial--at behest of the prosecutor, by order of the trial

16   court, and beyond Officer Weller’s control.

17       Townes involved a Fourth Amendment claim, but there is

18   no reason to read Townes as so limited.   The holding in

19   Townes rests on the broad principles that [i] “the goal of

20   the Court’s § 1983 jurisprudence has been to tailor

21   liability to fit the interests protected by the particular

22   constitutional right in question,” and [ii] “§ 1983 damages


                                  12
1    should be made available only for risks that are

2    constitutionally relevant.”    Townes, 176 F.3d at 148

3    (internal quotation marks omitted).    See also Zahrey, 221

4    F.3d at 350-51 (stating that a § 1983 court is concerned

5    with the “legally cognizable result” of misconduct).       Wray

6    advocates a distinction between Fourth Amendment violations

7    (which result in a violation of privacy) and the admission

8    of testimony regarding an impermissibly suggestive

9    identification (which may result in unreliable convictions).

10   But that distinction bears only on damages, and particular

11   consequences of a violation (if there is one).     Since

12   Officer Weller’s conduct was not itself a constitutional

13   violation, there is a “gross disconnect” between the conduct

14   and the injury for which Wray seeks to recover.    Townes, 176

15   F.3d at 148.

16       Wray also relies on Zahrey, a § 1983 case against an

17   Assistant United States Attorney (“AUSA”) who allegedly

18   conspired to fabricate evidence and then used the fabricated

19   evidence to prosecute Zahrey, who was indicted by a grand

20   jury but later acquitted.     The district court dismissed the

21   claim.   In reversing, we held that Zahrey adequately pled a

22   deprivation of liberty.   Although an AUSA enjoys absolute


                                    13
1    immunity in introducing evidence before the grand jury

2    (regardless of its veracity), the evidence in Zahrey was

3    fabricated in the course of an investigation, as to which

4    that AUSA’s immunity was merely qualified.    The absolutely

5    privileged act did not break the chain of causation because,

6    under our line of cases extending liability where the

7    wrongdoer misled or coerced the intervening decision-maker,

8    the AUSA would have been liable even if the fabricated

9    evidence had been adduced by another prosecutor.     Zahrey,

10   221 F.3d at 353 & n.10 (“It would be a perverse doctrine of

11   tort and constitutional law that would hold liable the

12   fabricator of evidence who hands it to an unsuspecting

13   prosecutor but exonerate[s] the wrongdoer who enlists

14   himself in a scheme to deprive a person of liberty.”).

15       Wray’s claim against Officer Weller is readily

16   distinguishable from Zahrey on two sufficient grounds:     [i]

17   Officer Weller’s conduct, which later formed the basis of

18   the constitutional deprivation, was not in itself a

19   violation of Wray’s constitutional rights; and [ii] the

20   constitutional deprivation was caused by an intervening

21   actor, not by Officer Weller.    See id. at 353-54

22   (emphasizing that “the same person” committed the initial


                                     14
1    wrong and then used the tainted evidence at trial).    Weller

2    testified at Wray’s trial, but there is no allegation that

3    Wray misled the persons whose acts effected the

4    constitutional violation.

5        Wray seizes on language in Zahrey that notes tension in

6    § 1983 jurisprudence between cases, such as our discussion

7    in Townes, in which the chain of causation was broken by the

8    intervening exercise of independent judgment, and cases in

9    which defendants were liable for consequences caused by

10   reasonably foreseeable intervening forces.   The latter cases

11   typically involve situations in which the defendant misled

12   or coerced the intervening decision-maker such that the

13   decision-maker’s conduct was tainted; but the Zahrey opinion

14   wondered aloud why such misconduct would be necessary under

15   the doctrine of reasonable foreseeability:

16            Even if the intervening decision-maker (such as a
17            prosecutor, grand jury, or judge) is not misled or
18            coerced, it is not readily apparent why the chain
19            of causation should be considered broken where the
20            initial wrongdoer can reasonably foresee that his
21            misconduct will contribute to an “independent”
22            decision that results in a deprivation of liberty.
23
24   Zahrey, 221 F.3d at 352.    The court declined to decide that

25   issue because Zahrey involved “the unusual circumstance that

26   the same person took both the initial act of alleged


                                   15
1    misconduct and the subsequent intervening act,” so that the

2    case could be decided “[h]owever the causation issue is to

3    be resolved in the law enforcement context in cases where an

4    initial act of misconduct is followed by the act of a third

5    person.”   Id.   The causation analysis in that case therefore

6    did not reach or decide the causation issues raised by Wray

7    here.

8        In Zahrey, we posed the question why an “initial

9    wrongdoer” may escape the reasonably foreseeable

10   consequences of his actions.    It is always possible that a

11   judge who is not misled or deceived will err; but such an

12   error is not reasonably foreseeable, or (to use the phrase

13   employed in Zahrey, 221 F.3d at 350-51) it is not the

14   “legally cognizable result” of an investigative abuse.

15   Moreover, in the absence of evidence that Officer Weller

16   misled or pressured the prosecution or trial judge, he was

17   not an “initial wrongdoer.”    Id. at 352.   And if his conduct

18   amounted to a wrong under state common law or statutory law,

19   it would still not constitute a violation of a federal

20   constitutional right enforceable under § 1983.     We therefore

21   conclude that Officer Weller cannot be held liable under §

22   1983 for Wray’s conviction and incarceration.


                                    16
1    B.   Failure to Train and Supervise

2         “[T]o hold a city liable under § 1983 for the

3    unconstitutional actions of its employees, a plaintiff is

4    required to plead and prove three elements: (1) an official

5    policy or custom that (2) causes the plaintiff to be

6    subjected to (3) a denial of a constitutional right.”

7    Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).      The

8    failure to train or supervise city employees may constitute

9    an official policy or custom if the failure amounts to

10   “deliberate indifference” to the rights of those with whom

11   the city employees interact.    City of Canton v. Harris, 489

12   U.S. 378, 388 (1989).     To establish “deliberate

13   indifference,” a plaintiff must show that: [i] a policymaker

14   knows “to a moral certainty” that city employees will

15   confront a particular situation; [ii] the situation either

16   presents the employee with “a difficult choice of the sort

17   that training or supervision will make less difficult” or

18   “there is a history of employees mishandling the situation;”

19   and [3] “the wrong choice by the city employee will

20   frequently cause the deprivation of a citizen’s

21   constitutional rights.”    Walker v. City of New York, 974

22   F.2d 293, 297-98 (2d Cir. 1992).    “[A] policymaker does not


                                    17
1    exhibit deliberate indifference by failing to train

2    employees for rare or unforeseen events.”   Id. at 297.

3    Moreover, where (as here), a city has a training program, a

4    plaintiff must--in addition--“identify a specific deficiency

5    in the city’s training program and establish that that

6    deficiency is ‘closely related to the ultimate injury,’ such

7    that it ‘actually caused’ the constitutional deprivation.”

8    Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d

9    Cir. 2004) (quoting City of Canton, 489 U.S. at 391).

10       In light of our conclusion that there was a break in

11   the chain between Officer Weller’s alleged conduct and the

12   denial of Wray’s constitutional rights, Wray’s claim

13   regarding the City’s failure to train or supervise its

14   police officers likewise fails for lack of causation.

15   Officer Weller’s conduct was not itself the cause of the

16   constitutional deprivation; the City’s alleged failure to

17   train him adequately--a step even further removed--cannot,

18   therefore, be the “actual cause” of the constitutional

19   deprivation.

20       Moreover, Wray has failed to adduce evidence that any

21   failure to train reflected “deliberate indifference” to the

22   rights of others.   “Deliberate indifference” involves the


                                  18
1    conscious disregard of the risk that poorly-trained

2    employees will cause deprivations of clearly established

3    constitutional rights.   Amnesty Am., 361 F.3d at 127 n.8.

4    The record evidence establishes that, since 1988, the New

5    York City Police Department has engaged in extensive

6    training on how to conduct identifications.     Although Wray

7    posits defects in the Department’s testing procedures, Wray

8    has put forth no evidence that these defects are the result

9    of deliberate indifference.   See City of Canton, 489 U.S. at

10   391 (“Neither will it suffice to prove that an injury or

11   accident could have been avoided if an officer had had

12   better or more training, sufficient to equip him to avoid

13   the particular injury-causing conduct.”).     Wray submitted a

14   list of New York cases in which suggestive show-up

15   identification evidence was impermissibly admitted by

16   courts; but only one post-dates 1992--a telling datum when

17   one considers the thousands of identifications conducted by

18   each New York City Police Department precinct each year.

19   The police training thus appears to be largely successful.

20

21                            Conclusion

22       For the foregoing reasons, we VACATE the judgment of


                                   19
1   the district court and REMAND the case to the district court

2   with instructions to enter judgment as a matter of law in

3   favor of defendants on the remaining claims.




                                 20
