             14-1125-cv
             Bermudez v. City of New York
 1 
 2                                                     UNITED STATES COURT OF APPEALS
 3                                                         FOR THE SECOND CIRCUIT
 4 
 5                                                                      August Term, 2014
 6 
 7                                     (Argued: March 5, 2015                           Decided: June 15, 2015)
 8 
 9                                                                    Docket No. 14-1125-cv
10 
11 
12                                                                   FERNANDO BERMUDEZ,
13 
14                                                                      Plaintiff-Appellant,
15 
16                                                                             – v. –
17 
18        CITY OF NEW YORK, MICHAEL LENTINI, WILLIAM FITZPATRICK, DANIEL
19           MASSANOVA, JOHN MULALLEY, BAKER, (FIRST NAME UNKNOWN),
20        MULCAHY, (FIRST NAME UNKNOWN), VARIOUS JOHN DOES, WHO ARE OR
21            WERE OFFICERS OF THE NEW YORK CITY POLICE DEPARTMENT,
22         INDIVIDUALLY & IN THEIR OFFICIAL CAPACITY, VARIOUS JANE DOES,
23            WHO ARE OR WERE OFFICERS OF THE NEW YORK CITY POLICE
24                          DEPARTMENT, INDIVIDUALLY,
25 
26                                                                     Defendants-Appellees,
27 
28    ROBERT M. MORGENTHAU, INDIVIDUALLY & IN HIS OFFICIAL CAPACITY AS
29      FORMER DISTRICT ATTORNEY OF NEW YORK COUNTY, NANCY RYAN,
30    INDIVIDUALLY & IN HER OFFICIAL CAPACITY AS ASSISTANT ATTORNEY OF
31        NEW YORK COUNTY, JAMES RODRIGUEZ, INDIVIDUALLY & IN HIS
32      OFFICIAL CAPACITY AS ASSISTANT ATTORNEY OF NEW YORK COUNTY,
33        ROBIN MCCABE, INDIVIDUALLY & IN HER OFFICIAL CAPACITY AS
34      ASSISTANT ATTORNEY OF NEW YORK COUNTY, MARY C. FARRINGTON,
35         INDIVIDUALLY & IN HER OFFICIAL CAPACITY, HILARY HASSLER,
36    INDIVIDUALLY & IN HER OFFICIAL CAPACITY AS ASSISTANT ATTORNEY OF
37      NEW YORK COUNTY, HERCULANO IZQUIERDO, INDIVIDUALLY & IN HIS
38      OFFICIAL CAPACITY AS ASSISTANT ATTORNEY OF NEW YORK COUNTY,
39 
40                                                                         Defendants.*
41 
42 

                                                                  
      *
          The Clerk of Court is respectfully requested to amend the caption as set forth above.


                                                                           1
 1 
 2    Before: CALABRESI, HALL, Circuit Judges, RAKOFF, District Judge.
 3 
 4           Plaintiff Fernando Bermudez was incarcerated 18 years for a murder he did not
 5    commit. He was exonerated and released in 2009 after the witnesses who had identified him
 6    as the murderer recanted and the Manhattan District Attorney’s Office conceded his
 7    innocence. He now brings an action under 42 U.S.C. § 1983 and state tort law against the
 8    police officers who conducted the investigation. Bermudez argues that the officers violated
 9    his due process rights and committed a tort of malicious prosecution by, inter alia, using
10    overly suggestive witness identification procedures and coercing witnesses to identify
11    Bermudez. The District Court granted summary judgment to the Defendant officers, and
12    Bermudez appeals. We conclude 1) that there are genuine issues of material fact concerning
13    Bermudez’s due process claims, and 2) that there are no genuine issues of material fact
14    concerning Bermudez’s malicious prosecution claims. We therefore AFFIRM the judgment
15    of the District Court in part, VACATE the judgment of the District Court in part, and
16    REMAND for further proceedings consistent with this opinion.

17                                                                        BRIAN J. ISAAC, Pollack, Pollack, Isaac, & De Cicco,
18                                                                        LLP, New York, NY, for Plaintiff-Appellant
19 
20                                                                        PATRICIA A. BAILEY, New York County District
21                                                                        Attorney’s Office, New York, NY, for Defendants
22 
23                                                                        KAREN GRIFFIN, New York City Law Department,
24                                                                        New York, NY, for Defendants-Appellees
25 
26 
27 

28    CALABRESI, Circuit Judge:

29                                                                   I.       BACKGROUND

30                  Plaintiff Fernando Bermudez was incarcerated 18 years for a murder he did not

31    commit. The crime in question took place around 3:00 AM on August 4, 1991. A 16-year-

32    old boy named Efraim Lopez was at a party at the Marc Ballroom in Manhattan, and was

33    punched in the face by a man named Raymond Blount. Lopez told another individual about

34    this altercation with Blount, and the parties in the case before us do not dispute that this

                                                                  
      
       Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New
      York, sitting by designation.


                                                                                   2
 1    other individual subsequently shot and killed Blount. Moreover, the parties before us no

 2    longer dispute that this other individual was not Bermudez.

 3                    Detectives Michael Lentini and William Fitzpatrick were assigned to the case, and

 4    later on August 4 they brought seven witnesses in for questioning – Nkosi Boyce, Lawrence

 5    Darden, Terrence Hall, Okpa Iyesi, Frank Kent, Michael Thompson, and Jaime Velasquez.

 6    The detectives asked this group of witnesses collectively to describe the shooter. The

 7    witnesses said he was a 16-to-26-year-old Hispanic man approximately 5’11” and weighing

 8    around 165 pounds. Detective Lentini then brought the witnesses several drawers’ worth of

 9    photographs of prior arrestees that matched this description.1 The witnesses went through

10    the photographs together while engaging in conversation with each other. At one point,

11    Velasquez took a photograph of Bermudez out of one of the drawers and showed this

12    photograph to several other witnesses, remarking that Bermudez looked cute. Velasquez

13    gave the photograph of Bermudez to Detective Lentini, and the police officers immediately

14    ended the procedure despite the fact that the witnesses had not yet looked through all of the

15    photographs.

16                  Later that evening, Detective Daniel Massanova made a six-photograph array, which

17    included Bermudez’s picture. He showed the array to the witnesses, and told them “I want

18    you to look at these six photos here in front of you and to decide which one you think is

19    responsible.” Joint App’x at 699. Thompson then identified Bermudez as the shooter, Hall

20    and Iyesi stated that Bermudez was at the scene, Darden and Boyce did not identify anyone



                                                                  
      1
       These facts about the photograph selection procedure and the photograph array viewing
      are drawn from Justice John Cataldo’s findings of fact in the 2009 New York State case in
      which Bermudez was exonerated. People v. Bermudez, 906 N.Y.S.2d 774 (N.Y. Sup. Ct.,
      Nov. 9, 2009).


                                                                     3
 1    as the shooter, and Kent identified Bermudez as “the kid with the gold chain who reached

 2    behind his back for a gun.” Joint App’x at 86.9-.10.

 3           The next day the police conducted a lineup that included Bermudez. At the lineup,

 4    Velasquez, Thompson, Kent, and Iyesi all identified Bermudez. The remaining three

 5    witnesses stated that they did not recognize anyone in the lineup.

 6           The police also brought Lopez – the 16-year-old whose punching was the cause of

 7    Blount’s shooting – into custody, gave him Miranda warnings, and questioned him about the

 8    shooting. In the course of his long interrogation, Lopez gave three inconsistent written

 9    statements to the police. In the first statement, Lopez did not admit to knowing the

10    shooter’s name, but described the shooter as 6’0” and 180 pounds, wearing a white shirt

11    with black designs, beige shorts, and a chain with a gold medallion. In the second written

12    statement, Lopez indicated that he knew the shooter and that the shooter’s street name was

13    “Wool Lou.” In the third statement, Lopez said that Wool Lou was the individual in

14    “photograph 2” (the photograph of Bermudez), and that he knew Wool Lou from the

15    neighborhood and from seeing him at the building where Lopez’s grandmother lived.

16           Subsequently, after Lopez had been in custody for a total of around 30 hours,

17    Assistant District Attorney James Rodriguez and Detective Massanova questioned Lopez

18    and took a videotaped statement. In that statement Lopez a) indicated that the shooter was

19    named “Lou” and had the nickname “Wool Lou,” and b) identified Bermudez, from his

20    photograph, as “Wool Lou.” Lopez further said that he did not recognize the nickname

21    “Most” (which was known to be Bermudez’s nickname). Crucially, as it will turn out,

22    during the videotaped interrogation, Detective Massanova told ADA Rodriguez that at the




                                                    4
 1    original interrogation Lopez had voluntarily pointed to Bermudez’s photograph before

 2    Massanova even opened up the photo array.

 3           In two later affidavits given in 1992 and 1993, which were produced in connection

 4    with Bermudez’s post-trial collateral challenges to his conviction, Lopez, however, gave a

 5    very different account of Detective Massanova’s original interrogation. According to these

 6    affidavits, Detective Massanova gave Lopez a photograph of Bermudez, told him that

 7    Bermudez was a drug dealer, and said to Lopez that if he did not identify Bermudez as the

 8    person who had killed Blount then Lopez would be charged as the shooter.

 9           On August 6, 1991 Bermudez was arrested, and Detective Massanova and ADA

10    Rodriguez conducted a videotaped interrogation. Bermudez denied any involvement in the

11    shooting and also denied that he had been at the Marc Ballroom on the night of the

12    shooting. He said that on that night he was driving around in his father’s car looking for

13    girls and stopping to eat at restaurants. Several of Bermudez’s friends also went to the

14    precinct and gave videotaped statements that they had been with him the evening of August

15    3, and that they had not been at or near the Marc Ballroom.

16           ADA Rodriguez interviewed everyone who had viewed the lineup, including those

17    who did not identify Bermudez. According to Rodriguez’s later testimony at a federal

18    habeas corpus hearing, Velasquez said that she saw Bermudez inside the Ballroom before

19    the shooting, and that she saw him reach behind his back for a gun before she heard a

20    gunshot. The ADA also testified at the habeas hearing that Thompson said that he saw

21    Bermudez shoot Blount. After interviewing the witnesses, ADA Rodriguez presented

22    murder charges against Bermudez to a grand jury, using Velasquez and Thompson as

23    witnesses. Bermudez was indicted and brought to trial. The prosecution’s evidence at trial




                                                   5
 1    included testimony from Lopez, Velasquez, Thompson, Kent, and Iyesi. Based on this

 2    evidence, the jury convicted Bermudez.

 3           After the verdict but before sentencing, a private investigator hired by Bermudez’s

 4    family notified Detective Massanova that Lopez had a friend by the name of Luis Munoz

 5    who went by the name of “Wool Lou,” and that Munoz had recently left the state of New

 6    York. Detective Massanova informed ADA Rodriguez of this fact. The sole inquiry

 7    Rodriguez made was to obtain a copy of Munoz’s criminal history. After the conviction,

 8    Bermudez moved to set aside the verdict due to the newly discovered evidence that Luis

 9    Munoz was the real shooter. The judge denied this request, and on September 18, 1992,

10    sentenced Bermudez to a term of 23 years to life in prison.

11           Over the next few years Bermudez brought four different motions in state court,

12    under New York Crim. Proc. Law § 440.10, seeking relief from his conviction. These

13    motions were denied. Notably, in connection with these motions the five principal trial

14    witnesses – Lopez, Velasquez, Thompson, Kent, and Iyesi – all recanted their previous

15    testimony and proffered affidavits stating that they did not believe Bermudez was the

16    shooter.

17           On June 28, 2000, Bermudez filed a petition for a writ of habeas corpus in the United

18    States District Court for the Southern District of New York, claiming that his conviction

19    was based on perjured testimony and that his due process rights were violated by

20    impermissibly suggestive identification procedures. Magistrate Judge Kevin N. Fox held a

21    hearing at which the trial witnesses, Detective Massanova, Detective Lentini, ADA

22    Rodriguez, and the trial judge all testified. Magistrate Judge Fox found that the photograph

23    identification procedures were “impermissibly suggestive and conducive to irreparable




                                                    6
 1    misidentification.” Bermudez v. Portuondo, No. 00-4795, 2004 U.S. Dist. LEXIS 5427, at

 2    *102 (S.D.N.Y. Mar. 29, 2004).

 3           He also found, however, that Bermudez could not establish a due process violation.

 4    The Magistrate Judge concluded this based on the witnesses’ detailed testimony at trial that

 5    they had seen Bermudez, on Lopez’s testimony about personally knowing Bermudez, and

 6    on his own determination that the witnesses were not credible both when they said their

 7    testimony had been coerced and when they sought to recant that testimony.

 8           District Court Judge Loretta Preska adopted Magistrate Judge Fox’s report and

 9    recommendation in its entirety. Both the District Court and the Second Circuit denied

10    Bermudez’s motions for a certificate of appealability.

11           In October 2008, Bermudez filed another motion in state court under New York

12    Crim. Proc. Law § 440.10 to vacate his conviction. The motion was heard by New York

13    State Supreme Court Justice John Cataldo. In connection with this motion, the Manhattan

14    District Attorney’s Office conceded not only that Lopez had testified falsely when he

15    identified Bermudez as “Wool Lou” at trial, but also that Luis Munoz was the real “Wool

16    Lou.” Justice Cataldo thereupon found that Bermudez was innocent, and that relief was

17    warranted. People v. Bermudez, 906 N.Y.S.2d 774 (N.Y. Sup. Ct., Nov. 9, 2009).

18           Justice Cataldo additionally found that there had been a strong factual basis for the

19    mistaken identification because Bermudez and Munoz looked alike, and that the post-trial

20    recantations of Kent, Iyesi, Velasquez, and Thompson were all credible. Moreover, the

21    Justice concluded that the photograph identification procedures were impermissibly

22    suggestive based on the following facts: 1) that a joint description of the shooter was initially

23    obtained from all of the witnesses together, 2) that Velasquez, who picked the photograph of




                                                     7
 1    Bermudez out of the police files, showed that photograph to the other witnesses and the

 2    witnesses discussed it, 3) that the detectives immediately ended the viewing procedure after

 3    Velasquez handed them the photograph of Bermudez, 4) that Detective Massanova

 4    instructed the witnesses viewing the photo array that they should “decide which one you

 5    think is responsible,” and 5) that the witnesses were shown Bermudez only a) in a

 6    photograph and b) seated in a lineup, which prevented them from seeing his actual size.

 7    Justice Cataldo vacated the judgment of conviction, and Bermudez was released.

 8           Bermudez subsequently brought this action for damages under 42 U.S.C. § 1983 and

 9    state common law. The District Court (Preska, C.J.) granted Defendant police officers’

10    motion for summary judgment. Bermudez appeals.

11                                      II.    DISCUSSION

12           We review a grant of summary judgment de novo. Amerex Grp., Inc. v. Lexington Ins.

13    Co., 678 F.3d 193, 199 (2d Cir. 2012). On appeal, the non-moving party must show that

14    there is a genuine dispute as to material facts. Niagara Mohawk Power Corp. v. Jones Chem.,

15    Inc., 315 F.3d 171, 175 (2d Cir. 2003). “To defeat summary judgment . . . non-moving

16    parties ‘must do more than simply show that there is some metaphysical doubt as to the

17    material facts’ and they ‘may not rely on conclusory allegations or unsubstantiated

18    speculation.’” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (citations

19    omitted).

20       A. There are genuine issues of material fact concerning violations of due process
21 
22           Bermudez asserts a number of due process claims against the investigating police

23    officers under 42 U.S.C. § 1983, alleging that they used unconstitutionally suggestive




                                                   8
 1    identification procedures and that they coerced witnesses.2 The District Court found that no

 2    due process claim could be maintained against the officers because the prosecutor’s

 3    independent decision to bring charges was an intervening cause that cut off liability. Thus,

 4    according to the District Court, even if Defendant police officers coerced witnesses and used

 5    improper identification procedures, these actions did not proximately cause the loss of

 6    Bermudez’s due process rights because ADA Rodriguez separately decided to use the

 7    evidence at trial.

 8                  In so finding, the District Court relied on this Court’s decisions in Townes v. City of

 9    New York, 176 F.3d 138 (2d Cir. 1999) and Wray v. City of New York, 490 F.3d 189 (2d Cir.

10    2007). In Townes the plaintiff brought a § 1983 action against an officer who had performed

11    an unlawful search of the plaintiff and of the vehicle in which he was riding. This Court

12    found that the officer’s search – even if illegal – was not a proximate cause of the plaintiff’s

13    conviction and incarceration because the trial court’s independent refusal to suppress the

14    evidence constituted a superseding cause. Townes, 176 F.3d at 146. Similarly, in Wray the

15    plaintiff brought a § 1983 claim against an officer who had conducted an unduly suggestive

16    lineup. This Court found that since there was no evidence that the officer “misled or

17    pressured the prosecution or trial judge,” the prosecutor’s subsequent decision to enter the

18    lineup into evidence and the judge’s decision to permit it as evidence constituted

19    superseding causes which let the officer off the hook. Wray, 490 F.3d at 193. Based on these
                                                                  
      2
       Defendants assert on appeal that Bermudez is collaterally estopped from arguing that the
      witnesses were coerced, because this testimony was not found credible in the prior federal
      habeas proceeding. But “collateral estoppel is an equitable doctrine – not a matter of
      absolute right. Its invocation is influenced by considerations of fairness in the individual
      case.” PenneCom B.V. v. Merrill Lynch & Co., Inc., 372 F.3d 488, 493 (2d Cir. 2004). Given the
      context and history of this case, in particular that the government conceded Bermudez’s
      innocence after the federal habeas proceeding to which it seeks to have us give preclusive
      effect, we conclude that applying issue preclusion would be inequitable and decline to do so.


                                                                     9
 1    holdings, the District Court concluded that ADA Rodriguez’s decision to introduce the

 2    questionable witness evidence at trial was a superseding cause of the harm resulting from

 3    the alleged due process violations committed by the officers.

 4           Bermudez contends, however, that summary judgment should not have been granted

 5    on the ground that ADA Rodriguez’s decision to prosecute was a superseding cause of the

 6    harm Bermudez suffered. Bermudez asserts that there are triable issues of fact as to whether

 7    ADA Rodriguez was misled into thinking that the witness identifications had been

 8    legitimately procured. And Defendants can be held liable for violating Bermudez’s due

 9    process rights if they “misled or coerced the intervening decision-maker such that the

10    decision-maker’s conduct was tainted.” Wray, 490 F.3d at 195; accord Townes, 176 F.3d at

11    147.

12           Moreover, if the ADA was simply not informed of the alleged problems with the

13    evidence, then he could not be a superseding cause of the deprivation of Bermudez’s due

14    process rights. See Myers v. County of Orange, 157 F.3d 66, 73-74 (2d Cir. 1998) (holding that

15    a prosecutor’s exercise of independent judgment was not a superseding cause where the

16    prosecutor was constrained by the police department’s failure to investigate certain claims).

17    And if the ADA’s decision to prosecute Bermudez is not a superseding cause, then a jury

18    could find that Defendants’ procedures for producing witness evidence proximately caused

19    the alleged rights violations. Cf. Zahrey v. Coffey, 221 F.3d 342, 357 (2d Cir. 2000) (noting the

20    existence of a “right not to be deprived of liberty as a result of any government officer’s

21    fabrication of evidence”). As a result, even if it is undisputed that ADA Rodriguez

22    independently decided to present the witness evidence at trial, Bermudez can still pursue a




                                                     10
 1    claim against the investigating officers for depriving him of due process rights if the ADA

 2    was not informed of constitutional errors in how the witness evidence was obtained.

 3           Bermudez makes two factual arguments in support of his claim. First, he contends

 4    that ADA Rodriguez was never informed about the unduly suggestive procedures that were

 5    used during the photograph identification and array. Second, he points to a discrepancy

 6    between Lopez’s affidavits seeking to exonerate Bermudez and a statement Detective

 7    Massanova made to ADA Rodriguez at the time that the ADA first questioned Lopez.

 8    Lopez asserted in his “exonerating” affidavits that he had been coerced into identifying

 9    Bermudez with a threat of prosecution. But, during Lopez’s earlier videotaped statement

10    taken by Massanova and Rodriguez, Massanova tells Rodriguez that Lopez had identified

11    Bermudez quickly and voluntarily. In particular, Massanova says that Lopez had “indicated

12    [Bermudez’s photo] before I opened [the photo array] up.” Joint App’x at 894-95. This,

13    Bermudez argues, would allow a jury to conclude that ADA Rodriguez was misled by

14    Detective Massanova into believing Bermudez was guilty, and that the ADA decided to

15    proceed on that basis.

16           The District Court determined that ADA Rodriguez could not have been misled,

17    because he participated in the investigation. The Court noted that Rodriguez interviewed all

18    of the witnesses who had viewed the lineup, that several of these witnesses divulged doubts

19    about Bermudez being the shooter, and that ADA Rodriguez nonetheless brought the case

20    to the grand jury and to trial. We believe, however, that a reasonable jury could still find

21    that ADA Rodriguez’s decision to prosecute Bermudez could have been proximately caused

22    by the officers’ conduct.




                                                  11
 1           ADA Rodriguez was not present at the photo array viewing, nor was he present

 2    when Detective Massanova originally interrogated Lopez. If the ADA took as true what

 3    Massanova told him about Lopez’s early and supposedly totally voluntary identification, he

 4    might have been led to conclude, incorrectly, that any defects in the witnesses’

 5    identifications were minor matters and for that reason could be ignored.

 6           Moreover, it is also possible that ADA Rodriguez was misled about this evidence in

 7    another way that was not cured by his own subsequent interrogation of the witnesses. Once

 8    the witnesses had adopted a story – either because of a suggestive presentation of

 9    photographs or because of more overt coercion by the officers – they might very well have

10    decided to stick with that story (or become convinced that it was true), and for that reason

11    have misinformed the ADA when he subsequently questioned them. See, e.g., Maria S.

12    Zaragoza, Robert F. Belli, & Kristie E. Payment, Misinformation Effects and the Suggestibility of

13    Eyewitness Memory, in DO JUSTICE AND LET THE SKY FALL: ELIZABETH F. LOFTUS AND HER

14    CONTRIBUTIONS TO SCIENCE, LAW, AND ACADEMIC FREEDOM (Garry & Hayne eds., 2006)

15    (reviewing numerous empirical studies showing that suggestive forensic interview practices

16    create a “misinformation effect” whereby witnesses report remembering events that they

17    never saw).

18           Accordingly, we conclude that a jury could find that Defendants’ alleged failure to

19    inform ADA Rodriguez about problems in the initial questioning of these witnesses could

20    have prevented ADA Rodriguez from making an informed decision about the reliability of




                                                     12
 1    that evidence.3 And this would mean that a jury could find that Defendants remained a

 2    proximate cause of the deprivation of Bermudez’s due process rights.4

 3                  In sum, there are triable issues of fact concerning whether ADA Rodriguez’s decision

 4    to bring charges was tainted by misleading information about how the witnesses originally

 5    came to identify Bermudez as the shooter. It was therefore error to grant summary judgment

 6    to Defendants on Bermudez’s due process claims.5

 7           B. There are no genuine issues of material fact concerning malicious prosecution
 8 
 9                  Bermudez also asserts a malicious prosecution claim under New York law against

10    the investigating officers. Bermudez must satisfy four elements to succeed on this claim: 1)

                                                                  
      3
        Bermudez also challenges the District Court’s holding that Defendants are nevertheless
      entitled to qualified immunity. For the reasons discussed above, we find that there are
      genuine issues of material fact as to whether an officer of reasonable competence could have
      believed that the manner in which the photo array, lineup, and interrogation of Lopez were
      conducted did not violate Bermudez’s rights. See Weaver v. Brenner, 40 F.3d 527, 537 (2d Cir.
      1994) (“Review of this record leads us to conclude that there are genuine issues of material
      fact as to whether defendants engaged in the alleged coercive conduct. Since defendants
      hotly dispute plaintiff’s allegations, a factual determination of their conduct is needed to
      resolve the issue of qualified immunity.”). Cf. Higazy v. Templeton, 505 F.3d 161, 177-78 (2d
      Cir. 2007). Accordingly, we reverse the District Court’s grant of qualified immunity to
      Defendants.
      4
        Bermudez additionally brings a due process claim under Brady v. Maryland, 373 U.S. 83
      (1963), arguing that Defendant police officers misled ADA Rodriguez as to the nature of the
      photo identification procedures and the fact that Lopez’s testimony was coerced. Bermudez
      contends that these facts should have been disclosed to him. Police officers can be held
      liable for Brady due process violations under § 1983 if they withhold exculpatory evidence
      from prosecutors. Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 1992). Thus the
      same disputed issues of material fact exist concerning Bermudez’s Brady claim. If the
      prosecutor was not informed about this evidence, then Defendant officers could be found to
      have been a proximate cause of these asserted due process violations as well.
      5
        Defendants appear to argue that Bermudez’s due process claims fail because there was
      probable cause to bring an indictment. But the absence of probable cause is not an element
      of a due process claim. See Poventud v. City of New York, 750 F.3d 121, 134 (2d Cir. 2014) (en
      banc) (distinguishing the elements of malicious prosecution from those of other due process
      claims); Alexander v. McKinney, 692 F.3d 553, 556-57 (7th Cir. 2012) (listing the elements of
      a malicious prosecution claim and the elements of a due process claim under Brady, and
      naming lack of probable cause as a requirement only of the former).


                                                                     13
 1    that Defendants either commenced or continued a criminal proceeding against him, 2) that

 2    the proceeding terminated in his favor, 3) that there was no probable cause for the criminal

 3    proceeding, and 4) that the criminal proceeding was instituted with actual malice. Russo v.

 4    New York, 672 F.2d 1014, 1018 (2d Cir. 1982). While police officers do not generally

 5    “commence or continue” criminal proceedings against defendants, a claim for malicious

 6    prosecution can still be maintained against a police officer if the officer is found to “play[]

 7    an active role in the prosecution, such as giving advice and encouragement or importuning

 8    the authorities to act.” Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010)

 9    (quoting Rohman v. New York City Transit Authority, 215 F.3d 208, 217 (2d Cir. 2000)). This

10    element might be satisfied by, for example, showing that an officer generated witness

11    statements or was regularly in touch with the prosecutor regarding the case. Id.

12           Bermudez’s claim for malicious prosecution fails at the summary judgment stage,

13    because no facts in dispute support a lack of probable cause to charge him with the relevant

14    crime. Where, as here, a grand jury indicted the plaintiff on the relevant criminal charge,

15    New York law creates a presumption of probable cause that can only be overcome by

16    evidence that the indictment “was the product of fraud, perjury, the suppression of evidence

17    by the police, or other police conduct undertaken in bad faith.” Green v. Montgomery, 219

18    F.3d 52, 60 (2d Cir. 2000) (quoting Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996));

19    accord Gisondi v. Town of Harrison, 532 N.Y.S.2d 234, 236 (1988). Bermudez argues that the

20    indictment was the product of police suppression of evidence, because Defendant officers

21    failed to disclose the evidentiary problems to ADA Rodriguez.

22           We need not decide this issue, however, because ADA Rodriguez interviewed the

23    two witnesses who testified at the grand jury hearing – Thompson and Velasquez.



                                                    14
 1    Thompson told ADA Rodriguez, and then testified at the grand jury hearing, that he saw

 2    Bermudez shoot the victim. Velasquez told ADA Rodriguez, and then testified at the grand

 3    jury hearing, that she saw Bermudez reach behind his back for a gun. Even if the ADA had

 4    been misled about the overly suggestive photo identification and array procedures and about

 5    the alleged coercion of Lopez, these interviews provided ADA Rodriguez with probable

 6    cause to prosecute Bermudez. Because we find that probable cause existed to indict

 7    Bermudez, we do not reach the other elements of Bermudez’s malicious prosecution claim

 8    against Defendant officers.

 9                                      III.      CONCLUSION

10           For the foregoing reasons, we AFFIRM the judgment of the District Court insofar as

11    it grants summary judgment to Defendants on Plaintiff’s malicious prosecution claims,

12    VACATE the judgment of the District Court insofar as it grants summary judgment to

13    Defendants on Plaintiff’s due process claims, and REMAND the case for further

14    proceedings consistent with this opinion.




                                                    15
