Malicious prosecution case will go to trial

I have seen false arrest and malicious prosecution cases come and go in the Court of Appeals, which often dismisses such claims upon the finding that the police had probable cause to arrest the plaintiff, a solid defense to these cases. In this case, however, the Court of Appeals reinstates a malicious prosecution claim because the jury may find there was no probable cause to arrest the plaintiff.

The case is Kee v. City of New York, issued on August 30. Kee was arrested on drug charges after the detective claimed to see him smoking marijuana in a motor vehicle. Kee says he was never in the car and was not using drugs in or near the car. The detective's "observation" formed the basis for Kee's arrest, as he provided the "information" the prosecutor needed to proceed with the charges against Kee, which were ultimately dismissed on speedy-trial grounds. 

When the charges are dismissed, that opens the door for a federal lawsuit. A federal judge in White Plains used to say that all the time. But that is not always the case. If the police have "arguable" probable cause, there is no false arrest or malicious prosecution case. To win the case, the plaintiff essentially has to show he was set up or that the police were lying or that his conduct did not come close to a criminal violation.

The district court dismissed the malicious prosecution claim, ruling there were no disputed facts on probable cause. The Court of Appeals (Bianco, Lohier and Abrams [D.J.]) disagrees, and we've got ourselves a trial here. 

Plaintiff makes the case that the detective lacked probable cause in a common-sense and simple way: he argues he was never in the car that day, he was not using drugs that day, and his cell phone that the detective claimed to find in the car was actually taken from his person. In other words, plaintiff says, he did not commit any crime and was not even at the scene of the crime. "If the testimony of Kee and Tavares [the owner of the car] is credited, . . . there is insufficient evidence in the record from which a rational jury could find that probable cause to prosecute Kee for the drug offenses was lacking."

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