City Bid For Immunity For Officers' Grand Jury Appearance Is Denied

John CaherNew / York Law Journal / 08-01-2012

A recent U.S. Supreme Court holding that grand jury witnesses are entitled to absolute immunity from a civil rights action will not shield a police officer accused of malicious prosecution where the officer initiated the case by signing a criminal complaint, a federal judge in Brooklyn has held.

Eastern District Judge Raymond Dearie (See Profile) said an officer cannot "escape liability merely by securing an appearance before a grand jury" and rejected an argument advanced by New York City's Law Department in the wake of Rehberg v. Paulk, 132 S. Ct. 1497 (April 2).

In Rehberg, the high court unanimously held that a complaining witness in a grand jury proceeding is cloaked with the same shield of absolute immunity in a 42 U.S.C. §1983 action as a trial witness.

Shortly after Rehberg was decided, the city began arguing that its police officers are absolutely immune from malicious prosecution liability if they testified before a grand jury.

But Dearie said the city's "attempt to convert grand jury testimony into an all-purpose shield" would "allow any police officer—regardless of the extent of their involvement in laying the groundwork for an indictment—to escape liability merely by securing an appearance before a grand jury."

Richard Cardinale, a civil rights attorney in Brooklyn who was not involved in the case addressed by Dearie, said the city has been routinely attempting to get malicious prosecution claims thrown out under its reading of Rehberg.

"What the city is saying basically is that even if the city initiates the prosecution by going to the D.A., filling out the paperwork, signing the complaint, as long as you go to the grand jury you are protected from everything you did prior to that," Cardinale said. "That is ridiculous."

Celeste Koeleveld, executive assistant for public safety in the Corporation Counsel's office, said that was not the city's position in the case before Dearie, Sankar v. City of New York, 07-cv-4726, or any other case.

"Our argument in the Sankar case had to do with the anomaly and unfairness in holding a police officer responsible for initiating a prosecution and not the prosecutor, who enjoys absolute immunity," Koeleveld said. "I think there are parts of Rehberg that you can read as agreeing with that sympathy…We thought Rehberg counseled against finding that the officer initiated the prosecution."

The matter before Dearie stemmed from a landlord-tenant dispute in Queens that resulted in two allegedly false reports to police and the landlord's arrest on charges of assault, harassment and contempt. All of the charges against the landlord, Marlene Sankar, were dismissed. She then initiated an action against the city and various officers and other officials.

In late March, just days before Rehberg was decided, Dearie partially granted the city's summary judgment motion and dismissed most of the claims. But the judge allowed some of the claims, including a malicious prosecution claim against Officer Greg Ostrowski of the 103rd precinct, to go forward.

Under the law, a plaintiff in a malicious prosecution matter must establish that the defendant initiated or continued a criminal action against the plaintiff, that the matter was resolved in the plaintiff's favor, that there was no probable cause for the proceeding, and that the proceeding was maliciously instituted. Dearie said Ostrowski's signing of the criminal complaint satisfied the initiation prong of the malicious prosecution claim, at least to the extent of surviving a summary judgment motion.

After Rehberg was decided, the city moved for reconsideration on several grounds, all of them rejected by Dearie.

One of the arguments the city advanced was that by appearing before the grand jury Ostrowski—because of the Rehberg decision—obtained absolute immunity not only for what he told the grand jury, but also for any culpability that might attach through his signing of the criminal complaint.

Sankar's attorney, Alena Shautsova of the Law Offices of Anthony J. Colleluori in Melville, argued in response that Ostrowski did more than testify before the grand jury and that by signing the complaint he exposed himself to malicious prosecution liability, notwithstanding Rehberg. Dearie agreed and found Rehberg inapplicable.

"Rehberg did not alter controlling Second Circuit (and New York) law that an officer's filing of a sworn complaint is sufficient to satisfy the initiation prong of a malicious prosecution claim," Dearie wrote. "Ostrowski's testifying at the grand jury was but one additional step the officer took in his effort to push the case against plaintiff forward."

Shautsova said in an interview that if the city prevailed, "then any officer [who goes before the grand jury] is immune." That, she said, "cannot be allowed."

Koeleveld stressed that the city did "not go that far" in its reading of Rehberg.

"I don't think we have made the argument that an officer is immune from every conceivable civil rights claim…because he sets foot in the grand jury," Koeleveld said. "What we have said is that Rehberg counsel's against holding a police officer accountable for initiating a prosecution where he is essentially the one left holding the bag. I think there is an unfairness in that that I think Rehberg recognizes."

The city was represented by Baree Fett, Brian Francolla and Noreen Stackhouse of the Law Department.

(C) New York Law Journal

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