John Mara v. Stephen Rilling, Edward Nook, Frederick Hine

On interlocutory appeal from an order denying summary

judgment entered in the United States District Court for the District

of Connecticut (Chatigny, J.), defendants contend that they are

entitled to qualified immunity from plaintiff’s suit charging them

with violating the United States Constitution and Connecticut state

law in investigating and arresting plaintiff for assaulting a guest at a

college New Year’s Eve party. Defendants prevail because (1) plaintiff

was not under arrest when interviewed by police on January 2, 2013,

and, thus, police did then not need probable cause to question him;

(2) probable cause for plaintiff’s February 22, 2013 arrest warrant was

established by a non‐defective eyewitness identification without

regard to plaintiff’s allegedly coerced statements; (3) plaintiff’s

statements not being necessary to establish probable cause, he cannot

claim their use in violation of the Fifth Amendment; and (4) the police

procedures used at plaintiff’s interview were not so egregious or

shocking as to violate Fourteenth Amendment due process or to

support a state claim for intentional infliction of emotional distress.

REVERSED.



* * *



Plaintiff John Mara (“Mara”) sued Fairfield, Connecticut police

officials Stephen Rilling, Edward Nook, and Frederick Hine

(appellants here) as well as other members of that police department

and the Fairfield University Security Office, for alleged violations of

the Constitution and state law in connection with a 2013 investigation

that led to Mara being criminally charged with assault and disturbing

the peace, charges that were eventually dismissed. Specifically, Mara

sued defendants for false arrest, coercive interrogation, and malicious

prosecution in violation of the Fourth, Fifth, and Fourteenth

Amendments, see 42 U.S.C. § 1983, as well as for parallel state law

claims of false arrest, false imprisonment, malicious prosecution, and

intentional infliction of emotional distress. Defendants Rilling, Nook,

and Hine here appeal from that part of an order entered in the United

States District Court for the District of Connecticut (Robert Chatigny,

Judge) on September 30, 2017, which denied them summary judgment

based on qualified immunity. See Mara v. MacNamara, No. 14‐cv‐1095,

2017 WL 4368612 (D. Conn. Sept. 30, 2017).1

For the reasons stated herein, we conclude that the record,

viewed most favorably to Mara, demonstrates defendants’

entitlement to qualified immunity as a matter of law because (1) Mara

was not under arrest when initially interviewed by the police on

January 2, 2013, and, thus, police did not then require probable cause

1 The district court granted summary judgment to Fairfield Police Chief Gary MacNamara,

Lieutenant Michael Gagner, Sergeant Anthony Granata, and Detective Jason Takacs. See

Mara v. MacNamara, 2017 WL 4368612, at *7–8. Plaintiff does not challenge that decision

here and, thus, we have no occasion to review it now. The remaining defendants, Fairfield

University and its employee Patrick Cleary, were earlier dismissed by stipulation on

February 11, 2016. Accordingly, this opinion hereafter uses “defendants” to reference only

appellants Rilling, Nook, and Hine.

4

to question him; (2) probable cause for the February 22, 2013 warrant

authorizing Mara’s arrest was established by a non‐defective

eyewitness identification without regard to Mara’s allegedly coerced

statements; (3) Mara’s statements not being necessary to establish

probable cause, he cannot claim their use in violation of the Fifth

Amendment; and (4) the police procedures employed during Mara’s

interview were not so egregious or shocking as to violate Fourteenth

Amendment due process or to support a claim for intentional

infliction of emotional distress. Accordingly, we reverse the

challenged order, and direct the entry of judgment in favor of

defendants.

BACKGROUND

Because Mara claims that police acted unlawfully—even

shockingly—in conducting the investigation leading to his arrest and

prosecution, we discuss that conduct in some detail preliminary to

explaining why Mara’s claims fail. The following facts are undisputed

or viewed in the light most favorable to Mara.

I. The Blackman Assault and Initial Investigation

In the course of a 2012 New Year’s Eve party held at a private

home in Fairfield, Connecticut, and attended mostly by vacationing

college students, someone hit Philip Blackman in the head with a

large bottle, fracturing his skull and causing a severe brain

hemorrhage.

While Blackman was undergoing surgery on the morning of

January 1, 2013, his father reported the attack to Fairfield police,

prompting defendants Rilling and Nook to respond to St. Vincent

Hospital. The detectives there spoke with three of Blackman’s

friends—Dennis DePalmer, Dan Langlais, and James Hansen—who

5

stated that, at about 12:30 a.m., they had seen unknown persons

shoving Blackman out of the house where the party was being held.

Langlais went to his friend’s aid, but when the fracas ended,

Blackman was lying on the ground unconscious. None of the three

friends had direct knowledge of how Blackman was injured. They

could report only that they had heard “[s]omeone” at the party state

that Blackman had been hit over the head with a bottle by “Jack

Mara,” the plaintiff, who was then a senior at Fairfield University.

App’x 404–05.

Rilling and Nook then proceeded to 1027 Fairfield Beach Rd.,

the site of the party, and spoke with its host, Rachel Chase. Chase

told the detectives that various uninvited persons had arrived during

the party and that things had gotten out of hand, with someone whom

she did not know being hit over the head with a bottle.

At the Chase residence, the detectives also spoke with David

O’Brien. He reported attending the prior night’s party with his

brother Darren. Darren had recovered the black Freixenet champagne

bottle used to hit Blackman, which David O’Brien produced for the

police later that day. Meanwhile, David O’Brien stated that another

party guest, Luke Kazmierczak, had actually witnessed the Blackman

assault.

Later on January 1, Darren O’Brien went to the Fairfield police

station where he told Rilling that, at the prior night’s party, shortly

after midnight, he observed an altercation among people he did not

know. At some point, he saw a champagne bottle roll on the ground

and heard people yelling that someone had been hit with the bottle.

Seeing Blackman, a friend of his brother David’s, lying on the ground,

Darren O’Brien grabbed the bottle and gave it to his brother for safe

keeping. Darren O’Brien told Rilling that his friend, Luke

6

Kazmierczak, had witnessed Blackman’s assault and that

Kazmierczak and the O’Brien brothers had given chase when the

assailant started running from the party down Fairfield Beach Rd. On

that road, the O’Briens and Kazmierczak encountered a group of men

walking toward the party. One man was shirtless, and Kazmierczak

identified him to the O’Briens as the person who had hit Blackman

with a bottle.

On January 1, Kazmierczak, a student at the University of

Wisconsin, came to the Fairfield police station and confirmed that he

had seen the prior night’s assault on Blackman. He described the

assailant as a white male in his 20s, with short, dark hair, who ran east

on Fairfield Beach Rd. towards Reef Rd. As Kazmierczak and the

O’Brien brothers gave chase, they saw persons walking toward the

party. Kamierczak recognized one of the men—who was shirtless,

highly intoxicated, and acting out of control—as Blackman’s

assailant. Shown a six‐photo array that included Mara’s four‐year old

freshman photograph, Kamierczak identified another individual as

Blackman’s assailant, reporting 70% certainty. Police contacted that

person and determined that he was not at the Chase party.

II. Mara’s Police Interview

On the evening of January 1, Mara’s mother called the Fairfield

police to report that her son was receiving threatening text messages

from Blackman’s friends, accusing him of committing the New Year’s

Eve assault. Mara then also spoke with Rilling, and the two agreed to

meet at the Fairfield police station the next day at 5:00 p.m. Prior to

the meeting, William Heller, an attorney for Mara’s father, called

Rilling. Rilling told Heller that the police viewed Mara as a witness,

not a target, and that Mara did not need an attorney at the meeting.

7

Heller told Rilling that Mara’s father would likely accompany his son

to the meeting.

On January 2, rather than wait for Mara to come to the police

station, Rilling, Nook, and their supervisor, defendant Sergeant Hine,

went to Fairfield University at approximately 4:00 p.m., deciding it

would be to their advantage to interview Mara there. The officers

were dressed in plain clothes and, although armed, none ever

displayed a weapon in dealing with Mara that day. As Mara emerged

from class, he saw police cars parked behind his own vehicle.

Defendants, along with University Safety Officer Patrick Cleary,

approached Mara and asked if they could speak with him on campus

rather than later at the police station. Mara agreed, traveling to the

university’s Public Safety Office in Cleary’s vehicle.2 Defendants told

Cleary not to let Mara use his cell phone en route.3

At the Public Safety Office, Mara was interviewed in a small

room, with Rilling and Nook at a table and Mara seated in a corner.

Hine observed the interview on a computer in an adjacent room. The

entire exchange lasted approximately one hour and twenty minutes

and was videotaped. The tape shows that Mara was never restrained

or subjected to any physical force during the interview and that he

and the officers maintained calm demeanors throughout.

2 Detective Rilling testified at his deposition that he offered Mara the choice of driving

himself to the Public Safety Office or having School Officer Cleary drive him, and that

Mara chose the latter. Because it is not clear from the record whether this fact is disputed,

we accord it no weight in viewing the facts most favorably to Mara.

3 Although Sergeant Hine disputes such an order, in viewing the facts most favorably to

Mara, we assume it was given. We note only that nothing in the record indicates whether

Mara ever sought to use his cell phone when with the police on January 2.

8

At the outset, defendants obtained basic pedigree information

and photographed Mara—explaining that “so many people” were at

the New Year’s Eve party under investigation that “we’re just taking

a picture of everybody.” App’x 353.4 Rilling then advised Mara that

he did not have to talk with the officers and could leave at any time.5

Mara indicated that he understood. At no time thereafter did Mara

decline to answer questions or seek to leave.

Asked to recount what he had heard about the events of New

Year’s Eve, Mara stated that he had “heard that a kid got knocked out,

with maybe a beer bottle,” but professed not to know much about the

assault except that the victim’s friends “were really upset that night

[be]cause they thought that I [i.e., Mara] did it.” Id. at 354–55. Mara

said that why they thought he did it “is beyond me.” Id.

Mara told police that he first learned that he was the suspected

assailant when he was leaving the party, at which time other

partygoers came up to Mara, his older brother Sean, and three friends,

“[g]etting in our face, saying that I did it” and was “dead.” Id. at 355–

56.6 Sean Mara tried to defuse the situation, assuring the accusers that

his brother “had nothing to do with” the assault. Id. Mara

acknowledged that he was himself “yelling back” at the crowd, which

4 In some instances, what can clearly be heard on the videotape differs from the transcript

provided to the court. The discrepancies are of no import to this decision. Except as

otherwise noted all quotations in this opinion derive from the videotape itself.

5 Specifically, Rilling told Mara: “You know that you can get up any time to leave. You

don’t have to talk to us. You can just say ‘I don’t want to talk to you anymore,’ get up and

leave and no matter what.” App’x 354.

6 Mara subsequently provided defendants with the name of these friends, who were

interviewed by the police.

9

got his brother “really . . . upset.” Id. at 355. Eventually, Mara and his

friends walked away, going to a friend’s house.

Mara told defendants that he, his brother, and their friends had

arrived at the party around 1:00 a.m., and remained only about

twenty minutes. Mara stated that he had already had “a lot” to drink

at an earlier party and at a local bar. Id. at 357. He had no recollection

of seeing an argument at the party, explaining that “[e]ven when my

brother said that to me. I um, I don’t know, I don’t remember it. . . .

I don’t know if it’s because I drank so much, but I just don’t remember

it.” Id. at 358. Mara stated that it was only the next day, in speaking

with his roommate, that he learned that “this kid Phil,” whom Mara

had met “once or twice,” had been hit with a bottle, and that Phil’s

friends, who thought Mara had done it, were asking for his cell phone

number and the kind of car he drove in order to “vandalize” it. Id. at

359. Mara insisted he had “no idea” how he came to be suspected of

the assault, id. at 363, a position he maintained throughout the

interview. Specifically, he did not know “how someone could think

that it was me if the kid was knocked out before I even got to that

house. How my name was brought into it with all these kids there, I

don’t know.” Id. at 362.

At about that time—some twenty minutes into the interview—

Rilling told Mara that, although the police were “not accusing [him]

of anything,” he needed to understand that the interview was “the

only opportunity” he had to volunteer an account of the prior night’s

events. Id. at 363. Thereafter, police would examine evidence,

including any videotapes of the party and any fingerprints on the

bottle used in the attack, and if it incriminated Mara, he could be

10

arrested.7 Rilling then went further and stated that witnesses had

already identified Mara as Blackman’s assailant: “Do you realize that

there’s people that don’t even know you that picked you out of a

lineup?” Id. at 365. That was not the case. Indeed, defendants knew

that the only then‐known eyewitness to the assault, Luke

Kazmierczak, had not identified Mara when shown his photograph in

an array.

Defendants then asked Mara about the threatening calls he had

received. He reported that when one caller told him “you[’re] dead,”

Mara stated: “I don’t know why you guys think that I hit your friend

but I didn’t do that,” to which the caller replied, “we have witnesses”

and threatened Mara with a beating “real soon” before hanging up.

Id.

Rilling reiterated that the interview was Mara’s opportunity to

“wipe the slate clean” and to admit “‘I got into a fight and hit him [i.e.,

Blackman] with a bottle.’” Id. at 366. Rilling explained why it was

important that Mara “be truthful” now: “[I]f for some reason this did

happen, it just looks better to say ‘you know what, . . . I did this thing

[i.e., hit Blackman with a bottle]; I don’t act this way when I’m [not]

drunk’”; it would “look[] a lot worse” if “it took 5 times” before Mara

“came clean” because that would suggest he had “no remorse.” Id.

Rilling then suggested that Mara might not remember

everything that happened the night before because he had been

drinking—a point Mara himself had made earlier. See supra at 9. Mara

agreed that sometimes he did not have a full memory of times when

he was drinking, but he rejected Rilling’s suggestion that he might be

7 As Rilling’s affidavit in support of Mara’s arrest warrant would subsequently report, no

fingerprints were recovered from the bottle.

11

an angry drunk, saying, “I just have a lot of fun when I drink.” Id. at

366–67.

Rilling told Mara that “everything” police had so far was

“pointing to” him as Blackman’s assailant, and if Mara “just [kept]

saying ‘I didn’t do it, I didn’t do it, I didn’t do it,’ it’s not going to look

good.” Id. at 367. What would “look good” would be if Mara said,

“you know what, you’re right, I f‐‐‐ed up, I can’t believe that it

happened.” Id. Rilling suggested that Mara might simply have been

trying to help out a friend who was caught up in a fight where things

got out of control. He told Mara, “I think you kinda know a little bit

more than you’re saying, and I want you to understand why we’re

trying to talk to you here and why we’re spending the time.” Id.

Mara replied that he “respect[ed] that but—,” whereupon

Rilling changed course and asked Mara about his clothing on New

Year’s Eve. Id. Mara described khaki pants and a gray‐striped black

shirt, but stated that he was bare‐chested walking to the party because

his shirt was wet from a spilled drink.8

After the detectives asked, and Mara responded to, more

questions about the party and its aftermath, Nook again told Mara

that police would be checking area surveillance cameras for

depictions of the Blackman assault, and reiterated the importance of

Mara not waiting until the police developed evidence to arrest him

before providing a truthful account of the night’s events. Nook

indicated (1) that it would hardly be unusual for a young man who

was drinking to get into a fight, (2) that judges presented with such a

situation would take into account that the young man was a college

8 This comported with Kazmierczak’s report of a shirtless assailant.

12

student with a great career ahead of him, and (3) that police would

“go to bat” for someone who was “a man” and “owned up” to what

he did. Id. at 372. On the other hand, if Mara, with “a straight face”

and no show of emotion, simply insisted over and over again that he

had no role in the fight, it would look like he was “a sociopath,” who

had acted with “an evil mind.” Id.9

Rilling then observed that if Mara were arrested, he would face

felony charges because a bottle used to hit someone over the head

would be considered a deadly weapon. That would mean Mara’s

“career here at school is over” and “probably, actually, not probably,”

he would serve jail time. Id. Rilling stated that “[n]o one wants to see

9 Nook’s statement reads in pertinent part as follows:

I have to go back, go to the house and look at the surveillance. . . . So . . .

this is the chance to say—everyone at a certain point in time that’s

probably a young man drinks and gets into fisticuffs. You know

sometimes it just ends up a little sh‐‐‐‐er than others and it’s New Year’s

Eve and there is this bull‐‐‐t fight; whatever, let’s move on. What are you

going to do—apologize to the kid[?] What are you going to do—write him

a love letter? [You want to say] “Let’s move on; I want to finish school and

we’ll be done with this and no one is harassing me and my friends

anymore.” Because we [i.e., the police] called everyone and they don’t

want to be harassed either. So, you know, it just looks that you’re deviant.

People make a decision as a human being; they’re not computers. Judges

are human beings and they take into consideration [the fact that] these are

college kids who are doing well, have a great career and life and

[admitted] “I got drunk. I got into a fight. I got my ass kicked over there.”

But if we go back and she contradicts everything, it just looks like an evil

mindset. Like, “[C]atch me if you can and I’m going to do it again.” It’s

all I’m saying, that we will go to bat for you and say: “F‐‐‐ it, he’s a man.

He owned up.” Our reports are pretty valuable, and you know, [] if she

contradicts you and makes you look bad, we write it up and say, you

know, the kid [is] obviously a sociopath, and he[’s] sitting there with a

straight face, he doesn’t look emotional, he just told me, “no, no, no,” but

evidence showed otherwise. So, I just want to put that out there.

App’x 371–72.

13

this happen.” Id. He suggested that might be avoided if Mara were

to admit, “‘I was a little bit inebriated and I f‐‐‐ed up [and] I’m sorry’”;

Rilling said he could “take that to [Blackman’s] family and they’d be

happy about that.” Id.

Nook then had Mara repeat that accusers were telling him they

had “witnesses” to Mara assaulting Blackman. Id. at 373. Rilling told

Mara that was his problem: witnesses had implicated him in the

assault, and “not just one‐sided witnesses”; neutral witnesses were

“saying ‘it was John, it was John, it was John.’” Id. As earlier noted,

the police then had only hearsay reports of Mara assaulting

Blackman; eyewitness Kazmierczak had not identified Mara from a

photo array. Nevertheless, Rilling told Mara, “We have one side. We

need two sides.” Id. Mara replied, “I’m telling you what I know,” and

indicated he would like to talk to some people about the prior night’s

events, and then contact police later in the day. Id. Rilling told Mara

it was “absolutely fine” for him to speak with other persons, but he

could not promise a second interview opportunity because the police

were “under a time constraint.” Id. at 373–74. Rilling suggested that,

as things stood, Mara was “holding all the weight” for the prior

night’s event. Id. at 374 (“Everybody else pretty much . . . is walking

away.”). Telling Mara, “That’s what we don’t want,” Rilling

hypothesized that Mara might have hit Blackman in response to being

punched himself by some other person. Id.

Rilling then asked Mara if he “fe[lt] comfortable enough to talk

to us about this.” Id. Mara replied, “I think I’d like to talk to some

other people first and then—” Id. Asked with whom he would like to

talk, Mara replied, “my father, possibly a lawyer.” Id. Rilling asked

if Mara was “saying you want to talk to a lawyer right now.” Id. Mara

14

immediately replied, “No, no,” explaining that his particular interest

was in speaking with his brother and friends. Id.

Rilling then reiterated that he could not promise Mara another

interview opportunity because the police were going to be turning

their attention to other aspects of the investigation. Mara responded,

“Well, I told you everything I have now, um, to my fullest.” Id. at 375.

Rilling told Mara that the police “know a lot more than you think we

do,” and suggested that perhaps “[t]here are things that happened

that night that you don’t want to talk about.” Id. Mara asked if Rilling

was referring to “my friend’s girlfriend getting hit in the face” at the

party. Id. Rilling and Nook urged Mara to tell them about that, which

he did, with the detectives’ encouragement.10 But as it became

apparent that Mara was not suggesting that the girlfriend incident

had triggered the Blackman assault, Rilling asked why Mara was even

bringing it up, and challenged him yet again to explain why people

were “picking you out of a lineup saying that you did this.” Id. at 378.

Mara maintained, “I don’t know.” Id.

At that point—about an hour into the interview—Rilling told

Mara that not only was it likely that he would be arrested but also that

he would face harsh jail conditions:

You are going to have to . . . go to court, you [are] going

to have to go [to] Bridgeport. It’s not like you’re going to

somewhere nice. . . . You’re going to Bridgeport court

10 See App’x 375 (“You’re going down the right path now. You’re telling us more stuff. Go

ahead.”); id. at 376 (“Do you feel a weight coming off your shoulders? In the beginning you

were carrying the entire world. This is ridiculous that you are going to . . . carry weight

[you] should be shedding off your shoulder right now. Tell us everything else.”); id. at 377

(“I like where you’re going with this because you’re doing the right thing. You’re showing

that Phil was not in the right state of mind, . . . was drunk. He’s as much to blame as

anybody in this party.”).

15

and you’re going to have to hang out with all the people

that are drug addicts, that commit crimes and all that.

There’s a good chance that you are going to get locked

up for a little bit. You’re going to end up with some guy

that killed somebody, that robbed somebody, that likes

to smoke crack, that likes to do drugs and does cocaine,

whatever.

Id.

Rilling told Mara that he did not belong in that scenario: “That’s

not you.” Id. But to avoid those consequences, Mara needed “to make

a decision right now of how we’re leaving this.” Id. Rilling then

stated that he was “getting aggravated” because Mara was “closed

off” and “not wanting to tell” the police what he knew. Id. Mara

repeated that he had told the police “everything I know.” Id. As for

people identifying him, Mara reiterated that he was “not sure” why

they would do so, and stated, “I would love to find out if I actually

did it.” Id.

This prompted Rilling to pose a series of “possibility” questions

to Mara, such as, “[I]s there a good chance you might have done it

and you don’t know[?]” Mara replied, “that could have happened . . .

[b]ecause I was really drunk” and “there’s a shot that I wouldn’t

remember but—” Id. at 378–79. Asked if he was “saying that you were

that drunk that you could have picked up a bottle or had a bottle and

hit somebody over the head with it,” Mara replied, “I was drunk and

I don’t remember some, like a lot of, the night so there’s a chance it

could have happened.” Id. at 379. These responses are the focus of

Mara’s coercion challenge.

Rilling then pressed Mara as to how he could clearly remember

other events of the evening—e.g., arguing with his brother, taking off

his shirt—but not remember hitting someone over the head. Mara

16

stated, “I don’t remember doing that,” i.e., hitting someone over the

head. Id. Both detectives assured Mara that he would “feel so much

better if everything comes out.” Id. Mara replied, “Yea, if I knew that

I did it, I would be a man and say so [and] apologize to the kid. . . . I

would love to do that if I 100 percent kn[e]w I did it.” Id. at 380. Mara

told the officers that if they had “a video o[r] anything” indicating

that he was Blackman’s assailant, he would apologize, but, as for what

he recalled, he “just c[ould]n’t say I did anything.” Id. at 382. The

detectives told Mara that they didn’t want him “found guilty”; what

they wanted was for him “to be a man and be truthful.” Id. They told

him the idea that he “could have done it” but not remembered “is just

not going to work.” Id. Mara responded, “Then that’s all I have to

say. Because that’s honestly all I know.” Id.

Rilling repeated that “impartial people” had inculpated Mara,

that the police were going to get an “arrest warrant” for him, and that

a judge would hear that he had shown “no remorse,” which could

result in his being sentenced to “2 years in jail.” Id. Mara repeated

that if he “100 percent knew he did it,” he would say so. Id. at 383.

Nook asked if Mara “50 percent” knew that he did it. Id. Mara replied,

“I don’t know,” stating that “[f]rom what I’ve been told, I had nothing

to do with it[, b]ut if the people telling me that are telling me that to

look out for me, then that’s wrong.” Id. He again stated, “if I did it

and I knew that I did it, I need to apologize and man up about it.” Id.

at 384. And again, he asked if the police could tell him if they in fact

knew that he did it. Rather than directly answer the question, Nook

stated, “we’re here for a reason. . . . And we’ll leave it at that.” Id.

Nook then raised the possibility that the “evidence” might have

pointed police in the wrong direction, and that Mara’s brother might

be responsible for the assault, at least in part:

17

[I]f the evidence for some reason, for some small reason

has pointed us in the wrong direction, people really need

to man up because you certainly don’t need to carry the

weight if for some reason this evidence isn’t correct. And

it’s not a perfect science but this is where we’re at. If for

some reason your brother has a part in it, I don’t think he

would be comfortable with you taking the fall for

something that maybe he’s a part of.

Id. at 385. Mara replied, “Right, Yea. I would just love to find out

from him if he knows for sure because if I did do this I would be

ashamed of myself.” Id.

The interview concluded with the detectives—in contrast to

their earlier statements about a single interview opportunity—urging

Mara to call them at any time if, upon speaking to other people, he

got some “lightning information.” Id. at 387. As everyone shook

hands, Nook urged Mara to “[d]o the right thing,” observing, “I see

you with a great future.” Id. Mara responded, “I’d love to.” Id.

III. The Second Photo Array

On meeting Mara, defendants concluded that his present

appearance was significantly different from that depicted in his

freshman identification photograph. Accordingly, on January 3, they

arranged for Kazmierczak to view a second six‐photo array, this one

containing Mara’s January 2 interview photograph, instead of his

freshman‐year photograph. Kazmierczak immediately identified

Mara as Blackman’s assailant, this time professing 100% certainty. On

January 4, Kazmierczak signed a sworn statement that he had seen

Mara come up behind Blackman and hit him over the head with a

dark colored bottle.

18

Defendants also showed the new photo array to David O’Brien,

who immediately identified Mara as the person whom Kazmierczak

had identified on January 1 as Blackman’s assailant. On January 4,

O’Brien signed a sworn statement to that effect, adding that he took a

cell‐phone photograph of Mara on January 1 because Kazmierczak

had said he was positive that was who had hit Blackman. David

O’Brien sent Rilling this photograph, which bore a date stamp of

January 1, 2013, at 1:13 a.m. It depicted Mara, wearing a dark shirt

with light stripes.

IV. Further Police Interviews

Over the next two weeks, defendants interviewed other party

guests. On January 3, Jack Hansen, whom police had first

encountered at St. Vincent Hospital, gave a sworn statement that, in

the course of an altercation at the party, he saw a 6‐foot tall white

male, wearing a dark shirt, hit Blackman from behind with a large

champagne bottle and then run down Fairfield Beach Rd. Later that

night, Hansen and his friends would encounter the man, who would

be identified by his brother as “Jack Mara.” Id. at 410.

That same day, defendants interviewed Mara’s roommate

Thomas Freda, who told of how his girlfriend had been hit in the eye

at the party by an extremely intoxicated male who was running

through the crowd with his elbows flared out. Freda confronted the

male, but relented when Rachel Chase said she would ask the man to

leave. Five or ten minutes later, at approximately 12:45 a.m., Freda

saw the man lying on the ground—presumably Philip Blackman.

After leaving the party, Freda encountered John and Sean Mara and

their friends on Fairfield Beach Rd. Freda told Mara about his

girlfriend getting hit, whereupon Freda and his girlfriend went home

and the Mara group continued toward the party. Freda reported that

19

Mara was then “pretty drunk,” and acknowledged that Mara had a

tendency to go overboard when in that condition. Id. at 411.

On January 7, Mara’s friend Kyle Cullam told defendants that

he was with Mara and others when, at approximately 12:45 a.m. on

January 1, they left a bar and walked to the party at 1027 Fairfield

Beach Rd. Mara, having spilled a drink on himself, removed his wet

shirt even though it was freezing outside. En route, the group

encountered Tom Freda, who told about his girlfriend getting hit at

the party, but who said, “It’s okay, it’s taken care of.” Id. Upon

arriving at the party, Cullam saw people standing around an

unknown male lying in the front yard. Cullam and his friends did

not stop but proceeded toward the house, where someone bumped

Mara, prompting Mara to start yelling. Cullam and Sean Mara tried

to calm Mara and told him to put his shirt on, which he did before

entering the house. There, a group of men accused Mara of hitting

their friend with a bottle. Cullam told the group that Mara had

nothing to do with that. The Mara brothers and two of their friends

left the party soon after, but Cullam remained. Cullam told police he

was positive Mara did not hit anyone with a bottle.

Two other Mara friends interviewed by the police, John Bradley

and Matthew Kennedy, effectively corroborated Cullam’s account of

the evening.

On January 8, defendants interviewed Daniel Langlais, whom

they had first spoken to at St. Vincent Hospital on January 1. Langlais

told police that while Blackman was lying on the ground injured, he

heard someone yell his name, “Dan,” and saw that the person who

did so was Mara, who was “jumping around crazy” with no shirt on.

Id. at 412. Langlais, however, could not say whether Mara had been

at the party before Blackman was hit.

20

On January 14, defendants interviewed Philip Blackman. He

stated that he had arrived at 1027 Fairfield Beach Rd. at

approximately 11:45 p.m. on New Year’s Eve. He described a large

party with people everywhere. At about midnight, Blackman went

inside the house to watch the New Year’s ball drop on televison, and

the next thing he remembered was waking up in the hospital. He had

no personal recollection of any altercation. Rather, friends later told

him that “kids were trying to kick us out of the party” because

Blackman had bumped into a girl by accident. Id. Blackman had no

recollection of seeing Mara at the party, but stated that his roommate

(who was not at the party) told him that Darren O’Brien had said that

it was Mara who struck Blackman. Blackman said he was “surprised”

because he had met Mara only a couple of times and had “a fine

relationship with him.” Id. at 413. Nevertheless, Blackman said that

Mara had a reputation for being a “hot mess.” Id.

On January 18, defendants interviewed Sean Mara, who told

them that he had been with his brother and two friends at a bar from

approximately 11:00 p.m. on New Year’s Eve until 12:30 a.m., after

which they all went to a party at 1027 Fairfield Beach Rd. At the time,

his brother was “[p]retty drunk, . . . drunker than the rest of us and

being an idiot,” taking his shirt off, and refusing to put it back on

when told to do so. Id. As the group walked to the party, they saw

Tom Freda, who reported that his girlfriend had been hit at the party,

which got John Mara “riled up,” but Freda said, “‘Don’t worry, it’s

taken care of.’” Id.

Sean Mara told police that, as the group continued to walk

toward the party, an unknown male came up from behind them

saying that “some kid [at the party] got knocked out, he got hit in the

head with a bottle.” Id. When the group arrived at the party, they

21

saw people holding up someone who was passed out, but they just

kept walking toward the house. There, John Mara got into an

altercation with someone after they bumped into each other. Sean

Mara intervened to calm the situation, and had his brother put his

shirt back on before they entered the house. Because it was crowded

inside, they did not stay long, leaving at approximately 1:30 a.m.

Sean Mara reported that, as the group was walking home on

Fairfield Beach Rd., some unknown males approached John Mara and

began taking his photograph on their cell phones. Mara started

yelling like a “maniac” and, when more unknown men approached

accusing Mara of hitting their friend over the head with a bottle, Mara

started cursing at them, requiring Sean Mara to put his brother in a

“choke hold” to get him to stop. Id. at 414. The accusers kept

following the Mara brothers and their friends, saying things like,

“your brother is dead bro!” Id. Meanwhile, Mara repeatedly accused

his brother and friends of not defending him against the accusers,

making Sean Mara so angry that he punched his brother “just to shut

him up.” Id. Mara then ran away, with his accusers yelling: “Why is

he running away? Because he hit our friend?” Id. Sean Mara denied

that he, or his brother, had any involvement in hitting anyone with a

bottle.

V. Arrest Warrant

On January 21, 2013, Rilling applied for a warrant to arrest

Mara on charges of first‐degree assault, see Conn. Gen. St. 53a–59

(1999), and second‐degree breach of the peace, see id. 53a–181 (2002).

In support, Rilling submitted a thirteen‐page affidavit, which had

been reviewed and approved by both a supervising officer,

Lieutenant Gagner, and by Assistant State Attorney John Smriga. The

affidavit detailed the police investigation from the time of Blackman’s

22

father’s January 1 call through the almost twenty police interviews

already detailed. Among other things, the affidavit made clear that

numerous persons reported hearing that John Mara was the person

who assaulted Blackman, but that only Luke Kazmierczak and James

Hansen professed directly to have witnessed the incident. It stated

that Kazmierczak failed to identify Mara from a photo array

containing Mara’s freshman photograph, and in fact had identified

another person with 70% certainty. Nevertheless, Kazmierczak

subsequently identified Mara with reported 100% certainty from a

second photo array containing the January 2 Mara photograph taken

by the police.

The affidavit also stated that Kazmierczak and David O’Brien

each told police that Kazmierczak had identified Mara as Blackman’s

assailant when they encountered him on Fairfield Beach Rd. on

January 1, and that O’Brien both selected Mara from the second photo

array as the person Kazmierczak so identified and provided police

with a contemporaneous cell‐phone photograph that he had taken of

that person, which depicted Mara. As for Hansen, the affidavit

reported that, after witnessing the assault, he encountered the

assailant later that night in the company of the assailant’s brother,

who identified the man as Jack Mara.11

As for Mara’s interview, the affidavit reported Mara’s

acknowledgment that he “could” have hit Blackman but might not

remember doing so because he was drunk. App’x 408 (quoting Mara

as saying, “I’m not sure, if I actually did do it, I would love to find

out”; “It could have happened because I was very drunk and there’s

11 The affidavit does not indicate whether Hansen was shown a photo array.

23

a shot I didn’t remember”; “I don’t remember, I was drunk and don’t

remember parts of the night.”).12

At the same time, the affidavit reported statements by various

persons indicating that Mara had not assaulted Blackman and could

not have done so because that event occurred before Mara and his

friends arrived at the party. See, e.g., id. at 410 (reporting Freda

statement that he saw man lying on ground with people standing

around him before he left the party); id. at 411 (reporting Cullam

statement that unknown male was already lying on ground with

people standing around him as he and Mara arrived at party); id. at

413 (reporting Sean Mara statement that group was still walking to

party when unknown male said “some kid” at party had been

“knocked out” when “he got hit in the head with a bottle,” and, when

they arrived at party, they saw someone holding up person who had

“passed out”).

On February 22, 2013, Connecticut Judge Robert Devlin issued

the requested warrant for Mara’s arrest. It appears that the warrant

was never formally executed. Rather, Mara voluntarily surrendered

to the Fairfield Police Department and, after police processing and

arraignment in court, he was released on a $100,000 bond.

VI. Dismissal of the Charges Against Mara

Sometime after the arrest warrant issued, Rilling received an

anonymous call from a woman who stated that police had “the wrong

person” for the Blackman assault. Id. at 129. Two weeks later, Rilling

received another call from the woman, who continued to remain

12 We here quote Mara’s statements as reported in Rilling’s affidavit. Any differences

between these quotes and what can be heard in the record, see supra at 8 n.4, are immaterial.

24

anonymous. She stated that her son—whom she refused to identify—

had spent New Year’s Eve with John Cordone, and it was two of

Cordone’s friends who were responsible for the Blackman assault.

Rilling reported the call to State Attorney Smriga, who was handling

the Mara prosecution.

Rilling contacted Cordone, then a student at Fairfield

University, who admitted hearing about the Blackman assault, but

initially denied any knowledge of how the incident occurred or who

might be involved. Rilling told Cordone that the police already knew

he had been with friends on New Year’s Eve who had gotten into a

fight. At that point, Cordone “just opened up,” identifying the friends

as Corey Martin and Michael Arrone. Id. at 134. Cordone told Rilling

that Arrone had been walking around with a black champagne bottle

all evening—which Rilling knew fit the description of the Freixenet

bottle used to hit Blackman. Cordone said that when he left the party

with his girlfriend, Martin and Arrone stayed behind. An hour or two

later, they appeared at Cordone’s home, Martin with no shirt on, and

Arrone with blood on him. They told Cordone that they had gotten

into a fight and “had to hit somebody over the head with a bottle to

escape.” Id. Cordone stated that Martin and Arrone were hoping that

the incident would just “go away” and “definitely would have come

forward if they knew Mara was going to be convicted.” Id. at 483.

Rilling reported Cordone’s account of events to State Attorney Smriga

and had Cordone memorialize it in a sworn statement dated March

21, 2013.

A few weeks later, Rilling interviewed Corey Martin who

provided a sworn statement dated April 11, 2013, in which he

reported that at a New Year’s Eve party on Fairfield Beach Rd., he and

Michael Arrone had gotten into a fight instigated by three or four

25

men. As the two friends fled the scene, Arrone said that when he saw

the men hitting Martin, he (Arrone) “swung a bottle and hit one of the

males.” Id. at 484. Rilling advised Smriga of this account.

Smriga conveyed the new information to Mara’s attorney who,

by letter dated May 17, 2013, requested that Smriga drop the charges

against his client. In his response, Smriga acknowledged that the

Cordone and Martin statements exculpated Mara, but concluded that

they were not dispositive. He reported that the authorities hoped to

resolve the matter soon but had been impeded by their inability to

interview certain witnesses. In fact, Arrone refused to be interviewed

on advice of counsel, and Kazmierczak, who had identified Mara as

Blackman’s assailant, had ceased cooperating with the authorities.

The record reveals no other police investigation of the matter between

May and October of 2013.

By the fall of 2013, Smriga had concluded that he could neither

successfully prosecute Mara for the Blackman assault nor arrest

anyone else for that crime. Accordingly, on October 3, 2013, the state

charges against Mara were dismissed.

VII. District Court Proceedings

On July 30, 2014, Mara filed the instant action. On July 15, 2016,

the Fairfield Police defendants invoked qualified immunity to move

for summary judgment, which the district court granted in part, but

denied as to defendants Rilling, Nook, Hine, and the Town of

Fairfield (sued derivatively under a state indemnification statute). See

Mara v. MacNamara, 2017 WL 4368612, at *7–8.

In denying defendants’ motion, the district court concluded

with respect to Mara’s Fifth Amendment coerced self‐incrimination

claim, that defendants’ actions, first on campus and then during the

26

interview, raised “a genuine dispute of fact as to whether [Mara’s]

will was overborne resulting in an inculpatory statement that was

used against him.” Id. at *5.13 As to Mara’s Fourteenth Amendment

substantive due process claim, the district court identified a genuine

factual dispute as to whether defendants’ conduct shocked civilized

sensibilities, which also allowed Mara to pursue a state claim for

intentional infliction of emotional distress. See id. at *7.

In denying defendants’ motion with respect to Mara’s Fourth

Amendment and state law claims for false arrest and malicious

prosecution, the district court concluded that Mara had two plausible

arrest claims. The first was based on his being unexpectedly

confronted on campus by defendants who were armed and had used

their cars to block Mara’s vehicle; the second based on a deficient

warrant. See id. at *6. The district court concluded that, at the time of

the campus encounter, defendants could not claim even arguable

probable cause for an arrest because they then had “no concrete

evidence” linking Mara to the Blackman assault. Id. As to the warrant,

the district court concluded that it would lack probable cause if it

depended on (1) statements coerced from Mara, and (2) a photo

identification by Kazmierczak tainted by suggestive procedures, both

of which presented genuine factual disputes. See id. at *5–6.

Defendants timely appealed.

13 The district court specifically highlighted Mara’s age (21); his limited experience with

police interrogations; his expectation that he would be going to the police station with his

father simply to clear up confusion about the Blackman assault; defendants’ surprising

Mara on campus, blocking his car, and intimating that he had to talk to them right away;

the length of Mara’s interrogation (1½ hours); and defendants’ telling Mara that he would

be put in prison with dangerous persons, and that if he did not confess he would be

considered a sociopath. See Mara v. MacNamara, 2017 WL 4368612, at *5.

27

DISCUSSION

I. Jurisdiction

Because the denial of a motion for summary judgment is not a

final judgment, it is generally not immediately appealable. See, e.g.,

Jones v. Parmley, 465 F.3d 46, 54 (2d Cir. 2006). An exception obtains,

however, when the denied motion was based on a claim of qualified

immunity, at least to the extent the immunity claim presents a “purely

legal question.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see O’Bert

ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003). This is

because qualified immunity affords no mere defense to liability but,

rather, immunity from suit, which would effectively be lost if a

defendant is erroneously required to defend against a case at trial. See

White v. Pauly, 137 S. Ct. 548, 551 (2017); Pearson v. Callahan, 555 U.S.

223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 199 (2001).

Mara argues that this court lacks jurisdiction to review

defendants’ qualified immunity claim because it does not present a

purely legal question in light of the material disputes of fact identified

by the district court. See Mara v. MacNamara, 2017 WL 4368612, at *5–

7. He is wrong. Even in such circumstances, we have jurisdiction to

review a qualified immunity claim if that review is limited to

undisputed facts and plaintiff’s version of any disputed facts, which

are accepted for purposes of the appeal. See In re World Trade Center

Disaster Site Litig., 521 F.3d 169, 180 (2d Cir. 2008); Cowan ex rel. Estate

of Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003). Because we so limit

our review here, Mara’s jurisdictional challenge fails.

II. Qualified Immunity

This court reviews de novo a denial of summary judgment to

parties asserting qualified immunity. See, e.g., Walczyk v. Rio, 496 F.3d

28

139, 153 (2d Cir. 2007). Qualified immunity shields government

officials from claims for money damages unless a plaintiff adduces

facts showing that “(1) the official violated a statutory or

constitutional right, and (2) the right was ‘clearly established’ at the

time of the challenged conduct.” Ashcroft v. al‐Kidd, 563 U.S. 731, 735

(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); accord

Zalaski v. City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013).

If the answer to the first question is no, “there is no necessity

for further inquiries concerning qualified immunity.” Saucier v. Katz,

533 U.S. at 201. That is because a defendant has no need for an

immunity shield where there is no viable constitutional claim. See

Zalaski v. City of Hartford, 723 F.3d at 388; Holcomb v. Lykens, 337 F.3d

217, 223–25 (2d Cir. 2003). But even if the answer is yes, or not

definitively no, a defendant may still be entitled to qualified

immunity if the right was not clearly established at the time of his

challenged actions. Indeed, a court that decides this second question

in a defendant’s favor may award qualified immunity without

conclusively answering the first. See Ashcroft v. al‐Kidd, 563 U.S. at 735

(reaffirming lower courts’ discretion to decide order in which to

address two prongs of qualified‐immunity analysis).

For law to be clearly established, it is not necessary to identify

a case directly on point. But precedent must have spoken with

sufficient clarity to have placed the constitutional question at issue

beyond debate. See id. at 741. Specifically, the law must be so clearly

established with respect to the “particular conduct” and the “specific

context” at issue that “every reasonable official would have

understood that his conduct was unlawful.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (emphasis in original) (internal quotation marks

omitted). If the illegality of the challenged conduct would not be so

29

apparent, officers are entitled to qualified immunity. See Zalaski v. City

of Hartford, 723 F.3d at 389. “In short, if at least some reasonable

officers in the defendant’s position ‘could have believed that the

challenged conduct was within the bounds of appropriate police

responses,’ the defendant officer is entitled to qualified immunity.”

Id. (quoting Saucier v. Katz, 533 U.S. at 208) (alterations omitted).

This standard is deliberately “forgiving,” Amore v. Novarro, 624

F.3d 522, 530 (2d Cir. 2010), to give public officials “breathing room to

make reasonable but mistaken judgments” without fear of disabling

liability, Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (internal

quotation marks omitted). Indeed, the Supreme Court has repeatedly

observed that qualified immunity protects “‘all but the plainly

incompetent or those who knowingly violate the law.’” Ashcroft v. al‐

Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

III. Arrest Claims

The Fourth Amendment protects against “unreasonable . . .

seizures” of persons. U.S. Const. amend. IV. For a seizure to be

reasonable, it must generally be supported by probable cause. See

generally National Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665

(1989) (stating general principle while acknowledging that neither

warrant nor probable cause is indispensable component of

reasonableness). Under both federal and Connecticut law, “probable

cause to arrest exists when police officers have knowledge or

reasonably trustworthy information of facts and circumstances that

are sufficient to warrant a person of reasonable caution in the belief

that the person to be arrested has committed or is committing a

crime.” Walczyk v. Rio, 496 F.3d at 156 (internal quotation marks

omitted); see State v. James, 261 Conn. 395, 415, 802 A.2d 820, 835

(2002). Probable cause does not demand that an officer’s good‐faith

30

belief that a person has committed a crime be “correct or more likely

true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). “It requires

only facts sufficient to establish the sort of fair probability on which

reasonable and prudent people, not legal technicians, act.” Zalaski v.

City of Hartford, 723 F.3d at 390 (internal quotation marks and brackets

omitted).

Applying these principles to Mara’s federal and state claims of

unlawful arrest on January 2, 2013, we conclude that defendants are

entitled to qualified immunity.

Defendants do not here challenge the district court’s

determination that they lacked probable cause, or even arguable

probable cause, to arrest Mara on January 2, 2013. Rather, they claim

qualified immunity on the ground that they did not, in fact, arrest

Mara on that date and, thus, did not require probable cause lawfully

to engage him in a voluntary interview. See Florida v. Royer, 460 U.S.

491, 497 (1983) (holding that police do not violate Fourth Amendment

by engaging person in voluntary conversation, and “[i]f there is no

detention—no seizure within the meaning of the Fourth

Amendment—then no constitutional rights have been infringed”);

Rivera v. Double A Transp., Inc., 248 Conn. 21, 31, 727 A.2d 204, 209

(1999) (identifying unlawful restraint as element of false

imprisonment). Moreover, they argue that, even when the facts are

viewed most favorably to Mara, clearly established law would not

have compelled “every reasonable officer” to have concluded that

Mara was under arrest. Mullenix v. Luna, 136 S. Ct. at 308. We agree.

A person is seized within the meaning of the Fourth

Amendment if, under the totality of circumstances, a reasonable

31

person would have believed that he was not free to leave. See Michigan

v. Chesternut, 486 U.S. 567, 573 (1988) (citing approvingly to test for

seizure articulated in United States v. Mendenhall, 446 U.S. 544, 554

(1980) (opinion of Stewart, J., joined by Rehnquist, J.) (noting that

Fourth Amendment “seizure” occurs “only if, in view of all the

circumstances . . ., a reasonable person would have believed that he

was not free to leave”)); accord Kaupp v. Texas, 538 U.S. 626, 629 (2003)

(holding Fourth Amendment seizure occurs when, “taking into

account all of the circumstances surrounding the encounter, the police

conduct would have communicated to a reasonable person that he

was not at liberty to ignore the police presence and go about his

business” (internal quotation marks omitted)); State v. Mangual, 311

Conn. 182, 197, 85 A.3d 627, 641 (2014) (“The ultimate inquiry [in

determining whether plaintiff has been seized is whether] a

reasonable person in [plaintiff’s] position would believe that he or she

was in police custody of the degree associated with a formal arrest.”).

The standard is objective, looking not to what a particular defendant

may have thought, but to what “the typical reasonable person

[would] have understood.” Florida v. Jimeno, 500 U.S. 248, 251 (1991);

United States v. Newton, 369 F.3d 659, 671 (2d Cir. 2004).

In applying this standard to a claim of qualified immunity, a

court necessarily engages in a two‐part objective inquiry, asking not

only what a reasonable person would have understood about his

ability to leave—which determines whether there was a constitutional

violation—but also what every reasonable police officer would have

understood from established precedent—which determines whether

the right was clearly established.

The district court addressed only the first question and

concluded that a person in Mara’s situation could reasonably have

32

thought he was under arrest on January 2, 2013, because Mara was

surprised to be confronted by police on campus, and the police were

then “armed and had used their vehicles to block his car, preventing

him from leaving.” Mara v. MacNamara, 2017 WL 4368612, at *6. In

fact, when these circumstances are viewed in context, they do not

admit an objectively reasonable belief that Mara was under arrest.

First, Mara had voluntarily agreed to meet with the police on

January 2. That meeting was initiated by Mara, or at least by Mara’s

mother, who sought police help in response to threats her son was

receiving from persons who blamed him for the Blackman assault. In

these circumstances, even if Mara was surprised that police came to

his campus at 4:00 p.m. when their agreed‐upon meeting was

scheduled for the police station at 5:00 p.m., that hardly supports an

objectively reasonable belief that the police were then placing Mara

under arrest. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (holding

that defendant who voluntarily went to police station and was

informed he was not under arrest was not in custody)14; United States

v. Jones, 818 F.2d 1119, 1125 (4th Cir. 1987) (holding defendants not in

custody when they voluntarily went to police station).

Second, police had already told a Mara family lawyer that they

would be speaking to Mara as a witness rather than a target, and that

he did not need an attorney at the interview. Even if we assume for

purposes of this appeal that the statement was somehow misleading,

a person provided with such an assurance would have no objectively

reasonable basis to conclude that a police request to change the time

14 Mara was so informed at the start of the police interview. See infra at 35.

33

and place of the agreed‐upon meeting meant that he was being

arrested.

Third, the proposed change in venue was from the Fairfield

police station to a security office at Mara’s own university. Such a

change, from a potentially more intimidating location to a lesser one,

would not support an objectively reasonable belief that one was being

arrested. See United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011)

(explaining that interview in “less intimidating atmosphere than . . . a

police station,” did not support an objectively reasonable belief of

custodial situation); see also United States v. Courtney, 463 F.3d 333, 337

(5th Cir. 2006) (holding that non‐threatening location of interviews—

one at public restaurant, another at defendant’s place of

employment—would not support objectively reasonable belief that

one was being arrested). Nor is a different conclusion warranted

because defendants thought the change might work to their

advantage. That fact was not communicated to Mara and, thus, could

not inform an objectively reasonable understanding of the

circumstances by someone in his position. See Whren v. United States,

517 U.S. 806, 813 (1996) (holding that officers’ “[s]ubjective intentions

play no role in . . . Fourth Amendment analysis”). Further, insofar as

Mara expected his father to join him for the interview at the police

station, nothing in the record indicates that Mara ever asked to wait

for his father before the on‐campus interview or that he had a

reasonable basis to think that such a request would be denied.

Fourth, while defendants were armed on January 2, it is

undisputed that they never brandished, or even displayed, their

weapons. Thus, a person in Mara’s position, who had sought police

help and agreed to a police interview, would have no objectively

reasonable basis to think that he was under arrest because the officers

34

who came to conduct the interview were routinely armed with

holstered handguns. See United States v. Drayton, 536 U.S. 194, 205

(2002) (stating that public knows most law enforcement officers are

armed; thus, “holstered firearm . . . is unlikely to contribute to the

coerciveness of the encounter absent active brandishing of the

weapon”); United States v. Thompson, 546 F.3d 1223, 1227 (10th Cir.

2008) (same); United States v. Gaynor, 262 F. App’x 341, 342 (2d Cir.

2008) (summary order) (same).

Fifth, the import of defendants and a campus security officer

having parked their cars behind Mara’s vehicle is at best ambiguous.

Police frequently stop their vehicles in ways that impede the normal

flow of traffic—much to the frustration of ordinary motorists. While

in some circumstances, using police cars to box in a private vehicle

might lead its driver to conclude that he is not free to leave, that

conclusion would not reasonably obtain here, where the vehicle

owner was not in the car or attempting to drive it at the time in

question and had solicited a meeting with police. Cf. United States v.

Stover, 808 F.3d 991, 997 (4th Cir. 2015) (holding that reasonable

person would not feel free to leave when police officers blocked

vehicle, flashed police emergency lights, drew weapons, and trained

spotlight on blocked vehicle). Thus, although Mara professes

subjectively to have concluded from the way police cars were parked

that he could not have refused to go with defendants to the campus

security office, the totality of circumstances would not make such a

belief objectively reasonable.15

15 As noted supra at 7 n.2, on reviewing the record in the light most favorable to Mara, we

do not consider police deposition testimony that Mara was offered the choice of driving

himself to the university security office or accompanying Security Officer Cleary, and that

he voluntarily chose the latter.

35

In any event, a sixth factor convincingly dispels any arrest

concern. The video recorded interview shows that defendants

expressly told Mara—who was at no time physically restrained—that

he was always free to get up and leave the interview and did not have

to answer any questions. See supra at 8, n.5 (quoting police statement).

Such a statement to an unrestrained person, viewed in light of the

totality of circumstances just detailed, would preclude an objectively

reasonable belief that one is under arrest. See Oregon v. Mathiason, 429

U.S. at 495; United States v. Haak, 884 F.3d 400, 415 (2d Cir. 2018)

(holding that defendant who “voluntarily came to the police station,”

was interviewed in “standard interview room” for “not unduly

lengthy” period, and who “knew from the outset that he did not have

to speak with the police but, rather, could stop the interview at any

time,” was not in custody); cf. United States v. Newton, 369 F.3d at 670

(concluding that disavowal of arrest carries less weight when said to

person placed in handcuffs).

Even if the facts admitted any ambiguity as to Mara’s arrest

status on January 2, 2013, which we conclude they do not, police

officers aware of the totality of circumstances just detailed—

particularly, Mara’s agreement to a police meeting and the officers’

express statement to Mara that he was always free to leave the

interview—could reasonably have believed that Mara would not have

understood himself to be under arrest at the interview and, therefore,

that probable cause was not required to speak with him. Certainly no

clearly established law would have compelled “every reasonable

officer” to have concluded otherwise in the context described.

Messerschmidt v. Millender, 565 U.S. at 546. Accordingly, as a matter

of law, defendants are entitled to qualified immunity on Mara’s

federal and state claims of unlawful arrest on January 2, 2013.

36

Mara maintains that he was also unlawfully arrested following

issuance of a February 22, 2013 warrant for his arrest. As earlier

noted, it is not evident from the record that Mara ever was formally

arrested. Rather, it appears that he (or his attorney) was told that an

arrest warrant had issued, whereupon Mara voluntarily surrendered

to the authorities for processing and arraignment. In general,

damages for unlawful arrest cover from “the time of detention up

until issuance of process or arraignment, but no more. From that

point on, any damages recoverable must be based on a malicious

prosecution claim.” Wallace v. Kato, 549 U.S. 384, 390 (2007); see Hygh

v. Jacobs, 861 F.2d 359, 366 (2d Cir. 1992) (holding false arrest claim

cognizable from period of arrest through arraignment). We recognize

that the Seventh Circuit has held that a person who is not formally

arrested, but who voluntarily surrenders upon learning of a warrant

for his arrest, has a “plausible claim for false arrest” because “it is

enough that he was booked; that was a seizure of his person within

the meaning of the Fourth Amendment.” Albright v. Oliver, 975 F.2d

343, 344–45 (7th Cir. 1992). We need not here decide whether we

agree. The parties have not raised or briefed the issue. We conclude

simply that, whether Mara properly sues for unlawful arrest or

malicious prosecution in connection with the February 2013 initiation

of charges against him, defendants are entitled to qualified immunity

because probable cause is a complete defense to either charge, see

Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); McHale v.

W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815, 817 (1982), and the

Rilling affidavit establishes probable cause.

An arrest authorized by a judicial warrant is generally

“presumed” to be supported by probable cause. Walczyk v. Rio, 496

37

F.3d at 156 (observing that “such warrants may issue only upon a

showing of probable cause”). Even where a supporting affidavit is

found to be deficient in stating probable cause, “the fact that a neutral

magistrate . . . issued a warrant is the clearest indication that the

officers acted in an objectively reasonable manner,” so as to merit

qualified immunity. Messerschmidt v. Millender, 565 U.S. at 546. To

urge otherwise, a plaintiff must show (1) that supporting warrant

affidavits “on their face, fail to demonstrate probable cause”; or (2)

that defendants misled a judicial officer into finding probable cause

by knowingly or recklessly including material misstatements in, or

omitting material information from, the warrant affidavits. Walczyk v.

Rio, 496 F.3d at 156.

Mara argues that this is such a case because defendants

obtained a warrant for his arrest through unconstitutionally obtained

evidence, specifically, (1) Mara’s coerced statements of January 2,

2013, and (2) Kazmierczak’s photo identification of the next day. The

district court concluded that both these evidentiary challenges raised

disputes of fact. See Mara v. MacNamara, 2017 WL 4368612, at *4–5.

Then, assuming resolution of the disputes in Mara’s favor, the district

court determined that probable cause had to be assessed by reference

to a “corrected” affidavit deleting the challenged evidence. See Ganek

v. Leibowitz, 874 F.3d 73, 82 (2d Cir. 2017) (explaining that court

assessing warrant application based on challenged information may

“consider a hypothetical corrected affidavit” to determine if it

satisfies probable cause). Identifying a “genuine dispute” as to

whether such a corrected affidavit would here demonstrate even

38

“arguable probable cause,” the district court denied defendants

qualified immunity. Mara v. MacNamara, 2017 WL 4368612, at *6.16

We cannot sustain this conclusion. There is no basis in law for

deleting the Kazmierczak photo identification from the Rilling

affidavit and, with that eyewitness identification restored to the

affidavit, probable cause is plainly established even without Mara’s

challenged statements. See, e.g., Stansbury v. Wertman, 721 F.3d 84, 98

(2d Cir. 2013) (stating that, absent indicia of unreliability, victim’s

identification is typically sufficient to provide probable cause); United

States v. Canfield, 212 F.3d 713, 719 (2d Cir. 2000) (same re: eyewitness

testimony); United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993) (same

re: confidential informant with respect to personally witnessed

criminal activity); Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir.

1995) (same re: sworn victim complaint); cf. Florida v. J.L., 529 U.S. 266

(2000) (holding anonymous tip insufficient).17

First, to the extent Mara complains that it was unduly

suggestive for only his photographs to be included in both arrays

shown to Kazmierczak, clearly established law is to the contrary.

“[T]he fact that a suspect’s picture was placed in a second array after

a witness has failed to select anyone from the first array [does not]

16 As this court has recognized, “arguable probable cause” exists “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.”

Escalera v. Lunn, 361 F.3d 737, 742 (2d Cir. 2004); accord Gonzalez v. City of Schenectady, 728

F.3d 149, 157 (2d Cir. 2013).

17 Because we conclude that probable cause is established without Mara’s own statements,

his coercion challenge to those statements is immaterial to his Fourth Amendment and

state law claims of unlawful arrest. Moreover, we need not decide whether the record,

viewed most favorably to Mara, admits a finding of coercion because, as explained infra at

Part IV.A., he cannot show that the statements were used against him as necessary to claim

a Fifth Amendment violation.

39

automatically make the second array unduly suggestive.” United

States v. Concepcion, 983 F.2d 369, 379 (2d Cir. 1992). The district court

acknowledged this precedent, but thought that a case‐specific review

might nevertheless admit a reasonable finding of suggestivity. See

Mara v. MacNamara, 2017 WL 4368612, at *5. It did not, however,

identify what facts would distinguish this case from Concepcion in

ways that might admit such a finding. Nor can we. Mara does not—

and could not—argue that either of the photo arrays shown to

Kazmierczak, which are part of the record, are themselves suggestive.

Each array depicts six young, white men with short, dark hair—

consistent with the description Kazmierczak gave of Blackman’s

assailant. In neither array does Mara’s photograph “so st[an]d out

from all of the other photographs as to suggest to an identifying

witness that [Mara] was more likely to be the culprit.” United States v.

Thai, 29 F.3d 785, 808 (2d Cir. 1994) (internal quotation marks

omitted).

The lack of suggestivity here is only reinforced by the fact that

the two photos of Mara used in the arrays—the first taken in his

freshman year, the second taken in his senior year—are markedly

different. Nor does anything in the record indicate that the manner

of display was suggestive. Quite the contrary: as to both displays,

Kazmierczak was cautioned that it was as important to clear the

innocent as to identify the guilty. In sum, Mara’s suggestivity

argument rests solely on the fact that he was the only person depicted

in both arrays. But if, as this court has ruled, showing a witness the

same photograph of a suspect in two different arrays is not unduly

suggestive where police do not otherwise urge the photo’s

identification, see id. at 809, it necessarily follows that showing a

witness markedly different photographs of a suspect, without doing

or saying anything to urge identification, is not unduly suggestive, see

40

Gregory‐Bey v. Hanks, 332 F.3d 1036, 1052 (7th Cir. 2003) (concluding

“distinctly unique and different” photographs not unduly

suggestive). We thus conclude that no suggestivity concern warrants

deletion of Kazmierczak’s photo‐identification from Rilling’s

affidavit.

Second, even if the facts could admit a finding of suggestive

procedures—which they cannot—that conclusion does not mean that

Kazmierczak’s identification cannot inform probable cause

determinations. Indeed, this court expressly rejected that conclusion

in Stansbury v. Wertman, which holds that “‘[e]vidence need not be

admissible at trial in order to support a finding of probable cause.’”

721 F.3d at 91 n.7 (quoting Phillips v. Allen, 668 F.3d 912, 915 (7th Cir.

2012) (interpreting Illinois v. Gates, 462 U.S. 213 (1983))). State law

agrees. See State v. Higgins, 201 Conn. 462, 467, 518 A.2d 631, 634 (1986)

(“The fact that [a] confession would not have been admissible at a trial

does not preclude its use . . . in ascertaining probable cause.”). As

Stansbury explains, the due process limits that Neil v. Biggers, 409 U.S.

188 (1972), mandates for the use of identifications tainted by

suggestive procedures “concern[] the admissibility of identifications

at criminal trials, not whether an identification can support probable

cause to arrest” a suspect. Stansbury v. Wertman, 721 F.3d at 91 n.7; see

Phillips v. Allen, 668 F.3d at 915 (stating that “Biggers and similar

decisions . . . concern the admissibility of [identification] evidence at

criminal trials, not claims for damages against arresting officers”).

Thus, Stansbury instructs that the critical question for “determining

whether an identification can support probable cause,” is not whether

the identification procedure was suggestive, but whether it was “so

defective” that, as a matter of law, “‘probable cause could not

reasonably be based on it.’” Stansbury v. Wertman, 721 F.3d at 91 n.7

(quoting Jenkins v. City of New York, 478 F.3d 76, 93 (2d Cir. 2007)).

41

The one‐photo displays in Stansbury were undoubtedly

suggestive, making identifications therefrom inadmissible at trial. See

id. at 91. But that did not render them “so defective” that they “could

not contribute to a finding of probable cause.” Id. at 91 n.7. By

contrast, telling a witness he “had to pick someone” from a photo

array would make the ensuing identification both inadmissible at trial

and too defective to support probable cause. See id. (deriving scenario

from Jenkins v. City of New York, 478 F.3d at 93). Stansbury explained

the distinction: procedures that simply “increase the odds” that a

witness will identify the defendant are not so defective as to preclude

reliance for probable cause, while procedures that force the witness to

make an identification do rise to that level. See id.

The arrays here are a far cry from the single‐photo displays that

Stansbury held suggestive—but, nevertheless, not so defective that

they could not support probable cause. See id. at 91. Mara’s

photographs were included in multi‐photo arrays, his two

photographs were significantly different, and nothing about how the

photos were presented to Kazmierczak urged an identification of

Mara, much less left Kazmierczak with no option but to make such an

identification. Moreover, as in Stansbury, Kazmierczak confirmed his

identification of Mara in a sworn statement, and the police had no

reason to question his honesty. Thus, on the Stansbury standard that

properly applies here, there is no reason for the Kazmierczak photoidentification

to be deleted from the Rilling affidavit. See id.

Third, and in any event, when applying the Stansbury standard

in the context of a qualified immunity claim, the determinative

question is not whether the challenged identification procedure could

be found “so defective” that probable cause could not be based on it,

but whether clearly established precedent would compel every

42

reasonable officer to recognize as much. See Phillips v. Allen, 668 F.3d

at 917. It would not do so here. As already noted, United States v.

Concepcion, 983 F.3d at 379, and United States v. Thai, 29 F.3d at 808,

instruct that showing the same subject’s photograph in two photo

arrays is not necessarily suggestive, and Mara points to no

authoritative decision warranting a different conclusion in the

particular circumstances of this case, much less a conclusion that the

procedure was “so defective” that it could not inform probable cause

under Stansbury v. Wertman, 721 F.3d at 91. See Phillips v. Allen, 668

F.3d at 917.

Indeed, such a conclusion is particularly inapt here for two

further reasons. First, when Rilling applied for a warrant to arrest

Mara, defendants knew that Kazmierczak had an independent basis

for identifying Mara that made it particularly unlikely that viewing a

second photograph of him would be unduly suggestive. See Neil v.

Biggers, 409 U.S. at 199–200 (outlining factors for determining

independent reliability of identification); United States v. Tortora, 30 F.3d

334, 338 (2d Cir. 1994) (applying Biggers factors to find identification

independently reliable). Specifically, on the night of the assault—and

before any contact with the police—Kazmierczak had identified Mara

as Blackman’s assailant to the O’Brien brothers from among a group

of young men encountered on Fairfield Beach Rd. David O’Brien

confirmed that Kazmierczak made such an identification, providing

police not only with a sworn statement but also with the cell‐phone

photograph of Mara that he took at the time of the identification.

Second, Rilling disclosed all circumstances pertinent to

Kazmierczak’s photo identification in his affidavit in support of an

arrest warrant—specifically, the display of two photo arrays, each

containing a photograph of Mara; Kazmierczak’s failure to identify

43

Mara from a freshman photograph in the first array (and 70%‐certain

identification of another person), and his 100%‐certain identification

of Mara from a more recent photograph in the second array;

Kazmierczak’s January 1 in‐person identification of Mara to the

O’Brien brothers; and David O’Brien’s contemporaneous cell‐phone

photograph of the person Kazmierczak so identified, which depicts

Mara.18 In short, as to the Kazmierczak photo identification,

defendants cannot be charged with misstating or omitting material

information. Thus, with a fully informed judge raising no concern

about the display of two Mara photographs to Kazmierczak; with

defendants’ knowledge that Kazmierczak had already made an inperson

identification of Mara to friends shortly after the Blackman

assault; and in light of the decisions in Concepcion and Thai, it cannot

be said that every reasonable officer would be compelled to conclude

that Kazmierczak’s photo‐identification of Mara was “so defective”

that it could not reasonably inform probable cause. See Stansbury v.

Wertman, 721 F.3d at 91 n.7; see also Messerschmidt v. Millender, 565 U.S.

at 546.

Accordingly, we conclude that defendants are entitled to

qualified immunity on Mara’s federal and state claims of unlawful

arrest and/or malicious prosecution stemming from the February

2013 arrest warrant because (1) the Kazmierczak photo identification

was not, in fact, so defective as to require deletion from a corrected

18 Even if Kazmierczak’s photo identification of Mara were properly deleted from a

corrected affidavit, his January 1 identification, and David O’Brien’s documented

corroboration of that identification, would remain. The district court did not discuss why

this evidence would not be sufficient to establish probable cause. We do not pursue the

point because we conclude that there is no need to correct the affidavit in support of Mara’s

arrest to delete Kazmierczak’s photo identification.

44

Rilling affidavit; (2) with that eyewitness identification included, the

affidavit clearly states probable cause to arrest Mara for the Blackman

assault, even if Mara’s statements are deleted; and (3) with probable

cause thus established, it cannot be said that every reasonable officer

would conclude that Mara could not lawfully be arrested or

prosecuted as a result of the February 2013 arrest warrant.19

IV. Statement Claims

Mara claims that defendants violated his Fifth Amendment

right against self‐incrimination and his Fourteenth Amendment right

to substantive due process by coercing him to make inculpatory

statements at the January 2 interview. He further claims that

defendants’ conduct violated state law prohibiting the intentional

infliction of emotional distress.

In denying defendants qualified immunity on these claims, the

district court concluded that the record, viewed most favorably to

Mara, raised genuine disputes of fact as to whether Mara’s will was

overborne when he made the statements at issue, and whether police

conduct was so extreme and outrageous as to go beyond the bounds

of human decency. See Mara v. MacNamara, 2017 WL 4368612, at *5, *7.

Even if we were to agree with this conclusion—which we do not for

19 Insofar as Mara’s malicious prosecution claim appears to challenge the maintenance of

an action against him after evidence implicating another person came to light, that decision

was the prosecutor’s rather than defendants and, thus, cannot be maintained against them.

See Wilson v. City of New York, 480 F. App’x 592, 595 (2d Cir. 2012) (summary order)

(holding that “decision to continue prosecution after the new evidence came to light was

made by the assistant district attorney and the court, not by” officers, and thus, no

reasonable jury could find officers liable); see also Jones v. City of Chicago, 856 F.2d 985, 994

(7th Cir. 1988) (concluding that officers can only be liable for malicious prosecution action

where they “have been instrumental in the plaintiff’s continued confinement or

prosecution”).

45

reasons detailed below—it addresses only the first qualified

immunity inquiry, i.e., whether a constitutional violation could be

found. The district court still needed to address the second qualified

immunity inquiry, i.e., whether the rights at issue were clearly

established in the context presented, such that every reasonable

officer would have recognized that the challenged conduct was

unlawful. That is not this case.

The Fifth Amendment states that no person “shall be compelled

in any case to be a witness against himself.” U.S. Const. amend. V.

The Fourteenth Amendment extends this prohibition to the states. See

Malloy v. Hogan, 378 U.S. 1, 6 (1964). The right bars police from

coercing involuntary statements from individuals, see Chambers v.

Florida, 309 U.S. 227, 239 (1940), and applies without regard to

whether the person is in custody when statements are so coerced.

Thus, the right extends more broadly than the prophylactic

procedures mandated in Miranda v. Arizona, 384 U.S. 436 (1966),

which apply only to persons in custody to “secure the privilege

against self‐incrimination” in that particular context. Colorado v.

Spring, 479 U.S. 564, 572 (1987) (internal quotation marks omitted).

An actual violation of the right against self‐incrimination

occurs, however, only when a coerced statement is used against a

person “at trial.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264

(1990); accord United States v. Allen, 864 F.3d 63, 82 (2d Cir. 2017)

(observing that violation of Fifth Amendment right against selfincrimination

“‘occurs only at trial,’ even if ‘conduct by law

enforcement officials prior to trial may ultimately impair that right’”

(quoting Verdugo‐Urquidez, 494 U.S. at 264 (emphasis in original))).

46

Because Mara’s case was dismissed, no challenged statements were

ever used against him at trial.

To the extent he complains that his statements were used to

support an arrest warrant that would otherwise have lacked probable

cause, his claim would appear to invoke the Fourth Amendment right

against unreasonable seizures. We need not pursue the question of

how the Fourth and Fifth Amendments might interact in such

circumstances. See, e.g., Michaels v. New Jersey, 222 F.3d 118, 123 (3d

Cir. 2000) (concluding that constitutional guards against coerced

confessions only apply when statements are used at trial, not in arrest

warrant). For reasons discussed in the immediately preceding point

of this opinion, we conclude that, even when Mara’s statements are

deleted from the warrant application, the remaining facts,

specifically, eyewitness Kazmierczak’s identification of Mara as

Blackman’s assailant, convincingly established probable cause for his

arrest. Thus, because Mara can demonstrate no Fourth or Fifth

Amendment injury from the use of his statements in a warrant

affidavit otherwise supported by probable cause, defendants are

entitled to qualified immunity on his coerced self‐incrimination

claim.

Mara nevertheless claims that, whether or not his statements

were used against him, defendants’ tactics in procuring them violated

his right to substantive due process. See Chavez v. Martinez, 538 U.S.

760, 773 (2003) (Thomas, J.) (plurality opinion) (observing that

“Fourteenth Amendment’s Due Process Clause, rather than the Fifth

Amendment’s Self‐Incrimination Clause, would govern” such a

claim). To maintain that claim, Mara must show more than official

misconduct, or even coercion. He must show that defendants’

47

conduct in questioning him was “so egregious, so outrageous that it

may fairly be said to shock the contemporary conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); see Rochin v. California,

342 U.S. 165, 172 (1952); accord Lombardi v. Whitman, 485 F.3d 73, 79

(2d Cir. 2007).

The Supreme Court identified such conduct in Rochin, where

police broke into a defendant’s home, attempted forcibly to pull drug

capsules from his throat and, finally, pumped his stomach to retrieve

the capsules. See Rochin v. California, 342 U.S. at 166. As the Court

explained, such conduct was “too close to the rack and the screw to

permit of constitutional differentiation.” Id. at 210. Not so, however,

the conduct in Chavez v. Martinez, 538 U.S. at 774 (holding that

questioning defendant then being treated for multiple gunshot

wounds did not shock the conscience), or County of Sacramento v.

Lewis, 523 U.S. at 854 (holding officer’s high‐speed pursuit of suspect,

even if undertaken imprudently and with deliberate indifference to

human life lost in ensuing collision, did not shock the conscience).

Nor the conduct in Lombardi v. Whitman, 485 F.3d at 81–85 (holding

that officials’ allegedly false reassurances as to air safety in lower

Manhattan after 9/11 attack did not shock the conscience). In short,

to shock the conscience and trigger a violation of substantive due

process, official conduct must not only be wrong; it must be extremely

so, “truly brutal and offensive to human dignity.” Id. at 81 (internal

quotation marks omitted).

A Connecticut claim for intentional infliction of emotional

distress similarly requires conduct that is “extreme and outrageous.”

Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337, 1342 (1986)

(instructing that claim requires showing “(1) that the actor intended

to inflict emotional distress; or that he knew or should have known

48

that emotional distress was a likely result of his conduct; (2) that the

conduct was extreme and outrageous; (3) that the defendant’s

conduct was the cause of the plaintiff’s distress; and (4) that the

emotional distress sustained by the plaintiff was severe”); accord

Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119, 126 (2003)

(holding that claim can be maintained “only where the conduct has

been so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community”).

Applying these standards here, we conclude that defendants’

conduct during Mara’s non‐custodial interview—which we have

described in detail and which is all video‐recorded and undisputed—

cannot be characterized as so brutal and offensive, or so outrageous

and intolerable, much less so extreme, as to recall the rack and screw

or other unjustifiable intrusions on “bodily integrity.” Washington v.

Glucksberg, 521 U.S. 702, 720 (1997) (characterizing Rochin as

delineating the right “to bodily integrity”); see also United States v.

Haak, 884 F.3d 400, 409 (2d Cir. 2018) (observing that legal significance

of video‐recorded—and, therefore, undisputed—interview conduct is

properly decided de novo on appellate review).

The video‐recording shows that Mara’s interview, while

sometimes tense—as might be expected when criminal conduct is

being discussed—was conducted calmly by officers in plain clothes

who did not raise their voices, display weapons, or physically restrain

Mara. At the start of the interview, Mara was told he did not have to

answer any questions and could leave at any time. Mara confirmed

his understanding of these ground rules. When, later in the interview,

Mara suggested that he might want to speak with a lawyer,

questioning stopped until Mara clarified that he was not requesting

49

to speak to a lawyer at that time. Such circumstances, which have

informed our decisions granting qualified immunity on coercedconfession

claims, see, e.g., United States v. Haak, 884 F.3d at 415; Parsad

v. Greiner, 337 F.3d 174, 184 (2d Cir. 2003); United States v. Ruggles, 70

F.3d 262, 265 (2d Cir. 1995), are hardly indicative of police conduct so

brutal or extreme as to shock the conscience.

The same conclusion obtains with respect to both the place of

the interview, an office at Mara’s college, which was certainly less

intimidating than the police station where he had earlier agreed to be

interviewed, see United States v. Courtney, 463 F.3d at 337; and its hour

and a half duration, see Rajah v. Mukasey, 544 F.3d 427, 445–46 (2d Cir.

2008) (holding seven hours of questioning, with two stints in jail cell,

was “long and tiresome” but not shocking). Nor is a different

conclusion warranted if, as Mara contends, defendants changed the

time and site of the interview to avoid his father’s attendance. As

earlier noted, Mara does not state that he asked to delay the interview

until his father arrived. See supra at 34. In any event, Mara was 21

years old, college educated, and, as the video‐recording shows, wellspoken

and self‐possessed. Questioning an adult in the absence of a

parent is not so brutal, intolerable, or shocking as to violate due

process or intentionally inflict emotional distress. Cf. Deshawn E. by

Charlotte E. v. Safir, 156 F.3d 340, 348 (2d Cir. 1998) (rejecting due

process challenge to short detention, even of minor).

Insofar as defendants, in the course of the interview, told Mara

that it would be to his benefit to cooperate and that, otherwise, he

would be prosecuted to the full extent of the law, such statements are

not even coercive, let alone conscious‐shocking. See United States v.

Haak, 884 F.3d at 412 (“[T]here is nothing improper in police truthfully

telling a [suspect] that he will be prosecuted to the full extent of the

50

law if he chooses not to cooperate.”); United States v. Ruggles, 70 F.3d

at 265 (holding statements conveying benefits of cooperation are “not

improperly coercive” but, rather, “common sense factual

observations”). To the extent defendants went further, implying that

cooperation might prompt the Blackman family to forego pressing

charges, while prosecution would put Mara in jail with killers,

robbers, and drug addicts, such tactics may inform the voluntariness

of a defendant’s ensuing statements and, therefore, their

admissibility. But no clearly established precedent holds such

conduct conscious‐shocking or intolerable as required to demonstrate

a violation of due process or intentional infliction of emotional

distress. See, e.g., Rochin v. California, 342 U.S. at 171; Huguez v. United

States, 406 F.2d 366, 381–82 (9th Cir. 1968) (concluding that officers’

forcible removal of drugs from rectum of handcuffed defendant held

spread‐eagled on table constitutes conscious‐shocking conduct); cf.

Green v. Scully, 850 F.2d 894, 903 (2d Cir. 1988) (observing, in case

where one officer improperly referenced electric chair while other

officer said case was not about electric chair, that other evidence

showed ensuing admissions were not coerced).

The same conclusion obtains with respect to defendants’

misrepresentations about the strength of the evidence against Mara,

specifically, the insinuation that the police already had eyewitness

identifications of Mara as Blackman’s assailant when, in fact, the only

eyewitness then known to the police, Kazmierczak, had failed to

identify Mara in the first photo array shown to him. This conduct,

too, is relevant to voluntariness. See, e.g., Frazier v. Cupp, 394 U.S. 737,

739 (1969) (holding that officer’s false statement, although relevant to

voluntariness, did not render particular confession inadmissible);

United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991) (holding that

even if agent’s statements were “false, misleading, or intended to trick

51

and cajole” defendant into confessing, suppression was warranted

only if totality of circumstances showed defendant’s will was

overborne by agent’s conduct); Green v. Scully, 850 F.2d at 903 (stating

that officer’s false representation of fingerprint match “makes the

issue of voluntariness in this case such a close one” but, nevertheless,

finding confession voluntary). Nevertheless, it is not so outrageous or

conscience‐shocking as to violate due process.

This is not to condone all police deceit or trickery, which can,

after all, take various forms, from undercover operations, see Hoffa v.

United States, 385 U.S. 293 (1966) (identifying no coercion in such

circumstances), to threats to child welfare, see Lynumn v. Illinois, 372

U.S. 528, 534–35 (1963) (holding coercive repeated police

misrepresentations that suspect would be deprived of financial aid

for dependent child). It is simply to note that government

misrepresentations about the strength of its evidence may inform

voluntariness; but such conduct here is not so outrageous or

inhumane as to violate due process or Connecticut law.

Nor is a different conclusion warranted by the district court’s

observation that defendants “did not relent” until they got Mara to

say that “their version [of events] might be true,” i.e., that Mara

“could” have hit Blackman and not remembered because of how

drunk he was on New Year’s Eve. Mara v. MacNamara, 2017 WL

4368612, at *5. Like the other conduct discussed, persistent

questioning may raise voluntariness concerns, but it does not violate

substantive due process. See Chavez v. Martinez, 538 U.S. at 775–76

(holding that even if persistent questioning implicates liberty interest,

it is not conscious‐shocking). Indeed, Mara himself appears to have

sown the seed for the challenged police query about what he could have

done without remembering. Early in the interview, Mara volunteered

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that it was only after the fact that he learned of an argument at the party

where “Phil” was hit with a bottle. App’x 359. He himself did not

“remember” these occurrences, explaining, “I don’t know if it’s because

I drank so much, but I just don’t remember it.” Id. In these

circumstances, it was not shocking or brutal for police to have pressed

him as to whether he might also fail to remember being the person who

hit Blackman.

In sum, because Mara’s interrogation cannot be characterized

as brutal or extreme, he cannot show a violation of substantive due

process or state tort law, much less show that established precedent

would have required every reasonable officer to have recognized

such violations. Accordingly, defendants are entitled to qualified

immunity on these claims.

CONCLUSION

To summarize, we conclude that qualified immunity entitles

defendants Rilling, Nook, and Hine to summary judgment on all

Mara’s constitutional and state law claims.

1. As to Mara’s false arrest and malicious prosecution claims:

a. The record cannot support an objectively reasonable

belief that Mara was under arrest on January 2, 2013,

and thus, every reasonable police officer would not

have been compelled to conclude that probable cause

was required to interview Mara on that date;

b. The February 2013 warrant for Mara’s arrest was

supported by probable cause, specifically,

Kazmierczak’s January 3, 2013 photo‐array

identification of Mara as Blackman’s assailant.

Precedent would not compel every reasonable officer

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to conclude that the circumstances of that

identification—inclusion of a different photograph of

Mara than that used in the first array—were unduly

suggestive, much less so defective as to preclude the

identification from informing a probable cause

determination. Thus, Mara’s second arrest claim fails

without regard to whether allegedly coerced

statements are deleted from the warrant affidavit. The

same probable cause conclusion defeats Mara’s claim

of a maliciously initiated prosecution.

2. Because Mara’s allegedly coerced statements were not

necessary to establish probable cause for an arrest warrant—

their only use—he cannot maintain a coercion claim under

the Fifth (or Fourth) Amendment or state law.

3. The procedures used to interrogate Mara, including deceit

and fear, were nevertheless not so shocking, brutal, and

inhumane that every reasonable police officer would be

compelled to recognize that they violated substantive due

process.

Accordingly, the order denying qualified immunity is

REVERSED and we direct the entry of judgment in favor of

defendants Rilling, Nook and Hine on all outstanding claims.