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Date: 04-10-2019

Case Style:

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

Case Number: 17-3326-cv

Judge: Reena Raggi

Court: United States Court of Appeals for the District of Connecticut (New Haven County)

Plaintiff's Attorney: Andrew Bruce Bowman

Defendant's Attorney: Thomas Gerade

Description:




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
52
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
53
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.

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

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