This is what probable cause looks like

False arrest cases are difficult to bring because the police get the benefit of the doubt in proving probable cause, the existence of which kills the case. Making things a little more difficult are the Supreme Court's new pleading standards which prohibit conclusory and speculative allegations. Plausibility is the name of the game these days. I would also say that the courts are not going to be sympathetic to cases like this when the plaintiff is charged with a repulsive crime. The courts may not admit it, but that has to subconsciously factor into the analysis. This is one of those cases.

The case is Virgil v. Town of Gates, a summary order decided on January 6. The plaintiff sues for false arrest and malicious prosecution arising from his arrest for child abuse in connection with his 18 year-old daughter. The case was dismissed under Rule 12, which means the parties did not even commence discovery; it was dismissed on the pleadings. Virgil says his arrest was unconstitutional, but the Court of Appeals says he does not allege a plausible claim, for the following reasons:

1. Plaintiff's daughter had two months earlier identified Virgil (among other people) as her rapist. Witness identification of the perpetrator is usually enough to show probable cause.While the Complaint cites the victim's "fragile mental health as a circumstance raising veracity concerns," the Court of Appeals (Calabresi, Raggi and Lohier) says that "the record shows that these concerns were sufficiently dispelled before arrest and indictment -- by the defendant, the victim, and hospital records -- to support the probable cause determination."

2. But the victim's witness statement is not all that dooms this case. "Virgil confirmed that his daughter's rape claim was not fabricated from whole cloth," as he told the police that a neighbor had raped his daughter and he "insinuated possible untoward sexual contact with his son's friend." The victim then signed a sworn statement implicating her father.

This case shows what modern pleading standards look like. Under the Supreme Court's Iqbal decision, you need to show the case is plausible. Conclusory allegations are not going to cut it. Virgil says in the Complaint that a police defendant told him that the daughter had recanted the rape allegation and said that she was "pushed to disclose" what had happened to her. But this is a conclusory statement, not enough for Virgil to proceed to discovery. Also, while the lawsuit claims that the police did not review hospital records that would have undermined the victim's credibility, the records themselves (presumably submitted in support of the defendants' Rule 12 motion to dismiss) show that the victim suffered bruising consistent with her rape charge. Other claims in the Complaint -- that the police "apparently" withheld DNA evidence and photographs -- are conclusory and speculative.