Newspaper trespasser cannot sue the police -- or the paper

The plaintiff sued the local newspaper for trespass after they had him arrested for showing up against their wishes. He also sued the police. Let's face it, there are some people -- you just don't want them around. The district court dismissed the case and the Court of Appeals affirms.

The case is Russell v. The Journal News, a summary order decided on December 5. The Second Circuit tells us very little about what happened here other than that the the Journal News told the police that he was "causing alarm" to its employees. The paper sent a letter to plaintiff's attorney that he was prohibited from entering the property. On the day of his arrest, the paper told the police that plaintiff was back. The police saw plaintiff seated on a bench the police thought was Journal News property, and plaintiff got busted.

The criminal charge against plaintiff was dismissed because the accusatory instrument was insufficient on its face. The prosecution then failed to file new charges, and that was the end of the criminal case. As the late Judge Brieant used to tell us, this gives the plaintiff a ticket to the courthouse. But it does not mean the plaintiff can win the case. There are too many defenses available to the police that courts can choose from once the plaintiff brings his lawsuit.

Plaintiff did not just sue the newspaper. He sued the police for malicious prosecution. But as the Court of Appeals (Walker, Hall and Chin) reminds us, facial insufficient dismissals are not dismissals on the merits. Without a dismissal on the merits, there is no malicious prosecution claim. That's a drag, because if the police don't have the wherewithal to write out the charges properly, you ought to be able to sue for something, right? But you can't.

Turning to the case against the newspaper, we run into another defense the police can invoke in litigation: qualified immunity. The general public knows nothing about this immunity, which gives the police the benefit of the doubt in close cases. We call it "arguable probable cause," which is as good as the probable cause defense that kills off so many false arrest cases. The Second Circuit phrases the issue very carefully: the police saw plaintiff on what they thought was a Journal News bench. Who knows who really owned the bench. But it is close enough. Case dismissed.

Interesting language buried in the opinion. The Court of Appeals notes that probable cause cannot exist if the police make the arrest "entirely on baseless or unreasonable conjectures and assumptions." This language derives from Mitchell v. City of New York, 2016 WL 631801 (2d Cir. Oct. 28, 2016). The plaintiff in this case cannot use that language, because there was no conjecture here. But expect to see that language pop up in other cases. It opens the door for creative plaintiffs' lawyers to chip away at the probable cause defense.