Probable cause for the officers who arrested plaintiff on sexual touching charges

This case reminds us once again how difficult it is to maintain a false arrest claim even when the underlying criminal charges are dismissed following a trial in criminal court. The victorious defendant still has to show the police officers lacked probable cause to make the arrest. This plaintiff cannot do so.

The case is Keyes v. City of New York, a summary order issued on January 13. Plaintiff was arrested and charged with forcible touching and third-degree sex abuse after police officers claimed to see him touching numerous womens' buttocks on the sidewalk in New York City. The criminal court judge dismissed the charges following a bench trial. That led plaintiff to file this false arrest case.

Plaintiff said he touched no one. But the arresting officers "each testified to separately following Keyes after he caught their attention by walking very closely to female pedestrians and appearing to look at their waistlines, creating a concern that he was pickpocketing.  According to both officers, they observed, from different vantage points, that Keyes was touching the buttocks of multiple women." While, the Court of Appeals notes, plaintiff testified that he did not touch any of the women, "Keyes has submitted no evidence that disputed the officers’ testimony that he walked closely behind multiple women even though there was room on the sidewalk for him to maintain more distance." Moreover, the Court (Bianco, Sack and Nathan) says, "although Keyes denied touching the women, he never testified to where his hands were while he walked closely behind these women, and it is thus uncontroverted that, at the very least, his hands were in close proximity to the women’s backsides. In other words, these uncontroverted facts were sufficient to establish probable cause for his arrest, even if the officers ultimately were mistaken in their observations."

This is how probable cause works under Section 1983. The police officers are allowed to get it wrong so long as they reasonably believed you committed an offense. Their version of some of the facts, which plaintiff does not controvert, is close enough. They reasonably thought plaintiff was touching womens' buttocks, even though he claims he was not. While the factual disputes were enough to ensure plaintiff's acquittal in criminal court, he cannot recover any damages in civil court.