3 4 August Term, 2005 5 6 Argued: February 7, 2006 Decided: June 18, 2007 7 8 Docket… v. Johnson, 202 F.3d 19 515, 517-24 2d Cir. 2000 . We summarize only the facts 20 that…

* The Honorable John R. Gibson, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
1
05-3341-cv
W ray v. City of New York
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2005 5
6
(Argued: February 7, 2006 Decided: June 18, 2007) 7
8
Docket No. 05-3341-cv 9
10
- - - - - - - - - - - - - - - - - - - -x 11
RAYMOND WRAY, 12
13
Plaintiff-Appellee, 14
15
- v.- 16
17
CITY OF NEW YORK, DANIEL MARTORANO, 18
WILLIAM WELLER, JAMES MCCAVERA and 19
NEW YORK CITY POLICE DEPARTMENT, 20
21
Defendants-Appellants. 22
23
- - - - - - - - - - - - - - - - - - - -x 24
25
Before: JACOBS, Chief Judge, POOLER, and GIBSON, 26
Circuit Judges.*
27
28
Interlocutory appeal from an order of the United States 29
District Court for the Eastern District of New York 30
(Weinstein, J.) denying motions for summary judgment by 31
defendants-appellants City of New York and New York City 32
Police Officer William Weller. 33

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2
Vacated and Remanded. 1
2
ALAN BECKOFF, Assistant 3
Corporation Counsel (Michael A. 4
Cardozo, Corporation Counsel of 5
the City of New York, on the 6
brief; Stephen J. McGrath, Liora 7
Jacobi, of counsel), New York, 8
New York, for Defendants- 9
Appellants. 10
11
DAWN M. CARDI (Robert Rosenthal, 12
on the brief), New York, New 13
York, for Plaintiff-Appellee. 14
DENNIS JACOBS, Chief Judge: 15
Having prevailed in federal habeas proceedings and 16
avoided retrial on the charge of armed robbery, Raymond Wray 17
brought suit under 42 U.S.C. § 1983 against various parties 18
he deemed responsible for the constitutional violation that 19
led to his conviction. The United States District Court for 20
the Eastern District of New York (Weinstein, J.) granted the 21
defendants summary judgment on all claims but two. In 22
denying summary judgment on those two claims--Wray’s claims 23
against Officer William Weller of the New York City Police 24
Department and the City of New York--the district court 25
recited that immediate appellate review of that ruling is 26
desirable because they involve controlling questions of law 27
as to which there is substantial ground for difference of 28

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3
opinion. Pursuant to 28 U.S.C. § 1292(b), we accepted 1
defendants’ interlocutory appeal. 2
This interlocutory appeal raises two controlling issues 3
of law: where the admission of testimony at trial regarding 4
a witness identification violated a defendant’s right to due 5
process and a fair trial, whether the defendant [i] can 6
establish a § 1983 claim against the officer who conducted 7
the identification procedure; and [ii] can establish a § 8
1983 “failure to train and supervise” claim against the 9
police department. We answer both questions in the 10
negative. The district court’s denial of summary judgment 11
is therefore reversed and we remand to the district court 12
with instructions to enter judgment for defendants on Wray’s 13
remaining two claims. 14
15
BACKGROUND 16
A detailed background of Wray’s arrest, prosecution, 17
and conviction is found in our opinion reversing the denial 18
of Wray’s habeas petition. See Wray v. Johnson, 202 F.3d 19
515, 517-24 (2d Cir. 2000). We summarize only the facts 20
that bear on the issues presented on this appeal, construing 21
the evidence in the light most favorable to Wray, as the 22

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4
non-moving party. Huminski v. Corsones, 396 F.3d 53, 69 (2d 1
Cir. 2005). 2
Three New York City police officers were conducting a 3
stakeout observation from the roof of a Queens restaurant in 4
November 1990, when they saw a man wearing a long black coat 5
and a hat who was pointing a gun at another man and took his 6
jacket. The victim and the robber were each accompanied by 7
another man. 8
Officers William Weller and James McCavera left the 9
rooftop and apprehended on the street the person who was 10
with the robber (Dennis Bailey). Having learned that the 11
man in the coat and hat had gone inside the restaurant, 12
Officers Weller and McCavera went in, found the stolen 13
jacket, and arrested Raymond Wray, who was wearing a long 14
black coat and a hat. 15
The victim of the robbery, Melvin Mitchell, and Craig 16
Williams (who accompanied him) were no longer at the scene; 17
but Mitchell was told shortly thereafter by another officer 18
that the robbers had been apprehended and that he should go 19
to the police station. Within hours of the arrests, 20
Mitchell and Williams went to the station. According to the 21
police, each was taken to look at Wray, who was in a holding 22

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5
cell, and each independently confirmed that Wray was the 1
gunman. Williams later testified that he believed the name 2
of the officer who conducted the showup identification 3
“starts with a W. Wellie”--which could reasonably be found 4
to be Officer Weller. 5
Wray was indicted on multiple counts of first-degree 6
robbery and weapons possession. Bailey pled guilty to one 7
count of criminal possession of a weapon, but went to trial 8
on the robbery and other weapons charges. At the start of 9
his trial in New York Supreme Court, Queens County, in April 10
1992, the trial court held a Wade hearing on Wray’s motion 11
to suppress the stationhouse showup identifications. 12
Mitchell, Williams, and Officer Daniel Martorano (the third 13
officer at the scene) testified as to the identification 14
procedure. After the hearing, the trial court granted 15
Wray’s motion to suppress Mitchell’s stationhouse 16
identification, but ruled that Williams could testify as to 17
his identification of Wray at the stationhouse. 18
Williams so testified, and the jury convicted Wray of 19
two counts of first-degree robbery, one count of second- 20
degree criminal possession of a weapon, and one count of 21
third-degree criminal possession of a weapon. 22

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6
On appeal, the Appellate Division, Second Department, 1
ruled that the trial court had erred in admitting testimony 2
regarding Williams’s stationhouse showup identification, 3
because it was the product of unduly suggestive police 4
procedures; but the Appellate Division nonetheless confirmed 5
the conviction on the ground that the error was harmless. 6
People v. Wray, 640 N.Y.S.2d 122 (App. Div. 1996). Leave to 7
appeal to the New York Court of Appeals was denied. People 8
v. Wray, 88 N.Y.2d 1025 (1996). 9
Wray petitioned for a federal writ of habeas corpus in 10
the Eastern District of New York, arguing that the admission 11
of testimony regarding Williams’s showup identification 12
violated his constitutional rights to due process and a fair 13
trial. The district court denied the petition on the ground 14
of harmless error. Wray v. Johnson, No. 96 CV 5139, 1998 15
U.S. Dist. LEXIS 10625 (E.D.N.Y. June 18, 1998). On 16
February 2, 2000, this Court concluded that the error was 17
not harmless and reversed, granting the petition 18
conditionally unless Wray was retried Wray within 90 days. 19
Wray v. Johnson, 202 F.3d 515 (2d Cir. 2000). The Queens 20
District Attorney’s Office declined to retry Wray, and he 21
was released after eight years in prison. 22

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7
On July 20, 2001, Wray filed this § 1983 action in the 1
Eastern District of New York. His second amended complaint 2
was filed on August 8, 2003 naming as defendants Officers 3
Weller, Martorano, and McCavera, the New York City Police 4
Department, and the City of New York. The complaint alleges 5
violations of the United States Constitution and state law, 6
including denial of due process, false arrest, malicious 7
prosecution, and failure to train and supervise police 8
officers. 9
On April 14, 2004, defendants moved for summary 10
judgment pursuant to Fed. R. Civ. P. 56, arguing probable 11
cause, qualified immunity, and failure to state a claim. By 12
opinion and order dated October 18, 2004, the district court 13
granted summary judgment to defendants on all but two of 14
Wray’s claims, but noted the desirability of an 15
interlocutory appeal of its decisions with respect to the 16
two remaining claims against: [i] Officer Weller for 17
performing an unduly suggestive showup, and [ii] the City of 18
New York for failing to adequately train and supervise its 19
police officers on proper identification procedures. Wray 20
v. City of New York, 340 F. Supp. 2d 291 (E.D.N.Y. 2004). 21
Both parties sought interlocutory review of the 22

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8
district court’s opinion and order. On June 30, 2005, this 1
Court denied Wray’s motion but granted defendants’. 2
3
DISCUSSION 4
We review de novo the district court’s denial of 5
summary judgment. Maxwell v. City of New York, 102 F.3d 6
664, 667 (2d Cir. 1996). In doing so, we construe the 7
evidence in the light most favorable to the non-moving party 8
and draw all reasonable inferences in its favor. Maguire v. 9
Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir. 10
1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 11
255 (1986)). Summary judgment is appropriate only where 12
“there is no genuine issue as to any material fact and . . . 13
the moving party is entitled to a judgment as a matter of 14
law.” Fed. R. Civ. P. 56(c). 15
16
A. The Suggestive Showup Identification 17
Wray alleges that Officer Weller violated his 18
constitutional due process and fair trial rights by 19
conducting the unduly suggestive showup identification, and 20
seeks damages under § 1983 for his conviction and 21
incarceration. Officer Weller argues that he cannot be held 22

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9
liable for Wray’s conviction or incarceration because, even 1
assuming (as we must on summary judgment) that Officer 2
Weller conducted the suggestive showup identification, 3
superseding acts by both the prosecutor and trial judge 4
broke the chain of causation between Weller’s conduct and 5
the violation of Wray’s constitutional rights. 6
As we explained when we conditionally granted Wray’s 7
habeas petition, we have not held that a suggestive 8
identification alone is a constitutional violation; rather, 9
the constitutional violation is that Wray’s right to a fair 10
trial was impaired by the admission of testimony regarding 11
the unreliable identification: 12
In the context of an identification following a 13
police procedure that was impermissibly 14
suggestive, the due process focus is principally 15
on the fairness of the trial, rather than on the 16
conduct of the police, for a suggestive procedure 17
“does not itself intrude upon a constitutionally 18
protected interest.” 19
20
Wray, 202 F.3d at 524 (quoting Manson v. Brathwaite, 432 21
U.S. 98, 113, n.13 (1977)) (emphasis added); see also Wray, 22
340 F. Supp. 2d at 302 (explaining that there is no 23
constitutional right not to be subjected to an 24
unconstitutionally suggestive identification). “Suggestive 25
procedures are disapproved ‘because they increase the 26

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10
likelihood of misidentification,’ and it is the admission of 1
testimony carrying such a ‘likelihood of misidentification 2
which violates a defendant’s right to due process.’” Wray, 3
202 F.3d at 524 (quoting Neil v. Biggers, 409 U.S. 188, 198 4
(1972)). 5
The question is whether Wray can establish a claim 6
against Officer Weller for the erroneous admission at trial 7
of testimony regarding the unduly suggestive identification. 8
We agree with the defendants that extending liability to 9
Officer Weller is unprecedented and unwarranted. In the 10
absence of evidence that Officer Weller misled or pressured 11
the prosecution or trial judge, we cannot conclude that his 12
conduct caused the violation of Wray’s constitutional 13
rights; rather, the violation was caused by the ill- 14
considered acts and decisions of the prosecutor and trial 15
judge. 16
17
* * * 18
Our analysis of constitutional torts--like any other 19
tort--is guided by common-law principles of tort. See, 20
e.g., Malley v. Briggs, 475 U.S. 335, 345 (1986) (“As we 21
stated in Monroe v. Pape, 365 U.S. 167, 187 (1961), 22

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11
[overruled on other grounds by Adarand Constructors v. Pena, 1
515 U.S. 200, 233 (1995),] § 1983 ‘should be read against 2
the background of tort liability that makes a man 3
responsible for the natural consequences of his actions.’ 4
Since the common law recognized the causal link between the 5
submission of a complaint and an ensuing arrest, we read § 6
1983 as recognizing the same causal link.”); Lombard v. 7
Booz-Allen & Hamilton, Inc., 280 F.3d 209, 216 (2d Cir. 8
2002) (quoting Palka v. Servicemaster Mgmt. Servs. Corp., 83 9
N.Y.2d 579 (1994)); Zahrey v. Coffey, 221 F.3d 342, 351 (2d 10
Cir. 2000) (collecting cases); Townes v. City of New York, 11
176 F.3d 138, 147 (2d Cir. 1999) (same). 12
Our conclusion follows from our previous holding in 13
Townes, a § 1983 case brought by a plaintiff whose 14
conviction was reversed on the ground that the trial court 15
had erroneously denied a motion to suppress illegally-seized 16
evidence. The plaintiff sued the officers who conducted the 17
illegal search, seeking damages for his conviction and 18
incarceration. We ruled that the officers’ conduct violated 19
the plaintiff’s right to privacy, but that damages for this 20
violation had not been sought and were likely nominal. We 21
declined, however, to allow recovery against the officers 22

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12
for the conviction and incarceration, holding that the trial 1
judge’s decision to admit the evidence constituted a 2
superseding cause. Townes, 176 F.3d at 147. 3
The causation alleged by Wray is even more tenuous than 4
the causation alleged in Townes. In Townes, the officers 5
conducted an illegal search that both [i] was in itself a 6
violation of plaintiff’s constitutional rights, and [ii] 7
contributed to the events that led to plaintiff’s conviction 8
and incarceration; of these, only the former was deemed a 9
possible claim, albeit for nominal damages (and attorney’s 10
fees). In Wray’s case, the alleged conduct of Officer 11
Weller was not in itself illegal or unconstitutional. The 12
constitutional harm occurred when the showup was 13
impermissibly used to compromise the fairness of Wray’s 14
trial--at behest of the prosecutor, by order of the trial 15
court, and beyond Officer Weller’s control. 16
Townes involved a Fourth Amendment claim, but there is 17
no reason to read Townes as so limited. The holding in 18
Townes rests on the broad principles that [i] “the goal of 19
the Court’s § 1983 jurisprudence has been to tailor 20
liability to fit the interests protected by the particular 21
constitutional right in question,” and [ii] “§ 1983 damages 22

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13
should be made available only for risks that are 1
constitutionally relevant.” Townes, 176 F.3d at 148 2
(internal quotation marks omitted). See also Zahrey, 221 3
F.3d at 350-51 (stating that a § 1983 court is concerned 4
with the “legally cognizable result” of misconduct). Wray 5
advocates a distinction between Fourth Amendment violations 6
(which result in a violation of privacy) and the admission 7
of testimony regarding an impermissibly suggestive 8
identification (which may result in unreliable convictions). 9
But that distinction bears only on damages, and particular 10
consequences of a violation (if there is one). Since 11
Officer Weller’s conduct was not itself a constitutional 12
violation, there is a “gross disconnect” between the conduct 13
and the injury for which Wray seeks to recover. Townes, 176 14
F.3d at 148. 15
Wray also relies on Zahrey, a § 1983 case against an 16
Assistant United States Attorney (“AUSA”) who allegedly 17
conspired to fabricate evidence and then used the fabricated 18
evidence to prosecute Zahrey, who was indicted by a grand 19
jury but later acquitted. The district court dismissed the 20
claim. In reversing, we held that Zahrey adequately pled a 21
deprivation of liberty. Although an AUSA enjoys absolute 22

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14
immunity in introducing evidence before the grand jury 1
(regardless of its veracity), the evidence in Zahrey was 2
fabricated in the course of an investigation, as to which 3
that AUSA’s immunity was merely qualified. The absolutely 4
privileged act did not break the chain of causation because, 5
under our line of cases extending liability where the 6
wrongdoer misled or coerced the intervening decision-maker, 7
the AUSA would have been liable even if the fabricated 8
evidence had been adduced by another prosecutor. Zahrey, 9
221 F.3d at 353 & n.10 (“It would be a perverse doctrine of 10
tort and constitutional law that would hold liable the 11
fabricator of evidence who hands it to an unsuspecting 12
prosecutor but exonerate[s] the wrongdoer who enlists 13
himself in a scheme to deprive a person of liberty.”). 14
Wray’s claim against Officer Weller is readily 15
distinguishable from Zahrey on two sufficient grounds: [i] 16
Officer Weller’s conduct, which later formed the basis of 17
the constitutional deprivation, was not in itself a 18
violation of Wray’s constitutional rights; and [ii] the 19
constitutional deprivation was caused by an intervening 20
actor, not by Officer Weller. See id. at 353-54 21
(emphasizing that “the same person” committed the initial 22

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15
wrong and then used the tainted evidence at trial). Weller 1
testified at Wray’s trial, but there is no allegation that 2
Wray misled the persons whose acts effected the 3
constitutional violation. 4
Wray seizes on language in Zahrey that notes tension in 5
§ 1983 jurisprudence between cases, such as our discussion 6
in Townes, in which the chain of causation was broken by the 7
intervening exercise of independent judgment, and cases in 8
which defendants were liable for consequences caused by 9
reasonably foreseeable intervening forces. The latter cases 10
typically involve situations in which the defendant misled 11
or coerced the intervening decision-maker such that the 12
decision-maker’s conduct was tainted; but the Zahrey opinion 13
wondered aloud why such misconduct would be necessary under 14
the doctrine of reasonable foreseeability: 15
Even if the intervening decision-maker (such as a 16
prosecutor, grand jury, or judge) is not misled or 17
coerced, it is not readily apparent why the chain 18
of causation should be considered broken where the 19
initial wrongdoer can reasonably foresee that his 20
misconduct will contribute to an “independent” 21
decision that results in a deprivation of liberty. 22
23
Zahrey, 221 F.3d at 352. The court declined to decide that 24
issue because Zahrey involved “the unusual circumstance that 25
the same person took both the initial act of alleged 26

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16
misconduct and the subsequent intervening act,” so that the 1
case could be decided “[h]owever the causation issue is to 2
be resolved in the law enforcement context in cases where an 3
initial act of misconduct is followed by the act of a third 4
person.” Id. The causation analysis in that case therefore 5
did not reach or decide the causation issues raised by Wray 6
here. 7
In Zahrey, we posed the question why an “initial 8
wrongdoer” may escape the reasonably foreseeable 9
consequences of his actions. It is always possible that a 10
judge who is not misled or deceived will err; but such an 11
error is not reasonably foreseeable, or (to use the phrase 12
employed in Zahrey, 221 F.3d at 350-51) it is not the 13
“legally cognizable result” of an investigative abuse. 14
Moreover, in the absence of evidence that Officer Weller 15
misled or pressured the prosecution or trial judge, he was 16
not an “initial wrongdoer.” Id. at 352. And if his conduct 17
amounted to a wrong under state common law or statutory law, 18
it would still not constitute a violation of a federal 19
constitutional right enforceable under § 1983. We therefore 20
conclude that Officer Weller cannot be held liable under § 21
1983 for Wray’s conviction and incarceration. 22

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17
B. Failure to Train and Supervise 1
“[T]o hold a city liable under § 1983 for the 2
unconstitutional actions of its employees, a plaintiff is 3
required to plead and prove three elements: (1) an official 4
policy or custom that (2) causes the plaintiff to be 5
subjected to (3) a denial of a constitutional right.” 6
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). The 7
failure to train or supervise city employees may constitute 8
an official policy or custom if the failure amounts to 9
“deliberate indifference” to the rights of those with whom 10
the city employees interact. City of Canton v. Harris, 489 11
U.S. 378, 388 (1989). To establish “deliberate 12
indifference,” a plaintiff must show that: [i] a policymaker 13
knows “to a moral certainty” that city employees will 14
confront a particular situation; [ii] the situation either 15
presents the employee with “a difficult choice of the sort 16
that training or supervision will make less difficult” or 17
“there is a history of employees mishandling the situation;” 18
and [3] “the wrong choice by the city employee will 19
frequently cause the deprivation of a citizen’s 20
constitutional rights.” Walker v. City of New York, 974 21
F.2d 293, 297-98 (2d Cir. 1992). “[A] policymaker does not 22

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18
exhibit deliberate indifference by failing to train 1
employees for rare or unforeseen events.” Id. at 297. 2
Moreover, where (as here), a city has a training program, a 3
plaintiff must--in addition--“identify a specific deficiency 4
in the city’s training program and establish that that 5
deficiency is ‘closely related to the ultimate injury,’ such 6
that it ‘actually caused’ the constitutional deprivation.” 7
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d 8
Cir. 2004) (quoting City of Canton, 489 U.S. at 391). 9
In light of our conclusion that there was a break in 10
the chain between Officer Weller’s alleged conduct and the 11
denial of Wray’s constitutional rights, Wray’s claim 12
regarding the City’s failure to train or supervise its 13
police officers likewise fails for lack of causation. 14
Officer Weller’s conduct was not itself the cause of the 15
constitutional deprivation; the City’s alleged failure to 16
train him adequately--a step even further removed--cannot, 17
therefore, be the “actual cause” of the constitutional 18
deprivation. 19
Moreover, Wray has failed to adduce evidence that any 20
failure to train reflected “deliberate indifference” to the 21
rights of others. “Deliberate indifference” involves the 22

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19
conscious disregard of the risk that poorly-trained 1
employees will cause deprivations of clearly established 2
constitutional rights. Amnesty Am., 361 F.3d at 127 n.8. 3
The record evidence establishes that, since 1988, the New 4
York City Police Department has engaged in extensive 5
training on how to conduct identifications. Although Wray 6
posits defects in the Department’s testing procedures, Wray 7
has put forth no evidence that these defects are the result 8
of deliberate indifference. See City of Canton, 489 U.S. at 9
391 (“Neither will it suffice to prove that an injury or 10
accident could have been avoided if an officer had had 11
better or more training, sufficient to equip him to avoid 12
the particular injury-causing conduct.”). Wray submitted a 13
list of New York cases in which suggestive show-up 14
identification evidence was impermissibly admitted by 15
courts; but only one post-dates 1992--a telling datum when 16
one considers the thousands of identifications conducted by 17
each New York City Police Department precinct each year. 18
The police training thus appears to be largely successful. 19
20
Conclusion 21
For the foregoing reasons, we VACATE the judgment of 22

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20
the district court and REMAND the case to the district court 1
with instructions to enter judgment as a matter of law in 2
favor of defendants on the remaining claims. 3

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