Schoolcraft v. The City Of New York et al

Filing 92

Letter addressed to Judge Robert W. Sweet from Joshua P. Fitch dated 6/20/12 re: Counsel for the plaintiff requests that the Court reconsider the portion of its ruling on the First Amendment Claim relating to the prior restraint imposed on plaintiff's speech following plaintiff's suspension on 10/31/99. Document filed by Adrian Schoolcraft. ***Accepted as a docket and file by Chambers. (mro) (mro).

233 BROADWAY, SUITE 1800
NEW YORK, NY 10279
TEL: [phone]
PAX: 212.406.2313

June 20, 2012

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BYFACSIMILE
112-805-7925
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:

~choolcraO

v. Citv ofNew York. et lli.

J0 CV 6005 (RWS)

Your Honor:
I am co-counsel for plaintiff in the above-referenced matter. I vvrite now to
respectfully request that the Court reconsider the portion of jts ruling on the First
Amendment Claim relating to the prior restraint imposed on plaintiffs speechfollowing
plaintiff's suspension on October 31, 2009. Specifically, it is respectfully submitted that
this Court's decision overlooked the actions of the NYPD defendants in harassing and
intimidating plaintiff at his home in upstate New York after he was suspended from the
department and no longer under any job duty to speak out about the corruption he
witnessed, which constituted a prior restraint on he speech as a citizen.

T.

Following Plaintiff's Suspension aD October 31, 2009, He was No Longer
Speaking Pursuant to His Job Duties as an NYPD Officer

In the present matter, it is respectfully submitted that the court overlooked the fact
that the allegations contained in the complaint clearly allege that afler the October 31,
2009 incident, when plaintiff was suspended from the force, several members of the
NYPD repeatedly. and over the course of several months, made unwanted and uninvited
trips to plaintiffs home in upstate New York. (See Amended CampI. at", 206-210).
Further. it is also alleged that those contacts were an overt attempt to intimidate plaintiff
- namely, unifonned officers banging and kicking his door in a menacing manner and
spying on him through his windows. (Id.). Moreover, it is alleged that those actions were
taken in order to scare, threaten and coerce plaintiff into not disclosing evideu.ce of the
NYPD's corruption and iHegal practices to the public at large. (Id.). Specifically, the
allegations in the complaint are as follows:

Notwithstanding this move, between December 2009 and c~ntinuing on
through the present, armed NYPD officials contin~ed their, relentle~s
efforts to silence, harass and/oX' otherwise harm pl~int1ff ru::- d hIS fathe~ m
the fonn of making over a dozen appearances at h!.s home in llpstate New
York.

During these "visits", the NYPD has dispatched teams of armed detectives
and other armed members of the New York City Police DepartInent to
har:ass and intimidate plaintiff by pounding and kicking on his door and
shouting "NYPD. WE KNOW YOUlRE IN THERE, OPEN UP!!!"

In one instance, on December 9, 2009, an armed NYPD Sergeant drove
three hundred fifty (350) miles outside of NVPD jurisdiction - on
tax.payer's money - merely to "spy" on plaintiff through his bedroom
window.

In response to this blatant and endless attempt to continuously harass and
intimidate plaintiff, plaintiff moved his bed out of said bedroom in order
to prevent imminent physical and emotional harm upon his person.
Notwithstanding this action, anned NYPD officials continue, up and
through the present, to come to his home) repeatedly pound on his door,
photograph him. a.nd engage in efforts designed to purposefully intimidate
and harass plaintiffin a tireless effort to silence him once and for all.
(Amended Compl. at ml 206-10)(emphasis added).

All of these acts occurred after the plaintiff was suspended from the NYPD
immediately following the October 31) 2009 incident' As such~ it cannot be said that
any such prospective speech following the October 31, 2009 incident would have been
pursuant to the duties of a suspended NYPD officer nor would his behavior have been
governed by the Patrol Guide at that time. In fact, the Patrol Guide is utterly silent
regarding the duties of a "suspended" or "modified" police officer. Consequently, given
plaintiff's suspension from the police force at the time that these coercive and threatening
acts were being undertaken by defendants, it is clear that any speech intended to be
uttered would have been as a citizen and not pursuant to any of his duties. 2 Further, as
will be discussed infr~ once it is established that plaintiff was speaking as a citizen at
that time, the allegations of defendants' behavior in attempting to continue to silence him
sufficiently assert a prior restraint on speech as a matter of law.

It is undisputed that piaintiffw3S suspended the very same night of the October 31,2009 incident.
Unlike a retaliation claim, the plaintiff need not utter any speech at all, rather the First Amendment
violation. is esta~lished by acts that attempt inhibit or prohibit speech altogether. See Kirktl.ilpjck v. Village
of Wasl!mgtonv:ll~, 20! I WI. 133,0745, *7 (Sp.N. Y. 2011 )("There is no speech that was punished in this
CIISC. Instead, thIS IS an IS$;ue ofp1'1or restraint In the form of the gag order.")(emphasis added).
I

2

Additionally, assuming arguendo that it can even be argued - w~ch it cannot ­
that plaintiff was stillllllder a duty to report corruption as a suspended pollce officer who
was not reporting to any command, was stripped of his weapon and badge and could not
perfonn any other normal police function, it certainly cannot be detennined as a matter of
law at the pleading stage. Further, at that time the subject matter of his speech was also
broader than just departmental cOfIUption, but now included his illegal and involuntary
confinement, which certainly did occur pursuant to any job duty and thus would also fall
outside the confines of .Q.arcetti v. Ceballos, 547 U.S. 410 (2006). Accordingly, the
allegations in the complaint - at least 'With respect to any speech that was uttered or
intended to be uttered after plaintiff was suspended following the October 31, 2009
incident - sufficiently establish the protected speech of a citizen, or at minimum, a factual
issue precluding resolution at the pleadin.g stage.

II.

Defendants Actions After Plaintiff Was Suspended Constituted a Prior
Restraint on Plaintiff's Speech

It is well established that actions of intimidation, threats and/or coercion can form
the basis of a prior restraint on speech in violation of an individual's rights under the First
Amendment. See Grennan v. Nassau CountY, 2007 WL 952067, *12 (E.D.N.Y.
2007)('''In detennining whether a particular request to suppress speech is constitutional,
what matters is the 'distinction between attempts to convin.ce and attempts to coerce. ''');
Zieper v. Metzinger, 392 F.Supp.2d 516, 528 (S.D.N.Y. 2005)C"Zieper must demonstrate
that there is a genuine issue of material fact as to whether a reasonable person would feel
coerced by his contact with Metzinger:'); ~ also Penthouse v. McAuliffe, 610 F.2d
1353, 1361-1362 (5th Cir.l980) ("numerous and harassing arrests prior to a final
adjudication upon the issue of obscenity vel non ... [amounted] to an informal system
of prior restraint ... ")(alteration added); ACLU v. City of Pittsburgh. 586 F.Supp. 417,
427 (W.D.Pa.1984) (the "threatened 'massive sweep' and 'initiation of criminal
proceedings' against vendors of Hustler magazine, prior to a ju.dicial determ.iJJ.ation that
tbe...magazine was in fact obscene ... amounts to an unconstitutional abuse of power. ,,").

In the present matter, the complaint unquestionably contains allegations that
amply de.monstrate tbat a reasonable person would have been intimidated by the constant
harassment of uniformed police officers at his house yelling at him and spying on him
through his window. Moreover, the fact that some of the officers traveling 300 miles
outside their jurisdiction were the same officers involved in the corruption and illegal
activity that plaintiff had witnessed only contributes to the coercive nature of this activity.
Acco~dingly, defendants' attempts to harass and intimidate him after his suspension
constituted a prior restraint on his speech as a citizen regarding matters of public concern
in violation of his First Amendment rights, thus making his claim far from futile.> See
Zieper at 528:
~

3 As this court reco~niud in its decision, of.which th~ plainriff does not dispute, plaintiff's speech in this
matter was unquestl()nably a matter of public concern. See Sc1;lQQlcrafi: v. City of New York, 2012 WL
2161596, "'4 (S.D.N.Y. 2012)("A5 such, Plaintiff's speech concerned a mattcr of public concern.").

In both Penthouse v. McAuliffe and City of Pittsburgh, government
officials engaged in patterns of harassment, including warratltless arrests
and threats of prosecution, in an attempt to stop local sales of allegedly
obscene magazines. In each case, the court determined that the harassing
conduct resulted in a constructive seizure that ran afoul of the Constitution
by creating a prior restraint on speech in violation of the First and
Fourteenth Amendments.

Based on the foregoing, it is respectfully requested that Your Honor reconsider
the denial of plaintiffs motion to amend in light of the allegations constituting a prior
restraint on. plaintiff's speech after he was suspended from the NYPD.

III.

Plaintjff's Refusal to Comply with the NYPD's Unconstitutional Quota
Constituted Protected Speech Under JackJer v. Byrn~, 658 F.3d 225 (2d eir.
2011)

Not"ithstanding the prior restraint on plaintiff's speech after his suspension, it is
also respectfully requested that this Court reconsider its denial of plaintiff s First
Amendment retaliation claim based on plaintiff s refusal to comply with the illegal and
unconstitutional commands of his superiors. In finding that the plaintiff's speech ­
namely, the acts of filing and making complaints to supervisors and internal NYPD
agencies - did not constjtute protected speech under Garce.ni. the Court distinguished the
actions the plaintiff in this case with those of the police officer in Jackler. Specifically,
the Court characterized the speech at issue in Jackler as the officer's refusal to comply
with orders to suborn perjury, but not his reports filed in connection with those same
orders. Similarly, the allegations contained in the instant complaint clearly allege that
plaintiff also refused to comply with the directives of his supervisors to issue illegal
summonses pursuant to an unconstitutional quota in the absence of probable cause. The
allegations of those refusals are as follows:
Unlike many of his colleagues, plaintiff ADRIAN SCHOOLCRAFT
refused to issue or to be coerced to issue unwauanted and illegal
summonses and arrest innocent people in the absence of probable cause
simply to meet a quota.
.

Tn response to this ultimatum, plaintiff ADRIAN SCHOOLCRAFT
infonned defendant MASCOL that he would try to improve his activity
but that he would not write illegal summonses or arrest people in the
absence of probable cause to believe that a summonsable or atrestable
offense had been committed.
(Amended COtnDI. at ~~ 50, 63). As such, ifthe courts in Jackler and Matthews v.
Ci.ty of New York: 2012 U.S,. Dist. LEXIS 53213 (S.D.N.Y. Apri112. 2012) as well as
this Court recogmzed that FIrst Amendment protection was justified for the civilian

analog of refusing to comply with illegal or unconstitutional orders, then it is respectfully
submitted that the allegatjons contained herein contain a cognizable basis for a First
Amendment retaliation claim based on plaintiffs refusal to adhere to the unconstitutional
and illegal directives of his supervisors.
Accordingly. it is respectfully requested that this Court reconsider its denial of
plaintiff's motion to amend and allow plaintiff to amend his complaint in order to assert a
cause of action under the First A mendment.
.

Cc:

VIA FAX
Suzanna PubHcker, Esq.
Assistant Corporation Counsel
The City of New York Law Department
100 Church Street
New York, New York 10007
Gregory John Radornis1i
Martin Clearwater & Bell LLP
nd
220 East 42 Street, 13 th Floor
New York, NY 10017

Brian Lee
Ivon.e, Devine & Jensen LLP
2001 Marcus Avenue, Suite NIOO
Lake Success, NY 11042
Bruce M. Brady
Callan, Koster. Brady & Brennen LLP
1 Whitehall Street
New York, NY 10004