Schoolcraft v. The City Of New York et al
Filing
98
Letter addressed to Judge Robert W. Sweet from Joshua P. Fitch dated 8/1/2012 re: Counsel respectfully request that Your Honor grant plaintiff leave to amend the complaint to add a First Amendment claim under 42 U.S.C. § 1983 relating to the prior restraint imposed on plaintiffs speech following plaintiffs suspension on October 31, 2009 and the actions taken against plaintiff in retaliation for plaintiff's speech in refusing to comply with the illegal and unconstitutional orders of this supervisors. (jfe)
COHEN & FITCH LLP
233 BROADWAY~ SUl'rE 1800
NEW YORK, NY 10279
TEL: 212,374.9115
FAX: 212.406.2313
August 1.2012
BY FACSIMILE
212-805-7925
HonQrable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:
IE U rEl~1
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AUG 0 1 2012 ![1lj
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JUDGE SWEET CHAMBERS
S"choolcl'aO v. Citv. o[New Yo,.!. et al•
.10 CV 6005 (RWS)
Your Honor:
I am co-counsel for plaintiff in the above-referenced matter. I write now to
respectfully request that Your Honor grant plaintiff leave to amend tbe complaint to add a
First Amendment claim undet 42 U.S.C. § 1983 relating to the prior restraint imposed on
plaintiffs speech following plaintiffs suspension on October 31, 2009 and the actions
taken against plaintiff in retaliation for plaintiff's speech in refusing to comply with the
illegal and unconstitutional orders ofbis supervisors,1
I.
Following Plawtifrs Suspension on October 31, 2009, He was No .Longer
Speaking Pursuant to His Job Duties as an NYPD Officer
The allegations contained in the complaint clearly allege that ofter the October 31,
2009 incident, when plaintiff was suspended from the force, severa) members of the
NYPD repeatedly. and over the course of several months, made lUlwanted and uninvited
trips to plaintiff's home in upstate New York. (See Amended CampI. at "'iI 206-210).2
Additionally, the allegations of prior restraint specifically include the campaign of
harassment and intimidation following plaintiff's suspension on October 31, 2009
namely, traveling three hundred miles outside of their jurisdiction in a concerted effort to
I The instant request is made mindful ofthe court's ruling on plaintiff's motion for reconsideration ~
July 18, 20 I Z Opinion, Docket Entry 95.) ("Accordingly plaintiff's motiol1 for reconsideration is denieoses of a motion
to dismiss, aU inferences are made in Plaintiffs! favor.
Based on ~e ~Otegoing. it is respectfully requested that Your Honor grant plaintiff
leave to amend In hght of the allegations constituting a prior restraint on plaintiff's
speech qfter he Wa$ suspended from the NYPD.
III.
Plaintiff's Refusal to Comply with the NYPD's Unconstitutional Quota
Constituted Protected Speech Under Jackler v.
Byrn~
658 F.3d 225 (2d Cir.
2011)
Notwithstanding the prior restraint on plaintiff's speech after his
suspensio~, i~
is
also respectfully requested that plaintiff be allowed to add a First Amendment retahatlOn
claim based on plaintiffs speech in refusing to comply with the illegal and
unconstitutional corrunands of his superiors. Under Jackler, the plaintiff's speech in
refusing to comply with the unconstitutional directive of his supervisors would afford
him protection under the First Amendment. Specifically, the speech at issue in Jackier
was 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 iJIegal summonses and make illegal arrests pursuant to an
unconstitutional quota in the absence ofptobable cause. The allegations of those refitsals
are as follows:
Unlike many of his colleagues, plaintiff ADRIAN SCHOOLCRAFT
refused to issue or to be coerced to issue unwarranted and illegal
stlInmonses and arrest innocent people in the absence of probabJe cause
simply to meet a quota.
In response to this ultimatum, plaintiff ADR.IAN SCHOOLCRAFT
informed defendant MASCOL that he would try to improve his activity
illegal summonses or arrest people in the
but that he would not
absence of probable cause to believe that a summonsable or arrestable
offense had been committed.
""nte
(Amended CompI. at ~ 50, 63).
FUrther~ the allegations contained in the complaint illustrate the orders that
plaintiff refused were precisely linked to unconstitutional and borderline illegal activity.
In fact, plaintiff was explicitly instructed to arrest ("yoke") anybody he came in contact
for no reason at all or for as little as simply wearing a bandana or standing on a comer.
(See Amended Compl. atk 'fI~ 44). Further, plaintiff was also instructed to arrest
in?i~iduals ftrst ~d "~culate a charge later."(See Amended CompI. at ~ 45, 46). At
nurumum, these drrecttves were implicit - if not explicit - instructions to falsely arrest
people ,:ho had committ~d no crirne or violation oflaw. Accordingly, plaintiff's speech
m refusmg to comply 'With these unconstitutional and illegal directives was protected
under Jackler and anything done in retaliation of those refusals would be actionable
under the First Amendment.
:Acco~dingly. it is. respectfully requested that plaintiff be allowed to amend his
complamt to Include a claIm of retaliation in violation of his First Amendment Rights.
Cc:
VIAFAX
Suzanna Publicker, Esq.
Assistant Corpo.ration Counsel
The City of New York Law Department
100 Church Street
New York, New York 10007
Gregory John Radomisli
Martin Clearwater & Bell LLP
220 East 42 nd Street, l3 th Floor
New York~ NY 10017
Brian Lee
Ivone, Devine & Jensen LLP
2001 Marcus Avenue, Suite Nl0Q
Lake Success, NY 11042
Bruce M. Brady
Callan, Koster, Brady & Brennen LLP
1 Whitehall Street
New York, NY 10004
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