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: [phone]

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:

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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 denie<!.
To the extent plailltiffwishes to amend .his complaint to include !l prior restraint claim, a tnoticn to Ilmend
fursuant to Federal Rule Civil Prooedure (\S)(a) should he filed.").
A copy of proposed Amended Curnplaint has been emailed to jOl'[e-mail].

silence plaintiff.) ag.). Further, it is also alleged that those ~ontacts ~er: an o~ert atte~pt
to Intimidate plaintiff - namely. unifonned officers bangmg and kIcking hi~ ~oor 10 a
menacing manner and spying on hhn through his windows. QQ.). More()v~(', ~t IS, alleged
that those actions were taken in order to scare, threaten and coerce plamtlff mto not
disclosing evidence of the NYPD's comlption and illegal practices to the public at large.
CId.). Specifically. the allegations in the complaint are as follows:
Notwithstanding this move, between December 2009 and continuing on
through the present, armed NYPD officials continued their relentless
efforts to silence, harass and/or otherwise harm plaintiff and his father in
the form of making over a dozen appearances at his home in upstate New
York.
During these "visits". the NYPD has dispatched teams of armed detectives
a.nd other armed members of the New York City Police Department to
harass and intimidate plaintiff by pounding and kicking on his door and
shouting <'NYPD. WE KNOW YOU'RE IN THERE, OPEN UPI! t"
In one instance, on December 9, 2009, an armed NYPD Sergeant drove
on
three hundred fifty (350) miles outside of NYPD jurisdiction
taxpayer'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 ou.t of said bedroom in order
to prevent imminent physical and emotional harm upon his person.
Notwithstanding this action, armed NYPD officials continue, up and
through the present, to come to his home, repeatedly pound on his door,
photograph him, and engage in efforts designed to purposefully intimidate
and harass plaintiff in a tireless effort to silence him once and for alL
(Amended Comnl. at" 206-10)(emphasis added).
All of these acts occurred afi~r the plaintiff was suspended from the NYPD
immediately following the October 31, 2009 incident. As such, it cannot be said tbat 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 th,e Patrol Guide at that time. In fact, the Patrol Guide is utterly silent
reg~~ing the duti~s of a "suspended" or "modified" police officer. Consequently, given
plamtiff's sus.penslOn from the police force at the time that these coercive and threatening
a.cts were bemg lUldertaken by defendants, it is clear that any speech intended to be

Plaintiff was sllspf!l1ded immediately following the home invasion of October 3l, 3009 at approximlltely
9:40 f,m., thu~ eyeryth~ng following that suspension including the confinement at Jamaica liospital would
constItute a pttor reSTl'amt on speech he was under no duty to utter.
J

4

uttered would have been made as a citizen and not pursuant to any of his d.u.ties.
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 asse.rt a prior restraint on speech as a matter oflaw.

II.

Defendants' Actions Constituted a Prior Restraint on Plaintiff's Speech

It is well established that actions of intimidation, threats and/or coercion can fonn
the basis of a prior restraint on speech in violation ofan individual's rights under the First
Amendment. Sec:: Grennan Y. Nassau County, 2007 WL 952067, * 12 (E.D.N.Y.
2007)("'ln detennining whether a particular request to suppress speech is constitutional,
wha.t matters js the 'distinction between attempts to convince and attempts to coerce. "');
Zieperv. M~tzinger, 392 F.Supp.2d 516, 528 (S.D.N.Y. 2005)("Ziepermust demonstrate
that there is a genuine issue of material fact as to whether a reasonable person would feel
coerced by his contact with Metzinger."); see also Penthouse v. McAuliffe, 610 F.2d
1353, 1361-1362 (5th Cir.1980) C'numerous and harassing arrests prior to a fmal
adjudication upon the issue of obscenity vel non... [amounted] to an infonnal system
of prior restrainL.")(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 judicial detennination that
the... magazine was in fact obscene... amounts to an unconstitutional abuse of power... ").

In the present matter, the complaint unquestionably contains allegations that
amply demonstrate that 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 comtption and illegal
activity that plaintiff had \vitnessed only contributes to the coercive nature of this acti.vity.
Specifically, it is alleged that during these <'visits" defendants wouJd spy on plaintiff
through his window and would bang on plaintiffs door yelling at him to "open up."
Accordingly, defendants' attempts to harass and intimidate him after his suspension
constit1.1ted 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. s See
Zieru;r at 528:
­
In both Penthouse v. McAuliffe and City of Pittsburgh, government
officials engaged in patterns of harassment, including warrantless arrests
and threats of prosecution, in an attempt to stop local saJes 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
ynl~ke ~ retali~tion claim, the plaintiff need not utter any sp~ch at all, rather the First Amendment
Violation. IS esW:hshed by acts that attempt illhibit or prohibit speecb altogetht:r. See Kirkpatrick V, Village
of Washmgtonvlll!!. 20t 1 WL 1330745, "7 (S.D.N.Y 2011)("There is no speech that WIl3 punished in this

;~e. l~stcad, this is !l~ iSSt1~ ~fprio~ ~eslralnf in the fonn of the gag order. ")( emphasis added).
As thIS court reco~lzed In 1ts declslon. of which the plaintiff does not dispute. plaintiff'!I speech in this
matter was unquestionably a matttr of public concern. Sec S.c.hoolcraft v. City of New York, 2012 WL
2161596, ·4 (S.D.N.Y. 2012)("A5 such. Plaintiff's speech concerned a matter of pubtic concern:'),

by creating a prior restraint on speech m violation of the First and
Fourteenth Amendments.

AdditionaUy, defendants' actions clearly demonstrate tbe officers' motive and
their intent for pleading purposes as the elements of intent or scienter can be inferred
from the factual allegations of the complaint. See Dougherty v. Town. of North
Hemnstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002)("The ultimate
question of retaliation involves a defendant's motive and intent, both difficult to plead
with specificity in a complaint. It is sufficient to allege facts from which a
retaliatory intent on the part of the defendants reasonably may be injerred.")(emphasls
added), It does not take a great leap or any at all - to infer that these "visits" were not
simply social calls by defendants, but instead were designed to scare and intimidate h.lm;
or alternatively, to utilize some other manner of convincing plaintiff to keep quite if he
had "opened up." Further, this conclusion is only supported by the fact that these acts
were undertaken immediately following his harrowing experience at Jamaica hospital
where he had spent six (6) days involuntarily confined to the psychiatric ward at the
behest of some of the very same officers that were now banging on his door and spying
on him. This chronology of events alleged in the complaint - namely, plaintiffs
complaints to supervisors and lAB; defendants discovery of plaintiff docwuentation of
NYPD corruption; defendants discovery of plaintiff's recording device during their home
invasion; and, plaintiWs subsequent involuntary confinement
makes it entirely
reasonable to conclude that defendants did not have innocuous intentions when "visiting"
plaintiff at his home in upstate New York. See Dorsett-Felicelli, Inc. v. County of
Clinton. 371 F.Supp.2d 183, 19J (N.D.N.Y.2005):

nle chronology of events as presented by Plaintiff is sufficient to infer
that County Defendants had a retaliatory motive. Plaintiffs have alleged
that soon after Dorsett-Felicelli voiced her complaints to the COlUlty and
the courts, session hours were transferred away from Pyramids and Pre­
School at an unprecedented rate by the County to a provider that the
County scrambled to have authorized. Although County Defendants have
asserted altemative reasoning for the transfers. for p'lIIJ>oses 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