Berg et al v. Kelly et al

Filing 116

OPINION #106621 re: 99 MOTION for Summary Judgment filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. On a motion for summary judgment, the movant faces a demanding standard if the court is to dep rive the nonmovant of a jury determination. Defendants have met their burden on plaintiffs' state constitutional claims, but have failed to do so on plaintiffs' federal constitutional claims, except as to defendants Kelly and Esposito. Accordingly, the motion for summary judgment is granted in part and denied in part. (As further set forth in this Order.) (Signed by Judge Thomas P. Griesa on 8/10/2016) (kko) Modified on 8/11/2016 (ca).

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PHEOBE BERG, et al.,
Plaintiffs,
12-cv-3391 (TPG)
v.

OPINION

NEW YORK CITY POLICE COMMISSIONER
RAYMOND KELLY, et al.,
Defendants.

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This putative class action arises out of an Occupy Wall Street
protest during President Barack Obama's November 2011 visit to New
York City. Plaintiffs were protestors who were allegedly deprived of their
federal and state constitutional rights when New York Police Department
("NYPD") officers detained them in a barricaded area for over an hour.
Defendants, NYPD officers at the time of the protest, now move for
summary judgment on all claims. For the following reasons, defendants'
motion for summary judgment is granted in part and denied in part.
Background
Drawing all reasonable inferences in plaintiffs' favor, a reasonable
jury could find the following facts to be true. See Tolan v. Cotton, 134 S.
Ct. 1861, 1863 (2014).
On November 30, 2011, a protest took place in Manhattan as part

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of the Occupy Wall Street movement.

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Scores of protestors gathered at

Bryant Park in the early evening.

Their plan was to march through

Midtown toward a fundraising event attended by President Obama at the
Sheraton Hotel, located at Seventh Avenue between 52nd and 53rd
Streets.

Their goal, rhetorically, was to "#OccupyObama" and have

"#DinnerWithBarrack" by protesting outside the Sheraton. See Rozental
Dep. 16:18-17:4.
As the protestors neared the President's event, they stopped briefly
one block south of the Sheraton, at the corner of Seventh Avenue and
51st Street.

The NYPD had previously designated this corner as a

"protest area."

Some protestors briefly discussed remaining in the

protest area, but, ultimately, they continued northward on their march.
Because police officers had restricted some pedestrian traffic
around the Sheraton, the protestors could not walk up Seventh Avenue.
Instead, a group of between 50 and 200 protestors proceeded north on
Broadway, turned right on 53rd Street, and finally came to the southwest
corner of Seventh Avenue and 53rd Street, opposite the Sheraton.

In

plans made prior to the presidential visit, the NYPD had designated this
area as a "press pen"-that is, an area where members of the media
could await the President's arrival at the Sheraton.
By the time the protesters got to the press pen at approximately
8:00 p.m., police barricades already flanked the curb along 53rd Street

and at the southwest corner of Seventh Avenue and 53rd Street.

The

effect was to create a U -shaped barricaded area that was enclosed on

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three sides.
area.

Police officers ushered the protestors into this barricaded

See Hart Dep. 46:24-47:9, 47:25-48:12; Latalardo Dep. 41:23-

42:2, 43:11-15.
Shortly before the President's 8:50p.m. arrival at the Sheraton, the
NYPD established a "frozen zone" to restrict pedestrian traffic around the
hotel. The zone extended from Sixth Avenue to Broadway and from 52nd
Street to 53rd Street.

It therefore included the entire press pen, even

though that location
See Purtell Dep. 60: 17-63:4;

At some point, police officers placed additional barricades behind
the protesters on 53rd Street, there by closing the press pen on all four
sides. See Berg Dep. 43:3-17. Defendants have not been able to identify
who ordered this closure, and it is unclear whether it occurred before or
after the President's arrival. The protestors repeatedly asked to leave the
press pen, but police officers repeated refused their requests.

Some

police officers even threatened to arrest protestors who tried to leave.
See Jetter Dep. 41:8-11.

Police officers did, however, allow tourists and

journalists to leave the press pen, and traffic flowed freely on Seventh
Avenue between the Sheraton and the press pen.

See, e.g., Jetter Dep.

38:18-39: 19; Rozental Dep. 42: 15-16; Dkt. 110, Video Ex. 12 at 0:40
and 4:10. When protestors asked why they alone were being detained,

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police officers told them it was "for being a protestor." Dkt. 110, Video
Ex. 13 at 4:30; see also Jetter Dep. 41:12-16.
The President left the Sheraton at 10:25 p.m., and police officers
released the protesters from the press pen soon after. The detention had
lasted for over an hour.
Following these events, plaintiffs, who were all part of the protest,
filed a complaint alleging claims under 42 U .S.C. § 1983 for violations of
the First, Fourth, and Fourteenth Amendments of the U.S. Constitution,
as well as parallel claims under the New York State Constitution.
Plaintiffs brought this case as a class action on behalf of themselves and
all other persons who were detained in the press pen.

In November

2013, the court denied defendants' motion for judgment on the
pleadings.

After plaintiffs amended their complaint, defendants moved

for summary judgment on all claims.
Discussion
Summary judgment is proper only "if the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material"
when it "might affect the outcome of the suit under the governing law."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And an issue
is "genuine" when "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.

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"Credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge." Id. at 255. The court must "believe[]" the nonmovant's
evidence and draw "all justifiable inferences . . . in his favor."

Id. "[I]f

there is any evidence in the record from any source from which a
reasonable inference in the nonmoving party's favor may be drawn, the
moving party simply cannot obtain a summary judgment."

Binder &

Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (citation and
alteration omitted). In sum, the court may grant such relief only "if, on
the basis of all the pleadings, affidavits and other papers on file, and
after drawing all inferences and resolving all ambiguities in favor of the
non-movant, it appears that the evidence supporting the non-movant's
case is so scant that a rational jury could not find in its favor."

Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
I.

Federal Constitutional Claims
Plaintiffs have brought federal constitutional claims for violations

of the First, Fourth, and Fourteen Amendments under 28 U.S.C. § 1983,
which "creates a cause of action against any person who, acting under
color of state law, abridges 'rights, privileges, or immunities secured by
the Constitution and laws' of the United States." See Shakhnes v. Berlin,
689 F.3d 244, 250 (2d Cir. 2012) (quoting 42 U.S.C. § 1983). Defendants
move for summary judgment on all claims.

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a. Kelly and Esposito's Personal Involvement
As a threshold matter, defendants Raymond Kelly and Joseph
Esposito argue that claims against them fail due to lack of personal
involvement.

"Personal

involvement

of

defendants

in

alleged

constitutional deprivations is a prerequisite to an award of damages
under§ 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006).

A

defendant in a § 1983 action may not be held liable merely because he
holds a high position of authority. Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994).
At the time of the protest, Raymond Kelly was the Commissioner of
the NYPD and Joseph Esposito was the Chief of Department of the NYPD.
The amended complaint barely mentions either defendant, and it is
undisputed that neither was at the scene of the protest.

In their

opposition brief, plaintiffs belatedly raise theories of supervisory liability
under Monell v. Department of Social Services, 436 U.S. 658 (1978), and
of respondeat superior, but they failed to plead either theory even after
amending their complaint.

Given the evidence in the record, no

reasonable jury could find that defendants Kelly and Esposito were
sufficiently involved in this incident to establish liability under§ 1983.
In sum, plaintiffs' § 1983 claims fail as to defendants Kelly and
Esposito for lack of personal involvement in the alleged constitutional

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deprivations.!

The court will now consider claims as to all other

defendants.

b. Plaintiffs' Fourth Amendment False-Arrest Claim
Plaintiffs claim that their detention constituted a false arrest in
violation of the Fourth Amendment. A claim for false arrest "resting on
the Fourth Amendment right to be free from unreasonable seizures ... is
substantially the same as a claim for false arrest under New York law."

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted).
Under New York law, a plaintiff must satisfy four elements: "(1) the
defendant intended to confine the plaintiff, (2) the plaintiff was conscious
of the confinement, (3) the plaintiff did not consent to the confinement,
and (4) the confinement was not otherwise privileged." Bernard v. United

States, 25 F.3d 98, 102 (2d Cir. 1994).

Defendants concede the first

three elements.
Where police detain someone without a warrant, a presumption
arises that the detention was unlawful and the burden shifts for proving
privilege to confine. See Jenkins v. City of New York, 478 F.3d 76, 88 (2d
Cir. 2007).

Defendants here do not claim to have had a warrant to

detain the protestors, nor do they attempt to establish probable cause for
the detention. In fact, defendants freely admit that police officers knew

1

In their reply brief, defendants raise for the first time the argument that claims against
defendants James McNamara and Peter Loehle also fail for lack of personal
involvement. "Arguments made for the first time in a reply brief need not be considered
by a court," and the court declines to consider them here. See Playboy Enters., Inc. v.
Dumas, 960 F. Supp. 710, 720 n.7 (S.D.N.Y. 1997).

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of no specific threats to the President that night and that officers did not
observe the protestors threatening any violence or criminal activity in the
press pen.

See Latalardo Dep. 47:22-24, 48: 10-14; Hart Dep. 58:8-14,

93: 11-13; Purtell Dep. 66:24-67:3, 72:6-9.
Defendants' principal argument is that their actions were essential
to ensure the President's safety.

They also argue that large groups of

protestors necessarily pose enhanced security risks. To cast this in more
legalistic terms, defendants assert that "special needs" associated with
the President's visit privileged their actions.
It may be true that certain circumstances justify police officers

temporarily detaining people to protect the President, and that large
crowds may sometimes pose higher risks.

But even defendant Peter

Loehle, the NYPD sector commander for the area encompassing the
Sheraton, admitted that he was unaware of any reason why his officers
closed the press pen on four sides and detained the protestors within.
Loehle Dep. 65:11-15, 66:19-24. He also testified that he was unaware
of any reason why his officers had failed to follow the written NYPD policy
of allowing protestors "to leave the barrier area at any time." Loehle Dep.
110:5-16.
To be sure, defendants set forth an array of possible justifications
for the detention, chief among them the undoubted importance of
ensuring the President's security.

But defendants fail to identify who

gave the order to detain the protestors, thereby obscuring the actual

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reason for the detention. Moreover, circumstantial evidence casts doubt
on defendants' purported justifications, particularly the fact that police
officers froze the press pen even though

See Purtell Dep. 60: 17-63:4; Loehle Dep. 65:4-10,
All this uncertainty provides a genuine issue

66:19-24;

of material fact for the jury to decide as to why the protestors were
detained. Without making this factual determination, it is impossible to
assess defendants' claimed privilege.
In sum, the evidence in the record could allow a reasonable jury to
find that such a detention violated the Fourth Amendment. For example,
a reasonable jury could conclude that police officers singled out the
protestors for detention because they were protestors-as opposed to
journalists or tourists-and that the officers had impermissible motives
when they did so. Of course, a jury might not draw these inferences in
plaintiffs' favor at trial, but they are still the jury's inferences to draw.
Accordingly, defendants have failed to show that they are entitled
to summary judgment on plaintiffs' Fourth Amendment false-arrest
claim.

c. Plaintiffs' First Amendment Retaliation Claim
Plaintiffs

allege

that their detention also violated the

First

Amendment because it was retaliation for their protest and their
association with Occupy Wall Street.

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To establish a claim for First

Amendment retaliation, a plaintiff must satisfy three elements: "(1) he
has a right protected by the First Amendment; (2) the defendant's actions
were motivated or substantially caused by his exercise of that right; and
(3) the defendant's actions caused him some injury."

Dorsett v. Cty. of

Nassau, 732 F.3d 157, 160 (2d Cir. 2013). The injury need not be chilled
speech, which "is not the sine qua non of a First Amendment claim," and
a plaintiff may prevail "if he can show either that his speech has been
adversely affected by the government retaliation or that he has suffered
some other concrete harm." Id. (third emphasis added)
As to the first element, it is undeniable that the First Amendment
protects the right to engage in peaceful protest directed at the President.

See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969). And as to the
third element, the alleged injury is the detention itself, which clearly
constitutes a "concrete harm." See generally Gill v. Pidlypchak, 389 F.3d
379, 381-84 (2d Cir. 2004). The key dispute, then, concerns the second
element: whether the officers' actions were motivated or substantially
caused by the protestors' exercise of their First Amendment rights.

In

short, was there a causal connection between the speech and the
detention?
Circumstantial evidence of retaliatory intent may supply the causal
connection between a plaintiffs protected speech and a defendant's
adverse action. Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005).
As discussed above, there exists a genuine issue of material fact as to

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why the protestors were detained, and a reasonable jury could find that
it was simply "for being a protestor." See Dkt. 110, Video Ex. 13 at 4:30.
Not only did police officers at the scene allegedly make statements to that
effect, but they also allowed journalists and tourists to leave the press
pen while refusing similar requests from the protestors.

Moreover, the

press pen was
yet police officers unquestionably prevented
protestors from leaving.
In short, because the court cannot glean from the record what
actually motivated police officers to detain the protestors, defendants
cannot show they are entitled to summary judgment on plaintiffs' First
Amendment retaliation claim.
d. Plaintiffs' Fourteenth Amendment Selective-Enforcement Claim

Plaintiffs also claim that defendants subjected them to selective
enforcement, in violation of the Fourteenth Amendment's guarantee of
equal protection.

To establish a claim for selective enforcement, a

plaintiff must satisfy two elements: "(1) that the [plaintiff], compared with
others similarly situated, was selectively treated; and (2) that such
selective treatment was based on impermissible considerations such as
race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person."

Freedom

Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (alteration and
citation omitted). "Generally, whether two entities are similarly situated

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is a factual issue that should be submitted to the jury." Cine SKB, Inc. v.

Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)
Here, as detailed above, a genuine issue of material fact exists as
to the actual reason for detaining the protestors. A reasonable jury could
find that plaintiffs satisfy both elements of a selective-enforcement claim
by crediting evidence that police officers detained protestors due to their
protected speech. The protestors were certainly "treated differently" from
other people near the Sheraton that night. See Harlen Assocs. v. Inc. Vill.

of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). While the protestors were
confined to the press pen, others were allowed to leave, and traffic moved
freely along Seventh Avenue between the detained protestors and the
President's event.
Defendants argue that this claim must fail because plaintiffs
"cannot identify other groups consisting of scores of protestors who
eschewed a

designated protest area,

attempted to

approach the

president, and supplanted a designated area across the street from the
President."

Dfs.' Mem. L. at 15.

unrealistic and unnecessary.

This degree of extreme similarity is

Rather, "[t]he test is whether a prudent

person, looking objectively at the incidents, would think them roughly
equivalent." Penlyn Dev. Corp. v. Inc. Vill. of Lloyd Harbor, 51 F. Supp. 2d
255, 264 (E.D.N.Y. 1999).

"Exact correlation is neither likely nor

necessary." Id.

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More importantly, the protestors' status as protestors cannot
distinguish them and thereby establish that no one at the scene was
similarly situated.

Were that sufficient, the second element of a

selective-enforcement claim would be nonsensical in many cases, as this
simple hypothetical reveals. Imagine two people at a parade. The first is
a vocal woman who is enthusiastically exercising her constitutional
rights by chanting political songs; the second is a silent man who is
simply watching the parade pass by.

Police officers force the vocal

woman to leave the parade but do nothing to the silent man.

Under

defendants' theory, the officers could admit that they targeted the vocal
woman "to inhibit or punish the exercise of [her] constitutional rights,"
Freedom Holdings, 357 F.3d at 234, but still prevail by showing that she

was the only one exercising those rights. That is not the law of selective
enforcement.
Given the disputed factual issues that endure, defendants cannot
obtain summary judgment plaintiffs' Fourteenth Amendment selectiveenforcement claim.2
e. Plaintiffs' Failure-to-Intervene Claim

In

conjunction

with

their

First,

Fourth,

and

Fourteenth

Amendment claims, plaintiffs bring a separate claim alleging that

2

Plaintiffs' opposition brief explicitly cabins their Fourteenth Amendment claim to a
theory of equal protection and fails to respond to defendants' arguments as to the dueprocess claim found in plaintiffs' amended complaint. It appears, therefore, that
plaintiffs have abandoned any claim based on the Fourteenth Amendment's guarantee
of due process.

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defendants failed to intervene during the detention.

Even where an

officer did not personally effect an arrest, he may be held liable for failing
to intervene where "that officer observes or has reason to know ... that a
citizen has been unjustifiably arrested" or "that any constitutional
violation has been committed by a law enforcement official." Anderson v.

Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Given the material factual disputes that remain, defendants cannot
obtain summary judgment on plaintiffs' claim for failure to intervene. If
the jury credits plaintiffs' evidence, defendants James McNamara, Peter
Loehle, and Stephen Latalardo could all be liable for failing to protect
plaintiffs' constitutional rights.

Defendant McNamara was the NYPD

officer who had command of the area surrounding the Sheraton on the
night of the protest, and other officers testified that he likely knew of the
orders to hold the protestors. See Purtell Dep. 37:23-39:3, 39:18-41:12.
De fen dan t Loehle was the NYPD sector commander for the area
encompassing the Sheraton, and there is evidence suggesting he was in
charge of carrying out the order to freeze the area that included the press
pen. See Hart Dep. 56:15-57:24. Finally, defendant Latalardo admits he
might have been the officer who actually closed the press pen, and that
he was the one who opened it after the President's departure.

See

Latalardo Dep. 41:10-22, 43:16-20, 46:3-5. Taken together, these facts,
which a reasonable jury could find, could show that each officer failed to
act despite knowing or having reason to know that the protestors had

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been "unjustifiably" detained or that a fellow officer had committed a
"constitutional violation." See Anderson v. Branen, 17 F.3d at 557.
Accordingly, defendants have failed to show that they are entitled
to summary judgment on plaintiffs' claim for failure to intervene.
f. Defendants' Qualified-Immunity Defense
Defendants invoke qualified immunity as to all of plaintiffs'§ 1983
claims.

Qualified immunity shields officials from liability for civil

damages to the extent their conduct "does not violate clearly established
statutory or constitutional rights of which a reasonable person would
have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

"The

contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640 (1987).

If the law is "clearly established, the immunity defense ordinarily
should fail, since a reasonably competent public official should know the
law governing his conduct." Harlow, 457 U.S. at 818-19. That is not to
say that "the very action in question [must have] previously been held
unlawful." Id. Rather, so long as the unlawfulness is "apparent" in light
of "pre-existing law," public officials "can still be on notice that their
conduct violates established law even in novel factual circumstances."
Hope v. Pelzer, 536 U.S. 730, 739, 741 (2002) (citations omitted).

The parties fiercely dispute the true motivation for the detention.
Although defendants now invoke presidential security, plaintiffs allege

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that something more sinister led police officers to single out the
protestors for different treatment that night.

"Where the objective

reasonableness of state action depends on credibility determinations, a
genuine issue of material fact precludes summary judgment" on the
issue of qualified immunity.

Santulli v. Russello, 519 F. App'x 706, 709

(2d Cir. 2013) (citing Dillon v. Morano, 497 F.3d 247, 253 (2d Cir. 2007)).
Here, the court cannot assess defendants' purported immunity without
wading into factual disputes that must be left for a jury.
If a jury were to credit plaintiffs' evidence, clearly established law

at the time of their detention could support each of their § 1983 claims.
A reasonable jury could find that police officers detained the protestors,
without probable cause or a warrant, due to a motive that belies
defendants' claimed privilege. This the Fourth Amendment clearly would
not permit. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.
1991) ("The right not to be arrested or prosecuted without probable
cause has, of course, long been a clearly established constitutional
right.").

A reasonable jury could also find that the protestors were

detained as retaliation for their association with Occupy Wall Street.
This the First Amendment clearly would not permit. See Santulli, 519 F.
App'x at 708-09 ("It is clearly established that a person has the right to
be free from retaliation for an exercise of First Amendment rights."). And
a reasonable jury could find that police officers selectively treated the
protestors in order to punish them for their speech. This the Fourteenth

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Amendment clearly would not permit.

See Bums v. Citarella, 443 F.

Supp. 2d 464, 470 (S.D.N.Y. 2006) ("It is [] clearly established that
selective enforcement ... based on an official's dislike of protected
expressiOn is unlawful.").

Finally, having made these findings, a

reasonable jury could conclude that police officers violated clearly
established rights by failing to intervene when they knew or should have
known of the detention.

See Anderson v. Branen, 17 F.3d at 557 ("It is

widely recognized that all law enforcement officials have an affirmative
duty to intervene to protect the constitutional rights of citizens from
infringement by other law enforcement officers in their presence.").
For these reasons, defendants have failed to show that they are
entitled to qualified immunity.
II.

State Constitutional Claims
Plaintiffs also plead various state constitutional claims, which

defendants argue must be dismissed because adequate alternative
remedies exist. Where a plaintiff has alternate remedies available under
a federal statute such as 28 U.S.C. § 1983, "her state constitutional tort
claim is redundant and precluded." Biswas v. City of New York, 973 F.
Supp. 2d 504, 522 (S.D.N.Y. 2013).

Plaintiffs' opposition ignores this

argument raised by defendants, yet the principle is sufficient to defeat
the state constitutional claims as a matter of law.
The court therefore grants defendants' motion for summary
judgment as to these claims.

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Conclusion
On a

motion for

summary judgment, the movant faces a

demanding standard if the court is to deprive the nonmovant of a jury
determination.

Defendants have met their burden on plaintiffs' state

constitutional claims, but have failed to do so on plaintiffs' federal
constitutional claims, except as to defendants Kelly and Esposito.
Accordingly, the motion for summary judgment is granted in part and
denied in part.

SO ORDERED

Dated: New York, New York
August 10, 2016

Thomas P. Griesa
U.S. District Judge

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