Wiles v. The City of New York et al
Filing
161
OPINION re: 114 MOTION for Summary Judgment, filed by Zielinski, The City of New York, John Slayne, Pastula, John McNamara. Defendants' motion for summary judgment is GRANTED. The Clerk of Court is directed to close this case. (As further set forth in this Opinion) (Signed by Judge Thomas P. Griesa on 10/25/2016) (kl)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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Plaintiff,
No. 13-cv-2898 (TPG)
v.
OPINION
CITY OF NEW YORK, et al.,
Defendants.
Plaintiff Joshua Wiles brings this action against the City of New York and
against Police Lieutenant Zielinski, Police Sergeant John Slayne, Police Officers
Brian Pastula, John McNamara, and John Does 1-10, in their individual and
official capacities as police officers for the New York City Police Department
("NYPD"), in connection with plaintiff's arrests on November 5, 2011 and
September 17, 2012. Plaintiff claims that defendants are liable to him under 42
U.S.C. § 1983 for: (1) a general deprivation of his constitutional rights; (2) false
arrest; (3) failure to intervene, as defined later in this opinion; (4) malicious
prosecution; (5) excessive force; (6) First Amendment retaliation; and (7)
municipal liability under Monell. Plaintiff additionally brings state law claims
under the following theories of liability: (1) battery, (2) assault, (3) negligent
hiring and retention, (4) negligent training and supervision, and (5) respondeat
superior.
1
On March 27, 2015, defendants moved for summary judgment against
all of plaintiff's claims. For the reasons discussed below, defendants' motion for
summary judgment is GRANTED.
BACKGROUND
Plaintiff was arrested on two separate occasions for his involvement in
Occupy Wall Street ("OWS") demonstrations. The first arrest occurred on
November 5, 2011 and the second arrest occurred on September 17, 2012,
each of which is discussed in turn below.
I.
November 5, 2011 Arrest
On November 5, 2011, plaintiff joined several hundred OWS protestors in
a march from Zuccotti Park in lower Manhattan to the New York Supreme
Court building located at 60 Centre Street, across the street from Foley Square.
In archetypal courthouse fashion, the Supreme Court building features a grand
set of steps leading up to its entrance. The protestors wanted to use these steps
to stage an OWS rally. Police officers, however, had formed a line along the
base of the Supreme Court steps and ordered the protestors not to come onto
the steps.
The protestors gathered in front of the police line, filling up most of the
sidewalk in front of the Supreme Court. Eventually, police officers began
ordering the protestors to "move along." Some of the protestors, including
plaintiff, refused to comply. Then, at around 3:04 p.m., plaintiff began chanting
"We want the steps!" One minute later, Lieutenant Zielinski made the following
announcement through a megaphone:
2
Ladies and gentlemen, my name is Lieutenant Zielinski. I am with
the Manhattan South task force. You are blocking pedestrian
traffic. I am ordering you to leave this sidewalk. If you do so
voluntarily, no charges will be filed against you. If you refuse to
leave, you will be placed under arrest and charged with disorderly
conduct.
When Zielinski made this announcement, the sidewalk was almost completely
obstructed by the protestors.
Plaintiff refused to comply with Zielinski's repeated orders to disperse.
Officer John McNamara of the NYPD subsequently placed plaintiff under
arrest. McNamara handcuffed plaintiff with plastic zip-tie cuffs, which were
applied too tightly at first and caused plaintiff's wrists to discolor and bruise.
Plaintiff notified several police officers that his cuffs were causing him pain
and, in response, officers twice replaced plaintiff's cuffs. When plaintiff later
arrived at One Police Plaza for processing, his cuffs were removed.
Plaintiff was held at One Police Plaza for approximately eight hours. He
was released after being issued a Desk Appearance Ticket for disorderly
conduct. The Manhattan District Attorney's Office declined to prosecute
plaintiff for any charges in connection with his November 5, 2011 arrest.
Apart from his bruised wrists, plaintiff was not otherwise physically
harmed during his encounter with police officers. Plaintiff did not seek any
medical treatment for his bruises and they healed approximately a week after
his release.
II.
September 17, 2012 Arrest
September 17, 2012 marked the one-year anniversary of the OWS
movement. Members of the OWS movement planned a number of
3
demonstrations around lower Manhattan on that day to commemorate this
anniversary. Plaintiff traveled to lower Manhattan to observe these events. At
approximately 9:15a.m., plaintiffwalked southward on Broadway toward Wall
Street, which at the time was brought nearly to a standstill from heavy
pedestrian congestion.
Police video cameras show officers at the intersection of Broadway and
Wall Street ordering pedestrians to "keep it moving." Ex. N to Defendants'
Motion for Summary Judgment at 00:54. For example, one pedestrian
appeared to stop at the intersection and was immediately told by police officers
that he needed to leave. Id. at 1:24. The pedestrian complied and continued to
make his way through pedestrian traffic. Id.
At around the same time, plaintiff was approaching the intersection of
Broadway and Wall Street. Officer Pastula ordered plaintiff to "move back" from
the intersection and pushed him back several times. Plaintiff turned around
and walked back about ten feet along Broadway. Plaintiff then stopped moving
and began repeatedly shouting, "Whose sidewalk?" Each time plaintiff shouted,
a woman responded, "Our sidewalk!" This woman continued walking
southward on Broadway and the police officers let her pass through the
intersection undisturbed.
Meanwhile, Officer Pastula walked up to plaintiff, grabbed him by the
back of the neck, and placed him under arrest. Officer Pastula handcuffed
plaintiff with plastic zip-tie cuffs and led plaintiff to a nearby bus, which was
used on that day by the NYPD to transport arrestees to One Police Plaza for
4
processing. Again, plaintiff's handcuffs were applied too tightly and caused
plaintiff's wrists to discolor and bruise. When plaintiff notified police officers of
his pain, they removed and replaced them within fifteen minutes to
accommodate plaintiff's complaints.
Plaintiff was held at One Police Plaza until approximately 5:45 p.m. and
was released after being issued a Desk Appearance Ticket for disorderly
conduct. The Manhattan District's Attorney declined to prosecute plaintiff for
any charges related to his September 17, 2012 arrest. Similar to his earlier
arrest, plaintiff's wrists healed approximately a week after this arrest. Plaintiff
did not suffer any other physical harm and did not seek any medical treatment
for any injuries in connection with his September 17, 2012 arrest.
SUMMARY JUDGMENT
Summary judgment must be granted "if the movant shows that 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). The moving party bears the initial
burden of demonstrating the "absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if "it might
affect the outcome of the suit under the governing law" and an issue of fact is
genuine if "the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When the moving party does not "bear the ultimate burden of proof at trial,
the movant's burden will be satisfied if he can point to an absence of evidence to
support an essential element of the nonmoving party's claim." Goenaga v. March
5
of Dimes Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party
has satisfied this initial burden, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at
248. These facts must be examined in "the light most favorable to the nonmoving
party, drawing all inferences and resolving all ambiguities in [his] favor."
Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
However, the nonmoving party "must do more than simply show that there
is some metaphysical doubt as to the material facts." Savino v. City of New York,
331 F.3d 63, 71 (2d Cir. 2003). "Summary judgment is appropriate, therefore, if
the evidence presented by the nonmoving party is merely colorable, or is not
significantly probative, or if it is based purely on conjecture or surmise." Id. When
the parties disagree as to the existence of a genuine dispute of a material fact,
the Court may consult incontrovertible video evidence to determine whether
summary judgment is nevertheless appropriate. See Scott v. Harris, 550 U.S.
372, 379-80 (2007).
DISCUSSION
Defendants move for summary judgment against all of plaintiff's claims
in connection with his two arrests. Plaintiff raises an argument, however, that
some of the defendants are in default pursuant to Rule 55 of the Federal Rules
of Civil Procedure and are thus barred from moving from summary judgment.
The Court must address this argument before it turns to the merits of
defendants' motion for summary judgment.
6
In his opposition papers to defendants' motion for summary judgment,
plaintiff argues that defendants Zielinski, Slayne, and McNamara are in default
and that defaulted parties cannot move for summary judgment. Plaintiff then
describes in detail the mechanical operation of Rules 55( a) and (b) of the
Federal Rules of Civil Procedure but disregards the more flexible standard by
which Rule 55(c) operates. District courts under Rule 55(c) may set aside an
entry of default for "good cause." This decision is "left to the sound discretion of
a district court because it is in the best position to assess the individual
circumstances of a given case and to evaluate the credibility and good faith of
the parties." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). In
exercising this discretion, district courts are encouraged to resolve "disputes on
the merits" whenever possible and reserve the entry of default "for rare
occasions." Id. at 95-96.
In light of these principles, this Court issued an order on May 15, 2015
denying plaintiff's request for entry of default as to defendants Zielinski,
Slayne, and McNamara. ECF No. 149. Plaintiff ignores this May 15, 2015 order
in his arguments. However, since the Court has already determined these
defendants not to be in default, they are not barred from moving for summary
judgment. The Court now turns to the merits of defendants' motion for
summary judgment.
I.
Plaintiff's § 1983.Claims
To state a claim under§ 1983, plaintiff must show that "(1) the
challenged conduct was attributable at least in part to a person who was acting
7
under color of state law and (2) the conduct deprived the plaintiff of a right
guaranteed under the Constitution of the United States." Snider v. Dylag, 188
F.3d 51, 53 (2d Cir. 1999). There is no dispute in this case that defendants
acted under color of state law. Plaintiff claims that defendants are liable to him
under 42 U.S.C. § 1983 for: (1) a general deprivation of his constitutional
rights, (2) false arrest, (3) failure to intervene, (4) malicious prosecution, (5)
excessive force, (6) First Amendment retaliation, and (7) municipal liability
under Monell. Each claim is addressed separately below.
a. False Arrest
i. November SJ 2011
First, plaintiff brings a claim for false arrest under § 1983 against
defendants in connection with his November 5, 2011 arrest. To prevail on a
claim for false arrest under§ 1983, plaintiff must prove that: (1) defendants
intended to confine him, (2) plaintiff was conscious of the confinement, (3)
plain tiff did not consent to the confinement, and (4) the confinement was not
otherwise privileged. Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012). A§ 1983 claim for false arrest "derives from the Fourth Amendment
right to remain free from unreasonable seizures, which includes the right to
remain free from arrest absent probable cause." Deanda v. Hicks, 137 F. Supp.
3d 543, 548 (S.D.N.Y. 2015). Thus, probable cause is a "complete defense to an
action for false arrest." Jenkins v. City of New York, 4 78 F.3d 76, 84 (2d Cir.
2007).
8
Probable cause exists "when an officer has knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in
the belief that an offense has been committed by the person to be arrested."
Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 200 1). In dealing with
this issue, courts assess the "facts known by the arresting officer at the time of
the arrest" and whether those facts "objectively provided probable cause to
arrest." Ackerson, 703 F.3d at 19.
Defendants here argue, among other things, that they had probable
cause to arrest plaintiff on November 5, 2011 for disorderly conduct in violation
of New York Penal Law§ 240.20(6). This statute provides that a "person is
guilty of disorderly conduct when, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof ... He congregates
with other persons in a public place and refuses to comply with a lawful order
of the police to disperse." In other words, this crime requires proof of three
elements: (1) that the arrestee's conduct was "public" in nature, (2) that the
arrestee acted with "intent to cause public inconvenience, annoyance or alarm"
or with recklessness as to a risk thereof, and (3) that the arrestee congregated
with other persons in a public place and refused to comply with a lawful order
to disperse. Provost v. City of Newburgh, 262 F.3d 146, 157 (2d Cir. 2001).
There is no doubt in this case that plaintiff's actions were "public" in
nature, that he "congregated with other persons," and that he refused to
comply with a police order to disperse. Thus, the only elements in dispute are
( 1) whether plaintiff possessed the requisite mens rea to cause public
9
inconvenience and (2) whether the police officers' orders to disperse were
"lawful."
Prior to his arrest, plaintiff stood with hundreds of other protestors and
completely blocked the sidewalk in front of the Supreme Court building to
pedestrian traffic. Plaintiff then began chanting "We want the steps!" after
being ordered by police officers to disperse. These facts are undisputed and
were sufficient to warrant a reasonable officer to believe that plaintiff had the
intent to cause public inconvenience, annoyance or alarm, as required.
Plaintiff asks the Court to look at the parties' actual beliefs, most of
which surfaced during depositions months after plaintiff's arrests. As
discussed above, probable cause is determined by the objective facts available
to the arresting officers at the time ofthe events. Thus, the Court will not delve
into the parties' subjective beliefs in determining whether probable cause
existed to arrest plaintiff on November 5, 2011.
The remaining question, then, is whether the police officers' orders to
disperse were "lawful." Plaintiff's sole argument on this issue is that the orders
to disperse were unlawful because they violated his First Amendment right to
free speech. Specifically, plaintiff asserts that defendants cannot justify an
order to disperse under the First Amendment without first finding that the
protestors posed a "clear and present danger of riot, disorder, interference with
traffic upon the streets, or other immediate threat to public safety, peace, and
order."
10
While it is true that the right to engage in political speech is "entitled to
the fullest possible measure of constitutional protection," that right is not
absolute. Marcavage v. City of New York, 689 F.3d 98, 104 (2d Cir. 2012). The
"clear and present danger" standard that plaintiff urges the Court to adopt here
is appropriate in circumstances where political speech is unconditionally
silenced. See Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). But plaintiff's
right to protest was not unconditionally silenced on November 5, 2011.
Defendants point to video evidence that shows the majority of protestors
complying with the police's orders to disperse and continuing their
demonstration in Foley Square, which is located directly across the street from
their original demonstration. Ex. G to Defendants' Motion for Summary
Judgment at 13:08. Since the protestors were permitted to demonstrate freely
in a different location, the defendants' orders are more appropriately reviewed
as a "time, place, and manner" restriction on speech. 1
Time, place, and manner restrictions are permissible if they "(1) are
justified without reference to the content of the regulated speech, (2) are
narrowly tailored to serve a significant governmental interest, and (3) leave
open ample, alternative channels for communication of the information."
Marcavage, 689 F.3d at 104. All of these elements are satisfied in this case.
1
While time, place, and manner restrictions more often arise in the context of ex ante
regulations, courts in this Circuit have recognized that "spontaneous police order[s] to
demonstrators to relocate can be viewed through the lens of time, place, and manner doctrine."
Akinnagbe v. City of New York, 128 F. Supp. 3d 539, 548 (E.D.N.Y. 2015) (citing Zalaski v. City
of Hartford, 723 F.3d 382, 388 (2d Cir. 2013)).
11
First, there is no evidence in the record suggesting that the police
targeted the content of plaintiff's speech. Second, states have a "strong interest
in ... promoting the free flow of traffic on public streets and sidewalks," which
is sufficient to justify a narrowly tailored injunction. Madsen v. Women's Health
Ctr., Inc., 512 U.S. 753, 768 (1994). Injunctions, in turn, are narrowly tailored
"so long as the regulation promotes a substantial governmental interest that
would be achieved less effectively absent the regulation, and the means chosen
are not substantially broader than necessary to achieve that interest." Ward v.
Rock Against Racism, 491 U.S. 781, 782-83 (1989). Here, the police's orders to
disperse from the steps of the courthouse in fact promoted the free flow of
traffic on public sidewalks. The fact that many protestors were able to continue
to demonstrate across the street in Foley Square shows that the police's orders
did not substantially burden their speech. The police's orders to disperse were
therefore "narrowly tailored to serve a significant governmental interest."
Finally, there is no reason to believe that Foley Square was not an ample,
alternative channel to stage an OWS protest on November 5, 2011. The
alternative channel for communication need not be a "perfect substitute."
Marcavage, 689 F.3d at 107. In the Second Circuit, all that is required is that
the alternative channel be "within 'close proximity' to the intended audience."
Id. Foley Square is directly across the street from the New York Supreme Court
building at 60 Centre Street. This obviously satisfies the "close proximity'' test.
In sum, defendants' orders to disperse on November 5, 2011 were a valid
"time, manner, and place" restriction on plaintiff's First Amendment rights and
12
were therefore "lawful." The defendants had probable cause to arrest plaintiff
for disorderly conduct because plaintiff refused to comply with a lawful order.
N.Y. Pen. Law§ 240.20(6). The Court grants defendants' motion for summary
judgment as to plaintiff's claim for false arrest under§ 1983 on November 5,
2011.
ii. September 17, 2012
Plaintiff also brings a claim for false arrest under § 1983 for his arrest on
September 17, 2012. As discussed above, probable cause is a complete defense
to an action for false arrest. Jenkins, 4 78 F.3d at 84. It is unclear whether
probable cause existed to arrest plaintiff on September 17, 2012. But even
where probable cause to arrest does not exist, an arresting officer may
nevertheless avoid liability through the doctrine of qualified immunity. Id. at
86-87. Qualified immunity "shields public officials performing discretionary
functions from civil liability insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known, or insofar as it was objectively reasonable for them to
believe that their acts did not violate those rights." Bradway v. Gonzalez, 26
F.3d 313,317-18 (2d Cir. 1994).
Qualified immunity analysis requires a two-pronged inquiry. The first
prong asks "whether the facts, taken in the light most favorable to the party
asserting the injury ... show the officer's conduct violated a [federal] right."
Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014). The second prong asks "whether
the right in question was 'clearly established' at the time of the violation." Id. at
13
1866. A right is "clearly established" if the law at the time of the event in
question provided "fair warning" to the defendants that their actions were
unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In the policing context, the Second Circuit has framed the "clearly
established" inquiry as one of whether "arguable probable cause" exists. See,
e.g., Cerrone v. Brown, 246 F.3d 194, 202-03 (2d Cir. 2001). Arguable probable
cause exists as long as "officers of reasonable competence could disagree" on
the legality of defendants' actions. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.
1995). "In this respect, the qualified immunity test is 'more favorable to the
officers than the one for probable cause."' Ackerson, 702 F.3d at 21. As long as
defendants' actions on September 17, 2012 did not violate any of plaintiff's
"clearly established" rights, summary judgment in favor of defendants is
appropriate.
To properly address the "clearly established law" prong, it is first
important to define the scope of the right at issue. Whether defendants are
entitled to qualified immunity will depend "substantially upon the level of
generality at which the relevant 'legal rule' is to be identified." Anderson v.
Creighton, 483 U.S. 635, 639 (1987). The Supreme Court held that courts
should not define the rights at stake at a level of generality that would obviate
the qualified immunity defense; instead, courts should define the right "the
official is alleged to have violated ... in a more particularized, and hence more
relevant sense." Id. at 640; see also Brosseau v. Haugen, 543 U.S. 194, 199
14
(2004) ("It is important to emphasize that this inquiry 'must be undertaken in
light of the specific context of the case, not as a broad general proposition.").
Defendants argue, among other things, that on September 17, 2012, they
had arguable probable cause to arrest plaintiff for disorderly conduct under
New York Penal Law§ 240.20(6). As discussed above, this crime requires proof
of three elements: (1) that the arrestee's conduct was "public" in nature, (2)
that the arrestee acted with "intent to cause public inconvenience, annoyance
or alarm" or with recklessness as to a risk thereof, and (3) that the arrestee
congregated with other persons in a public place and refused to comply with a
lawful order to disperse. Provost, 262 F.3d at 157 (2d Cir. 2001).
As an initial matter, the parties in this case appear to dispute whether on
September 17, 2012 plaintiff was in fact ordered to disperse. P's Opp. at 22.
This factual dispute, however, is not genuine. Plaintiff appears to believe that
merely stating that a factual dispute exists is enough to overcome defendants'
motion for summary judgment. Although it is true that summary judgment
should not be granted when material facts are in dispute, the "mere existence
of some alleged factual dispute ... will not defeat an otherwise properly
supported motion for summary judgment." Scott, 550 U.S. at 380. Moreover,
"when opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment." Id.
15
Here, plaintiff admits that he was ordered to "move back" from the
intersection of Broadway and Wall Street. P's Responsive 56.1
~
124-1. He also
admits that he was pushed by police officers to move back north on Broadway,
away from the intersection. Id. at
~
126. Plaintiff then argues that this
interaction was not enough to rise to the level of an "order to disperse" because
police officers did not specifically tell plaintiff to "clear the sidewalk entirely."
Id. at
~
124-1.
The fundamental flaw in plaintiff's argument is that it essentially asks
the Court to find that plaintiff was not ordered to disperse because he did not
subjectively perceive the officers' actions as orders to disperse. This argument
miscasts the qualified immunity defense. It does not matter whether plaintiff in
fact understood the officers' actions as orders to disperse. The proper inquiry is
whether any reasonable officer under the circumstances could have construed
the order to "move back" and the shoving to constitute an order to disperse.
The Court answers that question in the affirmative.
Similarly, when the plaintiff stopped moving and began shouting "Whose
sidewalk," the relevant question is whether any reasonable officer could have
construed this as disobeying an order to disperse. The Court answers that
question in the affirmative as well. Moreover, by disobeying an order to
disperse under these circumstances, the Court finds that a reasonable police
officer could have believed that plaintiff was at least reckless as to the risk of
causing public inconvenience.
16
The parties also dispute whether an OWS demonstration was occurring
at the time and place of plaintiff's arrest on September 17, 2012. On the one
hand, defendants assert that people were "demonstrating and making their
presence known" at or near the "intersection of Wall Street and Broadway."
Defs' 56.1
at~
119. Plaintiff, on the other hand, states that "at the time and
place of plaintiff's arrest, there was no demonstration occurring" and that he
was just one of many civilians using the sidewalk. P's Opp. at 8. He further
states that he actively sought to avoid areas with protestors on that morning
because he wanted to "avoid the risk of arrest." P's 56.1 at
~
69-71. Each
version of the events triggers a different inquiry into whether any of plaintiff's
"clearly established" rights were violated on September 17, 2012. This dispute,
however, is not fatal to defendants' motion for summary judgment because,
under either version of the facts, plaintiff cannot point to any "clearly
established" right to be free of arrest.
First, under plaintiff's version of the facts, the relevant inquiry is whether
he possessed a "clearly established" right to be free of arrest while disobeying
orders to disperse at an urban intersection that would otherwise have been
completely obstructed by pedestrian traffic. As with plaintiff's earlier arrest, if
the police's orders were lawful under New York Penal Law§ 240.20(6), then
plaintiff did not have such a right.
Defendants argue in this context that the police officers' orders to
disperse were lawful insofar as they were not "purely arbitrary and not
calculated in any way to promote the public order." Crenshaw v. City of Mount
17
Vernon, 372 F. App'x 202, 206 (2d Cir. 2010) (summary order) (citing People v.
Galpem, 259 N.Y. 279,284-85 (1932)). Video evidence from September 17,
20 12 clearly shows that police officers were directing pedestrian traffic to
alleviate heavy congestion. Ex. N to Defendants' Motion for Summary
Judgment. For example, when one pedestrian appears to stand still at the
northeast corner of Wall Street and Broadway, a police officer says to him:
"either move that way [pointing south] or that way [pointing north], but you
can't stay here." Id. at 1:07. A reasonable officer under these circumstances
could have believed that, but for their orders to disperse, pedestrian traffic
would have come to a complete standstill in lower Manhattan during rush
hour. These orders can hardly be said to be "purely arbitrary" or "not
calculated in any way to promote the public order" under the standard set forth
in Galpem. 259 N.Y. 279, 284-85 (1932).
Plaintiff, however, does not contest whether the orders to disperse were
"purely arbitrary." Plaintiff instead argues that this standard is no longer
controlling. To support this argument, plaintiff cites to a number of cases more
recently decided by the New York Court of Appeals, all of which purportedly
overruled Galpem. See People v. Johnson, 22 N.Y.3d 1162 (2014); People v.
Weaver, 16 N.Y.3d 123 (2011); People v. Jones, 9 N.Y.3d 259 (2007).
In Johnson, the Court of Appeals held that a group of four men, even if
they were reputedly gang members, who were simply standing on a street
corner were not causing "any possible impact on the public." 22 N.Y.3d at
1164. In Weaver, the Court of Appeals upheld a charge of disorderly conduct,
18
reasoning that an individual who causes a commotion "during the early
morning hours when peace and quiet would be expected" satisfies the "public
concern" requirement under§ 240.20. 16 N.Y.3d at 128-29. Finally, the Court
of Appeals held in Jones that a small group of individuals who stop on a
sidewalk at around 2:00a.m., without anything further, did not have the
requisite mens rea to cause "public inconvenience, annoyance or alarm." 9
N.Y.3d at 264.
It is unclear how these cases can be construed to overrule Galpem.
Galpem had always required a showing of some element of public disruption
for an order to disperse to be considered "lawful." At best, plaintiff's cases
merely elaborate on the "public disruption" element necessary to warrant an
order to disperse. More importantly, the cases do not "clearly establish" that
the police officers' orders in this case were unlawful.
That is not to say, however, that Galpem's future as controlling authority
is certain. A number of courts in the Second Circuit have expressed doubt as to
whether Galpem would survive against the backdrop of a series of Supreme
Court cases which further refined the constitutional limits of anti-loitering and
disorderly conduct statutes. See, e.g., City of Chicago v. Morales, 527 U.S. 41
(1999); Kolender v. Lawson, 461 U.S. 352 (1983). But every court in this
Circuit that has recently addressed this issue has either affirmed Galpem or
avoided answering whether Galpem remains good law. See Crenshaw, 372 F.
App'x at 206 (summary order) (holding that an order to disperse was lawful
because it met Galpem's threshold requirements); United States v. Nelson, 500
19
F. App'x 90, 93 (2d Cir. 2012) (summary order) (declining to address whether
Galpem remains good law); Akinnagbe v. City of New York, 128 F. Supp. 3d
539, 547-48 (E.D.N.Y. 2015) (declining to decide whether Galpem is too broad
in light of recent Supreme Court precedent). While judges in this Circuit
continue to debate Galpem's holding, it cannot be said that the defendants'
conduct on September 17, 2012 violated any "clearly established" rights. To
hold otherwise would effectively "subject police to money damages for picking
the losing side of the controversy." Reichle v. Howards, 132 S. Ct. 2088, 2096
(20 12).
Alternatively, if, as defendants argue, plaintiff's arrest took place during
a political demonstration, then plaintiff's right must be examined in light of the
First Amendment's protections. Plaintiff relies heavily in this regard on
Papineau v. Parmley to illustrate the interplay between the First Amendment
and police officers' authority to issue orders to disperse during political
demonstrations. 465 F.3d 46 (2d Cir. 2006). Indeed, Papineau's general
statements of law forcefully explain the breadth of our First Amendment
guarantees. Quoting Papineau, plaintiff argues that he was protected against
arrest because "[n]either energetic, even raucous, protestors who annoy or
anger audiences, nor demonstrations that slow traffic or inconvenience
pedestrians, justify police stopping or interrupting a public protest." 465 F.3d
at 58.
Plaintiff's reliance on Papineau, however, is inapposite. First, plaintiff
fails to explain how the language he quotes from Papineau "clearly establishes"
20
that his rights were violated in a particularized way. See Brosseau v. Haugen,
543 U.S. 194, 198 (2004). Merely citing broad propositions of First Amendment
law is not enough. See Reichle, 132 S.Ct. at 2094 ("[T]he right allegedly violated
must be established, not as a broad proposition but in a 'particularized sense
so that the contours of the right are clear to a reasonable official.").
Second, plaintiff fails to grapple with the specific facts at issue in
Papineau. Importantly, the plaintiffs in Papineau were arrested while protesting
on private property. Papineau, 465 F.3d at 58. The right to assemble on private
property has long been treated as categorically distinct from the right to
assemble on public property. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 58
(1994) ("Whereas the government's need to mediate among various competing
uses, including expressive ones, for public streets and facilities is constant and
unavoidable, its need to regulate temperate speech from the home is surely
must less pressing."). The Second Circuit, en bane, recently circumscribed
Papineau's reach for qualified immunity purposes precisely on those grounds.
Garcia v. Does, 779 F.3d 84, 94 n.ll (2d Cir. 2014). Specifically, the Court in
Garcia held that Papineau's holding was limited to the rights attendant to
protests occurring on private property and thus did not "clearly establish" any
rights beyond that context. Id.
Plaintiff therefore does not and cannot point to any law that clearly
established his right to be free of arrest under the circumstances existing on
September 17, 2012. As a result, defendants are entitled to qualified immunity
21
and the Court grants their motion for summary judgment against plaintiff's
false arrest claim in connection with his September 17, 2012 arrest.
b. Malicious Prosecution Under § 1983
Plaintiff brings a claim under§ 1983 for malicious prosecution in
connection with his November 5, 2011 and September 17, 2012 arrests. To
prevail on a claim for malicious prosecution, plaintiff must show: "(1) that the
defendant commenced or continued a criminal proceeding against him; (2) that
the proceeding was terminated in the plaintiff's favor; (3) that there was no
probable cause for the proceeding; and (4) that the proceeding was instituted
with malice." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). In addition
to these four threshold elements, a plaintiff bringing a malicious prosecution
claim under § 1983 in this Circuit must show that he was subject to a "postarraignment seizure" in violation of the Fourth Amendment. Swartz v. Insogna,
704 F.3d 105, 112 (2d Cir. 2013) (explaining that a claim for malicious
prosecution is "grounded ultimately on the Fourth Amendment's prohibition of
unreasonable seizures").
As an initial matter, it is unclear whether plaintiff's allegations show that
he suffered any Fourth Amendment injury. The Second Circuit stated that "the
issuance of a pre-arraignment, non-felony summons requiring a later court
appearance, without further restrictions, does not constitute a Fourth
Amendment seizure." Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010). Here,
plaintiff was released after being issued a Desk Appearance Ticket and was
required to appear in court only once for each non-felony charge. Furthermore,
22
the Manhattan District Attorney's office declined to prosecute plaintiff for any
charges stemming from either of his arrests. Although Burg did not specifically
deal with a claim for malicious prosecution, its logic neatly applies to this case.
In other words, plaintiff did not suffer an injury under the Fourth Amendment
and his claims for malicious prosecution under § 1983 must be dismissed.
To the extent, however, that Burg does not extend to claims for malicious
prosecution, plaintiff's claims for malicious prosecution fail on other grounds.
First, plaintiff does not address defendants' arguments as to his claims for
malicious prosecution. "Federal courts may deem a claim abandoned when a
party moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way." Cowan, 95 F.
Supp. 3d at 645. Thus, the Court holds that plaintiff has abandoned his claims
for malicious prosecution.
Alternatively, plaintiff's claim for malicious prosecution as to his
November 5, 2011 arrest fails because probable cause is a defense to a claim of
malicious prosecution. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.
2003). Although the existence of probable cause at the time of arrest
immunizes defendants from liability for the arrest itself, probable cause can
"dissipate" between the time of the arrest and later criminal proceedings such
that defendants may nevertheless be liable under a theory of malicious
prosecution. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.
1996). However, in order for such probable cause to "dissipate," the
23
"groundless nature of the charges must be made apparent by the discovery of
some intervening fact." Id.
As discussed above, the Court established that defendants had probable
cause to arrest plaintiff on November 5, 2011. There is no evidence in the
record to indicate that defendants reasonably could have discovered any
intervening facts that would have dissipated probable cause. As such,
defendants' motion for summary judgment is granted as to plaintiff's claim for
malicious prosecution for his November 5, 2011 arrest.
Similarly, the Court established that defendants were protected by
qualified immunity as to plaintiff's September 17, 2012 arrest- i.e., the
defendants had "arguable probable cause" to arrest plaintiff on September 17,
2012. Since there is no evidence to suggest that defendants could have
discovered intervening facts to dissipate this "arguable probable cause,"
defendants are shielded from liability for malicious prosecution. See Betts v.
Shearman, 751 F.3d 78, 83 (2d Cir. 2014).
The Court therefore grants defendants' motion for summary judgment as
to plaintiff's claims for malicious prosecution under§ 1983.
c. Excessive Force Under§ 1983
Plaintiff brings a claim for excessive use of force in violation of the Fourth
Amendment under§ 1983. It is undisputed, as an initial matter, that plaintiff's
only injuries from his November 5, 2011 and September 17, 2012 arrests were
his bruised wrists, which healed of their own accord approximately within a
week of each incident.
24
Rather than address how these injuries entitle plaintiff's claims for
excessive force to survive summary judgment, plaintiff only mentions these
injuries as a factor to be considered in awarding damages if his false arrest
claims were to succeed. Plaintiff states in his opposition papers, "[i]t makes
sense, perhaps, that the infliction of transient pain should not rise to the level
of a separate cause of action for excessive force" but the Court should "allow
damages when physical pain is inflicted in the course of [false arrest.]" P's Opp.
at 11. Plaintiff then states that "[w]hether or not the Court sustains the cause
of action for excessive force, this harm should be an element of the jury's
consideration when assessing damages." Id. at 12. Plaintiff does not otherwise
mention his claim for excessive force under§ 1983 anywhere else in his
opposition papers.
The Court has not been provided any basis upon which it can sustain
plaintiff's claims for excessive force. Plaintiff has abandoned his claims for
excessive force and the Court therefore grants defendants' summary judgment
as to those claims. Cowan, 95 F. Supp. 3d at 645.
d. First Amendment Retaliation Under § 1983
Plaintiff brings claims under§ 1983 for First Amendment retaliation. In
cases involving arrests, probable cause and arguable probable cause (i.e.,
qualified immunity) to arrest are also defenses to any related claims for First
Amendment retaliation. Blue v. Koren, 72 F.3d 1075, 1083 n.5 (2d Cir. 1995)
(holding that First Amendment retaliation claims are barred where police
officers had probable cause or qualified immunity to arrest); see also Mozzochi
25
v. Borden, 959 F.2d 1174 (2d Cir. 1992) (holding that qualified immunity
shields officer from retaliation claim where a reasonable officer would believe
that the arrest and prosecution at issue were supported by probable cause). As
discussed above, the Court has found that defendants had probable cause and
arguable probable cause to arrest plaintiff on both November 5, 2011 and
September 17, 2012.
The Court therefore grants defendants' motion for summary judgment as
to plaintiff's First Amendment retaliation claims under§ 1983.
e. Failure to Intervene Under § 1983
Plaintiff brings a claim under § 1983 against the individual defendants in
this case for failure to intervene to prevent a violation of his constitutional
rights on November 5, 2011 and September 17, 2012. Second Amend. Compl.
~~
101-07. The Second Circuit has recognized that "law enforcement officials
have an affirmative duty to intervene to protect against the infringement of
constitutional rights from conduct committed by other officers in their
presence." Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). However,
where defendants are entitled to summary judgment as to plaintiff's underlying
claims under§ 1983, it logically follows that defendants are entitled to
summary judgment on plaintiff's failure-to-intervene claims as well. Posner v.
City of New York, No. 11-CV-4859 2014 WL 185880 at *8 (S.D.N.Y. Jan. 16,
2014); see also Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001).
The Court therefore grants defendants' motion for summary judgment for
plaintiff's claims of failure to intervene under§ 1983.
26
f. Municipal Liability under Monell
Plaintiff brings a claim under§ 1983 against the City of New York,
alleging that the City of New York maintained policies andjor customs that
resulted in the violation of plaintiff's constitutional rights. Defendants here met
their burden on summary judgment by pointing to a lack of evidence to
support a finding that the City of New York implemented such a policy or
custom. Plaintiff fails to point to any countervailing evidence to rebut
defendants' motion for summary judgment; in fact, plaintiff fails to address this
claim entirely in his opposition papers to defendants' motion for summary
judgment. Plaintiff therefore has abandoned this claim and the Court grants
defendants summary judgment on this ground. Cowan, 95 F. Supp. 3d at 645.
g. Deprivation of Federal Civil Rights Under § 1983
Plaintiff brings a general claim under§ 1983 alleging that defendants'
conduct on November 5, 2011 and September 17, 2012 deprived plaintiff of his
"rights, privileges and immunities guaranteed to citizens of the United States
by the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of
the United States of America." Second Amended Compl.
~~
95-100. First,
plain tiff fails to allege how this claim is distinct from his other claims for relief
under § 1983 for violations of his constitutional rights. Second, even assuming
that this claim is legally distinct from his other claims, plaintiff fails to address
in his opposition papers why summary judgment should not be granted against
it. Federal courts may deem a claim abandoned when the party opposing
summary judgment fails to address the argument entirely. See Cowan v. City of
27
Mount Vernon, 95 F. Supp. 3d 624, 645 (S.D.N.Y. 2015). The Court therefore
finds this general claim to be abandoned and grants defendants' motion for
summary judgment on this claim as it relates to both of plaintiff's arrests.
Plaintiff's State Law Claims
II.
a. State Law Claims for Battery, Assault, and Respondeat
Superior
Plaintiff brings claims for battery and assault against Police Officers
Pastula, McNamara, and John Does 1-10 under New York state law. Under
New York law, public officials are afforded "considerably greater protection from
individual capacity suits than the federal doctrine of qualified immunity."
Hirschfeld v. Spanakos, 909 F. Supp. 174, 180 (S.D.N.Y. 1995). The New York
Court of Appeals has held that "when official action involves the exercise of
discretion or expert judgment in policy matters, and is not exclusively
ministerial, a municipal defendant generally is not answerable in damages for
the injurious consequences of that action." Mon v. City of New York, 78 N.Y.2d
309,313 (1991) (quoting Haddock v. City of New York, 75 N.Y.2d 478,484
(1990)).
Police officers have a duty under New York City Charter§ 435(a) to
disperse "assemblages, which obstruct the free passage of public streets,
sidewalks, parks and places." This mandate does not, however, prescribe the
manner in which police officers must exercise this duty. Directing pedestrian
traffic to clear sidewalks of congestion is a duty that requires "instantaneous
judgment calls, rather than a pre-programmed means of achieving a
28
compulsory result." Denis v. Town of Haverstraw, 852 F. Supp. 2d 405, 413
(S.D.N.Y. 2012) (holding that a police officer directing traffic is a discretionary
action entitled to immunity from state causes of action). Defendants are thus
immune from liability for their actions on November 5, 2011 and September
17,2012.
Plaintiff also brings a claim against the City of New York for respondeat
superior liability for the actions of its police officers. Given, however, that the
individual police officers are not liable to plaintiff, the City of New York cannot
be held vicariously liable.
The Court therefore grants defendants' motion for summary judgment as
to plaintiff's state law claims for battery, assault, and respondeat superior.
b. State Law Claims for Negligent Hiring, Retention Training, and
Supervision
Finally, plaintiff brings state law claims against the City of New York for
negligent hiring, retention, training, and supervision of its police officers. As a
general matter, claims for negligent hiring, retention, training, and supervision
are not permissible against employers under New York law. Eckardt v. City of
White Plains, 87 A.D.3d 1049, 1051-52 (N.Y. App. Div. 2nd Dep't 2011).
Although there is an exception to this general rule when a plaintiff is seeking
punitive damages from the employer, punitive damages are impermissible
against the City of New York. See Karoon v. New York City Transit Auth., 241
A.D.2d 323, 324 (N.Y. App. Div. 1st Dep't 1997). The Court therefore grants
29
defendants' motion for summary judgment on plaintiff's negligent hiring,
retention, training, and supervision claims against the City of New York.
CONCLUSION
Defendants' motion for summary judgment is GRANTED. The Clerk of
Court is directed to close this case.
SO ORDERED
Dated:
New York, NY
October 25, 2016
Thomas P. Griesa
U.S. District Judge
30
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