Gersbacher v. The City Of New York , et al
MEMORANDUM OPINION AND ORDER re: 82 Motion for Summary Judgment. For the reasons stated above, Defendants' motion for summary judgment is DENIED with respect to the excessive force claim only and GRANTED as to all other claims. SO ORDERED. (Signed by Judge Gregory H. Woods on 10/2/2017) (anc) Modified on 10/2/2017 (anc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK, OFFICER
GONZALEZ, OFFICER RAMIREZ, DEPUTY :
INSPECTOR EDWARD WINSKI, and JOHN
DOE POLICE OFFICERS 1-10,
DOC #: _________________
DATE FILED: 10/2/17
GREGORY H. WOODS, United States District Judge:
Plaintiff Eric Gersbacher was arrested while participating in Occupy Wall Street (“OWS”)
demonstrations in Zuccotti Park three days after the movement’s inception. On the morning of
September 20, 2011, Gersbacher and numerous other OWS participants were gathered in the park.
Officers of the New York City Police Department were also on the scene. The demonstrators used
tarps to shelter themselves and their personal belongings, hanging some to trees and tying other
tarps to other objects. But that morning, the defendant police officers enforcing a New York City
administrative code that prohibited the erection of “obstructions” in public places took action to
remove the tarps.
Inspector Edward Winski, following orders from Department Chief Esposito, used a
bullhorn to order a crowd to step away from an arrangement of tarp-covered shopping carts, boxes,
and personal items. Despite the order, Gersbacher, who asserted that he did not hear the command
to disperse, stepped onto a portion of the tarp covering the structure and invited others to gather
around. After another order for people to move, Gersbacher sat down on the tarp and began
banging a saucepan with a drumstick. Following a brief encounter with Inspector Winski,
Gersbacher was arrested and charged with obstructing governmental administration and resisting
arrest. He spent one night in police custody, but returned to Zuccotti Park after his release. He
remained in the park for another week along with other OWS participants until his return home to
Buffalo, New York.
Gersbacher sued the City of New York and individual officers involved in his arrest under
42 U.S.C. § 1983, alleging claims for false arrest, excessive force, failure to intervene, deliberate
indifference, retaliation for the exercise of his First Amendment rights, and municipal liability. The
Court denied Defendants’ motion to dismiss the complaint. Defendants now move the Court for
summary judgment on all claims. Because genuine disputes of material fact exist as to the
reasonableness of the amount of force used in Gersbacher’s arrest, summary judgment is DENIED
as to the excessive force claim. However, because probable cause existed for Gersbacher’s arrest,
summary judgment as to the remainder of Gersbacher’s claims is GRANTED.
On September 20, 2011, Plaintiff Eric Gersbacher was arrested in Zuccotti Park. Pl.’s Rule
56.1 Counterstatement (ECF No. 96) (“Pl.’s 56.1”) ¶ 28–29.2 The events leading up to and
accompanying his arrest form the basis of his claims.
Gersbacher arrived in Zuccotti Park in lower Manhattan in New York City on September 17,
2011 to participate in the Occupy Wall Street (“OWS”) protests. Id. ¶ 2. Gersbacher slept in the
park from then until September 28, 2011, when he returned home to Buffalo, New York. Id. The
only exception was the night of September 20, 2011, a night that he spent in police custody as a
result of the incident that sparked this lawsuit. Id. ¶¶ 48-49. During the demonstrations, OWS
participants sought shelter for themselves and their personal belongings under tarps tied to trees and
The following facts are drawn from the parties’ Local Civil Rule 56.1 Statements and other submissions in connection
with the instant motion and are undisputed or taken in the light most favorable to Gersbacher, unless otherwise noted.
References to “Pl.’s 56.1” are to Gersbacher’s Rule 56.1 counterstatement submitted in connection with Defendants’
motion for summary judgment. Gersbacher’s Rule 56.1 counterstatement contains both the assertions of the moving
party and the responses of the non-moving party.
secured in other manners. Id. ¶ 6.
On the morning of September 20, 2011, several members of the New York City Police
Department were present in the park and the surrounding area, including Defendant Inspector
Edward Winski, Chief of Department Joseph Esposito, and Lieutenant Daniel Albano. Id. ¶ 3.
Inspector Winski was the commanding officer of the first precinct at the time. Def.’s Response to
Pl.’s Revised Affirmative Local Rule 56.1 Statement (“Def.’s Resp.”) (ECF No. 99) ¶ 59.3 He
received orders from Chief Esposito to remove tarps that OWS participants had placed in the park.
Decl. of Amy Robinson in Supp. of Def.’s Mot. for Summ. J. (ECF No. 83) (“Robinson Decl.”), Ex.
G, at 358:5–11, 363:20–25. In connection with the order, Inspector Winski spoke with Lieutenant
Albano, Director of the Criminal Section of the NYPD’s legal department, who was there to
provide other officers with legal counsel.4 Pl.’s 56.1 ¶ 4; Robinson Decl., Ex. G, at 358:5–11.
A three- to four-foot structure5 had been assembled adjacent to a park bench. Pl.’s 56.1 ¶¶
6, 13. The structure was composed of shopping carts, boxes, and personal belongings all covered by
a blue tarp that was tied to the shopping carts. Id. ¶¶ 6, 13, 30. The tarp extended over the structure
and covered the bench. Id. ¶ 13. Defendant Inspector Winski was among several police officers
3 References to “Def.’s Resp.” are to Defendants’ response to Gersbacher’s Revised Affirmative Rule 56.1 Statement,
which contains both the assertions of the non-moving party and the responses of the moving party.
The parties dispute the substance of that conversation. Defendants assert that Lieutenant Albano advised Chief
Esposito and Inspector Winski that a tarp-covered “structure” inside the park was unlawful. Pl.’s 56.1 ¶ 4. Defendants
rely on Inspector Winski’s deposition testimony that “Lieutenant Albano told Chief Esposito and myself that the
structure inside Zuccotti Park was in violation of the law.” Robinson Decl., Ex. G, at 358:8–11. Gersbacher highlights
that Lieutenant Albano testified in deposition that he could not recall the conversation with Inspector Winski. Pl.’s 56.1
¶ 4; Pl.’s Decl. in Opp. to Summ. J. (ECF No. 89) (“Pl.’s Decl.”), Ex. 7, at 25:15–26:7. To the extent those statements
are proffered to show the reason for Inspector Winski’s removal of the tarps in Zuccotti Park, the Court will consider
The Court uses the term “structure” to refer to the tarp-covered shopping carts, boxes, and personal items at the heart
of the events giving rise to Gersbacher’s claims. The parties dispute whether this construction was indeed a “structure.”
But the significance of this dispute is unclear, as the local law that police sought to enforce does not contain the term.
See N.Y.C. Admin. Code § 16-122(b) (prohibiting the erection of “sheds, buildings and obstructions”). By using the
term “structure” the Court makes no determination with respect to the parties’ arguments as they relate to the lawfulness
of the shopping cart/box/tarp conglomeration based on its characterization as a “structure.” The Court simply finds
this term the most appropriate to describe the agglomeration of objects.
who gathered near the structure. Id. ¶ 3. Inspector Winski used a bullhorn to address the crowd
that had gathered in the park.6 Pl.’s 56.1 ¶ 14. At that time, Gersbacher was within ten feet of
Inspector Winski, Pl.’s 56.1 ¶ 9, and heard Inspector Winski “asking some people” to “move,”
Robinson Decl., Ex. F, at 111:20–112:10. Facing the tarp-covered structure, Inspector Winski
notified those in the crowd that they had one minute to remove “it” then he was going to remove
“it.”7 Pl.’s 56.1 ¶ 8; Robinson Decl., Ex. E, at 01:00–01:04. Inspector Winski then instructed those
gathered to “step back.” Pl.’s 56.1 ¶ 8; Robinson Decl., Ex. E, at 01:08–01:11.
Gersbacher moved onto the portion of the tarp that covered the bench and, in a voice loud
enough for others to hear, directed people to “gather” in the “center.” Pl.’s 56.1 ¶ 12–13; Robinson
Decl., Ex. F, at 55:11–16. Inspector Winski, again using the bullhorn, gave further instructions to
“move back” and to “step back.” Pl.’s 56.1 ¶ 14; Robinson Decl., Ex. E, at 01:31–01:34.
At some point, Gersbacher sat down on the tarp, facing away from Inspector Winski, and
began banging on a saucepan with a drumstick.8 Robinson Decl., Ex. F, at 54:22–55:2; Def.’s Resp.
Defendants’ 56.1 Statement states that Inspector Winski notified the crowd that police would be enforcing a local law
by removing a “structure” that was covered by multiple tarps in the park. Pl.’s 56.1 ¶ 6. In support of this assertion,
Defendants rely on paragraph twenty-two of Plaintiff’s complaint, in which Gersbacher alleges that police, including
Inspector Winski, “had indicated that they would enforce New York City Administrative Code § 16-122(b), forbidding
the leaving of goods or erection of structures in public places, to remove any tarps tied to trees or otherwise secured so
as to provide shelter to OWS participants or their belongings.” Pl.’s Compl. (ECF No. 1) ¶ 22. Defendants also rely on
Gersbacher’s deposition testimony, in which he states generally that police were attempting to remove the tarp on which
Gersbacher was sitting. Pl.’s 56.1 ¶ 6. Defendants further assert that video footage submitted by Gersbacher depicts
Inspector Winski notify the crowd via bullhorn that the tarps were illegal structures that had to be removed by those
gathered or else he would remove them. Def.’s 56.1 ¶¶ 7–8. Gersbacher responds that Inspector Winski’s statements to
the crowd on the video are largely indiscernible. Pl.’s Resp. 56.1 ¶¶ 7-8; Def.’s Decl., Ex. E, Pl. Video 2, 00:32–00:47,
01:02–01:18. The Court has reviewed the video and finds Inspector Winski’s statement audible.
Gersbacher asserts that the video footage fails to support Inspector Winski’s statements because those statements in
the captured footage are “not audible.” Pl.’s Resp. 56.1 ¶ 8. The Court has reviewed the video and disagrees. The
Court also notes that this is not an issue of disputed fact. Gersbacher denies hearing Inspector Winski’s statements but
points to no evidence apart from his audit of the video of the incident that suggests they were never made.
Defendants assert that after Gersbacher sat down and began banging with the saucepan, Inspector Winski ordered him
to “Get off the tarp,” citing to video footage for support. Def.’s 56.1 ¶18. Gersbacher correctly notes that the video
does not show either Inspector Winski at that moment nor the person or persons to whom Inspector Winski’s order
was directed. Pl.’s Resp. 56.1 ¶ 18; Robinson Decl., Ex. E, at 01:45. Because Gersbacher states that Inspector Winski
never gave him that order to leave the tarp, the Court will accept his view of this fact and will not consider Defendants’
¶ 77; Pl.’s 56.1 ¶15. Inspector Winski stepped up onto the tarp-covered bench behind Gersbacher,
briefly grabbed Gersbacher’s collar, and instructed him to leave the tarp, saying, “Hey buddy, time
to go.” Pl.’s 56.1 ¶¶ 19–20, 22.9 Gersbacher stood, turned around to face the officers, and yelled,
“Don’t you dare touch me” followed by “What are you doing?” Id. ¶ 23; Robinson Decl., Ex. E, at
01:51–01:54; Robinson Decl., Ex. F, at 59:19–21. Inspector Johnny Cardona joined Inspector
Winski on the tarp-covered bench, and, while Gersbacher took steps backwards shouting, “No, no
no,” Inspectors Cardona and Winski grabbed him and threw him off the tarp into a group of other
officers and then onto the ground.10 Pl.’s 56.1 ¶¶ 25–26, 28; Robinson Decl., Ex. E, at 01:55–02:00;
Def.’s Resp. ¶ 82. As officers attempted to handcuff Gersbacher, he raised his left arm straight up
in the air. Pl.’s 56.1 ¶ 31.
While police officers escorted Gersbacher out of the park with his hands behind his back, he
alerted them that he was having an asthma attack and needed medical attention. Def.’s Resp. ¶ 85;
Robinson Decl., Ex. E, at 04:20–04:23. He then fell to the ground, with one hand in flex cuffs and
the other pinned underneath his body. Def.’s Resp. ¶ 85; Robinson Decl., Ex. E, at 04:32–04:34.
While Gersbacher was on the ground, officers used their hands and knees to apply weight to his
neck, head, and back. Def.’s Resp. ¶ 85; Robinson Decl., Ex. E, at 04:34–05:46. After pulling him
up to a sitting position, officers finished handcuffing his wrists. Def.’s Resp. ¶ 85; Robinson Decl.,
Ex. E, at 04:34–05:46. Officers then allowed an OWS medic to treat Gersbacher with an inhaler,
one minute and thirty seconds after Gersbacher first informed the officers that he was having an
At different places in the record, the parties indicate that Inspector Winski “tapped” Gersbacher on the shoulder at this
point in the chain of events. See Robinson Decl., Ex. G, at 191:9–11, 192:7–11; Def.’s Resp. ¶ 77. Neither party
disputes that Inspector Winski either grabbed Gersbacher’s collar or tapped his shoulder.
Gersbacher claims that the inspectors grabbed him, threw him into a group of officers, and slammed him to the
ground. Pl.’s Opp. to Summ. J. (ECF No. 92) (“Pl.’s Opp.”) at 11; Def.’s Resp. ¶ 82. Gersbacher cites to video
evidence in support. Def.’s Resp. ¶ 82. The parties dispute the characterization of the video footage. See id. The Court
accepts for purposes of this motion the facts as viewed by Gersbacher, the non-moving party.
asthma attack.11 Def.’s Resp. ¶ 85; Robinson Decl., Ex. E, 05:50–05:55. Sergeant Martha Rosado,
who was also on the scene, used a pocket knife to cut the tarp covering the structure away from the
shopping carts. Robinson Decl., Ex. L, at 108:7–22; Pl.’s 56.1 ¶ 30.
At the time of Gersbacher’s arrest, Officer Allan Gonzalez was across the street, standing by
the police van. Pl.’s 56.1 ¶ 38. He did not participate in Gersbacher’s arrest or handcuffing. Id. ¶¶
37–38. Officer Gonzalez first saw Gersbacher when officers brought him over to the van for
transport to the precinct. Id. ¶39. Officer Gonzalez was assigned Gersbacher’s arrest for
processing. Id. ¶ 36. He transported Gersbacher to the first precinct, where he was examined by
two Emergency Medical Technicians (EMTs). Id. ¶¶ 40, 42. Gersbacher asked the EMTs to loosen
or remove the flex cuffs, complaining that his hands were numb and purple. Robinson Decl., Ex. F,
at 66:1–22. Officer Gonzalez eventually cut the flex cuffs off using a pair of EMT scissors. Pl.’s
Decl., Ex. 8, at 200:17–25. At the precinct, Gersbacher also reported an injury to his shoulder, and
EMTs examined a cut on his left elbow.12 Robinson Decl., Ex. F, at 66:22–23, 67:9–10, 68:11–12.
Though Gersbacher did not report anything further to the EMTs, he also sustained what he later
described in his deposition testimony as “a long lasting abrasion” to his forehead. Robinson Decl.,
Ex. F, at 68:21–24. When shown a still photograph of his face from video of the incident during his
deposition, however, Gersbacher was unable to identify any injury to his head. Id. 132:1–6; Pl.’s 56.1
Gersbacher was subsequently transported to central booking by a number of officers,
11 Defendants allege that after the inhaler was administered, Gersbacher resisted officers’ attempts to escort him to a van
to be transported to the police precinct, citing to video footage in support. Pl.’s 56.1 ¶ 35 (citing to Robinson Decl., Ex.
M, at 02:00–02:20). The Court has reviewed the cited footage, and finds that it does not support Defendants’
proposition. Accordingly, the Court will not consider this factual allegation.
12 Defendants assert in their 56.1 Statement that Gersbacher alerted the EMTs only to his alleged injury due to the tight
flex cuffs. Pl.’s 56.1 ¶ 44. In support, they cite to Gersbacher’s deposition testimony, but in that testimony, he also
states that he complained of a shoulder injury, Robinson Decl., Ex. F, at 66:22–23, and the EMTs examined a cut to his
elbow that had been bleeding through his shirt, id. at 67:9–16, 68:11–12.
including Officer Ramirez. Robinson Decl., Ex. D, at 105:10–11. After arriving at central booking,
Gersbacher was examined by two additional EMTs. Pl.’s 56.1 ¶ 43. Gersbacher informed those
EMTs that he wanted to go to the courtroom before receiving medical assistance. Pl.’s 56.1 ¶ 46;
Robinson Decl., Ex. D, at 101:11–18, 105:14–25. But, according to him, that decision was
influenced by Officer Ramirez, who pressured him into not asking for medical assistance. Pl.’s 56.1
¶ 46; Robinson Decl., Ex. D, at 105:6–18.
Gersbacher was arraigned the next day on charges of obstructing governmental
administration and resisting arrest. Pl.’s 56.1 ¶ 48. He was issued a notice to appear and released on
his own recognizance. Id. ¶ 49.
After his release from custody, Gersbacher returned to Zuccotti Park. Pl.’s 56.1 ¶ 50. He
ultimately sought medical treatment two days later. Id.; Robinson Decl., Ex. D, at 31:13–22. He
stayed in the park until returning home to Buffalo, New York, on September 28, 2011. Pl.’s 56.1 ¶
2. Gersbacher later accepted an adjournment in contemplation of dismissal of all charges that had
been brought against him. Id. ¶ 51.
In the days and weeks following his arrest, Gersbacher made several comments on his
Facebook account13 about his experience, boasting that he “got arrested like a cool kid” and “was in
the moment and  decided to stand up and it spread awareness of the movement all over the
world”. Id. ¶ 52. In the comments, he also explained that he “did it knowing it’d make the whole
thing stronger.” Id. Gersbacher also attended more than ten OWS general assembly meetings after
his arrest. Id. ¶ 54.
1. Procedural History
Gersbacher initiated this action on September 19, 2014, asserting claims under 42 U.S.C. §
13 The parties describe these comments differently. Defendants characterize them as “posts.” Def.’s 56.1 ¶ 52.
Gersbacher, however, claims that the comments were made through “chat” communications, noting that a “post” would
be accessible by a general audience but a “chat” only by a single individual. Def.’s Resp. 56.1 ¶ 52. Whether the
comments were “posts” or “chats” is immaterial for purposes of this motion.
1983 for violations of his First and Fourteenth Amendment rights. ECF No. 1. He alleges that the
individual defendants are liable to him for false arrest; failure to intervene to prevent violations of
his constitutional rights; use of excessive force; deliberate indifference to his serious medical needs;
and retaliation for his exercise of his First Amendment rights. Id. He also asserts that the City of
New York bears responsibility for these violations under Monell v. Department of Social Services, 436
U.S. 658 (1978). Id. On April 7, 2015, Defendants moved to dismiss all of Gersbacher’s claims
pursuant to Rule 12(b)(6), on the basis that Gersbacher had failed to state a claim upon which relief
could be granted, and alternatively, that Defendants were entitled to qualified immunity. ECF No.
15. The Court denied that motion on September 25, 2015. ECF No. 30. Defendants filed an
answer to Gersbacher’s complaint on October 22, 2015. ECF No. 35.
Defendants have moved for summary judgment on all claims.
STANDARD OF REVIEW
Defendants are entitled to summary judgment on a claim if they can “show[ ] that there is no
genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is
proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))).
A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Id.
To defeat a motion for summary judgment, a plaintiff “must come forward with ‘specific
facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ. P. 56(e)). “[M]ere speculation or conjecture
as to the true nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(internal quotation marks and citations omitted). A plaintiff “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(internal quotation marks and citation omitted). The Court’s job is not to “weigh the evidence or
resolve issues of fact.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002); see also
Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“In applying th[e] [summary
judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”).
“Assessments of credibility and choices between conflicting versions of the events are matters for
the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553–54
(2d Cir. 2005) (citation omitted). “[T]he judge must ask . . . not whether . . . the evidence
unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for
the plaintiff on the evidence presented.” Id. at 553 (quoting Anderson, 477 U.S. at 252); see also Battino
v. Cornelia Fifth Ave., LLC, 861 F. Supp. 2d 392, 400 (S.D.N.Y. 2012) (“To avoid summary judgment,
all that is required of the non-moving party is a showing of sufficient evidence supporting the
claimed factual dispute as to require a . . . jury’s resolution of the parties’ differing versions of the
truth.” (citing Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006))).
To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that there has been a
denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and
that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v.
Atkins, 487 U.S. 42, 48 (1988). “Section 1983 does not in and of itself create any substantive rights;
rather, a plaintiff bringing a § 1983 claim must demonstrate a violation of an independent federal
constitutional or statutory right.” Watts v. N.Y. City Police Dep’t, 100 F. Supp. 3d 314, 322 (S.D.N.Y.
2015) (citing Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617-18 (1979)).
1. False Arrest Claim
A false arrest claim under Section 1983, premised on an individual’s right under the Fourth
Amendment to be free from unreasonable seizures “is substantially the same as a claim for false
arrest under New York law.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Under New York law, a plaintiff seeking to
establish a cause of action for false arrest must show that: (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, such as by probable cause or a
warrant. Willey v. Kirkpatrick, 801 F.3d 51, 70–71 (2d Cir. 2015) (citing Broughton v. State of New York,
335 N.E.2d 310, 314 (N.Y. 1975)).
Defendants do not dispute that they intentionally confined Gersbacher or that he was
conscious of the confinement. Rather, they dispute the third element, asserting that Gersbacher’s
arrest was privileged. An arrest is privileged if probable cause exists for the arrest. See Ackerson, 702
F.3d at 19. Defendants first assert that the undisputed facts support the conclusion that there was
probable cause for Gersbacher’s arrest. Second, they argue, in the alternative, that, even if probable
cause did not support the arrest, the individual defendants are entitled to qualified immunity.
A. Probable Cause for Gersbacher’s Arrest
Defendants are entitled to summary judgment on Gersbacher’s false arrest claim because
probable cause existed for his arrest. Probable cause exists where the arresting officer has
“knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has committed or
is committing a crime.” Weyant, 101 F.3d at 852; Marlin v. City of New York, No. 15-cv-2235-CM,
2016 WL 4939371, at *9 (S.D.N.Y. Sept. 7, 2016). “The inquiry is limited to whether the facts
known by the arresting officer at the time of the arrest objectively provided probable cause to
arrest.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013).
It is not necessary for probable cause to have existed “with respect to each individual
charge” so long as “probable cause existed to arrest for any crime.” Marcavage v. City of New York,
689 F.3d 98, 109 (2d Cir. 2012). By the same token, probable cause need not be based on the
offense invoked by the arresting officer in making the arrest, “so long as the arrest itself was
supported by probable cause, regardless of whether probable cause supported any individual charge
identified by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.
2006); see also Marcavage, 689 F.3d at 109.
Here, probable cause existed for Gersbacher’s arrest for the offense of obstructing
governmental administration. Under New York Penal Law § 195.05, a person is guilty of
obstructing governmental administration when “he intentionally obstructs, impairs or perverts the
administration of law or other governmental function or prevents or attempts to prevent a public
servant from performing an official function, by means of intimidation, physical force or
interference.” A person may be convicted of obstructing governmental administration if “(1) a
public servant is performing an official function; (2) the individual prevents or attempts to prevent
the performance of that function by interfering with it; and (3) the individual does so intentionally.”
Kass v. City of New York, 864 F.3d 200, 207 (2d Cir. 2017).
In considering the first element, an officer is deemed to be “performing an official function”
if that function is authorized by law. Id. at 207. To satisfy the second element, an individual’s
interference must be physical, and not merely verbal. Id. at 209; People v. Case, 42 N.Y.2d 98, 101–02
(1977). In determining whether an individual’s behavior rises to the level of interference, an officer
may nonetheless consider both the individual’s actions and his words. Kass, 864 F.3d at 209. This
element is easily satisfied; an individual need only “intrude himself into, or get in the way of, an
ongoing police activity.” Id. at 210 (quoting In re Kendell R., 897 N.Y.S.2d 83, 84 (N.Y. Sup. Ct. 1st
Dep’t 2010)). To satisfy the third element, “an individual must intend to prevent the public servant
from performing the official function.” Murray v. City of New York, No. 15-cv-6768-LGS, 2017 WL
3309728, at *4 (S.D.N.Y. Aug. 2, 2017). Because of the great “practical restraints on police in the
field,” officers are afforded great latitude in ascertaining intent. Kass, 864 F.3d at 210.
Defendants claim that Gersbacher obstructed governmental administration when he
“intentionally obstruct[ed] and impair[ed] officers’ efforts to uphold” New York City Administrative
Code § 16-122(b) (“Section 16-122(b)”) by getting on top of the tarp, encouraging other protestors
to join him, and by refusing to move after Inspector Winski gave orders to do so.
Section 16-122(b) provides that:
It shall be unlawful for any person, such person’s agent or employee
to leave, or to suffer or permit to be left, any box, barrel, bale of
merchandise or other movable property whether or not owned by such
person, upon any marginal or public street or any public place, or to
erect or cause to be erected thereon any shed, building or other
N.Y.C. Admin. Code § 16-122(b). Section 16-122(b), thus, prohibits two types of conduct: (1) leaving,
or causing to be left, “any box, barrel, bale of merchandise or other movable property” on a “public
street” or in “any public place”; and (2) the erection of “any shed, building or other obstruction.” Id.
The parties do not dispute that Section 16-122(b) applies to Zuccotti Park. Though privately
owned, the park is open to the public and maintained for public use. See Waller v. City of New York,
34 Misc. 371, 372–73 (N.Y. Sup. Ct. 2011) (“Zuccotti Park is a privately owned public-access plaza,
created in 1968 by a city planning special permit issued pursuant to then existing authority of the
New York City Zoning Resolution, which encouraged the creation of space for public use in
exchange for additional or ‘bonus’ development rights given to the owners of adjoining properties. .
. . [T]he special permit requires that Zuccotti Park be open to the public and maintained for public
use 365 days per year.”).
Gersbacher disputes, rather, that Defendants’ efforts to remove the tarp-covered structure
were authorized by law and that Gersbacher intended to interfere with that removal. Neither of
these disputes saves Gersbacher’s claim.
Five years before the events that unfolded here, the Second Circuit found that officers had
probable cause to arrest a homeless man while enforcing Section 16-122(b) when the man was
sleeping in a shelter fashioned by placing three cardboard boxes together atop a park bench.
Betancourt v. Bloomberg, 448 F.3d 547, 549–50, 554 (2d Cir. 2006). The panel concluded that in
assembling the cardboard shelter, the man violated Section 16-122(b)’s prohibition of “erect[ing] . . .
any shed, building or other obstruction.” Id. at 553 (quoting § 16-122(b)). The panel disagreed with
the district court’s determination that the cardboard structure could be deemed a box left or
permitted to be left in the park, in violation of the first type of conduct prohibited by Section 16122(b), because the man had not left the boxes but was instead sleeping in them. Id. The panel did
find, however, that the cardboard structure was an obstruction erected by the man in violation of
Section 16-122(b)’s second prohibited class of conduct. Id. The panel observed that “erect” means
to “put up . . . by the fitting together of material or parts.” Id. (quoting Webster’s Third New
International Dictionary (1976)). Accordingly, the court concluded that it was reasonable to understand
that the fashioning of three boxes into a shelter large enough for a man to crawl into was the
“put[ting] up” of something “by the fitting together of material or parts.” Id. The panel also
concluded that the cardboard shelter was an “obstruction” within the meaning of Section 16-122(b),
again relying on the plain meaning of “obstruction” and reasoning that “an agglomeration of boxes
large enough for a man to fit into would be ‘something that obstructs or impedes.’” Id.
Just as in Betancourt, the structure at issue here was erected in violation of Section 16-122(b).
First, the structure was fashioned by “fitting together” shopping carts, boxes, and personal items
and tethering to the shopping carts a blue tarp covering. Id. Thus, the structure was “put up by the
fitting together of material or parts.” Id. Second, much like the shelter in Betancourt, the three- to
four-foot agglomeration here was large enough to be “something that obstructs or impedes.” Id.
Removal of the tarp-covered structure was therefore authorized by the administrative code.
As noted, Gersbacher further argues that there is insufficient evidence in the record to
support a determination that he had the intent required to obstruct governmental administration. In
evaluating his intent for purposes of determining the existence of probable cause, the Court’s
“inquiry is limited to . . . the facts known by the arresting officer at the time of the arrest.” Gonzalez,
728 F.3d at 155. Construing those facts in the light most favorable to Gersbacher, the Court finds a
sufficient factual basis on which the arresting officers could conclude that Gersbacher intended to
impede their removal of the structure. With Gersbacher within ten feet of Inspector Winski, Winski
gave orders over a bullhorn for people gathered in the park near the structure to move and to “step
back.” Following that order, Gersbacher moved onto the portion of the tarp that was draped over a
bench and called on people to “gather” in the “center.” Inspector Winski repeated the order to
move back, again using the bullhorn. At some point, Gersbacher sat down on the tarp and began
banging on a saucepan with a drumstick. Inspector Winski tapped him on the shoulder and told
him, “Hey buddy, time to go.” In response, Gersbacher immediately stood up and exclaimed,
“What are you doing?” and “Don’t you dare touch me.” Although Gersbacher claims that Inspector
Winski’s initial orders to move were not directed at him, Gersbacher was in the gathered crowd and
standing within feet of Winksi when the orders were given. Given the sequence of events and
Gersbacher’s proximity to Inspector Winski while Winski was issuing commands, the undisputed
facts sufficiently support the conclusion that Gersbacher intended to interfere with the officers’
In sum, the officers’ removal of the tarp-covered structure was authorized by law, and the
facts available to Inspector Winski at the time sufficiently suggested that Gersbacher’s physical
interference was intentional. Probable cause therefore existed for Gersbacher’s arrest and precludes
his claim for false arrest.
B. Arguable Probable Cause and the Individual Defendants’ Qualified Immunity
While probable cause for Gersbacher’s arrest acts as a complete defense to his false arrest
claim, Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015); Covington v. City of New York, 171
F.3d 117, 122 (2d Cir. 1999), Defendants additionally put forth the argument that the Individual
Defendants were entitled to qualified immunity based on the existence of arguable probable cause.
“Qualified immunity shields government officials from liability for civil damages as a result of their
performance of discretionary functions, and serves to protect government officials from the burdens
of costly, but insubstantial, lawsuits.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 817–18 (1982)). Law enforcement officers are entitled to qualified
immunity on a Section 1983 claim if “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818.
“Even where the plaintiff’s federal rights and the scope of the official’s permissible conduct are
clearly established, the qualified immunity defense protects a government actor if it was ‘objectively
reasonable’ for him to believe that his actions were lawful at the time of the challenged act.” Lennon,
66 F.3d at 420 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)); see also Weyant, 101 F.3d at
857 (“[P]ublic officials are entitled to qualified immunity if (1) their conduct does not violate clearly
established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did
not violate those rights.”). “The objective reasonableness test is met—and the defendant is entitled
to immunity—if ‘officers of reasonable competence could disagree’ on the legality of the defendant’s
actions.” Lennon, 66 F.3d at 420 (quoting Malley v. Briggs, 475 U.S. 335, 340–41 (1986)).
In the context of a false arrest claim, “[a]n officer is entitled to qualified immunity . . . if he
had arguable probable cause to arrest the plaintiff for any offense, regardless of the offense with
which the plaintiff was actually charged.” Kass, 864 F.3d at 206 (citing Betts v. Shearman, 751 F.3d 78,
82–83 (2d Cir. 2014); Myers v. Patterson, 819 F.3d 625, 632–33 (2d Cir. 2016); Zalaski v. City of
Hartford, 723 F.3d 382, 390 n.4 (2d Cir. 2013)). Arguable probable cause exists if “it was objectively
reasonable for the officer to believe that probable cause existed, or . . . officers of reasonable
competence could disagree on whether the probable cause test was met.” Id. (quoting Myers, 819
F.3d at 633).
Here, even if probable cause were absent, Inspector Winski would be entitled to qualified
immunity for his arrest of Gersbacher because it was objectively reasonable to conclude that
probable cause existed to arrest Gersbacher for obstructing governmental administration. First,
given the nature of the structure, it was objectively reasonable for Inspector Winski to believe that it
had been erected in violation of Section 16-122(b) and that it was within his power to remove the
obstruction. Second, based on the facts at the time of Gersbacher’s arrest, as discussed above, a
reasonable officer could also have believed that Gersbacher’s actions in placing himself on top of
the tarp, calling others to gather around, and remaining on the tarp after Inspector Winski gave
orders over the bullhorn demonstrated his intent to interfere with the structure’s removal.
Gersbacher’s false arrest claim is accordingly dismissed.
2. Excessive Force
Although Gersbacher’s false arrest claim does not withstand summary judgment, genuine
issues of material fact preclude summary judgment on his excessive force claim. The Fourth
Amendment prohibits the use of excessive force in making arrests, and the determination of
whether the force used is “excessive” is analyzed under the Fourth Amendment’s reasonableness
standard. Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham v. Connor, 490
U.S. 386, 395 (1989)). “Determining excessiveness requires ‘a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Brown, 798 F.3d at 100 (quoting Graham, 490 U.S. at 396). This
balancing “requires careful attention to the facts and circumstances of each particular case, including
the following three factors: (1) the severity of the crime at issue, (2) whether the suspect poses an
immediate threat to the safety of the officers or others, and (3) whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight.” Id. (internal quotation marks and alterations
omitted) (quoting Graham, 490 U.S. at 396).
That multi-factor test is not meant to be applied rigidly, however, and “the inquiry into
whether force is reasonable requires an objective examination of the ‘totality of the circumstances.’”
Crowell v. Kirkpatrick, 667 F. Supp. 2d 391, 406 (D. Vt. 2009), aff’d, 400 Fed. App’x 592 (2d Cir. 2010)
(quoting Graham, 490 U.S. at 396–97). Importantly, the “reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Brown, 798 F.3d at 100 (quoting Graham, 490 U.S. at 396) (internal quotation
marks omitted). The “standard is one of objective reasonableness, and the officer’s state of mind,
whether evil or benign, is not relevant.” Brown, 798 F.3d at 100–01 (citing Graham, 490 U.S. at 397).
In addition to weighing the Graham factors, courts in this district have regularly held that a
plaintiff must have sustained some injury to maintain a claim of excessive force. See, e.g., Acosta v.
City of New York, 11-cv-856-KBF, 2012 WL 1506954, at *10 (S.D.N.Y. Apr. 26, 2012); Wims v. New
York City Police Dep’t, 10-cv-6128-PKC, 2011 WL 2946369, at *4–5 (S.D.N.Y. July 20, 2011). That
injury, however, need not be severe. See Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (denying
summary dismissal of excessive force claim where plaintiff “testified that she suffered bruises lasting
a ‘couple weeks’”).
Here, Gersbacher claims that Defendants used excessive force in their application of the flex
cuffs; by grabbing him, throwing him, and pinning him to the ground; and by keeping him pinned
down despite his complaints of an asthma attack. Pl.’s Opp. to Summ. J. (ECF No. 92) (“Pl.’s
Opp.”) at 9–11. Defendants argue that the Individual Defendants’ use of force in effectuating
Gersbacher’s arrest did not violate his Fourth Amendment rights because any injuries he sustained
as a result were de minimis.
As an initial matter, the mere act of handcuffing, without something more, cannot support
Gersbacher’s excessive force claim. “[H]andcuffing a suspect and requiring [him] to place [his]
hands behind [his] back is not a constitutional violation.” Washpon v. Parr, 561 F. Supp. 2d 394, 407
(S.D.N.Y. 2008). “[O]verly tight handcuffing,” however may amount to excessive force. Lynch ex
rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008). To evaluate the
reasonableness of a plaintiff’s handcuffing, the Court considers, among other things, evidence that:
(1) the handcuffs were unreasonably tight; (2) the defendants ignored the plaintiff’s pleas that the
handcuffs were too tight; and (3) the degree of injury to the plaintiff’s wrists. Id. Handcuffing can
support a Section 1983 excessive force claim when the plaintiff suffers injury as a result of the
handcuffing, Usavage v. Port Auth. of N.Y. and N.J., 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013), but
that injury must be “beyond temporary discomfort or bruising,” Omor v. City of New York, No. 13-cv2439-RA, 2015 WL 857587, at *7 (S.D.N.Y. Feb. 27, 2015); see also Lynch, 567 F. Supp. 2d at 468-69
Gersbacher testified during his 50-H hearing that his wrists were more than simply numb or
bruised; he stated that they were “scarred,” Robinson Decl., Ex. D, at 102:15–16. Gersbacher’s
testimony thus suggests that his handcuffing caused more than temporary bruising or pain and
creates a genuine dispute as to the gravity of his handcuff injury, and whether Defendants employed
excessive force in securing his wrists must be decided by a jury.14
Material factual disputes also exist with regard to Gersbacher’s claim of excessive force
predicated on Inspector Winski’s grabbing, throwing, and pinning him to the ground. In this regard,
the Graham factors weigh against summary judgment. The severity of the crime for which
14 The record before the Court shows that, when asked about his injuries in deposition, Gersbacher did not repeat that
his wrists were scarred, but only indicated that they were numb. Robinson Decl., Ex. F, at 66:14–22. The Court notes,
however, that the complete transcript of Gersbacher’s deposition was not filed on the record, and the majority of the
testimony related to Gersbacher’s injuries that is available to the Court is couched in the context of questions about
Gersbacher’s statements to EMTs. Id. at 65:4–68:8. Therefore, the Court is unable to determine whether Gersbacher
was questioned in deposition specifically about the extent of the injuries to his wrists and, more particularly, about his
previous allegations of scarring. Although the only evidence currently before the Court of any scarring to Gersbacher’s
wrists consists of his 50-H hearing testimony, the Court, for purposes of this motion, must view that allegation in the
light most favorable to Gersbacher as the non-moving party. Gersbacher will have the opportunity to demonstrate the
scarring that he sustained to the jury in support of his excessive force claim.
Gersbacher was arrested is slight. Gersbacher faced a maximum penalty of one year of
incarceration,15 and the underlying facts, even as alleged by Defendants, include little more
aggressive conduct than standing and sitting on top of a tarp and encouraging others to join him.
The evidence does not suggest that Gersbacher posed a threat to the safety of the officers or others.
Gersbacher responded to Inspector Winski’s tap on the shoulder by standing up and saying, “Don’t
you dare touch me,” but then backed away and yelled “no, no, no” seconds later as Inspectors
Winski and Cardona moved toward him. Notably, Defendants do not allege that Gersbacher was
fleeing, cf. Tennessee v. Garner, 471 U.S. 1, 6–8 (1985), or physically attacking an officer, cf. Sullivan v.
Gagnier, 225 F.3d 161, 163 (2d Cir. 2000), or even making a move that an officer could reasonably
interpret as threatening an attack, cf. Tracy v. Freshwater, 623 F.3d 90, 97 (2d Cir. 2010). Indeed,
Inspector Winski described Gersbacher’s demeanor as merely “standoffish” but did not allege he
was violent. Pl.’s Decl., Ex. 4, at 192:21–193:4.
A dispute exists as to whether Gersbacher resisted arrest. Gersbacher admits that he had
“an obvious latent intention not to remain and not to be arrested,” Pl.’s 56.1 ¶ 27, and that he
moved away from Inspectors Winski and Cardona as they came toward him on the tarp. The parties
also agree that, at one point while officers attempted to apply the flex cuffs, Gersbacher raised his
arm and that, after Gersbacher fell to the ground, only one of his wrists was cuffed. The parties
dispute, however, the length of time that it took officers to place the cuffs and the degree to which
Gersbacher was actually resisting. Defendants contend that he screamed and struggled for nearly
three minutes, that his resistance did not allow officers to finish cuffing him until he was on the
ground, and that he purposely laid on his uncuffed hand to prevent the cuffs from being attached.
Gersbacher, on the other hand, asserts that he did not struggle or scream for three minutes, that the
flex cuffs had been placed on both of his wrists before he fell to the ground, when one hand merely
The maximum penalty for obstructing governmental administration, N.Y. PL § 195.05 is one year of incarceration.
N.Y. PL § 70.15(1).
slipped out, and that his actions while lying on the ground were a result of his asthma attack, not an
attempt to further resist.
Additionally, though Defendants claim that Gersbacher complained of no other injuries
when he was seen by the paramedics, Gersbacher testified in his deposition that, as a result of the
force used by officers, his shoulder was injured, his left elbow was cut and bleeding through his
shirt, and he sustained a “long lasting” abrasion to his forehead. Gersbacher highlights that, while
he did not demand to be taken to a hospital while in custody, he complained repeatedly to police
officers and EMTs of the tight cuffs and sought medical treatment two days after being released
from police custody. Again, the bar to show injury to survive summary judgment on an excessive
force claim is low, Robison, 821 F.2d at 924, and Gersbacher has produced sufficient evidence to
demonstrate an injury that may be suggestive of excessive force.
The Court is mindful of the chaotic and crowded scene at Zuccotti Park, of Inspector
Winski’s initial inability to secure both of Gersbacher’s wrists in the flex cuffs, and of the potential
for escalated tension following Gersbacher’s call to other protestors to “gather in the center.”
However, because a dispute exists as to the extent of the injuries that Gersbacher sustained, the
extent of his resistance, and the amount of force Inspector Winski used in arresting him, a
reasonable jury could find that Inspector Winski’s use of force was objectively unreasonable. See
Brown, 798 F.3d at 100–01.
Furthermore, Inspector Winski is not shielded from liability on this claim by qualified
immunity. While qualified immunity is a defense “generally available against excessive-force claims,”
Finnegan v. Fountain, 915 F.2d 817, 822–23 (2d Cir. 1990), that defense is unavailing here. Winski
points the Court to the Second Circuit’s decision in Lennon v. Miller, 66 F.3d 416, 420–21 (2d Cir.
Lennon, however, is distinguishable. In Lennon, officers sought to arrest the plaintiff when
she refused to vacate the driver’s seat of a car that lawfully belonged to her estranged husband. Id. at
419. Police were in the process of returning the car to her husband and informed her that she was
under arrest for obstructing governmental administration. Id. An officer “pulled her hand off the
ignition, placed his arm around her neck, shoulder, right arm, and right hand, and forcibly removed
her from the car.” Id. After being released from custody, the plaintiff sought treatment only for a
wrist injury. Id. The Second Circuit found that no reasonable jury could find the force used was
excessive because the plaintiff claimed “no other use of force and no other injury.” Id. at 426.
Here, on the other hand, Gersbacher has put forth greater evidence than the plaintiff in
Lennon, both in terms of force and injuries suffered. On this record, the Court cannot conclude that
no reasonable jury could find in favor of Gersbacher.
Moreover, the Second Circuit has held that when “the factual record is not in serious dispute
. . . [,] [t]he ultimate legal determination whether . . . a reasonable police officer should have known
he acted unlawfully is a question of law better left for the court to decide.” Id. at 421 (quoting
Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990)); accord Harris v. O'Hare, 770 F.3d 224, 239 (2d Cir.
2014) (same); Estate of Jaquez v. City of New York, 104 F.Supp.3d 414, 434 (S.D.N.Y. 2015) (question
of whether a “reasonable police officer should have known he acted unlawfully” is a question of law
for the court “[e]ven though a reasonableness inquiry traditionally is a question of fact for the jury”).
Conversely, “summary judgment on qualified immunity grounds is not appropriate when there are
facts in dispute that are material to a determination of reasonableness.” Husain v. Springer, 494 F.3d
108, 133 (2d Cir. 2007) (quoting Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)).
The Court cannot conclude that Inspector Winski is entitled to qualified immunity at this
stage of the litigation because facts material to a determination of the reasonableness of his actions
are in dispute. Given the disputed issues of material fact regarding whether and to what extent
Gersbacher resisted arrest, the amount of force Inspector Winski used against Gersbacher, and the
seriousness of the injuries that Gersbacher sustained, the Court cannot conclude that he is entitled
to qualified immunity on the record before it.
3. Failure to Intervene
Defendants are entitled to summary judgment on Gersbacher’s failure to intervene claim.
Gersbacher contends that Defendants breached their duty to intervene on his behalf when he was
arrested and when excessive force was used against him. As a preliminary matter, Gersbacher’s
claim premised on his arrest fails because probable cause existed for that arrest. See Weyant, 101 F.3d
at 852 (“The existence of probable cause to arrest constitutes justification and ‘is a complete defense
to an action for false arrest.’” (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).
Additionally, although sufficient factual disputes exist to preclude summary judgment on
Gersbacher’s excessive force claim, Gersbacher puts forth no evidence to even suggest that Officers
Ramirez and Gonzalez had an opportunity to intervene to prevent any unconstitutional use of force.
“A police officer is under a duty to intercede and prevent fellow officers from subjecting a citizen to
excessive force, and may be held liable for his failure to do so if he observes the use of force and has
sufficient time to act to prevent it.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (citation
omitted). However, a law enforcement officer will only be held liable for another officer’s use of
excessive force, if there was “a realistic opportunity [for the first officer] to intervene to prevent the
harm from occurring.” Rogoz v. City of Hartford, 796 F.3d 236, 251 (2d Cir. 2015) (quoting Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Here, Officer Gonzalez was not present at the scene of the arrest. He was across the street.
He did not see Gersbacher until after the arrest and the alleged use of excessive force. This hardly
demonstrates that Officer Gonzalez had a realistic opportunity to intervene. Gersbacher’s failure to
intervene claim against Officer Gonzalez is dismissed.
Even more precarious is a claim against Officer Ramirez. Gersbacher asserts that Officer
Ramirez was present at Zuccotti Park that morning, but presents no evidence of his location at the
time of the use of force. Lacking any factual support in the record, Gersbacher’s failure to intervene
claim against Officer Ramirez is also dismissed.
4. Deliberate Indifference to Gersbacher’s Medical Needs
To state a claim for deliberate indifference to serious medical needs, a plaintiff must satisfy a
two-pronged test, alleging, first, a “‘sufficiently serious’ deprivation of adequate medical care,”
Spavone v. New York State Dep’t of Correctional Servs., 719 F.3d 127, 139 (2d Cir. 2013) (internal
quotation marks omitted) (quoting Salahuddin v. Goord, 467 F.3d 263, S279 (2d Cir. 2006)), and,
second, that the defendant acted with deliberate indifference or a “sufficiently culpable state of
mind,” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). These claims, when brought by pretrial
detainees “are governed by the Due Process Clause of the Fourteenth Amendment, rather than the
Cruel and Unusual Punishments Clause of the Eighth Amendment.” Darnell v. Pineiro, 849 F.3d 17,
29 (2d Cir. 2017). This is because “pretrial detainees have not been convicted of a crime and thus
may not be punished in any manner—neither cruelly and unusually nor otherwise.” Id. (citation and
internal quotation marks omitted).
To satisfy the first prong, a plaintiff must provide evidence that he or she suffered from an
objectively serious medical condition, defined as a “condition of urgency, one that may produce
death, degeneration, or extreme pain.” Hathaway, 99 F.3d at 553. To satisfy the second prong, a
pretrial detainee bringing claims under the Fourteenth Amendment may show a “sufficiently
culpable state of mind,” id., by proving a defendant’s recklessness – that is, that a defendant “‘knew,
or should have known’ that his or her conduct ‘posed an excessive risk to health or safety,’” Lloyd v.
City of New York, 246 F. Supp. 3d 704, ___, slip op. at 9 (S.D.N.Y. 2017) (quoting Darnell, 849 F.3d
at 33); Youngblood v. City of New York, Nos. 15-cv-3541-RA, 16-cv-6100-RA, 2017 WL 3176002, at *4
(S.D.N.Y. July 24, 2017).
Here, Gersbacher’s claim is premised on Defendants’ indifference to his asthma attack and
to alleged wrist injuries caused by the flex cuffs. Defendants contest both the seriousness of
Gersbacher’s medical conditions and the claim that the Individual Defendants acted with deliberate
indifference to them. The parties do not dispute that Gersbacher had an asthma attack or that
police officers allowed an OWS medic to administer an inhaler one minute and thirty seconds after
Gersbacher alerted officers of his condition. Assuming arguendo that the attack could be construed
as a serious medical condition, the minute-and-one-half wait does not amount to “an excessive risk
to [Gersbacher’s] health or safety.” Lloyd, 246 F. Supp. 3d at ___, slip op. at 9.
Gersbacher’s claim of deliberate indifference related to the individual defendants’ disregard
for the tightness of his handcuffs also lacks sufficient support in the record. Although Gersbacher
alleges that his wrists were scarred as a result of the cuffs, he does not dispute that Officer Gonzalez
removed the cuffs prior to having Gersbacher transported to central booking. Gersbacher produces
no evidence that officers’ failure to remove the cuffs at an earlier time “posed an excessive risk to
health or safety.” Id.
Because Gersbacher fails to prove that Defendants acted recklessly in responding to his
requests for medical care, Defendants are entitled to summary judgment on the deliberate
5. Retaliation for First Amendment Protected Expression
The essential elements of a First Amendment retaliation claim differ depending on the
factual context in which they arise. Compare Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)
(requiring, in the prison context, that the prisoner responded to retaliatory conduct by defendants
“that would deter a similarly situated individual of ordinary firmness from exercising . . .
constitutional rights” (quotation marks omitted)), with Curley v. Village of Suffern, 268 F.3d 65, 73 (2d
Cir. 2001) (requiring that a private citizen, who alleged he was arrested by public officials in
retaliation for his unsuccessful campaign to unseat the Village’s mayor, show that he was “actually
chilled” in exercising his rights (quotation marks omitted)). To prevail on a claim for First
Amendment retaliation, a private citizen must prove that: “(1) he has an interest protected by the
First Amendment; (2) [the] defendants’ actions were motivated or substantially caused by his
exercise of that right; and (3) [the] defendants’ actions effectively chilled the exercise of his First
Amendment right.” Kuck v. Danaher III, 600 F.3d 159, 168 (2d Cir. 2010) (quoting Curley, 268 F.3d at
Gersbacher argues that his arrest was retaliatory and asserts that his resulting injuries
included his physical battery, chilling of his First Amendment rights, his inability to complete his
college studies, and termination of his employment. This claim is precluded because, as described in
detail above, probable cause existed for his arrest. It is well settled that the existence of probable
cause “will defeat . . . a First Amendment claim that is premised on the allegation that defendants
prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence [him].” Fabrikant v. French,
691 F.3d 193, 215 (2d Cir. 2012); see also Curley, 268 F.3d at 73 (concluding that a finding of probable
cause obviates the need to undertake “an inquiry into the underlying motive for the arrest”) (citing
Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995); Mozzochi v. Borden, 959 F.2d 1174, 1179–80
(2d Cir. 1992)). As the Second Circuit reasoned, “‘[a]n individual does not have a right under the
First Amendment to be free from a criminal prosecution supported by probable cause,’ even if that
prosecution ‘is in reality an unsuccessful attempt to deter or silence criticism of the government.’”
Fabrikant, 691 F.3d at 215 (quoting Mozzochi, 959 F.2d at 1180); see also Singer, 63 F.3d at 120; Marlin,
2016 WL 4939371, at *14 (concluding that plaintiff’s First Amendment retaliation claims must be
dismissed following a finding that the plaintiff’s arrest was supported by probable cause or, at least,
arguable probable cause).16
Gersbacher’s opposition may be read to suggest that Defendants’ actions in the park leading up to his arrest were in
retaliation for the exercise of his, and other OWS participants’, protected rights. Pl.’s Opp. at 21–22. This claim was not
made expressly in his complaint. Defendants did not bother to address it in their reply. To the extent that Gersbacher
views this as an independent basis for his First Amendment claim, it also fails. As a preliminary matter, Gersbacher has
demonstrated that he was engaged in constitutionally protected activity by virtue of participating in the protests in
Zuccotti Park. Gersbacher’s presence in Zuccotti Park as both a participant and an observer of the political protests
certainly falls “within the ambit of constitutional protection.” MacNamara v. City of New York, 275 F.R.D. 125, 141
(S.D.N.Y. 2011) (finding that plaintiffs “who were present as observers of a political protest” were cloaked in First
Amendment protection). Indeed, courts considering First Amendment claims brought by protesting individuals who
rely on temporary shelters erected in public forums have found that tents erected and inhabited by OWS participants
and other protestors in various cities throughout the country may be forms of protected expression in and of
themselves. See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (assuming, but not deciding, that
“overnight sleeping” in a tent in a park opposite the White House “in connection with [a] demonstration is expressive
conduct protected to some extent by the First Amendment”); Occupy Columbia v. Haley, 866 F. Supp. 2d 545, 557 – 58
6. Municipal Liability
Gersbacher has presented insufficient evidence to withstand summary judgment on his
Monell claim. “To hold a city liable under § 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007) (internal quotation marks and alterations omitted); see Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690-91 (1978). Accordingly, “a municipality cannot be made liable [under
§ 1983] by application of the doctrine of respondeat superior,” Pembaur v. City of Cincinnati, 475 U.S. 469,
(D.S.C. 2011) (finding that, in the context of a preliminary injunction application, the plaintiffs were likely to establish
that their camping on State House grounds in connection with Occupy Columbia was “expressive conduct”); Mitchell v.
City of New Haven, 845 F. Supp. 2d 238, 246 (D. Conn. 2012) (collecting cases). Defendants remark in a footnote that the
law is unsettled as to whether Gersbacher’s expression in Zuccotti Park, a privately owned property, is entitled to First
Amendment protection. Def.’s Mem. in Supp. of Summ. J. at 16 n.2. Other courts in this district have observed the
same. See, e.g., Bogart v. City of New York, 13-cv-1017-NRB, 2015 U.S. Dist. Lexis 11311, at *16–17 (S.D.N.Y. Aug. 25,
2015) (“[T]here is no rule clearly establishing that the First Amendment applies in a [privately owned public space] such
as Zuccotti Park.”); Caravalho v. City of New York, 13-cv-4174-PKC, 2016 WL 1274575, at *15. For purposes of this
motion, the Court need not decide this issue.
Participation in a protected activity is not all that is required to survive summary judgment on a First Amendment
retaliation claim. As the Court has already concluded, Defendants were lawfully engaged in enforcing New York City’s
administrative code in the park, and probable cause existed for Gersbacher’s subsequent arrest. It is axiomatic that
“‘[a]n individual does not have a right under the First Amendment to be free from a criminal prosecution supported by
probable cause,’ even if that prosecution ‘is in reality an unsuccessful attempt to deter or silence criticism of the
government.’” Fabrikant, 691 F.3d at 215 (quoting Mozzochi, 959 F.2d at 1180).
Moreover, Gersbacher has failed to produce evidence that his First Amendment rights were chilled as a result of
officers’ enforcement of Section 16-122(b), apart from the consequences of the privileged arrest. See Kuck, 600 F.3d at
168 (requiring a private citizen to prove that the “defendants’ actions effectively chilled the exercise of his First
Amendment right”). The record shows that he returned to Zuccotti Park immediately after his arrest and release from
custody and remained there for another week before returning home. Pl.’s 56.1 ¶¶ 48–49. Gersbacher went on to
participate in nearly a dozen OWS general assembly meetings. Pl.’s 56.1 ¶ 54. He also spoke openly about his arrest on
social media, stating that he “was in the moment and  decided to stand up and it spread awareness of the [OWS]
movement all over the world.” Id. ¶ 52.
Gersbacher also points to no evidence of any other concrete injury that he suffered as the result of Defendants’ law
enforcement actions in Zuccotti Park, again, apart from the privileged arrest and its consequences. See Dorsett v. County of
Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (“Chilled speech is not the sine qua non of a First Amendment claim. A plaintiff
has standing 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.”); see also Mangino v. Incorporated Vill. of Patchogue, 808 F.3d 951, 955–56 (2d Cir. 2015)
(affirming that a plaintiff may show either chilled speech or another concrete harm). While Gersbacher’s arrest could
qualify as a concrete injury “because it both halted [his] speech immediately and subjected [him] to criminal charges,”
Marom, v. City of New York, 2016 WL 916424, at *11 (S.D.N.Y. Mar. 7, 2016), that arrest was privileged and cannot give
rise to liability, Fabrikant, 691 F.3d at 215; Curley, 268 F.3d at 73.
478 (1986), but rather the plaintiff must “demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the alleged injury,” Roe v. City of Waterbury, 542 F.3d 31, 37
(2d Cir. 2008) (internal quotation marks omitted).
A plaintiff may satisfy the “policy or custom” prong in one of four ways: by proving the
existence of (1) a formal policy, see Monell, 436 U.S. at 690; (2) actions taken or decisions made by
final municipal policymakers that caused the violation of plaintiff’s rights, see Pembaur, 475 U.S. at
483–84; (3) a practice so persistent and widespread that it constitutes a “custom or usage” and
implies the constructive knowledge of policymakers, see Monell, 436 U.S. at 690-91; or (4) a failure to
properly train or supervise municipal employees that amounts to “deliberate indifference to the
rights of those with whom municipal employees will come into contact.” See City of Canton v. Harris,
489 U.S. 378, 388 (1989); see also Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996).
Gersbacher seeks to establish municipal liability by arguing that Chief Esposito and
Lieutenant Albano were “final municipal policymakers,” Pembaur, 475 U.S. at 484, whose decision to
remove tarps in Zuccotti Park on September 20, 2011, resulted in the various alleged constitutional
violations. The Court is unpersuaded.
Before a municipality’s liability can be implicated, there must have been a violation of the
plaintiff’s constitutional rights. See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992)
(“[P]roper analysis requires us to separate two different issues when a § 1983 claim is asserted against
a municipality: (1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so,
whether the city is responsible for that violation.”). Because the only surviving claim asserted by
Gersbacher is that of excessive force premised on a violation of his Fourth Amendment rights,
Gersbacher must point to evidence that Chief Esposito and Lieutenant Albano were involved in
either the decision to apply such force, or its actual application. See Pembaur, 475 U.S. at 483–84
(discussing municipal liability for “unlawful action[s]” and “deliberate choice[s]” taken by the
Gersbacher points to no evidence in the record to support the conclusion that either Chief
Esposito or Lieutenant Albano were involved in any force used in the course of his arrest such that
their actions could form the basis for Monell liability. Nor is there evidence in the record that either
official made a decision related to the amount of force to be used in the event of an arrest. The
record indicates that Chief Esposito gave orders related to the removal of tarps in the park. See Pl.’s
Mem. at 22; Pl.’s 56.1 ¶ 76. It is silent, however, as to Chief Esposito’s physical location and actions
during Gersbacher’s arrest. The record is equally silent as to the whereabouts and activities of
Lieutenant Albano at that time. Accordingly, the Court cannot conclude that either official made a
decision or took a course of action that led to any excessive force against Gersbacher. See Caravalho
v. City of New York, No. 13-cv-4174-PKC, 2016 WL 1274575,at *21 (S.D.N.Y. Mar. 31, 2016)
(dismissing Monell claim related to an arrest at Zuccotti Park during OWS because plaintiff’s theory
that the defendant officers were “final policymakers with respect to the decision to clear Zuccotti
Park based on purported rules violations” bore no “causal link” to plaintiff’s excessive force claim).
Even if Chief Esposito or Lieutenant Albano were involved in arresting and using force on
Gersbacher, there is insufficient evidence to conclude that either officer had sufficient authority to
give rise to municipal liability. Where the contention is not that the defendants’ actions were taken
pursuant to a formal policy but rather that they were taken or caused by an official whose decisions
represent official policy, the court must determine whether that official had final policymaking
authority in the particular area involved. See, e.g., Jett v. Dallas Independent School District, 491 U.S. 701,
737 (1989); Praprotnik, 485 U.S. at 123–25. It is not enough that the official has been granted
discretion in the performance of his duties. See, e.g., Praprotnik at 127. “[O]nly those municipal
officials who have ‘final policymaking authority’ may by their actions subject the government to §
1983 liability.” Id. at 123 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)).
Whether the official in question had final policymaking authority is a legal question, which is
to be answered on the basis of state law. McMillian v. Monroe County, 520 U.S. 781 (1997) (a proper
“understanding of the actual function of a governmental official, in a particular area, will necessarily
be dependent on the definition of the official’s functions under relevant state law”); Jett, 491 U.S. at
737; Praprotnik, 485 U.S. at 123–24. “[T]he relevant legal materials includ[e] state and local positive
law, as well as custom or usage having the force of law.” Jett, 491 U.S. at 737 (quoting Praprotnik,
485 U.S. at 124 n.1) (internal quotation marks omitted). The determination of whether the official is
a final policymaker under state law is “to be resolved by the trial judge before the case is submitted to
the jury.” Id.
Defendants contend that the Commissioner of the NYPD is the sole “final policymaker” for
that department. See Def. Reply Mem. in Supp. of Summ. J. (ECF No. 98) at 9. Section 434(b) of
the New York City Charter provides that “[t]he commissioner shall be the chief executive officer of
the police force. He shall be chargeable with and responsible for the execution of all laws and the
rules and regulations of the department.” For his part, Gersbacher points to no legislative
enactment or other provision of state law that makes either Chief Esposito or Lieutenant Albano the
individual with “final policymaking authority” over the amount of force to be used in effectuating
arrests. Nor does he point to any delegation by the Police Commissioner to Chief Esposito or
Lieutenant Albano of the authority to make such policy. Instead, to show that Chief Esposito was a
final policymaker, Gersbacher relies only on evidence that Chief Esposito was the individual within
the department who gave the order to remove the tarps in the park on September 20, 2011. See Pl.’s
Opp. at 22; Pl.’s 56.1 ¶ 76.
That Chief Esposito has the word “Chief” in his title, or that he ordered the removal of the
tarps on September 20, 2011, do not make him a “final policymaker” for the City as a matter of law.
See Russo v. City of Hartford, 341 F. Supp. 2d 85, 108 (D. Conn. 2004) (holding that a police chief
could not be deemed a final policymaker because he “remained accountable to department and city
policy” and “the City Charter vest[ed] policymaking authority in the City Council and the City
Manager”); see also Allen v. City of New York, No. 03-cv-2829-KMW-GWG, 2007 WL 24796, at *21–
22 (S.D.N.Y. Jan. 3, 2007) (concluding that evidence that a city official had “full responsibility for
the operation of a particular function within a municipality” was insufficient to prove that the
official was the “final policymaker” in that area). Gersbacher’s argument that Lieutenant Albano is a
final policymaker because he testified that he was a policymaker during his deposition is also
unconvincing. Whether or not an officer has sufficient authority to constitute a final policymaker is
determined as a matter of law, not by the relevant officer’s self-regard.
The City Charter grants authority for “the execution of . . . the rules and regulations of the
department” to the Commissioner alone. N.Y.C. Charter § 434(b). Gersbacher points to no
evidence on which the Court could conclude as a matter of law that Chief Esposito or Lieutenant
Albano were delegated final policymaking authority in the area of officers’ use of force. See Jeffes v.
Barnes, 208 F.3d 49, 57–58 (2d Cir. 2000) (“Where a plaintiff relies not on a formally declared or
ratified policy, but rather on the theory that the conduct of a given official represents official policy,
it is incumbent on the plaintiff to establish that element as a matter of law.”). Accordingly,
Gersbacher’s Monell claim is dismissed.
For the reasons stated above, Defendants’ motion for summary judgment is DENIED with
respect to the excessive force claim only and GRANTED as to all other claims.
Dated: October 2, 2017
New York, New York
__ ___ ___
GREGORY H. WOODS
United States District Judg
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