Roper v. The City of New York et al.

Filing 73

OPINION & ORDER re: 47 MOTION to Dismiss Amended Complaint filed by Timothy Beaudette, The City Of New York, Police Officer "Lombardo", Jeremiah Winter, Michael Shultis, John Hart. For the reasons stated above, the Cou rt grants defendants' motion to dismiss the FAC for failure to state a claim. The Clerk of Court is respectfully directed to close the motion at Dkt. 47 and to close this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 6/7/2017) (anc)

I.

Background
A.

Factual Background1

On the evening of December 4, 2014, demonstrators associated with the Black Lives
Matter movement gathered to protest in Times Square. FAC ¶¶ 40, 92, 138. Black Lives
Matter is a movement intended “to call attention to and change inequalities and ill effects
created through systems of structural racism in American society,” among them police
misconduct and brutality directed at African Americans. Id. ¶ 121. On December 4, the Black
Lives Matter protest concerned, in particular, the failure to indict an officer in the case of Eric
Garner, an African-American man killed during an arrest on Staten Island in July 2014. See
id. ¶¶ 135–39.
Roper went to Times Square on December 4 intending to document the protest. Id.
¶¶ 40–43. Roughly an hour after he arrived, Roper “moved into the street,” which was closed
to traffic, id. ¶ 54, in order “to photograph and video record the police action from a different
perspective,” id. ¶ 53. Sometime thereafter, defendant Inspector Timothy Beaudette ordered
the protestors to move from the street to the sidewalk. Id. ¶ 55. As the result of barricades
and a “wall of NYPD officers,” Roper was unable to access the sidewalk in order to comply
with the order. Id. ¶ 56. Roper heard an NYPD supervisor instruct his officers to “[j]ust take

The Court draws these facts principally from plaintiffs’ First Amended Complaint (“FAC”),
Dkt. 23. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (“In
considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district
court may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint.”). The Court accepts all
factual allegations in the FAC as true, drawing all reasonable inferences in plaintiffs’ favor. See
Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
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somebody and put them in handcuffs.”2 Id. ¶ 60. One of the officers then arrested Roper for
“standing in the street,” id. ¶ 62, and placed him in plastic “flex-cuffs,” id. ¶ 76.
Lockett, a freelance photojournalist, also attended the December 4 protest in order to
take photographs of the protestors, the police, and the interactions between the two. Id. ¶¶ 90,
92–93. During the protest, in an effort to locate a restroom, Lockett crossed a street that had
been closed off to traffic. Id. ¶¶ 96–100. Lockett did not use a crosswalk, as those had been
blocked off by police officers. See id. ¶¶ 97, 99. Police officers, including defendant Officer
Lombardo, arrested Lockett for disorderly conduct and placed him in plastic flex-cuffs. Id.
¶¶ 101–02.
After their arrests, Roper and Lockett were each detained for several hours and
eventually issued desk-appearance tickets. Id. ¶¶ 82–83, 106–07. At their court appearances,
both plaintiffs received adjournments in contemplation of dismissal. Id. ¶¶ 87, 108. The
charges against them have since been dismissed and sealed. Id. ¶¶ 88, 108.
B.

Procedural History

On November 12, 2015, plaintiffs filed their original complaint, before the Honorable
Analisa Torres. Dkt. 1. On February 25, 2016, they filed the FAC. Dkt. 23. A court-ordered
mediation session was held on August 18, 2016, without success. Dkt. 34. On August 22,
2016, the case was referred to the Honorable Gabriel W. Gorenstein for all general pretrial
matters. Dkt. 35.
On October 4, 2016, Judge Torres denied defendants’ request to stay discovery
pending defendants’ anticipated motion to dismiss. Dkt. 46. On October 6, 2016, defendants

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The unidentified supervisor and officers are named in the FAC as John Doe defendants.

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then filed the instant motion to dismiss, which was fully submitted as of October 27.3 Dkts.
47–51. On November 22, 2016, the case was transferred to the undersigned. On January 25,
2017, Judge Gorenstein granted a request by the City to stay discovery concerning plaintiffs’
claims for municipal liability against it. Dkt. 66. After multiple extensions, fact discovery on
the balance of plaintiffs’ claims ended on March 23, 2017. See Dkt. 66. Judge Gorenstein
denied plaintiffs’ requests to further extend the discovery period. See Dkt. 66, 72.
II.

Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Dismissal is proper where,
as a matter of law, “the allegations in a complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at 558.
In considering a motion to dismiss, a district court must “accept as true all factual
claims in the complaint, and draw all reasonable inferences in the plaintiffs’ favor.” In re
Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016). However, “the
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the

Along with their motion, defendants filed transcripts of the examination of each plaintiff
conducted pursuant to New York General Municipal Law § 50-h. Fudim Decl. Exs. A–B, Dkt.
49. Defendants ask the Court to consider these transcripts in ruling on their motion. E.g., Def.
Mem. at 4, Dkt. 48. Because the FAC fails to state a claim on its face, see infra Part III, the
Court need not consider the parties’ arguments concerning the § 50-h transcripts, Lienau v.
Garcia, No. 12 Civ. 6572 (ER), 2013 WL 6697834, at *1 n.1 (S.D.N.Y. Dec. 19, 2013).
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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[R]ather, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above
the speculative level,’ i.e., enough to make the claim ‘plausible.’” Arista Records, LLC v. Doe
3, 604 F.3d 110, 120 (2d Cir. 2010) (second alteration and emphasis in Arista) (quoting
Twombly, 550 U.S. at 555, 570).
III.

Discussion
Plaintiffs assert claims of false arrest and arrest in retaliation for protected speech in

violation of their federal constitutional rights, as well as parallel false-arrest claims under New
York law. FAC ¶¶ 155–205. The existence of probable cause to arrest is a complete defense
to each of these claims. See Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015)
(false arrest); Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (retaliatory arrest).
Plaintiffs contend that defendants lacked probable cause to arrest them for failing to
comply with orders to disperse (i.e., disorderly conduct) because, to the extent that such orders
were issued, the surrounding police barricades inhibited plaintiffs from dispersing. However,
the relevant inquiry is “whether probable cause existed to arrest for any crime,” not
necessarily for the crimes cited by the officers or ultimately charged. Marcavage v. City of
New York, 689 F.3d 98, 109 (2d Cir. 2012) (citing Devenpeck v. Alford, 543 U.S. 146, 153–56
(2004)); see also Zalaski v. City of Hartford, 723 F.3d 382, 385 n.2, 394–95 (2d Cir. 2013)
(applying same analysis to false-arrest and retaliatory-arrest claims). Here, defendants argue
that they had probable cause to arrest the plaintiffs for offenses relating to pedestrian traffic.
For the reasons discussed below, that is correct. The Court therefore need not assess whether
plaintiffs’ compliance with the dispersal orders was excused so as, potentially, to vitiate
probable cause for disorderly conduct based on plaintiffs’ failure to disperse.

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“Probable cause exists ‘when the officers have 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.’”
Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013)). And, whether someone is committing a crime for which
probable cause may permit arrest is ordinarily a question of state law. Id. (quoting Michigan
v. DeFillippo, 443 U.S. 31, 36 (1979) (“[w]hether an officer is authorized to make an arrest
ordinarily depends, in the first instance, on state law” (alteration in original)).
New York law imposes several restrictions on the ability of pedestrians to lawfully
walk in the street. Relevant here, one New York statute directs that “[w]here sidewalks are
provided and they may be used with safety it shall be unlawful for any pedestrian to walk
along and upon an adjacent roadway.” N.Y. Veh. & Traf. Law § 1156(a) (McKinney,
Westlaw through 2017 ch. 23). A violation of this provision is defined as a “traffic infraction”
under New York law. See id. § 1101. Separately, a New York City traffic rule forbids
“enter[ing] or cross[ing] a roadway at any point where signs, fences, barriers, or other devices
are erected to prohibit or restrict such crossing” as well as “cross[ing] a roadway except at a
crosswalk on any block in which traffic control signals are in operation at both intersections
bordering the block.” N.Y.C. Comp. Codes R. & Regs. tit. 34, § 4-04(c)(1), (3) (Westlaw
through Mar. 31, 2017).
Defendants contend they had probable cause to arrest plaintiffs for violating these
traffic rules. Plaintiffs do not respond directly to defendants’ argument on this point. Instead,
they focus on the lawfulness of the dispersal orders and address the § 50-h transcripts from the
examinations of the plaintiffs. See Pl. Opp’n at 20–21, Dkt. 50; see also supra note 3. But

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defendants’ claim of justification to arrest has a solid foundation. Probable cause for these
traffic violations is established on the face of the FAC, even assuming that compliance with
the ensuing dispersal orders was not realistically possible. As pled, Roper and Lockett each
voluntarily entered the street from the sidewalk. See FAC ¶¶ 54–55, 99–100. And defendants,
observing each plaintiff walking in a street with an available sidewalk and designated
crosswalks, had knowledge sufficient to warrant a person of reasonable caution in the belief
that plaintiffs were in violation of the aforementioned traffic rules. See, e.g., Gonzalez v. City
of New York, No. 14 Civ. 7721 (LGS), 2017 WL 149985, at *1–2 (S.D.N.Y. Jan. 13, 2017).
That the streets in question were closed to vehicular traffic does not vitiate probable
cause. The more serious offense of disorderly conduct—a criminal misdemeanor—does
require as an element that a defendant intend to obstruct vehicular or pedestrian traffic. See,
e.g., People v. Carty, 49 N.Y.S.3d 600, 602 (App. Div. 2016) (per curiam) (citing N.Y. Penal
Law § 240.20(5) (McKinney, Westlaw through 2017 ch. 23)). But to establish probable cause
for the traffic violations listed above, defendants were not required to identify the presence of
traffic or an intent to obstruct it; these provisions permit law enforcement to restrict pedestrian
traffic to sidewalks even where they are simultaneously diverting vehicular traffic.
To be sure, courts have understandably expressed some skepticism about justifying
custodial arrests undertaken for other reasons based on violations of traffic laws that likely are
rarely the subject of arrests. But it is well-settled that probable cause is determined objectively
by the existence of evidence that an offense, including a traffic offense, has been committed,
not by the officers’ subjective basis for effecting the arrest. See Shamir v. City of New York,
804 F.3d 553, 557 (2d Cir. 2015) (citing Whren v. United States, 517 U.S. 806, 813 (1996)).

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Further, binding Second Circuit precedent holds that an arrest for just such an offense
by a pedestrian is permissible if properly supported by probable cause. See, e.g., United States
v. McFadden, 238 F.3d 198, 201–04 (2d Cir. 2001); Gonzalez v. City of New York, 2017 WL
149985, at *2 (citing United States v. Scopo, 19 F.3d 777, 781–82 (2d Cir. 1994)); cf. Glasgow
v. Beary, 2 F. Supp. 3d 419, 425 (E.D.N.Y. 2014) (holding defendant entitled to qualified
immunity when defendant arrested plaintiff after observing plaintiff commit a violation of the
New York traffic code, as “[g]iven the uncertain status of the law, it cannot be said that
plaintiff’s Fourth Amendment right to be free from a custodial arrest for a non-criminal traffic
infraction was ‘clearly established’ in January 2012”); People v. Robinson, 767 N.E.2d 638,
646–47 (N.Y. 2001) (declining to distinguish between criminal and traffic violations for the
purposes of searches and seizures under New York law). Although New York law defines a
“traffic infraction” as “not a crime,” N.Y. Veh. & Traf. Law § 155, it is also “deemed an
offense” for “purposes of arrest without a warrant” under N.Y. Crim. Proc. Law § 140. Id.
Under New York law, a traffic infraction is defined as a “petty offense,” id. § 1.20(39), and a
police officer may arrest a person for a “petty offense” without a warrant when the officer has
probable cause to believe that the person has committed the offense, id. §§ 140.10(1)(a),
140.10(1)(2).4 As such, such an arrest satisfies constitutional requirements under the Fourth
Amendment. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has
probable cause to believe that an individual has committed even a very minor criminal offense
in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).

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The circumstances under which New York law permits a police officer to arrest a person for a
petty offense are subject to certain restrictions not applicable here, such as that the petty offense
have been committed or believed by the police officer to have been committed “within the
geographical area of such police officer’s employment or within one hundred yards of such
geographical area. . . .” N.Y. Crim. Proc. Law § 140.10(2)(a).
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