Nicholas v. Bratton et al

Filing 34

OPINION AND ORDER re: 3 MOTION for Preliminary Injunction filed by Jason B. Nicholas. For the foregoing reasons, Nicholas's motion for a preliminary injunction is denied. Because the Court's analysis rests in part on the pendency of Nicholas's Section 11-11 hearing, the motion is denied without prejudice to renewal at a later date, if circumstances warrant such renewal.The Clerk of Court is directed to close the motion at docket number 3. SO ORDERED. (Signed by Judge J. Paul Oetken on 6/01/2016) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JASON B. NICHOLAS,
:
Plaintiff,
:
:
-v:
:
WILIAM BRATTON, Commissioner, New York :
City Police Department; STEPHEN DAVIS,
:
:
Deputy Commissioner for Public Information,
New York City Police Department; MICHAEL :
DEBONIS, New York City Police Department; :
and THE CITY OF NEW YORK,
:
Defendants. :
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15-CV-9592 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Jason B. Nicholas, a professional photojournalist, filed this pro se action against
Defendants William Bratton, Stephen Davis, Michael DeBonis, and the City of New York on
December 8, 2015. (Dkt. No. 2.) Nicholas alleges that Defendants violated his First and
Fourteenth Amendment rights by revoking his New York Police Department (“NYPD”) press
credential without due process and in retaliation for his criticism of the NYPD. (Id.) Nicholas
has moved for a preliminary injunction compelling Defendants to return his press credential.
(Dkt. No. 3.) The Court held oral argument on the motion for a preliminary injunction on May
12, 2016. For the reasons that follow, the motion is denied without prejudice.
I.

Background
Nicholas is a freelance photojournalist. (Dkt. No. 2 (“Compl.”) ¶ 34.) He first received a

press credential (or press pass) from the NYPD in 2007. (Compl. ¶ 12.) According to Nicholas,
an NYPD press credential permits journalists to cross police lines in order to cover “crime
scenes, parades, and other special events.” (Compl. ¶ 18.) The credential also gives journalists
“meaningful access” to “press conferences and other events held at Police Headquarters, the

Manhattan District Attorney’s Office, City Hall, MTA Headquarters, and the Office of the
United States Attorney for the Southern District of New York.” (Compl. ¶ 17.)
The procedures for obtaining an NYPD press pass, and for contesting denial or
revocation of the credential, are codified in sections 11-01 and 11-11 of Title 38 of the Rules of
the City of New York. 38 R.C.N.Y. §§ 11-01, 11-11. Pursuant to section 11-11, any person
whose press credential is summarily suspended may request a hearing before the NYPD
(“Section 11-11 hearing”). Id. at § 11-11(b). That hearing must be provided within five business
days of the journalist’s request, and the Commanding Officer of the NYPD Office of the Deputy
Commissioner, Public Information (“DCPI”) must issue a written opinion explaining its decision
within 45 days of the hearing. Id. at § 11-11(b)-(e). Journalists have a right to counsel at Section
11-11 hearings, id. at § 11-11(d), and according to Defendants’ counsel, may challenge
unfavorable decisions in an Article 78 proceeding. (See Preliminary Injunction Hearing
Transcript (“Tr.”) at 24.)
This suit arises from the summary revocation of Nicholas’s NYPD press credential on
October 30, 2015. (Compl. ¶ 26.) That day, Nicholas went to the scene of a building collapse in
midtown Manhattan to obtain photographs for the New York Daily News. (Id.) It is undisputed
that, while at the scene, Nicholas took photographs from inside a “frozen zone,” i.e., an area that
the NYPD had designated as off-limits to certain journalists during the rescue effort. (Compl.
¶¶ 28-35.) Nicholas alleges that the frozen zone was created around him, without his knowledge,
and that his presence in it was inadvertent. (Compl. ¶ 28.) Upon finding Nicholas in the frozen
zone, Defendant DeBonis, an NYPD detective who manages press credentials, revoked
Nicholas’s press pass. (Compl. ¶¶ 9, 30, 32.)

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On December 1, 2015, Nicholas wrote to DeBonis by email, asking to “come in and talk
about [his] press card.” 1 (Compl. ¶ 35; Pl. Ex. E.) DeBonis did not respond to Nicholas’s
request. (See Tr. at 6-8.) At oral argument, Nicholas stated that, when he emailed DeBonis in
December 2015, he did not know that he could request a Section 11-11 hearing. (Tr. at 6
(“[B]efore this proceeding, I had no idea that such a hearing was even possible.”).)
Nicholas filed this suit on December 8, 2015, and moved for a preliminary injunction the
same day. In his Complaint, Nicholas alleges that the revocation of his press pass violated the
First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. He also asserts a First Amendment retaliation claim. Specifically, Nicholas
contends that the NYPD revoked his press credential in retaliation for a question he asked Police
Commissioner William Bratton at a press conference on October 1, 2015. (Compl. ¶ 23.) In his
motion for a preliminary injunction, Nicholas repeats the allegations concerning denial of his due
process and First Amendment rights, but does not discuss equal protection. (Dkt. No. 4.) He
seeks an order compelling the NYPD to return his press credential within seven days and to
refrain from revoking his press pass without due process during the pendency of this suit. (Tr. at
5.)

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At oral argument, Nicholas submitted five exhibits and two affirmations, which the Court
received provisionally, subject to objections by Defendants. (See Tr. at 1-4.) Defendants
thereafter objected to all of the documents on grounds of timeliness and relevance, and to one
exhibit (“Exhibit D”) on the ground of hearsay. (Dkt. No. 25.) Having reviewed the documents
in question, the Court overrules Defendants’ objections. See Mullins v. City of New York, 626
F.3d 47, 52 (2d Cir. 2010) (“[T]he lower courts routinely consider hearsay evidence in
determining whether to grant preliminary injunctive relief . . . . The admissibility of hearsay
under the Federal Rules of Evidence goes to weight, not preclusion, at the preliminary injunction
stage.”). The two affirmations and all exhibits will be docketed in a separate Order along with
this Opinion.
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The Court held oral argument on Nicholas’s motion for a preliminary injunction on May
12, 2016. Six days later, Defendants informed the Court that Nicholas had requested—and they
had scheduled—a Section 11-11 hearing. (Dkt. No. 26.) That hearing was held on May 19,
2016, before the Commanding Officer of DCPI. (See Dkt. Nos. 25-28.) To date, no decision has
been rendered on Nicholas’s request for return of his press credential. (Id.)
II.

Discussion
To be entitled to a preliminary injunction, a movant must establish (1) that it will suffer

irreparable harm in the absence of preliminary relief; (2) a likelihood of success on the merits of
the case; (3) that considering the balance of hardships between the plaintiff and the defendant, a
remedy in equity is warranted; and (4) that the public interest would not be disserved by a
preliminary injunction. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
While the decision to grant or deny a preliminary injunction “rests in the district court’s
sound discretion . . . a preliminary injunction is an extraordinary remedy that should not be
granted as a routine matter.” Peck v. Montefiore Med. Ctr., 987 F. Supp. 2d 405, 410 (S.D.N.Y.
2013). Where, as here, a plaintiff seeks “[a] mandatory preliminary injunction that alters the
status quo by commanding some positive act by the state,” injunctive relief is warranted only
upon “a clear showing that the moving party is entitled to the relief requested, or where extreme
or very serious damage will result from a denial of preliminary relief.” Fishman v. Paolucci, 628
F. App’x 797, 800 (2d Cir. 2015) (citation and internal quotation marks omitted).
A.

Likelihood of Success on the Merits

Nicholas asserts that Defendants violated his “First Amendment right to gather and
disseminate news,” retaliated against him on the basis of protected speech, and revoked his
credential without due process. (Dkt. No. 4 at 9.) Defendants argue that they had a non4

discriminatory, compelling reason to revoke Nicholas’s pass: that he violated security protocol
during an “ongoing emergency” effort to save a “trapped construction worker.” (Dkt. No. 14 at
12.) Defendants also argue that the Section 11-11 hearing process, and the availability of Article
78 proceedings, provides adequate process to protect any liberty or property interest Nicholas has
in his press credential. (Id. at 16-17.)
Defendants’ arguments prevail at this stage. Courts have recognized that the First
Amendment precludes arbitrary restrictions on a journalist’s access to areas otherwise open to
the press or the public. See Stevens v. N.Y. Racing Ass’n, Inc., 665 F. Supp. 164, 175 (E.D.N.Y.
1987) (“[E]ven if a restriction which affords different degrees of access to members of the press
is not content-based, the limitation must serve a legitimate governmental purpose, must be
rationally related to the accomplishment of that purpose, and must outweigh the systemic
benefits inherent in unrestricted (or lesser-restricted) access.” (citation and quotation marks
omitted)); Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977) (“[T]he protection afforded
newsgathering under the first amendment guarantee of freedom of the press requires that this
access [to a White House press pass] not be denied arbitrarily or for less than compelling
reasons.”); see also Huminski v. Corsones, 396 F.3d 53, 84 (2d Cir. 2004) (citing Sherrill, 569
F.2d at 129-30).
The same authorities establish, however, that press access may be curtailed where there is
a compelling reason—or perhaps simply a rational basis—for the restriction. Stevens, 665 F.
Supp. at 175; Sherrill, 569 F.2d at 129. Here, Nicholas concedes that Defendants took his press
pass when he was in a “frozen zone” photographing an ongoing emergency rescue effort. In
light of this concession, and given the strict standard for mandatory injunctive relief, the Court

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concludes that Nicholas has not met his burden of establishing a likelihood of success on the
merits of his First Amendment claim.
Nicholas’s retaliation claim presents the same concern. To state a First Amendment
retaliation claim, Nicholas must show that: “(1) he has a right protected by the First Amendment;
(2) the defendant’s actions were motivated or substantially caused by his exercise of that right;
and (3) the defendant’s actions caused him some injury.” Dorsett v. Cty. of Nassau, 732 F.3d
157, 160 (2d Cir. 2013). The Court need not and does not decide whether Nicholas has stated a
plausible retaliation claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (distinguishing the
plausibility standard from “a probability requirement”); Lomax v. Aegis Funding Corp., No. 09CV-2321, 2010 WL 1633440, at *2 (E.D.N.Y. 2010) (“Plausibility . . . does not refer to the
likelihood of success on the merits of the legal claim, but asks whether a complaint’s factual
allegations are enough to raise a right to relief above the speculative level” (alterations and
citation omitted)). Instead, the question is whether he has clearly demonstrated a likelihood of
success on the merits, warranting injunctive relief. Fishman, 628 F. App’x at 800. Given that
Defendants have presented a non-retaliatory account of the NYPD’s motive for revoking
Nicholas’s press credential, the Court concludes that Nicholas has not met this high bar.
Finally, as to due process, to establish that his press pass was revoked in violation of the
Fourteenth Amendment Due Process Clause, Nicholas must show, first, that he has a liberty or
property interest in his NYPD press credential, and second, that he was deprived of the credential
without due process of law. Bryant v. N. Y. State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012).
Nicholas has not met the standard for injunctive relief with respect to the second prong of this
analysis. Even assuming that he has a liberty interest in his press pass, Nicholas has not clearly
demonstrated (1) that he requested a Section 11-11 hearing prior to filing this suit, or (2) that

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such a hearing, in conjunction with the availability of an Article 78 proceeding, is insufficient to
satisfy the Due Process Clause. See Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458,
465-67 (2d Cir. 2006) (Sotomayor, J.) (analyzing when post-deprivation proceedings, including
Article 78 hearings, provide constitutionally adequate process). Indeed, Nicholas’s process is
ongoing: he has received a Section 11-11 hearing, and a decision on his press pass, which could
moot his request for relief, is forthcoming from DCPI. Even if he does not prevail at the Section
11-11 hearing, he has the ability to challenge that determination through an Article 78
proceeding in state court. A mandatory injunction compelling the NYPD to return Nicholas’s
press pass is inappropriate in these circumstances. Peck, 987 F. Supp. 2d at 410.
B.

Remaining Factors

“In the absence of proof of likelihood of success on the merits, in order to establish
eligibility for injunctive relief, plaintiff must prove that there are sufficiently serious questions
going to the merits to make them a fair ground for litigation, with a balance of hardships tipping
decidedly in its favor.” BigStar Entm’t Inc. v. Next Big Star, Inc., 105 F. Supp. 2d 185, 219
(S.D.N.Y. 2000). Nicholas must also establish that the public interest will not be disserved by an
injunction, and that he will suffer irreparable harm in the absence of the requested relief. Winter,
555 U.S. at 20.
Nicholas has not met this standard. With respect to the equities and the public interest,
the arguments are in equipoise at this stage of the case. While Nicholas contends that
Defendants deprived him of his rights, as well as a professional credential that is key to his
occupational success, he has asked this Court to provide an equitable remedy—not just an order
compelling a hearing, but the return of his press credential—before the Section 11-11 process is

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complete. While the hardship to Nicholas is significant, there is a competing interest in allowing
the NYPD to render a decision on the merits before this Court intervenes.
Finally, with respect to irreparable harm, Nicholas argues, first, that revocation of his
press pass has reduced his employment opportunities, and second, that violation of the First
Amendment is per se irreparable harm. (See Tr. at 16-17.) The first argument fails because loss
of employment “do[es] not constitute the irreparable harm necessary to obtain a preliminary
injunction.” Peck, 987 F. Supp. 2d at 412 (collecting cases); see also Davis v. Billington, 76 F.
Supp. 3d 59, 65 (D.D.C. 2015) (noting, in a First Amendment retaliation case, that “courts have
consistently held that . . . loss of employment” is not irreparable harm). The second argument
fails because, even if the Court may assume irreparable harm in this case, Nicholas has not
satisfied the other prongs of the preliminary injunction standard.
III.

Conclusion
For the foregoing reasons, Nicholas’s motion for a preliminary injunction is denied.

Because the Court’s analysis rests in part on the pendency of Nicholas’s Section 11-11 hearing,
the motion is denied without prejudice to renewal at a later date, if circumstances warrant such
renewal.
The Clerk of Court is directed to close the motion at docket number 3.
SO ORDERED.
Dated: June 1, 2016
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
COPY MAILED TO PRO SE PARTY BY CHAMBERS
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