Edrei et al v. Bratton et al

Filing 53

OPINION re: 35 MOTION to Dismiss filed by Mike Poletto, The City Of New York, William Bratton, John Maguire. For the foregoing reasons, Defendants' motion to dismiss is granted with regards to Counts Two, Three, Six, Seven, Eight, and Nine, and denied with regards to Counts One, Four, and Five. It is so ordered. (Signed by Judge Robert W. Sweet on 5/31/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------x
ANIKA EDREI, et al .,
Plaintiffs ,
1 6 Civ . 1652 (RWS)
- against OPINION
CITY OF NEW YORK , et al.,
Defendants.

-------------------------------------------x
.,.----·---- · ·· - -·.::=======:::::;
..--------··- . ·
A P P E A RA N C E S :
USDCSUNY
Attorneys for Plaintiffs
277 Broadway, Suite 1501
New York, NY 10 007
By : Gideon Orion Oliver , Esq.
Elena L. Cohen , Esq.
Michael Decker, Esq.

DOClJMENT
El,ECTRONJCAl J_Y FILED
DOC#:

~~w==r::-""7-f-..,-:=--

DATE FILED:

Attorney for Defendants
ZACHARY CARTER
Corporation Counsel of the City of New York
100 Church Street
New York , NY 10007
By: Ashley Garman , Esq.

Sweet, D.J.

Plaintiffs Anika Edrei ("Edrei") , Shay Horse (" Horse") ,
James Craven ("Craven") , Keegan Stephan ("Stephan " ) , Michael
Nusbaum ("Nusbaum"), and Alexander Appel ("Appel " )
(collectively , the "Plaintiffs " ) have brought the following
lawsuit under 42 U. S . C . § 1983 against Defendants The City of
New York ("NYC") , William Bratton ("Bratton " ) , John Maguire
("Maguire"), and Mike Paletta ("Paletta")

(collectively , the

"Defendants") . Plaintiffs allege Defendants have violated their
rights under the First , Fourth , and Fourteenth Amendments of the
United States Constitution , and New York State claims of assault
and battery , arrest and false imprisonment , constitutional tort ,
negligence , and negligent hiring , screening, retention ,
supervision and training . Defendants have moved pursuant to Fed .
R. Civ . P . 12(b) (6) to dismiss Plaintiffs '

First Amended

Complaint ("FAC " ) . As set forth below , the motion is granted in
part and denied in part .

Prior Proceedings

Plaintiffs commenced this action on March 3 , 2016.
(Dkt . 1.) Plaintiffs filed their FAC on August 1, 2016 , which
1

expanded certain allegations from the initial comp l aint , added
Plaint i ff Appel , inserted Defendants Maguire and Poletto for
previous "John Doe " defendants , and added a claim for municipal
liability against NYC.

( Dkt . 21. )

The instant motion to d i smiss was heard and marked fully
submitted on January 26 , 2017 .

(Dkt . 35 . )

Facts

The following facts are taken from the Plaintiffs '

FAC.

(Dkt. 21 . ) They are taken as true for purposes of the motion to
dismiss.

i .

Long Range Acoustic Devices ("LRADs") And The XlOO

LRAD devices were first developed around 20 00 , initially
for the military as a tool for ships to amp l ify and project
no i se to ward off other sh i ps.

( FAC 'll'll 3 , 1 1 . ) The device has

also been marketed for non - military , loudspeaker - like purposes:
to produce "highly intelligible voice messages .
powerful alarm tones over large distances ." (FAC

. and
'JI

5.) LRADs are

marketed as louder than traditional megaphones by around 20-35
decibels

("dBs") , and have the capacity to disseminate messages
2

to large crowds over ten b l ocks away .

( FAC

9 , 13.) In

<JI<JI

addition to amplifying sound, LRAD devices can possess a highpitched , volume adjustable "deterrent tone " that is marketed to
law enforcement as useful for crowd control by creating audible
discomfort when used at close range .

(FAC

<JI<JI

11 - 12.)

The lOOX Model LRAD ("lOOX") is a type of LRAD device
manufactured by the LRAD Corporat i on .

(FAC

<JI<JI

1 , 80 . ) The lOOX

can project messages up to 600 meters away , produce a maximum
continuous output of 136 dB at one meter away, and has the
capacity to overcome 88 dBs of background noise at 250 meters.
(FAC

<JI

80.)

ii .

The New York Police Department ' s

("NYPD " ) Use Of LRADs

The New York Police Department ("NYPD") has owned and
employed LRAD devices since 2004 , when it purchased two LRAD
Model 3300s ("Model 3300) .

(FAC

<JI

57 . ) At the time of purchases ,

the NYPD stated it intended to use the LRAD devices to
disseminate information to large crowds , such as during
demonstrations or following terrorist attacks .

( FAC

<JI

5 9.)

Between 2004 and 2011 , the NYPD used LRADs i nfrequently ,
principally as loudspeakers .

( FAC

3

<JI <JI

64-65 , 67.)

In 2010, the NYPD conducted tests using the Mode l 3300 .
(FAC

~

73.) These tests concluded that when LRAD device volume

was at around maximum , it resulted in a sound volume of around
100 to 110 dB at a distance of 320 feet away .

( FAC

~~

73 - 75.)

The NYPD did not take readings of t he Model 3300 within 320 feet
of the device , a zone labeled a "potential danger area ."
( FAC

~

77 . ) 1

Sometime between 2010 and 2011 , the NYPD purchased an XlOO.
( FAC

~

78.) However , the NYPD did not start using LRAD devices

regu l arly at demonstrations until around December 2014.
(FAC

~~

71- 7 2 , 105 . ) From the i ni t ia l purchase of LRADs through

to the instant action , the NYPD d i d not have written po l icies
and training materials in place for police officers using LRAD
devices in the f i eld .

(See FAC

~~

94 - 104 . )

ii i . The December 4 And 5 , 2014 Protest

On the evening of December 4 , 20 1 4 through the morning of
December 5 , 2014 , protests and demonstrations took place around
New York City in response to a Staten Is l and grand jury ' s

1

For point of reference , sound levels start i ng around 85 to 90
dBs and louder can cause human discomfor t and damage a perso n' s
hearing . (FAC ~ 80 - 83 . )
4

decision not to ind i ct an NYPD officer for the death of Eric
Gardner .

(FAC

~~

107-08 . ) Plaintiffs were present at one of

these protests in the capacity of photojournalists , f i lmmakers ,
observers , or active protestors .

(FAC

~~

1 , 109.) At around lam

on December 5 , 2014, each of the Plaintiffs were part of a
protest taking place at the intersection of 57th Street and
Madison Avenue in Manhattan (the "Protest " ) .

(FAC

~~

109 - 11 ,

142, 207 - 08, 260 - 61 , 298 , 328 , 352 - 56 . ) Around this time , police
officers arrested some of the protesters , which Pl aintiffs and
others witnessed from the intersection but without interfering.
(FAC

~~

111 - 14 , 144 - 45 , 148 , 213 - 14 , 260-61 , 298 - 99 , 328, 356 ;

Declaration of Ashley R. Garman dated October 25 , 2016 ("Garman
Deel.") Ex. C at 00 : 14-01 : 24 . 2 ) During the arrests , other
unidentified protesters threw objects , likely glass bottles,
towards where the police were making the arrests .

(FAC

~~

115 ,

Defendants contend that videos taken by Plaintiffs Craven and
Nusbaum were incorporated by reference into the FAC at ~ 315 and
are properly considered by the Court in their Motion to Dismiss.
(Supp . Mem . at 2 n . 2 . ) Although Plaintiffs disagree as to
whether they incorporated the videos into their FAC , they do not
object to the videos ' cons i deration , and in fact cite to it in
their reply motion papers . (Opp . Mem . at 5.) The Court will
consider them . See Blue Tree Hote l s Inv . v. Starwood Hotels &
Resorts , 369 F . 3d 2 1 2, 217 (2d Cir . 2004) (permitting
consideration of "any documents that are either incorporated
into the complaint by reference or attached to the complaint as
exhibits") ; Hershey v . Goldstein , 938 F . Supp . 2d 491 , 498 n . 1
(S.D.N . Y. 2013) (considering video footage on motion to dismiss
that is referenced in complaint and referenced by defendant in
reply brief) .
2

5

149, 212, 262 , 329.) Other unidentified protesters threw garbage
into the air and the street.

(Garman Deel. Ex. C at 01: 4 9-

01: 59 . ) Some police officers used pepper spray on the crowd.
(FAC

~~

117, 211, 301.) Many who had been watching the Protest

events began to run in different directions.

(FAC

~~

118, 151 -

52 , 305 , 358-59 . ) The police ordered those present at the
Protest to return to the sidewalk .

(FAC

~

215 . )

Defendants Maguire and Poletto, members of the NYPD
Disorder Control Unit, were at this time standing in the street
at 57th Street and Madison Avenue.

(FAC

~~

1 , 119 - 21 . ) In

response to these events, the officers began using the XlOO ' s
deterrent tone and broadcasting a message that identified
themselves as NYPD and directed people to get on the sidewa lk
and out of the street.

(FAC

~~

122, 125, 160, 221 , 333 , 363 . ) In

response to the amplified sound from the XlOO , Plaintiff Nusbaum
used earplugs he brought with him and proceeded to film the
officers

(FAC

~~

337 - 38) ; the other Plaintiffs moved away from

the area of the XlOO to escape the noise (FAC

~~

163-64, 230-31 ,

272 , 308 , 361-6 . ) During this time , Defendants Maguire and
Poletto employed the deterrent tone between fifteen to twenty
times over a span of three minutes and at a rate that was
"almost continuously ." (FAC

~~

125, 219 , 27 1. ) At various points

during this three minute span , Defendants Maguire and Poletto
6

fired the XlOO fewer than ten feet away from Plaintiffs and
others , angling the XlOO at them .

(FAC 'TI 131.)

As a resu l t of their exposure to the XlOO ' s sound ,
Pl aintiffs have suffered sustained physical injur i es , such as
mi graines , sinus pa i n , d i zz i ness , fac i al pressure , ringing in
ears , and sensitivity to no i se.

(FAC 'TI'TI 158 , 165 - 72 , 175 - 79 ,

182 - 83 , 235-44 , 273 - 79 , 311 - 14 , 341 , 345 , 367 - 70 , 380.)
Plaintiff Horse was diagnosed with tinnitus in both ears and
vertigo.

(FAC 'TI'TI 239 - 42 . ) Plaintiff Appel was diagnosed with

hearing loss caused by nerve damage , although his prognosis is
positive .

(FAC 'TI'TI 371-76.) As a result of their exper i ence

during the Protest , Pla i ntiffs are fearful of and deterred from
attending future protests , which has adversely a f fected t h eir
respective careers .

(See FAC 'TI 1 87 - 96 , 245-49 , 281 - 84 , 316 - 19 ,

343 , 377 - 79 . )

Applicable Standard

On a Rule 12(b) (6) motion to dismiss, a ll factua l
a ll egations in the compla i nt are accepted as true and all
inferences are drawn in favor of the pleader . Mi ll s v . Po l ar
Molecular Corp ., 12 F . 3d 1170 , 1174

(2d Cir . 1993) . A complaint

must contain " sufficient factual matter , accepted as true , to
7

'state a claim to relief that is plausible on its face. ' "
Ashcroft v . Iqbal, 556 U. S . 662 , 663 (2009)

(quoting Bell Atl.

Corp. v . Twombly, 550 U. S. 544 , 555 (2007)) . A claim is facially
plausible when "the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
l iable for the misconduct alleged . " Iqbal , 556 U. S . at 663
(quoting Twombly , 550 U. S . at 556). In other words , the factual
allegations must "possess enough heft to show that the pleader
is entitled to relief . " Twombly , 550 U.S. at 557

(internal

quotation marks omitted).

Additionally , while "a plaintiff may p l ead facts alleged
upon information and belief 'where the belief is based on
factual information that makes the inference of culpability
plausible, '

such allegations must be ' accompanied by a statement

of the facts upon which the belief is founded . '" Munoz - Nagel v .
Guess,

Inc ., No . 12 Civ. 1312 (ER) , 2013 WL 1809772, at *3

(S . D. N.Y. Apr . 30 , 2013)

(quoting Arista Records , LLC v . Doe 3 ,

604 F . 3d 110 , 120 (2d Cir. 2010)); Prince v . Madison Square
Garden , 427 F . Supp. 2d 372 , 384

(S . D.N.Y . 2006) ; Williams v .

Calderoni , 11 Civ . 3020 (CM) , 2012 WL 691832 , at *7

(S . D.N . Y.

Mar . 1 , 2012)) . The p l eadings , however , "must contain something
more than .

a statement of facts that merely creates a

8

suspicion [of] a legally cognizab l e right of action." Twombly ,
550 U. S . at 555 (citation and interna l quotation omitted) .

Defendants' Motion To Dismiss Plaintiffs' FAC Is Granted In Part
And Denied In Part

To state a claim under 42 U. S.C .

§

1983, a plaintiff must

show that "(1) the challenged conduct was attributable at least
in part to a person who was acting under color of state law and
(2) the conduct deprived the plaintiff of a right guaranteed
under the Constitution of the United States . " Snider v. Dylag ,
1 88 F.3d 51 , 53 (2d Cir. 1999). For each respective alleged
offense , Defendants were plausibly acting under color of state
law. Plaintiffs claim that Defendants are liable under Section
1983 for First , Fourth , and Fourteenth Amendment violations , and
municipal liability under Monell v. Dep't of Soc . Servs . of the
City of N. Y. , 436 U. S. 658

(1978) . Plaintiffs also allege

violations of state and common law . Claims are addressed by FAC
count below .

1 .

Unreasonable Seizure and Excessive Fo rce Claims Under
The Fourth and Fourteenth Amendment (Count One)

Plaintiffs allege that Defendants Maguire and Poletto's use
of the lOOX violated Plaintiffs' Fourth and Fourteenth Amendment
rights , specifically by causing an unlawful seizure of

9

Plaintiffs '

persons and by Defendants '

against Plaintiffs .

use of excessive force

(FAC 'TI'TI 383 - 90) .

A person has been "seized" within the meaning of the Fourth
Amendment when an "officer , by means of physical force or show
. in some way restrain[s ] the liber t y o f a

of authority ,

citizen ." Terry v . Ohio , 392 U. S. 1 , 19 n . 16 (1968) . Put anot h er
way , an encounter between a police officer and an individual
"constitutes a
Amendment .

' seizure '

for the purposes of the Fourth

' if , in view of all the circumstances

surrounding the incident , a reasonable person would have
be l ieved that he was not free to leave .'" Sheppard v . Beerman ,
1 8 F . 3d 147 , 153 (2d Ci r. 1 994)
Mendenhall , 446 U. S . 544 , 544
Blesser ,

(quoting United States v .

(1980)) ; see a l so Salmon v .

802 F . 3d 249 , 253 & n . 3 (2d Cir . 2015)

(observing that

the inquiry could also be framed as whether " a reasonable person
would feel free to .

. otherwise termi nate the encounter ," but

noting that

' departure is the most obvious way '

encounters "

(citat i ons omitted)) .

Outs i de of an unlawfu l

to terminate

seizure , a p l aintiff can still try

to state a Sect i on 1983 cla i m o f excess i ve force under the
Fourteenth Amendment ' s Due Process Cl ause . Hemph il l v . Schott ,
1 41 F . 3d 412 , 418

(2d Cir . 1998) ; see a l so Tierney v. Davidson ,
10

133 F . 3d 189 , 199 (2d Cir . 1998)

("Plaintiffs do not assert that

they were arrested or seized, and therefore these [Section 1983]
claims fall outside the Fourth Amendment protections .

and

are governed instead by the Due Process Clause of the Fourteenth
Amendment ." ) To determine whether an act i on i s
unconstitutionally excessive fo r ce , a four - part test is used :
"[1] the need for the application of force ,

[2] the relat i onsh i p

between the need and the amount of force that was used ,

[3] the

extent of injury inflicted , and [4] whether force was applied in
a good faith effort to maintain or restore discipline or
ma l iciously and sadistically for the very purpose of causing
harm ." Tierney , 133 F . 3d at 199 (quoting Johnson v . Glick , 481
F.2d 1 028 , 1033 (2d Cir . 1 973))

(a l teration in original) .

Excessive force c l aims must show "conscience - shocking " action by
a government actor . Johnson v. Newburgh Enlarged School Dist .,
239 F . 3d 246 , 252 (2d Cir . 2001) . Where an officer ' s use of
force was "de minimis , necessary , appropriate , and benign ," a
claim of excessive force under the Fourteenth Amendment should
not stand. Id. However , the " ' [r ] ules of due process are not
. subject to mechanical application ,'" and "var[y] according to
the different environments i n which the alleged excessive force
occurs . " Ali v. Szabo , 81 F . Supp. 2d 447 , 455 (S.D . N. Y. 2000)
(quoting Cnty . of Sacramento v . Lewis , 523 U.S. 833 , 848
( 1998)) .
11

Under the allegations put forward by Plaintiffs , their
Fourth Amendment claims cannot surv i ve. Plaintiffs allege that
the blocking the 57th Street roadway by Defendants Maguire and
Po l etto while firing the XlOO ' s ampl i fied sound at Plaint i ffs
resulted in Plaintiffs '

" seizure " because the off i cers ' act i ons

forced Plaintiffs to move from where they were .
FAC

~

(Opp . Mem. at 7 ;

121 . ) This claim fails for several reasons .

An officer ' s request to leave an area , even with use of
force , is not a seizure unless " accompanied by the use o f
sufficient force intentionally to restrain a person and gain
control of his movements ." Salmon , 802 F. 3d at 255 (reversing
d i smissa l of seizure c l aim when officer ejected p l ain t iff from
courthouse by grabbing plaintiff ' s collar and " v i olently"
twisting plaint i ff ' s arm) . While exposed to the XlOO , n o ne of
the Plaintiffs have plausib l y a l leged that their movements were
restrained . Rather , Plaintiffs state that while the XlOO was
used by Defendants Magu i re and Poletto , each Plaintiff moved
around the Protest area or left the vicinity of the XlOO as each
des i red , generally to escape the noise .

(See FAC

~~

164 , 220 ,

223 , 268 , 272 , 308 , 337 - 38 , 364 , 366.) Other than being
requested to leave the street and inclined to leave the Protest
intersection by the noise, the Plaintiffs have not al l eged they
12

were not "f ree to go anywhere else that [they] desired ."
Sheppard, 18 F.3d at 153 (rejecting Fourth Amendment seizure
claim when plaintiff was required to leave a courthouse at
officer ' s command) . Under the FAC , it cannot be plausibly argued
that Defendants Maguire and Poletto "gain[ed] control" of
Plaintiffs' moments . Salmon , 802 F.3d at 255. Therefore,
Plaintiffs' unreasonable seizure claim is dismissed .

With regard to their excessive force claim under the
Fourteenth Amendment , however , Plaintiffs have put forward a
cognizable claim . As a preliminary matter , Defendants contest
whether the use of the X100 and amplified sound can constitute
force.

(Supp . Mem. at 12 & n.7.) Th e parties have not provided,

and the Court has been unable to locate , case law addressing
LRAD-type devices and the use of high - volume sound alone by the
police . In support of their position, however,

Defendants point

to two New York Supreme Court cases which stand for the
proposition that "sound is not a substance but a physical
phenomenon ." Martzloff v. City of New York , 238 A . D. 3d 115, 117
(N.Y . App . Div . 1st Dep ' t 1997); see also Casson v . City of New
York, 269 A.D . 2d 185, 286 (N . Y. App . Div . 1 st Dep ' t 2000)
(applying Martzloff ) . These cases neither bind this Court nor
are persuasive . They discuss sound in application to New York
Civil Law Section 214 - c , New York State ' s statute of limitations
13

rules for personal injury claims arising from exposure to
harmful substances . See N. Y. C. P . L . R.

§

214 - c. In rejecting sound

in this context , the Martzloff court reasoned that , " All cases
within the ambit of CPLR 214 - c involve the ingestion of a
substance , " and therefore sound would not apply . Martzloff , 238
A. D.3d at 117 . Whether sound can be ingested i s a narrower ,
substantively different question than whether sound can be used
as a force .

The use of the XlOO as a projector of powerfully amplified
sound is no different than other tools in law enforcement ' s
arsenal that have the potential to be used either safely or
harmfully , one examp l e being d i straction devices-items like stun
grenade, flash bang , or concussion grenades-which "detonate with
a b l inding f l ash of l ight and a deafening explosion" and whose
purpose is to be " extremely loud " and distracting . Terebesi v.
Torreso , 764 F . 3d 217 , 236 (2d Cir. 2014) . " When used properly
[these tools] cause minimal damage , " but some courts have held
their usage "to be excessive force where the police used clear
disregard for the safety of [those in the vicinity] . " Ramage v .
Lou i svile/Jefferson Cnty . Metro Gov ' t , 520 Fed. App ' x 341 , 346 47

(6th Cir . 2013)

(citing cases) . Although distraction devices

have the potential to be more harmful than LRAD devices because
of injury from explosion, both tools can resu l t i n comparable
14

bodily injury if used improperly. Compare Bantum v . City of
N. Y., No . 97 Civ. 4221 , 2001 WL 705889 , at *1 (S . D. N. Y. June 21,
2001)

(plaintiff alleged that police ' s use of a distraction

device "caused him to suffer a broken eardrum and emotional
trauma") , with (FAC

<JI

30 (noting that loud sounds "have the

potential to cause significant harm to the eardrums and delicate
organs of the ears " )) . This is force , and the kind which could
be used excessively .

Construed most favorably to the Plaintiffs , their alleged
injuries go beyond the de minimis threshold . As a result of
exposure to the XlOO ' s sound , Plaintiffs allege acute head pain
and hearing loss for differing periods of time following the
Protest .

(FAC ']['][ 168 , 175, 194 , 232 , 273 - 75 , 313 - 15 , 345 , 367 -

70 . ) Plaintiff Appel states that doctors found that the noise
from the XlOO caused bones to move in his ear , damaging a nerve.
( FAC

<JI

372 . ) Defendants point to Plaintiffs' video evidence to

show that wh i le the XlOO was in use, protestors are visible not
exhibiting signs of pain from the noise .

(Supp . Mem. at 9.)

While suggestive evidence to the contrary , the angles and nature
of the video make details difficult to discern abso l utely . It is
reasonably plausible that the v i deo , which is frenetic in style
and does not stay on any one protester for an extended period of
time , does not rebut the claim that Plaintiffs, if situated
15

where and when they claimed to have been in relation to the
XlOO , sustained their alleged injuries.

(See Garman Deel. Ex.

c . )

Furthermore, based on the written allegations and video
evidence, it can be plausibly inferred that the use of a high powered sound magnifier in "close proximity" to Plaintiffs was
not appropriate. United States v . Morris , 349 F.3d 1009, 1012
(7th Cir. 2003)

(discussing the dangers and limited reasonable

contexts for using flash - bang devices). The Protest involved
large numbers of people , and so it is understandable that the
officers would want t o increase the volume of their message to
reach the largest number of people.
00 : 14 - 01: 2 4; FAC

~

(See Garman Deel. Ex. C at

261 , 300.) However, the allegations and video

make the Protest appear broadly in control , even when glass
bottles were thrown from the crowd toward the police.
German Deel . Ex. C at 1:24-1:35; FAC

~~

(See

115, 149, 212 , 262,

358.) Under these circumstances , it is reasonably plausible that
there was disconnect between Defendants Maguire and Poletto's
need to use a powerfully loud device like the XlOO
"indiscriminately," (FAC
~

~

225) , " almost continuously ," (FAC

338) , and within ten feet of Plaintiffs ,

(FAC

~

131), and the

harm alleged to be resultant from its use to those in close
proximity .
16

Defendants respond that even if the XlOO was unnecessary
and injurious, Plaintiffs' allegations do not demonstrate that
Defendants Maguire and Poletto's actions rose to the level of
malice or sadism to amount to excessive force claim because the
off icers are alleged to be requesting that those attending the
Protest leave the street.

(S upp. Mem. at 10-11. ) Based on the

allegations, crowd contro l was part of o ffi cers '

objectives .

However , Plaintiffs have also alleged that the XlOO was used by
Defendants Maguire and Poletto by deliberately pointing and
angling it at Plaintiffs and othe rs du ring the protest
~~

( FAC

131 , 229.) Viewed in the light most favorable to Plaintiffs ,

Plaintiffs '

allegations about the manner in which the XlOO was

used , that Defendants Maguire and Poletto knew , or should have
known, that Pla i nt i ffs would be harmed , "plausibly suggesting a
claim for excessive force." Coleman v. City of Syracuse , No. 09
Civ. 1391 (GTS )
201 1 )

(GHL) , 2011 WL 1 3808 , at *4

(N .D.N.Y. Jan . 4 ,

(deny ing motion to dismiss for Fourteenth Amendment

excessive force c laim when plaintiff alleged defendant police
off i ce r's "unjustified" s trike on plaintiff's person resulted in
bone fra ctures) .

Defendants '

qualified immunity defense at the motion to

dismiss stage is unavailing. A defendant is entitled to
17

qualified immunity " if either (1) his actions did not violate
clearly established law or (2)

it was objectively reasonable for

him to believe that his actions did not violate clearly
established law . " Iqbal v . Hasty , 490 F . 3d 143, 152 (2d Cir .
2007). "A right is clearly established if (1) the law is defined
with reasonable clarity ,

(2) the Supreme Court or the Second

Circuit has recognized the right , and (3) a reasonable defendant
[would] have understood from the existing law that [his] conduct
was unlawful . " Anderson v . Recore, 317 F.3d 194, 197
2 003)

(alterations in original)

(2d Cir.

(internal quotation marks and

citation omitted). However , "[u]sually, the defense of qualified
immunity cannot support the grant of a
McKenna v. Wright, 386 F.3d 432 , 435

[Rule] 12 (b) (6) mo tion."

(2d Cir. 2004)

(quoting

Green v . Maraio, 722 F.3d 1013 , 1018 (2d Cir . 1983)). At this
stage , "[n]ot only must the facts supporting the defense appear
on the face of the complaint , but , as with all Rule 12(b) (6)
motions ,

the plaintiff is entitled to all reasonable

inferences from the facts alleged , not only those that support
h i s claim , but also those that defeat the immunity defense . " Id.
at 436.

Defendants argue that the unconstitutionality of the
officers' actions, specifically that amplified noise can
constitute unconstitutional force , was not established at the
18

Protest , entitling them to qualified immunity .

(Supp . Mem . at

12-14 . ) While there is l ittle case law discussing the prec i se
issues present in the instant complaint , " officials can still be
on not i ce that the i r conduct vio l ates estab l ished l aw even in
nove l factual circumstances ." Hope v. Pelzer , 536 U. S . 730 , 74 1
(2002) . As discussed above , while LRADs might be new police
device deve l opments , there is much case l aw discussing the need
for careful , vicinity - specific considerations when using too l s
l ike distract i on devices . These " analogous cases " could have
informed the officers that their act i ons , if as Pl aintiffs
allege , were unreasonab l e . Negron v . City of N.Y ., 976 F . Supp.
2d 360 , 370 - 71 (E . D. N. Y. 2013)

(quoting Landis v . Baker , 297

Fed . App ' x 453 , 463 (6th Cir . 2008)) . As it is not "beyond
doubt" that Plaintiffs " can prove no set of facts in support o f
[their ] claim ," d i smi ss i ng Plaintiffs ' claim on the grounds of
qualif i ed immunity at this time would be inappropriate . McKenna ,
386 F . 3d at 436 (quot i ng Citibank , N.A . v . K- H Corp., 968 F . 2d
1489 , 1494

(2d Cir . 1992)) .

Accordingly , to the extent that Plaintiffs ' claim is
premi sed on a Fourteenth Amendment excessive force violation ,
Defendants ' motion to dismiss Count One of the FAC is denied .

19

ii .

First Amendment Violation Claims (Count Two)

Plaintiffs have alleged that Defendants ' use of the XlOO
violated their First Amendment right to assemble and express
protected speech. Specifically , Plaintiffs ' allege that
Defendants ' actions were a retaliation i n response to
Pl a i ntiffs ' exercise of free speech , which has consequent l y
chilled Pla i ntiffs ' speech , and that Defendants Maguire and
Poletto ' s use of the XlOO was a dispersal order that
impermissibly regulated Plaintiff ' s speech because it was either
not content - neutral or insufficiently narrowly - tailored .
FAC

~~

(See

399 - 408 . )

" To plead a First Amendment reta l iation claim a plaintiff
must show:

(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 h i m some injury ." Dorsett v . Cnty . of Nassau , 732
F . 3d 1 57 , 160 (2d Cir . 2013)

(citing Curley v . Vil l age of

Suffern , 268 F.3d 65 , 73 (2d Cir. 2001)) ; see also Higginbotham
v . City of N. Y. , 1 05 F. Supp . 3d 369 , 378

(S . D. N. Y. 2015).

Pol i ce dispersal orders where "politica l speech [becomes]
uncond i tional l y silenced " requires analysis under the " clear and
present danger standard ." Wiles v . City of N. Y., No . 13 Civ.
20

2898

(TPG) , 2016 WL 6238609 , at *5 (S.D .N.Y. Oct . 25 , 2016)

(citing Cantwe ll v . Connecticut , 310 U.S. 296 , 308

(1940)) . If,

however, a dispersal order made during a demonstration only
relocates demonstrators, the Second Cir cuit instructs courts to
review those actions like a "time , place, and manner
[regulation] restriction on speech." Id., 2016 WL 6238609 , at *5
& n.l

(citing Zalaski v . City of Hartford, 723 F.3d 382 , 388

(2d

Cir. 2013)). Time, place, and manner restrictions are
permissible if they " (l) are justified wi thout r eference to the
content of the regulated speech,

(2) are narrowly tailored to

serve a significant governmental interest , and (3)

leave open

ample, alternative channels for communication of the
information." Marcavage v. City of N.Y.,

689 F.3d 98 , 104

(2d

Cir. 2012).

Defendants argue that several Plaintiffs are not entitled
to First Amendment protection because they were on l y present at
the protest to document it rather than protest, which Defendants
argue falls o utsi de the realm of protected political speech.
(Supp . Mem . at 6 n . 7 ; see FAC

~~

1 39 , 202 , 288 . ) The Court need

not parse which Plaintiffs may or may not have been be entitled
to speech protection while at the Pro t est because even if they
were all present to protest , Plaint iffs h ave sti ll failed to
state First Amendment violat i ons claims .
21

With regard to the retaliation claim, Plaintiffs have not
plausibly pled that Defendants' actions were motivated by the
content of Plaintiffs' speech . Rather , Plaintiffs state that
Defendants used the XlOO to instruct Plaintiffs and others at
the Protest to "get or stay on the sidewalk and out of the
street" in the midst of an increasingly confrontational, though
not yet uncontrollable, period.

(FAC '1I 122 ; see supra at 16-17.)

This is a reasonable mo tivation: States have "a strong interest
in ensuring the public safety and order " and "in promoting the
free flow of traffic on publ i c streets and sidewalks ." Madsen v.
Women ' s Health Ctr. , Inc., 512 U. S . 753, 768

(1994). In

addition , Plaintiffs have failed to alleged plausible facts to
show that Defendants Maguire and Poletto's use of the XlOO was
based on Plaintiffs ' exercise of free speech . 3

Plaint i ffs ' claim as to the dispel order similarly fails .
First , " the clear and present danger standard" is inappropriate
here , as Plaintiffs '

FAC pleads only that the officers were

3

The one except i on is Plaintiff Horse's claim that Defendants
Maguire and Poletto targeted him due to a "critical comment "
Horse made towards them. (FAC '1I 228 . ) Given the context of the
officer's actions and their use of the XlOO directed at all
surrounding protestors and demonstration attendees , even
Plaintiff Horse's claim does not " plausibly establish " that
Defendants ' actions were inspired by his shout . Iqbal, 556 U. S .
at 681 .
22

trying to move the people onto the sidewalk , not end the
demonstration in full. Thus , to the extent that Defendants' use
of the XlOO constitutes a dispel order , the actions are properly
analyzed as a time , place , manner restriction . Under that
metric , the claim first fails because the officers left open an
adequate alternative location within " close proximity " to the
original l ocation in the street: the sidewalk . Wi l es , 2016 WL
6238609 , at *5 (accepting a park a few blocks away from the
current protest area as sufficiently proximate). The State has a
strong interest in permitting free flowing traffic on public
streets and sidewalks , " which is sufficient to justify a
narrowly tailored injunction ." Id. And as already discussed ,
there are no plausible allegations that Defendants Maguire and
Poletto used the XlOO because of the content of any speech by
Plaintiffs.

Accordingly , Defendants ' motion to dismiss Count Two of the
FAC is granted .

iii . Equal Protection And Substantive Due Process Violation
Claims Under The Fourteenth Amendment (Count Three)
Pl aintiffs allege that Defendants violated their rights to
equal protection and substantive due process under the
Fourteenth Amendment .

(FAC

~~

409-411 . ) With regard to their

23

substantive due process claim , Plaintiffs specifically contend
that Defendants ' actions violated their constitutionally
protected " right to remain " and " right to travel " and that
Defendants ' actions " shocked the conscious ." (Opp . Mem . at 12 13 . ) None of these claims can survive.

The Plaintiffs ' additional substantive due process claim
fails. A police officer requesting that protestors move from the
street to the sidewalk is in furtherance of a reasonable State
interest and is the kind of " minor restr i ction[] on travel
[that] simply do[es] not amount to the denial of a fundamental
r i ght ." Selevan v . N. Y. Thruway Auth ., 7 1 1 F . 3d 253 , 257

(2d

Cir . 2013) . The Court has already addressed Plaintiffs '
excessive force claim as part of the FAC ' s Count One . See
Section (i)

supra.

Plaint i ffs ' equal protection claim i s insufficient l y pled .
A p l a i ntiff can maintain an equal protection claim "so l o ng as
he establishes that he was treated d i fferently than similarly
sit u ated persons and that the unequa l treatment he received was
motivated by personal animus ." Jackson v . Roslyn Bd . of Educ .,
438 F . Supp . 2d 49 , 55 (E . D. N. Y. 2006)

(citing Harlen Assoc. v .

Inc . Vi l l age of Mineola , 273 F . 3d 494 , 500 (2d Cir . 2001)) ; see
24

also Brown v. City of Oneonta , N.Y ., 221 F . 3d 329 , 337
2000)

(2d Cir .

(" The Equal Protection Clause ' is essentially a direction

that a l l persons similarly situated should be treated alike .'"
(citat i on omitted)) . Plaintiffs '

FAC fails to plausibly allege

that Plaintiffs were treated any differently than any other
persons present at the protest. I nstead , as Defendants note , the
FAC repeatedly alleges the opposite : that the Defendants Maguire
and Pole t to used the lOOX "indiscriminately ,"

(FAC ! 225) , and

against " all people in the area ," (FAC ! 396 ; see also FAC
' '

120 , 406).

Accordingly , Defendants ' motion to dismiss Count Three of
the FAC is granted .

iv .

Municipal Liability Claims (Count Four)

Plaintiffs also bring c l aims against Defendants alleging
that (1) Defendants Maguire and Poletto possessed final
authority to enact policies that caused their alleged
constitutiona l violations , which we r e later ratif i ed by
Defendant Bratton and (2) that Defendant NYC failed to enact
proper policies , supervision , and training , which resulted in

25

the violation of Plaintiffs '

constitutional rights . 4 (FAC

~~

412-

22; see Opp. Mem. at 23 - 25 & n . 61 . ) See also Monell v. Dep ' t of
Soc. Servs. of the City of N. Y., 436 U. S. 6 58

(1978) .

To hold a municipal entity liable under Section 1983, a
plaintiff must plead and prove that his constitutional rights
were violated, that the alleged actions by the employees were
the result of an official policy , custom , or practice of the
municipal defendant , and that the policy , custom, or practice
caused the plaintiff's alleged injuries . City of Canton v .
Harris , 489 U. S . 378 , 385 (1989) ; Monell,

436 U.S. at 690 - 95 . A

plaintiff may satisfy Monell's "policy, custom o r practi ce "
requirement in one o f four ways . See Moray v. City of Yonkers ,
924 F. Supp. 8 , 12 (S.D.N.Y . 1996) . The plaintiff may allege the
4

Although Plaintiffs state in their reply papers that they have
"sufficient allege[d] municipal liability based o n each of four
familiar theories of Monell liability, " (Opp. Mem . at 23) , their
reply papers o nly discuss the second and fourth Monell theories ,
(see Opp . Mem . at 23-26) . To the extent that Plaintiffs alleges
the remaining Monell theories, they are not plausibly plead . Fo r
the first theory , Plaintiffs only provide a conclusory
allegation that Defendants Bratton and NYC "developed , adopted,
and/ or endorsed formal policies" with regard to LRAD use , ( FAC
~ 419), which cannot be reasonably pled while alleging that the
NYPD did not appear to have any policies regarding LRAD use
through Fall 2012 and without any additional facts alleged , (see
FAC ~ 106) . For the third theory, Plaintiffs have alleged that
the NYPD only started using LRADs at protests with any
regularity shortly before the Protest , making it implausible to
sustain a claim based o n a " persistent and widespread" practice
of LRAD abuse . (See FAC ~ 71 . )
26

existence of : "(l) a formal policy which is officially endorsed
by the municipality ;

(2) actions taken or decisions made by

government officials responsible for establishing municipal
policies which caused the alleged violation of the plaintiff ' s
civil rights ;

(3) a practice so persistent and widespread that

it constitutes a ' custom or usage ' and implies the constructive
knowledge of policy- making officials; or (4) a failure by
official policy- makers to properly train or supervise
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those with whom municipal
employees will come into contact . " Moray , 924 F . Supp . at 12
(internal citations and quotation marks omitted) . Proof of a
single incident of unconstitutional activity i s usually
insufficient to demonstrate the existence of a policy , unless
"the unconstitutional consequences of failing to train could be
so patently obvious that a city should be liable under [Section]
1983" and that violation of constitutional rights must be a
" highly predictable consequence " of the failure to train.
Connick , 563 U.S. at 63 - 64 .

Under the second theory of Monell liability , the complaint
must contain allegations that the defendant - official had final
policy making authority in order to subject the municipality to
liability. See Schwab v . Smalls , 435 F . App ' x 37 , 40 (2d Cir .
27

2011)

(affirming the district court ' s dismissal of a Section

1983 claim where the complaint contained lit tle more than a
"vague assertion " that defendants had final policymaking
authority). It is ultimately the plaintiff 's burden to
establish, as a matter of l aw, "that [an ] official had final
policymaking authority in the particular area involved
It does not suffice for these purposes that the off i cial has
been granted discret i on in the performance of his duties . Only
those municipal officials who have final po li cymaking authority
may by their actions subject the government to [Sect i on ] 1983
liabil it y . " Jeffes v . Barnes, 208 F . 3d 49, 57

(2d Cir. 2000)

(i nternal quotations and citations omitted) .

Under the fourth theory of Monell liability , a plaintiff
can establish deliberate indifference by demonstrating that:
"(1) a po li cymaker knows to a moral certainty that her employees
will confront a given situation ;

(2) the situation either

presents the employee with a difficult choice of the sort that
tra i ning

. will make less difficu lt or that there is a

history of employees mishand lin g the s i t u at i on ; and (3) the
wrong cho i ce by the city employee will frequently cause the
depr i vation of a citizen ' s constitutional rights . " Chamberlain
v. City of White Plains , 986 F . Supp . 2d 363 , 391 (S . D. N. Y.
2013)

(quot in g Walker v . Cit y of N. Y., 974 F.2d 293 , 297-98
28

(2d

Cir . 1992))

(internal quotation marks omitted) . " [D]emonstratio n

of deliberate indifference requires a showing that the official
made a conscious choice , and was not merely negligent ." Id .
(quoting Jones v . Town of E . Haven , 691 F . 3d 72 , 81

(2d Cir .

2012)) . The fa i lure to train mun i cipal employees may constitute
an act i onable policy , but only when a plaintiff can " identify a
specific deficiency in the city ' s training program and establish
that that deficiency is ' c l ose l y re l ated to the u l timate
injury ,' such that it ' actual l y caused ' the constitutional
deprivation ." Amnesty Am . v . Town o f W. Hartford , 361 F . 3d 11 3 ,
129 (2d Cir. 2004)

(citation omitted) .

Pl aintiffs have not plausib l y p l ed liabil i ty under Monell ' s
second theory . Pla i n ti ffs a l lege that Defendants Magu ire and
Poletto were authorized to make final po l icy wi th respect to
LRAD use because they did not consult supervisors or obtain
permission before using the LRAD ,

(see FAC

~~

426 - 28) , and that

their po li cy was l ater rat i f i ed by Defendant Bratton ,
(FAC

~

424) . As the Second Circuit has stated , just because an

off i cer has " discretion to de t ermine how to handle the
particu l ar situation " does no t make that person a final
decision - maker. Anthony v . City of N. Y., 339 F . 3d 129 , 1 39
Cir . 2003)

(2d

(finding a police sergeant not a final decision -

maker) . Police officers us i ng equipment as part of their day - to 29

day operations cannot reasonably be argued to be "responsible
under state law for making po li cy in that area of the
[municipality ' s] business ." Jeffes , 208 F.3d at 57

(quoting Ci ty

of St. Lo uis v. Praprotnik , 485 U. S . 11 2 , 123 (1988)) .
Furthermore , with regard to allegations of Defendant Bratton ' s
ratification , " [t]he one-off instance of ' ratification and
approval ' asserted in the complaint .

does n o t

support ' an

inference of an unlawful municipal policy of ratification of
unconstitutional conduct within the meaning of Monell.'" Wal l er
v . City of Middletown , 89 F. Supp . 3d 279 , 287 n.3
2015)

(D . Conn .

(quoting Batista v . Rodr i guez , 702 F . 2d 393 , 397

(2 d Cir .

1983)) .

As for Monell ' s fourth theory of liability, Defendants
argue Plaintiffs have not plausibly alleged that Defendant NYC
was on notice as to an omission in their training program with
regard to LRAD devices .

(See Supp . Mem . at 23-24 . ) Assuming the

allegations to be true and in the light most favorable to the
Plaintiffs , the FAC puts forward plausible cla ims that , by the
night of the Protest, Defendant NYC knew that police o ff icers
were using LRAD dev i ces as part of protest ,

(FAC

~~

70 - 71) , had

considered the LRAD devices ' noise - magnifying capacities
important enough to study ,

(FAC

~

30

73 - 77) , was aware of the

devices ' noise -magnifying hazards 5 ,

(see FAC

~

75) , and did not

change NYPD policies or practices to discuss the proper usage of
LRAD devices in the field ,

(see FAC

~~

97 , 99 - 103) . 6 The

Chamberlain court's reasoning in allowing a Monell liability
claim against the Cit y of White Plain for failing to train
police officers on how t o deal with emotionally disturbed
persons ("EDPs") to survive a motion to dismiss is instructive
here:
The Amended Complaint essentially asserts that WPPD
officials knew to a " moral certainty ," Walker , 974
F.2d at 297 , that [White Plains police] officers would
encounter EDPs in the course of their duties .
Furthermore, given the extreme volati li ty of such
individuals and the need f or caution when dealing with
them to prevent unnecessary escalation , it is
plausible that interactions with EDPs present officers
with "difficult choice[s] of the sort that training
. will make less difficult ," Walker , 974 F . 2d at
297 , and that a "highly predictable consequence " of
officers making the wrong choices , Connick, 131 S.Ct.
at 1361 (interna l quotation marks omitted) , would be

Defendants argue that the t ests performed by the NYPD were for
the Model 3300 , not the XlOO , and are therefore "completely
irrelevant." (Supp . Mem. at 25 . ) While the precise readings from
the tests to not speak to the exact impact of the XlOO on a
listener , the tests demonstrate the range o f power of th e new
LRAD to ols and the plausibly pled need for training on LRAD
equipment generally.

5

6

Defendants point to the NYPD ' s Patrol Guide at proof of
training , which Plaintiffs allege in c luded instruct i o ns to
police o fficers to use "the minimal necessary force" while o n
patrol . (Reply Mem . at 11; FAC ~ 393 . ) That is not substantively
sufficient guidance to ensure that officers know how to safely
and effectively us e potentially hazard equipment like LRAD
devices .
31

" the deprivation of a citizen ' s constitutional
rights ," Walker, 974 F.2d at 298 .
Chamberlain , 986 F. Supp. 2d at 393 . A comparable situation is
present here. Plaintiff ' s allegations paint a reasonably
plausible picture of Defendant NYC arming officers with
powerful , potent i a ll y harmful LRAD devices and placing those
officers in expectantly vo latil e protests , where o ffic ers wou ld
be presented with opportunities to use the LRAD device . Even in
the absence of prior similar v i olat i ons , the NYC knew that
officers with LRADs in the field were likely to face diff i cult
scenarios , such as incre as ingly agitated protests , where the
risk and harm of improperly using LRAD devices are greatproblems that cou ld have been avoided with proper training .
Thus , " [t]he complaint states a claim under the single-incident
theory of liability contemplated in City of Canton , and
recognized by the cited authority post-Connick ." Walker, 89 F .
Supp . 3d at 286 - 87 .

Accordingly , to the extent that Plaintiffs ' municipal
liability cla im is premised on Defendant NYC ' s failure to
properly train under Monell , Defendants ' motion to dismi ss Count
Four of the FAC is denied .

32

v.

State And Common Law Claims (Counts Fi ve Through Nine)

Plaintiffs '

fifth through ninth claims assert causes of

actions under New York State and common law. The Cou rt wi ll
exercise supplemental jurisdiction over those claims that "form
part of the same case or controversy " of Plaintiffs '

surviving

Fourteenth Amendment excessive force and Monell c laims. 28
U.S . C .

§

1367(a). Claims form part of the same case or

controversy when they "derive from a common nucleus of operative
fact ." United Mine Workers v . Gibbs , 383 U. S . 715, 725 ( 1 966) .
"[ I]n other words , they must be such that the plaintiff ' would
ordinarily be expected to try them all in one judicial
proceeding." Montefiore Med. Ctr . v . Teamsters Loca l 272 , 642
F.3d 321 , 332 (2d Cir . 2011)

(quoting Gibbs , 383 U. S . at 725) .

In deciding whether to exercise supplemental jurisdiction under
Section 1367(c) (3) , a district court must balance "the
traditional ' values of judicial economy , convenience , fairness ,
and comit y '" Kolari v . New York -Presb yter ian Hosp ., 455 F . 3d
11 8 , 122 (2d Cir. 2006)

(quoting Carneg ie-Me llon Univ . v .

Cohill , 484 U.S. 343 , 350 (1988)) .

a . Assault And Battery (Count Five)

33

Plaintiffs allege state -l aw claim for assau l t and battery .
(FAC

~~

433 - 39 . ) The e l ements of assau l t and battery i n New York

are " substantia ll y ident i ca l" to those of a Section 1983 c l aim
for excessive force . Caravalho v . City of N. Y. , No . 13 Civ. 174
(PKC)

(MHD) , 2016 WL 1274575 , at *22 (S.D . N. Y. Mar . 31 , 2016)

(quot i ng Posr v . Doherty , 944 F . 3d 91 , 95 (2d Cir. 1991)) .
Defendants make simi l a r arguments in seek i ng to dismiss th i s
claim as with Plaint i ffs ' excessive force claim , i n addition to
seeking shelter under state law qua l ified i mmunity . Having
denied Defendants ' motion to dismiss Plaintiff ' s excessive force
claim , it is proper for the Court to exercise supplementa l
jur i sd i c t ion over this c l aim , as bot h tu r n on the simi l ar
questions of the necess i ty in using the XlOO , the strength of
the Xl OO ' s force , and the intentionality of the Defendant
officers when using the XlOO . At this early stage and " without a
factua l resolution .

. it is not poss i b l e to determine whether

defendants are qualifiedly immune , " making it inappropriate to
dismiss the claim. Jones v . Parmley , 465 F . 3d 46 , 64
2006)

(2d Cir .

(quoting Simpkin v . City of Troy , 638 N. Y. S . 2d 231 , 232

(N . Y. App . Div . 3d Dep ' t 1 996)) .

Accordingly , Defendants ' mot i on to dismiss Count Five of
the FAC is denied .

34

b. False Arrest And False Imprisonment (Count Six)

Plaintiffs allege common law claims of false arrest and
imprisonment.

(FAC

~~

440-44.) Under New York law, the tort of

false arrest is synonymous with that of false imprisonment.
Kraft v . City of N.Y.,
20 1 0)

696 F. Supp. 2d 403, 421 n.8

(S.D.N .Y.

(quoting Posr, 944 F.2d at 96) . "To state a c laim for

false arrest under New York law, a plaintiff must show that '(1)
the defendant intended to confine the plaintiff,
plaintiff was conscious of the confinement ,

( 2) the

(3) the plaintiff

did not consent to the conf inement , and (4) the confinement was
not otherwise privileged.'" Savino v. City of N.Y.,
75 (2d Cir . 2003)

331 F.3d 63,

(quoting Bernard v. United States , 25 F.3d 98 ,

1 02 (2d Cir . 1 994)) . As Plaintiffs were never confined as a
result of the Defendants' use of the XlOO , see Section (i)
supra , this claim wi ll be dismissed.

Accordingly, Defendants ' motion to dismiss Count Six of the
FAC is granted.

c. Negligence (Count Seven)

Plaintiffs allege common law negligence by Defendants in
use of the XlOO.

(FAC

~~

445-50.) To state a claim for
35

negligence , under New York Law a plaintiff must show : " (i) a
duty owed to the p l aintiff by the defendant ;

(ii) breach of that

duty ; and (iii) injury substantially caused by that breach ."
Lombard v . Booz-Allen & Hamilton , Inc ., 280 F . 3d 209 , 215

(2d

Cir . 2002) . Defendants contend that because Plaintiffs have
alleged intentional conduct on the part of Defendants they
cannot also allege negligence conduct for the same action .
Plaintiffs are correct : under New York State law , " when a
plaint i ff brings excessive force .

claims which are premised

upon a defendant ' s allegedly intentional conduct , a negligence
claim with respect to the same conduct will not lie." Clayton v .
City of Poughkeepsie, No . 06 Civ . 4881
at *6 (S . D. N.Y . June 21 , 2007)

(SCR) , 2007 WL 2154 1 96 ,

(citations omitted) . As

Plaintiffs have pled sufficient facts to support an excessive
force claim , they " cannot additionally argue that the same facts
would give rise to a claim for .

. negligence." Id.

Accordingly , Defendants ' motion to dismiss Count Seven of
the FAC is granted .

d. Constitutional Torts (Count Eight)

Plaintiffs allege Defendants violated their rights under
Article I, Sections 8 , 9 , 11, and 12 of the New York
36

Constitution , which address the right to speak freely , peaceably
assemb l y , to be afforded equal protection of the law, and
protection against unreasonable seizures .

(FAC

~~

451 - 54 . ) The

New York Court of Appeals has recognized that a plaintiff may
bring constitutional tort claims for damages independent of a
common law cause of act i on . Brown v . States , 674 N. E . 2d 1129,
1137-41 (N . Y. 19 96) . However, this claim i s a "narrow remedy"
available only when there is no alternat i ve remedy , such as
actions at common law or under Section 1983 . Biswas v . City of
N. Y., 973 F . Supp. 2d 504 , 522

(S . D. N. Y. 2013)

(quoting Martinez

v . City of Schenectady , 97 N. Y. 2d 78 , 735 N. Y. S . 3d 868

(2001) .

As Plaintiffs have remedies for these a ll eged violates based on
similar grounds , all of which have been asserted in the FAC ,
Plaintiffs '

" state const itutional tort claim[s]

[are] redundant

and precluded ." Id .

Accordingly , Defendants ' motion to dismiss Count Eight of
the FAC is granted .

e . Negligent Hiring, Screening , Retention , Supervision
And Training (Count Nine)

Plaintiffs allege that Defendant NYC negligently hired,
screened , retained , supervised , and trained the Defendant
officers in violation of Plaintiffs '
37

rights under New York State

law .

(FAC

~~

455 - 59.) New York law does not permi t of a claim

for negligent hiring , screening , retention , supervision , and
training where defendants act within the scope of the i r
employment . See Schoolcraft v . City of N. Y. , 1 03 F. Supp. 3d
465 , 521 (S . D.N. Y. )

(collecting cases) , on reconsideration in

part , 133 F. Supp . 3d 563 (S .D.N. Y. 2015) . The FAC a ll eges and
Defendants have not denied that Defendants Maguire and Poletto
were acting within the scope of their employment during the
Protest .

(See FAC

~~

50 , 458 ; Supp . Mem . at 30 . ) " [W] here a

defendant employer admits its employees were acting within the
scope of their employment , an employer may not be held liable
for negligent hiring , training , and retention as a matter of
law." Rowley v . City of N.Y ., No. 00 Civ . 1793 (DAB) , 2005 WL
2429514 , at *13 (S . D.N. Y. Sept . 30 , 2005) .

Additionally , " an essentia l element of a cause of acti o n in
negligent hiring , retention, supervision , and training is that
the employer knew or should have known of the employee ' s
propensity for the conduct which caused the injury ." Bouche v .
Ci ty of Mount Vernon , No . 11 Civ . 5246 (SAS) , 2012 WL 98 759 2 , at
*9 (S . D. N. Y. Mar. 23 , 2012)
Chester , No . 09 Civ . 6268

(quoting Sa l dana v. Village of Port

(SCR)

(GAY) , 20 1 0 WL 6117083 , at *5

(S.D .N. Y. July 10 , 2010)) . Plaint iff s have a l so not alleged
facts sufficient to infer that Defendant NYC knew of the
38

Defendant officers' propensity to act in the manner alleged ,
namely using a powerful sound magnifier in an unnecessarily
forceful manner.

Accordingly, Defendants' motion to dismiss Count Nine of
the FAC is granted .

vi.

Claims Against Defendant Bratton

Plaintiffs have named former NYPD Police Commissioner
Bratton as a Defendant in his individual capacity . "[E]ach
Government official, his or her title notwithstanding, is only
liable for his or her own misconduct. " Iqbal, 556 U. S . at 677 .
Plaintiffs have failed to plausibly allege that Defendant
Bratton was present at the time of the Protest or that he was
personally involved in any decisions non-duplicative of those
included in the surviving Monell claims against Defendant NYC.
Accordingly, all claims against Bratton in his individual
capacity are dismissed . See Williams v. City of N. Y., No . 14
Civ . 5123

(NRB) , 2015 WL 4461716 , at *7

(S . D. N.Y. July 21,

2015) . 7

7

These same conclusions would apply were Bratton to have been
replaced with n o w-NYPD Commissioner James O' Neill under Fed . R.
Civ. P . 25(d) .
39

Conclusion

For the foregoing reasons , Defendants ' motion to dismiss is
granted with regards to Counts Two , Three , Six , Seven , Eigh t ,
and Nine , and denied with regards to Count s One , Four , and Five .

It

is so ordered .

New York, NY

May s( '

2011

ROBERT W. SWEET
U.S.D.J.

40