An v. The City Of New York ,

Filing 41

OPINION AND ORDER re: 33 MOTION for Leave to File Amended Complaint and Demand for Jury Trial, filed by Ruben An. Plaintiff's motion for leave to file a First Amended Complaint in the form of the Proposed Amended Complaint is GRANTED. The Clerk of Court is directed to close the motion at Docket No. 33, and as further set forth herein. (Signed by Judge Lorna G. Schofield on 6/1/2017) (ras) Modified on 6/1/2017 (ras).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
RUBEN AN,
:
Plaintiff,
:
:
-against:
:
THE CITY OF NEW YORK,
:
Defendant. :
------------------------------------------------------------ X

06/01/17

16 Civ. 5381 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Ruben An moves for leave to file an amended complaint pursuant to Federal
Rule of Civil Procedure 15(a)(2). The Proposed Amended Complaint (the “Complaint”) alleges
Defendant City of New York (the “City”) has an unconstitutional policy of permitting NYPD
officers to interfere with individuals who record them performing their official duties in public.
For the following reasons, the motion is granted.
I.

BACKGROUND
Familiarity with the allegations in the initial complaint, including those regarding

Plaintiff’s arrest and the procedural history, is assumed. See An v. City of New York, No. 16 Civ.
5381, 2017 WL 455434, --- F. Supp. 3d ---- (S.D.N.Y. Feb. 2, 2017). The following is based on
the Complaint, and all factual allegations are assumed to be true.
A.

Plaintiff’s Recording Activity and Arrest

Plaintiff “regularly record[s] police officers conducting their official duties in public.”
He is also involved “with civic groups that organize their members to observe and film police
officers in public” and has “taught community trainings on filming police officers.”
On July 28, 2014, Plaintiff began to film three NYPD officers talking to an individual on
a sidewalk in Manhattan. The officers then arrested Plaintiff, who was also standing on the

sidewalk, and he was charged with four counts of violating state law. Two counts were
dismissed before trial, and in July 2015, a jury acquitted him of the other two counts. None of
the NYPD officers involved in Plaintiff’s arrest were disciplined for their treatment of Plaintiff.
Due to the arrest, Plaintiff did not record any police interactions for several months and
then began to record “only rarely” until the conclusion of his trial. Plaintiff “gradually resumed”
recording after his trial and now records “usually at least two times per month.” However, he
records less frequently than before his arrest because he “fears future pretextual arrests and
prosecution” for recording police officers. His “ongoing filming of public police activity” will
“frequently bring him into contact with police officers in scenarios similar to the interaction he
observed” the day he was arrested.
B.

The FINEST Message and Other Alleged Incidents

In August 2014, the NYPD issued a document -- referred to as a FINEST Message -- that
addresses “Recording of Police Action by the Public.” It states, “Members of the service are
reminded that members of the public are legally allowed to record (by video, audio, or
photography) police interactions. These interactions include arrest and other situations.” The
Message prohibits NYPD officers from “interfer[ing] with a person’s use of recording devices to
record police interactions” and states that “intentional interference such as blocking or
obstructing cameras or ordering the person to cease . . . violates the First Amendment.” The
Complaint alleges that the City has “not instituted any training, monitoring, or supervision to
ensure that officers comply with” the FINEST Message.
The Complaint further alleges that as a result of the City’s failure to train or supervise,
NYPD officers routinely arrest or threaten to arrest individuals who record police activity. In
support, the Complaint cites 47 lawsuits filed in the United States District Court for the Eastern

2

and Southern Districts of New York between the years 2012 and 2016, as well as a few lawsuits
before 2012, in which the plaintiff alleged that he or she was arrested while recording NYPD
officers or that the officers interfered with the recording. The Complaint also cites 18 news
articles published during the same time period, as well as a couple articles published earlier, that
concern allegations of police interfering with individuals who record officers in public. The
Complaint alleges that “these examples represent only a small fraction of the actual number of
recent instances” in which NYPD officers have interfered with the First Amendment rights of
individuals recording police activity.
The New York City Civilian Complaint Review Board (“CCRB”), which investigates
complaints against NYPD officers, found that 201 “fully investigated complaints” decided in
2014 and 2015 contained “one or more allegations of police interference with civilian recording
of police activity; search of a device for a recording of police activity; deletion of a recording of
police activity; and/or damage to or destruction of the recording device.” In 2016, CCRB
received at least 77 reports containing allegations of officers interfering with recordings; it also
received 23 allegations relating to “unlawful search of an electronic device” and 10 allegations
relating to “deleting electronic information off a device.”
Based on reports of police interference, the CCRB in or before October 2016 decided to
prepare an “Issue-Based Report,” which it calls the “bystander report.” The CCRB qualifies its
Issue-Based Reports as follows: “The CCRB’s investigation of complaints and data analysis
sometimes reveals problems that go beyond specific acts of misconduct and suggest the need for
a change in police department policy, procedures, or training. When this occurs, the board
notifies the police commissioner and recommends solutions.” The CCRB indicated that it
expected to issue the bystander report by the end of 2016. As of the date of Plaintiff’s motion,

3

the report had not been released.
II.

STANDARD
“Leave to amend should be ‘freely give[n] . . . when justice so requires,’ Fed. R. Civ. P.

15(a)(2), but should generally be denied in instances of futility . . . .” United States ex rel. Ladas
v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016) (some internal quotation marks omitted). “A
proposed amendment to a complaint is futile when it could not withstand a motion to dismiss.”
F5 Capital v. Pappas, 856 F.3d 61, 89 (2d Cir. 2017) (internal quotation marks omitted).
The City argues the Complaint could not withstand a motion to dismiss pursuant to Rule
12(b)(1) for lack of standing and Rule 12(b)(6) for failure to state a claim. In deciding either
such motion, a court accepts as true all of a complaint’s factual allegations and draws all
reasonable inferences in the plaintiff’s favor. See Tr. of Upstate N.Y. Eng’rs Pension Fund v. Ivy
Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016) (stating standard for Rule 12(b)(6) motion and
noting the “same standards apply to dismissals for lack of standing” under Rule 12(b)(1)).
III.

DISCUSSION
A.

Standing to Seek Injunctive Relief

The Complaint adequately alleges that Plaintiff has standing to seek injunctive relief.
“[S]tanding is a federal jurisdictional question determining the power of the court to entertain the
suit.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (internal quotation marks
omitted). “To satisfy this jurisdictional requirement, (1) the plaintiff must have suffered an
injury-in-fact; (2) there must be a causal connection between the injury and the conduct at issue;
and (3) the injury must be likely to be redressed by a favorable decision.” Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (internal quotation marks omitted); see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). When seeking injunctive relief

4

against a municipality, a plaintiff has standing only if he can “carry the burden of establishing
that ‘he has sustained or is immediately in danger of sustaining some direct injury as the result of
the challenged official conduct.’” Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004) (quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983)). This requires a plaintiff to show
“both [1] a likelihood of future harm and [2] the existence of an official policy or its equivalent.”
Id. at 216 (emphasis omitted) (citing Lyons, 461 U.S. at 105–106).
Official Policy or Its Equivalent
The Complaint plausibly alleges the existence of an official policy or its equivalent for
purposes of standing. “A municipal policy may be pronounced or tacit and reflected in either
action or inaction.” Cash v. Cty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011) (addressing municipal
liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of City of New
York, 436 U.S. 658 (1978)). “In the latter respect, a ‘city’s policy of inaction in light of notice
that its program will cause constitutional violations is the functional equivalent of a decision by
the city itself to violate the Constitution.” Id. (quoting Connick v. Thompson, 563 U.S. 51, 61
(2011)). “[W]here a policymaking official exhibits deliberate indifference to constitutional
deprivations caused by subordinates, such that the official’s inaction constitutes a deliberate
choice, that acquiescence may be properly thought of as a city policy or custom” for purposes of
§ 1983. Id. (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004)
(Sotomayor, J.)); see also Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (“The
failure to train or supervise city employees may constitute an official policy or custom if the
failure amounts to ‘deliberate indifference’ to the rights of those with whom the city employees
interact.”).

5

The parties dispute whether a plaintiff establishes an official policy or its equivalent for
purposes of standing under Shain and Lyons by showing a policy or custom for purposes of
stating a § 1983 claim for municipal liability under Monell. The Court agrees with the district
courts that have applied Monell and its progeny when evaluating whether a plaintiff has alleged
an official policy or its equivalent for purposes of conferring standing. See An, 2017 WL
455434, at *3 n.1 (citing Battle v. City of New York, No. 11 Civ. 3599, 2012 WL 112242, at *4
(S.D.N.Y. Jan. 12, 2012); Aguilar v. Immigration & Customs Enf’t Div. of the U.S. Dep’t of
Homeland Sec., 811 F. Supp. 2d 803, 828 (S.D.N.Y. 2011)). But see MacIssac v. Town of
Poughkeepsie, 770 F.Supp.2d 587, 597, 601 (S.D.N.Y. 2011). As Shain made clear, an official
policy or its equivalent is required for standing. 356 F.3d at 216.
“[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61
(internal quotation marks omitted). Deliberate indifference under a failure to train or supervise
theory has three requirements:
First, the plaintiff must show that a policymaker knows to a moral certainty that
her employees will confront a given situation. Second, the plaintiff must show
that the situation either presents the employee with a difficult choice of the sort
that training or supervision will make less difficult or that there is a history of
employees mishandling the situation. Finally, the plaintiff must show that the
wrong choice by the city employee will frequently cause the deprivation of a
citizen’s constitutional rights.
Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007) (internal quotation marks and
citations omitted); see Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992).
“The operative inquiry is whether th[e] facts demonstrate that the policymaker’s
inaction was the result of conscious choice and not mere negligence.” Cash, 654 F.3d at
334 (internal quotation marks omitted). As such, “deliberate indifference may be inferred

6

where the need for more or better supervision to protect against constitutional violations
was obvious, but the policymaker fail[ed] to make meaningful efforts to address the risk
of harm to plaintiffs.” Id. (internal quotation marks and citations omitted).
The Complaint adequately alleges the equivalent of an official policy based on a failure
to supervise or train. The allegations satisfy all three requirements for deliberate indifference
under Walker. First, the Complaint plausibly alleges that the City knows to “a moral certainty”
that NYPD officers will confront individuals filming them. Walker, 974 F.2d at 297. The City
issued the FINEST Message, entitled “Recording of Police Action by the Public,” that reminded
officers that the public may legally record police interactions.
Second, the Complaint plausibly alleges a history of employees mishandling the situation
in which an officer is being recorded. The Complaint cites 47 lawsuits, 18 news reports and
hundreds of complaints to the CCRB involving allegations that NYPD officers arrested or
otherwise interfered with individuals who were recording them in public. Further, the CCRB
concluded that complaints regarding police interactions in which the officer was being filmed
warranted an Issued-Based Report, a document the CCRB produces if its investigation “reveals
problems that go beyond specific acts of misconduct and suggest the need for a change in police
department policy, procedures, or training.” At this stage of the litigation, these allegations
support the inference of a history of NYPD officers mishandling situations in which individuals
film police activities in public. See Edwards v. City of New York, No. 14 Civ. 10058, 2015 WL
5052637, at *5 (S.D.N.Y. Aug. 27, 2015) (holding that history of misconduct plausibly inferred
from “litany of sources” regarding alleged brutality by Department of Corrections (“DOC”)
officers, which included 18 lawsuits, multiple news articles, a report by the United States
Attorney’s Office for the Southern District of New York and testimony by DOC Commissioner);

7

Bertuglia v. City of New York, 839 F. Supp. 2d 703, 7339 (S.D.N.Y. 2012) (denying motion to
dismiss where the plaintiff cited over 15 cases of similar misconduct, as well as a state criminal
court opinion documenting misconduct in the plaintiff’s case, which “allow[ed] the [c]ourt to
draw the inference that there is a history of [misconduct]”).
Third, the Complaint plausibly alleges that the “wrong choice” by a police officer will
“frequently” deprive an individual of a constitutional right. Walker, 974 F.2d at 298. The
FINEST Message expressly warns officers that “intentional interference such as blocking or
obstructing cameras or ordering the person to cease . . . violates the First Amendment.”
The allegations regarding the numerous lawsuits, news reports, complaints to the CCRB
between 2014 and 2016 and the CCRB’s decision to prepare the so-called “bystander report” not
only support the inference that the City’s need for more or better supervision to protect against
constitutional violations was obvious, they also support the inference that the City failed to make
meaningful efforts to address the risk of harm. See Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995) (“An obvious need may be demonstrated through proof of repeated
complaints of civil rights violations . . . .”); Cash, 654 F.3d at 334 (“[D]eliberate indifference
may be inferred where the need for more or better supervision to protect against constitutional
violations was obvious, but the policymaker fail[ed] to make meaningful efforts to address the
risk of harm to plaintiffs.” (internal quotation marks and citations omitted)). The City’s
argument that a plaintiff cannot rely on these sources because they contain hearsay is unavailing;
although this objection may prevail on summary judgment, it does not on this Rule 12 motion.
See Osterhoudt v. City of New York, No. 10 Civ. 3173, 2012 WL 4481927, at *1 (E.D.N.Y. Sept.
27, 2012) (rejecting the defendant’s argument on a motion to dismiss that a plaintiff cannot
allege “deliberate indifference by pointing to other complaints and settlement agreements since

8

these papers contain unproven allegations” but observing that such sources “would hardly
prevent summary judgment”); cf. White v. City of New York, No. 13 Civ. 7421, 2015 WL
4601121, at *8 (S.D.N.Y. July 31, 2015) (“Courts have taken into account the existence of
similar lawsuits when deciding whether a plaintiff has adequately alleged a Monell claim.”).
Accordingly, the Complaint plausibly alleges a municipal policy based on a failure to supervise
or train.
The City argues that Plaintiff lacks standing in light of the FINEST Message, which it
contends is a constitutionally-adequate official policy. In support, it cites Curtis v. City of New
Haven, 726 F.2d 65 (2d Cir. 1984). In that case, the Second Circuit cited the Supreme Court’s
observation in Lyons that a plaintiff who sought injunctive relief against a municipality relating
to chokeholds by police “would have had to allege that he would have another encounter with the
police” and “either that all [of the municipality’s] police officers always choke citizens with
whom they have an encounter or that the city ordered or authorized its police officers to act in
that manner.” Id. at 67 (citing Lyons, 461 U.S. at 105–06). The Second Circuit held that because
the defendant municipality’s “General Orders” in that case did not “order or authorize police
officers to act the way the juries found that they did,” the plaintiff lacked standing. Id. The City
reasons that Plaintiff cannot allege standing because the FINEST Message did not authorize the
NYPD officers to arrest Plaintiff in July 2014 solely for recording a police interaction.
Neither Curtis nor Lyons stands for the proposition that a plaintiff is foreclosed from
alleging standing whenever the municipality has a written policy that is constitutionally
adequate. As subsequent cases make clear, a “municipal policy” may be found “[w]here a city’s
official policy is constitutional, but the city causes its employees to apply it unconstitutionally.”
Amnesty Am., 361 F.3d at 126. “Such circumstances may be found, for example, where the city

9

is aware that its policy may be unconstitutionally applied by inadequately trained employees but
the city consciously chooses not to train them . . . .” Id. (citing City of Canton v. Harris, 489
U.S. 378, 387 (1989)). Importantly, a municipality’s policy of inaction may satisfy Lyons
because it is tantamount to authorizing, albeit through acquiescence, the subordinates’ conduct.
See Cash, 654 F.3d at 324 (“where a policymaking official exhibits deliberate indifference to
constitutional deprivations caused by subordinates, such that the official’s inaction constitutes a
deliberate choice, that acquiescence may be properly thought of as a city policy or custom” under
§ 1983 (quoting Amnesty Am., 361 F.3d at 126)). The Complaint therefore has adequately
alleged an official policy or its equivalent. See Shain, 356 F.3d at 215.
Likelihood of Future Harm
The Complaint adequately alleges the likelihood of future harm. A future harm is
sufficiently likely if “[t]he injury or threat of injury” is “both real and immediate, not conjectural
or hypothetical.” Shain, 356 F.3d at 215 (internal quotation marks omitted). “[P]ast exposure to
illegal conduct does not in itself show a present case or controversy regarding injunctive relief . .
. .” Lyons, 461 U.S. at 102. A plaintiff must show “a sufficient likelihood that he [or she] will
again be wronged in a similar way.” Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir.
2012) (quoting Lyons, 461 U.S. at 111).
Contrary to the City’s argument, Plaintiff does not solely rely on the allegations regarding
his prior arrest to show a sufficient likelihood that he will be wronged in a similar way. Rather,
the Complaint alleges that Plaintiff continues to film public police activity about twice per month
and that this conduct will bring him into contact with police officers. Given the adequately
pleaded municipal policy, the Complaint alleges a real and immediate possibility that an NYPD
officer will arrest Plaintiff or otherwise interfere with his ability to record police activity in the

10

future.
This case is distinguishable from Lyons and Shain. Unlike the plaintiffs in those cases,
Plaintiff’s “risk of future injury does not depend on his being arrested for unlawful conduct and
so he cannot avoid that injury by following the law.” Floyd v. City of New York, 283 F.R.D. 153,
169–70 (S.D.N.Y. 2012); see MacIssac, 770 F. Supp. 2d at 601 (observing that courts have held
that “plaintiffs had standing to sue for injunctive relief in part because their likelihood of
suffering the same harm again did not depend on them willfully breaking the law”).
Consequently, the Complaint adequately alleges an official policy and likelihood of
future harm necessary to confer standing to pursue injunctive relief. For the same reason, the
Complaint adequately alleges standing to pursue declaratory relief. See Peck v. Baldwinsville
Cent. Sch. Dist., 351 F. App’x 477, 479 (2d Cir. 2009) (summary order) (observing that Lyons
and Shain govern whether plaintiff has standing to pursue declaratory relief); Nicholas v. City of
New York, No. 15 Civ. 9592, 2017 WL 766905, at *9 (S.D.N.Y. Feb. 27, 2017) (holding plaintiff
has standing to pursue injunctive and equitable relief where he has alleged an ongoing practice or
custom by the defendants and threat of future harm).
B.

The City’s Remaining Arguments

The City makes three additional arguments in opposition to Plaintiff’s motion. None is
persuasive. First, the City argues, without citation to any authority, that the request for
injunctive relief is not actionable because it is merely a command to obey the law. At this stage
of the litigation, however, the City’s challenge to the scope of any injunctive relief is premature.
See Aguilar, 811 F. Supp. 2d at 829 (“Whether the plaintiffs will eventually be able to obtain any
injunctive relief, and what the scope of that relief would be, are issues that must await the
development of the evidence.”); In re Marsh Erisa Litig., No. 04 Civ. 8157, 2006 WL 3706169,

11

at *4 (S.D.N.Y. Dec. 14, 2006) (“[A]t the pleading stage, the Court will not foreclose the later
possibility of more narrowly tailored injunctive relief. Plaintiffs have met the pleading
requirements of Federal Rule of Civil Procedure 8(a) by giving Defendants sufficient notice that
they seek injunctive relief pertaining to the allegations of the Complaint.”).
Second, the City argues that the claim for declaratory relief should be dismissed because
the “entirety of the dispute” is based on the July 28 arrest, and that declaratory relief is
inappropriate where only past acts are involved. See Chiste v. Hotels.com L.P., 756 F.Supp.2d
382, 407 (S.D.N.Y. 2010) (noting there is “no basis for declaratory relief where only past acts
are involved” (internal quotation marks omitted)). This misreads the Complaint, which alleges
that Plaintiff continues to record police and, as a result of the City’s policy relating to its failure
to train or supervise NYPD officers, the officers are likely to interfere with his recording in the
future. These allegations are sufficient on this motion.
Third, the City argues that the Complaint fails to state a claim because it fails to allege
adequately the existence of an official policy under Monell. However, for the reasons stated
above, the Complaint’s allegations are sufficient under a failure to train or supervise theory.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for leave to file a First Amended Complaint

in the form of the Proposed Amended Complaint is GRANTED.
The Clerk of Court is directed to close the motion at Docket No. 33.
Dated: June 1, 2017
New York, New York

12