Butler et al v. City Of New York et al

Filing 48

OPINION AND ORDER re: 38 MOTION to Dismiss the Complaint. filed by City Of New York, John Larkens, John Rodriguez, Dermot Shea, Bill De Blasio, John Mejia, John Villanueva. For the foregoing reasons, Defendants' motion is granted. Because amendment would be futile, Plaintiffs are denied leave to amend. See Attestor Value Master Fund v. Republic of Argentina, 940 F.3d 825, 833 (2d Cir. 2019); 421-A Tenants Assn, Inc. v. 126 Ct. St. LLC, 760 F. App'x 44, 51 (2d Cir. 2019) (summary order). The Clerk of Court is respectfully directed to terminate the motion, Doc. 38, and close the case. (As further set forth in this Order.) (Signed by Judge Edgardo Ramos on 9/8/2021) (cf) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERIC BUTLER and JACOB J.
KATZBURG,
Plaintiffs,
– against –
CITY OF NEW YORK; BILL DE
BLASIO, in his personal and official
capacity as the Mayor of New York City;
DERMOT SHEA, in his personal and
official capacity as Police Commissioner of
the New York City Police Department; and
POLICE OFFICERS “JOHN”
RODRIGUEZ (TAX: 952174), “JOHN”
VILLANUEVA (BADGE NUMBER
27398), “JOHN” LARKENS (BADGE
NUMBER 13260), NICHOLAS T.
BRUCCOLERI (TAX: 960288), “JOHN”
MEJIA, JOHN DOES 1-15, SERGEANTS
“JOHN DOE” 1-5, and CAPTAIN “JOHN
DOE,” all in their personal and official
capacity,

OPINION & ORDER
20 Civ. 4067 (ER)

Defendants.
RAMOS, D.J.:
Eric Butler and Jacob J. Katzburg brought this suit pursuant to 42 U.S.C. § 1983,
alleging that their constitutional rights were violated when they were arrested at a protest
against the policies New York City Mayor Bill de Blasio implemented in response to the
COVID-19 pandemic. Doc. 1. More specifically, Plaintiffs were arrested for violating an
executive order that banned all “non-essential gatherings,” and allege that the executive
order was unconstitutional. Id. Pending before the Court is Defendants’ motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7).
Doc. 38.
For the following reasons, Defendants’ motion to dismiss is GRANTED.

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I.

BACKGROUND
A. Factual Background
Now almost eighteen months since the World Health Organization characterized

COVID-19 as a pandemic, and in the midst of a fourth surge in the United States, the
seriousness, pervasiveness, and evolving nature of the COVID-19 pandemic is well
documented. This case does, however, require the Court to recount the precautions taken
by government officials at the beginning of the pandemic.
On March 7, 2020, then-Governor Andrew Cuomo declared a state of emergency
due to the threat posed by COVID-19, N.Y. Exec. Order No. 202,
https://www.governor.ny.gov/sites/default/files/atoms/files/EO_202.pdf, and on March
12, 2020, Mayor de Blasio declared a state of emergency in New York City, Doc. 1. ¶ 22.
As the victim count climbed in the city and across the state, the Governor and the Mayor
implemented a number of executive orders to combat the rise in infections. See id. ¶¶
23–25.
Relevant here are two of the Governor’s orders. First, on March 18, 2020, the
Governor issued Executive Order 202.6, which imposed in-person capacity restrictions,
but exempted from those restrictions “[a]ny essential business or entity providing
essential services or functions.” Doc. 1-6. Under that order, an “essential business or
entity providing essential services or functions” is defined as:
essential health care operations including research and
laboratory services; essential infrastructure including
utilities, telecommunication, airports and transportation
infrastructure; essential manufacturing, including food
processing and pharmaceuticals; essential retail including
grocery stores and pharmacies; essential services including
trash collection, mail, and shipping services; news media;
banks and related financial institutions; providers of basic
necessities to economically disadvantaged populations;
construction; vendors of essential services necessary to
maintain the safety, sanitation and essential operations of
residences or other essential businesses; vendors that
provide essential services or products, including logistics

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and technology support, child care and services needed to
ensure the continuing operation of government agencies and
provide for the health, safety and welfare of the public.
Id. Second, on March 23, 2020, the Governor issued Executive Order 202.10, which,
among other things, declared that all non-essential gatherings of individuals of any size
for any reason were cancelled or postponed. N.Y. Exec. Order No. 202.10,
https://www.governor.ny.gov/sites/default/files/atoms/files/EO_202.10.pdf.
The executive order directly at issue in this suit, however, is the Mayor’s
Emergency Executive Order 103 (“EEO 103”), which was propounded on March 25,
2020. Id. ¶ 27. EEO 103 states: “In order to avoid the mass congregation of people in
public places and to reduce the opportunity for the spread of COVID-19 any nonessential gathering of individuals of any size for any reason shall be cancelled or
postponed.” Doc. 1-5 § 3(b). EEO 103 also incorporates any and all relevant provisions
of the Governor’s emergency orders, including Executive Order 202.6. Id. §§ 2(c), 4.
Regarding Executive Order 202.6 specifically, EEO 103 states:
Any essential business or entity providing essential services
or functions, as defined by [the Governor’s] Executive Order
202.6 and guidance issued by the Empire State Development
Corporation or designated as essential pursuant to any
subsequent order issued by the Governor, shall not be subject
to the in-person restrictions.
Id. § 2(c). The Mayor extended the ban on non-essential gatherings several times, and the
ban was still in effect on May 9, 2020. See Doc. 1 ¶¶ 30–38.
That day, at approximately 1:00 p.m., Plaintiffs—both residents of New York—
gathered with approximately twenty other people in City Hall Park in New York City to
protest the executive orders the Mayor had issued in response to the COVID-19
pandemic. Id. ¶¶ 8–9, 46–52. According to Plaintiffs, the protestors attempted to
maintain a distance of six feet between themselves at all times, and several wore face

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coverings. Id. ¶¶ 51–52. Plaintiffs also allege that, while the group was protesting, there
were other park-goers nearby, though they were not associated with each other. Id. ¶ 53.
At approximately 1:35 p.m., the Police Defendants—that is, all Defendants except
for the City of New York (the “City”), the Mayor, and Dermot Shea, the police
commissioner of the New York City Police Department (“NYPD”)—assembled outside
of the park. Id. ¶¶ 58–59. The Police Defendants include “John” Rodriguez, “John”
Villanueva, “John” Larkens, Nicholas T. Bruccoleri, “John” Mejia, and several other
unnamed members of the NYPD.
After standing outside the park for several minutes, the Police Defendants then
entered, forming a line that blocked off one of the entrances to the park. Id. ¶ 59. Once
inside, the officers played an audio recording over a loudspeaker stating: “This is the
New York City Police Department. Non-essential gatherings of any kind have been
prohibited by the Governor and the Mayor. This gathering is unlawful, and you are
ordered to disperse. If you fail to disperse immediately, you are subject to arrest.” Id.
After playing the recording for five minutes, the Police Defendants approached
Plaintiffs and the other protestors. Id. ¶ 61. Rodriguez ordered Katzburg to leave the
park, to which Katzburg objected that the park was open to the public and that he was
exercising his First Amendment right to freedom of assembly. Id. ¶¶ 62–63. Rodriguez,
Villanueva, and Larkens then arrested Katzburg, after Defendant Sergeant John Doe 1
instructed them to do so. Id. ¶¶ 64–65. Meanwhile, the other Police Defendants
continued to escort the other protestors out of the park. Id. ¶ 67. As Butler walked away
from the park, Bruccoleri and Mejia arrested him. Id. ¶¶ 69–70. In total, nine
protestors—including Plaintiffs—were arrested. Id. ¶ 72.
Plaintiffs were then taken by van to the NYPD’s Seventh Precinct and were
released from custody later that day, each with a criminal summons. Id. ¶ 74. Butler’s
summons stated that he was charged with “Violat[ing] The Mayor’s Order” under New
York City Administrative Code § 3-108. Id. ¶ 75; see also Doc. 1-19. Katzburg’s
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summons stated that he was charged with that same offense and with “Discon: Failure to
Disperse,” pursuant to New York Penal Law § 240.20(6). Doc. 1 ¶ 76; see also Doc. 120.
The Mayor extended the ban on all non-essential gatherings twice more, Doc. 1 ¶¶
39–40, but on May 24, 2020, he modified the ban to permit non-essential gatherings of
ten or fewer individuals, so long as those individuals adhered to applicable social
distancing and cleaning protocols. Id. ¶ 41; see also Doc. 1-18 § 2. The capacity limits
were incrementally increased until, on June 15, 2021, all capacity restrictions in response
to the COVID-19 pandemic were lifted. Although the state has recently entered a fourth
surge, in large part due to the Delta variant, no capacity restrictions have been reinstated.
B. Procedural History
Plaintiffs filed the instant suit on May 27, 2020. Doc. 1. Plaintiffs assert that
Defendants’ enforcement of EEO 103—along with all subsequent amendments of the
order1—violated their First Amendment rights to freedom of speech, freedom of
assembly, and right to petition the government for redress of grievances; that EEO 103 is
void for vagueness and therefore violates the due process clause of the Fourteenth
Amendment; that they were falsely arrested in violation of the Fourth Amendment; that
the Doe Defendants failed to intervene when they were falsely arrested; and that the City
is liable for the aforementioned conduct pursuant to Monell v. Department of Social
Services, 436 U.S. 658 (1978).
On June 1, 2020, Plaintiffs filed a motion for a temporary restraining order,
seeking to enjoin the enforcement of EEO 103. Doc. 8. At a teleconference on June 4,
2020, the Court denied Plaintiffs’ request. Docs. 18 and 20.
On December 7, 2020, Defendants filed the instant motion. Doc. 38.

1

For ease of reference, the Court uses “EEO 103” to encapsulate any subsequent iterations of the order.

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II.

LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
Under Rule 12(b)(1), a party may move to dismiss a complaint for lack of subject

matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Dismissal of a case for lack of subject
matter jurisdiction under Rule 12(b)(1) is proper ‘when the district court lacks the
statutory or constitutional power to adjudicate it.’” Ford v. D.C. 37 Union Local 1549,
579 F.3d 187, 188 (2d Cir. 2009) (per curiam) (quoting Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000)). A lack of standing constitutes a jurisdictional defect and
“may be addressed through a Rule 12(b)(1) motion.” Lyons v. Litton Loan Servicing LP,
158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016).
In asserting a challenge pursuant to Rule 12(b)(1), a defendant may proffer
evidence beyond the complaint and its exhibits. Carter v. HealthPort Techs., LLC, 822
F.3d 47, 57 (2d Cir. 2016). In opposing such a motion, a plaintiff must put forward her
own evidence to controvert the evidence presented by the defendant, or the plaintiff may
instead rely on allegations in her pleading if the defendant’s proffered evidence “is
immaterial because it does not contradict plausible allegations that are themselves
sufficient to show standing.” Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d
Cir. 2017) (quotation omitted). “If a defendant supports [its] fact-based Rule 12(b)(1)
motion with ‘material and controverted’ ‘extrinsic evidence,’ a ‘district court will need to
make findings of fact in aid of its decision as to subject matter jurisdiction.’” Nicholas v.
Trump, 433 F. Supp. 3d 581, 587 (S.D.N.Y. 2020) (quoting Carter, 822 F.3d at 57).
B. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). The plaintiff must allege sufficient facts to show “more than a sheer possibility that
a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). However, this
“flexible plausibility standard” is not a heightened pleading standard, In re Elevator
Antitrust Litig., 502 F.3d 47, 50 n.3 (2d Cir. 2007) (quotation omitted), and “a complaint .
. . does not need detailed factual allegations” to survive a motion to dismiss, Twombly,
550 U.S. at 555.
The question on a motion to dismiss “is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs
for Just. v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). Indeed, “the purpose of Federal Rule
of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of
the plaintiff’s statement of a claim for relief without resolving a contest regarding its
substantive merits” or “weigh[ing] the evidence that might be offered to support it.”
Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (quotations omitted). Thus, when
ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts all factual
allegations in the complaint as true and draws all reasonable inferences in the plaintiff’s
favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). In considering a Rule 12(b)(6)
motion, a district court may also consider “documents attached to the complaint as
exhibits[] and documents incorporated by reference in the complaint.” Doe v. N.Y. Univ.,
No. 20 Civ. 1343 (GHW), 2021 WL 1226384, at *10 (S.D.N.Y. Mar. 31, 2021) (quoting
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)).
C. Federal Rule of Civil Procedure 12(b)(7)
Under Rule 12(b)(7), an action must be dismissed for failure to join a party under
Rule 19 if the absent party is (1) necessary but joinder is not feasible, and (2)
indispensable to the action. See Am. Trucking Ass’ns, Inc. v. N.Y. State Thruway Auth.,
795 F.3d 351, 356–57 (2d Cir. 2015). In reviewing a Rule 12(b)(7) motion, a court may
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accept all factual allegations in the complaint as true and draw inferences in favor of the
plaintiff. Id. at 354. Further, a court can consider matters outside of the pleadings, such
as affidavits, in deciding a Rule 12(b)(7) motion. EMR (USA Holdings), Inc. v. Goldberg,
No. 18 Civ. 7849 (ER), 2019 WL 5537878, at *4 (S.D.N.Y. Oct. 25, 2019).
III.

DISCUSSION
A. Standing
Defendants argue that Plaintiffs lack standing to assert their First Amendment

claims, setting forth two arguments. First, Defendants argue that Plaintiffs fail to
establish causation—that is, that Plaintiffs’ injury is fairly traceable to Defendants’
conduct. Regarding this point, Defendants emphasize that Plaintiffs do not challenge the
State’s Executive Order 202.10, which the Police Defendants could have independently
relied on to arrest Plaintiffs. Second, and relatedly, Defendants contend that Plaintiffs fail
to establish redressability, noting that, even if the Court enjoins EEO 103, Executive
Order 202.10 would still prohibit the same behavior.2
The Court concludes that Plaintiffs have standing to assert their First Amendment
claims. “The requirements of Article III standing are well established: ‘[A] plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’”
Lacewell v. Office of Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021) (quoting
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). Regarding causation, Plaintiffs
allege—and Defendants do not contest—that the Police Defendants arrested Plaintiffs
pursuant to New York City Administrative Code § 3-108 for their violation of EEO 103.
So, even if the Police Defendants could have arrested Plaintiffs pursuant to Executive
Order 202.10, Plaintiffs’ alleged injury is still fairly traceable to Defendants’ actions
relating to the challenged conduct—i.e., EEO 103. Regarding redressability, Court notes
The Court notes that neither party addresses the fact that outdoor capacity restrictions have been fully
lifted since the commencement of the instant suit.
2

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that, in addition to the requested prospective relief, Plaintiffs seek damages for their First
Amendment claims. Accordingly, the Court must consider the merits of Plaintiffs’
claimed First Amendment violations. See Uzuegbunam v. Preczewski, 141 S. Ct. 792,
801 (2021); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Res., 532 U.S. 598, 608–09 (2001); Amato v. Elicker, No. 20 Civ. 464 (MPS), --F. Supp. 3d ----, ----, 2021 WL 1430918, at *4 n.6 (D. Conn. Apr. 15, 2021).
B. First Amendment Claims
1. Standard of Review
Defendants argue that Plaintiffs fail to state a claim for a violation of their First
Amendment rights to freedom of speech, freedom of assembly, and freedom to petition
the government.
As an initial matter, the parties dispute the appropriate standard of review for
Plaintiffs’ claims. Defendants contend that the deferential framework set forth in
Jacobson v. Massachusetts, 197 U.S. 11 (1905), controls the Court’s analysis. In that
case, the Supreme Court upheld a vaccination statute enacted by Massachusetts to protect
against smallpox. Id. at 38. Under Jacobson, a state or local law “enacted to protect the
public health” will survive judicial scrutiny unless it bears “no real or substantial relation
to [the public health], or is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law.” Id. at 31. Although Jacobson “predated the modern
constitutional jurisprudence of tiers of scrutiny,” Agudath Israel of Am. v. Cuomo, 983
F.3d 620, 635 (2d Cir. 2020), “it has been likened to rational basis review,” Jones v.
Cuomo, No. 20 Civ. 4898 (KPF), --- F. Supp. 3d ----, ----, 2021 WL 2269551, at *6
(S.D.N.Y. June 2, 2021).
By contrast, Plaintiffs contend that the Court must analyze their First Amendment
claims under the tiers-of-scrutiny framework, relying on the U.S. Supreme Court’s
decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per
curiam), and the Second Circuit’s decision on remand of that matter in Agudath. In
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Roman Catholic Diocese, the Supreme Court temporarily enjoined the enforcement of a
New York executive order that placed restrictions on in-person religious services in an
effort to combat the spread of COVID-19. 141 S. Ct. at 65–66. To reach this conclusion,
the Court undertook a traditional tiers-of-scrutiny analysis of the plaintiffs’ First
Amendment free exercise claims, concluding that strict scrutiny applied because the order
targeted religious services. Id. at 66–67. Although concluding that “[s]temming the
spread of COVID-19 is unquestionably a compelling interest,” the Court held that the
restrictions were not narrowly tailored and, therefore, did not pass constitutional muster.
Id. at 67. That opinion, it should be noted, does not reference Jacobson in its analysis.
See Jones, --- F. Supp. 3d at ----, 2021 WL 2269551, at *6. On remand, the Second
Circuit converted the temporary injunction into a preliminary one, emphasizing that
Jacobson “did not address the free exercise of religion” and therefore was not the
appropriate legal framework for analyzing a free exercise claim. Agudath, 983 F.3d at
635 (quotation omitted).
Although, after Roman Catholic Diocese, some courts in this Circuit have
declined to apply the Jacobson framework to challenges brought pursuant to other
provisions of the First Amendment, see, e.g., Amato, --- F. Supp. 3d at ----, 2021 WL
1430918, at *7 & n.11, the majority of courts in this Circuit—along with several courts in
other circuits—have limited Roman Catholic Diocese to First Amendment free exercise
challenges, see Jones, --- F. Supp. 3d at ----, 2021 WL 2269551, at *7 (collecting cases in
this and other circuits); see also Hopkins Hawley LLC v. Cuomo, No. 20 Civ. 10932
(PAC), --- F. Supp. 3d ----, ----, 2021 WL 465437, at *5 (S.D.N.Y. Feb. 9, 2021); Our
Wicked Lady LLC v. Cuomo, No. 21 Civ. 165 (DLC), 2021 WL 915033, at *3 (S.D.N.Y.
Mar. 9, 2021); Weisshaus v. Cuomo, 512 F. Supp. 3d 379, 396 (E.D.N.Y. 2021). The
Court agrees with the majority approach, and holds that Jacobson governs the analysis of
the Plaintiffs’ First Amendment claims here.

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The analysis in Hopkins, upon which other courts in this District have relied, is
instructive. That court emphasized that, whatever doubts Roman Catholic Diocese and
Agudath may raise about Jacobson’s continuing viability, those cases dealt only with a
free exercise claim, and did not explicitly overrule Jacobson. See Hopkins, --- F. Supp.
3d at ----, 2021 WL 465437, at *5; see also Rodriguez de Quijas v. Shearson/Am. Exp.,
Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other lines of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”). Further, the factual circumstances and
legal claims in Roman Catholic Diocese and Agudath are distinguishable from the instant
case. In those cases, religious entities sought a preliminary injunction regarding the
Governor’s capacity limits on in-person worship services. Here, by contrast, a
completely different public health restriction is challenged—one that, as noted below, is
content neutral—and the restriction does not implicate a free exercise claim. See
Hopkins, --- F. Supp. 3d at ----, 2021 WL 465437, at *5. And although decided over 100
years ago, Jacobson still “provides a workable framework that balances the delicate
considerations at play”—i.e., responding to the COVID-19 pandemic and maintaining
constitutional liberties. Id. Accordingly, because the facts more directly align with those
found in Jacobson, and neither the Supreme Court nor the Second Circuit has expressly
addressed Jacobson’s viability as to other First Amendment claims, the Court is bound to
apply Jacobson to Plaintiffs’ claims here.
2. Jacobson
Applying Jacobson, the Court concludes that EEO 103 is constitutional. As an
initial matter, there is no question, and Plaintiffs do not dispute, that EEO 103 was
enacted to protect the public health. Jacobson, 197 U.S. at 31; see also Geller v. de
Blasio (Geller I), No. 20 Civ. 3566 (DLC), --- F. Supp. 3d ----, ----, 2020 WL 2520711, at
*3–4 (S.D.N.Y. May 18, 2020); Geller v. Cuomo (Geller II), 476 F. Supp. 3d 1, 15
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(S.D.N.Y. 2020). As is well established, “courts—as well as much of the public—are in
agreement that COVID-19 is a highly infectious and potentially deadly disease.” Jones, -- F. Supp. 3d at ----, 2021 WL 2269551, at *8. And as the court noted in Geller I, the
City enacted EEO 103 “to slow the spread of a virus that ha[d at that time] hospitalized
and killed tens of thousands of New Yorkers and infected hundreds of thousands more—
in less than three months’ time.” Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at
*4.
From there, Plaintiffs must show that EEO 103 bears no real or substantial
relationship to the public health, or is a plain, palpable invasion of rights secured by
fundamental law. Jacobson, 197 U.S. at 31. Plaintiffs fail to meet that burden. Of
course, since early May 2020, the scientific understanding of how the SARS-CoV-2 virus
spreads has developed substantially. Still, at the time that Plaintiffs were arrested, the
“scientific and medical communities believe[d] that preventing in-person gatherings”—
including outdoor ones—was “crucial to any strategy of containment,” and courts in this
District—including this one—agreed with that assessment, and the declining rates of
infection following the enactment of EEO 103 validated that assessment at the time. See
Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *4; see also Geller II, 476 F. Supp.
3d at 15 (collecting cases in this and other circuits); Doc. 20. Moreover, and as further
discussed below, Plaintiffs maintained “ample alternative channels for the communication
of [their] information,” given that they were free to express their discontent online,
through media, or by protesting individually. See Geller II, 476 F. Supp. 3d at 16
(quoting Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *4). Thus, EEO 103 was
far from a plain, palpable invasion of rights secured by fundamental law. Accordingly,
the Court concludes—as other have before it—that EEO 103 survives review under
Jacobson. Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *5; see also Geller II,
476 F. Supp. 3d at 15–16.
3. Tiers of Scrutiny
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Even if Jacboson did not govern, Plaintiffs would still fail to state a claim under
the tiers-of-scrutiny framework. See Jones, --- F. Supp. 3d at ----, 2021 WL 2269551, at
*7 (analyzing claims under both Jacobson and tiers-of-scrutiny frameworks).
The First Amendment, as incorporated through the Fourteenth Amendment,
prohibits a state from “abridging the freedom of speech[,] . . . or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.” U.S.
Const. am. I; see also Johnson v. Perry, 859 F.3d 156, 171 (2d Cir. 2017). “[T]he level of
judicial scrutiny that must be applied to state actions inhibiting speech varies with the
nature of the forum in which the speech occurs, and the same analytical framework
applies whether the First Amendment right being exercised is speech . . . or other
expressive activity such as assembly.” Johnson, 859 F.3d at 171 (quotations omitted).
In a forum traditionally open to the public—such as a public street or park—“the
government’s authority to regulate speech or expressive conduct is typically ‘sharply
circumscribed.’” Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *3 (quoting
Hobbs v. County of Westchester, 397 F.3d 133, 148 (2d Cir. 2005)). “A prior restraint on
speech, i.e., any regulation that gives public officials the power to deny use of a forum in
advance of actual expression . . . bears a heavy presumption against its constitutional
validity.” Id. (quoting Hobbs, 397 F.3d at 148). A regulation restricting speech on the
basis of content is analyzed under strict scrutiny review. Hobbs, 397 F.3d at 148–49.
Under that standard, a content-based restriction may be upheld only if the restriction
serves a compelling government interest, is necessary to serve the asserted compelling
interest, is precisely tailored to serve that interest, and is the least restrictive means
readily available for that purpose. Id. at 149. But when a regulation is content neutral,
intermediate scrutiny applies. Id. Under that less stringent standard, the government may
implement content-neutral regulations to “limit the time, place, or manner of
expression—whether oral, written, or symbolized by conduct—even in a public forum, so
long as the restrictions are ‘reasonable,’ are ‘narrowly tailored to serve a significant
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governmental interest,’ and ‘leave open ample alternative channels for communication of
the information.’” Id. (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
293 (1984)); see also Marcavage v. City of New York, 689 F.3d 98, 104 (2d Cir. 2012);
Geller II, 476 F. Supp. 3d at 18. Under the intermediate scrutiny standard, “narrowly
tailored” does not require a regulation to be the “least restrictive or least intrusive
means.” Marcavage, 689 F.3d at 106 (quoting Ward v. Rock Against Racism, 491 U.S.
781, 798 (1989)); see also Hobbs, 397 F.3d at 149. Rather, the “regulation is narrowly
tailored ‘so long as [it] . . . promotes a substantial government interest that would be
achieved less effectively absent the regulation’ and is ‘not substantially broader than
necessary.’” Marcavage, 689 F.3d at 106 (quoting Ward, 491 U.S. at 799–800); see also
Hobbs, 397 F. 3d at 149.
“The Supreme Court has held that ‘the principal inquiry in determining content
neutrality . . . is whether the government has adopted a regulation of speech because of
[agreement or] disagreement with the message it conveys.’” Lederman v. N.Y.C. Dep’t of
Parks & Recreation, 731 F.3d 199, 202 (2d Cir. 2013) (quoting Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 642 (1994)). “A regulation is content neutral when it is ‘justified
without reference to the content of the regulated speech.’” Marcavage, 689 F.3d at 104
(quoting City of Renton v. Playtime Theatres, 475 U.S. 41, 48 (1986)). To that end, “a
regulation is content-neutral if it ‘serves purposes unrelated to the content of expression .
. . even if it has an incidental effect on some speakers or messages but not others.’”
Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *3 (quoting Hobbs, 397 F.3d at
150). “Thus, a regulation that targets only potentially harmful secondary effects of
speech, rather than the contents of the speech itself or the listener’s agreement or
disagreement with those contents, is deemed content-neutral.” Hobbs, 397 F.3d at 150.
Notably, “[a] restriction designed to serve a governmental need to protect the security of
the audience targets the speech’s secondary, rather than its primary, effect.’” Geller I, ---

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F. Supp. 3d at ----, 2020 WL 2520711, at *3 (quoting Hobbs, 397 F.3d at 150); see also
Lederman, 731 F.3d at 202.
The parties dispute whether strict scrutiny or immediate scrutiny applies.
Plaintiffs argue that strict scrutiny governs the Court’s analysis. Acknowledging that
EEO 103, on its face, “makes no reference to particular content,” Plaintiffs argue that
Defendants failed to enforce it in a content- and viewpoint-neutral manner. Doc. 44 at
14. According to Plaintiffs, the discriminatory enforcement of EEO 103 was based solely
on the content of the message of their protest—i.e., that they were critical of the manner
in which Defendants responded to the COVID-19 pandemic. As evidence of this alleged
discrimination, Plaintiffs note that Defendants did not enforce EEO 103 against other
individuals who were at the park—such as those standing around a nearby fountain or
walking their dogs—while the protest occurred. See Doc. 1 ¶ 53. Additionally, although
not alleged in the complaint, Plaintiffs assert that the discriminatory enforcement was
even more blatant given the approach taken by Defendants against “significantly larger
groups that participated in the various protests in the days following the tragic death of
George Floyd,” pointing to statements by the Mayor in response to the Black Lives
Matter (“BLM”) protests. Doc. 44 at 14–15. According to Plaintiffs, the only
explanation for the alleged difference in enforcement of EEO 103 against the individuals
protesting the murder of George Floyd and the Plaintiffs protesting Defendants’ response
to the pandemic, is that Defendants favored the former while abhorring the latter.
By contrast, Defendants contend that, if Jacobson does not govern, intermediate
scrutiny applies. Defendants emphasize that EEO 103 bars individuals from
congregating regardless of the content expressed at their gathering; thus, and as Plaintiffs
acknowledge, EEO 103 is content neutral on its face. And as to the application of EEO
103, Defendants emphasize that Plaintiffs do not allege that, on the day of the arrest, the
other park goers were engaged in prohibited non-essential gatherings. See Doc. 1 ¶ 53
(stating that “there were approximately ten unassociated members of the public nearby”
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at any given time (emphasis added)). As to Plaintiffs’ assertion regarding Defendants’
response to the BLM protests, Defendants argue that those protests bore no similarity to
Plaintiffs’ gathering, noting that the BLM protests involved “huge numbers of people”
and therefore, “from a law enforcement, public safety, or public health perspective,”
could not be handled “in the same manner in which” Plaintiffs’ gathering was addressed.
Doc. 47 at 6.
As an initial matter, the Court notes that there are two ways to challenge a
regulation on First Amendment grounds: facially and as applied. See Field Day, LLC v.
County of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006). So, to determine the appropriate
level of scrutiny, it is necessary to distinguish between a facial and an as-applied First
Amendment challenge. Geller II, 476 F. Supp. 3d at 13. A facial challenge “considers
only the text of the statute [or regulation] itself, not its application to the particular
circumstances of an individual.” Field Day, 463 F.3d at 174. By contrast, an as-applied
challenge “requires an analysis of the facts of a particular case to determine whether the
application of a statute [or regulation], even one constitutional on its face, deprived the
individual to whom it was applied of a protected right.” Id. Although in their complaint
Plaintiffs allege that EEO 103 is “unconstitutional facially and as applied,” Doc. 1 ¶ 80,
they concede that EEO 103 makes no reference to particular content, and do not
otherwise argue in their brief that the regulation facially violates the First Amendment.
Thus, the Court concludes that Plaintiffs have waived their facial challenge against EEO
103, Cole v. Blackwell Fuller Music Publ’g, LLC, No. 16 Civ. 7014 (VSB), 2018 WL
4680989, at *7 (S.D.N.Y. Sept. 28, 2018), and turns to determining the proper standard
for analyzing Plaintiffs’ as-applied challenge.3

Even if the facial challenge were not waived, the Court would conclude—as it and other courts in this
District have before—that intermediate scrutiny applies, and that EEO 103 would survive that review. See
Geller II, 476 F. Supp. 3d at 13–16; see also Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *4–5.
3

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The Court agrees that, if Jacobson does not control, intermediate scrutiny governs
its analysis. Regarding the other park goers present during Plaintiffs’ arrest, the Court
notes that there are no allegations that they were gathering together in violation of the ban
on non-essential gatherings—in fact, Plaintiffs allege that those park goers were
unassociated. Nothing about EEO 103 prevented people from individually going to City
Hall Park, so the order could not be enforced against those other park goers. Further,
even if the Court considered the unpleaded allegations regarding the BLM protests,
Plaintiffs fail to establish that Defendants favored the message of those protestors. See,
e.g., N.Y.C. Dep’t of Investigation, Investigation into NYPD Response to the George
Floyd Protests 3 (2020),
https://www1.nyc.gov/assets/doi/reports/pdf/2020/DOIRpt.NYPD%20Reponse.%20Geor
geFloyd%20Protests.12.18.2020.pdf (finding that the NYPD’s use of force and certain
crowd control tactics to respond to the BLM protests “produced excessive enforcement
that contributed to heightened tensions”).4 As this Court noted in Geller II, “[t]ens of
thousands engaged in street demonstrations in New York City on a near daily basis,” and
the Mayor’s statements in connection with the BLM protests “may reasonably be
construed as acquiescing to the inevitability of the protests, rather than actively
‘encouraging’ protests.” 476 F. Supp. 3d at 14.5 Moreover, as the Court also emphasized,
“public officials need[ed] to have the flexibility to determine how to enforce the gathering
restrictions, [and] to determine the circumstance under which arrest may or may not be
appropriate.” Id. at 14. Thus, and especially given the drastically different circumstances
surrounding Plaintiffs’ arrest and the BLM protests, the Court is unpersuaded that

“Agency determinations and administrative findings are public records of which a court may properly take
judicial notice.” Lia v. Saporito, 909 F. Supp. 2d 149, 161 (E.D.N.Y. 2012).
4

Although, in Geller II, the Court analyzed the plaintiff’s allegations regarding the BLM protests with
respect to her facial challenge of the State’s analogous executive order, that analysis is still instructive here.
Notably, the plaintiff argued that the executive order in that case “should be read as a content-based
regulation because of the City’s ‘practice and policy’ selectively suspending the First Amendment for some
protests while ‘encouraging’ the BLM protests.” Geller II, 476 F. Supp. 3d at 13.
5

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evidence regarding the latter supports a finding of content discrimination. See id. at 13.
Accordingly, because Plaintiffs have not shown that the facts in the instant case show a
content-based application of EEO 103, the Court must analyze Plaintiffs’ as-applied
challenge under intermediate scrutiny. Field Day, 463 F.3d at 174.
Defendants do not contest that stemming the spread of COVID-19 is
unquestionably a substantial government interest—nor could they. See Geller II, 476 F.
Supp. 3d at 15; cf. Roman Catholic Diocese, 141 S. Ct. at 67. Accordingly, the Court
turns to whether EEO 103 is narrowly tailored to serve a significant government interest
and leaves open ample alternative challenges for communication. Lederman, 731 F.3d at
202.
The Court concludes that EEO 103 satisfies this test. As the Geller I court noted
regarding the same restriction:
Given the severity of the public health crisis, the City has
taken measures that are reasonable and narrowly tailored in
temporarily prohibiting public gatherings. While a measure
restricting all public group activity may not likely be found
narrowly tailored in ordinary times, these times are
extraordinary. The City has demonstrated that the scientific
and medical communities believe that preventing in-person
gatherings is crucial to any strategy of containment.
Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *4; see also Geller II, 476 F. Supp.
3d at 15–16. Moreover, “[t]hose conclusions have only been bolstered” since as
conditions improved in the city and state “while other states that imposed less restrictive
measures [saw] an alarming surge in infection rates and deaths, showing that any
progress attained may be fragile.” Geller II, 476 F. Supp. 3d at 16; see also Geller I, --F. Supp. 3d at ----, 2020 WL 2520711, at *4 (noting that “the declining rates of infection
and death among New Yorkers is evidence not that the gathering ban is overly broad, but
rather that it is effective”). And although Plaintiffs allege that subsequent loosening of
the gathering restrictions constitute “a tacit admission of guilt,” Doc. 1 ¶ 41, the Court

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concludes instead that the subsequent orders, tied to improving infection rates across the
city and state, are evidence that EEO 103 was narrowly tailored, as the restriction was
temporary.
The Court also concludes that EEO 103 afforded ample alternative channels for
communication. As this and other courts have noted, the plaintiffs were “free to express
[their] discontent online, through media, and by protesting in public on [their] own.”
Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *4; see also Geller II, 476 F. Supp.
3d at 16. And while it is true that “a single person protesting in public is not a perfect
substitute for public group protests,” these alternatives were certainly acceptable given
their temporary nature. See Geller I, --- F. Supp. 3d at ----, 2020 WL 2520711, at *4; see
also Geller II, 476 F. Supp. 3d at 16.
Plaintiffs respond that, in Roman Catholic Diocese, the Supreme Court explicitly
rejected the notion that virtual events could satisfy the “ample alternative channels for
communication” portion of the intermediate scrutiny standard. Plaintiffs point to the
Supreme Court’s statement in that case that, “while those who are shut out [by gathering
limitations in houses of worship] may in some instances be able to watch services on
television, such remote viewing is not the same as personal attendance. Catholics who
watch a Mass at home cannot receive communion, and there are important religious
traditions in the Orthodox Jewish faith that require personal attendance.” Roman
Catholic Diocese, 141 S. Ct. at 68.
But again, Roman Catholic Diocese is inapposite, as it dealt with a free exercise
claim and was analyzed under the strict scrutiny standard. Moreover, the analysis
referenced by Plaintiffs dealt not with whether remote viewings constituted ample
alternative channels of communication; rather, that portion of the Supreme Court’s
analysis dealt with whether the denial of personal attendance for some religious traditions
could constitute irreparable harm, for the purposes of a preliminary injunction. See id. at
67–68. Further, by Plaintiffs’ logic, any statute or regulation barring in-person attendance
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under any circumstances—where there are virtual alternatives—would be
unconstitutional. Such a holding would drastically restrict what survives under the
“ample alternative channels for communication” portion of the intermediate scrutiny
standard for First Amendment claims, and neither the Supreme Court in Roman Catholic
Diocese—nor the Second Circuit in Agudath—so broadly held. Thus, Plaintiffs’ reliance
on Roman Catholic Diocese is unavailing, and the Court concludes that they fail to state a
claim for a violation of the First Amendment.
D. Void for Vagueness Claim
The void-for-vagueness doctrine requires that a penal statute define a criminal
offense (1) “with sufficient definiteness that ordinary people can understand what conduct
is prohibited” and (2) “in a manner that does not encourage arbitrary and discriminatory
enforcement.”6 United States v. Halloran, 821 F.3d 321, 337 (2d Cir. 2016) (quoting
United States v. Rosen, 716 F.3d 691, 699 (2d Cir. 2013)). The touchstone of the first
prong—the notice prong—“is whether the statute [or regulation], either standing alone or
as construed, made it reasonably clear at the relevant time that the defendant’s conduct
was criminal,” while “[t]he arbitrary enforcement prong requires that a statute give
‘minimal guidelines’ to law enforcement authorities.” Mannix v. Phillips, 619 F.3d 187,
197 (2d Cir. 2010) (first quoting United States v. Lanier, 520 U.S. 259, 267 (1997), and
then quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)). “Although a law must
provide explicit standards, it need not achieve meticulous specificity, which would come
at the cost of flexibility and reasonable breadth.” Id. (quotation omitted).
Plaintiffs argue that EEO 103 is void for vagueness because it does not define the
term “non-essential gatherings,” leaving members of the public with no guidance as to
what conduct the order proscribes. According to Plaintiffs, adding to the confusion is that
a reasonable person might think that a protest falls within the definition of “essential,”
Defendants do not contest that enforcement of EEO 103 has criminal implications, as the arrest was
effectuated under New York City Administrative Code § 3-108 for violating the Mayor’s executive order.
6

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given the ordinary meaning of the word and the importance of the right to protest and
assemble. And while acknowledging that EEO 103 references and incorporates
Executive Order 202.6, which defines an “essential business or entity providing essential
services or functions,” Doc. 1-6, Plaintiffs argue that individuals should not have “to
resort to [canons] of statutory interpretation or Googling the State’s website to determine
the scope of their constitutional rights,” Doc. 44 at 19. Further, Plaintiffs contend that the
lack of any definition for “non-essential gatherings” allowed Defendants to engage in a
standardless sweep with the instant arrests, while not arresting the other park goers that
day or individuals who attended the BLM protests.
Plaintiffs’ arguments are unpersuasive. By Plaintiffs’ own admission, the very
purpose of their gathering was to protest, among other pandemic-related responses, “the
portion of the [emergency executive orders] that prohibit . . . ‘non-essential’ gatherings.”7
See, e.g., Doc. 1 ¶¶ 43–46. And as Plaintiffs also allege, prior to arresting Plaintiffs,
Defendants played a recording for five minutes that explicitly warned Plaintiffs that they
were engaging in a “non-essential gathering,” and that they would be subject to arrest if
they failed to disperse. Id. ¶¶ 59–61.
In any event, EEO 103 satisfies both the notice and arbitrary enforcement prongs.
Regarding the notice prong, as Plaintiffs acknowledge, EEO 103 incorporates the
definition of “essential business or entity providing essential services or functions” in
Executive Order 202.6, which provides an extensive list of what constitutes “essential.”
Contrary to Plaintiffs’ assertion, a person of reasonable intelligence would know that
anything not identified as “essential” was “non-essential.” Accordingly, because protests
were not included within the meaning of “essential,” a reasonable person would
understand that the activity was “non-essential” and therefore proscribed by EEO 103.
Similarly, the Court concludes that these definitions provide law enforcement authorities
Plaintiffs’ position here also seemingly contradicts their earlier position that Defendants discriminated
against their protest because they were critical of the ban on non-essential gatherings.
7

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with the minimal guidelines necessary to satisfy the arbitrary enforcement prong. Thus,
Plaintiffs’ void-for-vagueness claims fail as a matter of law.
E. False Arrest
The Court concludes that Plaintiffs’ claims for false arrest are also meritless. “[A]
§ 1983 claim for false arrest derives from [the] Fourth Amendment right to remain free
from unreasonable seizure, which includes the right to remain free from arrest absent
probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). “To establish a
§ 1983 claim for false arrest, a plaintiff must show that ‘(1) the defendant intended to
confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff
did not consent to the confinement, and (4) the confinement was not otherwise
privileged.’” Johnson v. City of New York, No. 15 Civ. 6915 (ER), 2019 WL 294796, at
*4 (S.D.N.Y. Jan. 23, 2019) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994)).
However, “[p]robable cause is an absolute defense to a false arrest claim.”
Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (quoting Torraco v. Port Auth. of
N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)). “An officer has probable cause to arrest
when he or she has knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief
that the person to be arrested has committed . . . a crime.” Jaegly, 439 F.3d at 152
(quotation omitted). “A court ‘must consider [only] those facts available to the officer at
the time of the arrest and immediately before it.’” Stansbury, 721 F.3d at 89 (quoting
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)). “A court examines each piece of
evidence and considers its probative value, and then ‘look[s] to the totality of the
circumstances’ to evaluate whether there was probable cause to arrest and prosecute the
plaintiff.” Id. (quoting Panetta, 460 F.3d at 395).

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Again, Plaintiffs’ protest was prohibited under EEO 103, and the Police
Defendants arrested Plaintiffs for that violation. Accordingly, the Court concludes that
there was probable cause for Plaintiffs’ arrest, barring their claims for false arrest. Id.
F. Failure to Intervene
Plaintiffs also bring claims for failure to intervene, alleging that the Doe
Defendants failed to intercede during Plaintiffs’ arrest. “It is widely recognized that all
law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in
their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). “To succeed on a
failure-to-intervene claim in connection with a false arrest, the plaintiff is required to
show that (1) the officer had reason to know that a citizen was being unjustifiably
arrested, and (2) the officer had a realistic opportunity to intervene to prevent the arrest
from occurring.” Theodat v. City of New York, 818 F. App’x 79, 82 (2d Cir. 2020)
(summary order) (citing Anderson, 17 F.3d at 557). Because here there was no
underlying false arrest or other form of constitutional deprivation, Plaintiffs’ failure-tointervene claims must be dismissed.
G. Personal Involvement of the Mayor and Shea
Defendants assert that the Mayor and Shea should not be liable because they were
not personally involved in Plaintiffs’ arrest. It is well settled that a defendant in a § 1983
suit may not be held liable for an award of damages to a plaintiff absent “personal
involvement” in the conduct resulting in a constitutional violation. See Victory v. Pataki,
814 F.3d 47, 67 (2d Cir. 2016). But here, Plaintiffs have failed to allege an underlying
constitutional violation in which the Mayor and Shea can be alleged to be personally
involved.
G. Municipal Liability
Similarly, Plaintiffs’ claim against the City fails. A municipality can be held liable
under section 1983 only where it “‘subjects’ a person to a deprivation of rights or ‘causes’
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a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60
(2011) (quoting Monell, 436 U.S. at 691). Because there was no underlying deprivation
of rights here, Plaintiffs’ Monell claim fails.
Accordingly, the Court concludes that all of Plaintiffs’ claims must be dismissed.8
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion is granted. Because amendment

would be futile, Plaintiffs are denied leave to amend. See Attestor Value Master Fund v.
Republic of Argentina, 940 F.3d 825, 833 (2d Cir. 2019); 421-A Tenants Ass’n, Inc. v. 126
Ct. St. LLC, 760 F. App’x 44, 51 (2d Cir. 2019) (summary order). The Clerk of Court is
respectfully directed to terminate the motion, Doc. 38, and close the case.
It is SO ORDERED.
Dated:

September 8, 2021
New York, New York
EDGARDO RAMOS, U.S.D.J.

Because there was no constitutional violation, the Court need not determine whether qualified immunity
applies. See Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (noting that a court may exercise
pendent jurisdiction to determine whether a constitutional violation is alleged before it decides whether a
defendant is shielded by qualified immunity). Moreover, because the Court concludes that Plaintiffs’
claims must be dismissed, it need not analyze Defendants’ arguments pursuant to Rule 12(b)(7).
8

24