Black Lives Matter et al v. Town of Clarkstown et al
Filing
56
OPINION & ORDER re: 43 MOTION to Dismiss filed by The Town of Clarkstown, 40 MOTION to Dismiss filed by Michael Sullivan, 48 MOTION to Dismiss for Lack of Jurisdiction filed by Stephen Cole-Hatchard. For the foregoing reasons, Defendants' motions to dismiss Plaintiffs' Amended Complaint are GRANTED in part and DENIED in part. Defendants' motions to dismiss Plaintiff Black Lives Matter for lack of standing are GRANTED. D efendants' motions to dismiss remaining Plaintiffs' First Amendment claims are DENIED, and Defendants' motions to dismiss remaining Plaintiffs' Fourteenth Amendment claims are GRANTED. Defendant Sullivan's motion to dism iss is GRANTED for lack of personal involvement. Plaintiffs are granted leave to re-plead in conformity with this Opinion. The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 40, 43, and 48. Plaintiffs must fi le any amended pleading by December 14, 2018. If Plaintiffs fail to file an amended pleading by December 14, 2018, Plaintiffs' claims against Defendant Sullivan will be dismissed with prejudice and Plaintiffs Black Lives Matter and Def endant Sullivan will be removed from the case caption. Defendants are directed to file an answer to Plaintiffs' amended pleading, or the existing Amended Complaint if no amended pleading is filed by December 14, 2018, by January 14, 2019. Th e parties are directed to appear before this Court for an initial pre-trial conference on January 17, 2019 at 11:30 AM. The parties are further directed to confer, complete, and submit to the Court the attached case management plan before the initial pre-trial conference. This constitutes the Court's Opinion and Order. (Signed by Judge Nelson Stephen Roman on 11/14/2018) (mro)
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 1 of 23
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BLACK LIVES MATTER, JERL YNE CALIXTE
individually and as a member of BLACK LIVES
MATTER, VANES SA GREEN individually and as
a member of BLACK LIVES MATTER,
DOMINIQUE MCGREGOR individually and as a
member of BLACK LIVES MATTER, DR.
WELDON MCWILLIAMS IV individually and as
a member of BLACK LIVES MATTER,
EVERETT NEWTON individually and as a
member of BLACK LIVES MATTER,
Plaintiff,
-against-
No. 17-cv-6592 (NSR)
OPINION & ORDER
THE TOWN OF CLARKSTOWN, MICHAEL
SULLIVAN individually and in his official capacity as
CHIEF OF POLICE of THE TOWN OF
CLARKSTOWN, STEPHEN COLE-HATCHARD
individually and in his official capacity as a TOWN
OF CLARKSTOWN POLICE SERGEANT and
DIRECTOR-OF THE STRATEGIC INTELLIGENCE
UNIT, JOHN AND JANE DOE individually and in
their official capacities as MEMBERS OF THE
STRATEGIC INTELLIGENCE UNIT for THE
TOWN OF CLARKSTOWN POLICE,
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiffs Black Lives Matter, Jerlyne Calixte, Vanessa Green, Dominique McGregor,
Weldon McWilliams IV, and Everett Newton bring this action against Defendants Town of
Clarkstown, Michael Sullivan individually and in his official capacity, and Stephen Cole-Hatchard
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 2 of 23
individually and in his official capacity in the Amended Complaint ("Amended Complaint," ECF
No. 28).
Plaintiffs claim that they are entitled to relief pursuant to 42 U.S.C. § 1983 for
Defendants' violations of the First and the Fourteenth Amendments. 1 Defendants each move to
dismiss Plaintiffs' Amended Complaint under Federal Rules of Civil Procedure Rules 12(b)( 1)
and 12(b)(6) (ECFNos. 40, 43, & 48). The Court will address the motions together in this Opinion.
For the following reasons, Defendants' motions are GRANTED in part and DENIED in
part.
BACKGROUND
The following facts are derived from the Amended Complaint or matters of which the
Court may take judicial notice and are accepted as true for the purposes of this motion.
On or about April 17, 2013, County of Rockland and Defendant Clarkstown entered into
an inter-municipal agreement to form the Rockland County Intelligence Led Policing and
Prosecution Center ("SIU") to "monitor, collect and share data regarding criminal activity as
authorized by the Omnibus Crime Act, 28 CFR Part 23 et seq. and the Constitutions of the
United States and the State ofNew York." 2 (Compl. ~ 18.) Starting as early as January 2015,
with the knowledge and consent of Defendant Sullivan as the Chief of Police and Defendant
Cole-Hatchard as the SIU director, the SIU "engaged in unlawful surveillance of African
American groups, the Rockland County Sheriff, a Clarkstown Town Judge, and citizens of the
1
Paragraph 26 of Plaintiffs' Amended Complaint also alleges that Defendants violated the Fourth
Amendment, but Plaintiffs do not raise Fourth Amendment claims anywhere else in their Amended Complaint.
They also do not address the Fourth Amendment in their opposition. "At the motion to dismiss stage, where review
is limited to the pleadings, a plaintiff abandons a claim by failing to address the defendant's arguments in support of
dismissing that claim." Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, 08-CV-442, 2014 WL
4723299, at *7 (S.D.N.Y. 2014). Accordingly, the Court will not address any Fourth Amendment claims, assuming
Plaintiffs intended to assert such claims, because they are abandoned.
2
The Omnibus Crime Act requires that there be reasonable suspicion that individuals or groups are
involved in criminal conduct before engaging in surveillance and collection of electronic data concerning political,
religious, or social views of those individuals or groups. The Act also requires that the information that is the subject
of the surveillance to be relevant to the suspected criminal conduct. 28 C.F.R. § 23.20.
2
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County of Rockland, solely based upon these individuals' race, social and/or political positions."
(Id.
,r,r 21, 23, & 26.)
One of the groups subjected to surveillance was the Rockland County
branch of Black Lives Matter.
In connection with this surveillance, as early as January 1, 2015, SIU and the Rockland
County District Attorney's Office issued monthly reports on the number of electronic
investigations established, the groups targeted for surveillance, and the number of alerts received
and reviewed. (Id.
,r,r 27, 29.)
According to the November 2015 Report, the "Black Lives Matter
Movement" was one of the groups subjected to electronic surveillance which included, but was
not limited to, searching public social media information and categories such as gangs, violence,
terrorism, heroine initiative, and police riots. 3 (Id.
,r 30.) The November 2015 Repoti also
indicated that SIU conducted electronic surveillance on two Black Lives Matter Movement
members and found no criminal misconduct or threat of criminal conduct from Black Lives
Matter or those two individuals. (Id.
,r 31.)
The report does not "reflect any justifiable basis to
conduct such surveillance as mandated by 28 CFR Part 23.20(a) and (b)." (Id.) The SIU's
December 2015 report is similar to the November 2015 report except that it indicates that SIU
used electronic surveillance on six members of the Black Lives Matter Movement. (Id.
,r 33.)
Once again, no criminal misconduct was found on the part of Plaintiff Black Lives Matter or any
of the six members, and there was no legitimate basis for the surveillance. (Id.) Within fortyfive minutes of receiving the December 2015 report, the Rockland County District Attorney's
3
Although the November and December surveillance reports do not specify whether the surveillance was
specifically of the Rockland County Black Lives Matter chapter, the Court is required to draw all reasonable
inferences in Plaintiffs' favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, for the purposes of
Defendants' motions to dismiss, the Court infers that the "Black Lives Matter" in the surveillance reports, which
appear to be issued from the Rockland County District Attorney's office, is the Rockland County chapter of Black
Lives Matter.
3
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Office emailed Defendant Cole-Hatchard, "I mentioned before, you really should not have Black
Lives Matter listed as a target for surveillance." (Id. ,i 35.)
On or about July 11, 2016, all of the named Plaintiffs participated in a peaceful rally at
which Plaintiff Mc Williams spoke. (Id ,i 36.) During this rally, all Plaintiffs observed snipers
from the Clarkstown police depaiiment on a nearby roof. (Id. ,i,i 36 - 38.) Plaintiff Green saw a
red sniper rifle dot appear on Plaintiff Mc Williams during the speech. (Id. ,i 36.) This incident
"resulted in the chilling of [Plaintiffs'] first amendment exercise of free speech." (Id ,i 38.)
Following this incident, at least one Clarkstown employee identified the Clarkstown
police depaiiment's actions as illegal and stated that Plaintiffs were the victims of this illegal
conduct. Town of Clarkstown Supervisor George Hoehmann wrote an August 26, 2016 letter to
the United States Attorney's Office "[w]ith the unanimous support of the [Clarkstown] Board ...
to report evidence of what appears to be illegal profiling by the Clarkstown Police
Department." (Id ,i 39.) Mr. Hoehmann's letter goes on: "The foregoing evidence ... reflects
that despite being admonished to the contrary, Sgt. Cole-Hatchard and the Clarkstown SIU were
conducting illegal electronic surveillance on members of the Black Lives Matter Movement
without any justifiable legal basis in violation of Federal Law." (Id)
According to Plaintiffs, SIU's illegal surveillance of Plaintiffs was part of Defendant
Clarkstown's custom and practice of conducting illegal surveillance of groups and individuals
based on race and political views in order to chill First Amendment speech.
Around July 2015, SIU learned of the existence of "WE THE PEOPLE," an African
American community group in Rockland County with no criminal records or history of violence,
and that the group planned to sponsor a play called "A CLEAN SHOOT?" (Id. ,i 41.)
Advertisements for the play featured an image of a police car with a "white subject pointing a
4
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handgun out of the vehicle window." (Id.) SIU conducted an electronic investigation on WE
THE PEOPLE in early August 2015 and generated an intelligence report on the group and its
members even though there was no evidence that any of the members of WE THE PEOPLE
were engaged in or were reasonably suspected to engage in criminal activity. (Id. 44-46.) WE
THE PEOPLE learned of the intelligence report on August 31, 2016, when it was contacted by
NBC on Facebook. (Id.
,r 49.)
"SIU racial [sic] profiled and illegal [sic] surveilled 'WE THE
PEOPLE' ... because 'WE THE PEOPLE' exercised its First Amendment right to express their
views through sponsoring the play." (Id.
,r 50.)
The Clarkstown Supervisor also fell victim to Defendant Clarkstown's custom of illegal
surveillance. Mr. Hoehmann, Clarkstown Supervisor, ran in the November 2015 election on a
platform for fiscal reform which would presumably have impacted the Clarkstown police budget.
(Id.
,r 52.)
After Mr. Hoehmann won the election, SIU began conducting surveillance on his
social media to gather information to use to oppose Mr. Hoehmann's proposed review and
reform of the police department and to identify those who supported Mr. Hoehmann's reforms.
(Id.
,r,r 53
54.) As part of this surveillance, the SIU gathered social media posts from
approximately twenty Clarkstown residents who were in favor of fiscal reform of the police
department, and none of these individuals were suspected of criminal activity. (Id.
,r 55.)
In its
answer to Defendant Sullivan's suit against Defendant Clarkstown, a separate case from this
action, Defendant Clarkstown admitted that SIU surveillance and assets were illegally used to
attack political enemies, including Mr. Hoehmann. (Id. Ex. C.)
In November 2015, Rockland County Sheriff Lou Falco, who Defendants Sullivan and
Cole-Hatchard opposed, ran for reelection. (Id.
,r 56.) On September 9, 2015, Defendant Cole-
Hatchard forwarded to Defendant Sullivan a political attack strategy against Mr. Falco. (Id.
5
,r
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57.) Defendant Cole-Hatchard prepared the political attack strategy while he was on duty at the
SIU. (Id.)
Defendant Clarkstown's custom of illegal surveillance was also used to target a judge.
Clarkstown Judge Howard Gerber ran for reelection in November 2015 apparently while under
investigation for potential judicial misconduct. (Id.
,r,r 59- 60.)
While working for Defendant
Clarkstown, Defendant Sullivan and the SIU prepared a strategy to defeat Judge Gerber. (Id.
,r,r
60 - 61.) Judge Gerber was exonerated of any wrongdoing and did not represent a public safety
threat, but Defendants, using SIU resources, persisted in pursuing an attack campaign against
Judge Gerber for political purposes. (Id.
,r 63.)
Based on these allegations, Plaintiffs claim that they are entitled to relief under § 1983
because Defendants violated Plaintiffs' First Amendment freedoms of speech and assembly and
their Fourteenth Amendment due process rights. For relief, Plaintiffs request that the Court issue
an injunction to prohibit Defendants from targeting Plaintiffs for surveillance by race; require
Defendant Clarkstown to adopt and follow the Handschu Guidelines4; award compensatory and
punitive damages; and award costs and expenses, including attorneys' fees.
STANDARD ON A MOTION TO DISMISS
When a court lacks the statutory or constitutional power to adjudicate a case, it should
dismiss the case for lack of subject matter jurisdiction under Rule 12(b)(1 ). 5 Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011). "A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists." Morrison v. Nat'!
4
The Handschu Guidelines govern the NYPD investigation of political activities. See Handschu v. Special
Serv. Div., 605 F. Supp. 1384 (S.D.N.Y. 1985) (containing full text of the original Handschu Guidelines). After the
terrorist attacks on September 11, 2001, the Handschu Guidelines were modified to include the FBI Guidelines for
investigations. Handschu v. Police Dep't of the City ofN.Y., 219 F. Supp. 3d 388,390 (S.D.N.Y. 2016).
5
Lack of standing may be grounds for dismissal under Rule 12(b)(l). See Buonasera v. Honest Co., 208 F.
Supp. 3d 555, 560 (S.D.N.Y. 2016).
6
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Aust!. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000)). In assessing whether there is subject matter jurisdiction, the Court must
accept as true all material facts alleged in the complaint, Conyers v. Rossides, 558 F.3d 137, 143
(2d Cir. 2009), but "the court may resolve [any] disputed jurisdictional fact issues by referring to
evidence outside of the pleadings." Zappia Middle E. Const. Co. v. Emirate ofAbu Dhabi, 215
F.3d 247,253 (2d Cir. 2000).
To survive a Rule 12(b)(6) motion, a complaint must plead "enough facts to state a claim
to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a court "to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). "While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations." Id. at 679. A complaint must supply "factual allegations
sufficient 'to raise a right to relief above the speculative level' " to move beyond a motion to
dismiss. ATS! Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). In deciding a motion to dismiss, a court must take all material factual
allegations as true and draw reasonable inferences in the non-moving party's favor. Iqbal, 556
U.S. at 678. However, the court is" 'not bound to accept as true a legal conclusion couched as a
factual allegation,' " or to credit "mere conclusory statements" or "[t]hreadbare recitals of the
elements of a cause of action." Id. (quoting Twombly, 550 U.S. at 555).
Further, a court is generally confined to the facts alleged in the complaint for the purposes
of considering a motion to dismiss pursuant to 12(b)(6). Cartee Indus. v. Sum Holding L.P., 949
F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the complaint,
statements or documents incorporated into the complaint by reference, matters of which judicial
7
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notice may be taken, public records, and documents that the plaintiff either possessed or knew
about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d
Cir. 2013).
DISCUSSION
I.
Standing
Before turning to Plaintiffs' claims, the Court must first detennine whether Plaintiffs
have standing. See Buonasera v. Honest Co., 208 F. Supp. 3d 555, 560 (S.D.N.Y. 2016) (noting
that comis should consider jurisdictional issues such as standing first in a motion to dismiss
analysis). Article III requires federal courts to adjudicate actual cases and controversies.
U.S. Const. art. III, § 2, cl. 1. To ensure that there is a case or controversy, the Supreme Court
has held that pmiies before federal comis must have standing to bring their claims. Lujan v.
Defenders of Wildlife, 504 U.S. 555,560 (1992). A plaintiff has standing if she has suffered "(1)
an injury that is (2) 'fairly traceable to a defendant's allegedly unlawful conduct' and that is (3)
'likely to be redressed by the requested relief.'" Id. 560-61 (quoting Allen v. Wright, 468 U.S.
737, 751 (1984)). For the purposes of standing, an injury must be an injury in fact, meaning "an
invasion of a legally protected interest which is (a) concrete and pmiicularized ... and (b) actual
or imminent, not 'conjectural' or 'hypothetical.'" Id. at 560 (citations and quotation marks
omitted).
Where, as here, standing is challenged at the pleadings stage, a court must "accept as true
all material allegations of the complaint, and must construe the complaint in favor of the
complaining party." United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998) (internal quotation
marks omitted). "To survive the motion to dismiss, the pleadings must only 'allege facts that
affirmatively and plausibly suggest that [Plaintiffs have] standing to sue.' " Boelter v. Hearst
8
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Commc'n, Inc., 192 F. Supp. 3d 427,437 (S.D.N.Y. 2016) (quotingAmidax Trading Grp. v.
S. W.IF.T., 671 F.3d 140, 145 (2d Cir. 2011)). A plaintiffs "standing allegations need not be
crafted with precise detail." Baur v. Veneman, 352 F.3d 625, 631 (2d Cir. 2003).
A.
Standing for Plaintiff Black Lives Matter
Defendants argue that Plaintiff Black Lives Matter as an organization lacks standing
because it fails to allege sufficient facts to indicate that it is suing on its own behalf. (Def.
Sullivan's Mem. of Law in Supp. of Mot. to Dismiss ("Def. Sullivan's Mot.") p. 18, ECF No.
40); (Def. Cole-Hatchard's Mem. of Law in Supp. of Mot. to Dismiss ("Def. Cole-Hatchard's
Mot.") p. 3, ECF No. 48); (Def. Clarkstown's Mem. of Law in Supp. of Mot. to Dismiss ("Def.
Clarkstown's Mot.") pp. 13 - 14, ECF No. 43.) Organizations do not have standing to assert the
rights of their members in§ 1983 cases because "the rights[§ 1983] secures to [are] personal to
those purpmiedly injured." League of Women Voters of Nassau Cty. v. Nassau Cty. Bd. of
Supervisors, 737 F.2d 155, 160 (2d Cir.1984); see Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir
2011 ). However, organizations may bring § 1983 claims on their own behalf so long as they can
satisfy the three requirements for Article III standing. Nnebe, 644 F.3d at 156. To have standing,
an organization must establish that there is (1) an imminent injury "to itself as an organization
(rather than to its members) that is 'distinct and palpable' "; (2) the injury is fairly traceable to
the defendant's actions; and (3) the court can redress the injury. Centro de la Comunidad
Hispana de Locust Valley v. Town of Oyster Bay, 868 F. 3d 104, 109 (2d Cir. 2017). In Centro
de la Comunidad Hispana de Locust Valley, the court held that the plaintiff, an organization that
worked to advance the rights of laborers, had standing to bring a § 1983 First Amendment action.
Id. at 110 - 11. The organization sufficiently alleged that enforcement of a law regulating road-
9
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side employment solicitation caused it imminent concrete injuries because enforcement
adversely impacted the organization's ability to organize laborers. Id.
Unlike the organization in Centro de la Comunidad Hispana de Locust Valley, Plaintiffs
do not allege an injury specifically to Plaintiff Black Lives Matter as an organization in their
Amended Complaint. Plaintiffs do state an injury specific to Plaintiff Black Lives Matter in their
opposition to Defendants' motions to dismiss. (Pls.' Opp'n to Defs' Mots.to Dismiss ("Pls.
Opp'n") pp. 9- 10, ECF No. 52.) According to Plaintiffs' opposition, the surveillance made it
difficult for Black Lives Matter to attract new members. (Id.) However, "[n]ew claims not
specifically asserted in the complaint may not be considered by courts when deciding
a motion to dismiss.'' Berenstein v. City ofNew York, No. 06-CV-895, 2007 WL 1573910, at *10
(S.D.N.Y. May 24, 2007); see e.g., Guo v. IBM 401(k) Plus Plan, 95 F. Supp. 3d 512,527
(S.D.N.Y. 2015); Zickv. Waterfront Com'n of NY Harbor, No. 11-CV-5093(CM), 2012 WL
4785703, at *3 (S.D.N.Y. Oct. 4, 2012); Universal Trading & Inv. Co., Inc. v. Tymoshenko, No.
l 1-CV-7877(PAC), 2012 WL 6186471, at *1 (S.D.N.Y. Dec. 12, 2012). Thus, the Court cannot
consider the new allegations of specific injury to Plaintiff Black Lives Matter offered in
Plaintiffs' opposition. Based on the allegations asserted in the Amended Complaint, Plaintiff
Black Lives Matter lacks standing.
B.
Standing for Individual Plaintiffs
Plaintiffs state a facially plausible claim that they were personally injured by Defendants'
actions. Defendants assert that individual Plaintiffs lack standing because, similar to the
plaintiffs in Laird v. Tatum, Plaintiffs do not allege that they personally were the subjects of
surveillance. (Def. Sullivan's Mot. p. 16); (Def. Clarkstown's Mot. pp. 8 - 11.) Defendants
miss, however, that Black Lives Matter only had six members at the time of the relevant conduct
10
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and the Amended Complaint alleges that the five individual Plaintiffs were five of those six
members. (Compl.
,r,r 8 -
13.) The Amended Complaint also alleges that Defendants conducted
illegal surveillance on the six members of Black Lives Matter. (Id.
,r 33.)
The Court is required
to draw reasonable inferences in Plaintiffs' favor, and it is reasonable to infer that the individual
Plaintiffs, as five of the six members of Black Lives Matter, were the subjects of this
surveillance. See Iqbal, 556 U.S. at 678. In addition to the surveillance, the Amended Complaint
also sufficiently alleges that all of the individual Plaintiffs participated in the July rally where
"[a]ll named Plaintiffs were alerted to and saw the sniper." (Compl.
,r,r 36 -
38.) The personal
injury alleged exceeds that of the plaintiffs in Laird, who merely "disagree[d] with the judgments
made by the Executive Branch with respect to the type and amount of information the Army
needs." See Lairdv. Tatum, 408 U.S. 1, 13 (1972). Accordingly, Plaintiffs' Amended
Complaint plausibly alleges that Plaintiffs were personally injured by Defendants' actions.
Next, Defendants argue that Plaintiffs lack standing because they do not sufficiently
allege that Defendants "chilled" their First Amendment Rights and therefore do not allege that
they suffered any actual injury. 6 The Court disagrees. Plaintiffs' Amended Complaint plausibly
establishes each prong required for standing: (1) actual and concrete injury; (2) that is fairly
traceable to Defendants' conduct; and (3) that is likely to be redressed by the requested relief.
Plaintiffs allege a concrete and actual injury: the chilling of their First Amendment
freedoms of speech and association caused by Defendants' surveillance and Defendants' activity
at the July rally which included Defendants allegedly aiming a red laser from a sniper rifle at
Plaintiff Mc Williams. (See Compl.
,r 36.)
"A plaintiff must allege something more than an
6
Specifically, Defendant Sullivan argues that Plaintiffs do not have standing to bring a free speech claim.
(Def. Sullivan's Mot. p. 11) Defendants Cole-Hatchard and Clarkstown argue that Plaintiffs completely lack
standing. (Def. Cole-Hatchard's Mot. p. 3) (Def. Clarkstown's Mot. pp. 8 - 14.) The Court will analyze whether
Plaintiffs have standing to bring the case as a whole.
11
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abstract, subjective fear that his rights are chilled in order to establish a case or
controversy[,] ... [bJut a real and imminent fear of such chilling is enough." Nat 'l Org. for
Marriage, Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir. 2013) (citation omitted); see also Laird v.
Tatum, 408 U.S. 1, 13 (1972); Kounitz v. Slaatten, 901 F. Supp. 650,654 (S.D.N.Y.) (holding
that the plaintiff failed to allege an injury in fact because he asserted "in the most general
fashion" that he had been "chilled in the exercise of his First Amendment rights"). Plaintiffs do
not allege merely a subjective fear, but a present harm. "The essence of a claim of chill ... is an
assertion that one has elected to refrain from speaking, rather than risk prosecution," Nitke v.
Ashcroft, 253 F. Supp. 2d 587, 597 (S.D.N.Y. 2003), and that is exactly what Plaintiffs allege in
their Amended Complaint. The sight of what is purportedly the red dot of a sniper rifle on a
member of one's organization is undeniably chilling on both free speech and free association.
When confronted with this threat of violence from the government at a peaceful Black Lives
Matter rally, on top of the illegal surveillance targeted against the group and its members, any
reasonable person would think twice before continuing to participate in Black Lives Matter.
"Black Lives Matter have not held any events, protests or rallies since being confronted with
snipers on nearby rooftops during a rally and learning of the illegal surveillance." (Compl.
,r 66.)
At the motion to dismiss phase, the Court must accept Plaintiffs' allegations as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The fact that, as the Amended Complaint alleges, Plaintiffs felt
so intimidated by Defendants' activities that they did not have any events after the July rally is
sufficient to plausibly establish actual chill and an injury for the purposes of standing.
The second and third elements of standing are not disputed by Defendants, beyond that
the Defendants disagree Plaintiffs suffered actual injury. Based on the face of Plaintiffs'
Amended Complaint, the chill on Plaintiffs' First Amendment rights is fairly traceable to
12
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Defendants' actions and their injury would be redressed by a favorable verdict enjoining
Defendants from targeting Plaintiffs for surveillance based on their race. Accordingly, the
individual Plaintiffs have standing to proceed.
II.
Monell Claims
A municipality may be sued under 42 U.S.C § 1983 only "when execution of [the]
government's policy or custom ... inflicts the injury." Monell v. Dep 't of Soc. Serv 's., 436 U.S.
658, 694 (1978). Therefore, any § 1983 claim against a municipal entity must "show that the
challenged acts were performed pursuant to a municipal policy or custom." Patterson v. Cty. of
Oneida, 375 F.3d 206, 226 (2d Cir. 2004). Here, Plaintiffs assert First and Fourteenth
Amendments claims against Defendant Clarkstown based on Defendant Clarkstown's custom,
policy, and practice "of conducting illegal surveillance of groups and individuals based on race,
social, and/or political views to chill First Amendment speech." (Compl. 141.) Plaintiffs'
Amended Complaint also includes several detailed examples of Defendants conducting
surveillance on other individuals and groups based on race or for political reasons. Based on the
face of Plaintiffs' Amended Complaint, the Court determines that Plaintiffs have asse1ied a
facially plausible Monell claim.
III.
First Amendment
Plaintiffs' Amended Complaint in effect alleges that Defendants retaliated against them
in violation of their First Amendment freedoms of speech and association for their participation
in Black Lives Matter.
A First Amendment retaliation claim requires a showing that "(1) [plaintiff] has a right
protected by the First Amendment; (2) the defendant's actions were motivated or substantially
caused by his exercise of that right; and (3) the defendant's actions caused him some injury."
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Dorsett v. Cty. ofNassau, 732 F.3d 157, 160 (2d Cir. 2013). "Speech on matters of public
concern" "falls within the core of First Amendment protection." Engquist v Oregon Dep 't of
Agr., 553 U.S. 591,600 (2008); see Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). Matters of
public concern include subjects that are of general interest and concern to the public. City ofSan
Diego v. Roe, 543 U.S. 525 - 26 (2004).
Plaintiffs participated in Black Lives Matter to "call for justice" and racial equality and
based upon their belief "that the killing of unarmed people of color by law enforcement must
stop." (Compl. ,r 8.) This pursuit falls squarely within matters of public concern, particularly at a
time when awareness of violence between law enforcement and unarmed people of color is
rapidly increasing. Free speech and free association are "at the foundation of a free society."
State Emp. Bargaining Agent Coalition v. Rowland, 718 F.3d 126, 132 (2d Cir. 2013) (quoting
Shelton v. Tucker, 364 U.S. 479,485 - 86 (1960)). The First Amendment protects this
foundation, and it is an integral responsibility of the Court to ensure that the First Amendment is
upheld and that free speech and association remain protected. Considering this solemn
responsibility and applying the appropriate law, the Court finds that Plaintiffs plausibly claim
Defendants violated their First Amendment rights.
First, there is no doubt that Plaintiffs have a right to engage in political speech on social
media. See Silberberg v. Bd. of Elections ofNY, 272 F. Supp. 3d 454, 459 (S.D.N.Y. 2017)
("Posing a photograph of one's marked ballot to social media is indisputably a potent form of
political speech, presumptively entitled to protection under the First Amendment."); see also
Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 564
65
(S.D.N.Y. 2018) (holding that the plaintiffs had a First Amendment right to engage in political
speech on social media). Similarly, Plaintiffs unquestionably have the right to join and
14
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participate in political and advocacy organizations like Black Lives Matter. Eu v. San Francisco
Cty. Democratic Cent. Comm., 489 U.S. 214,224 (1989) (holding that "political organizations
enjoy freedom of association protected by the First and Fourteenth Amendments"); see generally
Boy Scouts ofAm. v. Dale, 530 U.S. 640 (2000).
Second, Plaintiffs have stated a facially plausible claim that Defendants' actions were
motivated by Plaintiffs' protected activity. Based on the face of Plaintiffs' Amended Complaint,
Plaintiffs were subjected to electronic surveillance and to snipers at the July rally because of
their participation in Black Lives Matter. (Compl.
~~
2- 3, 31, & 33.) Comis have held that
similar allegations were sufficient to plausibly allege that the defendant's actions were motivated
or substantially caused by the plaintiffs exercise of her First Amendment rights. Marom v. City
ofNew York, No, 15-CV2017(PKC), 2016 WL 916424, at *11 (S.D.N.Y. Mar. 7, 2016) (holding
that the plaintiffs stated a plausible First Amendment retaliation claim by alleging that they were
an-ested due to their participation on Occupy Wall Street); Davis v. City of New York, No. OOCV-4309(SAS), 2000 WL 1877045, at *6 (S.D.N.Y. Dec. 27, 2000) (denying the defendants'
motion to dismiss because the plaintiff plausibly alleged that the defendants retaliated against
him for his exercise of his First Amendment right to paiiicipate in the political process).
Finally, as discussed in the Court's standing analysis, Plaintiffs' Amended Complaint
plausibly alleges that Defendants' actions chilled their First Amendment rights. See supra Part
LB. Accordingly, Plaintiffs plead sufficient facts to support a plausible First Amendment claim.
IV.
Fourteenth Amendment
Plaintiffs claim that Defendants "encroach[ed] upon the liberties of the Plaintiffs" and
deprived them of their rights under the Due Process Clause of the Fourteenth Amendment.
(Compl.
~~
40, 69.) However, Plaintiffs' due process claim does not include facts distinct from
15
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its First Amendment claim. "[W]here another provision of the Constitution 'provides an explicit
textual source of constitutional protection,' a court must assess a plaintiffs claims under that
explicit provision and 'not the more generalized notion of substantive due process.' " Conn v.
Gabbert, 526 U.S. 286, 293 (1999) (internal quotation marks omitted); see Kia P. v. McIntyre,
235 F.3d 749, 757 - 58 (2d Cir. 2000) (analyzing the plaintiffs detention claim under the Fourth
Amendment rather than under Fourteenth Amendment due process).
The Due Process Clause cannot be used to attain an extra bite at the apple based on a
claim that is specifically protected under another part of the Constitution. See Conn, 526 U.S. at
293. According to Plaintiffs' Amended Complaint, "Defendants encroached upon Plaintiffs'
fundamental right to free speech in violation of the Due Process Clause." (Compl.
,r 11.)
Plaintiffs themselves indicate that their due process claim is a restatement of their First
Amendment claim. Moreover, Plaintiffs' Amended Complaint contains no other facts to suggest
that Plaintiffs have any due process claim separate from their First Amendment claims. Thus,
based on the face of Plaintiffs' Amended Complaint, the First Amendment provides a source of
protection for Plaintiffs' claims and the Court must assess those claims under the First
Amendment.
V.
Qualified Immunity
Defendants Sullivan and Cole-Hatchard each assert that they are entitled to qualified
immunity. "The doctrine of qualified immunity gives officials 'breathing room to make
reasonable but mistaken judgments about open legal questions.' "Ziglar v. Abbasi, 137 S. Ct.
1843, 1866 (2017) (quotingAshcroftv. al-Kidd, 563 U.S. 731,743 (2011)). Consequently,
"qualified immunity shields ... officials from suit 'unless [1] the official violated a statutory or
constitutional right that [2] was clearly established at the time of the challenged conduct.' "
16
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Terebesi v. Torreso, 764 F.3d 217,230 (2d Cir. 2014) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). "A right is clearly established when its contours ... are sufficiently clear that,
at the time of the challenged conduct, every reasonable official would have understood that what
he is doing violates that right." Crawford v. Cuomo, No. 16-CV-3466, 2018 WL 542578, at *l
(2d Cir. Jan 25, 2018) (quotations and citations omitted).
Typically, the defense of qualified immunity will "rest on an evidentiary showing of what
the defendant did and why." Lamzot v. Phillips, No. 04-CV-6719 (LAK), 2006 WL 686578, at
*8 (S.D.N.Y. Mar. 16, 2006) (citing Curry v. City ofSyracuse, 316 F.3d 324,334 (2d Cir.
2003)). However, at the motion to dismiss stage, defendants "must accept [a] more stringent
standard." McKenna v. Wright, 386 F.3d 432,436 (2d Cir. 2004). The "facts supporting the
defense [must] appear on the face of the complaint," id. (citing Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67 (2d Cir. 1998)), and the motion must only be granted if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to
relief." Id. (quoting Citibank, NA. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992)).
First, as discussed above, Plaintiffs plausibly claim that Defendants violated their First
Amendment right to be free from retaliatory surveillance and intimidation at the July rally for
their participation in Black Lives Matter. Plaintiffs' Amended Complaint plausibly alleges that
Defendants intentionally subjected them to surveillance based on their participation in Black
Lives Matter in violation of their First Amendment rights. Second, it was clearly established at
the time of Defendants' actions in 2015 to 2016 that the government cannot retaliate against
individuals for exercising First Amendment free speech and association rights. See Rankin v.
McPherson, 483 U.S. 378, 383
84 (1987); Jackler v. Byrne, 658 F.3d 225,243 (2d Cir. 2011)
("Thus, in January 2006 ... it had been clearly established that the First Amendment protected a
17
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 18 of 23
citizen's decision both as to what to say and what not to say .... "); Tomaino v. Williams, 05-CV3916(NGG)(WDW), 2007 WL 2743602, at *4 (S.D.N.Y. Sept. 18, 2007) (holding that the
defendant did not have qualified immunity because the plaintiff plausibly alleged that the
defendant violated the clearly established law that the government cannot retaliate against
individuals for exercising free speech); Wahadv. F.B.I, 813 F. Supp. 224, 229-30 (S.D.N.Y.
1993) (denying a defendant qualified immunity and holding that it was not reasonable for a
defendant to believe that interfering with the speech and association of "groups such as the Black
Panther Party" did not violate the Constitution). No reasonable official would have thought
engaging in surveillance and intimidation solely based on Plaintiffs' membership in Black Lives
Matter was lawful. The Omnibus Crime Act expressly prohibits the electronic surveillance of
individuals or groups without reasonable suspicion that those individuals are involved in criminal
conduct, 28 C.F.R. § 23.20, and the substantial weight of case law indicates that the government
cannot deprive individuals of their freedoms of association or speech. See Rankin, 483 U.S. at
383 - 84; Jackler, 658 F.3d at 243; Tomaino, 2007 WL 2743602, at *4; Wahad, 813 F. Supp. at
229
30. There are no also no facts supporting qualified immunity on the face of the Amended
Complaint. Accordingly, Defendants Sullivan's and Cole-Hatchard's requests for qualified
· immunity is denied.
VI.
Personal Involvement of Defendant Sullivan
Defendant Sullivan states that he was not personally involved in the alleged constitutional
violations because he was not directly involved in SIU' s data collection activities. (Def.
Sullivan's Mot. pp. 23
24.) To successfully allege§ 1983 liability, a plaintiff must
demonstrate "personal involvement" and cannot merely rely upon an individual's position of
authority. Ayers v. Coughlin, 780 F.2d 205,210 (2d Cir.1985); Johnson v. Glick, 481 F.2d 1028,
18
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 19 of 23
1034 (2d Cir. 1973)). "The personal involvement of a supervisory defendant may be shown by
evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal, failed to remedy
the wrong, (3) the defendant created a policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of [individuals] by failing to act on information
indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995).
Plaintiffs allege that Defendant Sullivan consented to, and directed, the SIU' s illegal
actions toward Plaintiffs and that Defendant Sullivan received at least one of the surveillance
reports on Plaintiffs. (Compl.
,r,r 26, 32.)
These allegations, without more, are insufficient to
establish that Defendant Sullivan was personally involved with the SIU' s illegal actions against
Plaintiffs. See Patrolmen 's Benevolent Ass'n of City ofN Y v. City ofNew York, 97-CV7138(SJ), 2000 WL 307377, at *4 (E.D.N.Y. Mar. 26, 2000) (holding that conclusory statements
that a defendant directed and was aware of constitutional violations are insufficient to establish
personal involvement). Also, in their opposition to Defendants' motions to dismiss, Plaintiffs
failed to address Defendant Sullivan's claim that he is not personally involved. "The failure to
oppose a motion to dismiss a claim is deemed abandonment of the claim." Johnson v. City of
New York, 15-CV-8195, 2017 WL 2312924, at* 18 (S.D.N.Y. May 26, 2017) (holding that the
plaintiff abandoned her claim because her opposition did not address the defendants' arguments,
including their argument that they lacked personal involvement); Barmore v. Aidala, 419 F.
Supp. 2d 193,201 (N.D.N.Y. 2005) (dismissing the plaintiffs claims against the defendants
19
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 20 of 23
because the plaintiff did not address the defendants' personal involvement arguments in its
opposition to the defendants' motion to dismiss). Accordingly, the Court deems Plaintiffs'
claims against Defendant Sullivan abandoned and that they must be dismissed.
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Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 21 of 23
CONCLUSION
For the foregoing reasons, Defendants' motions to dismiss Plaintiffs' Amended
Complaint are GRANTED in part and DENIED in part.
Defendants' motions to dismiss Plaintiff Black Lives Matter for lack of standing are
GRANTED. Defendants' motions to dismiss remaining Plaintiffs' First Amendment claims are
DENIED, and Defendants' motions to dismiss remaining Plaintiffs' Fourteenth Amendment
claims are GRANTED. Defendant Sullivan's motion to dismiss is GRANTED for lack of
personal involvement. Plaintiffs are granted leave to re-plead in conformity with this Opinion.
The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 40,
43, and 48. Plaintiffs must file any amended pleading by December 14, 2018. If Plaintiffs fail to
file an amended pleading by December 14, 2018, Plaintiffs' claims against Defendant Sullivan
will be dismissed with prejudice and Plaintiffs Black Lives Matter and Defendant Sullivan will
be removed from the case caption. Defendants are directed to file an answer to Plaintiffs'
amended pleading, or the existing Amended Complaint if no amended pleading is filed by
December 14, 2018, by January 14, 2019. The parties are directed to appear before this Court
for an initial pre-trial conference on January 17, 2019 at 11 :30 AM. The parties are further
directed to confer, complete, and submit to the Court the attached case management plan before
the initial pre-trial conference. This constitutes the Cami's Opinion and Order.
Dated:
November 14, 2018
White Plains, New York
SO ORDERED:
NELSON S. ROMAN
United States District Judge
21
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 22 of 23
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORI(
Rev. Jan. 2012
-------------------------------------------------------------x
Plaintiff(s),
CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER
Defendant(s).
_ _ cv ____ (NSR)
- against -
-------------------------------------------------------------x
This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(£):
1.
All parties [consent] [do not consent] to conducting all fmiher proceedings before
a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).
The parties are free to withhold consent without adverse substantive consequences.
(If all paiiies consent, the remaining paragraphs of this form need not be
completed.)
2.
This case [is] [is not] to be tried to a jury.
3.
Joinder of additional parties must be accomplished by
4.
Amended pleadings may be filed until _ _ _ _ _ _ _ _ __
5.
Interrogatories shall be served no later than _ _ _ _ _ _ _ _ _ , and responses
thereto shall be served within thirty (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.
6.
First request for production of documents, if any, shall be served no later than
7.
Non-expe1i depositions shall be completed by _ _ _ _ _ _ _ _ _ _ _ __
a.
Unless counsel agree otherwise or the Court so orders, depositions shall not
be held until all patties have responded to any first requests for production
of documents.
b.
Depositions shall proceed concurrently.
c.
Whenever possible, unless counsel agree otherwise or the Comi so orders,
non-paiiy depositions shall follow party depositions.
Case 7:17-cv-06592-NSR Document 56 Filed 11/14/18 Page 23 of 23
8.
Any further interrogatories, including expert interrogatories, shall be served no
later than - - - - - - - - - -
9.
Requests to Admit, if any, shall be served no later than
10.
Expert repmis shall be served no later than _ _ _ _ _ _ _ _ __
11.
Rebuttal expert reports shall be served no later than _ _ _ _ _ _ _ _ __
12.
Expert depositions shall be completed by - - - - - - - - - -
13.
Additional provisions agreed upon by counsel are attached hereto and made a paii
hereof.
14.
ALL DISCOVERY SHALL BE COMPLETED BY
15.
Any motions shall be filed in accordance with the Court's Individual Practices.
16.
This Civil Case Discovery Plan and Scheduling Order may not be changed without
leave of Court (or the assigned Magistrate Judge acting under a specific order of
reference).
17.
The Magistrate Judge assigned to this case is the Hon. _ _ _ _ _ _ _ _ __
18.
If, after entry of this Order, the parties consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date certain for trial and will, if necessary,
amend this Order consistent therewith.
19.
The next case management conference is scheduled for _ _ _ _ _ _ _ __
at _ _ _ _ _ . (The Cami will set this date at the initial conference.)
SO ORDERED.
Dated: White Plains, New York
Nelson S. Roman, U.S. District Judge
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