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Case Name Berg v. Kelly PN-NY-0031
Docket / Court 1:12-cv-3391 ( S.D.N.Y. )
State/Territory New York
Case Type(s) Policing
Special Collection Occupy
Case Summary
On April 30, 2012, five members of the Occupy Wall Street movement filed this lawsuit in the United States District Court for the Southern District of New York, against the City of New York. The plaintiffs, represented by private counsel, sought class certification, as well as injunctive and ... read more >
On April 30, 2012, five members of the Occupy Wall Street movement filed this lawsuit in the United States District Court for the Southern District of New York, against the City of New York. The plaintiffs, represented by private counsel, sought class certification, as well as injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that officers of the New York City Police Department violated their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, as well as their rights under the Constitution of the State of New York. Specifically, the plaintiffs alleged that they were unlawfully detained by NYPD officers during an Occupy Wall Street demonstration held in New York City on November 8, 2011.

The plaintiffs' claims arose from the NYPD's usage of barricades during the demonstration in question, which took place outside a Sheraton Hotel where President Obama was attending a fundraising event. The plaintiffs alleged that they were illegally confined behind police-erected barricades for approximately two hours, during which time they were neither arrested nor charged with any crime. The plaintiffs claimed that the NYPD converted the interlocking metal barricades into a closed pen once the demonstration had begun, and told protesters they were not allowed to leave the enclosure for any reason.

In their suit, the plaintiffs alleged that this conduct amounted to false arrest, and violated their First Amendment rights to freedom of speech, association, and assembly, as well as their Fourth Amendment right to be free from unreasonable seizures. The plaintiffs also argued that this conduct violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Furthermore, the plaintiffs claimed that the NYPD's officers' failure to intervene when they observed their fellow officers performing false arrests gave rise to a separate cause of action. The plaintiffs argued that NYPD officers have an affirmative duty to assess the constitutionality of their actions, and that their failure to intervene therefore amounted to a separate and distinct violation of plaintiffs' constitutional rights.

The plaintiffs argued that the NYPD's conduct violated a Stipulation of Settlement and Order in another Southern District of New York case, Stauber v. City of New York, 03-cv-9163. That settlement amended Section 213-11, 21(h)(3) of the New York Police Department Patrol Guide to state the following:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph;

In their complaint, the plaintiffs asked the court to issue an order compelling the NYPD to comply with this section.

On March 6, 2013, the defendants filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) for: (1) failure to state a claim; and (2) failure to fulfill conditions precedent to filing suit. In support of this, the defendants argued that the barricades amounted to a reasonable time, place, manner restriction under the First Amendment, and that the need to secure the President's security rendered the plaintiffs' Fourth Amendment claim non-actionable. The defendants also pointed to New York General Municipal Law § 50-i(1), which sets forth certain procedures for suing the City. The defendants claimed that plaintiffs' had failed to comply with § 50-i(1), and that their claims were therefore barred.

On November 21, 2013, the District Court (Judge Thomas P. Griesa) denied the motion to dismiss. Judge Griesa acknowledged that although it was "a close question as to whether [the complaint] states a valid cause of action for violation of constitutional rights . . . [t]he court believes that it is not appropriate at this stage to rule on the merits of the case." Berg v. Kelly, 12-cv-03391 TPG, 2013 WL 6153253, at *2 (S.D.N.Y. Nov. 22, 2013). The court did however note that "a summary judgment motion, or cross-summary judgment motions, may be appropriate in order to avoid a drawn-out litigation with full discovery and trial." Id.

In early 2014, plaintiffs raised several issues pertaining to discovery with the court. A scheduling conference took place before Judge Griesa on March 12, 2014. As of July 17, 2014, these issues are under consideration by the court.

Greg in den Berken - 07/21/2014

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Issues and Causes of Action
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Constitutional Clause
Equal Protection
Freedom of speech/association
Unreasonable search and seizure
False arrest
Over/Unlawful Detention
Search policies
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
State law
Defendant(s) City of New York
Plaintiff Description Plaintiffs are several members of the Occupy Wall Street movement who were allegedly detained by the New York Police Department during a demonstration on November 30, 2011.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Pending
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Case Listing PN-NY-0037 : Stauber v. City of New York (S.D.N.Y.)
Additional Resources
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Case Studies Federal Enforcement of Police Reform
By: Stephen Rushin (University of Illinois College of Law, University of California, Berkeley - Jurisprudence and Social Policy Program )
Citation: 82 Fordham Law Review 3189 (2014)
[ Detail ] [ External Link ]

  Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance
By: Mary D. Fan (University of Washington)
Citation: Forthcoming, 87 Washington L. Rev. __ (2012).
[ Detail ] [ External Link ]

  What Happens When Police Are Forced to Reform?
Written: Nov. 13, 2015
By: Kimbriell Kelly, Sarah Childress and Steven Rich (Frontline/Post)
Citation: Washington Post (Nov. 13, 2015)
[ Detail ] [ External Link ]

1:12-cv-3391 (S.D.N.Y.) 02/19/2014
PN-NY-0031-9000 PDF | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint 04/30/2012
PN-NY-0031-0001 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion [Denying Motion to Dismiss] 11/21/2013 (2013 WL 6153253) (S.D.N.Y.)
PN-NY-0031-0002 PDF | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Griesa, Thomas Poole (S.D.N.Y.)
PN-NY-0031-0002 | PN-NY-0031-9000
Monitors/Masters None on record
Plaintiff's Lawyers Borchetta, Jennifer Rolnick (New York)
PN-NY-0031-0001 | PN-NY-0031-9000
Moore, Jonathan C. (New York)
PN-NY-0031-0001 | PN-NY-0031-9000
Moskovitz, Joshua Samuel (New York)
Rankin, David Bruce (New York)
PN-NY-0031-0001 | PN-NY-0031-9000
Defendant's Lawyers Lucas, Andrew Joseph (New York)
Weiss, Dara Lynn (New York)
Other Lawyers None on record

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