On October 4, 2011, 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, under 42 U.S.C. § 1983. The plaintiffs' lawsuit stems from a demonstration and march crossing the Brooklyn Bridge that took place on October 1, 2011. The plaintiffs alleged that during that demonstration, the New York Police Department "engaged in a mass false arrest of approximately 700 persons who participated in, or were in proximity to," the demonstration and that "[t]he NYPD, as a matter of policy and practice, engages in unconstitutional tactics to disturb, disrupt, penalize, infringe upon and criminalize constitutionally protected speech and assembly." Compl 3-4
. They claimed that this conduct violated rights guaranteed by the First and Fourth Amendments of the United States Constitution. The plaintiffs, represented by public interest counsel, sought class certification, damages, as well as injunctive and declaratory relief. The plaintiffs also sought entry of an order declaring the arrests in question to be null and void, and authorizing each individual class member to deny that such an arrest ever occurred in response to any inquiry, such as an employment application.
On December 12, 2011, the plaintiffs filed a Second Amended Complaint. This added several named plaintiffs to the litigation as well as additional claims, namely claims under the Due Process Clause of the Fourteenth Amendment and under N.Y. General Municipal
Law § 50-e. Second Am. Compl 1, 39
. The Second Amended Complaint also amended the remedies sought, adding a paragraph requesting:
Entry of a declaratory judgment that N.Y. City Adm. Code § 10-110(c) parading without a permit code provision is unconstitutional, facially or as applied to the extent it is applied as a strict liability offense, and entry of a permanent injunction prohibiting enforcement as a strict liability offense (i.e., enforcement in the absence of fair notice or warnings/orders to those subject to potential arrest); Id. 42
This was added in response to the defendants' motion to dismiss the original complaint. In their motion to dismiss, the defendants argued that the Fourth Amendment claims should be dismissed because N.Y. City Adm. Code § 10-110(c) had provided the arresting officers with probable cause for the arrests. New York City Adm. Code § 10-110(c) provides that a "procession, parade or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner."
On December 23, 2011, the defendants filed a motion to dismiss the plaintiffs' Second Amended Complaint. The defendants advanced two main arguments, namely (1) that the officers were entitled to qualified immunity because probable cause existed for the arrests, and (2) that the plaintiffs' claims for damages against the City and its officials should be dismissed since the rights at issue were not clearly established. On the qualified immunity point, the defendants argued that probable cause existed for the arrests because the plaintiffs participated in a "parade" without a permit in violation of N.Y. City Administrative Code, § 10-110, and that the video proof on which the plaintiffs relied in their complaint demonstrated that the marchers violated Penal Law § 240.20(5) by "obstruct[ing] vehicular ... traffic" on the roadway of the Brooklyn Bridge.
On June 7, 2012, the District Court (Judge Jed S. Rakoff) granted the defendants' motion to dismiss the Second Amended Complaint in part and denied it in part. Specifically, the Court denied the motion to dismiss plaintiffs' claims against the officers who arrested them, but dismissed the claims for damages against the City, Mayor Bloomberg, and Police Commissioner Kelly.
In denying the motion to dismiss the claims against the arresting officers, the Court explained that the defense of qualified immunity at this stage hinged on whether it would "be clear to reasonable police officers, in the situation the defendant officers confronted, that they lacked probable cause to believe (i) that the plaintiff demonstrators had committed a crime and (ii) that the plaintiff demonstrators had received fair warning?" Garcia v. Bloomberg, 865 F. Supp. 2d 478, 487 (S.D.N.Y. 2012)
. The Court found that there were two criminal statutes that the plaintiffs apparently violated. However, the Court found that the Second Amended Complaint adequately alleged that the plaintiffs failed to receive fair warning, and thus concluded that the defense of qualified immunity did not defeat the claims at this stage of the litigation.
As to the claims for damages against the City, Mayor Bloomberg, and Police Commissioner Kelly, the Court found that the plaintiffs had failed to adequately allege such claims. The plaintiffs had advanced three arguments for these claims. First, they argued that the existence of "Disorder Control Guidelines," the arrests of protesters in 2003 and 2004, and arrests that occurred a week before the incident in this case, all supported the conclusion that the City has a policy of conducting mass false arrests in order to discourage protesting. Second, the plaintiffs argued that Mayor Bloomberg and Commissioner Kelly either ratified or directly participated in the alleged constitutional violations by failing to act or investigate the incidents. Finally, the plaintiffs argued that Mayor Bloomberg and Commissioner Kelly faced liability based on their failure to train the arresting officers. The Court rejected each of these three arguments, finding the facts cited in support of them too attenuated or implausible to support actionable claims, and thus dismissed those claims. Id.at 491-94
On June 28, 2012, the officer defendants appealed the District Court's denial of their motion to dismiss the complaint against them on qualified immunity grounds. The defendants argued that the District Court had erred in concluding that the complaint, and the other materials that could properly be considered on a motion to dismiss for failure to state a claim, did not establish that the defendants had probable cause to arrest the plaintiffs for disorderly conduct.
The Second Circuit disagreed. On August 21, 2014, a divided Second Circuit (Judges Guido Calabresi and Gerard E. Lynch, with Judge Lynch writing the opinion) affirmed the District Court's ruling. The Second Circuit found that:
Taking plaintiffs' allegations as true, as we must, we believe that they have adequately alleged actionable conduct. Plaintiffs have alleged that the police directed the demonstrators' activity along the route of their march, at times specifically condoning, or even directing, behavior that on its face would violate traffic laws. When the bottleneck at the pedestrian walkway of the Bridge led the demonstrators to pool into the roadway, the police did not immediately direct them out of the street, and when they did undertake to issue such a warning to clear the roadway, they did so in a way that no reasonable officer who observed the warning could have believed was audible beyond the first rank of the protesters at the front of the crowd. According to plaintiffs' account, the police then retreated back onto the Bridge in a way that would reasonably have been understood, and was understood, by the bulk of the demonstrators to be a continuation of the earlier practice of allowing the march to proceed in violation of normal traffic rules.Garcia v. Does, No. 12-2634-cv, 2014 WL 4099270, at *9 (2d Cir. Aug. 21, 2014)
We emphasize that the procedural posture of this case presents a formidable challenge to defendants' position. They urge us to find that qualified immunity is established for all defendants based on plaintiffs' version of events (plus a few inconclusive photos and videos). The evidence, once a full record is developed, may contradict plaintiffs' allegations, or establish that some or all of the defendants were not aware of the facts that plaintiffs allege would have alerted them to the supposed implicit permission. We express no view on whether some or all of the defendants may be entitled to qualified immunity at a later stage of the case. But to reverse the district court's denial of qualified immunity on a motion to dismiss, we would have to say that on the basis of plaintiffs' account of events, no officer who participated in or directed the arrests could have thought that plaintiffs were invited onto the roadway and then arrested without fair warning of the revocation of this invitation. Since we cannot do so on this limited record, we affirm the judgment of the district court.
(footnotes and citation omitted).
Judge Debra Ann Livingston dissented. She argued that the majority had turned the qualified immunity standard upside down, and would have found that the officers were entitled to qualified immunity. Id. at *13
Discovery in the case had been stayed pending the appeal. With this resolved, as of September 20, 2014, discovery is ongoing.Greg in den Berken - 09/20/2014