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Case Name Garcia v. Bloomberg PN-NY-0030
Docket / Court 1:11-cv-06957 ( S.D.N.Y. )
Additional Docket(s) 12-02634  [ 12-2634 ]
State/Territory New York
Case Type(s) Policing
Special Collection Occupy
Case Summary
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 ... read more >
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." They claimed that this conduct violated the plaintiffs' rights guaranteed by the First and Fourth Amendments of the United States Constitution. The plaintiffs, represented by Partnership for Civil Justice and Southern Legal Counsel, sought class certification, damages, and 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 alleging violation of the Due Process Clause of the Fourteenth Amendment and 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 because 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. 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.

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.

Garcia v. Does, No. 12-2634-cv, 2014 WL 4099270, at *9 (2d Cir. Aug. 21, 2014) (footnotes and citation omitted).

Judge Debra Ann Livingston dissented. She wrote 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.

On December 17, 2014, the Second Circuit entered an order granting the defendants' petition for rehearing en banc and withdrawing its opinion of August 21, 2014 was. On the petition for rehearing, the Second Circuit then concluded that the defendants were entitled to qualified immunity. On February 24, 2015, the Second Circuit reversed the judgment of the district court, and remanded with instructions to dismiss the complaint. The court found that:

In this case, the facts alleged in the Complaint, and those depicted in the videos, do not bear out plaintiffs’ legal conclusion that the officers’ actions constituted “an actual and apparent grant of permission” to the demonstrators to utilize the roadway. Still less do those facts plausibly describe a situation in which reasonable officers would have clearly understood that their actions were interpreted by the demonstrators as a grant of permission, such that arresting the demonstrators would violate clearly established law. Accordingly, dismissal of the Complaint is required.

Garcia v. Does, 779 F.3d 84, 97 (2d Cir. 2015).

The Second Circuit's remanded the case to the district court. On April 28, 2015, the plaintiffs requested leave to filed a third amended complaint. The third amended complaint would contain new allegations, most relating to a police chief who was the ranking officer on the scene. These included allegations that the chief admitted he erred in not using police resources like scooters or mesh to block protestors from accessing the roadway. Other new allegations in the third amended complaint would concern the command and decision-making structures of the NYPD, again focusing primarily on the chief on the scene.

In a September 10, 2015 order, Judge Rakoff denied the plaintiffs' motion for leave to amend. He found that none of the additional allegations would contradict the Second Circuit's findings, stating that the new material had no bearing on its finding that the police had probable cause to arrest the marches, and that the further similar allegations of limited permission earlier in the march or implied permission on the roadway would still not be enough to defeat qualified immunity. Judge Rakoff, finding the proposed amendments to the complaint futile, denied leave to amend, and directed the clerk of court to enter a final judgment dismissing the complaint with prejudice and close the case. 2015 WL 54441222. Per Judge Rakoff's order, the district court closed the case on September 15, 2015.

The plaintiffs appealed the decision denying their request to amend their complaint to the Second Circuit on October 2, 2015. On October 13, 2016, the Second Circuit (Circuit Judges Gerard E. Lynch, Christopher F. Droney, and Chief District Judge Christina Reiss of the District of Vermont, sitting by designation) issued a summary order affirming the district court's decision. It found that:
The proposed Third Amended Complaint does not alter our conclusions in Garcia III. Rather, it only asserts that Esposito had better knowledge of the state of mind of the demonstrators than the other individual officers had, namely that Plaintiffs lacked the intent to violate the law. But the state of mind of the demonstrators—whether they thought that they were participating in a sanctioned, First–Amendment–protected roadway march or whether they were intentionally or recklessly blocking traffic—is irrelevant to the question of probable cause . . . Absent the allegation of specific facts to support a direct communication from police to marchers that the marchers were permitted to occupy the road, the Third Amended Complaint fails to change our prior conclusion that the defendants had probable cause to arrest Plaintiffs for violating N.Y. Penal Law § 240.20(5).

Garcia v. Bloomberg, 662 Fed. App'x 50, 53-54 (2d Cir. 2016).

The plaintiffs petitioned for a writ of certiorari, but the United States Supreme Court denied certiorari review on June 19, 2017. 136 S.Ct. 2266 (Mem). The case is now closed after the dismissal of the plaintiffs' complaint.

Greg in den Berken - 09/20/2014
Sarah McDonald - 08/13/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
Free Exercise Clause
Freedom of speech/association
Unreasonable search and seizure
Failure to discipline
Failure to supervise
Failure to train
False arrest
Over/Unlawful Detention
Pattern or Practice
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
State law
Defendant(s) City of New York
Plaintiff Description Plaintiffs are several Occupy Wall Street protesters who claim that they were arrested while crossing the Brooklyn Bridge on October 1, 2011, during an Occupy Wall Street protest. They are suing the City of New York on behalf of themselves and all others similarly situated, contending that these arrests were unlawful.
Class action status sought Yes
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 10/04/2011
Case Closing Year 2017
Case Ongoing No
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
1:11-cv-06957 (S.D.N.Y.)
PN-NY-0030-9000.pdf | Detail
Date: 11/04/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
PN-NY-0030-0001.pdf | Detail
Date: 10/04/2011
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 13]
PN-NY-0030-0002.pdf | Detail
Date: 12/12/2011
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [Denying Defendants' Motion to Dismiss Claims Against the Arresting Officers; Granting Motions to Dismiss Claims Against the City] [ECF# 25] (865 F.Supp.2d 478) (S.D.N.Y.)
PN-NY-0030-0003.pdf | WESTLAW| LEXIS | Detail
Date: 06/07/2012
Source: PACER [Public Access to Court Electronic Records]
Second Circuit Opinion [Affirming District Court's Denial of Motion to Dismiss Complaint on Grounds of Qualified Immunity] [Ct. of App. ECF# 85-1] (764 F.3d 170)
PN-NY-0030-0004.pdf | WESTLAW| LEXIS | Detail
Date: 08/21/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 74] (779 F.3d 84)
PN-NY-0030-0007.pdf | WESTLAW| LEXIS | Detail
Date: 02/24/2015
Source: PACER [Public Access to Court Electronic Records]
Memorandum Order [ECF# 44] (2015 WL 5444122) (S.D.N.Y.)
PN-NY-0030-0006.pdf | WESTLAW | Detail
Date: 09/10/2015
Source: PACER [Public Access to Court Electronic Records]
Summary Order [Ct. of App. ECF# 58]
PN-NY-0030-0008.pdf | Detail
Date: 11/04/2016
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Calabresi, Guido (Second Circuit) show/hide docs
Livingston, Debra Ann (Second Circuit) show/hide docs
Lynch, Gerard E. (S.D.N.Y., Second Circuit) show/hide docs
Rakoff, Jed Saul (S.D.N.Y.) show/hide docs
PN-NY-0030-0003 | PN-NY-0030-0006 | PN-NY-0030-9000
Plaintiff's Lawyers Costello, Andrea Hope (District of Columbia) show/hide docs
Messineo, Carl L (District of Columbia) show/hide docs
PN-NY-0030-0001 | PN-NY-0030-0002 | PN-NY-0030-9000
Verheyden-Hilliard, Mara E (District of Columbia) show/hide docs
PN-NY-0030-0001 | PN-NY-0030-0002 | PN-NY-0030-9000
Defendant's Lawyers Larkin, Arthur G. III (New York) show/hide docs
Weiss, Dara Lynn (New York) show/hide docs

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