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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 Apr. 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 and individual New York City Police Department officers. The plaintiffs, represented by private counsel, ... read more >
On Apr. 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 and individual New York City Police Department officers. 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 NYPD 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 Nov. 8, 2011.

The plaintiffs' claims arose from the NYPD's usage of barricades during the demonstration, when protesters gathered in Bryant Park. Their plan was to march toward a fundraising event attended by President Obama at the Sheraton Hotel and protest outside of the hotel. The plaintiffs alleged that they were illegally confined in a closed pen formed by police-erected barricades for nearly two hours. The plaintiffs alleged that they repeatedly asked to leave the enclosure, but the officers refused and threatened to arrest anyone who tried to leave, while tourists and journalists were permitted to leave the barricaded area. The plaintiffs were never arrested nor charged with any violation, misdemeanor, or crime.

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 alleged that the defendants subjected them to selective enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment. Furthermore, the plaintiffs claimed that the other NYPD officers had an affirmative duty to assess the constitutionality of their actions, and that their failure to intervene 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, 1:03-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 Mar. 6, 2013, the defendants filed a motion to dismiss for (1) failure to state a claim and (2) failure to fulfill conditions precedent to filing suit. 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 Nov. 21, 2013, District Judge Thomas P. Griesa for the United States District Court for the Southern District of New York denied the defendants' motion for judgment on the pleadings. 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). However, the court noted 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.

On Dec. 18, 2015, the plaintiffs filed an amended complaint.

On Jan. 21, 2016, the defendants moved for summary judgment on all claims.

On Aug. 10, 2016, the district court granted in part and denied in part the defendants' motion for summary judgment. The court denied the defendants' summary judgment motion with respect to the Fourth Amendment false-arrest claim, the First Amendment retaliation claim, the Fourteenth Amendment selective-enforcement claim, and the failure-to-intervene claim, finding that genuine issues of material fact existed. The court also found that the defendants had failed to show that they were entitled to qualified immunity. The court granted the motion to dismiss with respect to the plaintiffs' § 1983 claims against the Commissioner of the NYPD and the Chief of Department of the NYPD, finding that they failed for lack of sufficient involvement in the alleged constitutional violations, as neither defendant was at the scene was at the scene of the protest. The court also dismissed the state constitutional claims, because as the plaintiffs had alternate remedies available under a federal statute such as § 1983, their state constitutional tort claims were "redundant and precluded" under Biswas v. City of New York, 973 F. Supp. 2d 504, 522 (S.D.N.Y. 2013).

On Sept. 9, 2016, the defendants appealed to the U.S. Court of Appeals for the Second Circuit, from the district court's opinion dated Aug. 10, 2016. The case was assigned Docket No. 16-3146. On Nov. 18, 2016, several of the plaintiffs-appellees moved to dismiss the appeal for lack of jurisdiction, but the Sixth Circuit denied the motion on Jan. 11, 2017.

As of Mar. 20, 2018, the case is ongoing, but activity has significantly stalled.

Greg in den Berken - 07/21/2014
Elizabeth Greiter - 03/20/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
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 five members of the Occupy Wall Street movement who were allegedly detained by the New York Police Department during a demonstration on Nov. 30, 2011.
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Filing Year 2012
Case Ongoing Yes
Case Listing PN-NY-0037 : Stauber v. City of New York (S.D.N.Y.)
1:12-cv-3391 (S.D.N.Y.)
PN-NY-0031-9000.pdf | Detail
Date: 02/23/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
PN-NY-0031-0001.pdf | Detail
Date: 04/30/2012
Source: PACER [Public Access to Court Electronic Records]
Opinion [Denying Motion to Dismiss] [ECF# 62] (2013 WL 6153253) (S.D.N.Y.)
PN-NY-0031-0002.pdf | WESTLAW | Detail
Date: 11/21/2013
Source: PACER [Public Access to Court Electronic Records]
Class Action Amended Complaint [ECF# 86]
PN-NY-0031-0003.pdf | Detail
Date: 12/18/2015
Source: PACER [Public Access to Court Electronic Records]
Opinion [ECF# 116] (2016 WL 4257525) (S.D.N.Y.)
PN-NY-0031-0004.pdf | WESTLAW | Detail
Date: 08/10/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Griesa, Thomas Poole (S.D.N.Y.)
PN-NY-0031-0002 | PN-NY-0031-0004 | PN-NY-0031-9000
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-0031-0003 | PN-NY-0031-9000
Defendant's Lawyers Lucas, Andrew Joseph (New York)
Weiss, Dara Lynn (New York)

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