UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DEBRA GOODMAN

14 CV 526I
•A
COMPLAINT
Plaintiff, JURY TRIAL DEMANDED

-against-
THE CITY OF NEW YORK, POLICE OFFICER STEVEN RODRIGUEZ, shield no. 28141, POLICE OFFICERS JOHN DOE and RICHARD ROE and other unidentified members of the New York City Police
Department
Defendants.
PPIfl IMTNARY STATEMENT WDffi**8**
1. This civil rights action challenges the constitntionality ofthe New York
City Police Department's CNYPDn policy, practice and custom ofinterferingwith the right of
individuals to film, pho.og.ph,videotape, or record(collectively, "record") NYPD members
performing their official duties in publicplace, In particular, mis lawsuit challenges retaliatory
measures takenby NYPD officers against the Plaintiff, Debra Goodman, for atiemptingto record
police officers andEmergency Medical Services("EMS") personnel who were interactingwitha
homeless woman on the sidewalk on the Upper West Side of Manhattan.
2. Individuals have the right to record the public activities ofpolice officers,
and such recording helps to ensure the police remain accountable to the public. TheNYPD's
widespread policy, practice and custom ofarresting, threatening to arrest or otherwise interfering
with individuals who attempt to record police performing their official duties infringes on

individuals' First Amendment rights.

3. Defendants' policies, practices, customs and actions violate Ms.
Goodman's rights under the First, Fourth, and Fourteenth Amendments to the Constitution of the
United States, Article I, Section 8of the New York Constitution, and common law. Ms. Goodman seeks monetary damages, adeclaratory judgment and injunctive relief.
JURISDICTION AND VENUE
4. This action is brought pursuant to 42 U.S.C §§ 1983 and 1988, and the First, Fourth and Fourteenth Amendments to the Constitution of the United States. This Court
has jurisdiction of the action pursuant to 28 U.S.C. §§ 1331,1343(a)(3), and 1343(a)(4) as this is
acivil action arising under the Constitution of the United States and the laws of the United States. This Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper pursuant to 28 U.S.C. §§ 2201 and 2202. This Court has jurisdiction over the supplemental claims arising under New York State law pursuant to 28

U.S.C. § 1367(a).
5. Venue is proper for the United Stated District Court for the Southern
District of New York pursuant to 28 U.S.C §1391 (a), (b), and (c) because claims arose within

this district.
6.

PARTIES
Plaintiff Debra Goodman is a resident of New York County, State of New

York.
7. Defendant City ofNew York ("City Defendant") isa municipal entity
created and authorized under the laws of the Stateof New York. It is authorized by law to
maintain a police department, which acts as its agent in the area of law enforcement and for which it isultimately responsible. City Defendant assumes the risks incidental to the

maintenance of a police force and the employment of police officers, as said risks attach to the public consumers of the services providedby the NYPD.
8. New York City Police Officer Steven Rodriguez, shield no. 28141, is and was at all relevant times an officer, employee, and agent of the NYPD. On the date Ms.
Goodman was arrested, he was assigned to the 20th Precinct. Police Officer Rodriguez is being sued in his individual and official capacity.
9. Defendants John Doe and Richard Roe et al., whose identities and number are presently unknown to Plaintiff, are and were at all relevant times officers, employees and/or
agents of the NYPD. They are sued in their official and individual capacities. 10. At all times relevant herein, the Defendants were acting under color of
state law in the course and scope of their duties and functions as agents, servants, employees and officers of the NYPD, and otherwiseperformed and engaged in conduct incidental to the performanceof their lawful functions in the course of their duties. They were acting for and on behalf of the NYPD at all relevant times, with the power and authorityvested in them as officers, agents and employees of the NYPD and incidental to the lawful pursuit of their duties as officers, employees and agents of the NYPD.
STATEMENT OF FACTS Arrest and Detention of Debra Goodman
11. On September 25, 2013, Ms. Goodman was standing in the vicinity of
Broadway and West 73rd Street, New York, NY, on a public sidewalk using her cell phone
camera attempting to record police activity. 12. EMS personnel were interacting with a woman in a wheelchair on the
street who appeared to be homeless, andpolice officers were a distance up the blockfrom them.

Ms. Goodman was standing approximately 30 feet away from the woman in the wheelchair and EMS personnel, and approximately 10 feet away from the NYPD officers. She was not obstructing or interfering with the police officers or EMS personnel.
13. While attempting to record the events taking place, she was approached by apolice officer who held up his camera and appeared to start recording her.
14. Ms. Goodman told the officer that she had aright to record police activity,
but the police did not have a right to record her.
15. After a verbal exchange, the NYPD officer demanded to see Ms.
Goodman's identification. When she stated that she had done nothing wrong, the officer grabbed
her arms, cuffed her with her arms behind her back, and told her she was under arrest. 16. She was arrested without reason or probable cause. Ms. Goodman did not
resist being cuffed, nor did she resist the arrest. During Ms. Goodman's verbal exchange with the officer, no crowd had formed, though several pedestrians had stopped to watch. Upon information and belief, the NYPD officer's actions were motivated or substantially caused by
Ms. Goodman's attempt to record the events.
17. This arresting officer then threw her inside the police vehicle. 18. While Ms. Goodman was sitting in the police van with her hands cuffed,
the arresting officer and another officer pinned her to the seat by pushing her sideways. 19. The assault on Ms. Goodman by Defendants was made without proper
cause and inexcess of the rightful authority of the NYPD officers.
20. Upon information and belief, the arresting officer was Steven Rodriguez,
shield #28141.
21. Ms. Goodman was held in police custody for approximately 25 hours.

22. During these hours, because Ms. Goodman had stated that she required her prescribed medication, NYPD members tookMs. Goodman to St. Luke's hospital and Bellevue. When she was taken to andfrom St. Luke's and Central Booking she had shackles around her
ankles, and her hands were cuffed behind her back.
23. As a result of having tissue removed in breastcancer surgery, the position of Ms.Goodman's armsandbody when she was handcuffed caused her to experience severe musclespasms and pain and suffering. Ms. Goodman told the NYPD members that the position in which shewas cuffed caused herpainas a result of thesurgery, but the officers did not remove the cuffs or cuff her in an alternate position that wouldeliminate or reduce the pain she
was experiencing. 24. Ms. Goodman appeared in court for the criminal case against her on
November 25, 2013, January 21,2014, March4,2014, April 8,2014, and May 27, 2014. 25. On May 27,2014, the criminal prosecution was terminated favorably to
Ms. Goodman when the New York County District Attorney's Office dismissed all the charges against her.
26. Defendants' conduct causedMs. Goodman to sustainphysicalpain, suffering, and injury and psychological and emotional trauma. Their actionsconstituted
outrageous and reckless conduct, and demonstrated a callous indifference to and willful
disregard of Plaintiffs federal and state protected rights. 27. As long as the NYPD policy, practice and custom of interfering with
individuals' right to recordpolice activity in public places continues, there is a likelihood that Ms. Goodman will be harmed in the future by this policy, practice and custom. For over two years Ms. Goodman has regularly recorded NYPD members conducting their duties. From the

time of her arrest until the time the charges were dismissed, Ms. Goodman ceased recording the policebecause she was afraid she would be threatened, harassed and intimidated by the police and arrestedwithoutjustification again. She was particularly worried about being arrested again while the criminal charges against her were pending. Nonetheless, in June of 2014, after the charges were dismissed, Ms. Goodman again began to record the NYPD officers, and will continue to record NYPD activity in the future, as she believes such recording and posting on social media helps to ensure the police remain accountable to the public and prevents police misconduct. However, she will not record the police duringnight hours, as she would like, because she is concerned that she will again be arrested without justification.
28. On December 18,2013, a notice of claim was served on the Comptroller of the City of New York. At least thirty days have elapsed since the service of such notice, and adjustment and/or payment has been neglected and/or refused.
29. On June 9,2014, a notice of claim for Plaintiffs malicious prosecution and related claims was served on the Comptroller of the City of New York. At least thirty days have elapsed since the service of such notice, and adjustment and/orpayment has been neglected
and/or refused.
30. A 50-h hearing was held on June 25,2014. The NYPD's Policy. Practice and Custom of Not Respecting the Right of Individuals to Record
Police Activity and its Failure to Train Its Officers to Respect this Right 31. Small portable cameras, and in particular smartphones, which include
integrated cameras capable of both still photography and audio and video recording, are widely used. According to the Pew Internet & American Life Project, as of September 2013,91% of American adults have a cell phone and 55% of American adults have a smartphone. Thus, a large portion of the public carries an audio and video recording devise with them at all times.

32. Members of the public areusing smartphones and small portable cameras to document police activity andhold police officers accountable for their conduct. In the last few years, several highly publicized incidents ofpolice abuse that have occurred were recorded
by such cameras.
33. Forexample, in 2008, a video recording made by a witness witha portable camera of an incident between NYPD Officer Patrick Pogan and a bicyclist, Christopher Long,
led inpart to officer Pogan's conviction for filing a criminal complaint containing false statements and his discharge from the NYPD. The video showed Officer Pogan moving toward Mr. Long and violently shoving Mr. Long offhisbicycle, contrary to Mr. Pogan's allegation that
Mr. Long knocked him down by intentionally steering his bicycle into him. The incident and subsequent prosecution of Officer Pogan received publicity from bothlocal and national news
sources and has been viewed almost three million times on YouTube.
34. In another high-profile incident, a portable camera captured NYPD Deputy Inspector Anthony Bologna using pepper spray on two women during an Occupy Wall Streetprotestin September 2011. The video received localand national media attention, and caused significant negative publicity for the NYPD. Consequently, the NYPD disciplined Deputy Inspector Bologna, and the City declined to defend him in the civil lawsuit filed over the
incident.
35. Several other cities have faced lawsuits as a result of police interfering
with individuals seeking to exercise their constitutional right to record police activity inpublic
places. 36. The City of Boston reached a settlement with an individual who was
wrongfully arrested andprosecuted in retaliation for recording an arrest. Thesettlement was

reached after the United States Court of Appeals for the First Circuit held that there is a First Amendment right to record policeofficers performing their official duties. Also, subsequent to the First Circuit's decision, the BostonPolice Department updated its trainingmaterials and policies to clearly state that members of the public have the right to record police officers.
37. The City of Indianapolis also recently settled a lawsuit with an individual who claimed his First Amendment rights were violated when he was arrested after using his cell phone to record police officers arresting another man, and refused to voluntarily give the officers his cell phone. The settlement was reached after the Court refused to grant Defendants summary judgment on the Monell claim that the City had a practice or custom of seizing cell phones that contain video evidence of a crime. As part of the settlement the Indianapolis Police Department must institute a policy prohibiting police officers from interfering with civilians who are recording their actions.
38. The City of Baltimore recently settled a lawsuit stemming from Baltimore Police Department officers' arrest and detention of a member of the public who used his cell phone camera to record an arrest. In the settlement the Baltimore Police Department agreed to adopt a new policy that recognizes individuals' right to record police officers, institute a training regimen on the new policy and on individuals' recording of police officers in general, and compensate the plaintiff and pay his legal fees. In this lawsuit, the Department of Justice filed a Statement of Interest, urging the Court to hold that private citizens have a First Amendment right to record police officers performing their official duties, and stating that the Baltimore Police Department should develop a comprehensive policy that specifically addresses this right. The DOJ's Statement of Interest further advocated that this policy should be implemented through periodic training, and the effectiveness of the training should be tested routinely. Moreover, the
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DOJ also submitted a letter to counsel designed to assist the parties during their settlement conference. That letter, which is a public document posted on the Justice Department's website, reiterated that private individuals have aFirst Amendment right to record police activity and set
forth six policies thatpolice departments should follow to diminish the likelihood of
constitutional violations.
39. In New Hampshire the Town of Weare also recently settled a lawsuit stemming from a plaintiffs arrest for attempting to record a traffic stop conducted by police officers. The town settled less than amonth after the First Circuit had held that the plaintiff was exercising a clearly established First Amendment right, and, thus, affirmed the district court's denial of qualified immunity to the arresting officers.
40. The NYPD maintains a policy, practice and custom in which officers
interfere with the rights ofindividuals who, without interfering with police activity, are recording or attempting to record officers performing their official duties in public. Such police interference includes arresting individuals who are recording and attempting to record police activity, threatening such individuals with arrest, and otherwise preventing or hindering such individuals' ability to record police activity. Examples include thefollowing:
a. On February 15,2014, at the Utica Avenue subway stopin Brooklyn, an NYPD member harassed and arrested Shawn Thomas for recording police activity and a member of the NYPD deleted Mr. Thomas's videos of the incident. More specifically, for overfive minutes, from a distance of approximately 30 feet away, Mr. Thomas was usinghis smallcamera to record an NYPD member and a subject who had been detained. Mr. Thomas did not interact with the NYPD office or the subject. Then officer Rojas, shield no 23404, a second NYPD member, entered the subway station and noticed that

Mr. Thomas was recording. Officer Rojas took outhis own cell phone, walked the approximately 30 feet to Mr. Thomas, and stuck his phone inches away from Mr. Thomas's face. After a tense conversation during which officer Rojas threatened to arrest Mr. Thomas, officer Rojas twisted Mr.Thomas's handbehind his back, so that Mr. Thomas could no longer record him, and, upon information and belief, turned off Mr. Thomas's camera. After being walked out of the subway station, Mr. Thomas attempted to record officerRojas with his blackberry, which he had in addition to his camera. Officer Rojas forcefully told Mr. Thomas to put theblackberry away. Then officer Rojas threw Mr. Thomasto the ground, got on Mr., Thomas's back, slammedhis head into the ground and subsequently arrested Mr. Thomas. Mr. Thomas was in custody for approximately 23 hours. When Mr. Thomaspickedup his cameraafter he was released
he noticed that the two videos of the incident were deleted from his camera. Mr. Thomas
however was able to recover thevideosusing a datarecovery program. Mr. Thomas posted a video compromised predominantlyof the recovered footage on YouTube. The incident has been discussed in at least one New York newspaper and on blogs.
b. According to a lawsuit filed in the Eastern District of New York, on June 5,2012 HadiyahCharles was arrested for using her smartphone to record two NYPD officers as they questioned andfrisked three young men. On that day, in the BedfordStuyvesantneighborhood in Brooklyn, when Ms. Charles saw the officers questioning
andfrisking the menshe approached them and asked what was happening. Oneof the officers replied that it was "police business." Subsequently, one of the officers asked Ms. Charles to step away from the scene. Ms. Charles complied with the request and stepped backand beganrecording the incident withher smartphone. Eventhough Ms. Charles
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was already a reasonable distance away, one of the officers tried to stop her from recording by repeatedly asking her to stepfurther away. At no time was Ms. Charles interfering with the police officers' actions. After recording for a short time one ofthe officers shoved Ms. Charles. Ms. Charles told the supervising officer that shewished to file a formal complaint. In response, Ms. Charles was handcuffed and placed in the police van. Ms. Charles filed a lawsuiton December 17,2012 that includes a claim for violation of her First Amendment rights that is currently pending in the United States District Court for the Eastern District ofNew York. This incident has also been reported in at leastone New York newspaper and on blogs.
c. On or about August 13,2013 in Brooklyn YosefHershkop took a picture with hiscell phone of a parked carthat an NYPD member was ticketing. Mr. Hershkop was at least ten feet away from theofficer and car. The officer aggressively waived her radio at Mr. Hershkop and told him to delete the picture in front of her. Fearing that he would be arrested, Mr. Hershkop complied withthisorder and deleted the picture.
d. Christina Gonzalez and Matthew Swaye have been arrested and threatened with arrest multiple times forrecording police officers with their cell phones. For example, on or about May 16,2013 Ms. Gonzalez and Mr. Swaye were on the 145th Street Bridge thatconnects Harlem and the Bronx. Both Ms. Gonzalez and Mr. Swaye were recording NYPD officers while theywere performing a "vehicle safety check." Ms. Gonzalez asked the NYPD officers questions about what they were doing, which prompted an NYPD member to askMs. Gonzalez's to move away and ask for her identification. When she refused to give her identification an NYPD officer knocked the cellphone out of herhand and arrested her. The officers also threw Mr. Swaye to the
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ground and tookhis phone. Ms. Gonzalez and Mr. Swaye were in custody for approximately 25 hours. When Ms. Gonzalez picked up herphone aftershe was released one of thememory cards in the phone was missing; however, it wasnot the memory card that contained the video of the incident. When Mr. Swaye picked up hisphone after he was released, the video of the incident was deleted from hisphone. Video footage of this incident is posted on YouTube and the incident was covered on numerous blogs. In addition, on or about July31,2012 on 146th and St Nicholas Avenue in Manhattan Ms. Gonzalez was arrested by an NYPD officer for recording him. However, Ms. Gonzalez was released after his superior told him that Ms. Gonzalez was notviolating any laws by recording. Video footage of thisincident is posted on YouTube.
e. On or about March 13, 2013 in the South Bronx Ed Garcia Conde, a community activist, was arrested and given a summons for using his cellphone to record an NYPD member questioning his friend. Mr. Conde waswith a group of volunteers from the Bronx Documentary Center, a non-profit organization, when an NYPD sergeant approached them. One member of the group was carrying a broken beerbottle to the trash, sealed in a plastic bag and in a cup to capture the liquid from spilling, andthe sergeant accused them of having an open container of alcohol. Mr. Conde began to record the sergeant's questioning of another volunteer. After approximately 15 seconds of recording the sergeant told Mr. Conde to put the camera down. Mr. Conde told the sergeant it washis legal right to record, at which point the sergeant stormed towards Mr.
Conde, slammed him against a building, handcuffed him, and took him to the precinct.
Mr. Conde's video was posted on YouTube, and the incident was discussed on several blogs.
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f. On or about September7, 2013 Diego Ibanez was in a subway station attempting to record NYPD members and two teenagers they were arresting. Mr. Ibanez was at least 10 feet away from the officers and teenagers, and did not interfere or interact with the arrested teenagersor the NYPD. Just after Mr. Ibanez started recording, NYPD members walked over to him, told him he couldn't stand where he was standing and that he had to go upstairs, out of the subway station. Mr. Ibanez asserted that he had the right to record and that he would walk to anotherspot and record. As he was walking away two NYPD officers came up to him from behind and cuffed him. The NYPD members moved Mr. Ibanez next to the two arrested teenagers who he had been attempting to
record. One officer said he would make Mr. Ibanez a deal such that if Mr. Ibanez erased
the video he would not be sent to jail. Mr. Ibanez agreed. Upon information and belief the officer attempted to erase the video, but he did not erase the video correctly; thus, Mr. Ibanez was able to subsequently post the video on his Facebook page. While Mr. Ibanez was in custody, one of the officers said in words or effect, "This will teach you a lesson. The next time an officer tells you to stop filming what are you gonna do?" Mr. Ibanez responded that he will stop recording. Mr. Ibanez received a Desk Appearance Ticket for disorderly conduct. This incident was discussed on at least one blog.
g. Upon information and belief, in May of 2013 an unidentified person was recording two NYPD members arresting an individual in a Harlem subway station. The person was recording from a reasonable distance and was not interacting or interfering with the arrest. While the two NYPD members were placing the handcuffs on the arrestee approximately two dozen NYPD members arrived in the subway station. One of those NYPD members stopped the person from recording - he walked the person
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recording out ofthe subway station repeatedly saying "come on lets go," while the person
recording repeatedly asked why he couldn't stand where he was. This incident was discussed on at leastone blog.
41. Upon information and belief, these examples represent only a small fraction ofthe total number ofinstances ofNYPD members interfering with the rights of individuals who, without interfering with police officers, are recording orattempting to record police performing their official duties while in public.
42. The NYPD has received numerous letters in recent years describing attempts by NYPD officers to intimidate individuals seeking to document police activity. In a letter to then Deputy Commissioner Paul Browne dated November 21,2011, representatives of
The New York Times. The New York Post. The Daily News, the Associated Press and nine other news organizations described numerous incidents in which NYPD officers assaulted and
detained members of the media and otherwise interfered with their ability to document Occupy Wall Street demonstrations. The letter requested a meeting with Deputy Commissioner Browne and then Commissioner Raymond Kelly to discuss the deteriorating relationship between the NYPD and the media. The meeting occurred on November 23,2011. In response to the meeting, Commissioner Kelly merely issued a "FINEST message," reminding officers of their obligations
to cooperate with members of the media. Upon information or belief, neitherCommissioner
Kelly nor any other NYPD official has initiated any further training. These news organizations sent a follow up letter to Deputy Commissioner Browne onOctober 1, 2012 outlining additional infringements onthe rights ofmembers ofthe news media to document police activity. In addition, The General Counsel ofthe National Press Photographer's Association (NPPA) sent a letter to Deputy Commissioner Browne on August 16,2012 regarding the unlawful arrest of
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Robert Stolarik, aphotographer for The New York Times. Police officers allegedly intimidated, assaulted, and then arrested Mr. Stolarik for taking pictures ofan arrest that occurred in apublic place in the Bronx. Mr. Stolarik's arrest and detention received widespread media coverage, and
the charges against him were subsequently dismissed. 43. NYPD Patrol Guide, Section 208-03, "Arrests - General Processing,"
dictates that "speech,... taking photographs, videotapes or tape recordings ... [and] remaining in
the vicinity of the stop orarrest" do not constitute probable cause for the arrest ordetention ofan onlooker unless the officers orothers are directly endangered, orthe law is otherwise violated. Despite this provision inthe Patrol Guide, numerous NYPD officers have harassed, intimidated, assaulted, and arrested, threatened to arrest, and otherwise interfered with individuals who, without interfering with police activity, are attempting to record police activity. High-level NYPD officials, including the former and current Commissioners, are or should be aware of such repeated violations. Upon information and belief, the NYPD's policy, practice and custom of interfering with the rights ofindividuals attempting to record police activity violates the NYPD
Patrol Guide.
44. Upon information and belief, there is a policy, practice and custom of
NYPD officers employing cell phones to record individuals who are recording the police officers and not interfering with police activity, in violation ofthe individuals' First Amendment rights.
45. Theviolation of Ms. Goodman's rights was a direct result of the
deficiency inthe training and supervision ofOfficer Rodriguez and John Doe and Richard Roe. Among other deficiencies, they were insufficiently trained on how to respect the rights of individuals attempting to record police officers performing their official duties, as required by the NYPD Patrol Guide. Upon information and belief, the current training for NYPD officers
15

does not include sufficient training on the circumstances under which officers must allow people who observe police activity to record it. Further, upon information andbelief, the current training for NYPD officers does not include sufficient training regarding whenpolice officers may use theirown or NYPD issued recording devices to record individuals who are recording them. The pattern of similar constitutional violations by untrained employees has or should have provided
notice to policymaking officials. 46. City Defendants' failure to train and supervise constitutes deliberate
indifference to the constitutional rights of those with whom officers come into contact, including Plaintiff. Given the prevalence of smartphones and small portable cameras, the City Defendant and policymaking officials knew to a moral certainty that NYPD officers would come into contactwith individuals attempting to record police activity in public places. Further, the situation in which a member of the public records or attempts to record NYPD officers presents the officers with a difficult choice of the sort that training will make less difficult and City Defendant knew or should have known that there is a history of NYPD members mishandling the situation. Further, the NYPD and City Defendant should have known that officers taking inappropriate actions in these situationswould inevitablyand frequently result in deprivations of individuals' constitutional rights.
47. NYPD's policy, practice and custom of interferingwith the rights of individuals who, without interfering with police activity, are recording or attempting to record police activity is so persistent, widespread and pervasive as to constitute a 'custom or usage' and imply the constructive knowledge or acquiescence of policymaking officials. The numerous instances of abuse, a small number of which are mentioned in paragraph 40 above, the fact that several incidents were discussed in newspapers and on blogs, and the high ranking NYPD
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members whoreceived letters complaining about these types of abuses demonstrates that the policymakers were aware, or at a minimum should have been aware, of their subordinates' unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions. This practice andcustom of NYPD members violating the constitutional rights of individuals recording or attempting torecord NYPD officers is so persistent, widespread, and pervasive and the need for corrective action is so obvious, thatthe supervising policymakers' failure to take
action gives rise to an inference of their deliberate indifference, and their inaction constitutes a deliberate choice. Further, these policymaking officials' deliberate indifference to the constitutional deprivations caused by subordinates and their acquiescence may be properly thought of as a City policy, practice or custom.
48. In taking the actions described above, the Defendants were acting under
color of state law as aforesaid.
FIRST CLAIM FOR RELIEF Violation of Plaintiffs First Amendment Rights
49. Plaintiff repeats and realleges each and every allegation set forth above. 50. Plaintiff has an interest protected by the First Amendment. Defendants Rodriguez and John Doe and Richard Roe's actions were motivated or substantially caused by Plaintiffs exercise of her First Amendment right and effectively chilled the exercise of this right. 51. Defendants Rodriguez and John Doe and Richard Roe were at all relevant times agents, servants, and employees acting within the scope of their employment by the City of New York and the NYPD. The City of New York and the NYPD are responsible for Defendants Rodriguez and John Doe and Richard Roe's conduct. 52. Plaintiff suffered injury and damages as a result of Defendants' conduct.
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SECOND CLAIM FOR RELIEF Municipal Liability
53. Plaintiff repeats and realleges each and every allegation set forth above. 54. There isapolicy, practice and custom ofNYPD officers failing to respect
the First, Fourth and Fourteenth Amendment rights of individuals who, without interfering with police activity, are recording or attempting to record police officers performing their official
duties in public.
55. City Defendant, by and through its policymakers and agents, condoned, permitted, encouraged and/or ratified NYPD policies, practices and/or customs that permitted NYPD officers to recklessly disregard the rights ofindividuals who were recording or attempting to record police officers performing their official duties in public.
56. CityDefendant by and through its agents acted with deliberate
indifference to the rights ofindividuals with whom their employees were known to come into
contact, including Plaintiff.
57. The policies practices and/or customs served to ratify or tacitly authorize the unconstitutional actions ofthe employees and agents ofCity Defendant, caused Ms. Goodman to suffer constitutional violations, and were the moving force behind said deprivations.
58. City Defendant failed to train and supervise its officials, employees and agents, including Officer Rodriguez and John Doe and Richard Roe, regarding how to respect the rights ofindividuals attempting to record police officers performing their official duties so as to prevent the false arrest andfalse imprisonment of Plaintiff, which resulted in the violation of her
rightsunder the First, Fourth and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. § 1983.
59. City Defendant's failure to train and supervise amounts to deliberate
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indifference to the rights ofpersons with whom Defendants came into contact, including
Plaintiff.

conduct.

60. Plaintiff suffered injury and damages as a result of the Defendants'

THIRD CLAIM FOR RELIEF
Violation of Plaintiffs Fourth Amendment and Fourteenth Amendment Rights
61. Plaintiff repeats and realleges each and every allegation setforth above. 62. Defendants Rodriguez and John Doe and Richard Roe, who were acting in concert and within the scope oftheir authority, arrested and caused plaintiff to beimprisoned without probable cause inviolation of Plaintiffs right to befree of an unreasonable seizure under the Fourth Amendment to the Constitution of the United States, and to be free of a
deprivation of liberty under the Fourteenth Amendment to the Constitution of the United States. 63. Defendants Rodriguez and John Doe and Richard Roe were at all relevant
times agents, servants, and employees acting within the scope oftheir employment by the City of New York and the NYPD. The City of New York and the NYPD are responsible for Defendants
Rodriguez and John Doe and Richard Roe's conduct.
64. Plaintiffsuffered injury and damages as a result of Defendants' conduct.

FOURTH CLAIM FOR RELIEF Violation of Plaintiffs Fourth Amendment Right
65. Plaintiff repeats and realleges each and every allegation set forth above. 66. The use of excessive force by Defendants Rodriguez andJohnDoe and Richard Roe was an objectively unreasonable physical seizure ofplaintiff in violation ofher
rights under the Fourth Amendment to the Constitutionof the United States.

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67. Defendants Rodriguez and John Doe and Richard Roe were at all relevant
times agents, servants, and employees acting within the scope oftheir employment by the City of New York and the NYPD. The City of New York and the NYPD are responsible for Defendants
Rodriguez and John Doe and Richard Roe's conduct.
68. Plaintiff suffered injury and damages as a result of Defendants' conduct.
FIFTH CLAIM FOR RELIEF Assault
69. Plaintiff repeates and realleges eachand every allegation set forth above. 70. Defendants Rodriguez andJohn Doe and Richard Roe acting within the scope of theiremployment, intentionally, willfully and maliciously assaulted Plaintiff in that they had the real or apparent ability to cause imminent harmful and/or offensive bodily contact, and intentionally engaged in a violent and/or overt menacing act,which threatened such contact to the plaintiff, and thatsuch act(s) caused reasonable apprehension of such contact in theplaintiff. 71. Defendants Rodriguez and John Doe and Richard Roe were at all relevant times agents, servants, and employees acting within the scope of their employment by the City of NewYork and the NYPD. TheCity of New York and the NYPD are responsible for Defendants
Rodriguez and John Doe and Richard Roe's conduct. 72. Plaintiff suffered injury and damages as a result of Defendants' conduct. 73. Pursuantto 28 U.S.C. § 1367, this Court has pendant or supplemental
jurisdictionto hear and adjudicate such claims.
SIXTH CLAIM FOR RELIEF Battery
74. Plaintiffrepeats and realleges each and every allegation set forth above.
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75. Defendants Rodriguez and John Doe and Richard Roe, acting within the scope oftheir employment, intentionally, willfully, and maliciously battered Plaintiff when they, in a hostile and/or offensive manner struck plaintiff without her consent and with the intention of causing harmful and/or offensive bodily contact to the plaintiff and caused such battery.
76. Defendants Rodriguez and John Doe and Richard Roe were at all relevant
times agents, servants, and employees acting within the scope oftheir employment by the City of New York and the NYPD. The City of New York and the NYPD are responsible for Defendants
Rodriguez and John Doe and Richard Roe's conduct. 77. Plaintiffsuffered injury and damages as a result of Defendants' conduct. 78. Pursuant to 28 U.S.C. § 1367, this Court haspendant or supplemental
jurisdictionto hear and adjudicate such claims.
SEVENTH CLAIM FOR RELIEF False Arrest and False Imprisonment
79. Plaintiffrepeats and realleges each and every allegation set forth above. 80. The acts and conduct of DefendantsRodriguez and John Doe and Richard Roe constitute false arrest and false imprisonment under the laws of the State of New York. Defendants intended to confine Plaintiff, and, in fact, confined Plaintiff, and Plaintiffwas conscious of the confinement. Moreover, Plaintiff did not consent to the confinement and the confinement was not otherwise privileged. 81. Defendants Rodriguez and John Doe and Richard Roe were at all relevant
times agents, servants, and employees acting within the scope oftheir employment by the City of New York and the NYPD. The City of New York and the NYPD are responsible for Defendants
Rodriguez and John Doe and Richard Roe's conduct.
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82. Plaintiff suffered injury and damages as a result ofDefendants' conducts. 83. Pursuant to 28 U.S.C. § 1367, this Court has pendant orsupplemental jurisdiction to hearandadjudicate such claims.
EIGHTH CLAIM FOR RELIEF Malicious Prosecution
84. Plaintiff repeats and realleges each and every allegation set forth above. 85. The acts and conduct ofthe defendants constitute malicious prosecution under the laws of the State of New York and under the Fourth Amendment to the Constitution of the United States. Defendants commenced and continued acriminal proceeding against Plaintiff. Defendants acted with actual malice in commencing and continuing the proceeding and there was an absence ofprobable cause for the criminal proceeding. Furthermore, the criminal
proceeding was terminated favorably to Plaintiff.
86. Defendants were atall relevant times agents, servants and employees acting within the scope oftheir employment by the City ofNew York. The City ofNew York and the NYPD are responsible for Defendants Rodriguez and John Doe and Richard Roe's
conduct..
87. Plaintiff suffered injury and damages as a result of Defendants' conduct. 88. Pursuant to 28 U.S.C. § 1367, this Court has supplemental orpendant jurisdictionto hear and adjudicate such claims.
NINTH CLAIM FOR RF.I.TF.F
Negligent Hiring. Retention. Training and Supervision (State Lavri
89. Plaintiff repeats and realleges each and every allegation setforth above. 90. Defendant The City ofNew York and its employees, servants and/or
22

agents acting within the scope of their employment did negligently hire, retain, train and supervise Defendants Rodriguez and John Doe and Richard Roe, individuals who were unfit for the performance ofpolice duties onSeptember 25,2013, at the aforementioned location.
91. Plaintiff suffered injury and damages asa result ofthe Defendants'
conduct.
92. Pursuant to 28 U.S.C. § 1367, this Court has pendant orsupplemental
jurisdiction to hearand adjudicate such claims.
TENTH CLAIM FOR RELIEF
Violation of Article I, Section 8 of the New York Constitution 93. Plaintiff repeats and realleges each and every allegation set forth above. 94. Defendants violated Plaintiffs rights under Article I, Section 8 of the New
York Constitution.
95. Plaintiffsuffered injury and damages as a result of the Defendants'
conduct. JURY DEMAND
96. Plaintiff demands trialby jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffpraysfor reliefas follows: A. A declaratory judgment that Defendants violated the Plaintiffs rights under the First, Fourth and Fourteenth Amendments to the Constitution of the United States and 42U.S.C. § 1983, and Article I, Sections 8 of the New York State Constitution, and violated the
laws ofthe State ofNew York, and that Ms. Goodman's attempted recording was an act of
23

speech protected by the First and Fourteenth Amendments to the United States Constitution, and
Article I, Section 8 of the New York Constitution.
B. A permanent injunction preventing the City of New York and its
employees from retaliating against orotherwise punishing Plaintiff or anyone who, without interfering with police activity, records or attempts to record police officers performing official
duties in public.
C. That the juryfind and the Court adjudge and decree thatplaintiff Debra Goodman shall recover compensatory damages in an amount to be determined at trial against the individual defendants and the City ofNew York;, jointly and severally, together with interests and costs, and punitive damages in anamount to be determined at trial against the individual defendants, jointly and severally.
D. That the plaintiffrecoverthe cost of this suit, including reasonable attorneys' fees pursuant to 42 U.S.C. § 1988.
E. That the Plaintiff have such other and further relief as the Court shall
deem just and proper.

Dated:

July 14,2014 New York, New York

SIEGEL TEITELBAUM & EVANS, LI
vrM

erbert Teitelbaum
Sharon Sprayregen
260 Madison Avenue, 22n* Eoor
New York, NY 10016 (212) 455-0300
24

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: &m£ HjhM HyAft v Earl Ward
75 Rockefeller Plaza, 20th Floor
New York, NY 10019 (212) 763-5070
eward@ecbalaw.com
ATTORNEYS FOR PLAINTIFF
25

 
 Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 1 of 14

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------- x
DEBRA GOODMAN,

USDCSDNY

DOCUMENT ELECTRONICALLY FILED

DOC#:_ _ ___,,_.,._-::--

DATE FILED: 'L I {51 Ii~

I

I

Plaintiff,

14 Civ. 5261 (CM)

-against-

THE CITY OF NEW YORK, et. al.,

Defendants.

-----------------------------------------------------------------x
PRELIMINARY STATEMENT Defendant Police Officer Steven Rodriguez, the only individually named defendant in

this case, has moved for summary judgment dismissing some of the plaintiff's claims on the

ground that he is qualifiedly immune from suit. A videotape made contemporaneously with the

plaintiff's arrest reveals that the officer had at the very least arguable probable cause to arrest

plaintiff; plaintiff's self-serving testimony to the contrary has no probative value, for the reasons

articulated by the United States Supreme Court in Scott v. Harris, 550 U.S. 372 (2007).

Therefore, Rodriguez's motion is granted, and the plaintiff's Fourth Amendment claims for false

arrest and malicious prosecution, as well as her First Amendment claims against him, are

dismissed with prejudice. No motion was made for summary judgment dismissing plaintiff's

excessive force claim, so that issue will be litigated.

FACTUAL STATEMENT The facts set forth herein are based upon plaintiff's admissions in her deposition and

complaint, as well as what is reflected on P.O. Rodriguez's video of a portion of the incident.

For purposes of this motion, defendant is limiting the facts relied on to (1) plaintiff's version of

1

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 2 of 14
what happened, and (2) the indisputable video evidence. Obviously, defendant is not thereby precluding himself from offering evidence once this motion is decided.
Plaintiff is a citizen who frequently films or photographs police officers and other public officials in the performance of their duties. She has been recording police "interactions" with citizens for almost three years. (Goodman EBT at 21). She keeps videos and still photographs that, in her opinion, demonstrate official misconduct (Goodman EBT at 25); she also posts such videos and photographs on Facebook, Twitter and YouTube (Goodman EBT at 44).
In the early evening hours of September 25, 2013, EMT personnel were helping a woman who was confined to a motorized wheelchair in the vicinity of Broadway and 73rd Street, New York, New, York. The chair had ceased operating because of a battery problem. (Defendant's Local Rule 56.1 Statement, ~ 1). Three police officers, including defendant P.O. Steven Rodriguez, were present at the scene, about 20 feet away from where the EMTs were attending the woman. (Defendant's Local Rule 56.1 Statement,~ 2; Goodman EBT at 52-53).
Plaintiff was walking north on Broadway when she encountered this activity. She decided that she should record this particular "interaction" - apparently because she overheard one of the EMTs telling the woman, "You can't just call 911 when you run out of juice." (Goodman EBT at 54). Plaintiff walked about 10 feet beyond where the officers were standingbecause she "always like[s] to leave at least ten feet between me and the police" (Goodman EBT at 53) - and held up her smartphone to try to record whatever might happen. Her phone did not record anything because it was "out of memory." (Defendant's Local Rule 56.1 Statement,~ 3)
P.O. Rodriguez, however, did record a portion of his interaction with plaintiff - in his words, to "cover myself' because "I don't know what you're about." This is a transcript of what can be heard on the videotape made by P.O. Rodriguez after he approached plaintiff:
2

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 3 of 14
01 (Rodriguez): Is there anything wrong ma'am, is there anything I can help you with? DF: (Plaintiff): Yes I was just going to tape your interaction and now you're breaking the
law 01: Okay and now I'm taping your interaction DF: No, you're breaking the law no 01: Ma'am I'm covering myself I don't know what you're about DF: No, no, no, no, no 01: You're getting a little angry ma'am, you gotta calm yourself down DF: When you're in uniform, you don't have ... 01 : We're working on something ma' am.... 02: Would you go over there now, I have a patient here ... DF: Get your hand out of my face 02: Could you move out of the way, we have a patient DF: Are you fucking ..... Although the video tape did not capture the entirety of what Plaintiff said, Plaintiff herself testified that she said, "Are you fucking kidding me?" (Defendant's Local Rule 56.1 Statement,~ 7; Goodman EBT at 63). Immediately after she said that, she was arrested. Plaintiff believed that the officer had no right to film her because she was not breaking any law (Goodman EBT at 55-56). She testified that Rodriguez was about three feet from her "normal talking distance" (Goodman EBT at 55) - when they "exchanged words" (at least two of which were "fuck you," see Goodman EBT at 69) and "disagreed" about whether he had the right to videotape her. (Defendant's Local Rule 56.1Statement,ii4; Goodman EBT at 61). When their argument took place, plaintiff estimated that she was standing about 20 feet from the EMT technicians who were working with the wheelchair-bound woman. (Defendant's Local Rule 56.1
3

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 4 of 14
Statement, iiii5, 9). The video does not show how far plaintiff was from the EMTs and the woman in the wheelchair, because of the location of P.O. Rodriguez, who was, according to plaintiff, standing about three feet from her while recording her.
Plaintiff testified that she was speaking to the officer in her "normal" and "basic" tone of vmce (Goodman EBT at 59), although she admitted, "I raised my voice a little" as their interaction proceeded (Goodman EBT at 62).
At her deposition Plaintiff repeatedly denied that the EMT technician who came up to her asked her to "move out of the way." She testified that the EMT technician said only "that's enough" when he/she approached. (Goodman EBT at 62-63). Plaintiff also testified at her deposition that she was never "asked to step back" or "move back" or "go away" from the vicinity of the incident. However, on the video an officer (not 01, who is Rodriguez, the officer who was videotaping plaintiff over her objection, but a different officer, with a different voice) can be heard saying both , "Move out of the way," and "Would you please get over there," to plaintiff. (Defendant's Local Rule 56.l Statement, ii 10, 11). Plaintiffs full response to this order, by her own admission, was, "Are you fucking kidding me?"
After Plaintiff was arrested, she was charged with, among other things, obstruction of governmental administration (New York Penal Law 195.05) and disorderly conduct (New York Penal Law 240.20(3)). (Defendant's Local Rule 56.1 Statement, ii 8). The charges against plaintiff were eventually dismissed, but on "speedy trial" grounds rather than on the merits. (Defendant's Local Rule 56.1 Statement, ii 13).
4

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 5 of 14
DECISION A. Legal Standard for Summary Judgment
Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). To survive summary judgment, however, the non-moving party must produce evidence to support her case and "may not rely simply on conclusory statements or on contentions that the [admissible evidence] supporting the motion [is] not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Further, evidence that is "merely colorable or not significantly probative" is insufficient to defeat a motion for summary judgment. Lane Capital Mgmt., Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 346 (2d Cir. 1999); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).
It is well-settled that the party opposing a motion for summary judgment "cannot rely on conclusory statements in the pleadings or insupportable allegations made by affidavit." Cornett v. Sheldon, 894 F. Supp. 715, 724 (S.D.N.Y. 1995) (citing Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983)). In particular, "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts
5

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 6 of 14
the affiant's previous deposition testimony." Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996.)
Further, "When opposing parties tell two different stories, one of which is blatantly contradicted by the record so that no reasonable juror could believe it, a court should not adopt that version of events for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). In Scott, the United States Supreme Court ruled that a court confronted with a motion for summary judgment should not conclude that a plaintiffs testimony raised a genuine issue of disputed fact when that testimony was contradicted by a video recording of the very incident to which the testimony related. Id. Significantly, the Scott ruling came in the context of a motion for summary judgment on the ground of qualified immunity, which is the context presently confronting the court. B. Legal Standard for Qualified Immunity
The United States Supreme Court recently summarized the law on the doctrine of qualified immunity:
The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law. Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (citations and internal brackets and quotation marks omitted). The standard is a "'forgiving"' one. Amore v. Novarro, 624 F.3d 522, 531 (2d Cir. 2010):
6

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 7 of 14
In an unlawful arrest action, an officer is subject to suit only if his judgment was so flawed that no reasonable officer would have made a similar choice. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Id. (citations and internal quotation marks and ellipsis omitted). "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (internal quotation marks and brackets omitted). As explained by the Second Circuit, "existing precedent must have placed the statutory or constitutional question beyond debate." Fabrikant v. French, 691F.3d193, 213 (2d Cir. 2012) (citing Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011)). The United States Supreme Court has stated that the right the official is alleged to have violated must have been "clearly established in a more particularized, and hence more relevant, sense." Saucier v. Katz, 533 U.S. 194, 202 (2001) (internal quotations omitted). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [governmental official] that his conduct was unlawful in the situation he confronted." Id. Even if the right at issue was clearly established in certain respects, "an officer is still entitled to qualified immunity if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Walczyk v. Rio, 496 F. 3d 139, 154 (2d Cir. 2007) (internal citations omitted). Qualified immunity is applicable regardless of "whether the government official's error is a mistake oflaw, fact or a mistake based on mixed questions of law and fact." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). '"The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983."' Amore, 624 F3d at 536. Even in the absence of probable cause, this Court, for the
7

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 8 of 14
purpose of determining whether an officer is entitled to qualified immunity, will "examine
whether there is 'arguable probable cause.'" Id. Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met. In deciding whether an officer's conduct was objectively reasonable for purposes of qualified immunity, [this Court] look[s] to the information possessed by the officer at the time of the arrest, but [this Court] do[es] not consider the subjective intent, motives, or beliefs of the officer. Id. (citations and internal quotation marks omitted).
Id. See also, Alhovsky v. Paul, 406 F. App'x 535, 536 (2d Cir. 2011). "In deciding whether an officer's conduct was 'objectively reasonable' for purposes of qualified immunity, [the Second Circuit] look[s] to the information possessed by the officer at the time of the arrest." Amore, 624 at 536. "An officer's actions are objectively unreasonable when no officer of reasonable competence could have made the same choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). C. Legal Standard for Probable Cause to Arrest
Probable cause is a complete defense to an action for false arrest or malicious prosecution. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). Defendant argues that he had probable cause to arrest plaintiff and submits that, at the very least, there was "arguable probable cause" for plaintiffs arrest.
"A comi assessing probable cause must 'examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause."' Marcavage v. City of New York, 689 F.3d 98, 109 (2d Cir. 2012) (quoting Maryland v. Pringle, 540 U.S. 366 (2003)).
Probable cause exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an
8

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 9 of 14
offense has been committed by the person to be arrested." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citing O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)); Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003). Probable cause requires only a probability, not an actual showing, of criminal activity. Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983); Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F. Supp. 351, 354 (S.D.N.Y. 1992), affd, 993 F.2d 1534 (2d Cir. 1993). Moreover, the validity of an arrest does not depend upon an ultimate finding of guilt or innocence. Pierson v. Ray, 386 U.S. 547, 555 (1967); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Thus, whether the suspect was later acquitted of the charges for which he was arrested is irrelevant to a determination of probable cause at the time of arrest. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). D. There Was Arguable Probable Cause to Arrest Plaintiff for
Obstruction of Governmental Administration I agree with Rodriguez that there was, at a minimum, "arguable probable cause" to arrest and prosecute plaintiff on a charge of obstruction of governmental administration, New York Penal Code §195.05. Under New York law, obstructing governmental administration has four elements: "1) prevention or attempt to prevent 2) a public servant from performing 3) an official function 4) by means of intimidation, force or interference." Lennon v. Miller, 66 F.3d at 424. The law prohibits "an intentional insertion of one's self or one's intentions into steps taken by police officers to fulfill their duties." People v. Beam, 866 N.Y.S.2d 564, 567 (N.Y. Sup. Ct. 2008). "The obvious and well-settled intent of the statute is to allow police officers to go about their business without any obstacles put in their way." Id. "Interrelated conduct-'actions coupled with words"' is sufficient to satisfy OGA's physical component requirement. Breitkopf v.
9

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 10 of 14
Gentile, 12 Civ. 1084 (JFB), 2014 U.S. Dist. LEXIS 121581, at *110-111 (E.D.N.Y. Aug. 29, 2014) (citing In re Davan L., 91 N.Y.2d 88, 91-92 (1997); see also Petway v. City of New York, 12 Civ. 279 (ARR), 2014 U.S. Dist. LEXIS 28361, at *21-22 (E.D.N.Y. Mar. 4, 2014) (reasonable police officer warranted in believing that individual was too close to scene in order to contain situation where "commotion" was being caused).
Obstruction of Governmental Administration may also be predicated on "a defendant's refusal to obey orders to leave a premises....to 'step back' from an accident scene or to keep away from an area where a disturbance is taking place." Wilder v. Village of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y. 2003); see also Decker, supra, 981 F. Supp. 851 at 858 (probable cause existed where plaintiff disobeyed orders to step back from scene of car accident involving his wife).
Here, there was "arguable probable cause" for plaintiffs arrest and prosecution based on the charge of obstruction of governmental administration, as the elements thereof are met by plaintiffs undisputed conduct as captured on the videotape.
First, there can be no dispute that P.O. Rodriguez and the EMTs were "public servants" who were engaged in the performance of an "official function" at the time of the underlying incident. Rodriguez was on duty at the scene where the EMT technicians were helping a woman whose motorized wheelchair was not working at a busy Upper West Side intersection. (Defendant's Local Rule 56.1 Statement,~~ 1-2) On the videotape, he can be heard telling the plaintiff that he and others at the scene were "working."
Second, the indisputable evidence demonstrates that plaintiff at least arguably inserted herself into the situation, in which she was not otherwise a participant, in a manner that could
10

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 11 of 14
reasonably be interpreted as "interfering" with the officers and thereby "preventing or attempting to prevent" both P.O. Rodriguez and the EMT technicians from performing their duties.
Plaintiff was admittedly in the vicinity of the EMT technicians as they were trying to do their work. She was arguing with Rodriguez about whether he could videotape her in an agitated manner, which caused him to ask her (politely, it must be said) to calm down. The altercation was obviously interfering with the EMTs, because one of them approached and asked plaintiff to "go over there" and "move out of the way, we have a patient." Instead of moving back, plaintiff (by her own admission, see Goodman EBT at 63), refused and uttered an obscenity at the EMT technician. It was only at that point - after plaintiff refused the EMT technician's direction that she move away from a location where public servants were trying to perform an official function - that Rodriguez arrested her.
On those undisputed (and indisputable) facts, it is at the very least arguable that plaintiff was interfering with the EMTs in the performance of their duties, and that she was attempting to interfere with P.O. Rodriguez in the performance of his duties as an officer assigned to support that endeavor. Once she refused to "move out of the way" in response to a direct order, there was at least arguable probable cause to arrest her for obstructing governmental administration.
The video taken by P.O. Rodriguez during the incident gives the lie to plaintiffs assertions that she was not asked to move out of the way by an EMT who was trying to concentrate on his work. After Scott, plaintiff cannot create a genuine issue of material fact by giving deposition testimony that is at odds with the "irrefutable" videotape evidence. The video alone dooms plaintiffs claims for false arrest and malicious prosecution.
Why plaintiff thought the police might "interact" with the lady in the wheelchair in a way that plaintiff would find objectionable is a mystery, but it is not a mystery this court needs to
11

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 12 of 14
solve. By interjecting herself into that situation in a hostile manner, and then refusing to move out of the way when directed to do so, plaintiff put herself in a position where a reasonable police officer could have thought her guilty of obstructing governmental administration as defined in N.Y. Penal Law§ 240.20. Because there was "arguable probable cause" to arrest and prosecute plaintiff, Officer Rodriguez enjoys qualified immunity from suit on her claims of false arrest and malicious prosecution, and those claims must be dismissed.
Because discussion of obstruction of governmental administration resolves this aspect of the motion, there is no need to entertain whether the officer had probable cause to arrest plaintiff for disorderly conduct.
POINT II THE DEFENDANT POLICE OFFICER RODRIGUEZ IS ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFF'S FIRST AMENDMENT RETALIATION CLAIM Plaintiff also claims First Amendment retaliation. The elements of First Amendment retaliation are that 1) plaintiff had an interest protected by the First Amendment; and 2) defendants' actions were motivated by or substantially caused by the exercise of that right. Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). Qualified immunity as to this claim should be granted to the defendant P.O. Rodriguez for two reasons. First, as seen above, there was, at the very least, "arguable probable cause" for plaintiff's arrest for obstruction of governmental administration. When reasonable grounds existed for the defendant to believe that there was probable cause to arrest the plaintiff for some other reason, a plaintiff cannot possibly prevail on a claim that she was arrested in retaliation for the exercise of her First Amendment rights. See Mozzochi v. Borden, 959 F. 2d 1174, 1179 (2d Cir. 1992).
12

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 13 of 14
Second, neither the United States Supreme Court nor the Second Circuit has squarely ruled that the First Amendment protects an individual who is trying to film ongoing police activity, especially if that is interfering with the performance of official duties. Therefore, the law on this issue is not "clearly established" in any "particularize[d]" way for purposes of qualified immunity analysis. Saucier v. Katz, 533 U.S. 194, 202 (2001) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). It is true that three other circuits have recognized a First Amendment right to film police interactions in public locations -- albeit subject to certain reasonable restrictions on the time, place and manner of filming -- while one has refused to recognize such a First Amendment right. See ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Smith v. City of Cumming, 212 F.3d 1332 (11 1hCir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); but see True Blue Auctions v. Foster, 528 F. App'x 190 (3d Cir. 2013)(no such right recognized). I would be greatly surprised to learn that these or any court would deem it unreasonable to ask a filmer to get out of the way so as not to interfere with the performance of some official function.
Since it cannot be said that P.O. Rodriguez violated a "clearly established" First Amendment right to record police activities, See Ortiz v. City of New York, 11 Civ. 7919 (JMF), 2013 U.S. Dist. LEXIS 136897, at *8-11 (S.D.N.Y. Sept. 24, 2013), he is entitled to qualified immunity on plaintiffs First Amendment retaliation claim as well.
CONCLUSION For the foregoing reasons, plaintiff's claims for false arrest, malicious prosecution and First Amendment retaliation against defendant Police Officer Steven Rodriguez are dismissed because the officer defendant is shielded by qualified immunity.
13

Case 1:14-cv-05261-CM Document 26 Filed 02/18/15 Page 14 of 14

This leaves but one claim for further litigation: plaintiffs allegation that Rodriguez used excessive for on her in connection with this incident. The parties have until April 30, to complete discovery on this issue. Plaintiff must tum over any pertinent medical authorizations by February 25; otherwise she will be barred from offering proof of medical injury.

Dated:

New York, New York February 1g, 2014

BY ECF TO ALL COUNSEL

.~. U.S.D.J.

14

 
 Case 1:14-cv-05261-CM Document 30 Filed 04/20/15 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTIIERN DISTRICT OF NEW YORK
DEBRA GOODMAN,
-againstTHE CITY OF NEW YORK, el. al.,

USDCSDNY

DOCUMENT

ELECTRONICALLY FILED

DOC#:- - - - : DATE FILED:

H-'--/}-•J-C,f1,t,S-

-

-

---J,'-F--l~:___

STIPULATION AND Plaintiff, ORDER OF DISMISSAL

14 Civ. 5261 (CM)

Defendants.

WHEREAS, the parties have reached a settlement agreement and now desire to resolve the remaining issues raised in this litigation, without further proceedings and without admitting any fault or liability;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, that
1. The above-referenced action is hereby dismissed with prejudice; and

Case 1:14-cv-05261-CM Document 30 Filed 04/20/15 Page 2 of 2

2. Notwithstanding the dismissal of this action in accordance with this agreement, the District Court shall continue to maintain jurisdiction over this action for the purpose of enforcing the terms of the settlement agreement reached between the parties and set forth in the Stipulation of Settlement executed by the parties in this matter.

Ir Dated: ~t~;'.t ~~:-~~~5

SIEGEL TEITELBAUM & EVANS, LLP

Attorneys for Plai1;t&l

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ZACHARY W. CARTER Corporation Counsel of the
City of New York Attorney for Defendants City and Rodriguez 100 Church Street, 3rd Floor
By: N~o~-1~~~ ----
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HON. COLLEN MCMAHON UNITED STATES DISTRICT JUDGE

~ DatedJ:Q

........ · 2015

2

 
 Case: 1:14-cv-5261 As of: 10/31/2017 03:01 PM EDT 1 of 4
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:14−cv−05261−CM

CLOSED,ECF

Goodman v. The City Of New York , et al Assigned to: Judge Colleen McMahon Cause: 42:1983 Prisoner Civil Rights
Plaintiff Debra Goodman

Date Filed: 07/15/2014 Date Terminated: 04/20/2015 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Earl S Ward Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza 20th Flr. New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: eward@ecbalaw.com TERMINATED: 11/05/2014 LEAD ATTORNEY
Herbert Teitelbaum Bryan Cave LLP (NY) 1290 Avenue of Americas New York, NY 10104 (212) 541−2000 Fax: 212−541−1383 Email: hteitelbaum@stellp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman H Siegel Siegel Teitelbaum & Evans LLP 260 Madison Ave 22nd Floor New York, NY 10016 212 455−0300 Fax: 212 448−0066 Email: siegelnorman@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Vicky Sprayregen Siegel Teitelbaum & Evans, LLP 260 Madison Ave New York, NY 10016 (212)−455−0300 Fax: (212)−455−0301 Email: ssprayregen@stellp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant The City Of New York ,

represented by Mark David Zuckerman NYC Law Department 100 Church Street, RM3−200 New York, NY 10007 (212)−442−8248 Fax: (212)−788−9776

Case: 1:14-cv-5261 As of: 10/31/2017 03:01 PM EDT 2 of 4

Email: mzuckerm@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Police Officer Steven Rodriguez Shield no. 28141

represented by Mark David Zuckerman NYC Law Department 100 Church Street, RM2−171 New York, NY 10007 (212)−442−8248 Fax: (212)−788−9776 Email: mzuckerm@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Police Officers John Doe

Defendant Richard Roe

Defendant
other unidentified member of the New York City Police Department

Date Filed 07/15/2014
07/15/2014 07/15/2014 07/15/2014 07/15/2014 07/15/2014
07/22/2014 08/04/2014
08/07/2014 08/07/2014

# Docket Text
1 COMPLAINT against Police Officers John Doe, Steven Rodriguez, Richard Roe, The City Of New York,, other unidentified member of the New York City Police Department. (Filing Fee $ 350.00, Receipt Number 465401100149)Document filed by Debra Goodman.(moh) (Entered: 07/16/2014)
SUMMONS ISSUED as to Police Officers John Doe, Steven Rodriguez, Richard Roe, The City Of New York,, other unidentified member of the New York City Police Department. (moh) (Entered: 07/16/2014)
Magistrate Judge Andrew J. Peck is so designated. (moh) (Entered: 07/16/2014)
Case Designated ECF. (moh) (Entered: 07/16/2014)
2 CIVIL COVER SHEET filed. (moh) (Entered: 07/16/2014)
NOTICE OF PARTICIPATION IN SECTION 1983 PLAN: Unless otherwise ordered, this case shall participate in the Southern District of New York's Plan for Certain Section 1983 Cases against The City of New York (the "Section 1983 Plan"). Please reference the Court's website, www.nysd.uscourts.gov, to review the Section 1983 Plan, updated 1/2/2014, for important information.(rpr) (Entered: 07/17/2014)
3 NOTICE OF APPEARANCE by Mark David Zuckerman on behalf of The City Of New York,. (Zuckerman, Mark) (Entered: 07/22/2014)
4 AFFIDAVIT OF SERVICE. The City Of New York, served on 7/18/2014, answer due 8/8/2014. Service was accepted by B. Yee − designated agent of the Law Dept of the City of New York. Document filed by Debra Goodman. (Sprayregen, Sharon) (Entered: 08/04/2014)
5 AFFIDAVIT OF SERVICE. Steven Rodriguez served on 7/24/2014, answer due 8/14/2014. Service was accepted by Brandi Clark, co−worker of defendant. Document filed by Debra Goodman. (Sprayregen, Sharon) (Entered: 08/07/2014)
6 LETTER addressed to Judge Colleen McMahon from Norman Siegel, Herbert Teitelbaum, Earl Ward, Sharon Sprayregen, dated August 7, 2014 re: Exemption from the Section 1983 Plan. Document filed by Debra Goodman.(Sprayregen, Sharon) (Entered: 08/07/2014)

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08/08/2014 10/03/2014 10/03/2014 10/17/2014
10/17/2014 10/17/2014 11/03/2014 11/03/2014 11/03/2014 11/03/2014 11/04/2014 11/04/2014 11/05/2014 11/17/2014
11/17/2014
11/18/2014
11/24/2014

7 MEMO ENDORSEMENT on re: 6 Letter filed by Debra Goodman. ENDORSEMENT: So Ordered. The City Of New York, answer due 10/6/2014. (Signed by Judge Colleen McMahon on 8/8 /2014) (ja) (Entered: 08/08/2014)
8 ANSWER to 1 Complaint, with JURY DEMAND. Document filed by Steven Rodriguez, The City Of New York,.(Zuckerman, Mark) (Entered: 10/03/2014)
9 MOTION for Summary Judgment (qualified immunity). Document filed by Steven Rodriguez.(Zuckerman, Mark) (Entered: 10/03/2014)
10 ENDORSED LETTER addressed to Judge Colleen McMahon from Sharon Sprayregen dated 10/16/2014 re: We write to confirm our understanding of Your Honor's rules regarding the motion schedule for summary judgment motions premised on qualified immunity. ENDORSEMENT: You have 30 days to take an EBT and 2 weeks thereafter to file your response. If it is so unclear why, in all these years, has no one ever felt the need to ask? (Signed by Judge Colleen McMahon on 10/17/2014) (kgo) (Entered: 10/17/2014)
11 MOTION for Earl S. Ward to Withdraw as Attorney . Document filed by Debra Goodman.(Ward, Earl) (Entered: 10/17/2014)
12 AFFIRMATION of Earl S. Ward in Support re: 11 MOTION for Earl S. Ward to Withdraw as Attorney .. Document filed by Debra Goodman. (Ward, Earl) (Entered: 10/17/2014)
13 MOTION for Partial Summary Judgment (qualified immunity). Document filed by Steven Rodriguez.(Zuckerman, Mark) (Entered: 11/03/2014)
14 RULE 56.1 STATEMENT. Document filed by Steven Rodriguez. (Zuckerman, Mark) (Entered: 11/03/2014)
15 DECLARATION of Mark D. Zuckerman in Support re: 13 MOTION for Partial Summary Judgment (qualified immunity).. Document filed by Steven Rodriguez. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Zuckerman, Mark) (Entered: 11/03/2014)
16 MEMORANDUM OF LAW in Support re: 13 MOTION for Partial Summary Judgment (qualified immunity). . Document filed by Steven Rodriguez. (Zuckerman, Mark) (Entered: 11/03/2014)
18 LETTER addressed to Judge Colleen McMahon from Earl S. Ward dated 11/4/14 re: motion to withdraw, dkt. 11. Document filed by Debra Goodman.(Ward, Earl) (Entered: 11/04/2014)
21 EXHIBIT B (in hard copy CD format) re: 15 to the Declaration of Mark D. Zuckerman. ***Accepted for filing by Judge McMahon on 11/5/2014.(tn) (Entered: 11/12/2014)
19 MEMO ENDORSEMENT granting 11 Motion to Withdraw as Attorney. ENDORSEMENT: granted (***Attorney Earl S Ward terminated.) (Signed by Judge Colleen McMahon on 11/5/2014) (kgo) (Entered: 11/05/2014)
22 DECLARATION of Herbert Teitelbaum in Opposition re: 9 MOTION for Summary Judgment (qualified immunity)., 13 MOTION for Partial Summary Judgment (qualified immunity).. Document filed by Debra Goodman. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Sprayregen, Sharon) (Entered: 11/17/2014)
23 RESPONSE to Motion re: 9 MOTION for Summary Judgment (qualified immunity)., 13 MOTION for Partial Summary Judgment (qualified immunity). Response to Defendant's Rule 56.1 Sttement. Document filed by Debra Goodman. (Sprayregen, Sharon) (Entered: 11/17/2014)
24 MEMORANDUM OF LAW in Opposition re: 9 MOTION for Summary Judgment (qualified immunity)., 13 MOTION for Partial Summary Judgment (qualified immunity). . Document filed by Debra Goodman. (Sprayregen, Sharon) (Entered: 11/18/2014)
25 REPLY MEMORANDUM OF LAW in Support re: 13 MOTION for Partial Summary Judgment (qualified immunity). . Document filed by Steven Rodriguez. (Zuckerman,

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02/17/2015 02/18/2015
02/18/2015 02/24/2015
03/11/2015 03/11/2015 03/11/2015 03/25/2015 04/20/2015

Mark) (Entered: 11/24/2014)
***DELETED DOCUMENT. Deleted document number 26 ORDER. The document was incorrectly filed in this case. (kgo) (Entered: 02/17/2015)
26 ORDER: For the foregoing reasons herein, plaintiff's claims for false arrest, malicious prosecution and First Amendment retaliation against defendant Police Officer Steven Rodriguez are dismissed because the officer defendant is shielded by qualified immunity. This leaves but one claim for further litigation: plaintiff's allegation that Rodriguez used excessive for on her in connection with this incident. The parties have until April 30, to complete discovery on this issue. Plaintiff must tum over any pertinent medical authorizations by February 25; otherwise she will be barred from offering proof of medical injury. (Signed by Judge Colleen McMahon on 2/18/2015) (kgo) (Entered: 02/18/2015)
Set/Reset Deadlines: Discovery due by 4/30/2015. (kgo) (Entered: 02/18/2015)
27 ORDER granting 9 Motion for Summary Judgment; granting 13 Motion for Partial Summary Judgment. On October 3, 2014 and November 3, 2014 individual defendant Steven Rodriguez filed motions for partial summary judgment on the basis of qualified immunity with respect to all of Plaintiff's claims other than excessive force. (Docket ##9, 13.) On February 18, 2015, I issued an order granting those motions. (Docket #26.) The Clerk of the Court is therefore directed to remove Docket #9 and Docket #13 from the Court's list of pending motions. (Signed by Judge Colleen McMahon on 2/24/2015) (kgo) (Entered: 02/24/2015)
28 NOTICE OF INTERLOCUTORY APPEAL from 26 Order,,. Document filed by Debra Goodman. Filing fee $ 505.00, receipt number 0208−10688265. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Sprayregen, Sharon) (Entered: 03/11/2015)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 28 Notice of Interlocutory Appeal. (tp) (Entered: 03/11/2015)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 28 Notice of Interlocutory Appeal filed by Debra Goodman were transmitted to the U.S. Court of Appeals. (tp) (Entered: 03/11/2015)
29 MANDATE of USCA (Certified Copy) as to 28 Notice of Interlocutory Appeal filed by Debra Goodman USCA Case Number 15−764....that the appeal is hereby WITHDRAWN pursuant to Rule 42 of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 03/25/2015. (nd) (Entered: 03/26/2015)
30 STIPULATION AND ORDER OF DISMISSAL: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, that The above−referenced action is hereby dismissed with prejudice; Notwithstanding the dismissal of this action in accordance with this agreement, the District Court shall continue to maintain jurisdiction over this action for the purpose of enforcing the terms of the settlement agreement reached between the parties and set forth in the Stipulation of Settlement executed by the parties in this matter. SO ORDERED. (Signed by Judge Colleen McMahon on 4/20/2015) (ama) (Entered: 04/20/2015)