Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 1 of 39

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------x

JULIE LAWLER,

Plaintiff,

COMPLAINT AND DEMAND FOR A JURY TRIAL

-v-

12-CV-5843

THE CITY OF NEW YORK, New York City Police Department CHIEF JOSEPH ESPOSITO, New York City Police Department INSPECTOR ANTHONY BOLOGNA, and OFFICER JOHN DOE 1 through OFFICER JOHN DOE 43 (the names John Doe being fictitious, as the true names and shield numbers are presently unknown), in their individual and official capacities,

Defendants. ------------------------------------------------------------------------x

“What a huge debt this nation owes to its ‘troublemakers.’ From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply…troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protesters a fair amount of slack.” Garcia v. Bloomberg, 11-CV-6957 (JSR), 2012 WL 2045756, at *1 (S.D.N.Y. June 7, 2012)

Plaintiff JULIE LAWLER, by her attorney DAVID B. RANKIN of Rankin & Taylor, PLLC, as and for her complaint, hereby states and alleges:
PRELIMINARY STATEMENT 1. This is a civil rights action brought to vindicate plaintiff’s rights under the First, Fourth and
Fourteenth Amendments of the Constitution of the United States, through the Civil Rights Act of 1871, as amended, codified as 42 U.S.C. § 1983, with pendant claims under the Constitution and laws of the State of New York.
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2. Plaintiff JULIE LAWLER’s rights were violated on September 24, 2011, when officers of the NEW YORK CITY POLICE DEPARTMENT (“NYPD”) unconstitutionally and without any legal basis used gratuitous, unlawful force against her. By reason of defendants’ actions, including their unreasonable use of force, Ms. LAWLER was deprived of her constitutional and common law rights.
3. Ms. LAWLER also seeks an award of compensatory and punitive damages and attorneys’ fees.
4. Ms. LAWLER also seeks injunctive relief in the form of a permanent injunction requiring the CITY OF NEW YORK to create and implement a policy regarding the use of force upon persons involved in public demonstrations that conforms with federal constitutional standards and to create and implement reporting systems to record all uses of force by NYPD officers during public demonstrations, with the Court to retain jurisdiction of this matter to ensure compliance by the defendants. JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction over federal claims pursuant to 28 U.S.C. §§ 1331, 1343 (3-4). This action is brought pursuant to 42 U.S.C. §§ 1983, 1988 for violations of Ms. LAWLER’s rights under the First, Fourth and Fourteenth Amendments to the Constitution of the United States.
6. This Court has supplemental jurisdiction over Ms. LAWLER’s claims against defendants under the Constitution and laws of the State of New York because they are so related to the federal claims that they form part of the same case or controversy pursuant to 28 U.S.C. § 1367(a).
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7. Pursuant to New York State General Obligations Law § 50-G, on or about October 11, 2011, Ms. LAWLER filed a timely Notice of Claim with the New York City Comptroller within ninety (90) days of the events herein complained of.
8. None of Ms. LAWLER’s claims have been adjusted by the New York City Comptroller’s Office.
9. Venue is proper pursuant to 28 U.S.C. § 1391 in that Ms. LAWLER’s claims arose in the Southern District of New York.
10. An award of costs and attorneys’ fees is authorized pursuant to 42 U.S.C. § 1988. PARTIES
11. Plaintiff JULIE LAWLER was at all times relevant to this action, a resident of the State of New York and New York County. At present she is a resident of the State of Tennessee and Hamilton County.
12. Defendant THE CITY OF NEW YORK (“CITY”) is a municipal entity created and authorized under the laws of the State of 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 is ultimately responsible. Defendant CITY 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 provided by NYPD.
13. Defendant JOSEPH ESPOSITO is and was at all times the Chief of the NYPD Department and is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and/or customs complained of herein. He is sued in his individual and official capacities.
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14. Defendants New York City Police Department INSPECTOR ANTHONY BOLOGNA, and OFFICER JOHN DOE 1 through OFFICER JOHN DOE 43 are and were at all times relevant herein, officers, employees and agents of the NYPD. The individual defendants are being sued herein in their individual and official capacities.
15. At all times relevant herein, the individual 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 NYPD, and otherwise performed and engaged in conduct incidental to the performance of their lawful functions in the course of their duties. They were acting for and on behalf of the NYPD at all times relevant herein, with the power and authority vested 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.
16. The true names and shield numbers of defendants OFFICER JOHN DOE 1 through OFFICER JOHN DOE 431 are not currently known to Ms. LAWLER. However, all of said defendants are employees or agents of the NYPD. Accordingly, said defendants are entitled to representation in this action by the New York City Law Department (“Law Department”) upon their request, pursuant to N.Y. G.O.L. § 50-E. The Law Department, then, is hereby put on notice (a) that Ms. LAWLER intends to name said officers as defendants in an amended pleading once their true names and shield numbers become known to Ms. LAWLER and (b) that the Law Department should immediately begin preparing their defense in this action.
17. Defendants’ acts hereafter complained of were carried out intentionally, recklessly, with malice and gross disregard for Ms. LAWLER’s rights.

1

By using the name “John Doe,” Ms. LAWLER is making no representations as to the gender of the officer.

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18. At all relevant times, the defendants were engaged in a joint venture, assisting each other in performing the various actions described herein and lending their physical presence and support and the authority of their offices to one another. STATEMENT OF FACTS
19. The events herein complained of occurred principally in the vicinity of Union Square Park in the County of New York on the afternoon of September 24, 2011, where Ms. LAWLER was marching in support of the then-nascent Occupy Wall Street movement.
20. Persons associated with Occupy Wall Street come from different backgrounds, including elderly and young people, those with college and graduate degrees and those without institutional schooling, and those with jobs and those who were laid off and are otherwise unemployed. These people come from all racial and ethnic groups and many religions.
21. A central tenet of Occupy Wall Street is that the growing income inequality in the United States is unjust, unacceptable, and must be rectified. Occupy Wall Street has petitioned the government to redress this grievance through demonstrations in New York City and throughout the country and the world.
22. Ms. LAWLER joined events in support of Occupy Wall Street since its inception on September 17, 2011.
23. On September 24, 2011, Ms. LAWLER joined other Occupy Wall Street demonstrators in Liberty Plaza Park for a march in support of the movement. She was part of the march when it arrived in Union Square Park.
24. Upon information and belief, at approximately noon on September 24, 2011, in the vicinity of Union Square Park, officers of the NYPD, including at least some of the individual defendants, were deployed to the site of protected First Amendment activity, namely, a
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march of at least one thousand people in support of the then-nascent Occupy Wall Street movement. 25. When the march arrived in the vicinity of Broadway and 14th Street, it was met by scores of DOE officers with orange nets. 26. Upon information and belief, pursuant to customary practice, CHIEF ESPOSITO would have to receive notice of, and give consent for, the use of orange nets to stop, re-route and/or detain persons participating in the march near Union Square Park. Upon information and belief, CHIEF ESPOSITO personally authorized the use of orange netting against demonstrators in and around Union Square Park. 27. While Ms. LAWLER and other demonstrators were inside Union Square Park, NYPD officers deployed nets across 14th Street, the southern boundary of the park. 28. Ms. LAWLER stayed in Union Square for approximately 15 minutes after officers deployed the nets. 29. Ms. LAWLER then walked south to University Place and 12th Street with a group of other demonstrators to get away from the crowd and the NYPD’s orange nets. 30. Accordingly, Ms. LAWLER walked south on University Place, on the west side of the street between 14th and 12th Streets, until OFFICER DOE 1 through OFFICER DOE 20 deployed orange netting across University Place and forced Ms. LAWLER and others to go west onto 12th Street’s northern sidewalk. 31. After she turned the corner of 12th Street and University Place and started to walk west, Ms. LAWLER saw approximately 20 or more police officers – OFFICER DOE 21 through OFFICER DOE 40 – holding a net about 30 feet west from the corner of 12th Street and
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University Place. This net spanned the length of both the street and the sidewalk, making passage west impossible. 32. NYPD OFFICER JOHN DOE 41, an African American male in his late 20’s or early 30’s (approximately 5’11” and 250 lbs.) grabbed Ms. LAWLER and pushed her against the wall of a building on the north side of 12th Street. 33. The NYPD used orange nets to completely surround a group of people, including Ms. LAWLER, on the north sidewalk of 12th Street. 34. Ms. LAWLER was completely surrounded between two sets of NYPD officers holding police nets, unable to go south or west for approximately 20 minutes. 35. During this time, Ms. LAWLER observed officers using unprovoked force against demonstrators and bystanders alike. 36. While Ms. LAWLER was standing on the sidewalk trapped inside the nets, INSPECTOR BOLOGNA deployed his pepperspray directly into the group of demonstrators, including Ms. LAWLER, who were completely surrounded by orange netting. INSPECTOR BOLOGNA’s pepperspray went directly into Ms. LAWLER’s right eye from a distance three-to-five feet. The pepperspray went into Ms. LAWLER’s lungs and burned the skin on her face, arms and hands. 2 37. OFFICER DOE 42 and OFFICER DOE 43 were in the immediate vicinity of Ms. LAWLER, the orange nets, and INSPECTOR BOLOGNA when BOLOGNA approached the area with a can of pepperspray in his hand. Any reasonable observer, including OFFICER DOE 42 and OFFICER DOE 43 would have known INSPECTOR BOLOGNA intended to use his

2

Pepper spray, also known as OC spray, can cause “temporary blindness which lasts from 15–30 minutes, a

burning sensation of the skin which lasts from 45 to 60 minutes, upper body spasms which force a person to bend

forward and uncontrollable coughing making it difficult to breathe or speak for between 3 to 15 minutes.” See

European Parliament Scientific and Technological Options Assessment, "An Appraisal of Technologies of Political

Control" (1998), available online at http://aei.pitt.edu/5538/1/5538.pdf (last accessed on June 12, 2012).

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pepperspray against compliant demonstrators who were already detained in the orange netting. Nevertheless, neither OFFICER DOE 42 nor OFFICER DOE 43 did anything to prevent INSPECTOR BOLOGNA from using such force despite its obvious unlawfulness. 38. Immediately upon being hit with INSPECTOR BOLOGNA’s pepperspray, Ms. LAWLER felt a searing, burning sensation in and around her eyes and face, like a hot iron, causing her to drop to the ground. 39. Ms. LAWLER was completely blind for several minutes after she was hit with pepperspray. She was wearing contact lenses and had to remove them after the spraying, thereby getting more of the pepperspray into her eyes. Her eyes continued to intensely burn and were swollen for at least the next hour. 40. Onlookers requested that NYPD officers at the scene call for medical assistance to help Ms. LAWLER and others affected by INSPECTOR BOLOGNA’s unprovoked assault, but the requests were ignored. 41. Other than the unlawful detention within the orange netting, Ms. LAWLER was not formally arrested or charged with any crime or violation of any law in connection with the events of September 24, 2011. 42. As a result of defendants’ conduct alleged herein, Ms. LAWLER experienced irritation in her eyes for the three weeks that followed and had to treat the irritation with eye drops. 43. As a result of defendants’ conduct alleged herein, Ms. LAWLER becomes nervous when she is near police officers. 44. Ms. LAWLER first participated in an Occupy Wall Street event on September 18, 2011 when she visited Liberty Plaza, the center for organizing for Occupy Wall Street, and attended a general assembly, Occupy Wall Street’s decision-making body. Her participation in the
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September 24, 2011 action at Union Square was her second attendance of an Occupy event. As a result of the defendants’ conduct alleged herein, Ms. LAWLER’s participation in Occupy-related activities decreased in the weeks after the incident due to her fear of police.
FIRST CLAIM DEPRIVATION OF RIGHTS UNDER THE UNITED STATES CONSTITUTION THROUGH 42 U.S.C. § 1983 45. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 46. Defendants, under color of state law, subjected Ms. LAWLER to the foregoing acts and omissions without due process of law and in violation of the rights, privileges and immunities secured by the First, Fourth, and Fourteenth Amendments to the United States Constitution through 42 U.S.C. § 1983, including, without limitation, deprivation of the following constitutional rights: a. freedom from unreasonable seizure, including the excessive use of force; b. freedom from unlawful detention, meaning wrongful detention without good faith, reasonable suspicion or legal justification, and of which plaintiff was aware and did not consent; c. freedom from interference with activity protected by the First Amendment; d. freedom from retaliatory use of force; e. the right to equal protection under the laws; and f. freedom from deprivation of liberty without due process of law. 47. Defendants’ deprivation of Ms. LAWLER’s constitutional rights resulted in the injuries and damages set forth above.
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SECOND CLAIM FAILURE TO INTERVENE – FOURTH AMENDMENT – 42 U.S.C. § 1983 48. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 49. Members of the NYPD have an affirmative duty to assess the constitutionality of interactions between their fellow members of service and civilians and to intervene where they observe another member of the Police Department or other law enforcement agency employing unjustified and excessive force against a civilian. 50. Several of the individual defendants, working as a unit, were present for the above-described incidents and witnessed other defendants, to wit, unlawfully detain Ms. LAWLER and use unlawful force against her. 51. For instance, INSPECTOR BOLOGNA’s use of force against Ms. LAWLER was obviously excessive and unjustified under the circumstances yet neither OFFICER DOE 42 nor OFFICER DOE 43 took any action or made any effort to intervene, halt or protect Ms. LAWLER from being subjected to excessive force by INSPECTOR BOLOGNA. 52. The DOE defendants’ violations of plaintiff’s constitutional rights by failing to intervene in BOLOGNA’s clearly unconstitutional use of force resulted in the injuries and damages set forth above.
THIRD CLAIM MONELL CLAIM AGAINST DEFENDANT CITY – 42 U.S.C. § 1983 53. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 54. All of the acts and omissions by the named and unnamed individual officer defendants described above were carried out pursuant to overlapping policies and practices of the CITY
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which were in existence at the time of the conduct alleged herein and were engaged in with the full knowledge, consent, and cooperation and under the supervisory authority of the CITY and its agency, the NYPD. 55. Defendant CITY and the NYPD, by their policy-making agents, servants and employees, authorized, sanctioned and/or ratified the individual defendants’ wrongful acts; and/or failed to prevent or stop those acts; and/or allowed or encouraged those acts to continue. 56. The acts complained of were carried out by the aforementioned individual defendants in their capacities as police officers and officials pursuant to customs, policies, usages, practices, procedures and rules of the CITY and the NYPD, all under the supervision of ranking officers of the NYPD. 57. The aforementioned customs, practices, procedures and rules of the CITY and the NYPD include, but are not limited to, the following unconstitutional practices: (a) using excessive force on persons engaged in activity protected by the First Amendment; (b) unlawful detention of civilians engaged in activity protected by the First Amendment; (c) retaliating against bystanders and witnesses to misconduct by other police officers; (d) failing to supervise, train, instruct and discipline police officers and encouraging their misconduct, including but not limited to defendant BOLOGNA; and (e) discouraging police officers from reporting the corrupt or unlawful acts of other police officers and retaliating against officers who report police misconduct. 58. The existence of the aforesaid unconstitutional customs and practices, specifically with regard to the use of excessive force, unlawful detention, interference with protected First Amendment activity, retaliatory use of force, abuse of process and deprivation of liberty without due process of law against individuals apparently associated with
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Occupy Wall Street while engaged in protected First Amendment activity, are further
evidenced, inter alia, by the following incidents involving NYPD officers and OWS
protestors:3
September 19, 2011
a. On September 19, 2011, an NYPD officer “reached over a curbside barricade” and grabbed an OWS protester. The protester backed away, and the officer “lunged forward, holding onto the man and toppling the metal barricade.” The officer then brought the protester to the ground. The journalist stated that the incident happened after the officer “ordered [the man] …to keep moving” and the man “spoke to the inspector for a moment, then lifted his hands and said that he was having difficulty moving.”4
September 20, 2011
b. On September 20, 2011, police surrounded an OWS protester, who appeared to be moving away from the officers, and threw him several feet off an elevated section of tarp onto the ground.5
c. An NYPD officer grabbed a man (who was holding a camera and appeared to be documenting the arrest of another protester) by the arm and pulled him several feet back. It appeared that the man was given no warning before being grabbed and pulled.6
d. Video shows that two officers dragged a protester by his legs to the edge of the sidewalk and bound his hands with flex-cuffs.7 A second video shows the same protester lying on the sidewalk with his hands under his back, bound with flex-cuffs. One hand is visibly more discolored than the other and blood is on one of the

3

All of the foregoing allegations are taken from the research compiled by The Global Justice Clinic at the

New York University School of Law and the Walter Leitner International Human Rights Clinic at the Leitner Center

for International Law and Justice at Fordham Law School in their publication entitled Suppressing Protest: Human

Rights Violations in the U.S. Response to Occupy Wall Street, published July 25, 2012, available online at

http://www.documentcloud.org/documents/403969-suppressing-protest.html (last visited July 25, 2012).

4

Colin Moynihan, Wall Street Protests Continue, With at Least 6 Arrested, N.Y. TIMES (Sept. 19, 2011,

12:28 PM), http://cityroom.blogs.nytimes.com/2011/09/19/wall-street-protests-continue-with-at-least-5-arrested/.

5

WeAreTheOther99, Wall St Occupiers - Zuccotti Park Violent Arrest - 9/20/11 #OccupyWallStreet,

YOUTUBE (Sept. 20, 2011), http://www.youtube.com/watch?v=hTJH4ZZU_oA (throw to ground at 0:23).

6

LibertyPlazaRev, “I Can’t Breathe!” - Police Shoving at 10:30AM at Liberty Plaza #Occupywallstreet,

YOUTUBE (Sept. 20, 2011), http://www.youtube.com/watch?v=ck5fgzK24hg&feature=related (grab and pull at

2:18).

7

greekcabanaboy, Occupy Wall Street Violence… Are We Free?, YOUTUBE (Sept. 21, 2011),

http://www.youtube.com/watch?v=4ChtkSparT0&feature=related (drag at 1:46).

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protester’s fingers. The protester stated “this is really, really tight, it’s…cutting circulation off my hands. It hurts a lot.”8
e. An NYPD officer punched an OWS protester in the head, grabbed him by the neck and pulled him to the ground, without evident provocation.9 A journalist also reported the incident and provided a segment of the above video, stating that the video “shows an officer in a white shirt throwing a right-handed punch at a young man wearing a Tshirt and glasses.”10
September 24, 2011
f. On September 24, 2011, a journalist stated that police threw him against a wall while he was attempting to interview protesters. The journalist stated that he was holding a microphone and wearing an ID badge at the time.11
g. Video shows that an officer reached across orange netting to grab a protester and pulled her to the ground; other officers then dragged her to the curb by her backpack, the straps of which appeared to be wrapped around her neck.12
h. Video shows that an OWS protester was being surrounded and held by three officers. It is unclear whether or not the protester was passively resisting their attempts to lead him away. One of the officers then pushed him to the ground, and the officers then proceeded to handcuff and arrest the protester.13
i. Video shows that an officer grabbed an individual (who was holding a camera) by his head and swung him against a car and to the ground. Video appears to show that the protester was attempting to document the arrest of another protester prior to being thrown. 14 A second video shows that the protester was kneeling down and documenting an arrest when an officer pushed him away. The protester was attempting to get closer to the arrest when another officer pushed him backward even

8

FilteredInc, Occupy Wall Street Violent Treason Police Crime Pig Brutality – Victim Jason Ahmadi Others,

YOUTUBE (Sept. 20, 2011), http://www.youtube.com/watch?v=nbOXXOrx6FY (discoloration and statements at

2:06).

9

LibertyPlazaRev, 09 21 2011 Police Forcefully Grab a Young Man! #occupywallstreet, YOUTUBE (Sept.

21, 2011), http://www.youtube.com/watch?v=Pu8mlfBrpy8&feature=related%20%281:30%29 (punch and pull to

ground at 1:24).

10

Colin Moynihan, For Commander Tied to Punching Incident, Evidence of a Blow Weeks Earlier, N.Y.

TIMES (Oct. 20, 2011, 12:53 PM), http://cityroom.blogs.nytimes.com/2011/10/20/for-commander-tied-to-punching-

incident-evidence-of-a-blow-weeks-earlier/.

11

John Farley, Jailed for Covering the Wall Street Protests: Getting Arrested Alongside Citizen Journalists

Gave Me a Taste of the Risks These Non-Professionals Take, SALON.COM (Sept. 28, 2011),

http://www.salon.com/2011/09/28/wall_

street_protest_arrested/.

12

LibertyPlazaRev, Unbelievable Protest Footage. NYPD Drag Girl Across the Street, YOUTUBE (Sept. 24,

2011), http://www.youtube.com/watch?v=eU9Dx0x9h4A (grab and pull at 3:18, drag at 3:23).

13

LibertyPlazaRev, NYPD Officers Give Peaceful Protester a Concussion During Occupy Wall Street,

YOUTUBE (Sept. 24, 2011), http://www.youtube.com/watch?v=PcBX5lupbjQ (push to ground at 0:03).

14

LibertyPlazaRev, Unbelievable Protest Footage. NYPD Drag Girl Across the Street, YOUTUBE (Sept. 24,

2011), http://www.youtube.com/watch?v=eU9Dx0x9h4A (throw to ground at 3:05).

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further, at which point a third officer threw him to the ground. It is unclear whether the protester initiated contact with the second pushing officer.15 The protester stated in an interview that he was filming “police brutality” when he was pushed and thrown down, and that two officers hit him with batons which “burst open” his shin.16
j. Video shows that two NYPD officers pulled an OWS protester to the ground. Prior to the incident, the protester was standing in the street, holding up a flag and yelling, “Is this what you’re about?”17 Another video appears to show that one of the officers knelt with his knee on the protester’s throat for approximately three seconds.
k. Video shows that an officer pushed three protesters from the street to the sidewalk. The third protester was already walking toward the sidewalk when he was pushed.18
l. A journalist stated he witnessed “about 20 or 30 police officers tackle people and prod them roughly with police batons.”19
m. A journalist who was arrested reported he met a woman “in visible pain from the plastic handcuffs” while riding in a police van. The journalist reported that the woman was arrested after she took a picture of the protests.20
October 5, 2011
n. On October 5, 2011, video shows that an NYPD officer struck an OWS protester with a one-handed baton swing while holding onto the protester’s arm. Several more officers then ran in and threw the protester to the ground. It is unclear from the video whether the protester was resisting the officer or whether there was another cause for the baton use.21
o. Video news report shows that an NYPD officer took at least nine two-handed overarm swings at OWS protesters with his baton. The officer appeared to connect on at least three swings, although the video does not clearly show the swings landing. A

15

AndroidArm, NYPD Pepper Sprays Peaceful Protesters, YOUTUBE (Sept. 24, 2011),

http://www.youtube.com/watch?v=nMoKsZp5iao (pushes at 0:36 and 0:39).

16

Ariel Finegold, Swat Alums Face Brutality During “Occupy Wall Street,” DAILY GAZETTE (Oct. 3, 2011),

http://daily.swarthmore.edu/2011/10/03/swat-alums-face-police-brutality-during-occupy-wall-street-2/ (interviewing

the videographer allegedly thrown to the ground).

17

LibertyPlazaRev, Unbelievable Protest Footage. NYPD Drag Girl Across the Street, YOUTUBE (Sept. 24,

2011), http://www.youtube.com/watch?v=eU9Dx0x9h4A (pull to ground at 6:17).

18

greekcabanaboy, Occupy Wall Street Police Abuse, YOUTUBE (Sept. 24, 2011),

https://www.youtube.com/watch?feature=player_embedded&v=uiraDbcx14c#! (pushes at 1:03).

19

John Farley, Jailed for Covering the Wall Street Protests: Getting Arrested Alongside Citizen Journalists

Gave Me a Taste of the Risks These Non-Professionals Take, SALON.COM (Sept. 28, 2011),

http://www.salon.com/2011/09/28/wall_street_protest_arrested/.

20

John Farley, Jailed for Covering the Wall Street Protests: Getting Arrested Alongside Citizen Journalists

Gave Me a Taste of the Risks These Non-Professionals Take, SALON.COM (Sept. 28, 2011),

http://www.salon.com/2011/09/28/wall_

street_protest_arrested/.

21

TheThirdAlbum, Occupy Wall Street “Peaceful Until Tonight” Oct 5, 2011, YOUTUBE (Oct. 7, 2011),

http://www.youtube.com/watch?v=BRKPEQLDZ7o (baton swing at 3:19, throw to ground at 3:23).

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reporter stated in the news report that he “took a hit from a nightstick in the stomach.”22
p. Video shows that an NYPD officer took two one-handed swings with his baton at OWS protestors. It appears that the officer also swung the baton a third time, although the officer’s arm and baton are out of the viewing frame. The video also appears to show that an officer struck the man recording the video with a baton while simultaneously yelling, “back up!” The officer did not appear to give the videographer any time to comply before striking him.23 A second video appears to show an officer hitting a protester with a one-handed baton swing. Although the circumstances prior to the swing are unknown, the protester appeared to be seated on the ground and did not appear to be threatening the officer. The actual contact is not clearly shown in the video.24
October 14, 2011
q. On October 14, 2011, two journalists reported, “photographs from the scene showed an [NYPD] officer behind the barricade directing a stream of pepper spray at people trying to shove their way past.”25 A reporter stated in a video news report that “Fox 5 photographer Roy Isen got sprayed with mace” while covering the OWS protests.26 A second video shows an officer spraying pepper spray at least twice into a crowd of OWS protesters and at least one journalist. It is unclear whether the video depicts the incident described in the news reports or a separate incident. It is also unclear whether the officer was a member of the Disorder Control Unit (the only unit in the NYPD authorized to use pepper spray for disorder control).27 A third video also appears to show police spraying protesters with pepper spray, followed by shouts of “pepper spray!” from the crowd. It is unclear whether this video shows the same instance as the first video or the news reports, or whether it depicts a separate incident.28

22

Occupy Wall Street Arrests; Fox 5 Crew and Protesters Hit by Pepper Spray, Batons, MYFOXNY.COM

(Oct. 5, 2011, 7:11 PM), http://www.myfoxny.com/story/17398216/occupy-wall-street-arrests-fox-5-crew-and-

protesters-hit-by-pepper-spray-batons (allegation in video at 0:45).

23

wearechange, Luke Rudkowski Attacked by Police, Baton to the Gut at Occupy Wall Street Arrests,

YOUTUBE (Oct. 5, 2011), http://www.youtube.com/watch?v=-YXuvhg8Ahw (baton swings at 0:25, videographer

hit at 0:45).

24

SurvivalWithBushcraf, Police Brutality – Wall Street Protesters Maced, Punched, Kicked, Clubbed Oct. 5

2011 8:45 PM, YOUTUBE (Oct. 6, 2011), http://www.youtube.com/watch?v=DVH2iS38JS4 (baton swing at 0:36).

25

Andy Newman & Colin Moynihan, 23 Arrested Wednesday in Wall St. Protest, N.Y. TIMES (Oct. 6, 2011,

10:22 AM), http://cityroom.blogs.nytimes.com/2011/10/06/23-arrested-wednesday-in-wall-st-protest/.

26

Occupy Wall Street Arrests; Fox 5 Crew and Protesters Hit by Pepper Spray, Batons, MYFOXNY.COM

(Oct. 5, 2011, 7:11 PM), http://www.myfoxny.com/story/17398216/occupy-wall-street-arrests-fox-5-crew-and-

protesters-hit-by-pepper-spray-batons (allegation in video at 0:45).

27

glassbeadian, Police Club, Pepper Spray #occupywallstreet Protestors @ Wall Street 10.05.11, YOUTUBE

(Oct. 5, 2011), http://www.youtube.com/watch?v=ELEBAGIool0 (pepper spray at 0:23).

28

wearechange, Luke Rudkowski Attacked by Police, Baton to the Gut at Occupy Wall Street Arrests,

YOUTUBE (Oct. 5, 2011), http://www.youtube.com/watch?v=-YXuvhg8Ahw (pepper spray at 0:16).

15

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 16 of 39

r. Video shows that an NYPD officer sprayed multiple OWS protesters with pepper spray. The video appears to show that the officer sprayed continuously for approximately eight seconds, pointing the spray at any protester who came near.29
s. A journalist reported that an NYPD officer “grabbed an [OWS] protester wearing a green shirt. Then the [officer] punched the man, knocking him to the ground.”30 Video shows that the officer punched a protester in the head. The protester was backing away from the officer at the time of the punch and appeared to make a downward swiping motion with his arm prior to the punch; it is unclear what the intent of this motion was. 31 In an interview, the protester stated that he did not provoke the officer. He also stated: “I was walking away from him, I was not walking toward him . . . I was going away. I didn’t say anything [to the officer].”32
t. A journalist stated he was struck in the shoulder without warning by a detective wearing a suit while taking video.33
u. Video shows that an officer drove a scooter at a crowd of people, including journalists and legal observers. The video then shows a legal observer lying on the ground screaming, his foot under the scooter.34 Another video shows the observer kicked the scooter off or away from his leg, at which point officers dragged the observer several feet and began to cuff him. While he was being cuffed, an officer pushed the observer’s face into the pavement by pressing his baton across the back of the observer’s neck. The same video contains an interview with the observer’s legal counsel, who stated the observer suffered facial lacerations and was hospitalized.35
October 15, 2011
v. On October 15, 2011, video shows an officer punched a protester three times in the head while two other officers attempted to pull the protester away from a crowd,

29

SurvivalWithBushcraf, Police Brutality – Wall Street Protesters Maced, Punched, Kicked, Clubbed Oct. 5

2011 8:45 PM, YOUTUBE (Oct. 6, 2011), http://www.youtube.com/watch?v=DVH2iS38JS4 (pepper spray at 0:48).

30

Colin Moynihan, For Commander Tied to Punching Incident, Evidence of a Blow Weeks Earlier, N.Y.

TIMES (Oct. 20, 2011, 12:53 PM), http://cityroom.blogs.nytimes.com/2011/10/20/for-commander-tied-to-punching-

incident-evidence-of-a-blow-weeks-earlier/.

31

ReasonTV, NYPD Cop Punches Protester at Occupy Wall Street, 10/14/11, YOUTUBE (Oct. 14, 2011),

http://www.youtube.com/watch?v=JZcJ31g0ScQ&feature=related (punch at 1:41).

32

Dan Freed, Protester Hit by Cop Tells His Story, THESTREET (Oct. 14, 2011, 2:58 PM),

http://www.thestreet.com/video/11278124/protester-hit-by-cop-tells-his-story.html (statements at 0:18 and 0:40).

33

Tweet by Michael Tracey (Journalist), TWITTER (Oct. 14, 2011, 7:57 AM),

https://twitter.com/mtracey/status/124816134380855296 (stating the allegation and linking to a picture of the

detective allegedly responsible).

34

Greenwichdiva, Occupy Wall Street Protest March Marred By Video Appearing to Show NYPD Scooter Hit

Man.mp4, YOUTUBE (Oct. 14, 2011), http://www.youtube.com/watch?v=BGGuPV0bPR0 (officer driving scooter at

0:13, legal observer on ground and screaming at 0:20). See also RussiaToday, Video: ‘Occupy Wall Street’ NYPD

‘Runs Over’ Protester with Scooter, YOUTUBE (Oct. 14, 2011), http://www.youtube.com/watch?v=cyyDjHy4S7Y

(contact with scooter at 0:06).

35

LeakSourceArchive, Occupy Wall Street: Interview with Lawyer Representing Protester Run Over by

NYPD Motorcycle, YOUTUBE (Oct. 15, 2011), http://www.youtube.com/watch?v=jWGSz-YwOkM (kicked scooter,

drag, push into ground, and baton at 2:54; statement of observer’s injuries at 0:28).

16

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 17 of 39
presumably to arrest him. Before the incident, the protester appeared to push an officer away before other officers began to pull him out of the crowd.36
w. A journalist asked a non-uniformed officer for his name at a march, the officer pushed the journalist against a wall and held him there, threatening him by stating if he kept asking questions, he would get “his fucking ass beat.” The journalist recorded interviews with two bystanders immediately after the incident. One bystander stated he witnessed the officer using abusive language toward the journalist and that the officer “put his chest in your face and pushed you around.” The other bystander told the journalist the officer “[got] up in your face and [shouted] at you. He pressed you against the wall of the supermarket.”37
x. Video shows an officer swinging his baton in a one-handed overhead swing at least two times into a crowd of protesters. It appeared the officer was attempting to force protesters to release their grip on a metal barricade; police were attempting to move the barricade several feet over and protesters appeared to grab onto it as it moved by them. The officer appeared to strike at protesters’ hands, after which police successfully moved the barricade away from the crowd. It is unclear whether the baton swings made contact with protesters. A witness stated she observed an officer hitting a protester with an overhead baton swing. It is unclear the witness’s description is of the same incident or a separate one.38
y. CBS News reported “[p]olice, some in riot gear and mounted on horses, tried to push [protesters] out of the square and onto the sidewalks in an attempt to funnel the crowds away.”39 Video shows officers on horseback pushed a crowd of protesters back. A journalist reported that at one point, “[a] mounted officer spurred his horse forward, ramming demonstrators, and the scene quickly descended into chaos.”40
October 26, 2011
z. On October 26, 2011, video appears to show an officer punched an individual three times while the protester was on the ground (the actual contact is blocked from view). It is unclear from the video what circumstances preceded the punches.41

36

dr3amstat3s, Police and Protesters Clash @ Occupy Wall Street, YOUTUBE (Oct. 17, 2011),

http://www.youtube.com/watch?v=50OPmupLeY4&feature=related (punch at 0:49).

37

mtraceyvideos, Eyewitnesses Describe the Violent Actions of NYPD Official, YOUTUBE (Oct. 17, 2011),

http://www.youtube.com/watch?v=d5i8MzcnDd8&feature=channel_video_title (statements from witnesses

beginning at 0:20).

38

dr3amstat3s, Police and Protesters Class @ Occupy Wall Street, YOUTUBE (Oct. 17, 2011),

http://www.youtube.com/watch?v=50OPmupLeY4&feature=related (baton swings at 0:11).

39

Thousands of Protesters Fill NYC’s Times Square, CBS NEWS (Oct. 15, 2011, 4:59 PM),

http://www.cbsnews.com/2100-201_162-20120944.html.

40

Michael Tracey, Why Did the NYPD Use Horses on Occupy Wall Street Protesters?, NATION (Oct. 25,

2011), http://www.thenation.com/article/164167/why-did-nypd-use-horses-occupy-wall-street-protesters#.

41

DacocoaProductions, #OWS 10-26-11 City Hall to Union Square NYPD Part 4, YOUTUBE (Oct. 27, 2011),

http://www.youtube.com/watch?v=rNPB-vb34A0&feature=fvwrel (punches at 3:49).

17

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aa. Video shows an officer swung at a protester four times with one-handed overhead baton swings. Video clearly shows at least one of the swings struck the protester in the right shoulder; the other swings appeared to land on the protester’s shoulder as well, but are less clear. The officer appeared to be attempting to force the protester to release his grip on another protester, whom the police were trying to remove from the crowd.42
bb. Video appears to show an officer swung his baton at a protester with a one-handed overhead swing (the actual contact is blocked from view). The officer appeared to be attempting to keep other protesters away from the person he was holding down on the ground.43
November 15, 2011
cc. In the early morning hours of November 15, 2011, scores of NYPD officers descended on Liberty Plaza to forcefully evict the protestors from their symbolic around-the-clock encampment. Hours later, demonstrators obtained a temporary restraining order from a Justice of the New York County Supreme Court which ordered the police could not prevent demonstrators from being in Liberty Plaza pending further hearing. Despite the unambiguous court order, however, the NYPD ignored the order and prevented demonstrators from being in the park pending the hearing.44
dd. Two journalists reported being pushed by police; one of the journalists was attempting to document an arrest at the time.45
ee. The New York Times and multiple other news organizations and advocacy groups sent a letter to the NYPD alleging that, after announcing that credentialed press must “leave the park immediately or be subject to arrest,” a Community Affairs officer “grabbed one newspaper photographer and dragged him from the park.”46
ff. A journalist reported an officer shoved a legal observer, also a retired judge, against a wall after she demanded the officer stop beating a protester.47 The legal observer

42

Id. (baton swings at 2:01).

43

Id. (baton swing at 2:38).

44

Order, In the Matter of the Application of Jennifer Waller, et al. v. The City of New York, et al.,

112957/2011 (Sup. Ct., N.Y. Co. Part 21), November 15, 2011, at 1-3, available online at

http://lawprofessors.typepad.com/files/ows111511.pdf

45

Tweet by Julie Shapiro (Journalist, DNAinfo.com), TWITTER (Nov. 15, 2:14 AM),

https://twitter.com/julieshapiro/status/136341232812167168 (“Got shoved by an NYPD officer for the first time.

Getting scary down here.”); Tweet by Josh Harkinson (Journalist, Mother Jones Magazine), TWITTER (Nov. 15,

2011, 4:16 AM), https://twitter.com/JoshHarkinson/status/136371962011332608 (“Cops just violently shoved me

away as I tried to shoot this man in a stretcher being loaded into ambulance twitpic.com/7efa2v”).

46

Letter from George Freeman, Vice President & Asst. Gen. Counsel, N.Y. Times Co., et al., to Paul J.

Browne, Deputy Comm’r of Pub. Info., N.Y.C. Police Dep’t (Nov. 21, 2011), available at

http://www.nyclu.org/files/releases/DCPI%20Letter%20-%20Signed%2011-21-11.pdf.

47

You Want to Get Arrested, Lady? The Retired Judge Shoved Up Against a Wall and Threatened by NYPD

at Occupy Wall Street Clashes, MAILONLINE.COM (Nov. 20, 2011,10:53 AM),

18

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 19 of 39
described the incident in an interview: the officer “said, ‘Lady, do you want to get arrested?’ And I said, ‘Do you see my hat? I’m here as a legal observer.’ He said, ‘Do you want to get arrested?’ And he pushed me up against the wall.”48
gg. A civil complaint alleged officers tackled City Council member Ydanis Rodriguez to the ground and struck him.49 A journalist reported that the City Council member stated that the officer “threw his body in front of me and started hitting my head on the street . . . I was assaulted by NY police officers.” Neither the complaint nor the journalist report indicates whether officers used weapons. 50 Another journalist reported that “when [the City Council member] emerged after 20 hours in custody, he had a gash over his eye that he says was the result of police brutality.”51 The City Council member was initially charged with resisting arrest, but his charges were dropped. The City Council member stated that he “was acting legally as an observer, which is [his] right as an elected official.”52
hh. A civil complaint stated several allegations of excessive force by officers against protester Michael Rivas: “pushing him repeatedly, punching him in the face, slamming a car door on his foot five times, and, after hand-cuffing him, spraying him with pepper spray and hitting him with a nightstick.”53
ii. A civil complaint alleged officers tackled a protester, an Iraq war veteran, to the ground and struck him “repeatedly.” The complaint does not state where the protester was struck or whether it was with weapons. The alleged victim had allegedly attempted to pull a fellow protester away who was being “brutalized by police officers while he was on the ground, not resisting.”54

http://www.dailymail.co.uk/news/article-2063716/Occupy-Wall-Street-Retired-JUDGE-shoved-wall-threatened-

NYPD.html.

48

Former Seattle Police Chief Norm Stamper on Paramilitary Policing from WTO to Occupy Wall Street,

DEMOCRACY NOW! (Nov. 17, 2011),

http://www.democracynow.org/2011/11/17/paramilitary_policing_of_occupy_wall_street (providing a video

interview given by the legal observer who was allegedly pushed, stating what occurred at 41:05).

49

Complaint at ¶ 508, N.Y.C. Council Member Rodriguez v. Deputy Inspector Winski, 2012 WL 1470305

(S.D.N.Y.) (No. 1:12CV03389).

50

Cindy Y. Rodriguez, Ydanis Rodriguez Arrested: New York City Council Member Hit and Arrested During

Police Raid at Zuccotti Park, HUFFINGTON POST (Nov. 15, 2011, 10:00 AM),

http://www.huffingtonpost.com/2011/11/15/ydanis-rodriguez-arrested-hit-occupy-wall-street-raid_n_1094645.html.

51

John Del Signore, Charges Dropped Against Councilman Arrested And Roughed Up At Zuccotti Park Raid,

GOTHAMIST (Apr. 5, 2012, 1:43 PM), http://gothamist.com/2012/04/05/charges_dropped_against_councilman.php. 52 Charges Dropped Against Councilman Arrested at Occupy Wall Street, CBS NEW YORK (Apr. 5, 2012, 8:37

AM), http://newyork.cbslocal.com/2012/04/05/charges-dropped-against-councilman-arrested-at-occupy-wall-street/.

53

Complaint at ¶ 667, N.Y.C. Council Member Rodriguez v. Deputy Inspector Winski, 2012 WL 1470305

(S.D.N.Y.) (No. 1:12CV03389).

54

Id. at ¶ 534

19

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jj. A journalist reported that another reporter stated that she witnessed officers throwing a third reporter in a “choke-hold.” The witnessing reporter also stated that police were not discriminating between press and protesters.55
kk. A news organization reported officers used batons and pepper spray on protesters who refused to leave Liberty Plaza and engaged in a soft lock, in which they “lock[ed] arms together in the middle of the park.” It is unclear whether the police’s use of weapons was justified. 56 Two journalists reported that, after making an announcement to clear the park, police “began throwing out tents, cuffing occupiers and using pepper spray.”57
November 17, 2011
ll. On November 17, 2011, video appears to show an officer grabbing or pushing a protester’s backpack while she is in the street. The protester appears to move or be moved to a sidewalk. The officer pursued her, grabbed her backpack again, pulled her to the ground and dragged her back into the street. The officer also appeared to be pulling the protester by her hair while dragging her along the ground by her backpack.58
mm. Video shows that an officer punched a protester three times in the head and shoulder. At the time, the protester was in a soft lock, in which he linked arms with other protesters and sat in the street, and police were attempting to pull him away. The video shows that the officer tried to separate the protester several times by pulling him, but did not attempt any other methods before punching the protester.59
nn. Video shows that, while attempting to pull a protester from a crowd, an officer threw another protester to the ground who was standing between police and their target. There is no discernible provocation shown in the video for the use of force. The video then shows another officer appearing to strike the apprehended protester several times with downward jabbing motions of his baton (the actual contact is blocked from view). The officers appeared to be struggling to pull the protester out of the crowd. It is unclear whether anything occurred prior to the events shown in the video that could have justified the use of force.60

55

Brian Stelter & Al Baker, Reporters Say Police Denied Access to Protest Site, N.Y. TIMES (Nov. 15, 2011,

11:06 AM), http://mediadecoder.blogs.nytimes.com/2011/11/15/reporters-say-police-denied-access-to-protest-site/.

56

Occupy Wall Street Evicted in Late Night Raid; Lawyers Secure Injunction to Reopen Zuccotti Park,

DEMOCRACY NOW! (Nov.. 15, 2011),

http://www.democracynow.org/2011/11/15/occupy_wall_street_evicted_in_late.

57

Lila Shapiro & Maxwell Strachan, Occupy Wall Street: New York Police Department Evicts Protesters,

Clears Zuccotti Park [Latest Updates], HUFFINGTON POST (Nov. 15, 2011, 5:59 AM),

http://www.huffingtonpost.com/2011/11/15/zuccotti-park-cleared-occupy-wall-street_n_1094313.html.

58

buzzvideo, OWS Blockade Girl Pulled Off Sidewalk By Her Hair, YOUTUBE (Nov. 18, 2011),

http://www.youtube.com/watch?v=K8X-xorFTSg&feature=player_embedded#! (pull to ground and drag at 0:02).

59

RTAmerica, NYPD Blast LRAD Sonic Weapon Against OWS Protest, YOUTUBE (Nov. 17, 2011),

http://www.youtube.com/watch?v=jKRQodSK7dU&feature=youtu.be (punches at 1:08).

60

yesmenmedia, NYPD Officer #2886 Beats OWS Protester (17.11.2011), YOUTUBE (Nov. 18, 2011),

http://www.youtube.com/watch?v=O1TXFal5_XQ&feature=related (throw to ground at 0:01, baton jabs at 0:09).

20

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 21 of 39

oo. Video appears to show an officer striking a protester with three one-handed overhead baton swings, although the protester is surrounded by officers and the contact is blocked from view.61 A journalist reported more general allegations of baton use by police, stating that on November 17, “officers swung batons at protesters who crowded the streets.” A photograph included in the journalist’s article shows a police officer with his baton raised, as if about to strike into a crowd of protesters. It is unclear whether the report and the photo depict the same incident as the video or a separate one.62

pp. A reporter stated in a video interview that an officer struck her in the arm with a baton while she was wearing a “clearly marked” press pass. The reporter was attempting to film police as they were pushing a barricade into protesters. She stated: “as I approached the crowd, a police officer yelled at me to get away and before I had a chance to react, he swung his baton and hit me here in the shoulder. It wasn’t that intense, but it was just a shock.”63

qq. A reporter stated in a video interview that another reporter was “slammed against a wall and taken away in handcuffs.”64

rr. Video appears to show that police pushed a woman onto the hood of a car. The woman then fell to the ground and did not get up for several seconds. When she got up, the woman was holding a microphone; the video’s caption states that the woman is a “news reporter.”65 A news report provides a video of the same incident from another angle and identifies the individual who was pushed as “Daily Caller reporter Michelle Fields.”66

ss. Video appears to show an officer pulled a woman to the ground (the video only partially shows the woman falling to the ground). Several seconds later, the video shows police putting flex-cuffs on a woman who is face-down on the ground; it is unclear whether this woman is the same one who was pulled to the ground. The person filming the video can clearly be heard shouting “she’s a journalist!” several times. Video then shows the woman against a wall with flex-cuffs on her wrists. She says to the person filming, “look at the cuffs, look how fucking tight they have these

61

OccupyTVNY, NYPD Crashes Dance Party - N17 | Occupy Wall Street Video, YOUTUBE (Nov. 17, 2011),

http://www.youtube.com/watch?v=xFIpAqZJGYQ&feature=related (baton swings at 0:46 and shown again in slow-

motion at 1:04).

62

Andy Newman, Clashes and More Than 240 Arrests on Protest’s ‘Day of Action’, N.Y. TIMES (Nov. 17,

2011, 8:13 AM), http://cityroom.blogs.nytimes.com/2011/11/17/protesters-and-officers-clash-near-wall-

street/?ref=occupywallstreet (reporting that police used batons on protesters and providing a link to a photo gallery,

in which the ninth picture shows an officer with baton raised).

63

RTAmerica, NYPD Blast LRAD Sonic Weapon Against OWS Protest, YOUTUBE (Nov. 17, 2011),

http://www.youtube.com/watch?v=jKRQodSK7dU&feature=youtu.be (allegations at 1:41).

64

Id. (allegation at 2:05).

65

RestoreLiberty2012, Occupy Wall Street – Female Reporter Violently Shoved Into Taxi – Nov. 17,

YouTube (Nov. 20, 2011), http://www.youtube.com/watch?v=KEjVsLG4GA8 (push onto car at 0:06). 66 Chaos in the City: NYPD Manhandles Daily Caller Video Reporter During ‘Occupy’ Protest [Video], DAILY

CALLER (Nov. 18, 2011, 1:47 AM), http://dailycaller.com/2011/11/18/chaos-in-the-city-nypd-manhandles-daily-

caller-video-reporter-during-occupy-protest-video/#ooid=FidXkwMzpJHYEEPzTkbC7NcJmEY6rW4X (push to

ground at 0:24).

21

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cuffs on me.” Video appears to show some discoloration in the woman’s hands. The video’s caption identifies the woman as a journalist and radio host and states that “she was indiscriminately grabbed from the crowd while moving away from the chaos, as instructed to do by NYPD… a police officer rush[ed] her from behind and body slam[med] her to the pavement.” 67 A radio station that produces a show titled “Occupy Wall Street Radio,” which “broadcasts the voice of the 99%,” lists the woman as a host in charge of media and direct action.68
tt. A letter from the New York Times and multiple other news organizations and advocacy groups sent to the NYPD alleged that an officer grabbed and threw a photographer to the ground, causing her to “hit[ ] her head on the pavement.” The photographer had proper credentials that were “clearly visible.” The incident occurred after two other officers gave the photographer conflicting instructions on where to walk.69
uu. The letter also alleged that an officer pushed a journalist, wearing visible press credentials, “with both his arms, forcing the reporter to fall backwards, landing on her right elbow.” The officer then “proceeded to pick her up by her collar while yelling ‘stop pretending.’ The reporter went to [a hospital] for treatment of her injuries.”70
vv. Video shows that an officer pulled a protester forward from a crowd; the reason for pulling him is unclear. The officer, accompanied by another officer, then attempted to pull the protester further forward by his shirt and arm, but the protester appeared to hold himself in place by holding onto a pole. A third officer approached the protester from behind and, without apparent warning, appeared to strike him twice with two downward jabs of his baton. The baton-wielding officer then pushed the protester forward until he released his grip on the pole, at which point officers placed him under arrest.71 Two other videos also show the third officer made a downward jabbing motion with his baton in the direction of the protester, although the actual contact is blocked from view in all of the videos.72

67

TheShamarReoprt, Journalist, Faith Laugier - Attacked, Assaulted and Arrested by NYPD: The Shamar

Report, YOUTUBE (Nov. 17, 2011), http://www.youtube.com/watch?v=00CLssMbc-k (alleged grab and throw to

ground at 0:07).

68

Occupy Wall Street Radio, WBAI: FREE SPEECH RADIO 99.5FM PACIFICA RADIO IN NEW YORK CITY,

http://www.wbai.org/program.php?program=28 (last visited July 19, 2012) (“[o]n the show, a roundtable of hosts

and producers will be your path to the action of the Occupy Movement day. Join . . . Faith Laugier (Media & Direct

Action) for your daily updates.”).

69

Letter from George Freeman, Vice President & Asst. Gen. Counsel, N.Y. Times Co., et al., to Paul J.

Browne, Deputy Comm’r of Pub. Info., N.Y.C. Police Dep’t (Nov. 21, 2011), available at

http://www.nyclu.org/files/releases/DCPI%20Letter%20-%20Signed%2011-21-11.pdf.

70

Id.

71

AMV0530, OWS-Police Brutality - NYPD - NOV 17, YOUTUBE (Nov. 17, 2011),

http://www.youtube.com/watch?v=rOG4ZvaspCc&feature=related (pull at 1:03, baton jabs at 1:16).

72

spendnysf, Occupy Wall Street Day of Action Protest Baton Beating, YOUTUBE (Nov. 18, 2011),

http://www.youtube.com/watch?v=R4nJ9gd1CW4 (baton jabs at 0:14); Clarknt87, Occupy Wall Street #n17,

YOUTUBE (Nov. 17, 2011), http://www.youtube.com/watch?v=aq0uF79_IK4&feature=player_embedded#! (baton

jabs at 1:19).

22

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ww. Video shows two officers taking at least six one-handed overhead baton swings into a crowd of protesters. The officers appeared to be attempting to apprehend a protester who was being pulled back into the crowd by other protesters; the baton swings appeared to be aimed at forcing the protesters in the crowd to release the first protester.73
xx. A letter from the New York Times and multiple other news organizations and advocacy groups sent to the NYPD alleged that two officers struck a photographer “in the chest, knees and shin” with a metal barricade as he was attempting to take pictures of a bloodied protester being arrested.74
November 30, 2011
yy. On November 30, 2011, a protester stated that an officer hit her twice with his scooter while the protester was participating in a march.75
December 12, 2011
zz. A journalist was taking video of the police arresting protesters when an officer asked him if he had press credentials and then threw him to the ground and arrested him.76 A relative of the journalist saw him “standing near the crowd, taking video,…when [she] looked back in his direction, [she] saw his blue hood on the ground. [She] ran toward him . . . [He] was face down on the ground being handcuffed, his glasses flung across the floor and people screaming, ‘Stop, stop, he didn’t do anything!’”77
December 17, 2011
aaa. On December 17, 2011, a journalist witnessed his “colleague, a credentialed cameraman,” get “punched in the kidney three times.”78 The same journalist stated on March 18 that he saw the same officer who punched the cameraman.79

73

DoccupyWallStreet, Police Violence and Batons 11/17/11 (Violence @ 0:45), YOUTUBE (Nov. 17, 2011),

http://www.youtube.com/watch?v=xZH3zOsGV-M (baton swings at 0:51).

74

Letter from George Freeman, Vice President & Asst. Gen. Counsel, N.Y. Times Co., et al., to Paul J.

Browne, Deputy Comm’r of Pub. Info., N.Y.C. Police Dep’t (Nov. 21, 2011), available at

http://www.nyclu.org/files/releases/DCPI%20Letter%20-%20Signed%2011-21-11.pdf.

75

Tweet by @DaynaR, TWITTER (Nov. 30, 2011, 7:47 PM),

https://twitter.com/daynar/status/142042203412365313 (“[a]lso, the officer driving motorbike 257 hit me with his

slow-moving, completely harmless vehicle twice while we were marching up Broadway.”).

76

BreakThruRadioTV, OWS Arrest: John Knefel - BreakThruRadioTV [ep9], YOUTUBE (Dec. 16, 2011),

http://www.youtube.com/watch?v=lHuhWOuOqsw (allegation at 1:38).

77

Molly Knefel, Busted for Tweeting, SALON.COM (Dec. 13, 2011, 9:02 AM),

http://www.salon.com/writer/molly_knefel/.

78

Tweet by Ryan Devereaux (Journalist, Guardian), TWITTER (Dec. 17, 2011, 3:58 PM),

https://twitter.com/rdevro/status/148145075015254016 (“My colleague, a credentialed cameraman, was punched in

the kidney three times. #D17 #ows”).

79

Tweet by Ryan Devereaux (Journalist, Guardian), TWITTER (Mar. 18, 2011, 12:53 AM),

https://twitter.com/rdevro/status/181241913809190913 (“The sergeant who throw the girl is the same one that

punched my cameraman and told me he "didn't give a fuck" about my press pass. #m17”).

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bbb. A journalist for The Guardian wearing a press ID stated was grabbed by an officer who “push[ed] his fist into [his] throat” despite the journalist’s cries that he was press.80 A New York Times journalist, upon speaking with the Guardian journalist, stated that the officer used the Guardian journalist as a “de facto battering ram to push back protesters.”81
ccc. Video shows an officer twice shoved a Democracy Now! cameraman holding a camera.82
December 31, 2011 – January 1, 2012
ddd. On December 31, 2011 to January 1, 2012, video shows that two officers sprayed a crowd with pepper spray from behind a metal barricade being pushed or pulled by both police and protesters at Liberty Plaza. Shortly after, an unknown substance appears to be sprayed or thrown back across the barricade in the direction of the police. It is unclear whether the officers who used the pepper spray were members of the Disorder Control Unit.83 A second video appears to show one of the same two officers spraying pepper spray again a few seconds after the spraying of the unknown substance.84 In a third video, a livestreamer commented that “pepper spray has been sprayed” and “the police have used pepper spray just now.”85 A journalist reported that “at least one officer fired an arch of pepper spray into the crowd behind [the] barricades.”86
eee. A journalist for the New York Times reported that an officer “began pushing” another Times reporter. The journalist stated that “[a]fter the reporter asked the

80

Tweet by Ryan Devereaux (Journalist, Guardian), TWITTER (Dec. 17, 2011, 12:49 PM),

https://twitter.com/rdevro/status/148142787035004928 (“I was just manhandled by massive police officer. I was

standing on the sidewalk. He was pushing his fist into my throat. D17 ows”); Tweet by Ryan Devereaux

(Journalist, Guardian), TWITTER (Dec. 17, 2011, 12:53 PM), https://twitter.com/rdevro/status/148143806640959488

(“I repeatedly said I was trying to get back and he wouldn't let me go. Eventually he pulled me away to arrest me. I

kept telling I was press.”); Tweet by Ryan Devereaux (Journalist, Guardian), TWITTER (Dec. 17, 2011, 12:55 PM),

https://twitter.com/rdevro/status/148144387212324865 (“My neck is red, my press pass was ripped. I was doing

nothing but standing on the sidewalk doing my job. D17 ows”).

81

Michael Powell, The Rules on News Coverage Are Clear, but the Police Keep Pushing, N.Y. TIMES (Jan. 2,

2012), http://www.nytimes.com/2012/01/03/nyregion/at-wall-street-protests-clash-of-reporting-and-policing.html.

82

carlosmandelbaum, Occupy Wall Street #D17 | Police Violate Constitution and Lose | 12/17/11, YOUTUBE

(Dec. 18, 2011), http://www.youtube.com/watch?v=isiJpkBvmYk&feature=related (pushes at 3:10).

83

OccupyVictoryMT, Occupy Wall St & NYPD New Year’s Eve Barricade Struggle Excerpt, YOUTUBE (Jan.

1, 2012) http://www.youtube.com/watch?v=5eME7YDW930 (pepper spray at 0:52 and 0:58, protester spraying

back at 0:53).

84

Blazedroots, NYPD Gets Pepper Sprayed, YOUTUBE (Feb. 19, 2012),

http://www.youtube.com/watch?v=RjONPcdS4HY&feature=youtube_gdata_player (pepper spray at 0:04, protester

spraying back at 0:05).

85

Timcast, Timcast Recorded Live on 12/31/11 at 10:38 PM, USTREAM (Dec. 31, 2011, 10:38 PM),

http://www.ustream.tv/recorded/19502443 (allegations at 20:38, 21:10).

86

Colin Moynihan and Elizabeth Harris, Surging Back into Zuccotti Park, Protesters Are Cleared by Police,

N.Y. TIMES (Dec. 31, 2011, 9:58 PM), http://cityroom.blogs.nytimes.com/2011/12/31/protesters-surge-back-into-

zuccotti-park/?ref=nyregion (last updated Jan. 1, 2012, 2:10 AM).

24

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 25 of 39
captain to stop, another officer threatened to yank away his police press pass.”87 Two other journalists for the New York Times reported that “one officer used two hands to repeatedly shove backwards a credentialed news photographer who was preparing to document an arrest.” It is unclear whether this report pertains to the same incident as the previous report.88
fff. Lawyers representing a legal observer stated that eight officers “charged toward [the legal observer], forcing his upper body onto the hood of a parked car, where they roughly grabbed [his] arms and forced them high behind his back . . . .” Before the incident, the legal observer had been recording the names of arrestees as they were led to a police van. At the time when he was arrested, the legal observer was speaking on his cell phone. The district attorney declined to prosecute the legal observer (who had been charged with disorderly conduct).89 Video confirms the legal observer was speaking on the phone when an officer approached him. The legal observer walked toward the sidewalk, but the officer grabbed him and pushed him onto the hood of a parked car. Three other officers then came over and helped the officer cuff the legal observer. At one point, eight officers surrounded the legal observer.90
ggg. A journalist witnessed a protester get “punched in the face as he was arrested. Police said, ‘Stop resisting.’”91
March 17-18, 2012
hhh. On March 17-18, 2012, video shows an officer pushed a photographer, who was holding a camera and appeared to be wearing a press pass, several times as the photographer attempted to document another arrest.92
iii. Video shows an officer grabbed a protester out of the arms of another officer, who appeared to be walking him toward a different group of police. The protester appeared to attempt to keep his right arm free to hold a camera in the air.

87

Michael Powell, The Rules on News Coverage Are Clear, but the Police Keep Pushing, N.Y. TIMES (Jan. 2,

2012), http://www.nytimes.com/2012/01/03/nyregion/at-wall-street-protests-clash-of-reporting-and-policing.html.

88

Colin Moynihan and Elizabeth Harris, Surging Back into Zuccotti Park, Protesters Are Cleared by Police,

N.Y. TIMES (Dec. 31, 2011, 9:58 PM), http://cityroom.blogs.nytimes.com/2011/12/31/protesters-surge-back-into-

zuccotti-park/?ref=nyregion (last updated Jan. 1, 2012, 2:10 AM).

89

Complaint at ¶¶ 28-33, 37, Damian Treffs v. City of New York, No. 12-CV-3030 (S.D.N.Y. filed Apr. 17,

2012).

90

Christopher Robbins, Legal Observer Sues City After Bogus NYPD Arrest, GOTHAMIST (Apr. 17, 2012,

3:06 PM), http://gothamist.com/2012/04/17/legal_observer_sues_city_after_bogu.php (providing a video recorded

by Tim Pool; push against car at 10:25).

91

Tweet by Ryan Devereaux (Journalist, Guardian), TWITTER (Jan. 1, 2012, 2:15 AM),

https://twitter.com/rdevro/status/153373642519097344 (“I watched this protester, i I [sic] Anthony got punched in

the face as he was arrested. Police said, "Stop resisting." #ows pic.twitter.com/UAHB2J0Q”).

Note: Content and authorship of tweet confirmed to Research Team by Ryan Devereaux.

92

wearechange, OWS Afternoon Arrests – 6 Month Anniversary – Raw Footage, YOUTUBE (Mar. 18, 2011),

http://www.youtube.com/watch?v=okkXZBXpHvU&feature=plcp (pushes at 7:07).

25

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Approximately six other officers then surrounded the protester, grabbed at his head and arms, ripped the mask off his face and pushed him to the ground.93
jjj. A journalist reported an officer grabbed a protester “by the bottom of her throat and shoved her head against the hood of a car,” and that another officer then “forcefully pressed her head against the car.”94
kkk. A journalist reported a man told him that the police pushed him away while the man was videotaping an officer interrogating a protester.95
lll. A journalist reported a photographer stated that an officer struck a protester with his megaphone. 96 The photographer told the journalist the officer “smashed his megaphone into the back of the kid’s head.”97
mmm. A journalist reported that a protester “said that officers pushed him in several directions and that as he tried to walk away, he was struck from behind in the neck. ‘One of the police ran and hit me with a baton,’ he said.”98
nnn. A journalist reported that officers threw down and beat a photographer with batons, even after he had shown his press pass. The journalist reported the photographer “yelled several times, ‘I’m PRESS! PRESS!’ yet was slammed on the head [with a baton] twice after he’d been thrown to the ground when the police shoved back the protesters.” In the same report, the photographer stated: “there was another push from the police – they saw me fall . . . . Just didn’t care. . . . Then came the batons. I couldn’t see if the people that were on top of me previously got hit at all but I certainly did, twice to the back and once on the head.”99
ooo. A protester stated that after a crowd was pushed from one sidewalk to another, a group of officers came charging at the crowd, swinging their batons “indiscriminately.” Approximately 7-10 people fell to the ground, and officers hit

93

wearechange, OWS Afternoon Arrests – 6 Month Anniversary – Raw Footage, YOUTUBE (Mar. 18, 2011),

http://www.youtube.com/watch?v=okkXZBXpHvU&feature=plcp (grab at 4:11, mask rip at 4:18, push to ground at

4:25).

94

Colin Moynihan, Scores Arrested as the Police Clear Zuccotti Park, N.Y. TIMES (Mar. 17, 2012),

http://cityroom.blogs.nytimes.com/2012/03/17/arrests-made-as-protesters-mark-occupy-wall-streets-six-month-

anniversary/.

95

Id..

96

Nick Pinto, For Occupy Wall Street, A Day of Re-occupation, Re-eviction, And a Lot of Violent Arrests,

VILLAGE VOICE (Mar. 18, 2012), http://blogs.villagevoice.com/runninscared/2012/03/for_occupy_wall.php

(reporting that “C.S. Muncy, who photographed the arrest, described a police officer smashing his megaphone into

the back of the man's head,” and providing a picture of the alleged strike).

97

Tweet by Nick Pinto (Journalist, Village Voice), TWITTER (Mar. 17, 2012, 8:54 PM),

https://twitter.com/macfathom/status/181242024475889664 (“@csmuncyphoto says he has shots of that Crosby

Street arrest. ‘The cop smashed his megaphone into the back of the kid's head.’”).

98

Colin Moynihan, Scores Arrested as the Police Clear Zuccotti Park, N.Y. TIMES (Mar. 17, 2012)

http://cityroom.blogs.nytimes.com/2012/03/17/arrests-made-as-protesters-mark-occupy-wall-streets-six-month-

anniversary/.

99

Greg Palast, Update: Cops Beat Our Cameraman ZD Roberts, GREGPALAST.COM (Mar. 18, 2012),

http://www.gregpalast.com/cops-beat-our-cameraman-zd-roberts/ (last updated Mar. 19, 2012).

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Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 27 of 39

them with batons. The protester wrote that he “saw batons swinging at a pile of people that had been dominoed into each other by the police mercilessly pushing back…”100
ppp. A journalist reported a protester stated “[p]olice broke my left thumb and possibly my jaw. My right ear is bleeding and theres [sic] a bootprint on my face.”101
qqq. A journalist reported that police “allegedly slammed” a man “against a glass window.” The journalist provided video of the events leading up to the alleged incident and a picture showing a visible crack in the glass after the incident.102 Another journalist stated that he witnessed police “slam a protester into [a] door,” and that the protester was “punched in the face.” The journalist also posted a picture of a pane of glass with large cracks in it and stated that “[t]his was the result.”103
rrr. A news report quoted a protester who alleged that an officer “stomped on the back of [a protester’s] neck as his head was up on a step.”104
March 20-21, 2012
sss.On March 20-21, 2012, in an interview with CBS News, a woman said she was thrown by an officer and that she suffered a concussion.105 A journalist reported that “dozens of officers plunged into [a] crowd from two directions, shoving protesters and causing some to stumble backward and fall. Officers threw two people to the ground, including a woman who lay on her back for several minutes before an ambulance arrived to attend her.”106 Video shows a woman lying motionless on the ground for several minutes, being tended to by Occupy medics.107

100

Tim Weldon, Accounting for Violence, WALKING LION (Mar. 19, 2012),

http://www.walkinglion.org/2012/03/accounting-for-violence.html. 101 Ben Yakas, Video: NYPD Officer Allegedly Slammed OWS Medic’s Head into Glass, GOTHAMIST (Mar. 18,

2012), http://gothamist.com/2012/03/18/nypd_officer_allegedly_smashed_ows.php (quoting a tweet from protester

Shawn Carrie).

102

Ben Yakas, Video: NYPD Officer Allegedly Slammed OWS Medic’s Head into Glass, GOTHAMIST (Mar.

18, 2012), http://gothamist.com/2012/03/18/nypd_officer_allegedly_smashed_ows.php. 103 Tweet by Ryan Devereaux (Journalist, Guardian), TWITTER (Mar. 18, 2012, 1:20 AM),

https://twitter.com/rdevro/status/181248759529869312/photo/1 (“Just saw police slam a protester into this door, 55

East 10th. This was the result. Arrestee was punched in the face. pic.twitter.com/BKw7eN4N”).

104

Ben Yakas, Video: NYPD Officer Allegedly Slammed OWS Medic’s Head into Glass, GOTHAMIST (Mar.

18, 2012), http://gothamist.com/2012/03/18/nypd_officer_allegedly_smashed_ows.php (quoting a tweet from

protester Shawn Carrie).

105

CBS New York, Hundreds Of OWS Protesters, NYPD Clash In Union Square Park, CBS NEWS NEW

YORK (Mar. 21, 2012), http://newyork.cbs.local.com/2012/03/21/hundreds-of-ows-protesters-nypd-clash-in-union-

square-park/ (quoting an Occupy medic, Maria Tardif, as saying: “I was thrown over an officer who was bending

down. I hit the back of my head, I have a concussion”).

106

Al Baker and Colin Moynihan, Occupy Protesters are Arrested at Union Square Park, N.Y. TIMES (Mar.

21, 2012), http://cityroom.blogs.nytimes.com/2012/03/21/police-and-protesters-clash-at-union-square-

park/?ref=occupywallstreet.

107

wearechange, NYPD Tramples Injured Protester at Union Square, YOUTUBE (Mar. 21, 2012),

http://www.youtube.com/watch?v=UDWHRTX9Yrk&feature=plcp&oref=http%3A%2F%2Fwww.youtube.com%2

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Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 28 of 39
March 24, 2012 ttt. On March 24, 2012, a journalist stated police “stomped” on a man’s head.108 uuu. Video shows officers arrested a protester and bound his hands with flex-cuffs.
The protester asked officers at least ten times to remove or loosen the flex-cuffs, several times stating that he could not feel his hands. Police did not respond to his requests and left him cuffed for at least eight minutes after his initial request for the flex-cuffs to be removed.109 April 16, 2012 vvv. On April 16, 2012, a journalist reported: “[a]s a crowd of protesters began shouting and milling near the bottom of the steps of Federal Hall, a police commander grabbed a demonstrator from behind, threw him to the sidewalk and arrested him.” www. A journalist reported a protester “said that a wave of officers had passed when an officer trailing behind shoved a man in the back.”110 May 20, 2012 xxx. On May 30, 2012, video shows that an officer pushed a legal observer to the ground.111 June 13, 2012 yyy. On June 13, 2012, a journalist reported that witnesses stated that an officer kicked a man in the head while he was being held to the ground. 112

Fuser%2Fwearechange%2Fvideos%3Fsort%3Ddd%26view%3D0%26page%3D2&has_verified=1 (injured woman

at 5:06).

108

Tweet by Nick Pinto (Journalist, Village Voice), TWITTER (Mar. 18, 2012, 12.54 AM),

https://twitter.com/macfathom/status/183627222333128704 (“[a]nother guy, de-arrested after police stomped his

head is dpkayed [sic] on the sidewalk as street medics attend. #OWS”).

Note: Content and authorship of tweet confirmed to Research Team by Nick Pinto.

109

NewYorkRawVideos, Arrests at M24 Protest Police Brutality / Fire Ray Kelly March March 24 2012

Occupy Wall Street, YOUTUBE (Mar. 25, 2012), http://www.youtube.com/watch?v=45VsFdu0Qq0 (requests to

remove or loosen flex-cuffs at 4:03, 4:17, 4:49, 4:58, 5:06, 5:32, 5:55, 6:05, 6:29, and 7:09).

110

Colin Moynihan, Wall Street Protesters Lying on Sidewalk Are Arrested, N.Y. TIMES (Apr. 20, 2012, 8:56

PM), http://cityroom.blogs.nytimes.com/2012/04/20/wall-st-protesters-lying-on-sidewalk-are-arrested/.

111

NewYorkRawVideos, NYC Casseroles Night - May 30 2012 Arrest footage & Repression - Occupy Wall

St, YOUTUBE (May 31, 2012) http://www.youtube.com/watch?v=U2MwrjaclyE (push to ground at 8:03).

112

Colin Moynihan, Protesters Arrested in Quebec Solidarity March, N.Y. TIMES (June 14, 2012, 3:13 PM),

http://cityroom.blogs.nytimes.com/2012/06/14/protesters-arrested-in-quebec-solidarity-march/ (last updated Jun. 15,

2012) (interviewing a witness who stated that “[w]hile [the man] was restrained, a police officer came over and gave

him two very hard kicks with his boot downward on the side of the guy’s head, on his left temple” and that he and

other witnesses asked for the officer’s badge number, but the officer hid his badge and rode off in a van).

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July 11, 2012
zzz. On July 11, 2012, video shows that an officer appeared to push a protester. Another officer grabbed the protester by the head and threw him to the ground.113 A journalist reported “an officer threw [the protester] to the ground in a headlock…”114
aaaa. Video shows an officer pushed a livestreaming videographer. He was subsequently arrested with no apparent cause.115
59. The existence of the aforesaid unconstitutional customs and practices, specifically with
regard to the failure to supervise, train, instruct and discipline police officers and
encouraging their misconduct, are further evidenced, inter alia, by the following:
a. The Report of the Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department (“Mollen Commission Report”), dated July 7, 1994, states:
In the face of this problem [of corruption], the [NYPD] allowed its systems for fighting corruption virtually to collapse. It has become more concerned about the bad publicity that corruption disclosures generate that the devastating consequences of corruption itself. As a result, its corruption control minimized, ignored and at times concealed corruption rather than root it out. Such an institutional reluctance to uncover corruption is not surprising. No institution wants its reputations tainted – especially a Department that needs the public’s confidence and partnership to be effective. A weak and poorly resources anti-corruption apparatus minimizes the likelihood of such taint, embarrassment and potential harm to careers. Thus there is a strong institutional incentive to allow corruption efforts to fray and lose priority – which is exactly what the Commission uncovered. This reluctance manifested itself in every component of the Department’s corruption controls from command accountability and supervision, to investigations, police culture, training and recruitment. For at least the past decade, the system designed to protect the Department from corruption minimized the likelihood of uncovering it.116

113

frozac, JRozLive, USTREAM (July 11, 2012), http://www.ustream.tv/channel/jrozlive (push and throw to

ground at 7:36).

114

Kristen Gwynne, J11: Zuccotti Re-Occupation Stirs Nostalgia for Last Fall, ALTERNET (July 12, 2012,

8:02 AM), http://www.alternet.org/newsandviews/article/1026807/j11%3A_zuccotti_re-

occupation_stirs_nostalgia_for_last_fall/.

115

frozac, JRozLive, USTREAM (July 11, 2012), http://www.ustream.tv/channel/jrozlive (push at 8:24, arrest at

13:53).

116

Mollen Commission Report, pp. 2-3, available at http://www.parc.info/client_files/Special%20Reports/

4%20-%20Mollen%20Commission%20-%20NYPD.pdf.

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b. Accordingly, in 1990, the Office of the Special Prosecutor, which investigated charges of police corruption, was abolished.
c. In response to the Honorable Judge Weinstein’s ruling of November 25, 2009 in Colon v. City of New York, 09-CV-00008 (E.D.N.Y.), in which he noted a “widespread… custom or policy by the city approving illegal conduct” such as lying under oath and false swearing, Commissioner KELLY acknowledged, “When it happens, it’s not for personal gain. It’s more for convenience.”117
d. Regarding defendant CITY’s tacit condonement and failure to supervise, discipline or provide remedial training when officers engage in excessive force, the Civilian Complaint Review Board is a CITY agency, allegedly independent of the NYPD, that is responsible for investigating and issuing findings on complaints of police abuse and misconduct. 118 When it does, however, Police Commissioner KELLY controls whether the NYPD pursues the matter and he alone has the authority to impose discipline on the subject officer(s). Since 2005, during KELLY’s tenure, only onequarter of officers whom the CCRB found engaged in misconduct received punishment more severe than verbal “instructions.” Moreover, the number of CCRBsubstantiated cases that the NYPD has simply dropped (i.e., closed without action or discipline) has spiked from less than 4% each year between 2002 and 2006, to 35% in 2007, and approximately 30% in 2008. Alarmingly, the NYPD has refused to prosecute 40% of the cases sent to it by the CCRB in 2009.119 As a result, the percentage of cases where the CCRB found misconduct but where the subject officers were given only verbal instructions or the matter was simply dropped by the NYPD rose to 66% in 2007. Substantiated complaints of excessive force against civilians accounted for more than 10% of the cases that the NYPD dropped in 2007 and account for more than 25% of cases dropped in 2008.120
60. The existence of the aforesaid unconstitutional customs and practices, specifically with
regard to the failure to screen, supervise, train, instruct and discipline Inspector

117

Oren Yaniv and John Marzulli, Kelly Shrugs Off Judge Who Slammed Cops, New York Daily News,

December 2, 2009, available at http://www.nydailynews.com/news/ny_crime/2009/12/02/2009-12-

02_kelly_shrugs_off_judge_who_rips_lying_cops.html.

118

In 2006, out of more than 10,000 allegations that were fully investigated, the CCRB substantiated only 594

(about 6%). In 2007, out of more than 11,000 allegations that were fully investigated, the CCRB substantiated only

507 (about 5%).

See, CCRB Jan.-Dec. 2007 Status Report at p. 19, available at

http://www.nyc.gov/html/ccrb/pdf/ccrbann2007_A.pdf. Upon information and belief, the low rate of substantiated

complaints is due in part to the above-noted de facto policy and/or well-settled and widespread custom and practice

in the NYPD whereby officers refuse to report other officers’ misconduct or tell false and/or incomplete stories,

inter alia, in sworn testimony and statements given to the CCRB, to cover-up civil rights violations perpetrated by

themselves or fellow officers, supervisors and/or subordinates.

119

Christine Hauser, Few Results for Reports of Police Misconduct, New York Times, October 5, 2009, at

A19.

120

Daily News, Editorial: City Leaders Must Get Serious About Policing the Police, August 20, 2008.

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Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 31 of 39
BOLOGNA and encouraging his misconduct, are further evidenced, inter alia, by the
following civil rights actions in which he is a named defendant:
a. Posr v. Camejo, 07-CV-07583 (KPC) (S.D.N.Y.) (Inspector Bologna alleged to have ordered unlawful arrest of persons engaged in protected First Amendment activity);
b. Cohen v. City of New York, 05-CV-06780 (RJS) (S.D.N.Y.) (Inspector Bologna participated in unlawful arrest of and swearing of false charges against Legal Observer during Critical Mass bicycle ride);
c. Black v. City of New York, 05-CV-03616 (RJS) (S.D.N.Y.) (Inspector Bologna alleged to have ordered unlawful arrest of persons engaged in protected First Amendment activity);
d. Greenwald v. City of New York, 05-CV-01566 (RJS) (S.D.N.Y.) (Inspector Bologna alleged to have executed unlawful mass arrest);
e. Kalra v. City of New York, 05-CV-01563 (RJS) (S.D.N.Y.) (same);
f. Hershey-Wilson v. City of New York, 05-CV-07026 (RJS) (S.D.N.Y.) (Inspector Bologna alleged to have ordered unlawful arrest of persons engaged in protected First Amendment activity);
g. MacNamara v. City of New York, 04-CV-09216 (RJS) (S.D.N.Y.) (same); and
h. Burley v. City of New York, 03-CV-00735 (WHP) (S.D.N.Y.) (Inspector Bologna alleged to have ordered and participated in unlawful arrest of class of persons engaged in protected First Amendment activity).
61. The existence of the aforesaid unconstitutional customs and practices, specifically with
regard to the practice or custom of discouraging police officers from reporting the
corrupt or unlawful practices of other police officers and of retaliating against officers
who report misconduct, are further evidenced, inter alia, by the following:
a. Former New York County District Attorney Robert Morgenthau has been quoted as acknowledging that, in the NYPD, there is a “code of silence,” or a “code of protection” that exists among officers and that is followed carefully;
b. In 1985, former NYPD Commissioner Benjamin Ward, testifying before a State Senate Committee, acknowledged the existence of the “code of silence” in the NYPD;
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c. Former NYPD Commissioner Robert Daly wrote in 1991 that the “blue wall of solidarity with its macho mores and prejudices, its cover-ups and silence, is reinforced every day in every way.”
62. The existence of aforesaid unconstitutional customs and policies may be inferred from
repeated occurrences of similar wrongful conduct, as documented in the following civil
rights actions filed against the CITY:
a. Berg v. Kelly, 12-CV-3391, (TPG) (S.D.N.Y.) (NYPD officers detain approximately 100 “Occupy” demonstrators for two hours against their will on November 30, 2011 inside a pen built of interlocking metal barricades and then release them without charges);
b. Garcia v. Bloomberg, 11-CV-6957 (JSR) (S.D.N.Y.) (NYPD arrest 700 “Occupy” demonstrators on the Brooklyn Bridge on October 1, 2011, for the simple act of walking on the bridge in what appeared to participants to be an action sanctioned by police present at the time);
c. Treffs v. City of New York, 12-CV-3030 (HB) (S.D.N.Y.) (legal observer arrested while observing Occupy Wall Street march on January 1, 2012, without probable cause and false complaint sworn out against him); and
d. Lambert v. City of New York, 153046-2011 (Sup. Ct., N.Y. Co.) (officers use excessive force against OWS protestor by affixing plastic handcuffs so tightly that it caused nerve damage, despite her repeated requests to the officers that the cuffs be loosened but were not).
63. The existence of the above-described unlawful de facto policies and/or well-settled and
widespread customs and practices is known to, encouraged and/or condoned by supervisory
and policy-making officer and officials of the NYPD and the CITY, including, without
limitation, Commissioner RAYMOND KELLY and CHIEF ESPOSITO.
64. The actions of the individual police defendants resulted from and were taken pursuant to the
above-mentioned de facto policies and/or well-settled and widespread customs and practices
of the CITY, which are implemented by members of the NYPD, of engaging in systematic
and ubiquitous perjury, both oral and written, to cover-up federal law violations committed
against civilians by either themselves or their fellow officers, supervisors and/or
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subordinates. They do so with the knowledge and approval of their supervisors, commanders and Commissioner KELLY who all: (i) tacitly accept and encourage a code of silence wherein police officers refuse to report other officers’ misconduct or tell false and/or incomplete stories, inter alia, in sworn testimony, official reports, in statements to the CCRB and the Internal Affairs Bureau (“IAB”), and in public statements designed to cover for and/or falsely exonerate accused police officers; and (ii) encourage and, in the absence of video evidence blatantly exposing the officers’ perjury, fail to discipline officers for “testilying” and/or fabricating false evidence to initiate and continue the malicious prosecution of civilians in order to cover-up civil rights violations perpetrated by themselves of fellow offices, supervisors and/or subordinates against those civilians. 65. All of the foregoing acts by defendants deprived the plaintiff of federally protected rights, to wit the rights listed in paragraph “46” supra. 66. Defendant CITY knew or should have known that the acts alleged herein would deprive Ms. LAWLER of her rights, in violation of the First, Fourth, and Fourteenth Amendments to the United States Constitution. 67. Defendant CITY is directly liable and responsible for the acts of the individual police defendants because it repeatedly and knowingly failed to properly supervise, train, instruct, and discipline them and because it repeatedly and knowingly failed to enforce the rules and regulation of the CITY and NYPD, and to require compliance with the Constitution and laws of the United States. 68. Despite knowledge of such unlawful de facto policies, practices and/or customs, these supervisory and policy-making officers and officials of the NYPD and the CITY, including CHIEF ESPOSITO, have not taken steps to terminate these policies, practices and/or
33

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 34 of 39
customs, do not discipline individuals who engage in such polices, practices and/or customs, or otherwise properly train police officers with regard to the constitutional and statutory limits on the exercise of their authority, and instead sanction and ratify these policies, practices and/or customs through their active encouragement of, deliberate indifference to and/or reckless disregard of the effect of said policies, practices and/or customs upon the constitutional rights of persons in the City of New York. 69. The aforementioned CITY policies, practices and/or customs of failing to supervise, train, instruct and discipline police officers and encouraging their misconduct are evidenced by the police misconduct detailed herein. Specifically, pursuant to the aforementioned CITY policies, practices and/or customs, INSPECTOR BOLOGNA felt empowered to exercise unreasonable and wholly unprovoked force against Ms. LAWLER. Pursuant to the aforementioned CITY policies, practices and/or customs, defendants failed to intervene in or report other defendants’ violation of plaintiff’s rights. 70. Ms. LAWLER’s injuries were a direct and proximate result of the defendant CITY and the NYPD’s wrongful de facto policies and/or well-settled and widespread customs and practices and of the knowing and repeated failure of the defendant CITY and the NYPD to properly supervise, train and discipline their police officers. 71. The actions of the individual police defendants resulted from and were taken pursuant to the following de facto policies and/or well-settled and widespread customs and practices of the CITY, which implemented by agents or employees of the NYPD, of employing wholly unprovoked and excessive force.
34

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 35 of 39
72. Defendants, collectively and individually, while acting under color of state law, acquiesced in a pattern of unconstitutional conduct by subordinate police officers and were directly responsible for the violation of Ms. LAWLER’s constitutional rights. FOURTH CLAIM RESPONDEAT SUPERIOR LIABILITY OF THE CITY OF NEW YORK FOR STATE LAW VIOLATIONS
73. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.
74. The conduct of the individual defendants alleged herein, occurred while he or she was on duty and in uniform, and/or in and during the course and scope of his or her duties and functions as NYPD officers, and/or while he or she was acting as an agent and employee of defendant CITY, clothed with and/or invoking state power and/or authority, and, as a result, defendant CITY is liable to Ms. LAWLER pursuant to the state common law doctrine of respondeat superior.
75. As a result of the foregoing, Ms. LAWLER was deprived of her liberty, suffered specific and serious bodily injury, pain and suffering, psychological and emotional injury, costs and expenses, and was otherwise damaged and injured. FIFTH CLAIM VIOLATIONS OF THE NEW YORK STATE CONSTITUTION
76. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.
77. Defendants’ conduct alleged herein breached the protections guaranteed to Ms. LAWLER by the New York State Constitution, Article I, §§ 8, 11, and 12, including a. freedom from unreasonable seizure, including the excessive use of force;
35

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 36 of 39
b. freedom from unlawful detention, meaning wrongful detention without good faith, reasonable suspicion or legal justification, and of which plaintiff was aware and did not consent;
c. freedom from interference with activity protected by the First Amendment; d. freedom from retaliatory use of force; e. the right to equal protection under the laws; and f. freedom from deprivation of liberty without due process of law. 78. Defendants’ deprivation of Ms. LAWLER’s rights under the New York State Constitution resulted in the injuries and damages set forth above.
SIXTH CLAIM ASSAULT AND BATTERY 79. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 80. By the actions described above, OFFICER DOE 41 and INSPECTOR BOLOGNA each inflicted assault and battery upon Ms. LAWLER. The acts and conduct of defendants were the direct and proximate cause of injury and damage to Ms. LAWLER and violated her statutory and common law rights as guaranteed by the laws and Constitution of the State of New York. 81. As a result of the foregoing, Ms. LAWLER was deprived of her liberty, suffered specific and serious bodily injury, pain and suffering, psychological and emotional injury, costs and expenses, and was otherwise damaged and injured.
36

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 37 of 39
SEVENTH CLAIM INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 82. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 83. By the actions described above, defendants engaged in extreme and outrageous conduct, which intentionally and/or negligently caused severe emotional distress to Ms. LAWLER. The acts and conduct of the defendants were the direct and proximate cause of injury and damage to Ms. LAWLER and violated her statutory and common law rights as guaranteed by the laws and Constitution of the State of New York. 84. As a result of the foregoing, Ms. LAWLER was deprived of her liberty, suffered specific and serious bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and were otherwise damaged and injured.
EIGHTH CLAIM NEGLIGENCE 85. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 86. The defendants, jointly and severally, negligently caused injuries, emotional distress and damage to Ms. LAWLER. The acts and conduct of the defendants were the direct and proximate cause of injury and damage to Ms. LAWLER and violated her statutory and common law rights as guaranteed by the laws and Constitution of the State of New York. 87. As a result of the foregoing, Ms. LAWLER was deprived of her liberty, suffered specific and serious bodily injury, pain and suffering, psychological and emotional injury, costs and expenses, and was otherwise damaged and injured.
37

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 38 of 39
NINTH CLAIM NEGLIGENT HIRING, SUPERVISION, RETENTION AND TRAINING 88. Ms. LAWLER incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein. 89. Defendant CITY negligently supervised and trained defendants, including but not limited to BOLGONA, in the fundamental law of arrest, assault and battery, search and seizure, excessive force, especially when its officers are not in possession of a court authorized arrest warrant and where an individual, as here, has not committed a crime and has not resisted arrest. 90. The acts and conduct of the defendants were the direct and proximate cause of injury and damage to Ms. LAWLER and violated her statutory and common law rights as guaranteed by the laws and Constitution of the State of New York. 91. As a result of the foregoing, Ms. LAWLER was deprived of her liberty, suffered specific and serious bodily injury, pain and suffering, psychological and emotional injury, costs and expenses, and were otherwise damaged and injured.
JURY DEMAND 92. Ms. LAWLER demands a trial by jury in this action on each and every one of her damage
claims. WHEREFORE Ms. LAWLER demands judgment against the defendants individually
and jointly and pray for relief as follows: a. That she be compensated for violation of his constitutional rights, pain, suffering, mental anguish, and humiliation; and b. That she be awarded punitive damages against the individual defendants; and c. That she be compensated for attorneys’ fees and the costs and disbursements of this action; and
38

Case 1:12-cv-05843-RWS Document 1 Filed 07/31/12 Page 39 of 39
d. That the Court issue a declaration that the NYPD’s current practice of using excessive force against individuals at demonstrations is in violation of Ms. LAWLER’s First and Fourth Amendment rights; and
e. Granting permanent injunctive relief requiring defendant CITY to: i. Create an official policy governing the handling of public demonstrations and in particular the use of force against demonstrators that meets U.S. constitutional standards; ii. Effectively implement that policy by training NYPD officers to follow the Demonstration and Use of Force Policy;
iii. Provide adequate supervision and enforcement to be sure that the Demonstration and Use of Force Policy is followed;
iv. Create and fully implement reporting systems adequate to document all uses of force by the NYPD; and
v. Institute an effective mechanism for civilians to file complaints; and
f. Retaining jurisdiction over the case to ensure that the NYPD complies with the Court's Order; and
g. For such other further and different relief as to the Court may seem just and proper.
Dated: New York, New York July 30, 2012
Respectfully submitted,
/s/ By: __________________________
David B. Rankin Rankin & Taylor, PLLC Attorneys for the Plaintiff 350 Broadway, Suite 701 New York, New York 10013 t: 212-226-4507
39

 
 SDNY CMlECF Version 4.C2-aSsDeNY1:C1M2-lEcCvF-0V5e8rs4io3n-4R.2WS Document 19 Filed 11/04h/t1tp3s://ePcfa.ngyesd.1cirocf2.6dcn/doclI127113216136 Case 1:12-cv-00992-RWS Document 15-1 Filed 11/01/13 Page 1 of6

UNITED STATES DISTRICT COURT SOUTHERN DIS TRICT OF NEVI YO RK
--------------------------------------------------------J(

IN RE: CHELSEA ELLIOT, ET AL.,

- -ll AND THE RELATED CASES

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PROTECTIVE ORDER
12 Civ. 0992 12 Civ. 5842 12 Civ. 5843 12 Civ. 5844 12 Civ. 7161 12 Civ. 7462 12 Civ. 7165 12 Civ. 7086 13 Civ. 5303 13 Civ. 5563

WHEREAS, the parties seek to ensrn-e that the confidentiality of

documents and infonnation remains protected; and

WHEREAS, good cause therefore exists for the enhy of an order purs

Rule 26(c) ofthe Federal Rules of Civil Procedrn-e;

THE COURT HEREBY ORDERS THAT:

1. ''Confidential Materials" shallmean (a) New York City Police Depa

(''NYPD'~ personnel and discipl.iruny-related records, and records ofinvestlsations regard

conduct of Mernbers ofthe Service ofthe NYPD conducted by the NYPD, the Civilian

Comp1airrt Review Board, or other agencies, (b) plaint.:ifPs medical or :financial records, (c

from the New York City Police Department that identifres plaintiff's prior arrests by date (

arrest, chargees) and disposition, including an sealed arrests, and (d) other documents and

information that may in good :faith, during the pendency ofthis litlsation, be designated

''Confidential Material" by the parties or the Corn-t, except that such documents and infom

shan not be designated 'Confidential Materials" to the extent that they relate to the incider

underlying the Cornphint in the action, are obtained by the parties by subpoena or pursuar

I of I

11/4/20139:48 AM

Case 1:12-cv-05843-RWS Document 19 Filed 11/04/13 Page 2 of 6 Case 1:12-cv-00992-RWS Document 15-1 Filed 11/01/13 Page 2 of6
the extent a party objects to a confrlentiality designation ptu:'Suant to Paragraph 6 below, this
paragraph should not be read to mean that the Com has held that any ofthe above-specrr:red
material; are appropriately designated as Confidential
2. As used here~ ''Producing Party" shall mean the party requestilg that a
particular document or the monnation contained therein be deemed confidential, and 'Receiving
Party" shall mean any party who is not the ''Produc ilg Party," as defined here~ for that
document or infonnation
3. A Receivilg Party and that party's attorneys shall not use ConfIdential
Materials produced in discovery in the Action for any purpose other than the evaluation,
preparation, presentation or settlement ofcla.ins or denmses in the Action.
4. Attorneys for a Receiving Party shan not discbse the Confidential
Materials to any person other than a party, an attorney ofrecord for that party, or any member of
the staff ofthat attorney's office, except under the fonowing conditions :
a. Disc loslD:'es may be made for the plD:'pose of preparing or presenting a party's claims or defenses in the Action
b. DiscloslD:'e may also be made to an expert or consultant who has been retained or specially employed by a party's attorneys in anticipation oflitigation or preparation for trial ofthe Action, to a witness at a deposition or in preparation for testimony at a depos ition or tria~ or to the Court.
c. Defendants' attorneys may also discbse the Confidential Materials to the New York City Police Department, the New York City Comptroller's ()ff'":£e, and the New York City Mayor's Office, solely in cormection with the defense or settlement ofthis Action
d. Before any disclosme is made to a person listed in subparagraph (b) above (other than to the Com or to a witrJ.ess at a depos ition), the Receivilg Party's attorney shall provide each such person with a copy oft:l:1:B Protective Order, and such person shall consent in writing, in the fonn armexed hereto as Exhibit A, not to use the Confidential Materials for any plD:'pose other than in cormection with the prosecution, defense, or settlement ofthe Action and not
-2­

Case 1:12-cv-05843-RWS Document 19 Filed 11/04/13 Page 3 of 6 Case 1:12-cv-00992-RWS Document 15-1 Flied 11/01/13 Page 30f6

to make further disclosure ofthe Confidential Materials, except in testimony taken in the Action The attorneys for a Receiving party making such disclosure shall retain the signed consent and fu:nish
a copy to fue producing Party's attorney upon request at a deposition or irrnnediately before trial, although the name ofan expert that the Receiving party does not intend to all as a trial witness may be redacted from such a consent before it is produced.

e.

DiscJosures ofmedical records deemed "Confidential" under this

Protective Order may also be made to any :individual who provided

the treatment described in the records or to a member ofthe staff

ofthe hospital, doctors office, or medical provider where the

treatment was rendered.

5. The Producing Party or its counsel may designate deposition exhibits or

portions of deposition 1ranscripts as Confidential either by: (a) indicating on the record during

the deposition that a question relates to Confidential Materials, in which event the reporter will

bind the transcript ofthe designated testimony :in a separate 'lome and mark it as ''Confidential

Informatim Governed by Protective Order;" or (b) notifYing fue reporter and all counsel of

record, :in writing, within 30 days after a deposition has concluded, offue specific pages and

lines ofthe transcript that are to be designated ''Confidential,'' in wlli:h event an counsel

receiving the transcript will be responsible for marking the copies offue designated transcript in

their possession onmder their control as directed by the Producing Party or that PartYs counsel.

6. Ifa Receiving Party objects to the designation ofany Confidential

Materials as confidential, he or she shall state such objectim in writing to counsel for the

Producing Party, and counsel shall in good fuithattempt to resolve such conflict Ifthe conflict
cannot be resolved among counsel the Receiving party shall request the Court to remove fue

des:ignation Any such materials or information shall be treated as Confidential tu:1t.i.1 the parties

res0 lve the conflict or the Court issues its ruling regarding the conflict.

7. Any party:filing a document which contains Confidential Materials shall

file it under seal. The Producing Party then has five bus iness days after the filing to show cause
-3­

Case 1:12-cv-05843-RWS Document 19 Filed 11/04/13 Page 4 of 6 Case 1: 12-cv-00992-RWS Document 15-1 Filed 11/01/13 Page 4 of 6
in writing under the applicable standard why the document should remain under seal The party opposing the contirruing confidentiality ofthe document will then have five business days to show cause in writing as to why the confidentiality des ignation sholili be lifted and the document shoLili be unsealed. TIris Stipulation and Protective Order does not apply to any testimony or evidence introduced at trial in this Action
8. Nothing in this Protective Order shall be construed to limit a Producing party's use ofits own Confidential Materials in any manner, or to limit the use ofConfidential Materials or their contents to the extent that they are publicly available or have been proviled to a party through other lalN'ful means, such as a FOIL request.
9. This Protective Order will sUlvive the tennination ofthe litigation and will contirrue to be binding upon all persons to whom Confidential Materials are produced or disclosed. All documents or information that have been deemed confidential pursuant to this order, including all copies and non conforming copies thereo~ shall remain comJdential for all time. Once the Action has been resolved, including all appeals, the Confidential Materials, including all copies and non-conforming copies thereofshall not be used by the Receiving Party for any purpose w:il.:hout prior Court approval or written consent by the Producing Party.
10. The Court will retainjillsdiction over all persons subject to this Protective Order to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any contempt thereof Additionally, the Court reselVes the right, in its sole discretion, to modifY this Protective Order at any time.
-4­

Case 1:12-cv-05843-RWS Document 19 Filed 11/04/13 Page 5 of 6 Case 1:12-cv-00992-RWS Document 15-1 Filed 11/01/13 Page 5 of6

SO ORDERED.
Dated:~ POl 
 ew York, Ne York

Ro ert W. Sweet United States District Judge

-5­

Case 1:12-cv-05843-RWS Document 19 Filed 11/04/13 Page 6 of 6 Case 1'12-cv-00992-RWS Document 15-1 Filed 11/01/13 Page 6 of6
EXHIBIT f\
The undersigned herby acknowledges that (s)he has read the Protective Order
issuedINRE: CHELSEA ELLIOT, ET AL., AND THERELATED CASES, and understands the
tenus thereof The undersigned agrees not to use the Comtdential Materials defined therein for purpose other than as permitted by the Protective Order, and will not:fi.uther disclose the
Confidential Materials except in testimony taken in this case,
Date Signature Print Name
-6­

 
 CCaassee11:1:122-c-cvv-0-055884433-R-RWWSS DDooccuummeennt t3312-1 FFileiledd0077/2/038/1/155 PPaaggee11oof f22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------------x

JULIE LAWLER,

Plaintiff,

STIPULATION AND ORDER OF DISMISSAL

-against-

12 Civ. 5843 (RWS)

THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT CHIEF JOSEPH ESPOSITO, NEW YORK CITY POLICE DEPARTMENT INSPECTOR ANTHONY BOLOGNA, AND OFFICER JOHN DOE 1 THROUGH OFFICER JOHN DOE 42, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES,

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~
NO\V, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, that
1. The above-referenced action is hereby dismissed with prejudice; and

USDC~DNY
DOCT.J~ fEi\iI
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DDAOfCF#F: lliikJJ{r I~

CCaassee11:1:122--ccvv--0055884433--RRWWSS DDooccuummeenntt3312-1 FFileiledd0077/2/038/1/155 PPaaggee22oof f22

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.

Dated: New York, New York
~_2= .2015

RANKIN AND TAYLOR

Attorneys/or Plaintiff

11 Park Place, Suite 914

New York,
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Attorneyfor Plaintiff

ZACHARY W. CARTER Corporation Counsel of the
City of New York Attorneyfor Defendants City ofNew York
and Esposito
100 9wrch Street, 3rd Floor N~oik New York 10007·~----
By:

Dara Weiss Senior Counsel

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HON. ROBERTW SWEET

UNITED STATES DISTRICT JUDGE

7 Dated:

~_L(\/ . 2015

2

 
 Case: 1:12-cv-5843 As of: 10/12/2016 08:37 PM EDT 1 of 6
CLOSED,1983−PLAN,CASREF,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−05843−RWS

Lawler v. The City of New York et al Assigned to: Judge Robert W. Sweet Referred to: Magistrate Judge Michael H. Dolinger (Settlement) Related Case: 1:12−cv−00992−RWS Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 07/31/2012 Date Terminated: 07/23/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Julie Lawler

represented by David Bruce Rankin Rankin &Taylor, PLLC 11 Park Place, Suite 914 New York, NY 10007 (212)−226−4507 Fax: (212)−658−9480 Email: David@DRMTLaw.com ATTORNEY TO BE NOTICED

Jane Leanne Moisan Law Office of Rankin &Taylor 350 Broadway New York, NY 10013 (212)−226−4507 Fax: (212)−658−9480 Email: jane@drmtlaw.com ATTORNEY TO BE NOTICED

V. Defendant The City of New York
Defendant NYC Pol Dept Chief Joseph Esposito Defendant NYC Po Dep Inspector Anthony Bologna

represented by Andrew Joseph Lucas NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212)−788−0303 Fax: (212)−788−8896 Email: alucas@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss City of New York Law Department 100 Church Street New York, NY 10007 212−356−3517 Fax: 212−788−9776 Email: DAWEISS@LAW.NYC.GOV ATTORNEY TO BE NOTICED
represented by Louis C. Lapietra Lally and Misir The Nassau Building− 220 Old Country Road

Case: 1:12-cv-5843 As of: 10/12/2016 08:37 PM EDT 2 of 6

Mineola, NY 11501 914 684 6000 Fax: 914 287 6460 Email: louis.lapietra@verizon.net ATTORNEY TO BE NOTICED

Defendant
Officer John Doe 1 through Officer John Doe 43 (the names John Doe being fictitious, as the true names and shield numbers are presently unknown); in their individual capacities

Defendant
Officer John Doe 1 through Officer John Doe 43 (the names John Doe being fictitious, as the true names and shield numbers are presently unknown); in their official capacities

Cross Claimant
NYC Po Dep Inspector Anthony Bologna

represented by Louis C. Lapietra (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant NYC Po Dep Inspector Anthony Bologna
Cross Claimant NYC Po Dep Inspector Anthony Bologna

represented by Louis C. Lapietra (See above for address) ATTORNEY TO BE NOTICED
represented by Louis C. Lapietra (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant The City of New York

represented by Andrew Joseph Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/31/2012

# Docket Text
1 COMPLAINT against Anthony Bologna, Joseph Esposito, Officer John Doe 1 through Officer John Doe 43((the names John Doe being fictitious, as the true names and shield numbers are presently unknown); in their individual capacities), Officer John Doe 1 through Officer John Doe 43((the names John Doe being fictitious, as the true names and shield numbers are presently unknown); in their official capacities), The City of New York. (Filing Fee $ 350.00, Receipt Number

Case: 1:12-cv-5843 As of: 10/12/2016 08:37 PM EDT 3 of 6

07/31/2012
07/31/2012 07/31/2012 07/31/2012
08/14/2012 08/14/2012 08/14/2012 08/14/2012 08/15/2012 09/06/2012 09/06/2012 09/10/2012
09/14/2012 09/14/2012
09/17/2012 09/17/2012 09/17/2012 09/17/2012

1045087)Document filed by Julie Lawler.(mro) (Entered: 08/03/2012)
SUMMONS ISSUED as to Anthony Bologna, Joseph Esposito, Officer John Doe 1 through Officer John Doe 43((the names John Doe being fictitious, as the true names and shield numbers are presently unknown); in their individual capacities), Officer John Doe 1 through Officer John Doe 43((the names John Doe being fictitious, as the true names and shield numbers are presently unknown); in their official capacities), The City of New York. (mro) (Entered: 08/03/2012)
CASE REFERRED TO Judge Robert W. Sweet as possibly related to 1:12−cv−00992−RWS. (mro) (Entered: 08/03/2012)
Case Designated ECF. (mro) (Entered: 08/03/2012)
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 to review the Section 1983 Plan for important information.(jge) (Entered: 08/06/2012)
CASE ACCEPTED AS RELATED. Create association to 1:12−cv−00992−RWS. Notice of Assignment to follow. (pgu) (Entered: 08/14/2012)
2 NOTICE OF CASE ASSIGNMENT to Judge Robert W. Sweet. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 08/14/2012)
Magistrate Judge Debra C. Freeman is so designated. (pgu) (Entered: 08/14/2012)
3 NOTICE OF APPEARANCE by Andrew Joseph Lucas on behalf of The City of New York (Lucas, Andrew) (Entered: 08/14/2012)
4 NOTICE OF APPEARANCE by Dara Lynn Weiss on behalf of The City of New York (Weiss, Dara) (Entered: 08/15/2012)
5 SUMMONS RETURNED EXECUTED. The City of New York served on 8/3/2012, answer due 8/24/2012. Service was accepted by Dmitry Aronov. Document filed by Julie Lawler. (Quackenbush, Robert) (Entered: 09/06/2012)
6 SUMMONS RETURNED EXECUTED. Joseph Esposito served on 8/15/2012, answer due 9/5/2012. Service was made by Mail. Document filed by Julie Lawler. (Quackenbush, Robert) (Entered: 09/06/2012)
7 ENDORSED LETTER addressed to Judge Robert W. Sweet from David B. Rankin dated 9/04/2012 re: We understand there is a preliminary conference scheduled in those cases on October 3, 2012 at 4:30 p.m. Plaintiffs respectfully request to have our preliminary conferences scheduled at or around that time and date and to have this case be designated as a non−Plan matter.ENDORSEMENT: SO ORDERED. (Signed by Judge Robert W. Sweet on 9/07/2012) (ama) (Entered: 09/10/2012)
8 NOTICE OF APPEARANCE by Louis C. Lapietra on behalf of Anthony Bologna (Lapietra, Louis) (Entered: 09/14/2012)
9 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Anthony Bologna served on 8/22/2012, answer due 9/12/2012. Service was accepted by PO Payne. Service was made by Mail. Document filed by Julie Lawler. (Rankin, David) (Entered: 09/14/2012)
10 ANSWER to 1 Complaint,,., CROSSCLAIM against Anthony Bologna. Document filed by Anthony Bologna.(Lapietra, Louis) (Entered: 09/17/2012)
11 ANSWER to 10 Crossclaim., CROSSCLAIM against The City of New York. Document filed by Anthony Bologna.(Lapietra, Louis) (Entered: 09/17/2012)
NOTICE OF SELECTION FOR MEDIATION: This case has been selected for participation in the Southern District of New York's mediation program.(jge) (Entered: 09/18/2012)
SECTION 1983 PLAN 100−DAY REVIEW: The mediator shall be available to the parties throughout the discovery phase of the Plan and shall schedule and hold

Case: 1:12-cv-5843 As of: 10/12/2016 08:37 PM EDT 4 of 6

09/20/2012 10/03/2012 10/26/2012 11/13/2012
11/14/2012 11/14/2012 11/16/2012
11/30/2012
11/30/2012 12/17/2012 12/31/2012 02/06/2013 02/06/2013

the first mediation session in the case within ten (10) days of the close of the discovery period. In the event that the mediation cannot begin within the time set forth herein, the assigned mediator shall promptly notify the Mediation Supervisor of the date by which the mediation will begin and the reason for the delay. The mediator shall correspond with the Mediation Office to arrange a mutually convenient date and time to hold the first session. 1983−Plan Review due by 12/26/2012. Mediator to be Assigned by 9/27/2012.(jge) (Entered: 09/18/2012)
NOTICE OF MEDIATOR ASSIGNMENT − Notice of assignment of mediator.(ms) (Entered: 09/20/2012)
Minute Entry for proceedings held before Judge Robert W. Sweet: Interim Pretrial Conference held on 10/3/2012. (lmb) (Entered: 10/18/2012)
12 ANSWER to 1 Complaint,, 11 Answer to Crossclaim, with JURY DEMAND., ANSWER to 1 , 11 Crossclaim. Document filed by The City of New York.(Lucas, Andrew) (Entered: 10/26/2012)
13 ENDORSED LETTER addressed to Judge Robert W. Sweet, from Dara L. Weiss, dated 11/7/2012, re: I write at the Court's direction to communicate the City's suggestion on how the Court should handle certain cases arising out of the Occupy Wall Street movement. The cases identified herein all stem from an incident on September 24, 2011 wherein the plaintiffs allege they were pepper−sprayed/and or arrested by a member of the NYC Police Department. The City believes that all of the cases arising from the September 24, 2011 incident should be accepted by Your Honor as cases related to the Elliot matter, and should further be consolidated for discovery, much the same as the cases arising out of the 2003 anti−war demonstration. ENDORSEMENT: So ordered. (Signed by Judge Robert W. Sweet on 11/7/2012) (ja) (Entered: 11/13/2012)
Minute Entry for proceedings held before Judge Robert W. Sweet: Interim Pretrial Conference held on 11/14/2012. Next PTC set for Feb. 6, 2013 at 4:30 p.m. (djc) (Entered: 11/27/2012)
Set/Reset Hearings: Pretrial Conference set for 2/6/2013 at 04:30 PM before Judge Robert W. Sweet. (djc) (Entered: 11/27/2012)
14 ORDER: Plaintiffs' letters dated November 9, 2012 and November 13, 2012 will be treated as motions to deconsolidate, and will be heard at noon on Wednesday, November 28, 2012, in courtroom 18C. Any opposition papers must be filed by November 21, 2012, and any reply papers must be filed by November 26, 2012. ( Responses due by 11/21/2012, Replies due by 11/26/2012.) (Signed by Judge Robert W. Sweet on 11/15/2012) (cd) (Entered: 11/19/2012)
15 ORDER: The above captioned cases are hereby consolidated for discovery purposes with all non−Monell fact discovery to be given priority over discovery related to Monell claims. The Section 1983 Plan will not be applied to the above−captioned cases. A pretrial conference will be held February 6, 2013, at 4:30 P.M. with respect to further scheduling. (Signed by Judge Robert W. Sweet on 11/30/2012) (djc) (Entered: 11/30/2012)
Set/Reset Hearings: Pretrial Conference set for 2/6/2013 at 04:30 PM before Judge Robert W. Sweet. (djc) (Entered: 11/30/2012)
Terminate Mediation Case Tracking Deadlines: 1983−Plan Review Deadline. (jge) (Entered: 12/17/2012)
16 NOTICE OF CHANGE OF ADDRESS by David Bruce Rankin on behalf of Julie Lawler. New Address: Rankin &Taylor, PLLC, 11 Park Place, Suite 914, New York, NY, USA 10007, 212−226−4507. (Rankin, David) (Entered: 12/31/2012)
17 NOTICE OF APPEARANCE by Jane Leanne Moisan on behalf of Julie Lawler (Moisan, Jane) (Entered: 02/06/2013)
Minute Entry for proceedings held before Judge Robert W. Sweet: Interim Pretrial Conference held on 2/6/2013. Next PTC set for 5/22/2013 @ 4:30 p.m. ( Pretrial Conference set for 5/22/2013 at 04:30 PM before Judge Robert W. Sweet.). (ja) (Entered: 02/08/2013)

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18 ENDORSED LETTER addressed to Judge Robert W. Sweet from David B. Rankin dated 2/6/13 re: Counsel writes to request an extension of time to serve interrogatory and document demands from 1/31/13 to 2/14/13. ENDORSEMENT: So ordered. (Signed by Judge Robert W. Sweet on 2/7/2013) (mro) (Entered: 02/08/2013)
Minute Entry for proceedings held before Judge Robert W. Sweet: Interim Pretrial Conference held on 10/29/2013, ( Pretrial Conference set for 12/9/2013 at 04:00 PM before Judge Robert W. Sweet.). (sc) (Entered: 10/31/2013)
19 PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. SO ORDERED. (Signed by Judge Robert W. Sweet on 11/04/2013) (ama) (Entered: 11/04/2013)
20 ENDORSED LETTER addressed to Judge Robert W. Sweet from Dara L. Weiss dated 3/19/2014 re: Request for a further status conference on 5/20/2014, at 4:00 p.m. ENDORSEMENT: So ordered. (Status Conference set for 5/20/2014 at 04:00 PM before Judge Robert W. Sweet). (Signed by Judge Robert W. Sweet on 3/19/2014). Entry in all related cases as per Chambers. (rjm) (Entered: 03/21/2014)
21 ENDORSED LETTER addressed to Judge Robert W. Sweet from Samuel B. Cohen dated 5/21/2014 re: Per Your Honor's direction, counsel for all parties have conferred and join with the Dierken Plaintiffs in submitting this joint letter memorializing the understandings reached in our conference before Your Honor yesterday, May 20, 2014, and as further specified in this letter. ENDORSEMENT: So ordered. (Signed by Judge Robert W. Sweet on 5/22/2014) (rjm) (Entered: 05/23/2014)
22 ORDER: 1. The understanding set forth in the letter of counsel for the plaintiff's in 12 Civ. 07462 dated May 30, 2014 is so ordered. 2. The depositions will be scheduled on an "as available" basis without party priority or time limitation. Any deposition of more than two−day duration will be adjourned to be completed at an agreed upon date. All party depositions will be completed by September 30, 2014. 3. All objections will be preserved and all questions answered other than those objected to on the basis of privilege. It is so ordered., ( Deposition due by 9/30/2014.) (Signed by Judge Robert W. Sweet on 6/9/2014) (lmb) (Entered: 06/10/2014)
23 AMENDMENT: Item 2 in the order issued by the Court on June 9, 2014 is hereby amended as follows: 2. The depositions will be scheduled on an "as available" basis without party priority or time limitation. Any deposition of more than two−day duration will be adjourned to be completed at an agreed upon date. All initial round party depositions will be completed by September 30, 2014. IT IS SO ORDERED. ( Deposition due by 9/30/2014.) (Signed by Judge Robert W. Sweet on 6/17/2014) (ama) (Entered: 06/23/2014)
NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Michael H. Dolinger. Please note that this is a reassignment of the designation only. (pgu) (Entered: 11/07/2014)
24 ORDER. The Honorable Michael H. Dolinger is designated to the above action. For purpose of judicial efficiency, the above entitled action and nine other related cases are referred to Magistrate Dolinger for Settlement. Please see attached rider. (Signed by Judge Robert W. Sweet on 11/7/2014) (rjm) (Entered: 11/12/2014)
25 ORDER: It is hereby ORDERED that a settlement conference has been scheduled in the above−captioned actions on TUESDAY, JANUARY 27, 2015 at 2:00 P.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312. And as set forth herein. SO ORDERED. ( Settlement Conference set for 1/27/2015 at 02:00 PM in Courtroom 17D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 12/15/2014) Copies Faxed By Chambers. (ama) (Entered: 12/15/2014)
26 ORDER: It is hereby ORDERED that the settlement conference scheduled for January 27, 2015 has been adjourned to TUESDAY, FEBRUARY 17, 2015 at 1:30 P.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street,

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New York, New York 10007−1312. Any requests for adjournment of this scheduled conference must be in writing, with copies to all other parties, and must be preceded by reasonable efforts by the requesting party to obtain the consent of those parties. The parties are to take note of the following requirements for settlement conferences before the undersigned: 1. The parties are expected to have spoken with each other about their respective settlement positions prior to the settlement conference. Given the complexities presented in the above−captioned matters, the court also expects defendants to have had substantive conversations among themselves regarding the relevant issues and plaintiffs to have similarly conversed among themselves, in addition to plaintiffs and defendants having spoken with each other, by no later than one week prior to this settlement conference. 2. The parties are directed to bring with them any documents (including any deposition transcripts) that they consider pertinent to their position on the settlement value of the case. 3. Clients are expected to either attend the conference or be available via telephone during the conference. SO ORDERED. Settlement Conference set for 2/17/2015 at 01:30 PM in Courtroom 17D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger. (Signed by Magistrate Judge Michael H. Dolinger on 1/29/2015) (ajs) (Entered: 01/29/2015)
27 AMENDMENT: The initial designation order referring the above entitled actions to the Honorable Michael H. Dolinger (ECF No. 25) is amended as follows: For the purposes of judicial efficiency, the above entitled actions are referred to the Honorable Michael H. Dolinger for general pretrial matters, including scheduling, discovery, and settlement. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 3/19/2015) (ama) (Entered: 03/20/2015)
28 ORDER: It is hereby ORDERED that a scheduling conference before the undersigned has been scheduled in the above−captioned actions on THURSDAY, MAY 14, 2015 at 2:00 P.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312. SO ORDERED. ( Status Conference set for 5/14/2015 at 02:00 PM in Courtroom 17D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 5/04/2015) Copies Faxed By Chambers. (ama) (Entered: 05/04/2015)
29 ORDER: it is hereby ORDERED: The parties have until June 16, 2015 to confer with each other on a potential settlement of this matter. Should the parties not reach a settlement in principle by that date, they must complete their responses to all outstanding discovery demands by no later than June 30, 2015.Fact Discovery due by 8/31/2015. SO ORDERED. (Signed by Magistrate Judge Michael H. Dolinger on 5/14/2015) Copies Sent By Chambers. (ama) (Entered: 05/15/2015)
30 ORDER: It is hereby ORDERED that a settlement conference in the above−captioned matter has been scheduled before the undersigned on WEDNESDAY, JUNE 17, 2015 at 2:00 P.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312. And as set forth herein. SO ORDERED. ( Settlement Conference set for 6/17/2015 at 02:00 PM in Courtroom 17D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Michael H. Dolinger.) (Signed by Magistrate Judge Michael H. Dolinger on 6/04/2015) (ama) (Entered: 06/04/2015)
31 NOTICE of Settlement . Document filed by Joseph Esposito, The City of New York. (Attachments: # 1 Exhibit Stipulation and Order)(Weiss, Dara) (Entered: 07/08/2015)
32 STIPULATION AND ORDER OF DISMISSAL: The above−referenced action is hereby dismissed with prejudice. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 7/18/2015) (tro) (Entered: 07/23/2015)