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The CITY OF NEW YORK The Law Department of the City of New York Office of Corporation Counsel 100 Church Street New York, NY 10007 RAYMOND W. KELLY In his official and individual capacities NYPD Headquarters One Police Plaza New York, NY 10038 JANE and JOHN DOES 1 - 40
______D_e_fe_n_d_an_t_s_. ________________________x
OVERVIEW (Class action constitutional rights lawsuit) 1. As a new protest movement for social and economic justice sweeps New York City and the country, the Police Department of the City of New York (NYPD) has engaged in an unconstitutional effort to disrupt and suppress the ability of the people to come together and advocate for social change using the time-honored methods of mass assembly and collective action. 2. On October 1,2011, the NYPD engaged in a premeditated, planned, scripted and calculated effort to sweep the streets of protestors and disrupt a growing protest movement in New York. This lawsuit seeks to stop the NYPD from taking illegal actions against mass assembly protest. 3. As seen in the movements for social change in the Middle East and Europe, all movements for social justice, jobs, and democracy need room to breathe and grow and it is imperative that there be a halt to law enforcement actions used to shut down mass assembly and free expression of the people seeking to redress grievances.
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4. On October 1,2011, the NYPD engaged in a mass false arrest of approximately 700 persons who participated in, or were in proximity to, a demonstration and march crossing over the Brooklyn Bridge.
S. After escorting and leading a group of demonstrators and others well out onto the Brooklyn Bridge roadway, the NYPD suddenly and without warning curtailed further forward movement, blocked the ability of persons to leave the Bridge from the rear, and arrested hundreds of protestors in the absence of probable cause. This was a form of entrapment, both illegal and physical.
6. That the trap and detain mass arrestwas a command-level-driven intentional and calculated police operation is evidenced by the fact that the law enforcement officials who led the demonstration across the bridge were command officials, known as "white shirts."
7. That the trap and detain mass arrest was an intentional and calculated police operation is also evidenced by the charade the police conducted - and themselves duly videotaped -- of speaking inaudibly into a bullhorn that could not be heard mere feet away from the officer, given the ambient noise.
8. The NYPD knew no audible communication was given. The NYPD also knew that the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it.
9. Instead, the NYPD engaged in a performance, videotaped it, and sprang their trap. They then set their PR machine into motion, distributing widely edited videos of events to spin a false narrative of events to the public and media.
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10. The NYPD, as a matter of policy and practice, engages in unconstitutional tactics to disturb, disrupt, penalize, infringe upon and criminalize constitutionally protected speech and assembly.
11. The NYPD's trap and detain actions interfere with freedom of association, assembly, speech and free movement.
12. The NYPD employs unconstitutional tactics to trap protesters, and others in physical proximity, on all sides, seize, detain and arrest those trapped/seized. These actions are accomplished through force and threat of force in order to deprive, interfere with, and deter the exercise of constitutionally protected rights.
13. The conduct challenged herein is neither aberrational nor the consequence of overzealous but well-intentioned law enforcement. It is the implementation of a plan to disrupt political assembly and activities.
14. When a named plaintiff asked why the group was being arrested, one officer explained that they were being arrested because otherwise "you'd go right back down there." When the arrestee responded that it was not illegal to be demonstrating as part of Occupy Wall Street, the officer said that if it was up to her she would not have arrested them, but "if we let you go you will just keep protesting."
15. When another named plaintiff was at the precinct being processed for release, an officer stated, "next time you'll think twice about going out to protest."
16. The NYPD not only falsely arrested hundreds in a mass violation of Fourth Amendment rights, it illegally terminated demonstration activities in a mass violation of First Amendment rights.
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17. The NYPD took a spirited and moving demonstration and sought to extinguish it. A protest march is moveable demonstration engaging with the public as it proceeds, in a pristine and classic form of democratic grassroots action and assembly. As a march continues it collects energy, collects participants, absorbing those who see it and hear it going by, who are moved by the political message and want to make common cause and join in.
18. The march from Wall Street was a spirited action, moving its message through New York into Brooklyn to communicate with and join with working people on the other side of the bridge.
19. The NYPD terminated the march, the message, the opportunity to communicate, and the opportunity for the people of New York to join together at that moment. The NYPD conducted a mass false arrest and extinguished the demonstration activity in an attempt to stop and prohibit further growing democratic and political collective action.
20. These unconstitutional actions also send a threatening message to the public that may be interested in making common cause with the political actions. That message is that free speech activities are criminalized by the police department and that joining in lawful First Amendment protected activities comes at the risk of police violence and false arrest.
21. These unconstitutional actions create a substantial chilling effect and deterrent to First Amendment protected activity as they burden free speech activities with the risk of arrest, of being wrongfully subject to the criminal process of the city, of being threatened with physical harm by the police, being bound with handcuffs and having one's identification and association with a demonstration be collected and recorded by the police and transferred to federal and other law enforcement authorities for data warehousing and collection.
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22. This police conduct is anathema to democracy. These blatantly unconstitutional tactics have been ratified by the highest policy makers from the Chief of Police to the Mayor of New York City. Mayor Michael Bloomberg stated of the October 1 mass arrest, "The police did exactly what they were supposed to do."
23. This complaint seeks, in addition to monetary compensation, injunctive relief enjoining defendants from engaging in the challenged conduct in the future, an order nullifying the arrests, and expunging all arrest records. JURISDICTION
24. This civil rights action is brought pursuant to 42 U.S.C. § 1983 and § 1988. The court has subject matter jurisdiction pursuant to 28 U.S.c. § 1331 (Federal Question) and 28 U.S.C. § 1343(3) and (4) (Civil Rights).
25. Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§2201 2202 and Fed.R.Civ.P. 57.
VENUE
26. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391 as the municipal defendant is deemed to reside therein and as a substantial part of the events or omissions giving rise to the claims occurred therein. PARTIES Named Plaintiffs
27. Plaintiff KARINA GARCIA, one of the named plaintiffs representing the class, is a public high school teacher and resides in New York. GARCIA was peaceably and lawfully participating in the demonstration and march when the police led, escorted and permitted the march onto the Brooklyn Bridge roadway. After leading the demonstration well out onto the
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Brooklyn Bridge, police without cause, notice and opportunity to comply with any order, trapped and detained GARCIA, boxed GARCIA in without avenue of exit, and falsely detained and arrested GARCIA in the absence of probable cause. 28. Plaintiff MARCEL CARTIER, one of the named plaintiffs representing the class, is a student at Bronx Community College, a hip hop artist, and community activist and resides in Bronx, New York. CARTIER was peaceably and lawfully participating in the demonstration and march when the police led, escorted and permitted the march onto the Brooklyn Bridge roadway. After leading the demonstration well out onto the Brooklyn Bridge, police without cause, notice and opportunity to comply with any order, trapped and detained CARTIER, boxed CARTIER in without avenue of exit, and falsely detained and arrested CARTIER in the absence of probable cause. 29. PlaintiffYARI OSORIO, one of the named plaintiffs representing the class, is an unemployed college graduate looking for work, and resides in Queens, New York. OSORIO was peaceably and lawfully participating in the demonstration and march when the police led, escorted and permitted the march onto the Brooklyn Bridge roadway. After leading the demonstration well out onto the Brooklyn Bridge, police without cause, notice and opportunity to comply with any order, trapped and detained OSORIO, boxed OSORIO in without avenue of exit, and falsely detained and arrested OSORIO in the absence of probable cause. 30. Plaintiff BENJAMIN BECKER, one of the named plaintiffs representing the class, is an adjunct instructor at the City College of New York and a graduate student at the CUNY Graduate Center and resides in New York. BECKER was peaceably and lawfully participating in the demonstration and march when the police led, escorted and permitted the
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march onto the Brooklyn Bridge roadway. After leading the demonstration well out onto the Brooklyn Bridge, police without cause, notice and opportunity to comply with any order, trapped and detained BECKER, boxed BECKER in without avenue of exit, and falsely detained and arrested BECKER in the absence of probable cause. 31. Plaintiff CASSANDRA REGAN, one of the named plaintiffs representing the class, is a recent graduate with a Masters degree in early childhood education and a community organizer and resides in Queens, New York. REGAN was peaceably and lawfully participating in the demonstration and march when the police led, escorted and permitted the march onto the Brooklyn Bridge roadway. After leading the demonstration well out onto the Brooklyn Bridge, police without cause, notice and opportunity to comply with any order, trapped and detained REGAN, boxed REGAN in without avenue of exit, and falsely detained and arrested REGAN in the absence of probable cause.
Named and Unnamed Defendants 32. Defendant MICHAELR. BLOOMBERG is the Mayor of New York City and the chief
policymaker for the CITY OF NEW YORK and its departments and agencies, including the NEW YORK CITY POLICE DEPARTMENT. Mayor BLOOMBERG has approved and ratified the unconstitutional conduct challenged herein. He is sued in his official and individual capacities. 33. Defendant CITY OF NEW YORK is a municipal corporation within the State of New York. 34. Defendant RAYMOND W. KELLY is the Commissioner of the New York City Police Department, which is an agency of the City of New York. KELLY is a policymaker for the CITY of NEW YORK and the NEW YORK POLICE DEPARTMENT. He is sued in his official and individual capacities.
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35. Defendants JOHN or JANE DOES 1- 30 are unidentified New York City police officials, officers or command staff who caused or did arrest the plaintiff class. These as-yetunidentified defendants engaged in the mass arrest notwithstanding the absence of probable cause or lawful justification. These defendants are sued in their individual and official capacities.
36. Defendants JOHN or JANE DOES 31 - 40 are unidentified law enforcement officials, officers or agents who, although not employed by the NYPD, did engage in joint action with the NYPD and its officials, officers and agents to cause the mass false arrest of the plaintiff class. CLASS ACTION ALLEGATIONS
37. The proposed class is: All persons who were arrested on or at the Brooklyn Bridge in the mass arrest conducted on October 1,. 2011.
38. The proposed class and their claims satisfy the requirements of Rule 23(b)(3) and, alternately, Rule 23(b)(2).
39. The proposed class of persons, which is composed of approximately 700+ persons, is too numerous for joinder.
40. The defendants did conduct a mass arrest of the class, as a group, and insodoing did act on grounds that apply generally to the class.
41. The class claims that the members' Fourth Amendment rights against false arrest and false imprisonment were violated raise common questions of law and fact that predominate over any questions affecting only individual members.
42. The class claims that the mass group arrest violated the class' and members' First Amendment rights to engage in, observe or associate with free speech and assembly activities
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(i.e., through physical proximity), raise common questions oflaw and fact that predominate over any questions affecting only individual members. 43. The class claims that the mass group arrest was a pre-planned and deliberate course of false arrest, put into effect in order to retaliate against all those who would engage in the mass protest from Wall Street or associate with said protest, raise common questions of law and fact. 44. The claims of the named plaintiffs are typical of the claims of the class, as each was engaged in or associating with peaceable and lawful free speech and assembly activity when each was subjected to false arrest on October 1,2011 as part of the same police sweep against the class as a group. 45. The named plaintiffs have a strong interest in the outcome of this action, have no conflicts of interest with the plaintiff class, and will fairly and adequately protect the interests of the class. 46. The named plaintiffs are represented by the undersigned counsel and with the attorneys of the Partnership for Civil Justice Fund. Undersigned counsel has successfully litigated a wide range of complex federal court constitutional rights matters a substantial part of which focuses on the rights of protestors to engage in free speech and dissent. Undersigned counsel was the sole lead counsel in Becker, et aI. v. District of Columbia, et aI., Civil Action No. 01 - 00811 (PLF), United States Court for the District of Columbia (trap and detain tactic used in mass false arrest of 700+ persons engaged in or in proximity to protest march) and Barham v. Ramsey, Civil Action No. 02-2283 (EGS), United States Court for the District of Columbia (trap and detain tactic used in mass false arrest of 400+ marchers, protestors and others in Pershing Park, Washington, D.C.), See Barham v. Ramsey, 434 F.3d 565 (D.C. Cir.
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2006). The Becker case resulted in what is believed to be the largest financial settlement of a
protest case in u.s. history. Significantly, these two class actions, as well as multiple
additional protest lawsuits, have resulted in sweeping equitable relief and reform through settlement terms and resultant statutory reforms, establishing in the nation's capital an unprecedented bulwark against police misconduct in the context of mass demonstrations, including a ban on the trap and detain tactics challenged here. Counsel for the plaintiffs were lead counsel on the successful lawsuit challenging the City of New York's efforts to ban mass assembly on the Great Lawn of Central Park during the Republican National Convention of 2004, National Council of Arab Americans, et aI. v City of New York, et aI., Civil Action No. 04 CV 6602 (WHP), United States District Court for the Southern District of New York. Plaintiffs' counsel is also currently counsel on the lawsuit challenging the trap and detain tactic used to mass arrest persons demonstrating over the killing of Oscar Grant in Oakland, CA, Spalding, et aI. v. City of Oakland, et aI., Civil Action No. ll-CV-02867 (TEH), United States District Court for the Northern District of California. Counsel for the plaintiffs has the resources, expertise and experience to prosecute this action. Counsel for the plaintiffs knows of no conflicts among members of the class or between the attorneys and members of the class. 47. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The class is readily defined and prosecution of a class action will eliminate the need of repetitious litigation.
FACTUAL ALLEGATIONS 48. On October 1, 2011 demonstrators began marching from Zuccotti Park near Wall Street,
which the demonstrators have dubbed Liberty Square. The demonstrators were engaged in
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mass assembly and collective action calling for a shifting of resources in society from the 1% who hold the greatest concentration of wealth and corporate power, to the other 99%. The protestors' political chants included, "We are the 99 percent" and "Banks got bailed out, we got sold out!" 49. The march moved towards the Brooklyn Bridge. The first part of the march was able to access the pedestrian walkway of the Bridge. At a point there was a bottleneck as hundreds of protestors waited to enter the walkway. 50. The police, including command officials and other city officials, stood in the east bound roadway at the entrance of the bridge. 51. The command officials gave no audible warnings or orders to the mass of people assembled. 52. One officer, consulting with a non-uniformed person, spoke inaudibly into a bullhorn that could not be heard mere feet away from the officer, given ambient noise. 53. The NYPD knew no audible communication was given. 54. The NYPD also knew that the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it. 55. There was no attempt by the NYPD to communicate a command, order or other message to the mass of people at the base of the bridge. 56. The inaudible presentation with the bullhorn, duly videotaped by the NYPD, was a charade, and is evidence of the police's intention conduct a mass false arrest. 57. Shortly thereafter, the law enforcement command officials and other representatives of the NYC municipality standing at the entrance to the roadway then turned their backs to the demonstrators and began leading them onto the roadway of the Brooklyn Bridge.
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58. As marchers, including the plaintiff class, followed the police officials onto the Brooklyn Bridge roadway, there was no effort by the police to stop the marchers from entering the roadway. On the contrary, NYPD command staff or "white shirts" led the march.
59. Police not only led the march onto the Bridge roadway but escorted the marchers alongside as they walked onto the bridge.
60. After leading, taking, and escorting hundreds of demonstrators, including plaintiffs, well onto the Brooklyn Bridge roadway, law enforcement suddenly stopped, turned and prohibited further forward movement by the demonstrators.
61. Again, an officer spoke inaudibly into a bullhorn that could not be heard mere feet away from the officer, given ambient noise.
62. Again, the NYPD knew no audible communication was given. 63. This inaudible presentation with the bullhorn, duly videotaped by the NYPD, was also a
charade, and evidences the police's intention conduct a mass false arrest by surprise and without notice or warning to the hundreds they had just permitted and led onto the bridge. 64. The plaintiff class was blocked from forward movement by the police. 65. The plaintiff class was prevented from moving backward as the NYPD prevented dispersal through the use of orange netting and police vehicles. 66. An officer at the front told a named plaintiff, "leave or get atTested." The plaintiff determined that there was no exit from the back because the police were blocking exit. She told the officer that they wanted to leave but that they were blocked on the back side too, and asked how they were to leave. The officer merely restated, "leave or get arrested."The NYPD's actions were not only unconstitutional, they were dangerous. The NYPD's actions put hundreds of persons in jeopardy of injury from forced compression of people with no avenue
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of escape, threat of injury from stampede, or being forced over the side of the bridge. When the police action commenced and rippled back through the crowd, a completely peaceful demonstration was suddenly gripped with chaos and pandemonium. It is extremely fortunate that there was not mass injury from the NYPD's dangerous actions. 67. The plaintiff class was then subject to a mass false arrest by the NYPD. 68. The plaintiff class was handcuffed, taken into custody, processed and released through the night into the early morning hours. 69. At no time did the plaintiff class fail to obey a police order. At no time did the plaintiff class engage in disorderly conduct. At no time did the plaintiff class illegally block vehicular traffic on the Brooklyn Bridge, as the police had stopped vehicular traffic, opened up the roadway to pedestrian traffic, and themselves led and escorted the demonstration onto the roadway with police command officials at the lead.
UNCONSTITUTIONAL POLICIES AND PRACTICES OF THE NYPD 70. The NYPD maintains the policy, practice and/or custom of abusing its state authority to
disturb and disrupt targeted civil political assembly and mass demonstrations. 71. The NYPD maintains a policy, practice and/or custom of engaging in mass false arrests of
protestors in the absence of probable cause. 72. The NYPD maintains a policy, practice and/or custom of engaging in mass group arrests
without having probable cause to atTest the group as a group; and without having probable cause to arrest each person within the mass group to be arrested. 73. The NYPD maintains a policy, practice and/or custom of engaging in indiscriminate arrests of protestors in the absence of individualized probable cause, a practice typified by the NYPD's use of orange netting to capture and arrest masses of people without regard to
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whether there exists probable cause to arrest the individuals trapped in such sweeping seizures of personage. 74. The NYPD maintains a policy, practice and/or custom of engaging in mass group arrests of protestors without giving the group fair notice, warnings or order to disperse (or comply with lawful police directives), and a meaningful and reasonable opportunity to comply. See Dellums v. Powell, 566 F.2d 167, 183 (D.C. Cir. 1977). In order to be constitutional, fair notice is notice that is likely to have reached all of the crowd despite any noise the demonstrators may have been making. Id. at 181-82 n.31. In order to be constitutional, the police must afford a meaningful avenue of exit if dispersal or clearing of an area has been ordered prior to arrest for failing to disperse or clear an area. 75. The NYPD and the City of New York maintains a policy, practice and/or custom of tolerating and failing to discipline unlawful police conduct against, specifically false arrest of, protestors. 76. The mass false arrest of the plaintiff class, were ordered or approved by command staff and by NYPD policy makers with sufficient authority as to constitute agency policy makers. This was a case of intentional entrapment and false arrest, committed with command staff at the front of the march, with command staff leading the march onto the bridge, with command staff apparently or presumably being advised at the time by Corporation Counsel to proceed with the mass arrest having led the march themselves onto the bridge. 77. The municipality has been deliberately indifferent to the violation of plaintiffs' constitutional rights.
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78. The municipality has failed to adequately train or instruct the NYPD and its officers so as to prevent the foreseeable violation of the clearly established rights of protestors to be able to engage in peaceable assembly and free speech without being subject to mass false arrest.
79. The municipality is aware of, and tolerated, the practice of the NYPD in making mass false arrests of persons engaged in protest, for example, as reflected in the mass false arrests and punitive conditions in connection with the 2004 Republican National Convention protests in New York City.
80. The above-referenced policies, practices and/or customs, and also the failure to properly train its officers, constitute deliberate indifference on the part of the policymakers of the City of New York and of the New York Police Department to the constitutional rights of protestors as well as all those who would associate with such protestors.
81. The actions of the above-referenced defendants violated the following clearly established and well settled federal constitutional rights: a. Freedom from the unreasonable seizure of one's person; b. Freedom from government disruption of, interference with, or retaliation for, engagement in free speech, assembly and association activities.
82. NYPD Command Staff, identified and unidentified, did participate in, cause, approve or ratify the arrest of the plaintiff class. This included through issuing or approving or ratifying the order to arrest the class. Additionally, individual supervisory officers, had the duty to exercise appropriate command authority in their supervision of their subordinates and failed to do so, resulting in the unconstitutional deprivations complained of herein. Individual officers had the duty to intervene to prevent or halt unlawful and/or unconstitutional conduct complained of herein, including the mass false atTest of the class.
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83. As a direct and proximate result of the acts or omissions of the defendants identified in this complaint and the other unidentified persons acting jointly, each of the plaintiffs has suffered monetary and non-monetary harm, including deprivation of constitutional rights under the First and Fourth Amendments to the U.S. Constitution, loss of liberty and related suffering and harm. CLAIMS COUNT I False Arrests On or At the Brooklyn Bridge (First Amendment; Fourth Amendment to the U.S. Constitution; 42 U.S.C. §1983)
84. Paragraphs 1 through 83 are incorporated by reference as if set fOlth herein. 85. Defendants' actions in participating in, executing, causing to be executed, approving or
ratifying the arrest of the plaintiff class on October 1, 2011 on or at the Brooklyn Bridge violated the First and Fourth Amendment rights to be free of unlawful seizure and arrest; to be free of retaliatory government conduct including false arrest substantially motivated by an intent to disrupt and abridge constitutionally protected rights of free speech and assembly. 86. As a direct and proximate result of said acts or omissions, the plaintiff class has suffered and will continue to suffer injury, including the risk or likelihood of future acts of false arrest.
PRAYER FOR RELIEF 87. WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant the following
relief: a. Entry of a declaratory judgment that the disruption and preventive an·est tactics of the defendants constitute violations of the First and Fourth Amendments; b. Entry of a permanent injunction to enjoin and prohibit the CITY OF NEW YORK from executing the unconstitutional disruption and false arrest tactics complained of
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herein, including but not limited to the trap-and-arrest tactic whereby without fair notice the NYPD engages in the mass false arrest of persons engaged in lawful free speech activity and peaceable assembly; c. Entry of a permanent injunction to enjoin and prohibit the CITY OF NEW YORK from using orange netting to indiscriminately trap and arrest persons in the absence of the existence of particularized probable cause exists to seize and arrest each and every individual to be trapped and arrested by the netting; d. Entry of a permanent injunction requiring defendants to seal and destroy the records derived from this arrest, including all photographs, fingerprints and other identification or descriptive information; e. Entry of an order that disclosure be made in writing to plaintiffs and the Court as to all entities and agencies to which such material, and other intelligence information derived from or relating to the underlying events, has been disseminated and by whom gathered; and that all records gathered and disseminated be collected and sealed, including all copies of such disseminated records that may have been subject to further dissemination by others; f. Entry of an order declaring the arrests to be null and void, and authorizing each individual class member to deny that such arrest ever occurred in response to any inquiry, such as employment or educational or any other nature of inquiry; g. Compensatory damages against the defendants for violations of federal rights pursuant to 42 U.S.C. § 1983 in an amount appropriate to the proof adduced at trial;
h. Punitive damages against MICHAEL R. BLOOMBERG, and as against other defendants sued in their individual capacities, for causing, approving and/or ratifying
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Case 1:11-cv-06957-JSR Document 1 Filed 10/04/11 Page 19 of 20 the arrest of the plaintiff class and for the consequential loss of freedom of expression and constitutionally protected rights of peaceable assembly;
1. An award of plaintiffs' reasonable attorneys' fees and costs and expenses pursuant to 42 U.S.C. §1988 and any other applicable statute or rule of law; and
j. Such other and further relief, including all appropriate equitable relief, as to the Court may seem just and proper. PLAINTIFFS DEMAND A TRIAL BY JURY OF ALL ISSUES SO TRIABLE
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D) ~ / t \ Dated: \ -+v--~I~--I+-~~---

Respectfully submitted,
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PARTNERSHIP FOR CIVIL JUSTICE FUND 617 Florida Ave. N.W. Washington, D.C. 20001 T.202.232.1180; F.202-747-7747

CarlMessineo (CM4500) PARTNERSHIP FOR CIVIL JUSTICE FUND 617 Florida Ave. N.W. Washington, D.C. 20001 T.202.232.1180; F.202-747-7747

Case 1:11-cv-06957-JSR Document 1-1 Filed 10/04/11 Page 1 of 1
Exhibit A: Appendix to Attachments to First Amended Complaint
Exhibit B – Source: http://twitpic.com/6tlhzh Exhibit C – Source: http://twitpic.com/6tlj4v Exhibit D – Source: http://www.flickr.com/photos/votepsl/6205499987/in/set72157627684127091/ Exhibit E – Source: http://www.flickr.com/photos/votepsl/6205515581/in/set72157627684127091/ Exhibit F – Source: http://glassbeadcollective.org/wallstreetoccupation/bridsge3_h264_sd.mov Exhibit G – Source: http://www.youtube.com/watch?v=T0MZi_I_9ec
 G-1 video still at 0:11  G-2 video still at 0:03 Exhibit H – Source: NYPD TARU “Det. Morales Disc 10 Part 1”at 3:18 – 4:54 Exhibit I – Source: http://www.flickr.com/photos/votepsl/6206063266/in/set72157627684127091 Exhibit J – Source: http://www.facebook.com/photo.php?fbid=206861799381216&set=a.206860806047982.49626. 140045042729559&type=3&theater Exhibit K – Source: http://www.facebook.com/photo.php?fbid=206861782714551&set=a.206860806047982.49626. 140045042729559&type=3&theater Exhibit L – Source: NYPD TARU “Det. Rivera Disc 2 Part 3”at 1:58 – 2:06 Exhibit M – Source: NYPD TARU “Det. Morales Disc 10 Part 1”at 4:30 – 4:54
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 Case 1:11-cv-06957-JSR Document 13 Filed 12/12/11 Page 1 of 45

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
____________________________________________X
KARINA GARCIA
BENJAMIN BECKER
MICHAEL CRICKMORE
MARCEL CARTIER
BROOKE FEINSTEIN
YARI OSORIO
YAREIDIS PEREZ
CASSANDRA REGAN
TYLER SOVA
STEPHANIE JEAN UMOH as Class Representatives on behalf of themselves and others similarly situated
Plaintiffs,
v.
MICHAEL R. BLOOMBERG in his official and individual capacities
The CITY OF NEW YORK
RAYMOND W. KELLY In his official and individual capacities
JANE and JOHN DOES 1 – 40 In their official and individual capacities
Defendants. ____________________________________________X
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11 CIV 6957 (JSR)
SECOND AMENDED COMPLAINT
JURY TRIAL DEMANDED
ECF Case

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SECOND AMENDED COMPLAINT (Class action constitutional and civil rights lawsuit) 1. As a new protest movement for social and economic justice sweeps New York City and the country, the Police Department of the City of New York (NYPD) has engaged in an unconstitutional effort to disrupt and suppress the ability of the people to come together and advocate for social change using the time-honored methods of mass assembly and collective action. 2. On October 1, 2011, the NYPD engaged in a premeditated, planned, scripted and calculated effort to sweep the streets of protesters and disrupt a growing protest movement in New York. This lawsuit seeks to stop the NYPD from taking illegal actions against mass assembly protest. 3. As seen in the movements for social change in the Middle East and Europe, all movements for social justice, jobs, and democracy need room to breathe and grow and it is imperative that there be a halt to law enforcement actions used to shut down mass assembly and free expression of the people seeking to redress grievances. 4. On October 1, 2011, the NYPD engaged in a mass false arrest of approximately 700+ persons who participated in, or were in proximity to, a demonstration and march crossing over the Brooklyn Bridge. 5. After escorting and leading a group of demonstrators and others well out onto the Brooklyn Bridge roadway, the NYPD suddenly and without warning curtailed further forward movement, blocked the ability of persons to leave the Bridge from the rear, and arrested hundreds of protesters in the absence of probable cause. This was a form of entrapment, both illegal and physical.
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6. That the trap-and-arrest mass arrest was a command-level-driven intentional and calculated police operation is evidenced by the fact that the law enforcement officials who led the demonstration across the bridge were command officials, known as “white shirts.”
7. That the trap-and-arrest mass arrest was an intentional and calculated police operation is also evidenced by the charade the police conducted – and themselves duly videotaped -- of speaking inaudibly into a bullhorn that could not be heard mere feet away from the officer, given the ambient noise.
8. Although a TARU officer standing right next to an officer with a handheld bullhorn captured the warnings on video, no fair notice was heard or received by the hundreds in the class and thousands in the march, given the ambient noise and their distance. The bullhorn was inaudible mere feet away. See Exh. F. (video footage from base of bridge showing bottleneck at base of pedestrian walkway, crowd waiting to enter onto pedestrian walkway, officer with bullhorn is inaudible from mere feet away, officers and command staff turning and leading demonstrators onto roadway)
9. The NYPD knew no audible communication was given. The NYPD also knew that the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it.
10. Instead, the NYPD engaged in a performance, videotaped it, and sprang their trap. They then set their PR machine into motion, widely distributing edited videos of events to spin a false narrative of events to the public and media.
11. The NYPD, as a matter of policy and practice, engages in unconstitutional tactics to disturb, disrupt, penalize, infringe upon and criminalize constitutionally protected speech and assembly.
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12. The NYPD’s trap and detain actions interfere with freedom of association, assembly, speech and free movement.
13. The NYPD employs unconstitutional tactics to trap protesters, and others in physical proximity, on all sides, seize, detain and arrest those trapped/seized. These actions are accomplished through force and threat of force in order to deprive, interfere with, and deter the exercise of constitutionally protected rights.
14. Trap and arrest involves the use of police lines against targeted protests to trap protesters and others, in the absence of warnings or orders calculated to reach those subject to arrest. As a generalized trap without warning, the tactic captures persons indiscriminately and without regard to the existence of particularized probable cause to arrest.
15. The trap and arrest tactic deprives those arrested of fair notice that they may be subject to arrest and does not provide any opportunity to comply with any directive. In short, persons conforming their conduct to the law cannot avoid being caught in a mass false arrest.
16. The conduct challenged herein is neither aberrational nor the consequence of overzealous but well-intentioned law enforcement. It is the implementation of a plan to disrupt political assembly and activities. The October 1, 2011 mass arrest was conducted just 13 days after the beginning of the Occupy Wall Street protests that were rapidly growing.
17. When named plaintiff BECKER asked why the group was being arrested, one officer explained that they were being arrested because otherwise “you’d go right back down there.” When BECKER responded that it was not illegal to be demonstrating as part of Occupy Wall Street, the officer said that if it was up to her she would not have arrested them, but “if we let you go you will just keep protesting.”
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18. When plaintiff REGAN was at the precinct being processed for release, a police officer stated, “next time you’ll think twice about going out to protest.”
19. The NYPD not only falsely arrested hundreds in a mass violation of Fourth Amendment rights, it illegally terminated demonstration activities in a mass violation of First Amendment rights.
20. The NYPD took a spirited and moving demonstration and sought to extinguish it. A protest march is a moveable demonstration engaging with the public as it proceeds, in a pristine and classic form of democratic grassroots action and assembly. As a march continues it collects energy, collects participants, absorbing those who see it and hear it going by, who are moved by the political message and want to make common cause and join in.
21. The NYPD terminated the march, the message, the opportunity to communicate, and the opportunity for people to join together at that moment. The NYPD conducted a mass false arrest and extinguished the demonstration activity in an attempt to stop and prohibit further growing democratic and political collective action.
22. These unconstitutional actions also send a threatening message to the public that may be interested in making common cause with the political actions. That message is that free speech activities are criminalized by the police department and that joining in lawful First Amendment protected activities comes at the risk of police violence and false arrest.
23. These unconstitutional actions create a substantial chilling effect and deterrent to First Amendment protected activity as they burden free speech activities with the risk of arrest, of being wrongfully subject to the criminal process of the city, of being threatened with physical harm by the police, being bound with handcuffs and having one’s identification and
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association with a demonstration be collected and recorded by the police and transferred to federal and other law enforcement authorities for data warehousing and collection. 24. This police conduct is anathema to democracy. These blatantly unconstitutional tactics have been ratified by the highest policy makers from the Chief of Police to the Mayor of New York City. Mayor Michael Bloomberg stated of the October 1 mass arrest, “The police did exactly what they were supposed to do.” 25. This complaint seeks, in addition to monetary compensation, injunctive relief enjoining defendants from engaging in the challenged conduct in the future, an order nullifying the arrests, and expungement of all arrest records.
JURISDICTION 26. This civil rights action is brought pursuant to 42 U.S.C. § 1983 and § 1988. The court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (Federal Question), 28 U.S.C. § 1343(3) and (4) (Civil Rights), 28 U.S.C. § 1332(d)(2) (Diversity of Citizenship; Class Actions) and 28 U.S.C. § 1367 (Supplemental Jurisdiction). 27. The amount in controversy exceeds the sum or value of $5,000,000. On information and belief, the percentage of putative class members who reside outside of New York State is greater than one-third. 28. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§2201 – 2202 and Fed.R.Civ.P. 57.
VENUE 29. Venue is proper in the United States District Court for the Southern District of New York
pursuant to 28 U.S.C. § 1391 as the municipal defendant and is deemed to reside therein,
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defendant BLOOMBERG resides therein, and as a substantial part of the events or omissions giving rise to the claims occurred therein.
PARTIES Named Plaintiffs 30. Plaintiff KARINA GARCIA is a public high school teacher and resides in Chelsea in New York City. 31. Plaintiff BENJAMIN BECKER is an adjunct instructor at the City College of New York and a graduate student at the CUNY Graduate Center and resides in Chelsea in New York City. 32. Plaintiff MARCEL CARTIER is a student at Bronx Community College, a hip hop artist, and community activist and resides in the Bronx, New York. 33. Plaintiff Dr. MICHAEL CRICKMORE is a neuroscientist at a research university in New York City, where he resides. 34. Plaintiff BROOKE FEINSTEIN is a resident of Iowa City, Iowa and on October 1, 2011 was in New York City on vacation. 35. Plaintiff YARI OSORIO is an unemployed college graduate looking for work, and resides in Queens, New York. 36. Plaintiff YAREIDIS PEREZ is an administrative assistant and events coordinator at a museum in New York City, and resides in Jersey City, New Jersey. 37. Plaintiff CASSANDRA REGAN is a recent graduate with a Masters degree in early childhood education and a community organizer and resides in Queens, New York. 38. Plaintiff TYLER SOVA is a social worker residing in Brooklyn, New York. 39. Plaintiff STEPHANIE JEAN UMOH is a college graduate and aspiring actress residing in Harlem in New York City.
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40. Each of the above-referenced plaintiffs was peacefully and lawfully participating in the demonstration and march when the police led, escorted and permitted the march onto the Brooklyn Bridge roadway.
41. None of the plaintiffs heard warnings or orders to not proceed upon the bridge roadway. 42. Each understood their passage upon the roadway to be permitted by police. 43. After leading the demonstration well out onto the Brooklyn Bridge, police without cause,
notice and opportunity to comply with any order, trapped and arrested each plaintiff, boxed each plaintiff in without avenue of exit, and falsely detained and arrested each plaintiff in the absence of probable cause.
Named and Unnamed Defendants 44. Defendant MICHAEL R. BLOOMBERG is the Mayor of New York City and the chief
policymaker for the CITY OF NEW YORK and its departments and agencies, including the NEW YORK CITY POLICE DEPARTMENT. Mayor BLOOMBERG has caused and/or approved and/or ratified the unconstitutional conduct challenged herein. He is sued in his official and individual capacities. 45. Defendant CITY OF NEW YORK is a municipal corporation within the State of New York. 46. Defendant RAYMOND W. KELLY is the Commissioner of the New York City Police Department, which is an agency of the City of New York. KELLY is a policymaker for the CITY of NEW YORK and the NEW YORK POLICE DEPARTMENT. Commissioner KELLY has caused and/or approved and/or ratified the unconstitutional conduct challenged herein. He is sued in his official and individual capacities. 47. Defendants JOHN or JANE DOES 1 – 30 are unidentified New York City police officials, officers or command staff who caused or did arrest the plaintiff class. These as-yet-
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unidentified defendants engaged in the mass arrest notwithstanding the absence of probable cause or lawful justification. These defendants knew that the NYPD had permitted and/or conveyed permission to the marchers to conduct their march and, ultimately, to be upon the bridge roadway. These defendants knew that police had escorted and led marchers onto the roadway and then, minutes later, arrested the plaintiff class for being present upon the roadway onto which police had just led and escorted them. These defendants are sued in their individual and official capacities. 48. Defendants JOHN or JANE DOES 31 – 40 are unidentified law enforcement or security officials, officers or agents who, although not employed by the NYPD, did engage in joint action with the NYPD and its officials, officers and agents to cause the mass false arrest of the plaintiff class.
CLASS ACTION ALLEGATIONS 49. The proposed class is: All persons who were arrested on or at the Brooklyn Bridge in the
mass arrest conducted on October 1, 2011. 50. The proposed class and their claims satisfy the requirements of Rule 23(b)(3) and,
alternately, Rule 23(b)(2). 51. The proposed class of persons, which is composed of approximately 700+ persons, is too
numerous for joinder. 52. The defendants conducted a mass arrest of the class, as a group, and in so doing acted on
grounds that apply generally to the class. The decision to arrest the class is based on facts and circumstances common to the class. The decision, per se, pertained to the class. 53. The class claims that the members’ Fourth Amendment rights against false arrest and false imprisonment were violated raise common questions of law and fact that predominate over
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any questions affecting only individual members. The existence or absence of probable cause is a common issue relevant to liability. 54. The class claims that the mass group arrest violated the class’ and members’ First Amendment rights to engage in, observe or associate with free speech and assembly activities (i.e., through physical proximity), raise common questions of law and fact that predominate over any questions affecting only individual members. 55. The class claims that the mass group arrest violated the class’ and members’ Due Process rights, by permitting and leading a protest march onto the Brooklyn Bridge whereupon police arrested the class for being present upon the bridge roadway which police had just permitted access to and led them upon, raise common questions of law and fact that predominate over any questions affecting only individual members. 56. The class claims that the mass group arrest constituted false arrest under New York law raise common questions of law and fact that predominate over any questions affecting only individual members. The state law false arrest claim is based on the same decision to mass arrest the plaintiff class, and the same underlying probable cause determination, as is the federal section 1983 claim. A section 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures including arrest without probable cause, is substantially the same as a claim for false arrest under New York law. Consideration of the New York law false arrest claim and related state law claims under pendant jurisdiction will not substantially affect the efficacy of the class action. 57. The class claims that the mass group arrest was a calculated and deliberate course of false arrest, put into effect in order to retaliate against all those who would engage in the mass
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protest from Wall Street or associate with said protest, raise common questions of law and fact. 58. The claims of the named plaintiffs are typical of the claims of the class, as each was engaged in or associating with peaceable and lawful free speech and assembly activity when each was subjected to false arrest on October 1, 2011 as part of the same police sweep against the class as a group. 59. The named plaintiffs have a strong interest in the outcome of this action, have no conflicts of interest with the plaintiff class, and will fairly and adequately protect the interests of the class. 60. The named plaintiffs are represented by the undersigned counsel and with the attorneys of the Partnership for Civil Justice Fund. Undersigned counsel has successfully litigated a wide range of complex federal court constitutional rights matters, a substantial part of which focus on the rights of protesters to engage in free speech and dissent. Undersigned counsel was lead counsel in Becker, et al. v. District of Columbia, et al., Civil Action No. 01 – 00811 (PLF), United States District Court for the District of Columbia (trap and detain tactic used in mass false arrest of approximately 700 persons engaged in or in proximity to protest march) and Barham v. Ramsey, Civil Action No. 02-2283 (EGS), United States District Court for the District of Columbia (trap and detain tactic used in mass false arrest of nearly 400 marchers, protesters and others in Pershing Park, Washington, D.C.). See Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006). These two class actions, as well as multiple additional lawsuits stemming from protest activity that counsel has litigated, have resulted in sweeping equitable relief and reform through settlement terms and resultant statutory reforms, establishing in the nation’s capital an unprecedented bulwark against police misconduct in the context of mass
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demonstrations. These protections include a ban on the trap and detain tactics challenged here. The Becker case also resulted in what is believed to be the largest financial settlement of a protest case in U.S. history. Counsel for the plaintiffs were lead counsel on the successful lawsuit challenging the City of New York’s efforts to ban mass assembly on the Great Lawn of Central Park during the Republican National Convention of 2004, National Council of Arab Americans, et al. v City of New York, et al., Civil Action No. 04 CV 6602 (WHP), United States District Court for the Southern District of New York. Plaintiffs’ counsel is also currently counsel on the class action lawsuit challenging the trap and detain tactic used to mass arrest persons demonstrating over the killing of Oscar Grant in Oakland, CA, Spalding, et al. v. City of Oakland, et al., Civil Action No. 11-CV-02867 (TEH), United States District Court for the Northern District of California. Counsel for the plaintiffs has the resources, expertise and experience to prosecute this action. Counsel for the plaintiffs knows of no conflicts among members of the class or between the attorneys and members of the class. 61. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The class is readily defined and prosecution of a class action will eliminate the need of repetitious litigation.
FACTUAL ALLEGATIONS 62. In advance of the October 1, 2011 march that is the subject of this Complaint, the defendants
had knowledge of the Occupy movement, the physical encampment and base of operations at Zuccotti Park, and the fact that persons associated with the Occupy movement had engaged in First Amendment protected activities, including political marches, as a form of political expression and action.
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63. In advance of the October 1, 2011 march, on information and belief, defendants KELLY and BLOOMBERG had communicated and conferred regarding how the NYPD would respond to the Occupy related activities, including protest marches.
64. In advance of the October 1, 2011 march, the NYPD had knowledge that a march would occur on October 1, 2011 from Zuccotti Park to the Brooklyn Bridge Park where there was an announced event with speakers including Amiri Baraka, author, poet and playwright.
65. On October 1, 2011 demonstrators began marching from Zuccotti Park near Wall Street, which the demonstrators dubbed Liberty Square. The demonstrators were engaged in mass assembly and collective action including calling for a shifting of resources in society from the 1% who hold the greatest concentration of wealth and corporate power, to the other 99%. The protesters’ political chants included “We are the 99 percent” and “Banks got bailed out, we got sold out!”
66. The march moved initially from Zuccotti Park towards the Brooklyn Bridge. 67. The NYPD presence at Zuccotti Park and along the march was substantial, consisting of the
deployment of officers on foot, officers on bicycles, officers on motorscooters and/or motorcycles, officers in cruisers and officers in other types of vehicles. 68. Police had staged and arrayed their resources, personnel and assets including officers, weapons, amplified sound equipment and other crowd control devices sufficient for the march. 69. On information and belief, NYPD command staff monitored the movement of the march, including in the police headquarters and in command centers, including mobile command centers. One Police Plaza is located at the base of the Brooklyn Bridge.
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70. On information and belief, defendant and Police Commissioner RAYMOND KELLY monitored the march as it proceeded.
71. On information and belief, defendant KELLY was in communication with subordinate command staff in the field and in physical proximity to the march.
72. Thousands of people comprised the October 1, 2011 march. 73. The defendants were aware of the start of the march. 74. The NYPD permitted, and did not impede, the start of the march from Zuccotti Park. 75. The NYPD permitted the march to proceed upon the public ways from Zuccotti Park and
through downtown Manhattan. 76. The NYPD permitted the march to proceed to the Brooklyn Bridge and, ultimately, permitted
the march to proceed upon the vehicular roadway of the Brooklyn Bridge. 77. The NYPD used officers, including flanking the march with officers on motorscooters or
motorcycles, to escort the march from Zuccotti Park to the Brooklyn Bridge. 78. The NYPD officers escorting the march “guided” and exercised control over the conduct of
the march through their physical presence, show of police force and authority, and specifically through the issuance of orders and directives to individuals within the march. See Defendants’ Motion to Dismiss at 12. 79. The march as a whole, and the individuals within the march, understood that the NYPD was escorting and permitting the march to proceed. 80. As the march proceeded towards the Brooklyn Bridge, the NYPD knew and observed that the march of several thousand individuals was compliant with police directives and, indeed, “followed [the police directives].” Id.
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81. At points and times, the police directed and permitted marchers to proceed in ways ordinarily prohibited under traffic regulations absent police directive or permission.
82. At some intersections along the march, police blocked vehicular traffic, directing and permitting marchers to cross the street against the traffic signal.
83. Marchers relied on the orders and signals by the police that this, ordinarily prohibited, conduct was at that particular time and place being allowed by the police who were guiding and escorting the march.
84. In general, the marchers relied on the police for directives and indications as to what actions were being permitted at what times, so that they could conform their conduct and comply with the orders and indications being given by police.
85. Later in the march, when police led and escorted and permitted marchers en masse onto the roadway of the Brooklyn Bridge, marchers understood that they were being led and escorted and permitted onto the roadway of the Brooklyn Bridge.
86. The police deprived the plaintiff class of any fair notice that following the lead and escort of police across the bridge roadway was somehow prohibited.
87. As the front of the march reached City Hall Park, those in the front of the march crossed Centre Street and moved to the pedestrian walkway or promenade of the Brooklyn Bridge.
88. When the front section of the march encountered the narrow pedestrian walkway of the bridge, there was a natural congestion as the large group began to file onto the smaller walkway. It took some period of time for the first portion of the march to enter upon the walkway, which occurred without disturbance. See e.g., Exh. B (photo image of large
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number of marchers entering and on the pedestrian walkway); Exh. C (photo image of pedestrian walkway packed with marchers while roadway remains clear).1 89. At the entrance point to the walkway flowing back across Centre Street, along Park Row and in the broad sidewalks abutting City Hall Park, thousands more were in procession. This mass procession had been occurring for a substantial time without any noncompliance. See Exhs. D and E (photo images of marchers flowing far back from base of the bridge). 90. Police, including command officials and other city officials, stood in an eastbound roadway at the entrance of the bridge. 91. The police observed the congestion of persons in the roadway near the entrance to the Brooklyn Bridge promenade. 92. The command officials gave no audible warnings or orders to the mass of people assembled. 93. One officer, consulting with a non-uniformed person, spoke inaudibly into a bullhorn that could not be heard mere feet away from the officer, given ambient noise. See e.g., Exh. F. (video footage from base of bridge showing bottleneck at base of pedestrian walkway, crowd waiting to enter onto pedestrian walkway, officer with bullhorn is inaudible from mere feet away, officers and command staff turning and leading demonstrators onto roadway). 94. Within a period of five minutes, the officer made statements into the bullhorn including at the end a rapid and quick succession of statements. These generally inaudible statements appear from TARU video to request that anyone who might have been within earshot leave the roadway and at the end that failure to comply would result in arrest. 95. The NYPD knew no audible communication was given to the hundreds and thousands potentially subject to arrest.

1

Exh. A is an appendix listing all media exhibits and public or NYPD source location for each exhibit

herein.

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96. The NYPD also knew that the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it.
97. There was no attempt by the NYPD to communicate a command, order or other message to the whole of the mass of people at the base of the bridge.
98. The set of directives at the entrance to the bridge could have been heard, if at all, by only a handful of people.
99. These directives were not audible, and thus not given, to the vast majority of people congested at the entrance to the bridge.
100. They were not audible to the hundreds of persons upon the pedestrian walkway. 101. They were not audible to the thousands of people upon and across Centre Street, and
filling blocks of sidewalk space abutting and wrapping around City Hall Park. 102. They were not audible to the plaintiff class. 103. The police possess amplified sound equipment sufficient to project and be heard for
blocks. 104. Having initially stood in the eastbound roadway of the Brooklyn Bridge, the command
staff and police at the roadway entrance then turned around, and led the midsection2 of the march across the bridge. 105. The demeanor of the police officials and command staff leading the march across the bridge was casual and even somewhat jocular, as they casually chatted with each other, some carrying coffee or beverages. See e.g., Exh. F, Exh. G (video footage of NYPD casually leading demonstration onto roadway), Exh. G-1 (video still image of apparently unconcerned officers chatting), Exh. G-2 (video still image of officer leading march onto roadway while

2

The original front of the march had entered onto the pedestrian walkway with several hundred others.

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carrying beverage), Exh. H (additional video footage showing NYPD leading demonstrators onto vehicular roadway further along on the bridge). 106. From that moment on, no orders were issued from the police at the roadway entrance for the ongoing flow of marchers to not proceed on the roadway. 107. The single officer with the hand held battery operated bullhorn joined the command staff and others leading the march on the roadway across the bridge. 108. Police continued to escort the march along its side, with no police on the flanks ordering or directing the march they had been escorting that afternoon against entering or being present upon the bridge. On the contrary, these officers - - who had not hesitated at any time during the march towards the Bridge to direct people on the sidewalks when they so desired - did not warn against entering or continuing upon the Bridge roadway. See e.g., Exhs. I, J, and K (photo images of officers flanking and escorting march along the bridge roadway). 109. As marchers, including members of the plaintiff class, followed the police officials onto the Brooklyn Bridge roadway, there was no effort by the police to stop the marchers from entering or continuing upon the roadway. On the contrary, NYPD command staff or “white shirts” led the march. 110. Police permitted the march to proceed upon the roadway of the bridge. 111. The police led the march across the bridge - - a decision which would hardly be viewed by march participants or observers as unlikely, given that traversing the roadway or a portion of the roadway would have affected an orderly and faster movement of the march across. 112. When the police turned and led the march onto the roadway, those who could see this actual and apparent grant of permission to follow let out a cheer believing police were permitting them to cross the bridge on the roadway.
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113. Throughout the crowd that was near the entrance to the bridge was heard spontaneous exclamations excitedly shouted out, “They’re letting us [cross the bridge on the road]!” See e.g., Exh. L (NYPD TARU video as march proceeds upon roadway, captures marcher on roadway exclaiming to pedestrian marchers “They’re allowing us to! They’re allowing us to!”)
114. After the police led and escorted the march onto the roadway, scores of the marchers who had originally entered upon the pedestrian walkway joined the others on the roadway when it became clear that police were leading and escorting and permitting marchers to use the roadway to cross the bridge. See e.g., Exh. M (video of people climbing down to roadway from walkway entering behind police who are permitting and leading the march).
115. When police conducted the arrest, they were aware that the group detained included such persons from the pedestrian walkway.
116. Plaintiff BECKER marched on the sidewalk to get to the Brooklyn Bridge. Upon reaching the bridge, the crowd including BECKER came to a stop in the street between City Hall Park and the entrance to the bridge due to congestion. BECKER did not see or hear any police at that time. When the crowd began moving again, BECKER followed the people in front of him forward, entering the roadway of the bridge because he happened to be on the right side of the crowd. While marching on the bridge, BECKER observed police officers in front of the group leading it to Brooklyn. From all of his observations, BECKER understood that the march was permitted to proceed upon the bridge, led by the police.
117. Plaintiff CARTIER marched on the sidewalk to get to the Brooklyn Bridge. Upon reaching the bridge, the crowd congested in the area of the City Hall Park and the bridge entrance. When the crowd began moving again, CARTIER followed the march. He did not
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hear any warnings, orders, directives or indications from police that following the march was not permitted. 118. Dr. MICHAEL CRICKMORE, marched with the group from Zuccotti Park. Not favorably disposed towards large and tightly congested crowds, he positioned himself on the outside or street side of the procession as much as possible. During the portion of the march from the Zuccotti Park to Brooklyn Bridge CRICKMORE observed that the police frequently issued directives to stay on the sidewalk, with which he complied. Following and within the body of the march, CRICKMORE entered upon the roadway of the Brooklyn Bridge. He did not even know he was upon the roadway of the bridge at first. He was given and heard no orders or warnings not to be upon that roadway. When he realized he was upon the bridge roadway, he looked to police for guidance. He noted that, in sharp contrast to before, the police who were escorting him were simply walking alongside him, giving no orders whatsoever and making no suggestion whatsoever that proceeding thereupon was problematic in any way. He understood his presence on the bridge was permitted, based on the police’s evident allowance of the conduct. 119. Plaintiff FEINSTEIN was visiting New York City from Iowa on vacation with her husband. They joined the crowd and followed people, marching in the middle of the group. When crossing the street from City Hall Park to the Brooklyn Bridge, FEINSTEIN observed police blocking traffic to facilitate the group crossing to the bridge. These were the only officers she saw at this time. FEINSTEIN continued to follow the crowd and entered the roadway as she followed the people ahead of her. FEINSTEIN did not even realize she was on the roadway until she had already proceeded upon it. At that time, FEINSTEIN observed police officers walking along with the march, which informed her understanding that she was
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on the correct, planned route of march. At one point, a police officer was walking immediately to the side of FEINSTEIN. This officer did not say anything to her. FEINSTEIN did not hear or see any warnings or directives from police indicating she was not permitted to be on the roadway. 120. Plaintiff GARCIA marched on the sidewalk to get to the Brooklyn Bridge. Upon reaching the bridge, the crowd congested in the area of the City Hall Park and the bridge entrance. When the crowd began moving again, GARCIA followed the march. She did not hear any warnings, orders, directives or indications from police that following the march was not permitted. She understood that the group was being permitted to proceed as they were to the intended end point in Brooklyn. 121. When Plaintiff OSORIO reached the bridge, the crowd congested in the area of City Hall Park and the bridge entrance. When the crowd began moving again, OSORIO followed the march forward. He did not see or hear any police at this time. OSORIO did not realize he was on the roadway of the bridge until he realized that to his left was a separate group of persons marching on the pedestrian walkway. OSORIO subsequently saw police officers walking on the side of the crowd in the roadway. This gave him the understanding that the march was being guided and escorted by the police across the bridge, including on the roadway. 122. Plaintiff PEREZ observed police officers escorting alongside the march. Upon reaching the Brooklyn Bridge, she marched in the same direction that she observed the escorting police officers to be walking and followed the police and the flow of the march. She heard no orders or warnings or notice not to be on the roadway of the bridge. When on the roadway, the police officers walking alongside the marchers were walking and occasionally talking among themselves. They did not tell her to get off the bridge. As PEREZ continued to follow
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the march and the police escort, she observed police walking in front of the march, leading it across the bridge toward Brooklyn. She was shocked and confused when police formed a line, blocking movement, and began to implement the arrest. She could not understand what she had done wrong, given that police had permitted, led and escorted the march without objection. 123. When Plaintiff SOVA approached the Brooklyn Bridge, he observed marchers entering the pedestrian walkway and the resulting bottleneck. He also observed marchers begin to walk on the roadway of the bridge. After observing what he believed to be several hundred persons entering the roadway, he followed them, knowing that the destination was a park in Brooklyn. During the period SOVA was at the base of the bridge observing others’ movements, he did not hear any police orders. He did not hear any orders or directives not to proceed to follow the march on the roadway. When SOVA marched on the bridge roadway he observed officers alongside the march. These officers did not give SOVA or others any directives. The police simply walked forward, in contrast to earlier in the day when he had observed them giving orders for marchers to remain on the sidewalk. The police gave SOVA the impression and understanding that they were permitting and escorting the march across the bridge. 124. Plaintiff UMOH followed marchers to the Brooklyn Bridge. UMOH observed some marchers splitting towards the left and some towards the right. She was amidst the right side of the crowd and so she followed the marchers proceeding on the right, which happened to be on the roadway. As she entered the roadway UMOH, in the middle of a large crowd of people, did not see any police officers. She did not hear any police directives. Because of her
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position within the crowd, she observed only one officer on the bridge up until when she was about to be arrested. That officer did not give any directives or communicate in any way. 125. The police, having led and escorted hundreds of marchers upon the roadway of the Brooklyn Bridge, mid-way across the bridge arrested over seven hundred people for being present upon the bridge, precisely where the police had led them and permitted them to march. 126. Prior to terminating the march when it was mid-way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed. 127. Midway across the bridge, when the police stopped all forward movement of the march, an officer spoke inaudibly into a bullhorn that could not be heard mere feet away from the officer, given ambient noise. 128. Again, the NYPD knew no audible communication was given. 129. The plaintiff class was blocked from forward movement by the police. 130. The plaintiff class was ultimately prevented from moving backward as the NYPD prevented dispersal through the use of orange netting and police vehicles. 131. An officer at the front told named plaintiff REGAN, “leave or get arrested.” REGAN determined that there was no exit from the back because the police were blocking exit. She told the officer that they wanted to leave but that they were blocked on the back side too, and asked how they were to leave. The officer merely restated, “leave or get arrested.” 132. The NYPD’s actions were not only unconstitutional, they were dangerous. The NYPD’s actions put hundreds of persons in jeopardy of injury from forced compression of people with
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no avenue of escape, threat of injury from stampede, or being forced over the side of the bridge. 133. When the police action commenced and rippled back through the crowd, a completely peaceful demonstration was suddenly gripped with chaos and pandemonium. It is extremely fortunate that there was not mass injury from the NYPD’s dangerous actions. 134. The plaintiff class was then subject to a mass false arrest by the NYPD. 135. All of the officers or persons who participated in, or otherwise caused, the arrests of the plaintiffs or plaintiff class did so in disregard of their actual knowledge that the march had been permitted and led and escorted onto the roadway of the bridge. 136. The plaintiff class was handcuffed, taken into custody, processed and released through the night into the early morning hours. 137. At no time did the plaintiff class fail to obey a police order. At no time did the plaintiff class engage in disorderly conduct. At no time did the plaintiff class illegally block vehicular traffic on the Brooklyn Bridge, as the police had stopped vehicular traffic, opened up the roadway to pedestrian traffic, and themselves led and escorted the demonstration onto the roadway with police command officials at the lead. At no time did the plaintiff class engage in parading without a permit, as the march of several thousand was permitted to proceed and escorted by police throughout and there was never any notice to the class that such permission had been revoked. 138. The NYPD then engaged in a mass falsification of arrest documents in order to subject members of the plaintiff class to the injury of criminal process. 139. Each summons that was issued by a police officer to a class member includes the signature of a police officer who attests and signs beneath a line that states: “I personally
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observed the commission of the offense charged above. False statements made herein are punishable as a Class A misdemeanor pursuant to Section 210.45 of the Penal Law. Affirmed under penalty of perjury.” 140. For example, many of the summonses including Summons 433455474-0 issued to plaintiff BECKER, attest under penalty of perjury that the police officer observed the arrestee “Fail to Obey Lawful Order by PO” or similar. Yet the police officer observed no such issuance of a police order, let alone a failure to obey by the arrestee. Many of the “arresting” officers were, in fact, assigned to arrestees at a precinct or location other than the Brooklyn Bridge and did not see the class member engaged in any conduct at all, let alone conduct alleged to constitute an offense. 141. On information and belief, no officer has been disciplined for this practice or prosecuted for perjury, nor any supervisory officials who ordered or permitted the practice.
Continued Adverse Effects and Future Recurrence 142. The continued existence of the trap-and-arrest policy, practice and custom imposes an
objective and substantial chilling effect on the exercise of free speech and assembly rights. 143. The continuation of the policies, practices and customs challenged herein places persons
within the plaintiff class at risk for future false arrest should they continue to associate with protest and march activity in New York City. The risk presented by these practices is that a person - - no matter how law abiding his or her conduct - - is at risk for sudden and indiscriminate false arrest simply by virtue of being physically present near protest activity. The only way to be certain of avoiding false arrest is to avoid protest and march activities. 144. Members of the plaintiff class, who continue to engage in protest activities in connection with the ongoing Occupy movement or other demonstrations, are at genuine and immediate
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risk of being subject to false arrest in the future. The tactics complained of reflect a citywide practice, policy or custom of trapping and arresting groups of protesters. They are not the results of errant low level officers acting in violation of policy, but are the results of policy, practice or custom itself. 145. On information and belief, some number of the persons arrested in the October 1, 2011 mass false arrest had previously been arrested in prior trap-and-arrest executions, including those that occurred on September 24, 2011. With the persistent occurrence of ongoing Occupy-related marches and activities, there is a real and immediate threat of recurrence that will affect members within the class. 146. A person of reasonable firmness who wishes to engage in free speech and expressive activities is chilled in the exercise of those rights by this risk. 147. Members of the plaintiff class have been chilled, and suffer ongoing, continued, and objectively reasonable chilling of their free speech activities and will continue to suffer unless and until the indiscriminate trap-and-arrest tactics are ceased voluntarily by consent decree or through injunctive relief. 148. This chilling effect does not necessarily mean a complete termination of protest activities by those affected, but it does mean that ordinary people must curtail or limit their participation in First Amendment protected activities in order to avoid severe personal or professional or other repercussions/injuries from false arrest. 149. Persons exercising their First Amendment rights in New York City by engaging in demonstration activities cannot, by conforming their conduct to the law, avoid arrest where the NYPD is allowed to conduct mass trap and detain arrests.
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150. Some members of the plaintiff class curtail their constitutionally protected free speech activities in order to avoid being subject again to false, sudden and indiscriminate arrest without any fair notice or warning.
151. Plaintiffs allege such curtailment to constitute a continuing, adverse effect of the violations and tactics challenged herein.
152. Plaintiff CRICKMORE, who is married with a three year old son, has curtailed and limited his free speech activities. CRICKMORE, who previously participated in such activities jointly with his wife, now switches off with her as to who may exercise their First Amendment rights, for fear that if they attend a demonstration together and are subject to false arrest, their small child will be without care. CRICKMORE also now generally refrains from taking his son with him to such activities.
153. Plaintiff SOVA curtails his free speech activities. As a result of the ongoing, adverse effects of his arrest, and the threat of re-arrest, SOVA refrains from exercising his First Amendment rights through participation in protest activities during the work week for fear of being falsely arrested and missing work.
154. Plaintiff PEREZ curtails her free speech activities. She still engages in First Amendment protected activities, but is less active now in marches and protests. She cannot afford to get arrested and miss work. Having accepted an Adjournment in Contemplation of Dismissal from this arrest, she believes that if she is wrongly arrested again, she will suffer severe consequences including the reinstatement of the false charges against her in the October 1, 2011 arrest.
155. Plaintiff UMOH has, since the mass arrest, curtailed her participation in First Amendment protected protest activities due to fear of being arrested again while lawfully
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engaged in such activity, without notice or warning by police and without any misconduct on her part. 156. Other plaintiffs suffer adverse effects, or “organizing headwinds,” reflected in the increased effort needed to overcome others’ concerns that engaging in lawful peaceful protest activity places one at risk for arrest due to the indiscriminate arrest tactics described herein. 157. Plaintiff GARCIA is a New York City school teacher who must, herself, report her arrest to administrators. GARCIA is a faculty advisor and facilitator for a student group at her high school and has taken responsibility with the school and parents for facilitating student participation in civic engagements, including participating in peace rallies and other expressive activities, such as those opposing budget cuts in education. GARCIA must expend additional efforts to overcome parents’ and others’ concerns that such activities places students at risk due to the indiscriminate and sudden nature of the challenged mass arrest tactics.
UNCONSTITUTIONAL POLICIES AND PRACTICES 158. The CITY OF NEW YORK and the NYPD maintain the policy, practice and/or custom
of abusing state authority to disturb and disrupt targeted civil political assembly and mass demonstrations. 159. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of engaging in mass false arrests of protesters in the absence of probable cause. 160. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of engaging in mass group arrests without having probable cause to arrest the group as a group; and without having individualized or particularized probable cause to arrest each person within the mass group to be arrested.
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161. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of engaging in indiscriminate or dragnet-style arrests of protesters in the absence of individualized probable cause, a practice typified by the NYPD’s use of orange netting to capture and arrest masses of people without regard to whether there exists probable cause to arrest the individuals trapped in such sweeping seizures.
162. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of engaging in mass group arrests of protesters without regard, or with disregard, as to whether the target group contains persons for whom there is no probable cause to arrest.
163. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of engaging in mass group arrests of protesters without giving the group fair notice, warnings or order to disperse (or to comply with lawful police directives), and without giving a meaningful and reasonable opportunity to comply.
164. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of tolerating and failing to discipline unlawful police conduct against protesters including specifically, false arrest.
165. The CITY OF NEW YORK and the NYPD maintain a policy, practice and/or custom of causing or justifying arrests for parading without a permit as a strict liability violation in the absence of knowledge or mens rea. This policy caused or is used by the Defendants to justify the arrest of the plaintiff class.
166. The mass false arrest of the plaintiff class, was ordered or approved or ratified by command staff and by NYPD policy makers with sufficient authority as to constitute agency policy makers.
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167. The named defendants have been deliberately indifferent to the violation of plaintiffs’ constitutional rights.
168. The named defendants have failed to adequately train or instruct the NYPD and its officers so as to prevent the foreseeable violation of the clearly established rights of protesters to be able to engage in peaceable assembly and free speech without being subject to false arrest.
169. Named defendants have failed to properly train officers regarding: the constitutional requirements to give fair notice prior to the initiation of mass protest arrests, including in particular when the target arrest group includes individuals for whom there is not probable cause to arrest; the constitutional prohibitions against indiscriminate or dragnet-style arrests in the absence of individualized probable cause when using police lines or netting to arrest groups of protesters; the constitutional requirement of mens rea and knowledge or fair notice before causing or justifying arrests for parading without a permit or disorderly conduct; the constitutional requirements to provide fair notice where, having permitted a march to proceed in the absence of an advance written permit, the police seek to impose restrictions on the manner of conduct of the march or to revoke permission for the march; the constitutional prohibition against arresting marchers absent fair notice for proceeding where police have granted actual or apparent permission for a march to so proceed; the constitutional requirements that fair notice be heard/received by all persons subject to potential arrest regardless of the noise that demonstration groups may be making and/or the distance over which the targeted group or march may be spread; and in the constitutional impropriety of applying “disorder control” tactics against non-violent First Amendment protected assembly.
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170. The above-referenced policies, practices and/or customs, and also the failure to properly train NYPD officers, constitute deliberate indifference on the part of the policymakers of the CITY OF NEW YORK and of the NYPD, and by the named defendants, to the constitutional rights of protesters as well as all those who would associate with such protesters. VIOLATIONS OF CLEARLY ESTABLISHED LAW
171. The actions of the above-referenced defendants violated the following clearly established and well settled federal constitutional rights: a. Freedom from the unreasonable seizure of one’s person; b. Freedom from government disruption of, interference with, or retaliation for, engagement in free speech, assembly and association activities; c. Freedom from deprivation of liberty absent, or in violation of, Due Process of law.
172. Clearly established constitutional law was violated in this case where police permitted the march to occur and failed to issue fair notice (audible or understandable to the group that was subject to arrest) that permission had been revoked before the police engaged in arrests of the plaintiff class.
173. Clearly established law was violated where police permitted the march (and actually led the march) to be present upon an ordinarily prohibited area and then, just minutes later, arrested the marchers for having marched without permission or for being in an ordinarily prohibited area.
174. Even assuming arguendo that the bullhorn warning at the base of the bridge could possibly have been heard by some set of persons, and further assuming arguendo that the subsequent police permission to use the roadway was not superceding, clearly established law was violated for the defendants to have imputed alleged culpability to the hundreds of
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others who were marching in the same march and who were not a part of, nor privy to, that interaction. 175. Clearly established law was violated where the plaintiff class of 700+ persons was arrested in the absence of an objectively reasonable probable cause determination particularized to the plaintiff class in its entirety or to each and every one of the individual class members. 176. Clearly established law was violated where prior to the initiation of the arrest of the plaintiff class, fair notice was not issued including orders to comply or disperse issued in a manner reasonably likely to have reach all of the crowd despite any noise the demonstrators may have been making. 177. Clearly established law was violated in that the plaintiff class was arrested without fair notice to the group as a whole, followed by time and opportunity to comply and a refusal to quit. 178. NYPD Command Staff, identified and unidentified, participated in, caused, approved or ratified the arrest of the plaintiff class. This included through issuing or approving or ratifying the order to arrest the class. Additionally, individual supervisory officers had the duty to exercise appropriate command authority in their supervision of their subordinates and failed to do so, resulting in the unconstitutional deprivations complained of herein. Individual officers had the duty to intervene to prevent or halt unlawful and/or unconstitutional conduct complained of herein, including the mass false arrest of the class. 179. No objectively reasonable officer or official could have participated or caused or approved or ratified the arrest of the plaintiff class with knowledge of these circumstances constituting violations of clearly established law.
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PRIOR EXECUTIONS OF UNCONSTITUTIONAL MASS PROTEST ARRESTS USING TACTICS CHALLENGED HEREIN
180. The policies, practices and customs challenged herein are an outgrowth of the “Disorder Control Guidelines” that were issued by Police Commissioner KELLY in the political aftermath of the Crown Heights riots in 1991.
181. In November, 1993, Police Commissioner Raymond W. Kelly released the NYPD’s Disorder Control Guidelines, which to this day constitute the “playbook” the NYPD has used with little distinction between response to violent riots or peaceful free speech assembly.
182. The use of orange mesh netting to trap and arrest protesters and engage in indiscriminate mass arrests in the absence of individualized probable cause, was initiated as part of Commissioner KELLY’s NYPD Disorder Control Guidelines and practice.
183. The City, under Commissioner KELLY and Mayor BLOOMBERG, has repeatedly deployed police ostensibly engaged in “disorder control” to execute mass arrests of peaceful protesters, indiscriminately, in the absence of individualized probable cause, and without fair notice, warnings or orders to disperse to those subject to arrest.
184. On April 7, 2003, the NYPD conducted a mass arrest of demonstrators who were standing on a midtown sidewalk during a protest against the invasion of Iraq across the street from the offices of the Carlyle Group. Without warning or notice or cause, police surrounded the protesters and passers-by who happened to be walking on the same sidewalk, and without giving a directive or providing opportunity to disperse or comply with any directive the police indiscriminately arrested everyone trapped within the police line cordon. Kunstler v. City of New York, Civil Action No. 03-CV-02819-RWS, Southern District of New York (filed February 11, 2004, terminated August 22, 2008).
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185. Multiple executions of the trap-and-arrest and indiscriminate tactics were perpetrated under the auspices of defendants KELLY and BLOOMBERG in connection with the 2004 Republican National Convention in New York City. According to the New York Times, 1,806 persons were arrested in connection with RNC protests, and “[c]harges were ultimately dropped against 90 percent of them.” Jim Dwyer, City Fights Efforts to Release 2004 Convention Arrest Records, N.Y. Times, Dec. 13, 2006, at B2; Jim Dwyer, Videos Challenge Hundreds of Convention Arrests, N.Y. Times, Apr. 12, 2005, at A1. These trap-and-arrests occurred at multiple times and locations. MacNamara v. City of N.Y., 275 F.R.D. 125 (S.D.N.Y. 2011).
186. In one RNC-related mass arrest, the Manhattan district attorney’s office admitted it could not prosecute cases against 227 protesters. In a statement to the Court, Assistant District Attorney William Beesch admitted “The police likely created the impression among the participants that the march [which lacked an advance written permit] had official sanction.” Sabrina Tavernise, Prosecutors Won’t Pursue Case of 227 in Disputed Protest, N.Y. Times, Oct. 7, 2004, at B2.
187. KELLY continued to ratify the arrest tactics notwithstanding. 188. Front page news stories in national newspapers reported harsh criticism of the NYPD’s
indiscriminate mass arrests of protest groups made without fair notice or warnings and in the absence of individualized probable cause. 189. BLOOMBERG has approved or ratified, or in the alternate has knowingly tolerated, the indiscriminate mass false arrest of groups of protesters in the absence of individualized probable cause. 190. On his weekly WABC news show, BLOOMBERG justified indiscriminate arrests and stated, “If you go to where people are protesting and don’t want to be part of the protest, you’re always going to run the risk that maybe you’ll get tied up with it.” Michael Powell
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and Michelle Garcia, Arrests at GOP Convention Are Criticized: Many in N.Y. Released Without Facing Charges, The Wash. Post, Sept. 20, 2004, at A1. 191. Commissioner KELLY has explicitly ratified and defended the mass false arrests of the NYPD, even in response to a Civilian Complaint Review Board letter which sharply criticized police conduct in connection with two specific RNC mass arrests and which specifically recommended additional training for officers. KELLY ratified the arrests stating, “[T]he implication that the N.Y.P.D. failed during the R.N.C. turns truth on its head.” KELLY stated “The policing of the R.N.C. was one of the Police Department’s finest hours.” According to the New York Times, referring to the RNC protest arrests, KELLY stated that the police are not obligated to give warnings before arrests. See Al Baker, 2 Top Officers Are Criticized for ’04 Arrests, N.Y. Times, May 10, 2006, at B5. 192. One week prior to the October 1, 2011 mass arrest, on September 24, 2011, the NYPD implemented the indiscriminate trap-and-arrest tactic in connection with an Occupy-related march to Union Square. 193. At the intersection of 12th & University Place, there was an incident involving police throwing protesters to the ground, striking and arresting multiple individuals. The NYPD used orange netting to trap indiscriminately persons who were in the vicinity, specifically including those who were lawfully and peaceably on the sidewalk. Without warning or notice, the police surrounded those on the south sidewalk and arrested the entire group of 30 – 40 persons in the absence of probable cause. 194. On information and belief, additional incidents of prior uses of the challenged tactics in the context of mass protest arrests may exist and will be determined within discovery.
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195. Defendants KELLY and BLOOMBERG and the CITY OF NEW YORK have adopted the trap-and-arrest tactic and other or related policies, practices and customs challenged herein in order to disrupt targeted protest actions, to sweep the sidewalks and public ways of targeted protest actions, to demoralize and chill targeted protests and free speech activities.
196. In the alternative, defendants KELLY and BLOOMBERG and the CITY OF NEW YORK knew or should have know of the unconstitutional policies, practices and customs challenged herein and have failed and refused to take corrective action, thereby perpetrating their continued existence and mass violation of constitutional rights.
197. Defendants KELLY, BLOOMBERG and the CITY OF NEW YORK have known, or should have known, of these unconstitutional policies, practices or customs as a consequence of complaints (including but not limited to multiple civil lawsuits) asserting constitutional violations in the context of protest activity; from the occurrence of over 1,800 incidents of arrests in connection with the 2004 RNC alone, over 90% of which resulted in dismissals or acquittals; from the millions of dollars in compensation that the City has paid in resolution of such complaints that have been resolved by settlement; from the ordinary after-action review and reporting of police conduct after mass demonstrations; from the major national news media articles or stories that have reported on the indiscriminate mass arrest tactics of the NYPD; and from other sources of information and communication.
198. Defendant KELLY is responsible for the NYPD’s “disorder control” practices, including those challenged herein.
199. On information and belief, KELLY tacitly or explicitly participated in, approved and/or ratified the conduct of the October 1, 2011 mass arrest.
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200. In the alternate, KELLY was grossly negligent in monitoring the conduct of subordinates in the mass arrest.
201. On information and belief, KELLY was in communication with subordinates regarding the march as it progressed, including the police response.
202. KELLY possessed the authority to, but did not cease the mass arrests or cause the release of arrestees.
203. On information and belief, Defendant BLOOMBERG considers the conduct of the NYPD in response to First Amendment protected assemblies to be a fundamental characteristic of his administration, and he approves of the use of the police to engage in the mass arrests as described and challenged herein.
204. BLOOMBERG actively participates in the management of the NYPD to ensure it functions in the manner in which he intends. “I have my own army in the NYPD, which is the seventh largest army in the world,” stated BLOOMBERG on November 29, 2011.
205. With respect to the Saturday, October 1, 2011 mass arrest, on the immediately following Sunday, Mayor BLOOMBERG ratified the mass arrest of the plaintiff class stating, “The police did exactly what they were supposed to do.” Mosi Secret, Police, Too, Release Videos of Brooklyn Bridge Arrests, N.Y. Times, Oct. 3, 2011, at A22.
206. On information and belief, BLOOMBERG issued his October 2, 2011 ratification of the plaintiffs’ mass arrest only after he had satisfied himself that he had reviewed and possessed sufficient information for him to issue such an after-the-fact ratification on an informed and knowledgeable basis.
207. On December 6, 2011, Congressman Jerrold Nadler, the Ranking Member of the House Judiciary Committee’s Subcommittee on the Constitution, as well as the representative of
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Lower Manhattan, sent a letter to Attorney General Eric Holder specifically citing the Brooklyn Bridge mass arrest among three incidents that “are worthy of investigation.” Rep. Nadler requested the Department of Justice investigate whether the “unlawful targeting of individuals based in their participation in constitutionally protected activities, occurred.” 208. Nadler wrote “many of the marchers allege that they were under the impression that the march was a lawful one, that they observed officers directing them onto the bridge, and that they never heard warnings that they would be subject to arrest.” Nadler requested:
“I urge you to determine whether these actions constituted a deprivation of rights under color of law in violation of 18 U.S.C. §§241 and 242, whether the NYPD engaged in a pattern or practice of conduct that deprived individuals of rights protected by the Constitution or laws of the United States in violation of 42 U.S.C. § 14141, and what can be done to prevent similar actions that violate people’s civil and constitutional rights under color of law in these and similar situations.” Dec. 6, 2011 Letter from Rep. Nadler to Attorney General Holder (emphasis added). 209. KELLY and BLOOMBERG rejected the call for such investigation, again approving and ratifying the conduct at bar and rejecting corrective action or even outside review. 210. Mayor BLOOMBERG called the request for investigation “ridiculous.” 211. On December 7, 2011, NYPD spokesperson Paul Browne, presumably with the approval of Commissioner KELLY, ratified and defended the Brooklyn Bridge arrests as warranted. 212. As a direct and proximate result of the acts or omissions of the defendants identified in this complaint and the other unidentified persons acting jointly, each of the plaintiffs has suffered monetary and non-monetary harm, including deprivation of constitutional rights under the First and Fourth Amendments to the U.S. Constitution and the Due Process Clause, loss of liberty and related suffering and harm, and violation of state and common law rights to be free of unlawful arrest and false imprisonment.
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NOTICE OF CLAIM PURSUANT TO § 50-e, N.Y. GENERAL MUNICIPAL LAW 213. The public interest exception applies in the circumstances of this case to waive or except
the ordinary requirement of the filing of a Notice of Claim under N.Y. General Municipal Law, § 50-e. See Pustilnik v. Hynes, 2000 U.S. Dist. LEXIS 8718, at *21 (E.D.N.Y. June 27, 2000); Mills v. County of Monroe, 59 N.Y.2d 307, 311 (1983). 214. Under the circumstances of this large scale mass protest arrest, the municipality possesses actual knowledge and notice of the underlying events and likely claims for false arrest regardless of filing or non-filing of a notice of claim. 215. Nevertheless, on October 28, 2011 a Notice of Claim was filed “in the matter of the claims of Karina Garcia, Marcel Cartier, Yari Osorio, Benjamin Becker, [and] Cassandra Regan [a]s class representatives, on behalf of themselves and others similarly situated, including [a]ll persons who were arrested on or at the Brooklyn Bridge in the mass arrest conducted on October 1, 2011.” 216. At least 30 days have elapsed since the service of such notice and the adjustment or payment thereof has been neglected or refused.
CLAIMS COUNT I False Arrests On or At the Brooklyn Bridge (First Amendment; Fourth Amendment; Fourteenth Amendment to the U.S. Constitution; Due Process Clause; 42 U.S.C. §1983)
217. Paragraphs 1 through 216 are incorporated by reference as if set forth herein. 218. The defendants’ actions (including the CITY OF NEW YORK, KELLY, BLOOMBERG
and the JANE and JOHN DOE DEFENDANTS) in participating in, executing, causing to be executed, failing to intervene to cause the cessation of, approving or ratifying the arrest of the
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plaintiff class on October 1, 2011 on or at the Brooklyn Bridge violated the rights of plaintiffs pursuant to the First, Fourth and Fourteenth Amendments to, and the Due Process Clause of, the U.S. Constitution. See also 42 U.S.C. § 1983. 219. Defendants CITY OF NEW YORK, KELLY and BLOOMBERG have adopted municipal policies, practices and customs that have caused the violations complained of herein; and in the alternate have actual or constructive notice of a pattern of constitutional violations described herein and have failed to take action, thereby allowing the continuation of such a policy or custom, and causing the harms complained of herein. 220. The acts and omissions of the CITY OF NEW YORK, KELLY, BLOOMBERG, and DOE defendants constitute deliberate indifference to the constitutional rights of the plaintiff class. 221. Defendants CITY OF NEW YORK, KELLY and BLOOMBERG have tolerated and failed to discipline and/or train officers regarding unlawful conduct towards protesters, including specifically false arrest, thereby causing the violations complained of herein. 222. Defendants CITY OF NEW YORK, KELLY and BLOOMBERG and supervisory officers identified as DOES have been grossly negligent in the supervision of subordinates, thereby causing the violations complained of herein. 223. As a direct and proximate result of said acts or omissions, the plaintiff class and individual members of the plaintiff class have suffered and will continue to suffer ongoing adverse effects and injury, including the real and immediate risk future false arrest of class members who have the intention of engaging in or being in proximity to free speech and protest activities in New York City.
COUNT II
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False Arrests On or At the Brooklyn Bridge (New York State and Common Law Claims; False Arrest; Negligence and Gross
Negligence; Negligent Supervision) 224. Paragraphs 1 through 216 are incorporated by reference as if set forth herein. 225. The defendants’ actions (including the CITY OF NEW YORK, KELLY, BLOOMBERG
and the JANE and JOHN DOE DEFENDANTS) in participating in, executing, causing to be executed, failing to intervene to cause the cessation of, approving or ratifying the arrest of the plaintiff class on October 1, 2011 on or at the Brooklyn Bridge violated the rights of plaintiffs pursuant to the provisions of the New York State Constitution corresponding to the violations of the U.S. Constitution in Count I. 226. The defendants’ actions (including the CITY OF NEW YORK, KELLY, BLOOMBERG and the JANE and JOHN DOE DEFENDANTS) in participating in, executing, causing to be executed, failing to intervene to cause the cessation of, approving or ratifying the arrest of the plaintiff class on October 1, 2011 on or at the Brooklyn Bridge constitute false arrest under New York State law and common law. 227. Defendants CITY OF NEW YORK, KELLY and BLOOMBERG and officers identified as DOES have been negligent and grossly negligent, thereby causing the violations complained of herein. 228. As a direct and proximate result of said acts or omissions, the plaintiff class and individual members of the plaintiff class have suffered and will continue to suffer ongoing adverse effects and injury, including the real and immediate risk future false arrest of class members who have the intention of engaging in or being in proximity to free speech and protest activities in New York City.
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PRAYER FOR RELIEF 229. WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant the
following relief: a. Entry of a declaratory judgment that the disruption and preventive arrest tactics of the defendants constitute violations of the First and Fourth Amendments; b. Entry of a permanent injunction to enjoin and prohibit the CITY OF NEW YORK from executing the unconstitutional disruption and false arrest tactics complained of herein, including but not limited to the trap-and-arrest tactic whereby without fair notice the NYPD engages in the mass false arrest of persons engaged in lawful free speech activity and peaceable assembly; c. Entry of a permanent injunction to enjoin and prohibit the CITY OF NEW YORK from using orange netting to indiscriminately trap and arrest persons in the absence of the existence of particularized probable cause exists to seize and arrest each and every individual to be trapped and arrested by the netting; d. Entry of a declaratory judgment that N.Y. City Adm. Code § 10-110(c) parading without a permit code provision is unconstitutional, facially or as applied to the extent it is applied as a strict liability offense, and entry of a permanent injunction prohibiting enforcement as a strict liability offense (i.e., enforcement in the absence of fair notice or warnings/orders to those subject to potential arrest); e. Entry of a permanent injunction requiring defendants to seal and destroy the records derived from this arrest, including all photographs, fingerprints and other identification or descriptive information;
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f. Entry of an order that disclosure be made in writing to plaintiffs and the Court as to all entities and agencies to which such material, and other intelligence information derived from or relating to the underlying events, has been disseminated and by whom gathered; and that all records gathered and disseminated be collected and sealed, including all copies of such disseminated records that may have been subject to further dissemination by others;
g. Entry of an order declaring the arrests to be null and void, and authorizing each individual class member to deny that such arrest ever occurred in response to any inquiry, such as employment or educational or any other nature of inquiry;
h. Compensatory damages against the defendants for violations of federal rights pursuant to 42 U.S.C. § 1983 in an amount appropriate to the proof adduced at trial;
i. Compensatory damages against the defendants under New York and common law, including against the CITY OF NEW YORK under respondeat superior, in an amount appropriate to the proof adduced at trial;
j. Punitive damages against MICHAEL R. BLOOMBERG, and as against other defendants sued in their individual capacities, for causing, approving and/or ratifying the arrest of the plaintiff class and for the consequential loss of freedom of expression and constitutionally protected rights of peaceable assembly;
k. An award of plaintiffs’ reasonable attorneys’ fees and costs and expenses pursuant to 42 U.S.C. §1988 and any other applicable statute or rule of law; and
l. Such other and further relief, including all appropriate equitable relief, as to the Court may seem just and proper.
PLAINTIFFS DEMAND A TRIAL BY JURY OF ALL ISSUES SO TRIABLE
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Case 1:11-cv-06957-JSR Document 13 Filed 12/12/11 Page 45 of 45

Case 1:11-cv-06957-JSR Document 13-1 Filed 12/12/11 Page 1 of 1
Exhibit A: Appendix to Attachments to Second Amended Complaint
Exhibit B – Source: http://twitpic.com/6tlhzh Exhibit C – Source: http://twitpic.com/6tlj4v Exhibit D – Source: http://www.flickr.com/photos/votepsl/6205499987/in/set72157627684127091/ Exhibit E – Source: http://www.flickr.com/photos/votepsl/6205515581/in/set72157627684127091/ Exhibit F – Source: http://glassbeadcollective.org/wallstreetoccupation/bridsge3_h264_sd.mov Exhibit G – Source: http://www.youtube.com/watch?v=T0MZi_I_9ec
x G-1 video still at 0:11 x G-2 video still at 0:03 Exhibit H – Source: NYPD TARU “Det. Morales Disc 10 Part 1”at 3:18 – 4:54 Exhibit I – Source: http://www.flickr.com/photos/votepsl/6206063266/in/set72157627684127091 Exhibit J – Source: http://www.facebook.com/photo.php?fbid=206861799381216&set=a.206860806047982.49626. 140045042729559&type=3&theater Exhibit K – Source: http://www.facebook.com/photo.php?fbid=206861782714551&set=a.206860806047982.49626. 140045042729559&type=3&theater Exhibit L – Source: NYPD TARU “Det. Rivera Disc 2 Part 3”at 1:58 – 2:06 Exhibit M – Source: NYPD TARU “Det. Morales Disc 10 Part 1”at 4:30 – 4:54
1 

 
 Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 1 of 30

UNITED STATES DISTRICT COURT 
 SOUTHERN DISTRICT OF NEW YORK 

----- x 
 KARINA GARCIA, BENJAMIN BECKER, 
 MICHAEL CRICKMORE, MARCEL CARTIER, 
 BROOKE FEINSTEIN, YARI OSORIO, 
 YAREIDIS PEREZ, CASSANDRA REGAN, 
 TYLER SOVA, STEPHANIE JEAN UMOH, as 
 Class Representatives on behalf of 
 themselves and others similarly 
 situated. 

Plaintiffs,
-v
MICHAEL R. BLOOMBERG, THE CITY OF NEW 
 YORK, RAYMOND W. KELLY, JANE and JOHN 
 DOE 1 40, 

Defendants.
------------------------------------- x
JED S. RAKOFF, U.S.D.J.

11 civ. 6957 (JSR) OPINION AND ORDER


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.
These observations are prompted by the instant lawsuit, in which a putative class of some 700 or so "Occupy Wall Street" protesters contend they were unlawfully arrested while crossing the

Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 2 of 30
Brooklyn Bridge on October I, 2011. More narrowly, the pending motion to dismiss the suit raises the issue of whether a reasonable observer would conclude that the police who arrested the protesters had led the protesters to believe that they could lawfully march on the Brooklyn Bridge's vehicular roadway.
By way of background, this suit was originally filed on October 4, 2011 by certain of the named plaintiffs, purportedly on behalf of the class of all protesters who were arrested, alleging that the arrests violated the protesters' rights under the First, Fourth, and Fourteenth Amendments. Subsequently, on November 30, 2011, plaintiffs amended the complaint to add additional plaintiffs and claims, but the Court concluded that this First Amended Complaint contained improper material and needed to be revised. Accordingly, on December 12, 2011, the plaintiffs filed a Second Amended Complaint ("SAC"), which is the operative instrument here. On December 23, 2011, the defendants moved to dismiss the Second Amended Complaint. The parties submitted extensive written briefs, and the Court heard oral argument on January 19, 2011. Having now fully considered the matter, the Court grants defendants' motion in part and denies it in part, for the reasons stated below. specifically, the Court dismisses plaintiffs' "Monell'l claims against the City, Mayor Bloomberg, and Commissioner Kelly, but denies the motion to dismiss plaintiffs' claims against the officers who arrested them.
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 3 of 30

The Second Amended Complaint alleges that, on October I, 2011,

thousands of demonstrators marched from Zuccotti Park in downtown

Manhattan to the Brooklyn Bridge in order to show support for the

Occupy Wall Street movement. SAC ~ 65. The New York Police Department

("NYPD") , Mayor Bloomberg, and Commissioner Kelly allegedly knew that

the protesters planned to march and conferred about how to respond.

Id. ~~ 63-64. The NYPD accompanied the marchers and prepared its

personnel and equipment to ensure that the crowd remained under

control.

~~ 67-68. The SAC leges, based on "information and

belief," that Commissioner Kelly monitored the march and communicated

with subordinates while it proceeded. Id. ~~ 70-71.

The NYPD allegedly guided the marchers toward the Brooklyn

Bridge. Id. ~~ 74-79. Although in the process the police allegedly

permitted, and even directed, marchers to violate traffic regulations,

id. ~ 81, this caused no problems because the police had also blocked

vehicular traffic in order to accommodate the march,

~ 82. The

marchers, in turn, allegedly relied on police officers' commands in

order to determine how they could legally proceed. Id. ~~ 83-85. When

the marchers reached the Brooklyn Bridge, they slowed down because

only a few marchers could enter the bridge's pedestrian walkway at the

same time. Id. ~ 88. Police officers initially blocked the eastbound

vehicular roadway, preventing marchers from proceeding onto that

portion of the bridge.

~ 90. Subsequently, however, the pol

officers who had blocked the entrance to the bridge's vehicular

3

Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 4 of 30
roadway turned and, followed by a large number of marchers, walked onto that portion of the bridge. rd. ~ 104. After approximately 700 of the marchers had entered the bridge's vehicular roadway, the police restricted the marchers' ability to move forward or backward and arrested them. rd. ~ 129-130, 134.
The plaintiffs assert, in effect, that they attempted at all times to follow the NYPD's instructions and that they had every reason to believe the police were permitting them to enter the bridge's vehicular roadway. The police, by contrast, assert that they expressly warned the marchers that entering the bridge's vehicular roadway would lead to their arrest. In assessing these competing contentions, the Court, at the parties' behest, has examined two videos of the events. Broder v. Cablevision Sys. Corp., 418 F.3d 187, 196 (2d Cir. 2005).1
Plaintiffs' video, apparently filmed by a protester, shows a uniformed police officer speaking into a "bull horn" approximately fifteen feet from the camera, at the Manhattan entrance to the Brooklyn Bridge. SAC Ex. F. Many protesters chant and clap. Id. A whistle blows in the background. rd. A viewer who listens closely can
l Under applicable precedent, the Court can consider both videos in deciding the motion to dismiss plaintiffs' claims. See Blue Tree Hotels Inv. v. Starwood Hotels & Resorts, 369 F.3d 212, 217 (2d Cir. 2004) (permitting consideration of "any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits"). Plaintiffs attached their video to the complaint as an exhibit, and acknowledged at oral argument that the complaint also incorporates the defendants' videos by reference. Transcript from January 19, 2012 ("Tr.") at 3:1-3.
4 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 5 of 30

understand some of the officer's words over the protester's persistent

chants, but not enough to perceive the officer's meaning. rd. Once the

officer finishes speaking, he turns his back to the protesters and

returns to the line of officers blocking access to the vehicular

roadway. Id. After a few moments, the line of officers turns and

proceeds onto the vehicular roadway, followed, at a distance of at

least ten feet, by hundreds of protesters.

The defendants' video, filmed by the NYPD's Technical Assistance Response Unit ("TARU"), SAC ~ 113, is shot from behind the

officer speaking into the bull horn. Decl. of Arthur G. Larkin dated

December 23, 2011 ("Larkin Decl./I) Ex. A.2 In the TARU video, the

viewer can clearly hear the officer tell protesters, "Ladies and

gentlemen you are obstructing vehicular traffic. If you refuse to move

you are subject to arrest." Id. The officer later says, "I am ordering

you to leave this roadway now. If you do so voluntarily, no charges

will be placed against you."

It appears that some of the

protesters near the bull horn can hear these warnings, and one at the

front asks the officer what offense the officers intend to charge. Id.

Others standing farther away, however, appear not to hear the officer

or even notice that he has addressed them. Id. After the officer has

finished delivering his warnings and rejoined his colleagues blocking

2The TARU video also shows other interactions between police officers and demonstrators. Larkin Decl. Ex. A. For example, the video shows instances in which officers who are not located at the Brooklyn Bridge instruct demonstrators and other pedestrians to walk only on the sidewalk. Id.
5 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 6 of 30
the entry to the vehicular roadway, the demonstrators closest to the camera lock arms. rd. The officers[ followed almost simultaneously by the demonstrators [ move in the direction of the bridge's vehicular roadway. rd. Photographers run into the space between them to photograph the demonstrators. rd. Both the demonstrators and the pol officers remain calm and restrained. rd. Other than the initial warnings given by the officer with the bull horn[ the officers and demonstrators do not appear to communicate.
The SAC alleges that [ though the NYPD possesses sound equipment capable of projecting a message over several blocks, id. ~ 103, it did not deploy that technology in this situation[ and the great majority of marchers thus could not hear the directives that the officer with the bull horn gave shortly before officers ceased blocking the vehicular roadway. rd. ~~ 98-103. Other than the warnings issued from the bull horn[ the officers allegedly made no effort to stop marchers from entering the roadway. rd. ~ 109. Most of the marchers therefore believed[ according to the Second Amended Complaint [ that they had the NYPD[s permission to use the vehicular roadway to cross the bridge. rd. ~ 112. Of the ten identified plaintiffs bringing this action[ nine allegedly did not hear any warning that they could not enter the vehicular roadway[3 and some of
3As to the tenth[ Cassandra Ryan [ the SAC alleges that an ficer told Regan to "leave or get arrested[1I but did so only after she had entered the vehicular roadway and the police had blocked the exit. SAC ~ 131. Because the timing of the warning Regan received is unclear[ the Court [ awaiting further factual
6

Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 7 of 30

them believed that, when the line of officers blocking the entrance to

the vehicular roadway turned and started to walk forward on the

roadway it was a signal that the NYPD intended to permit marchers to

proceed by that route.

~~ 116-124. Allegedly, two of the named

plaintiffs, Michael Crickmore and Brooke Feinstein, walked onto the

vehicular roadway alongside police officers, who made no attempt to

warn them about the illegality of their actions. rd. ~~ 118-119.

After approximately 700 marchers entered the vehicular

roadway, the police officers who had proceeded ahead of the

demonstrators stopped.

~ 127. Although one officer spoke into a

bull horn, the SAC alleges that, given the noise, those marchers who

were more than a few feet away allegedly could not hear that officer.

Officers then blocked all forward and backward movement by the

marchers. rd. ~~ 129-130. Using orange netting to trap the marchers,

the police then arrested the marchers who had entered the vehicular

roadway. rd. ~~ 130, 136. Officers handcuffed marchers, took them into

custody, and processed and released them, giving each a summons that

indicated that the officers had seen the marcher commit one or another

offense, such as failure to obey a lawful order. rd. ~~ 136 140.

The SAC also alleges that the City has a policy, practice, or

custom of arresting large groups of protesters in the absence of

probable cause in order to disrupt mass demonstrations.

development, treats Regan similarly to the other plaintiffs for the limited purposes of this motion.
7 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 8 of 30

~~ 158-160. In 1993, Commissioner Kelly published the ~Disorder

Control Guidelines," which have guided the NYPD in its responses to both violent riots and peaceful assemblies. Id. ~ 181. Utilizing these

guidelines, the City, according to the SAC, has allegedly engaged in

mass false arrests t frequently using orange nets to trap protesters. Id. ~~ 182-183. For example, the SAC alleges that, on April 7, 2003 t the NYPD indiscriminately trapped and arrested demonstrators who protested the invasion of Iraq. Id. ~ 184. SimilarlYt the SAC leges

that the NYPD indiscriminately arrested protesters at the 2004

Republican National Convention (\\RNCtt ), but could not press charges

against many arrestees because officers had given demonstrators the

impression that the march had off ial sanction.

~~ 185 186.

According to the SAC, Mayor Bloomberg and Commissioner Kelly knew of these mass arrests and approved or ratified them. Id. ~~ 187-191. The

SAC also notes that, one week before the arrests at issue in this

case t the police surrounded and arrested thirty to forty protesters related to the Occupy Wall Street movement in Greenwich Village. Id. ~~ 192-193.

FinallYt the SAC alleges that Mayor Bloomberg and Commissioner

Kelly knew of and either approved in advance or subsequently ratified

the October 1t 2011 arrests.

~~ 198 205. Both have allegedly

ected calls for an investigation into whether those arrests

deprived demonstrators of constitutional rights.

~ 209.

Alternatively, the SAC alleges that Mayor Bloomberg and Commissioner

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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 9 of 30

Kelly failed to properly train officers regarding constitutional

prohibitions against indiscriminate arrests. Id. ~ 169.

A motion to dismiss under Rule 12(b) (6) tests not the truth of

a complaint's allegations, but only their legal

ficiency to state a

claim. Specif

ly, a court must assess whether the complaint

"contain[s] sufficient factual matter, accepted as true, to 'state a

claim to reI f that is plausible on its face.'" Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). Mere conclusory statements in a complaint and

"formulaic recitation[s] of the elements of a cause of action" are not

sufficient. Twombly, 550 U.S. at 555. Thus, a court discounts

conclusory statements, which are not entitled to the presumption of

truth, before determining whether a claim is plausible. =.::::~=, 129 S.

Ct. at 1949-50. "A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable

the misconduct leged."

at 1949. "Determining whether a complaint states a plausible claim

for relief will

. be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense."

at 1950.

In their motion to dismiss, the defendants, in addition to

arguing that the Second Amended Complaint

Is to state a claim,

raise the defense of qualified immunity. "The doctrine of qualified

immunity protects government officials 'from liability for civil

9 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 10 of 30
damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in part on other grounds by Pearson, 555 U.S. 223. When the defense of qualified immunity is raised as part of a 12(b) (6) motion, a court must decide whether the complaint has plausibly alleged that the government official claiming immunity violated a constitutional right and whether that right was "clearly established" at the time of the alleged misconduct. Id. at 232.
Against this background, the defendant police officers argue, first, that the SAC fails to adequately allege a violation of the Fourth Amendment (which the Fourteenth Amendment makes applicable to state and local governments), and, second, that, even if a substantive offense is adequately pleaded, the defendants are entitled to qualified immunity. Under the Fourth Amendment, officers can arrest a suspect only on the basis of probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). " [P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has
10 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 11 of 30
committed or is committing a crime." Id. When determining whether
probable cause exists, courts must consider those facts available to the officer at the time of arrest and base their analyses on the "totality of the circumstances." Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002}.4 "[T]he existence of probable cause is an absolute defense to a false arrest claim." Jaegly v. Couch, 439 F.3d 149, 151 52 (2d Cir. 2006).
In the context of peaceful demonstration, the First Amendment affects the determination of when an officer has probable cause to arrest under the Fourth Amendment. The Supreme Court has long held that in such a context laws and regulations must "give citizens fair warning as to what is illegal." Cox v. Louisiana, 379 U.S. 559, 574 (1965). Indeed, because of the tension between First Amendment protections and local laws aimed at preventing disruption, difficult questions frequently arise as to the applicability to protest marchers and demonstrators of laws that require parade permits or that criminalize disruption of the peace. As a result, "fair warning as to what is illegal" often comes not from the legislative bodies that
4Just as an officer's subjective intent does not determine whether a prudent person would have concluded that probable cause existed, so too the offense that an officer cites at the time of the arrest need not be the same as, or even "closely related" to, the offense for which the officer has probable cause to arrest. Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004). Accordingly, the mere fact that many plaintiffs here were initially charged with failure to obey a lawful order does not prevent defendants from justifying the arrests based on probable cause to arrest for a different crime.
11 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 12 of 30
draft the potentially relevant laws, but instead from the executive officials who enforce them. For example, in Cox, police officers told demonstrators that, if they protested across the street from a courthouse, they would not violate a prohibition on protesting "near" the courthouse. rd. at 569-70. Without deciding whether, in the absence of advice from police, the demonstrators might have violated the prohibition, the Supreme Court held that "to sustain appellant's later conviction for demonstrating where they told him he could 'would be to sanction an indefensible sort of entrapment by the State -­ convicting a citizen for exercising a privilege which the State had clearly told him was available to him.'" rd. at 571-72 (quoting Raley v Ohio, 360 U.S. 423, 426 (1959)).
Courts of appeal have likewise confirmed demonstrators' rights to "fair warning" that their conduct violates the law. For example, the Tenth Circuit has found that, where ordinances prohibited walking in a street and parading without a permit, police officers who closed streets in anticipation of a march and directed the procession effectively "sanctioned the protesters walking along the road and waived the permit requirement./I Buck v. City of Albuquerque, 549 F.3d 1269, 1283-84 (loth Cir. 2008). Similarly, where police officers used bull horns to advise a large mass of protesters to either adhere to a specific but previously unannounced route or disperse, officers could not arrest protesters who did not take that route because "there was no mechanism (at least no mechanism that was employed) for conveying a
12 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 13 of 30

command to thousands of people." Vodak v. City of Chicago, 639 F.3d

738, 745-46 (7th Cir. 2011) (Posner, J.). In each of these

circumstances, police did not give the "notice of revocation of

permission to demonstrate" that was required before they could "begin

arresting demonstrators." Id. at 746.

In the Second Circuit, the leading applicable case is Papineau

v. Parmley, 465 F.3d 46 (2d Cir. 2006). Papineau involved a case in

which a protest originated on private property bordering on an

interstate highway but spilled over onto the highway when a small

group of protesters walked onto the interstate, attempting to

distribute leaflets. Id. at 52. These actions potentially violated

state law.

at 59. Shortly after the group abandoned its attempts

to distribute leaflets on the interstate, a large number of police

officers began to disperse all of the protesters, arresting those who

failed to comply. Id. at 53. The Second Circuit, in an opinion written

by then-Judge Sonia Sotomayor, held that "even if the [officers] had a

lawful basis to interfere with the demonstration," the demonstrators

"still enjoyed First Amendment protection, and absent imminent harm,

the troopers could not simply disperse them without giving fair

warning."

at 60.

Despite some differences,s these cases all stand for the basic

5papineau differs from Vodak and Buck in two respects. In Papineau, the plaintiffs did not argue that the officers had given them apparent permission to demonstrate on the highway. 465 F.3d at 58. On the other hand, many plaintif had not entered the interstate at all. The Second Circuit expressed considerable
13

Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 14 of 30
proposition that before peaceful demonstrators can be arrested for violating a statutory limitation on the exercise of their First Amendment rights, the demonstrators must receive "fair warningll of that limitation, most commonly from the very officers policing the demonstration. Relatedly, when, as here, the defense of qualified immunity is raised as part of a motion to dismiss, the question the Court must then answer is: would it be clear to reasonable police officers, in the situation the defendant officers confronted, that they lacked probable cause to believe (i) that the plaintiff demonstrators had committed a crime and (ii) that the plaintiff demonstrators had received fair warning?
The first prong is easily satisfied because, even on the face of the Second Amended Complaint, there are two criminal statutes that plaintiffs seemingly transgressed. To begin with, the plaintiffs conducted a parade without a permit. Under N.Y. City Admin. Code § 10-110(a), "[a] procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner." A parade means "any procession or race which consists of a recognizable group of 50 or more pedestrians . . proceeding together upon any public street or
skepticism concerning whether the intrusions of a few would justify the officers' decision to disperse the entire protest, id. at 59, but also concluded in the alternative that, even if those intrusions justified dispersal, the officers had nonetheless failed to give the required "fair warning, II id. at 60.
14 


Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 15 of 30

roadway/I! 38 R.C.N.Y. § 19-02(a) / and the Second Amended Complaint

avers that more than fifty demonstrators proceeded together on a

public street, SAC ~~ 65-66. Section 10-110(c) of the Code provides

that II [e]very person participating in any procession, parade or race,

for which a permit has not been issued when required by this section,

shall, upon conviction thereof, be punished by a fine of not more than

twenty-five dollars, or by imprisonment for not exceeding ten days, or

by both such fine and imprisonment."

Additionally, the plaint fs engaged in disorderly conduct.

Under N.Y. Penal Law § 240.20(5) (the same provision at issue in

Papineau), a "person is guilty of disorderly conduct when, with intent

to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof .

[h]e obstructs vehicular or pedestrian

fic." The Second Amended Complaint avers, in effect, that the

plaintiff demonstrators walked onto the Brooklyn Bridge/s vehicular

roadway at a time when vehicles were driving there. SAC ~ 109; see

also Larkin Decl. Ex. A.

The SAC does adequately allege, however, that the individual

plaintiffs and the great majority of the plaintiff class failed to receive fair warning. See SAC ~~ 92-124. The more difficult question

is with respect to the second prong of the qualified immunity defense,

namely, whether a reasonable officer could have believed, based on the

facts known to defendants, that the plaintiffs received fair warning.

With respect to the alleged violation of the parade permit

15

Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 16 of 30
requirement, N.Y. City Admin. Code § 10-110(c), the defendants cannot reasonably contend, given plaintiffs' allegations, that they did not knowingly allow the march to proceed even in the absence of a permit. Indeed, the defendants acknowledge that, in the few warnings the officers gave, they identified marching as permissible conduct, and prohibited only marching on the vehicular roadway. The officer with the "bull horn" advised protesters "to leave this roadway now. If you do so voluntarily, no charges will be placed against you." Larkin Decl. Ex. A (emphasis added). Marching without a permit, then, simply was not a problem, and no reasonable officer would have thought that the plaintiffs received a warning to the contrary.
with respect to the alleged disorderly conduct violation, N.Y. Penal Law § 240.20(5}, the plaintiffs have alleged, and the videos submitted by each side show, that the NYPD exercised some degree of control over the marchers, defining their route and directing them, at times, to follow certain rules. SAC ~~ 74-79. In certain instances, the police even directed marchers to violate traffic regulations, id. ~ 81, which, however, caused no problems because the police had also blocked vehicular traffic in order to accommodate the march, id. ~ 82.6 The marchers, in turn, allegedly relied on the police officers' commands in order to determine how they could legally proceed. Id.
6The defendants point out that the TARU videos show that some of the officers repeatedly asked the demonstrators to proceed on the sidewalk when possible. Larkin Decl. Ex. A. But this must be assessed in the context of the police at other times directing the marchers to violate traffic regulations.
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 17 of 30

~~ 83-85. 


Under these circumstances, a reasonable officer would have

understood that

was incumbent on the police to clearly warn the

demonstrators that they must not proceed onto the Brooklyn Bridge's

vehicular roadway.7 While r initially, the police officers congregated at the entrance to the bridge's vehicular roadway, thus effectively

blocking the demonstrators from proceeding further, SAC Ex. Fr the

officers then turned and started walking away from the demonstrators

and onto the roadway -- an implicit invitation to follow. Whi the

demonstrators might have inferred otherwise if they had heard the

bull-horn message r no reasonable officer could imagine, in these circumstances, that this warning was heard by more than a small

fraction of the gathered multitude. Here, as in Vodak, a single bull

horn was "no mechanism . . for conveying a command" to the hundreds,

if not thousands, of demonstrators present. 639 F.3d at 745 46.

Indeed, the plaintiffs' video shows what should have been obvious to

any reasonable officer, namely, that the surrounding clamor interfered

with the ability of demonstrators as few as fifteen feet away from the

bull horn to understand the officer's instructions. SAC Ex. F.

7Any warning pol officers gave after demonstrators had already proceeded fway across the bridge could not have provided "fair warning." After demonstrators entered the bridge, police allegedly prevented them from retreating, sealing their fate. Id. ~~ 130-131. Implicit in the notion of "fair warning" is an opportunity for plaintiffs to conform their conduct to requirements. See City of Chicago v. Morales, 527 U.S. 41 r 58 (1999) .
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 18 of 30

Even though most demonstrators could not hear the instruction

not to enter the roadway, one might argue that common sense would warn

them that they could not walk onto the part of the bridge reserved

for, and in fact used by, vehicles. The circumstances here, however,

rebut that argument. As described above, police officers fined what

rules demonstrators had to follow under the circumstances. Having not

heard any warning, many demonstrators watched as police officers

abandoned their previous position and proceeded ahead of demonstrators

onto the bridge's vehicular roadway.

Eventually, some

demonstrators even walked beside the officers who were on the

vehicular roadway,

~ 119, and those officers allegedly did not

offer any warning that the demonstrators faced imminent arrest as a

result of their present conduct. Id. The pictorial and video evidence

submitted by the parties shows that these allegations are plausible.

Id. Exs. I, J, Ki see also Larkin Decl. Ex. A. Assuming the truth of

plaintiffs' allegations, the officers' "direction of the procession

sanctioned the protesters walking along the" vehicular roadway,

depriving the protesters of any warning that the officers regarded

their conduct as illegal.

, 549 F.3d at 1284.

Finally, the defendants argue that, even if many of the 700

demonstrators whom the officers arrested did not receive any warning,

nevertheless, since at least a few of the demonstrators undoubtedly

did rece

a warning, the circumstances permitted the officers to

treat the demonstrators as a group. For this argument, defendants rely

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on Carr v. District of Columbia, which held that " [p]olice witnesses must only be able to form a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law." 587 F.3d 401, 408 (D.C. Cir. 2009). In that case, however, "it appeared to officers as if the entire crowd was rioting or encouraging riotous acts." Id. at 410 n.6. Thus, the D.C. Circuit found that no First Amendment protection attached because resort to and encouragement of violence forfeited any such protection. Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 116 (1972)). Here, the defendants do not suggest, and the videos do not show, that the demonstrators engaged in any kind of violence or otherwise endangered their own or others' safety. To the contrary, both the demonstrators and the officers appeared calm and restrained. While rioters hardly need fair warning that their violent behavior violates the law, peaceful demonstrators who are otherwise complying with police direction require fair warning before they can be arrested for alleged noncompliance.
Indeed, the Second Circuit, in Papineau, expressly rejected the argument that "the fact that some demonstrators had allegedly violated the law" permitted officers to disperse a larger, lawful crowd. 465 F.3d at 57. Instead, the Second Circuit noted that "the police may not interfere with demonstrations unless there is a 'clear and present danger' of riot, imminent violence, interference with traffic or other
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immediate threat to public safety." Id. 8 Moreover, the Second Circuit
found that, in the absence of "imminent harm," even officers with a
"lawful basis" for ordering dispersal must still give demonstrators
"fair warning." Id. at 60.
The same logic applies here. Because the defendants have not
argued that plaintiffs posed a threat of imminent harm, they have
shown neither that circumstances would have alerted demonstrators to
the illegality of their conduct nor that mass arrest served some
pressing law enforcement need. A finding that the ordinary need to
facilitate vehicular traffic permitted officers to impute "fair
warning" to all protesters would eviscerate the requirement of such
warning. Indeed, such a finding would allow the arrest of those who
participated in a demonstration that, unbeknownst to them, lacked a
parade permit, a claim courts have consistently rejected. See Buck,
549 F.3d at 1283-84; Am.-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 613 (6th Cir. 2005) (II[W]e hold that the
Ordinance, on its face, violates the First Amendment by holding
8While the Second Circuit lists "interference with traffic" among the "threat[s] to public safety" that justify immediate intervention, the videos submitted show that the interference that occurred in this case did not constitute a "clear and present danger" to anyone's safety. As demonstrators proceeded onto the bridge, the officers accompanying them formed a barrier between them and the vehicular traffic, which slowed. SAC Exs. I, J, Ki see also Larkin Decl. Ex. A. Thus, while the demonstrators may have delayed traffic from proceeding, the available record does not show that they endangered themselves or others. In any event, the available record indicates that many of the 700 arrestees came nowhere near cars. Some even arrived on the bridge only after police had stopped traffic.
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participants in a march along public rights of way strictly liable if the march proceeds without a permit. II) .
For the reasons described above, the allegations of the Second Amended Complaint, if true, establish that the officers did not give fair warning to the overwhelming majority of the 700 demonstrators who were arrested in this case. Nor, given the allegations of the Second Amended Complaint, are any of the defendant police officers entitled to qualified immunity at this stage. A reasonable officer in the noisy environment defendants occupied would have known that a single bull horn could not reasonably communicate a message to 700 demonstrators. Furthermore, a reasonable officer would have known that those who did not hear any warning might infer permission to enter the vehicular roadway from the fact that officers, without offering further warnings, proceeded ahead of and alongside plaintiffs onto that roadway. Each of the circuit court cases described above found that demonstrators' right to "fair warning" was "clearly established." Vodak, 639 F.3d at 746-47; Buck, 549 F.3d at 1286-87i Papineau, 465 F.3d at 61. The circumstances of this case barely differ from those in
, and Papineau! and no difference among the cases would have suggested to a reasonable officer either that she did not need to give fair warning in these circumstances or that the defendants had adequately given such warning to more than a small fraction of demonstrators. Thus! the Court denies the defendants' motion to dismiss plaintiffs' claims under the First, Fourth! and Fourteenth
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 22 of 30
Amendments. 9 Similar analysis leads the Court to deny defendants' motion to
dismiss plaintiffs' state law claims. The defendants identify two potential bases for dismissal of these claims. First, they invoke state law qualified immunity as a defense. "New York law. grant[s] government officials qualified immunity on state law claims except where the officials' actions are undertaken in bad faith or without a reasonable bas ." Papineau, 465 F.3d at 63. Here, the same allegations that plausibly suggest that a reasonable officer would have clearly known that the arrests violated plaintiffs' rights also suggest that defendants acted "without a reasonable basis." See id. ("[D]efendants' [state law immunity] defense would necessarily depend on the same 'reasonableness' at issue with respect to Plaintiffs' federal claims.") .
Second, defendants argue that plaintiffs failed to comply with

9This conclusion, incidentally, does not depend in any way

on a finding that the police actually intended to lead

demonstrators onto the bridge. Indeed, the videos themselves

seemingly negate plaintiffs' suggestion that the police

orchestrated a "charade" designed to create a pretense for

arrest.

SAC ~~ 2, 7. Rather, they are more consistent with

the theory that the police believed they could better control the

crowd at a later point. For present purposes, however, what

motivated the officers to retreat from their position at the

entrance to the vehicular roadway does not matter. The officers

putatively violated the First and Fourth Amendments when, having

maintained their control over a peaceful demonstration, they

imposed the serious sanction of arrest on many who, while

attempting to exercise their First Amendment rights, never

received fair notice that the officers had prohibited their

conduct.

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N.Y. Gen. Mun. Law § SO-e, which requires those who seek to sue the

City or its officers to notify the City of its claim. Nonetheless:

actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State's interest in receiving timely notice before commencement of an action.

Mills v. Cnty. of Monroe, 59 N.Y.2d 307, 311 (1983). Because

plaintiffs assert an important and directly affected right on behalf

of a class, § 50-e does not apply, and the Court denies defendants'

motion to dismiss plaintiffs' state law claims.

Turning finally to plaintiffs' claims against Mayor Bloomberg,

Commissioner Kelly, and the City for supervisorial and municipal

liability, plaintiffs have failed to lege "factual content that

allows the court to draw the reasonable inference" that the defendants

are liable on such claims. Iqbal, 129 S. Ct. At 1949. Although,

plaintiffs argue that they have adequately alleged claims against

Bloomberg, Kelly, and the City on three separate theories, none is

persuasive.

First, they argue that the existence of "Disorder Control

Guidelines," the arrests of protesters in 2003 and 2004, and the

arrests a week before the incident in this case all indicate that the

ty has a policy of conducting mass false arrests in order to

discourage protesting. SAC ~~ 180-193. As they note, "[1]oca1

governing bodies .

can be sued directly under § 1983 for monetary,

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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 24 of 30
declaratory, or injunctive relief where . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978) (footnote omitted). "Monell's policy or custom requirement is satisfied where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions." Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
Here, however, plaintiffs have not plausibly alleged that officers' conduct in this case constituted part of a "pattern of misconduct," about which Bloomberg, Kelly, and the City did nothing. The breadth with which plaintiffs define the alleged policy underscores its implausibility. Plaintiffs argue that the defendants have acquiesced in or tacitly authorized "indiscriminate mass false arrest of groups of protesters in the absence of individualized probable cause." SAC ~ 189. Here, however, out of thousands of protesters, the police officers arrested only the 700 who proceeded onto the Brooklyn Bridge's vehicular roadway. While, as described above, the officers may have violated protesters rights by depriving them of "fair warning," this does not mean that they acted indiscriminately. As noted above, the videos themselves rebut plaintiffs' allegations that officers engaged in a "calculated effort
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 25 of 30
to sweep the streets of protesters and disrupt a growing protest movement." rd. ~ 2. Plaintiffs have not explained why the implementation or execution of a policy of "indiscriminate mass false arrest of protesters" would have produced the relatively narrow set of arrests in this case.
The plaintiffs cannot bridge the gap between the broad, conspiratorial policy they attribute to the City and the violations that they have plausibly alleged in this case. Their meager attempts to do so fail. For example, plaintiffs suggest that the "Disorder Control Guidelines" allegedly issued by Commissioner Kelly "initiated" the use of orange netting to contain protesters and rioters. rd. ~~ 180-183. Use of orange netting to contain protesters, however, does not by itself violate the Constitution, and it has nothing to do with whether protesters have received fair warning of what the law requires. Further, plaintiffs allege that, in 2004, officers unconstitutionally arrested protesters for participating in an unpermitted march that the police had apparently sanctioned. Id. ~~ 185-186. Here, however, notwithstanding defendants' argument that violation of the permit regulations provided a basis for arrest, officers did not arrest marchers under permit regulations, as the distinction between marchers who entered the bridge's vehicular roadway and those who did not makes clear. As for plaintiffs' final two allegations concerning prior misconduct, plaintiffs allege in conclusory fashion that " [w]ithout warning or notice," police officers
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 26 of 30
surrounded and arrested large groups of protesters. rd. ~~ 184, 193. Plainly, without additional factual content, these allegations cannot provide a plausible basis to conclude that the City either had or tolerated a policy of failing to provide fair warning, much less that the officers implemented such a policy in this case.
Thus, even if plaintiffs have plausibly alleged that the City "acquiesced in or tacitly authorized" a pattern of mass false arrests designed to discourage protesting -- and the Court does not find that they have adequately so alleged -- the plaintiffs have failed to connect that pattern with the arrests in this case. Simply put, while the police failed to give plaintiffs fair warning before they arrested them, plaintiffs have neither plausibly alleged that the officers intended to discourage protesting nor explained why, had they intended to do so, they would have arrested only the protestors who entered the bridge's vehicular roadway. Even if the Court charitably interpreted the SAC to allege that the City tolerated a "pattern" of failure to provide fair warning, the one factual example plaintiffs have provided, which involved circumstances that differed from those in this case, cannot provide the basis for a Monell claim. See Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006). Accordingly, plaintiffs have not plausibly alleged that the violations in this case resulted from a policy that Mayor Bloomberg, Commissioner Kelly, or the City implemented, executed, or tolerated.
Second, plaintiffs argue that Mayor Bloomberg and Commissioner
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 27 of 30

Kelly either ratified or directly participated in the alleged

constitutional violations. Under Iqbal, plaintiffs may not base § 1983

claims on a theory of respondeat superior, but must instead show that

a supervisory" ficial's own individual actions ff subject him to

liability. Iqbal, 129 S. Ct. at 1948. Policymakers face liability only

where "a deliberate choice to follow a course of action is made from

among various alternatives by the off ial or officials responsible

for establishing final policy." Pembaur v. City of Cincinnati, 475

U.S. 469, 483 (1986).

Plaintiffs have not met this demanding standard. With respect

to Commissioner Kelly, plaintiffs allege, on "information and belief,"

that he "part ipated in, approved and/or

fiedff the officers'

conduct. SAC ~ 199. These very different courses of action, apparently

pled in the alternative, only underscore the observation that

plaintiffs have not alleged any facts concerning Commissioner Kelly's

conduct. Similarly, plaintiffs' allegations that Mayor Bloomberg and

Commissioner Kelly conferred about how police would respond to "protest marches" in general, id. ~ 63, cannot remotely indicate that

ther one made "a deliberate choice to follow a course of action"

that resulted in the arrest of these particular plaintiffs at this

particular march. Finally, plaintiffs' allegations that Mayor

Bloomberg and Commissioner Kelly ratified the arrests after they

occurred cannot constitute participation in or election to follow an

unconstitutional course of conduct. Only where supervisors and

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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 28 of 30
policymakers can "rectify the situation" does ratification create a basis for liability. Cf. Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 128 (2d Cir. 2004). Accordingly, plaintiffs have not stated a claim against Mayor Bloomberg or Commissioner Kelly based on their participation in or ratification of the alleged violations.
Finally, the plaintiffs argue that Mayor Bloomberg and Commissioner Kelly face liability based on their failure to train the arresting officers. "[A] municipality's failure to train its employees in a relevant respect must amount to 'deliberate indifference to the rights of persons with whom the [untrained employees] come into contact. "' Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting Canton v. Harris, 489 U.S. 378, 388 (1989)). To satisfy the deliberate indifference standard, a plaintiff must show that an officer's actions were "clearly unreasonable in light of the known circumstances." Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49 (1999). "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Connick, 131 S. Ct. at 1360 (quoting Bd. of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).
Plaintiffs' claim of failure to train must fail for substantially the same reasons that their claim based on an alleged municipal policy failed. While plaintiffs allege that the named defendants did not properly train officers "to give fair notice prior
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Case 1:11-cv-06957-JSR Document 25 Filed 06/07/12 Page 29 of 30
to the initiation of mass protest arrests," SAC' 169, they describe only one other circumstance in which officers allegedly arrested protesters in the absence of fair warning, id. , 186. Given the differences described above between those circumstances and the events alleged here, plaintiffs simply have not plausibly alleged a "pattern of similar constitutional violations" that rendered Mayor Bloomberg's and commissioner Kelly's actions "clearly unreasonable in light of known circumstances./I Accordingly, the plaintiffs have not stated a claim against either defendant for failure to train. Since the plaintiffs have failed to state a plausible claim under any of their three proposed theories, the Court dismisses their Monell claims against the City, Mayor Bloomberg, and Commissioner Kelly.
In sum, for the reasons stated above, the Court denies defendants' motion to dismiss plaintiffs' claims against the officers who arrested them, but grants the motion to dismiss plaintiffs' Monell claims against the City, Mayor Bloomberg, and Commissioner Kelly. The Clerk of the Court is hereby ordered to close items number 7 and 14 on the docket of this case. The Court directs the parties to jointly call Chambers no later than June 15, 2012 to schedule further proceedings in this case.
SO ORDERED.
JED S. RAKOFF, U.S.D.J.
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Dated: New York t New York

1-t June

2012

30

 
 Case: 12-2634 Document: 85-1 Page: 1 08/21/2014 1300591 28
12‐2634‐cv Garcia v. Jane & John Does
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2012
(Argued: April 22, 2013 Decided: August 21, 2014)
Docket No. 12‐2634‐cv
KARINA GARCIA, AS CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, YARI OSORIO, AS CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, BENJAMIN BECKER, AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED,
CASSANDRA REGAN, AS CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, YAREIDIS PEREZ, AS CLASS REPRESENTATIVE ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, TYLER SOVA, AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, STEPHANIE JEAN UMOH, AS
CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, MICHAEL CRICKMORE, AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, BROOKE FEINSTEIN, AS CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED,
Plaintiffs‐Appellees,
MARCEL CARTIER, AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED,
Plaintiff,
— v. —

Case: 12-2634 Document: 85-1 Page: 2 08/21/2014 1300591 28
JANE AND JOHN DOES 1‐40, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Defendants‐Appellants,
RAYMOND W. KELLY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, CITY OF NEW YORK, MICHAEL R. BLOOMBERG, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY,
Defendants.*
B e f o r e: CALABRESI, LIVINGSTON, and LYNCH, Circuit Judges. __________________
Defendants‐appellants, New York Police Department officers, appeal from an order of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) denying their motion pursuant to Rule 12(b)(6) to dismiss plaintiffs‐appellees’ complaint against them on qualified immunity grounds. Defendants argue that the district court erred in concluding that plaintiffs’ complaint, and the other materials that could properly be considered on a motion to dismiss for failure to state a claim, did not establish that defendants had
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.
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arguable probable cause to arrest plaintiffs for disorderly conduct. We disagree, and affirm the judgment of the district court.
AFFIRMED. Judge Livingston dissents in a separate opinion.
MARA VERHEYDEN‐HILLIARD (Andrea Hope Costello and Carl Messineo, on the brief), Partnership for Civil Justice Fund, Washington, D.C., for Plaintiffs‐Appellees. RONALD E. STERNBERG, Assistant Corporation Counsel (Leonard Koerner and Arthur G. Larkin, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Defendants‐Appellants.
GERARD E. LYNCH, Circuit Judge: Defendants‐appellants ask us to definitively conclude, on the limited
record before us on their motion to dismiss for failure to state a claim, that they are entitled to qualified immunity for their arrest of a group of demonstrators. Because we cannot resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited
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by New York law, we AFFIRM the judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge).
BACKGROUND Plaintiffs commenced this action for false arrest under 42 U.S.C. § 1983 following their arrests for participating in a demonstration in support of the Occupy Wall Street movement. Although plaintiffs have not been able to conduct discovery, they attached five video excerpts and nine still photographs as exhibits to the Second Amended Complaint (the “Complaint”), which we consider when deciding this appeal, see DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). We also consider videos submitted by defendants, which plaintiffs concede are incorporated into the Complaint by reference. For purposes of this appeal, we take as true the facts set forth in the Complaint, see Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d Cir. 2007), to the extent that they are not contradicted by the video evidence. I. The Protest and Plaintiffs’ Arrests On October 1, 2011, thousands of demonstrators marched through Lower Manhattan to show support for the Occupy Wall Street movement. The march began at Zuccotti Park in Manhattan and was to end in a rally at Brooklyn Bridge Park in Brooklyn. Although no permit for the march had been sought, the New York City Police Department (“NYPD”) was aware of the planned march in advance, and NYPD officers escorted marchers from Zuccotti Park to the
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Manhattan entrance to the Brooklyn Bridge (the “Bridge”), at times flanking the marchers with officers on motorscooters or motorcycles. Those officers issued orders and directives to individual marchers, at times directing them “to proceed in ways ordinarily prohibited under traffic regulations absent police directive or permission.” J. App’x at 165. The officers blocked vehicular traffic at some intersections and on occasion directed marchers to cross streets against traffic signals.
When the march arrived at the Manhattan entrance to the Bridge, the first marchers began funneling onto the Bridge’s pedestrian walkway. Police, including command officials, and other city officials stood in the roadway entrance to the Bridge immediately south of the pedestrian walkway and, at least at first, watched as the protesters poured across Centre Street towards the Bridge. A bottleneck soon developed, creating a large crowd at the entrance to the Bridge’s pedestrian walkway. While video footage suggests that the crowd waiting to enter the pedestrian walkway blocked traffic on Centre Street, defendants do not contend that they had probable cause to arrest plaintiffs for their obstruction of traffic at that point, as opposed to their obstruction of traffic on the Bridge roadway. Indeed, plaintiffs alleged in their complaint that the police themselves stopped vehicular traffic on Centre Street near the entrance to the bridge1 before the majority of the marchers arrived at the entrance to the Bridge.
1 There are three eastbound entry ramps to the Bridge on the Manhattan side. The ramp referred to here is the first ramp moving from west to east.
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While a steady stream of protesters continued onto the walkway, a group of protesters stopped and stood facing the police at the vehicular entrance to the Bridge at a distance of approximately twenty feet. Some of these protesters began chanting “Take the bridge!” and “Whose streets? Our streets!” An officer stepped forward with a bullhorn and made an announcement. In the video taken by NYPD’s Technical Assistance Response Unit, the officer can clearly be heard repeating several times into the bullhorn: “I am asking you to step back on the sidewalk, you are obstructing traffic.”
Plaintiffs, ten protesters who purport to represent the class of all protesters arrested that day, allege that the officers knew that these statement were “generally inaudible.” J. App’x at 166. In a video provided by plaintiffs, recorded from roughly the second row of protesters, it is clear that protesters even at the front of the crowd twenty feet away could not make out the words of this announcement over the noise of the demonstration. Two minutes later the same officer announced into the bullhorn: “You are obstructing vehicular traffic. If you refuse to move, you are subject to arrest,” and “If you refuse to leave, you will be placed under arrest and charged with disorderly conduct.” While it is clear that at least one marcher at the front of the crowd heard this announcement, plaintiffs allege that the officers knew that they had not given any warnings or orders to disperse that would have been audible to the vast majority of those assembled.
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A minute and a half after the second announcement, the officers and city officials in the lead group turned around and began walking unhurriedly onto the Bridge roadway with their backs to the protesters. The protesters began cheering and followed the officers onto the roadway in an orderly fashion about twenty feet behind the last officer. The protesters on the roadway then encouraged those on the pedestrian walkway to “come over,” and the videos show several protesters jumping down from the pedestrian walkway onto the roadway. When one such protester was told by someone still on the pedestrian walkway “Don’t go into the street, you will get arrested,” he can be heard responding, “Whatever, they’re allowing us to.” Officers initially blocked protesters from impeding the second and third entry ramps to the Bridge and the southernmost lane of traffic, but eventually both of these ramps and all lanes of traffic across the Bridge were blocked by the protesters.
Midway across the bridge, the officers in front of the line of marchers turned and stopped all forward movement of the demonstration. An officer announced through a bullhorn that those on the roadway would be arrested for disorderly conduct. Plaintiffs allege that this announcement was as inaudible as the previous announcements. Officers blocked movement in both directions along the Bridge and “prevented dispersal through the use of orange netting and police vehicles.” J. App’x at 173. The officers then methodically arrested over seven hundred people who were on the Bridge roadway. These individuals were “handcuffed, taken into custody, processed and released throughout the night into the early morning hours.” Id. at 174.
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Plaintiffs allege that the officers “led the march across the bridge,” and that the marchers saw the officers’ movement onto the roadway as an “actual and apparent grant of permission to follow.” J. App’x at 168. They allege that the combination of those officers in front “leading” the protesters onto the roadway and the officers on the side escorting them along the roadway led them to believe that the NYPD was escorting and permitting the march to proceed onto the roadway, as it had escorted and permitted the march through Lower Manhattan earlier in the day. Officers at the roadway entrance did not instruct the ongoing flow of marchers not to proceed onto the roadway. Other officers walked calmly alongside the protesters in the roadway and did not direct any protesters to leave the roadway. The named plaintiffs allege that they did not hear any warnings or orders not to proceed on the roadway, and understood their passage onto the Bridge roadway to have been permitted by defendants.2 Several allege that they did not even realize they were on the roadway until they were already on it. Plaintiffs allege that “[p]rior to terminating the march when it was mid‐way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed,” and that the officers therefore did not have probable cause to arrest them for disorderly conduct. Id. at 173.
2 While one plaintiff, Cassandra Regan, acknowledges that she was told to leave the roadway, she alleges that the warning was given only after defendants had blocked off the roadway and no exit was possible.
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II. District Court Proceedings
Plaintiffs sued the unidentified NYPD officers who participated in their arrests3 as well as Mayor Michael Bloomberg, Police Commissioner Ray Kelly,
and the City of New York, alleging that the arrests violated plaintiffs’ rights
under the First, Fourth, and Fourteenth Amendments. Defendants moved to
dismiss plaintiffs’ Second Amended Complaint on qualified immunity grounds
and pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978),
arguing, in part, that the Complaint and the videos demonstrate that they had probable cause to arrest plaintiffs for disorderly conduct.4
The district court denied the motion to dismiss the claims against the
individual officers and granted the motion to dismiss the claims against the City,
3 Eleven of these 40 John and Jane Does have since been identified and their names have replaced “John/Jane Does ## 1‐11” in the caption of the district court proceedings. When the Complaint was filed and the relevant district court opinion was issued, however, none of the NYPD officers who participated in the arrests had been identified.
4 While defendants initially arrested many of the plaintiffs for failure to obey a lawful order, the offense that an officer cites at the time of the arrest need not be the same as, or even “closely related” to, the offense that the officer later cites as probable cause for the arrest. See Devenpeck v. Alford, 543 U.S. 146, 154‐ 55. Defendants now argue that plaintiffs engaged in disorderly conduct, defined as “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . obstruct[ing] vehicular or pedestrian traffic.” N.Y. Penal Law § 240.20. While defendants argued before the district court that they also had probable cause to arrest plaintiffs for marching without a permit in violation of New York City Administrative Code § 10‐110(a), defendants have abandoned that argument on appeal.
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Bloomberg, and Kelly.5 Garcia v. Bloomberg, 865 F. Supp. 2d 478 (S.D.N.Y. 2012). The district court held that the allegations of the Complaint, if true, established that a reasonable officer would have known that he did not have probable cause to arrest plaintiffs. The district court further held that while plaintiffs had clearly violated the law by entering the Bridge roadway and blocking vehicular traffic, based on the facts alleged, no reasonable police officer could believe that plaintiffs had received fair warning that their behavior was illegal, as required by law. The district court concluded that while New York’s disorderly conduct statute would normally have given protesters fair warning not to march on the roadway, it did not do so here, where defendants, who had been directing the march along its entire course, seemed implicitly to sanction the protesters’ movement onto the roadway.6
Defendants now appeal the denial of their motion to dismiss on qualified immunity grounds, arguing that under the circumstances, “an objectively
5 Plaintiffs argued that the City of New York maintains a policy, practice, and/or custom of trapping and arresting peaceful protesters without probable cause. The district court held that plaintiffs had not plausibly alleged any such policy, practice, or custom. That interlocutory ruling is not before us, and we have no occasion to address its merits.
6 The district court stressed that its conclusion did “not depend in any way on a finding that the police actually intended to lead demonstrators onto the bridge.” Garcia, 865 F. Supp. 2d at 491 n.9. Indeed, the court considered it far more likely that defendants had decided to move the protesters to a point where they believed they could better control them, not that defendants had orchestrated a “charade” to create a pretense for arrest. Id.
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reasonable police officer would not have understood that the presence of police officers on the Bridge constituted implicit permission to the demonstrators to be on the Bridge roadway in contravention of the law.”7 Appellants’ Br. at 3.
DISCUSSION I. Appellate Jurisdiction
We have jurisdiction over an appeal from a district court’s denial of qualified immunity at the motion to dismiss stage because “qualified immunity – which shields Government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights – is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (citation and internal quotation marks omitted). “Provided it turns on an issue of law,” a denial of qualified immunity is a final reviewable order because it “conclusively determine[s] that the defendant must bear the burdens of discovery; is conceptually distinct from the merits of the plaintiff’s claim; and would prove effectively unreviewable on appeal from a final judgment.” Id. ((internal quotation marks omitted); see also Locurto v. Safir, 264 F.3d 154, 164 (2d Cir. 2001) (noting that “denials of immunity are conclusive with regard to a defendant’s right to avoid pre‐trial discovery, so long as the validity of the denial
7 Defendants also moved to dismiss plaintiffs’ claims for failure to state a claim and for failure to properly notify the City of the claims. Defendants do not appeal the denial of these motions.
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of the qualified immunity defense can be decided as a matter of law in light of the record on appeal” (emphasis in original)). II. Standard of Review
We review a district court’s denial of qualified immunity on a motion to dismiss de novo, “accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs’ favor.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001). III. Qualified Immunity
“Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted). Defendants bear the burden of establishing qualified immunity. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013). “Even if this or other circuit courts have not explicitly held a law or course of conduct to be unconstitutional, the unconstitutionality of that law or course of conduct will nonetheless be treated as clearly established if decisions by this or other courts clearly foreshadow a particular ruling on the issue, even if those decisions come from courts in other circuits.” Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (citation and internal quotation marks omitted).
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An officer is entitled to qualified immunity against a suit for false arrest if he can establish that he had “arguable probable cause” to arrest the plaintiff. Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (internal quotation marks omitted). “‘Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’” Id., quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “In deciding whether an officer’s conduct was objectively reasonable . . . , we look to the information possessed by the officer at the time of the arrest, but we do not consider the subjective intent, motives, or beliefs of the officer.” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (internal quotation marks omitted).
Under both federal and New York law, an officer “has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d. Cir. 2010) (internal quotation marks omitted); see also Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (holding that a police officer has probable cause to arrest when the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense”). Where an arrest is made without warrant, “the
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defendant in a false arrest case bears the burden of proving probable cause as an affirmative defense.” Dickerson, 604 F.3d at 751. IV. Probable Cause and the First Amendment
The First Amendment’s prohibition on laws “abridging the freedom of speech . . . or the right of the people peaceably to assemble,” U.S. Const. amend. I, “embodies and encourages our national commitment to ‘robust political debate,’” Papineau v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006), quoting Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988). It protects “political demonstrations and protests – activities at the heart of what the Bill of Rights was designed to safeguard.” Id. Courts have therefore been especially solicitous where regulation of protests threatens to discourage the exercise of First Amendment rights.
Cox v. State of Louisiana established that when officials grant permission to demonstrate in a certain way, then seek to revoke that permission and arrest demonstrators, they must first give “fair warning.” 379 U.S. 559, 574 (1965). In Cox, officials explicitly permitted civil rights protesters to demonstrate across the street from a courthouse, even though a statute prohibited demonstrating “near” a courthouse. Id. at 568‐69. A few hours later, the officials changed their minds and ordered the demonstrators to disperse, arresting those who refused. Id. at 572. The Supreme Court held that because the statute prohibiting demonstration “near” the courthouse was vague, the demonstrators had justifiably relied on the officials’ “administrative interpretation” of “near,” id. at 568‐69, and that the
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protesters’ conviction for picketing where directed by officials therefore violated due process.
We reiterated the need for fair warning in Papineau. 465 F.3d at 60‐61. There, the plaintiffs were protesting on private property bordering a public highway. A handful of protesters violated state law by briefly entering the highway to distribute pamphlets. Later, once the protesters were all back on private property, police officers marched onto the property and began arresting protesters without giving any warning. Id. at 53. We affirmed the district court’s denial of qualified immunity to the officers, holding that even if the officers had a lawful basis to interfere with the demonstration, the plaintiffs “still enjoyed First Amendment protection, and absent imminent harm, the troopers could not simply disperse them without giving fair warning.” Id. at 60, citing City of Chicago v. Morales, 527 U.S. 41, 58 (1999) (“[T]he purpose of the fair notice requirement [in disorderly conduct statutes] is to enable the ordinary citizen to conform his or her conduct to the law.” (alteration in original)). Papineau also suggested in dictum that if the police had granted permission to demonstrate in a certain fashion, as in Cox, “even an order to disperse would not divest demonstrators of their right to protest.” Id. at 60 n.6.
The Seventh and Tenth Circuits have applied Cox’s requirement of fair warning before revoking permission to protest to situations similar to the protest here. In Vodak v. City of Chicago, protesters were arrested after walking down a street that officers arguably led them to think was a permitted route along their
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march. 639 F.3d 738, 743‐44 (7th Cir. 2011). While officers had ordered protesters not to march westward from their planned route, on one street they stood aside and permitted protesters to march westward, then moved in behind the protesters and arrested them. Some marchers alleged that they believed that the police were directing them to proceed west on the road. Id. at 744. The court denied qualified immunity to the officers, finding that while the officers did not give explicit permission to move west down the street, “their presence, not blocking the avenue, might have made the marchers think it a permitted route west for them.” Id. In Buck v. City of Albuquerque, a protester was arrested for marching without a permit and walking in the street. 549 F.3d 1269, 1283 (10th Cir. 2008). The Tenth Circuit denied qualified immunity to the arresting officers, holding that taking facts in the light most favorable to the plaintiff, the police officers’ “street closures and direction of the procession sanctioned the protesters walking along the road and waived the permit requirement.” Id. at 1284. V. Probable Cause to Arrest Plaintiffs
Defendants acknowledge that “[i]n some circumstances, advice from officials as to the propriety of proposed conduct may indeed justify an individual in believing that his planned conduct is not prohibited,” Piscottano v. Murphy, 511 F.3d 247, 286 (2d Cir. 2007), and that had the officers explicitly invited protesters onto the bridge, they could not have arrested the protesters without fair warning of the revocation of such permission. Indeed, defendants concede that the involvement of officers in directing the protest prior to its movement
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onto the roadway “may have sanctioned the demonstration . . . so long as the parameters of the implied permission were complied with and the demonstrators remained on the sidewalk.” Appellants’ Br. at 28‐29.
However, defendants argue that the protesters violated this initial implied permission when they left the sidewalk and entered the Bridge roadway. They argue that after this point in the march, plaintiffs’ actions were in direct contravention of the officers’ repeated admonitions to protesters to remain on the sidewalk, and that plaintiffs have not alleged facts sufficient to establish that a reasonable police officer would have understood that plaintiffs had been invited onto the roadway. Defendants argue that a reasonable officer would have understood that the lead group of officers were not “leading” the protesters onto the roadway but were instead strategically retreating, “reacting to a surging crowd that was following leaders who were intent on ‘taking the bridge’ despite both the law and direct and explicit warnings that their continued presence on the roadway would result in arrest.” Appellants’ Br. at 28. In such a situation, where no “implicit invitation” had been given to proceed onto the roadway, defendants argue that New York’s disorderly conduct statute, which criminalizes “obstruct[ing] vehicular or pedestrian traffic” with “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,” N.Y. Penal Law § 240.20, gave plaintiffs fair warning that their conduct was illegal, and no further warning was necessary.
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Defendants have identified the relevant inquiry: not whether plaintiffs will
ultimately prevail, or whether a reasonable demonstrator would have
understood the police’s actions as an invitation to enter the roadway, but rather
whether a reasonable police officer (in the position of the officers who decided to
arrest plaintiffs) should have known that under the totality of the circumstances,
the conduct of the police could have been reasonably understood by plaintiffs as
an implicit invitation to enter the Bridge roadway, and thus should have known
that additional, louder, or clearer instructions were required. But defendants’
assertions of what the officers understood are unsupported by the Complaint or
the record, which do not provide any details as to what any individual defendant knew or saw of the events leading up to the arrests.8 Further, to the extent that
defendants’ arguments rest on a markedly different characterization of the events
of the protest than those alleged by plaintiffs, we are unable to consider the
8 The dissent references the Supreme Court’s recent decision in Wood v. Moss, 134 S. Ct. 2056 (2014), implying that the decision requires us to ignore the reality of what each defendant officer knew or saw. But Wood did not unmoor the reasonableness standard from facts as they transpire in an individual case. In Wood, the Court reasoned that a discriminatory motive cannot be inferred from facts that conclusively point in a neutral direction, in that case, towards officers’ reasonable concern for the safety of the President. Id. at 2069. But that common‐ sense conclusion does not change the analysis here. Officers at the Brooklyn Bridge had a constitutional obligation to warn protesters of a revoked invitation to march on the roadway. If the officers knew, or should have known, that their actions would be construed by reasonable protesters as inviting them onto the bridge, then a reasonable officer should have issued a fair warning revoking that permission. Plaintiffs allege that the officers’ actions amount to such an invitation. Discovery will illuminate whether that it is indeed true.
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resulting factual dispute at this stage. We must take the Complaint’s allegations as true when considering defendants’ motion to dismiss, as they are not “blatantly contradicted” or “utterly discredited” by the submitted videos and still images, Scott v. Harris, 550 U.S. 372, 380 (2007).9
Given the paucity of the record as to the actions of any specific defendant on the day of the march, we cannot say at this stage whether or not defendants had sufficient knowledge of plaintiffs’ perceptions of the officers’ actions such that they acted unreasonably in arresting plaintiffs. A homely analogy will illustrate what is ultimately a common‐sense point. Any driver knows that he may not ordinarily cross an intersection against a red light, but that an officer directing traffic can lawfully order him to ignore the red light and proceed. We assume arguendo that being signaled by a police officer to proceed in the face of a red light would be a valid defense for a driver charged with running that red light. In that situation, an officer who directed a driver to proceed, or realized that her gesture could reasonably have been seen as giving such a directive, would clearly act unreasonably by ticketing the driver for ignoring the red light. On the other hand, a second officer who saw the driver run the red light but was unaware of her colleague’s instructions to do so would have probable cause to ticket the driver.
9 The videos and still images submitted by the parties are inconclusive on these points. They depict only what can be seen and heard from particular vantage points, and not what the police or protesters in general, or particular officers named as defendants, saw and heard.
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The facts of this case are of course far more complicated than this simple example. Although we have recounted the facts by referring to “the police” and “the demonstrators,” we have done so only because the record is so undeveloped that we cannot specify the conduct or knowledge of particular named defendants. Ultimately, to recover damages, the plaintiffs will need to establish that particular defendants acted unreasonably in arresting them (or directing their arrest). Just as some demonstrators (but not others) might be convicted of disorderly conduct because it can be proven that they had heard and defied a clear warning that they were obstructing traffic and needed to move, so discovery might reveal that some police officers (but not others) were fully aware of facts that would lead reasonable officers to know that many of the demonstrators reasonably understood that they had been granted permission to proceed across the bridge, just as plaintiffs allege.
Given this standard, plaintiffs may have a difficult time establishing liability or avoiding the qualified immunity defense at a later stage of litigation.10 In order to have a reasonable belief that probable cause exists, an officer need not anticipate or investigate every possible defense that a person suspected of violating the law may have, and an officer may have probable cause despite knowledge of facts that create an arguable defense. On the other hand, as Cox
10 The difficulty may be especially pronounced with respect to officers who were unaware of earlier events, and were directed by superiors to arrest demonstrators who plainly appeared, at that later stage of events, to be in violation of New York Penal Law § 240.20(5).
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and Papineau clearly establish, an officer may not constitutionally arrest a demonstrator when he is personally aware that responsible officials have implicitly or explicitly authorized the very conduct for which he seeks to make the arrest. As the Seventh Circuit has held, “[o]nce a police officer discovers sufficient facts to establish probable cause, she has no constitutional obligation to conduct any further investigation in the hope of discovering exculpatory evidence,” but “[a] police officer may not ignore conclusively established evidence of the existence of an affirmative defense.” Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004); see also Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir. 2002) (holding that an officer, when assessing probable cause, “is not required to inquire into facts and circumstances in an effort to discover if the suspect has an affirmative defense,” but may not “ignore information known to him which proves that the suspect is protected by an affirmative legal justification” (emphasis and internal quotation marks omitted)).
Taking plaintiffs’ allegations as true, as we must, we believe that they have adequately alleged actionable conduct. Plaintiffs have alleged that the police directed the demonstrators’ activity along the route of their march, at times specifically condoning, or even directing, behavior that on its face would violate traffic laws. When the bottleneck at the pedestrian walkway of the Bridge led the demonstrators to pool into the roadway, the police did not immediately direct them out of the street, and when they did undertake to issue such a warning to clear the roadway, they did so in a way that no reasonable officer who observed
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the warning could have believed was audible beyond the first rank of the protesters at the front of the crowd.11 According to plaintiffs’ account, the police then retreated back onto the Bridge in a way that would reasonably have been understood, and was understood, by the bulk of the demonstrators to be a continuation of the earlier practice of allowing the march to proceed in violation of normal traffic rules.
We emphasize that the procedural posture of this case presents a formidable challenge to defendants’ position. They urge us to find that qualified immunity is established for all defendants based on plaintiffs’ version of events (plus a few inconclusive photos and videos). The evidence, once a full record is developed, may contradict plaintiffs’ allegations, or establish that some or all of the defendants were not aware of the facts that plaintiffs allege would have alerted them to the supposed implicit permission. We express no view on
11 The fact that some protesters clearly heard the warning does not establish probable cause to arrest the entire group, when defendants knew that the vast majority had not heard the warning. See Papineau, 465 F.3d at 59‐60 (holding that officers could not engage in “indiscriminate mass arrests” of a group where a few unidentified individuals from the group had violated the law). Nor would any warning the officers gave after demonstrators had already proceeded halfway across the bridge qualify as “fair warning.” At that point, the police had allegedly blocked off any avenues of retreat. As the district court noted, “[i]mplicit in the notion of ‘fair warning’ is an opportunity for plaintiffs to conform their conduct to requirements.” Garcia, 865 F. Supp. 2d at 488 n.7; see also Morales, 527 U.S. at 58 (noting that “the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law”).
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whether some or all of the defendants may be entitled to qualified immunity at a later stage of the case. Cf. Pena v. DePrisco, 432 F.3d 98, 111‐12 (2d Cir. 2005) (affirming denial of application for qualified immunity at motion to dismiss stage without prejudice to renew application at a later stage). But to reverse the district court’s denial of qualified immunity on a motion to dismiss, we would have to say that on the basis of plaintiffs’ account of events, no officer who participated in or directed the arrests could have thought that plaintiffs were invited onto the roadway and then arrested without fair warning of the revocation of this invitation.12 Since we cannot do so on this limited record, we affirm the judgment of the district court.13
12 Contrary to the dissent’s assertion, to say that officers may have had different experiences is not to say that they were all reasonable or all unreasonable. Discovery is necessary in this case simply because, as a factual matter, individual officers may have had different experiences on the day of the march, and, thus, some may be liable and some may not, depending on what they saw, heard, and knew. With a full record, the district court can then evaluate whether reasonable officers could disagree about the legality of what each officer did.
13 We also affirm the district court’s denial of qualified immunity on plaintiffs’ state law claims, as our analysis of federal qualified immunity is equally applicable to qualified immunity under New York law, which “in the context of a claim of false arrest depends on whether it was objectively reasonable for the police to believe that they had probable cause to arrest.” Papineau, 465 F.3d at 64.
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VI. The Dissent We add a few words in response to Judge Livingston’s dissent, which
seems to us to ignore the procedural context of this decision, and accordingly to draw unwarranted conclusions about the nature and consequences of our holding today. We emphatically do not hold that – and have no occasion to decide whether – any police officer acted unlawfully, is liable for damages, or lacks qualified immunity for his or her actions on the day in question. As we have clearly stated, upon the development of an appropriate factual record, any or all of the police officer defendants may well properly be found entitled to qualified immunity at the summary judgment stage, or after trial. The dissent, however, engages in a lengthy description of various inflammatory facts gleaned from a viewing of some of the videotapes submitted by the parties, all taken from differing and partial perspectives, and treats its factual conclusions as established facts about what “the police” were aware of. If it turns out, after discovery, that no reasonable factfinder could see the evidentiary record differently than the dissent does, qualified immunity may well prove appropriate.
Even at the summary judgment stage, however, it is well established that dismissal on qualified immunity grounds may not be granted when factual disputes exist, unless the defendants concede the facts alleged by the plaintiffs for purposes of the motion. Loria v. Gorman, 306 F.3d 1271, 1280 (2d Cir. 2002), citing Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002). Here, we are at an even earlier stage, at which defendants, in order to prevail, must be entitled to
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qualified immunity based on the very facts alleged by the plaintiffs. While we agree that a motion to dismiss on such grounds can lie, success on such a motion must be limited to situations where immunity is clear based on the allegations in the complaint itself. As is evident from the dissent, defendants here do not rest their claim to immunity on the allegations of the complaint, but rather on an extensive analysis of “facts” asserted by the defendants. The existence of videotapes depicting some of the events from the perspectives of some of the participants does not establish those facts; a comparison of the tapes recording the police announcement to the protesters to disperse makes entirely apparent how different the events could appear from different vantage points.
To take only a few examples: the dissent suggest that some protesters lawfully headed onto the pedestrian walkway of the Bridge while others unlawfully headed for the roadway. But that is hardly established fact. The pedestrian walkway is narrow, and large numbers of demonstrators appear to have pooled on Centre Street, near the entrance to both the roadway and the walkway, as they approached the bottleneck at the Bridge entrances. Defendants do not argue that they had probable cause to arrest these demonstrators, who were already in the roadway of Centre Street. Indeed, the complaint implies that the police themselves had blocked off traffic at that point. And, according to the complaint, the police alleviated congestion at the base of the bridge by inviting protesters to ignore traffic laws and stream across Centre Street regardless of walkway signals and standard right‐of‐way rules. Given police tactics that day,
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officers could quite plausibly have decided to channel the ballooning mass of protesters onto the Bridge roadway in order to keep the march moving towards its end on the other side of the East River, and, thus, protesters may have reasonably believed that officers were doing so whether that was their true motive or not.14 It is hardly apparent that many of the protesters who eventually entered the Bridge roadway did so knowing that they were eschewing a concededly lawful alternative and taking an illegal turn onto that road.
Similar questions of fact undermine the dissent’s conclusion that the officers on the scene all made objectively reasonable decisions. Contrary to the dissent’s suggestion, it is not clear that “it was anything but reasonable for any officer – named or John Doe – to conclude that each of the plaintiffs on the roadway of the Bridge (among the thousands who did not take to the roadway and were not arrested) was obstructing traffic.” (Dis. Op. at 25). At the time the district court decided the motion in question, essentially all of the defendants
14 The dissent states that neither the complaint, photos, or videos support this narrative. But this conclusion reflects the Rashomon‐like quality of this case. Photos attached as Exhibits, B, C, and D to the Second Amended Complaint depict throngs of people pooling on Centre Street, the entrance to the bridge’s pedestrian path, and the plaza to the east of City Hall. In each, members of the crowd stand shoulder to shoulder. And at 23:12, the video focuses on a crowd of people waiting at a standstill on Centre Street, looking around as if unsure where to go and what to do. Perhaps the dissent believes that the befuddled crowd had no reason to think that it should migrate onto the roadway. That may be true. But at this stage in the litigation it is but one view of facts that can be arranged and understood in multiple ways, including along the lines asserted by plaintiffs in their complaint.
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were sued as John Does. While some officers participating in the arrest have now been identified, there is no clear record yet of who made the decision to arrest the protesters on the roadway, where the decisionmakers were stationed, what those decisionmakers observed, and what reasoning process they followed. We do not know why the officers at the front of the march chose to retreat onto the bridge, and what if anything they intended to convey.15 As noted above, we share the dissent’s expectation that many individual officers participating in the arrests, based on their perspective on the events, will have had every reason to believe that the protesters were acting unlawfully, and will have reasonably participated in the arrests. It does not follow, however, that those who made the command decisions for the police to retreat onto the Bridge (and thus to create a situation in which the protesters moved forward and eventually blocked traffic from other eastbound entrance ramps that may have been unimpeded before the police moved back), and then to arrest the protesters who predictably followed them, would have been similarly unaware that the protesters’ actions had previously been condoned and that no adequate warning had been given. Based on the
15 This is not to say that officers’ subjective experience will ultimately decide the qualified immunity question. But the officers’ perspective will surely help illuminate what actually happened in those pivotal moments on the bridge. Put differently, were an officer to admit that he led marchers onto the bridge with the intent of inviting them to continue marching on the roadway, such testimony would certainly corroborate protesters’ contention that the officers’ retreat onto the bridge objectively appeared to be an invitation to continue marching on the roadway.
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allegations of the Complaint, and the confused images from the videos submitted, the experienced district judge correctly ruled that discovery should go forward.
Nor do we regard the applicable law as unsettled. The dissent correctly notes that Cox does not address the issue of probable cause. As the dissent concedes, however, Cox holds that when demonstrators have been given police permission to be where they are, they cannot be found guilty of a crime absent clear warning that permission has been revoked. If a person cannot as a matter of law be guilty of a crime, an officer aware of the facts establishing the applicable defense cannot have probable cause to make an arrest. In any event, our own holding in Papineau applies exactly this analysis in the qualified immunity context. It may well be that no police officer, including those who made the critical tactical decisions in this case, was aware of the relevant facts. It is impossible, however, to know that at this stage.
Unlike the dissent, we do not regard this case as presenting novel issues of weighty consequence. The only question before us is whether the Complaint on its face (or as supplemented by a handful of still and moving images) unequivocally establishes that the officers unquestionably had either probable cause or arguable probable cause to arrest the plaintiffs. Our answer is that it does not.
CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.
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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: August 21, 2014 Docket #: 12-2634cv Short Title: Garcia v. Bloomberg

DC Docket #: 11-cv-6957 DC Court: SDNY (NEW YORK CITY) DC Judge: Rakoff

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case: 12-2634 Document: 85-3 Page: 1 08/21/2014 1300591 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: August 21, 2014 Docket #: 12-2634cv Short Title: Garcia v. Bloomberg

DC Docket #: 11-cv-6957 DC Court: SDNY (NEW YORK CITY) DC Judge: Rakoff

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

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DEBRA ANN LIVINGSTON, Circuit Judge, dissenting: The majority misapplies the Supreme Court’s qualified immunity cases, first
subjecting police officers to “the burdens of broad‐reaching discovery” in the absence of clearly established law supporting its strained theory of liability, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”); accord Pearson v. Callahan, 555 U.S. 223, 231 (2009) (noting that the “‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that ‘insubstantial claims’ against government officials . . . be resolved prior to discovery” (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)), and then standing the objective reasonableness doctrine on its head. In so doing, it threatens the ability of police departments in this Circuit lawfully and reasonably to police large‐scale demonstrations and to make the necessary on‐the‐spot judgments about whether arrests are required in the face of unlawful conduct threatening public safety. Respectfully, I dissent.
The New York City Police Department (“NYPD”) officers who policed the movement of thousands of “Occupy Wall Street” protesters from Zuccotti Park to the Brooklyn Bridge on October 1, 2011, brought these many people (who did not obtain a permit before their march) through downtown Manhattan safely and, so far as the Second Amended Complaint (the “complaint” or “putative class action complaint”) alleges, without incident. Amidst loud and insistent chants of “Take the Bridge! Take the Bridge!,” demonstrators at the head of the march thereafter defied police instructions to use the Bridge’s footpath and instead led a subset of protesters
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onto the Bridge’s roadway – a vehicular artery that constitutes both a major route for daily traffic moving between lower Manhattan and downtown Brooklyn and, during emergencies, for the movement of first responders. As a result, some 700 demonstrators who took to the roadway (among the thousands who did not) were arrested.
The putative class action complaint is devoid of allegations that even one of these many protesters suffered any indignity at the hands of police – any indignity, that is, apart from the fact of arrest while obstructing all traffic on the Brooklyn Bridge. The majority determines, nevertheless, that some 40 officers making arrests that day are not entitled to qualified immunity, at least at the motion to dismiss stage. But the majority can point to no clearly established law supporting its theory of potential police liability: which is, in essence, that because police escorted these unpermitted demonstrators to the Bridge, sometimes assisting them in crossing the street against the light, police thereby incurred a “constitutional obligation to warn protesters of a revoked invitation to march on the roadway,” apparently by using sound amplifying equipment adequate to the majority’s taste. Maj. Op. 18 n.8. Citing Cox v. Louisiana, 379 U.S. 559 (1965), the majority claims that because: (1) some of the 700 may not have heard the repeated police instructions to stay off the Bridge roadway; and (2) police may have “implicitly” (if inadvertently) “invited the demonstrators to walk onto the roadway of the Brooklyn Bridge,” Maj. Op. 3, by assisting them in crossing streets and then falling away before the insistent throng at the Bridge’s base, discovery must be had as to whether the 40 police officers “had sufficient knowledge of plaintiffs’ perceptions of the officers’ actions” – so that
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police “acted unreasonably,” Maj. Op. 19, in believing they had probable cause to arrest. But Cox does not suggest – much less clearly establish – any such thing.
And that is for the best. Police are called upon to shepherd demonstrators through busy city streets and, to do so safely, they sometimes overlook infractions (such as the absence of a permit) either to expedite the movement of large and sometimes raucous crowds, to minimize disruption to others, or simply to avoid unnecessary confrontation with people out to have their say. The majority’s “rule of Cox” suggests that in so doing, police will henceforth repeatedly incur the costs of class action inquiry into the question whether their conduct implicitly invited later illegality by demonstrators and whether officers had “knowledge of plaintiffs’ perceptions of the officers’ actions” so as to defeat probable cause for subsequent arrests. To avoid the costs of civil litigation in such a fantastical world, police managers would be wise to counsel officers to arrest at the first infraction (irrespective of any risk this might pose), to disregard nothing, and thereby to suppress much First Amendment expression. Thus, in a case like this, arrests should have begun, perilously, when the obdurate protesters in front first stepped onto the Bridge roadway – or perhaps when marchers first stepped foot on a city street.1
1 The New York Civil Liberties Union, in an amicus brief, urges the panel not to reach the question whether New York City Administrative Code § 10‐110(a) (providing in relevant part that “[a] procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner”) applies to marches conducted wholly on the sidewalks. Although both parties appear to have agreed below that § 10‐110(a) applies to sidewalk marches (so that the unpermitted Occupy demonstrators were subject to arrest from the start), the issue need not be decided here, since the Occupy marchers who were arrested were on the roadway of the Brooklyn Bridge – a location, incidentally, for which a permit is clearly required.
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This is not the law of qualified immunity. As the Supreme Court said only last Term, “[r]equiring [an] alleged violation of law to be ‘clearly established’ ‘balances . . . the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’” Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (quoting Pearson, 555 U.S. at 231) (ellipsis in Wood). The “dispositive inquiry,” the Supreme Court said, “is whether it would have been clear to a reasonable officer” in the position of those on the Bridge “that their conduct was unlawful in the situation they confronted.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)) (brackets and internal quotation marks omitted).
The majority turns this standard upside down, asserting that qualified immunity at the motion to dismiss stage is appropriate only if, taking as true the plaintiffs’ allegations, “no officer who participated in or directed the arrests could have thought” that police were violating the plaintiffs’ constitutional rights. Maj. Op. 23. Alluding to the supposed “Rashomon‐like quality” of this case, Maj. Op. 26 n.14, the majority concludes that extensive inquiry into the police officers’ “knowledge of plaintiffs’ perceptions of the officers’ actions,” Maj. Op at 19, is required before it can be determined if the defendants are entitled to have this case dismissed. But the majority is wrong. The plaintiffs have not alleged facts plausibly suggesting that a reasonable police officer would have believed she was violating the Constitution by arresting those “Occupy Wall Street” demonstrators who posed a threat to public safety by occupying the roadway of the Brooklyn Bridge. Not even close. In such circumstances, the officers are presently entitled to qualified immunity. It’s a shame they are being denied its protections.
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I. At the start, the majority contends, erroneously, that my conclusion that this complaint should be dismissed “do[es] not rest . . . on the allegations of the complaint, but rather on an . . . analysis of ‘facts’” from the photographic and video exhibits. Maj. Op. 25. But the majority acknowledges – as it must – that the plaintiffs’ photographs and videos are attached to their complaint and that the defendants’ videos have been “incorporated into the Complaint” by reference. Maj. Op. 4. These photographs and videos are thus part of the complaint, see Intʹl Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” (brackets and internal quotation marks omitted)); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”), and Supreme Court precedent requires that we consider them, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference. . . .” (emphasis added)). Moreover, contrary to the majority’s claim, the analysis here as to why these officers are presently entitled to qualified immunity is in no way dependent on my adoption of “various inflammatory facts gleaned” from videotapes offering “differing and partial perspectives” on the events of the day. Maj. Op. 24. Rather, it proceeds from the complaint’s allegations, as supplemented by basic, indisputable facts depicted in the photographs and videos. Those facts are presented here.
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* * * On October 1, 2011, after camping in lower Manhattan for almost two weeks, supporters of the “Occupy Wall Street” movement staged an unpermitted march through lower Manhattan. The protesters planned to march from Zuccotti Park to the Brooklyn Bridge Park. Aware of these plans, the NYPD deployed substantial resources, including dozens of patrol officers, as well as officers on bicycles, motorscooters, motorcycles, in police cruisers, and in other types of vehicles, to accompany the mass of people, which numbered in the thousands, as they marched. Police officers escorting the marchers north from Zuccotti Park provided them with a steady stream of oral and visual directions, ordering them repeatedly, as depicted in the video footage, to stay on the sidewalks and to keep within pedestrian walkways. The police also on occasion restricted the movement of traffic and pedestrians along the unpermitted route, facilitating the protesters’ movement across streets while at the same time ensuring not only the safety of protesters, but also that of the New York City residents and visitors among whom the march was staged. At other times, and again as shown in the video footage, police officers formed human “walls” between protesters and the street to keep the protesters out of vehicular traffic and to keep vehicles away from the protesters. The protest proceeded from Zuccotti Park to the entrance of the Brooklyn Bridge without incident, so far as the complaint alleges, and despite the thousands involved. The video footage of the trek from Zuccotti Park to the Bridge further establishes, beyond peradventure, that the police permitted the demonstrators to march only on the sidewalk, and not in the street, except at crossings. “Nobody is walking in the street; everyone is walking on the sidewalk,” said one officer with a
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bullhorn. “Folks, I need everyone to walk on the sidewalk.” The putative class action complaint at no point alleges that protesters were permitted to march on the streets, except when crossing, on the way to the Brooklyn Bridge. As the very first protesters reached the entrance to the Bridge, moreover, these protesters marched directly onto the Bridge’s pedestrian walkway, apparently at the direction of officers and in compliance with the general instructions throughout to stay out of traffic.2
But not so other protesters, who wanted to march over the vehicular roadway. Several of them, two holding a red flag that said, “PEOPLE NOT PROFITS,” headed onto the roadway rather than the pedestrian promenade. They motioned for others to follow. The crowd on the roadway grew and within a few moments, a group of two dozen or more protesters had positioned themselves on the roadway and begun to chant. A large group quickly amassed there; the resulting congestion restricted
2 The majority posits that my assertion that “some protesters lawfully headed onto the pedestrian walkway of the Bridge . . . is hardly established fact.” Maj. Op. 25. But this fact is both pled in plaintiffs’ complaint and shown clearly in the plaintiffs’ photographs attached thereto. See Second Amended Complaint ¶ 87 (“[T]hose in the front of the march crossed Centre Street and moved to the pedestrian walkway or promenade of the Brooklyn Bridge.”); id. ¶ 88 (“When the front section of the march encountered the narrow pedestrian walkway of the bridge, there was a natural congestion as the large group began to file onto the smaller walkway.”); id. ¶ 100 (“hundreds of persons upon the pedestrian walkway”); id. ¶ 104 n.2 (“The original front of the march had entered onto the pedestrian walkway with several hundred others.”). Indeed, the plaintiffs’ class action complaint cites two of its own pictorial exhibits and asserts that these pictures show this very thing. Id. ¶ 88 (alleging that exhibit B depicts a “large number of marchers entering and on the pedestrian walkway); id. (alleging that exhibit C depicts the “pedestrian walkway packed with marchers while [the] roadway remains clear”). Thus, at this stage, it is indeed a fact that we take as given in assessing the complaint. The majority’s criticism of my dissent for asserting that “some protesters lawfully headed onto the pedestrian walkway” is bewildering.
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vehicular traffic, which began to form behind the protesters, as well as pedestrian traffic both onto the Bridge and at its base.
The majority asserts that because the Bridge’s pedestrian walkway is narrow and demonstrators depicted in the videos appear to have pooled on Centre Street, at the Bridge’s base, officers initially “could quite plausibly have decided to channel the ballooning mass of protesters onto the Bridge roadway in order to keep the march moving towards its end on the other side of the East River.” Maj. Op. 25. To be clear, the complaint does not allege any such thing (which is irrelevant to the qualified immunity analysis herein in any event), nor does the video or photographic evidence depict it. The incorporated video material does clearly show, however, that NYPD Captain Jack Jaskaran, after briefly conferring with fellow officers, approached the by now sizable crowd on the roadway with a bullhorn and stated, “Ladies and gentlemen, you are blocking the roadway. You need to go to the sidewalk.” Plaintiffs contend that this command was not audible to many in the roadway. But there is no dispute that Jaskaran said (consistent with police instructions throughout the march to remain on the sidewalk): “You are obstructing traffic. You need to get on the sidewalk.”
Despite this repeated warning, the crowd remained on the roadway, faced by a small number of officers who were standing farther up the roadway to the Bridge. The crowd now chanted “Whose streets? Our streets!” This chant was loud enough to be audible to the entire crowd at the base of the Bridge. Once begun, the chant continued for another minute during which other protesters, disregarding the assembled (and loudly chanting) group on the roadway, proceeded up the pedestrian promenade.
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Captain Jaskaran then gave a third warning, asking the wayward protesters to leave the roadway. Around this time a shirtless protester with a large red star on his back, who was standing at the front of the crowd, turned his back on the officers to face the assembled throng. He stood silently with his fist raised. The crowd standing on the roadway had grown considerably by this point. The protesters continued to chant: “Whose streets? Our streets!” A spontaneous cheer erupted.
Shortly afterward, the demonstrators ceased chanting “Whose streets? Our streets!” and began loudly and vigorously screaming, “Take the Bridge!” The shirtless man had by now turned to face the police, fist still raised. Captain Jaskaran again announced that the protesters were obstructing vehicular traffic, and he stated that if they refused to move, they would be placed under arrest: “You are obstructing vehicular traffic. You are standing in a roadway. If you refuse to move, you are subject to arrest.” Jaskaran identified himself, using the bullhorn, as an NYPD captain. He ordered all protesters to leave the roadway and stated that if the protesters refused to leave they would be arrested and charged with disorderly conduct. Demonstrators, including those standing directly in front of Captain Jaskaran, continued to chant, “Take the Bridge! Take the Bridge!” The man without a shirt, fist still raised, asked Captain Jaskaran to confirm the charge the protesters would face. When informed that those refusing to leave would be charged with disorderly conduct, he replied, “Just disorderly?”
Further signaling their intention to march on the Bridge’s roadway, whether permitted by police or not, the protesters at the front of the crowd, facing police, linked arms. The shirtless man stood in front of them, fist still raised. The front line of the protesters moved forward several feet to align itself with the shirtless man.
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Nine protesters, arms linked, continued slowly walking forward, the crowd following behind. A spontaneous cheer then erupted from the crowd. Police can thereafter be seen in the video footage walking in front of the demonstrators along the side of the roadway. The plaintiffs allege that the officers “led” them up the roadway. But not a single named plaintiff alleges that he or she saw any NYPD officer leave his position blocking the Bridge’s roadway and invite demonstrators onto it. Instead, the named plaintiffs allege simply that they followed other protesters onto the Bridge.
Car traffic, meanwhile, continued to enter the Bridge’s roadway from a ramp ahead of the protesters. Officers can be seen in the video footage redeploying to stop the vehicular traffic – and thus to protect the safety of the demonstrators – before demonstrators reached the ramp. The protesters in front continued to link arms as the mass of people moved further onto the Bridge, filling up the roadway. As demonstrators approached a second ramp from which cars were still entering the Bridge, police walked beside and in front of the demonstrators, at one point forming a human line between the cars entering the roadway and the protesters moving up it. Protesters continued to chant as car horns sounded. Eventually, all vehicular traffic ground to a halt.
The demonstrators marched up the roadway, still chanting “Whose streets? Our streets!,” until the police formed a line partway across the Bridge, halting the march. When those in the front of the march had stopped a few feet in front of the police, Captain Jaskaran announced: “Ladies and gentlemen, since you have refused to leave this roadway, I have ordered you arrested for disorderly conduct.” The crowd responded by chanting, “Let us go!” The officers began arresting the
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protesters. There was some jostling as the police made arrests. Some protesters climbed up to the promenade in an apparent effort to avoid being arrested. There are no allegations of any injuries or use of excessive force during these arrests, however, which numbered over 700.
Nine of the arrested protesters, on behalf of a putative class of all those arrested that day, brought a 42 U.S.C. § 1983 claim against the City of New York, former Mayor Michael Bloomberg, former Police Commissioner Ray Kelly, and the NYPD officers involved in their arrests. The protesters seek both compensatory and punitive damages from the arresting officers, along with attorneys’ fees, alleging violations of plaintiffs’ First, Fourth, and Fourteenth Amendment rights and bringing state law claims for false arrest, negligence, gross negligence, and negligent supervision. The district court granted a motion to dismiss as to the City, Mayor Bloomberg, and Commissioner Kelly, rejecting plaintiffs’ claim to have plausibly alleged a pattern of “indiscriminate mass false arrest” and noting that out of the thousands of protesters marching that day, only the 700 who proceeded onto the Brooklyn Bridge’s vehicular roadway were arrested. Garcia v. Bloomberg, 865 F. Supp. 2d 478, 492‐93 (S.D.N.Y. 2012). The district court denied the motion to dismiss the claims against the individual police officers, however, determining that plaintiffs had plausibly alleged that by “turn[ing] and . . . walking away from the demonstrators and onto the roadway” at the base of the Bridge, police had thereby issued protesters “an implicit invitation to follow” that deprived officers of the protection of qualified immunity in carrying out arrests, at least at this stage. Id. at 489. The officers timely appealed.
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II. Qualified immunity is an affirmative defense designed to “protect[ ] the [defendant public] official not just from liability but also from suit . . . , thereby sparing him the necessity of defending by submitting to discovery on the merits or undergoing a trial.” X‐Men Sec., Inc. v. Pataki, 196 F.3d 56, 65 (2d Cir. 1999). The majority characterizes my conclusion that these officers are presently entitled to qualified immunity as an “unwarranted conclusion[ ]” that ignores the procedural posture of this case. Maj. Op. 24. But the Supreme Court has, by its own description, “repeatedly stressed the importance of resolving immunity questions at the earliest possible stage of the litigation.” Wood, 134 S. Ct. at 2065 n.4 (emphasis added) (brackets and internal quotation marks omitted); see also Saucier, 533 U.S. at 200 (stating that a ruling on qualified immunity “should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive”), overruled on other grounds by Pearson, 555 U.S. 223 (2009). Indeed, only last Term the Supreme Court reversed the denial of a motion to dismiss on qualified immunity grounds, for the very reason present here: that protesters in the context of a demonstration had failed to “allege[ ] violation of a clearly established . . . right” based on the “on‐the‐spot action” of law enforcement agents engaged in crowd control. See Wood, 134 S. Ct. at 2061, 2066.3
3 The Secret Service agents sued in Wood for alleged First Amendment violations were charged with protecting the President and, in that capacity, required protesters to move “some two blocks away” from a restaurant at which the President had made a “last‐ minute decision to stop.” Id. at 2060‐61. The Supreme Court reversed the Ninth Circuit’s decision affirming the district court’s denial of a motion to dismiss on the ground that the plaintiff protesters had failed to allege the violation of any clearly established law. Id. at 2061.
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Qualified immunity shields officers from suits for money damages provided that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware. See Harlow, 457 U.S. at 806‐07. It provides a broad shield, protecting “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Liability is precluded, moreover, if government actors “of reasonable competence could disagree on the legality of the action at issue in its particular factual context.” Manganiello v. City of New York, 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks omitted). Thus, an officer is protected by qualified immunity unless (1) his conduct violated “clearly established constitutional rights,” Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003) (quoting Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996)), and (2) it would have been unreasonable for him to have believed otherwise, see Manganiello, 612 F.3d at 165. As set forth below, this test, fairly applied, dooms plaintiffs’ allegations as a matter of law.
A. The Complaint Alleges No Violation of Clearly Established Law The standard for “clearly established law” is a familiar one: the right “must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (brackets and internal quotation marks omitted). In other words, “existing precedent must have placed the . . . constitutional question . . . beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (emphasis added) (internal quotation marks omitted). In this Circuit, we look to whether (1) the right was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that
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his conduct was unlawful. Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). Further, a determination of whether the right at issue is “clearly established” “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre‐existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (internal citation omitted).
The majority does not afford the NYPD officers who policed the “Occupy Wall Street” demonstration this basic protection. The majority contends that a single Supreme Court decision – Cox v. Louisiana, 379 U.S. 559 (1965) – established the rule that (as the majority puts it) “when officials grant permission to demonstrate in a certain way, then seek to revoke that permission and arrest demonstrators, they must first give ‘fair warning.’” Maj. Op. 14. This is an interesting lesson to draw from Cox, which discusses neither arrest nor fair warning by police. See Cox, 379 U.S. at 572. Indeed, Cox does not even address the Fourth Amendment, nor the question of probable cause – the legal issue of consequence to whether these police officers are entitled to qualified immunity – but the different issue of whether a citizen may be punished for a crime, consistent with due process, for undertaking conduct “which the State had clearly told him was available to him.” Cox, 379 U.S. at 571 (quoting Raley v. Ohio, 360 U.S. 423, 426 (1959)) (internal quotation marks omitted). At any rate, it is not necessary to squabble over the majority’s ”rule of Cox” to determine whether plaintiffs have adequately alleged its violation. See Pearson, 555 U.S. at 227 (holding that in conducting qualified immunity analysis,
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courts need not determine whether an official’s conduct violated constitutional rights before addressing whether such rights are clearly established). Even accepting the majority’s view of the matter, Cox sets forth no clearly established right which these officers are plausibly alleged to have transgressed.
The facts of Cox make this abundantly clear. The appellant in Cox was convicted pursuant to a statute that prohibited picketing or parading “near a building housing a court” with the intent, inter alia, of influencing judges, jurors, witnesses, or court officers in the discharge of their duties. 379 U.S. at 560. There was no question in the case that the appellant had staged a protest in the vicinity of a courthouse, with the requisite intent. The problem in Cox, as laid out in the Supreme Court’s opinion, was that “the highest police officials” of Baton Rouge, “in the presence of the Sheriff and Mayor,” had given the appellant express permission to stage his protest where he did, on the west side of the street, directly across from the court. Id. at 571. The Supreme Court concluded that in these circumstances, Cox’s conviction violated due process because protesters “were affirmatively told that they could hold the demonstration on the sidewalk of the far side of the street, 101 feet from the courthouse steps” – in effect, “that a demonstration at the place it was held would not be one ‘near’ the courthouse within the terms of the statute.” Id. This affirmative authorization was thus integral to the Supreme Court’s holding that it would be “an indefensible sort of entrapment by the State” to punish a citizen for engaging in an activity that “the State had clearly told him was available to him.” Id. (emphasis added) (internal quotation marks omitted). For Cox states expressly that if the appellant had staged his demonstration in the very same spot without this express authorization, “or a fortiori, had he defied an order of the police requiring
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him to hold this demonstration at some point further away,” the matter “would be subject to quite different considerations.” Id. at 571‐72.
Cox, then, is a very different case from the one alleged in this class action complaint. For plaintiffs here do not and cannot allege that the police provided them any express, clear, and undisputed grant of permission to be on the Brooklyn Bridge roadway. The majority, moreover, concedes this point – arguing not that such affirmative permission is adequately alleged, but that some demonstrators (basically, those not in front, and allegedly unable to hear Captain Jaskaran’s instructions) might simply have inferred they had permission from the fact that vastly outnumbered police officers did not block their entrance onto the roadway and may have earlier assisted them in crossing streets against the light. In effect, the majority takes a due process right (a right not to be entrapped by government officials who expressly assure that conduct will not constitute a violation and then seek to punish for it) and converts it into a Fourth Amendment right not to be arrested in circumstances in which no such assurance has been afforded, and on the theory that the police here had a constitutional obligation to provide over 700 demonstrators with “additional, louder, or clearer instructions,” Maj. Op. 18, before reacting to the fact that these demonstrators, warned throughout the march to stay on the sidewalk, elected instead to “take” the Brooklyn Bridge roadway.
This newly discovered Fourth Amendment right is neither the due process right recognized in Cox nor a clearly established rule derived from Cox. Cox does not involve (or even mention) the Fourth Amendment. Nor can the majority’s rule be derived from Fourth Amendment first principles. The Fourth Amendment only requires that officers have “a reasonable ground for [the] belief” that an arrestee has
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committed a crime. Maryland v. Pringle, 540 U.S. 366, 371 (2003). No implied permission through inaction can be used to negate this reasonable belief. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005) (officers have “discretion in deciding when and where to enforce city ordinances” (internal quotation marks omitted)). There is similarly no clearly established authority for the proposition that First Amendment interests, however important, trump the operation of ordinary Fourth Amendment law, cf. Zurcher v. Stanford Daily, 436 U.S. 547 (1978), much less traffic regulations. Simply put, the basis for the majority’s constitutional rule is a constitutional puzzle, and I cannot see how this is clearly established law of which a reasonable officer would be aware.
To be clear, a protester who didn’t hear police admonitions to leave the roadway and who believed police had granted him permission to cross the Bridge amidst traffic might well establish a defense to the charge of violating New York’s disorderly conduct statute, which criminalizes obstructing traffic with “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” N.Y. Penal Law § 240.20(5). But the possibility that some protesters might have a mens rea defense to the charge of disorderly conduct establishes neither that police lacked probable cause to arrest them nor that plaintiffs have plausibly alleged as much. For Cox sets forth no clearly established constitutional right to the “additional, louder, or clearer instructions” that the majority apparently believes should have issued at the base of the Brooklyn Bridge. The majority’s claim to the contrary notwithstanding, its “rule of Cox” is simply not clearly established law.
Moreover, even if there were any doubt whether Cox covers the general situation described above – and there is not – there is no doubt that Cox does not
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cover the claims outlined by the nine named plaintiffs in this case. Although wholly ignored by the majority, none of the named plaintiffs allege that they received even an implicit grant of permission from any officer before entering the Brooklyn Bridge roadway. Instead, all of the plaintiffs (many of whom specifically allege that they marched on the sidewalk to get to the Bridge or heard officers “frequently issue[ ] directives to stay on the sidewalk”) state that they followed the crowd in front of them onto the roadway and fail to allege any explicit or implicit signals from officers to the effect that this was permitted:
• Plaintiff Becker “did not see or hear any police at [the] time” when he “reached the bridge.” He “followed the people in front of him forward, entering the roadway of the bridge because he happened to be on the right side of the crowd.” J.A. 169.
• Cartier “followed the march. He did not hear any warnings, orders, directives or indications from police that following the march was not permitted.” J.A. 169‐70.
• Crickmore was “[f]ollowing and within the body of the march” when he “entered upon the roadway of the Brooklyn Bridge. He was given and heard no orders or warnings not to be upon the roadway.” J.A. 170.
• Feinstein “only” saw officers “[w]hen crossing the street from City Hall Park to the Brooklyn Bridge.” She “continued to follow the crowd and entered the roadway as she followed the people ahead of her.” J.A. 170.
• Garcia“followed the march.” J.A. 171.
• Osorio “followed the march forward. He did not see or hear any police at this time. [He] did not realize he was on the roadway of the bridge until [later].” He only “subsequently saw police officers walking on the side of the crowd in the roadway.” J.A. 171.
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• Perez “marched in the same direction that she observed the escorting police officers to be walking.” J.A.171.
• Sova followed “several hundred persons entering the roadway,” and “did not hear any orders or directives not to proceed or follow the march on the roadway.” It was only after he was “on the bridge roadway” that “he observed officers alongside the march.” J.A. 172.
• Umoh “followed the marchers proceeding on the right, which happened to be on the roadway. . . . As she entered the roadway[,] . . . [she] did not see any police officers.” J.A. 172.
Markedly absent from this putative class action complaint is any allegation that a single named plaintiff even saw the police officers at the base of the Brooklyn Bridge prior to walking onto the roadway – a prerequisite, one would think, to these officers having “invited [plaintiffs] onto the roadway and then arrested [them] without fair warning of the revocation of this invitation.” Maj. Op. 23. The plaintiffs allege only that they saw the police officers after they had entered the vehicular roadway of the Bridge.
The fact that each of the named plaintiffs did nothing more than follow the crowd onto the roadway (amidst insistent chants, it should be noted, of “Take the Bridge!”) destroys their claim that police violated any clearly established rule emanating from Cox by arresting them. For even if the majority were correct (and it is not) as to the clearly established rule it finds in Cox – namely, that a loud and clear warning is constitutionally required before a demonstrator’s arrest whenever police may be argued to have implicitly, if inadvertently, signaled permission to commit an offense – surely it cannot be argued to have clearly established that police may not arrest someone who receives no grant of permission from police at all
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(actual or apparent), but merely follows another citizen’s lead in engaging in unlawful conduct.
Nor does the majority gain any refuge of clearly established law from our decision in Papineau v. Parmley, 465 F.3d 46 (2d Cir. 2006). The majority simply misreads it. Papineau, contrary to the majority’s claim, did not “reiterate” any fair warning requirement from Cox and did not even cite Cox except in a footnote, and for a proposition not relevant here. The plaintiffs in Papineau challenged neither a conviction nor an arrest, but asserted claims of excessive force and interference with First Amendment rights in connection with a demonstration that took place on private property. See 465 F.3d at 57‐58. Because the protest occurred on private property, the plaintiffs in Papineau did not need (or receive) any sort of permission from the police to conduct their protest. Thus, Papineau is simply not germane to the “rule in Cox” that the majority finds to be clearly established.4
4 The majority also relies on two out‐of‐circuit cases, noting that a right may be “clearly established if decisions by this or other courts clearly foreshadow a particular ruling on the issue, even if those decisions come from courts in other circuits.” Maj. Op. 12 (quoting Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010)). To the extent these cases are apposite, they extend Cox beyond its due process holding and agree on neither the constitutional right at stake nor its contours. These cases cannot foreshadow the law of which a reasonable officer in this circuit should be aware, cf. Weber v. Dell, 804 F.2d 796, 801 n.6, 803‐04 (2d Cir. 1986) (finding a right clearly established when this circuit’s previous cases foreshadowed the rule and seven other circuits found the right established), rendering applicable the general rule that “[w]hen neither the Supreme Court nor this Court has recognized a right, the law of our sister circuits and the holdings of district courts cannot act to render that right clearly established,” Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006).
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B. The Complaint Alleges No Objectively Unreasonable Conduct Even if the majority were right as to the scope of clearly established law, moreover, qualified immunity still shields these officers from money damages in this class action suit. For even when constitutional privileges “are so clearly defined that a reasonable public official would know that his actions might violate those rights,” qualified immunity is still appropriate “if it was objectively reasonable for the public official to believe that his acts did not violate those rights.” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991); see also Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990). Qualified immunity therefore allows for “reasonable mistakes” in an officer’s application of law to fact. Saucier, 533 U.S. at 205. Contrary to well‐settled precedent, the majority dispenses with this protection for the police officers at the Brooklyn Bridge. The majority asserts that qualified immunity would be appropriate at the motion to dismiss stage in this case only if, based on the plaintiffs’ account of events, “no officer who participated in or directed the arrests could have thought [that the plaintiffs’ rights were violated].” Maj. Op. 23. This is the wrong standard. Under Supreme Court and Second Circuit precedent, officials are granted qualified immunity if government actors “of reasonable competence could disagree on the legality of the action at issue in its particular factual context,” Manganiello, 612 F.3d at 165 (internal quotation marks omitted). “In an unlawful arrest action,” moreover, “an officer is . . . subject to suit only if his ‘judgment was so flawed that no reasonable officer would have made a similar choice.’” Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 2001) (quoting Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995)) (emphasis added); accord Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007). Thus, to be protected by qualified immunity
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officers need not show, as the majority’s erroneous (and demanding) articulation requires, that “no officer” could have thought the challenged conduct was unconstitutional. Rather, defendants need only show that at least one reasonable officer, taking the plaintiffs’ allegations as true, could believe such conduct fell within constitutional constraints.5
This distinction matters. As we have said, “qualified immunity employs a deliberately ‘forgiving’ standard of review.” Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013). It does so to ensure “that those who serve the government do so with the decisiveness and the judgment required by the public good.” Filarsky v. Delia, 132 S. Ct. 1657, 1665 (2012) (internal quotation marks omitted). By failing to afford immunity when reasonable officers can disagree about the legality of an officer’s action, the majority provides no breathing room for reasonable mistakes. But this flies in the face of the Supreme Court’s admonition that qualified immunity is to provide “ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341; see also Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (noting that qualified immunity affords
5 The majority’s “no officer” reformulation of the qualified immunity test is contrary to this Circuit’s precedent, see, e.g., Provost, 262 F.3d at 160; Walczyk, 496 F.3d at 163; see also id. at 169‐70 (Sotomayor, J., concurring) (recognizing that this Circuit applies the “reasonable officers could disagree” standard), and also separates this Court from the six other circuits that have held that qualified immunity is appropriate when officers of reasonable competence could disagree on the constitutionality of the challenged conduct. Hoffman v. Reali, 973 F.2d 980, 986 (1st Cir. 1992); Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994); Armstrong v. City of Melvindale, 432 F.3d 695, 700‐01 (6th Cir. 2006); Wollin v. Gondert, 192 F.3d 616, 625 (7th Cir. 1999); Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir. 2006); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003).
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officials “breathing room to make reasonable but mistaken judgments” without dread of potentially disabling liability (internal quotation marks omitted)).
The majority’s novel rule is directly contrary, moreover, to extensive precedent discussing qualified immunity in the particular context of a police officer’s assessment of probable cause to arrest. The legal standard for probable cause is clear – and notably, does not demand that an officer’s assessment that a person is committing an offense be “correct or more likely true than false,” Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion), but only that a “fair probability” of criminality exist, based on all the circumstances, Illinois v. Gates, 462 U.S. 213, 238 (1983). As the Supreme Court has said, however, there are “limitless factual circumstances” that officers must confront when applying the probable cause standard. Saucier, 533 U.S. at 205. Accordingly, even when probable cause is lacking, as judged by a reviewing court, an officer is still entitled to qualified immunity where there is arguable probable cause – where “it was objectively reasonable for the officer to believe that probable cause existed, or . . . officers of reasonable competence could disagree on whether the probable cause test was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted); accord Walczyk, 496 F.3d at 163. Thus, so long as an officer chooses among the “range of responses . . . that competent officers [could] reasonably think are lawful,” then the “officer enjoys qualified immunity for ‘reasonable mistakes.’” Walczyk, 496 F.3d at 154 n.16 (emphases omitted) (quoting Saucier, 533 U.S. at 205).
It is difficult to see how this standard could possibly by deemed unsatisfied, given plaintiffs’ allegations, as supplemented by the incorporated video material and photographic evidence. Each of the plaintiffs in this putative class action, as the
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complaint alleges, was arrested on the roadway of the Brooklyn Bridge – a major route for New York City traffic, wholly obstructed by virtue of the demonstrators’ unpermitted presence. The plaintiffs do not allege (and the video material does not show) that prior to reaching the Brooklyn Bridge, the plaintiffs were marching on roadways with the acquiescence of police. Rather, the plaintiffs were marching on sidewalks. Plaintiffs moved onto the Bridge roadway, as they themselves allege, following fellow demonstrators – demonstrators who, as the video footage shows, linked arms, loudly chanted “Whose streets? Our streets!” and “Take the Bridge!”, and defied police instructions to remain on the sidewalk.
The plaintiffs contend that they did not hear the police instructions and that they believed officers were escorting them over the Bridge.6 They allege, in sum, that they lacked intent. But as we have recognized before (although not today), “because the practical restraints on police in the field are greater with respect to ascertaining intent . . . , the latitude accorded to officers considering the probable cause issue” as it relates to the arrestee’s state of mind “must be correspondingly great.” Zalaski, 723 F.3d at 393 (omission in original) (quoting Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004)) (internal quotation marks omitted)(emphasis added); see also Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000) (an officer’s “judgment call” based on circumstantial evidence as to an offender’s state of mind is entitled to qualified immunity where objectively reasonable, even when the issue is “close enough that
6 As previously noted, however, none of the named plaintiffs allege observing any specific conduct by police at the Bridge that they understood to constitute an invitation to use the Bridge roadway.
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there was the potential of a court subsequently determining that he made the wrong choice”).
Thus, it does not matter whether an officer might reasonably have inferred as to any particular demonstrator that he or she might conceivably lack mens rea so long as the inference of a culpable intent was also reasonable. See Conner v. Heiman, 672 F.3d 1126, 1132 (9th Cir. 2012) (noting in the qualified immunity context that whether an inference of innocent intent “was also reasonable, or even more reasonable, does not matter so long as the [culpable intent] conclusion was itself reasonable”). Similarly, it does not matter whether a particular demonstrator in fact lacked mens rea (and so could not be convicted of disorderly conduct) so long as a reasonable officer could have believed to the contrary.
Here, plaintiffs have failed to allege facts plausibly suggesting that it was anything but reasonable for any officer – named or John Doe – to conclude that each of the plaintiffs on the roadway of the Bridge (among the thousands who did not take to the roadway and were not arrested) was obstructing traffic with “intent to cause public inconvenience” or “recklessly creating a risk thereof.” N.Y. Penal Law § 240.20(5). The majority has no persuasive argument showing that as a matter of clearly established law about which all reasonably competent officers would agree, police officers should have realized they were acting unconstitutionally in making arrests. Stripping the complaint of rhetoric and conclusions unsupported by factual assertions, the named plaintiffs allege nothing more than that Captain Jaskaran’s bullhorn was not loud enough to be heard by them and that police had earlier assisted demonstrators in crossing against the light. Simply put, these meager allegations are insufficient to draw into question the defendants’ arguable probable
25

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cause. Accordingly, the defendants are presently entitled to qualified immunity, and this complaint should be dismissed.
Finally, it is telling that the majority’s response to my dissent turns its treatment of qualified immunity from bad to worse. Not only does the majority – contrary to Second Circuit precedent – assert that officers must be denied qualified immunity at the motion to dismiss stage even if, based on the plaintiffs’ allegations, officers of reasonable competence could disagree about the constitutionality of an arrest, the majority now also resurrects a subjective intent element that officers must satisfy before they can be afforded immunity. The majority asserts that these defendants will be entitled to qualified immunity, if at all, only after they show “what reasoning process they followed[,] . . . why [they] chose to retreat onto the bridge, and what if anything they intended to convey.” Maj. Op. 27. This is an attempt, sub silentio, to turn back the clock on qualified immunity law. Previously, courts applied a subjective component to the qualified immunity test, but in Harlow, the Supreme Court excised this subjective inquiry and defined “the limits of qualified immunity essentially in objective terms.” Harlow, 457 U.S. at 819. The Court did so in order to ensure that qualified immunity could be decided earlier in the course of the litigation. See id. at 817‐18. Following Harlow, the Supreme Court has held that “[e]vidence concerning the defendant’s subjective intent is simply irrelevant to [the qualified immunity] defense.” Crawford‐El v. Britton, 523 U.S. 574, 588 (1998); see also Anderson, 483 U.S. at 641 (noting, in context of assessing whether officer was entitled to qualified immunity in connection with a search, that “subjective beliefs about the search are irrelevant.”). The majority’s decision also contravenes this long‐settled Supreme Court precedent.
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* * * The majority has failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (reiterating the “importance of resolving immunity questions at the earliest possible stage in litigation”). The majority attempts to weave “Rashomon‐like” complexity into the question whether police officers had probable cause to arrest unpermitted demonstrators who were wholly obstructing traffic on the Brooklyn Bridge. But this is, in fact, a simple case. The plaintiffs have alleged neither “violation of [any] clearly established . . . right,” Wood, 134 S. Ct. at 2066, nor objectively unreasonable conduct by police. In such circumstances, this complaint should be dismissed. I fear that, over time, the majority’s “Rashomon‐like” interpretation of Cox will prove a poor instrument, indeed, for micromanaging, through threat of class action liability, the sensitive function of policing large demonstrations. Indeed, by unwarrantedly exposing these officers to the costs of class action litigation for arresting unpermitted demonstrators who had blocked all traffic on the Brooklyn Bridge (and on the theory that police officers’ earlier, successful efforts to shepherd thousands safely through New York’s downtown imposed on police unanticipated constitutional constraints), the majority makes more difficult the judicious use of discretion in policing large crowds. This decision will thus frustrate, not further, the work of police attempting to facilitate peaceful demonstrations while ensuring both the safety of demonstrators and those among whom demonstrations are staged.
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Case: 12-2634 Document: 86 Page: 28 08/21/2014 1300611 28 As the Supreme Court has said, qualified immunity “balances two important
interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231. The plaintiffs have alleged no irresponsible conduct by these police officers and the majority has struck the balance badly, depriving these officers of qualified immunity absent any basis in clearly established law and in circumstances in which it is impossible to conclude that an officer could not reasonably believe that his conduct was lawful. For this reason, I respectfully dissent.
28

 
 l' fl"J.{:··:c. ~ ~i°l'1Y Case 1:11-cv-06957-JSR Document 44 Filed 09/10/15 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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KARINA GARCIA, ET AL.,

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Plaintiffs,

ll-cv-6957(JSR)

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MEMORANDUM ORDER

MICHAEL BLOOMBERG, et al.,

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

JED S. RAKOFF, U.S.D.J.

Plaintiffs filed this purported class action against the City of New York, former Mayor Michael R. Bloomberg, former Commissioner of
the New York City Police Department ("NYPD") Raymond w. Kelly, former
NYPD Chief Joseph A. Esposito and several NYPD officers. Plaintiffs alleged that defendants are liable under 42 U.S.C. §1983 and New York state law for falsely arresting them for marching on the vehicular roadway of the Brooklyn Bridge (the "Bridge"). Plaintiffs now seek leave to file a proposed Third Amended Complaint ("TAC"). Because plaintiffs' proposed new allegations do not cure the defects of their Second Amended Complaint, the Court denies this request.
By way of background, plaintiffs were arrested on October 1, 2011, during an unpermitted march from Zuccotti Park in Manhattan over the Bridge to Brooklyn. Because the Bridge's pedestrian walkway could not fit enough people, marchers began walking over the Bridge's vehicular roadway. Some believed that the police had tacitly given them permission to do so: although the police initially blocked the

Case 1:11-cv-06957-JSR Document 44 Filed 09/10/15 Page 2 of 9
roadway, the police later began walking along it in front of the marchers. Once the police and the marchers had gone midway across the Bridge, the police halted the marchers' progress, blocked egress from the Bridge, and arrested the marchers on the roadway.
Against these facts, this Court denied, in part, defendants' motion to dismiss plaintiffs' Second Amended Complaint, holding that the individual NYPD officers were not entitled to qualified immunity. See Garcia v. Bloomberg, 865 F. Supp. 2d 478 (S.D.N.Y. 2012) ("Garcia I"). On appeal, a panel of the United States Court of Appeals for the Second Circuit initially affirmed; but then, after the Court as a whole had decided to hear the matter in bane, the panel withdrew its initial affirmance, and reversed and remanded, with instructions to dismiss the Second Amended Complaint. See Garcia v. Does, 774 F.3d 168 (2d Cir. 2014) ("Garcia II"); Garcia v. Does, 779 F.3d 84 (2d Cir. 2014) ("Garcia III").
The TAC does contain some new allegations, most of which relate to Chief Esposito. Several of these new allegations concern the events of October 1, 2011. For instance, the TAC identifies Chief Esposito as the ranking police officer at the march. TAC ~~ 65, 149. He was also one of the officers who walked on the Bridge's roadway ahead of the marchers. Id. ~ 122. On the Bridge, Esposito came to the conclusion that the police would have to arrest the marchers. Id. ~
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129. He called Commissioner Kelly and advised him that the NYPD would probably arrest the marchers. Id. 204-06, 216. Kelly approved the mass arrest, and Esposito later gave the order to arrest the marchers. Id. ~~ 65, 208, 213. The TAC further alleges Esposito admitted that he erred in not using police resources like scooters or mesh to block marchers from accessing the roadway. Id. ~~ 88, 93 133.
Other new allegations concern the command and decisionmaking structures of the NYPD, but again focusing on Esposito. For instance, the TAC alleges that Esposito had control over the Civil Disorder Unit, which responded to major protests such as the Occupy Wall Street movement. Id. ~~ 219-21. He did not need to check with Kelly before exercising control over the Civil Disorder Unit. Id. ~~ 222. Esposito also issued "Chief of Department memos" that established department-wide policy and were not required to be approved by Kelly. Id. ~~ 225-28. In September 2011, Kelly and Esposito discussed Occupy Wall Street marches occurring without permits. TAC~ 234. They determined that the NYPD would allow unpermitted Occupy Wall Street marches to occur, even if this resulted in marchers using roadways in a manner that would ordinarily be prohibited. Id. ~~ 240-42.
With the TAC's new allegations in mind, the Court considers plaintiffs' motion for leave to amend. "A party may amend its pleading . . with the court's leave." Fed. R. Civ. P. 15(a) (2)
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Although a court should freely give leave to amend when justice so requires, id., it is proper for the court to deny leave when the amendments would be futile. Hunt v. Alliance N. A. Gov't Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998). In particular, "if the claims would be subject to dismissal under Fed. R. Civ. P. 12(b) (6), the court should refuse to grant leave to amend rather than assent and then await a motion to dismiss." Bank of New York v. Sasson, 786 F. Supp. 349, 352 (S.D.N.Y. 1992). Accordingly, this Court reviews the TAC, in the light most favorable to plaintiffs, to determine whether it would survive a motion to dismiss.
On a motion to dismiss under Rule 12(b) (6), a court must determine whether a complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For the purpose of the present motion, the Court considers the TAC; the parties' briefing, as well as the attached exhibits to the extent they refer to matters referenced in the TAC, such as excerpts of Esposito's deposition testimony in Laugier v. City of New York, No. 1:13-cv06171-JMF, 2014 WL 6655283 (S.D.N.Y. Dec. 17, 2014), and Sterling v. City of New York, No. 1:12-cv-07086-RWS (S.D.N.Y. May 14, 2015); and the photographs and videos submitted with or incorporated into
4

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plaintiff's Second Amended Complaint. 2 The Court takes as true the facts alleged in the TAC, Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d Cir. 2007), so long as they are not contradicted by video evidence. Garcia III at 87-88.

The Court first considers plaintiffs' claims of municipal

liability under 42 U.S.C. § 1983. "Local governing bodies .

can

be sued directly under § 1983 for monetary, declaratory, or

injunctive relief where .

the action that is alleged to be

unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated

by that body's officers." Monell v. Dep't of Soc. Servs., 436 U.S.

658, 690 (1978) (footnote omitted). A plaintiff may assert municipal

liability claims under Monell even if individual municipal actors are

entitled to qualified immunity. See Askins v. Doe No. 1, 727 F.3d

248, 254 (2d Cir. 2013). However, because Monell does not provide a

separate cause of action but rather extends the liability of

individual municipals actors to the municipality, if a plaintiff

cannot show she has been a victim of a tort committed by municipal

actors, the municipality cannot be held liable. Id. at 253. Here, if

2 The Court may consider the videos and photographic evidence. Garcia III at 87 n.2; Garcia I at 483 n.1; see also Pls.' Mem. at 9 (explaining that plaintiffs intend the TAC to incorporate video and multimedia exhibits) .
5

Case 1:11-cv-06957-JSR Document 44 Filed 09/10/15 Page 6 of 9
plaintiffs cannot show that they were falsely arrested, then they cannot established municipal liability.
Plaintiffs have failed to plausibly allege that they were falsely arrested. The Second Circuit generally looks to the law of the state in which the arrest occurred when analyzing § 1983 claims for false arrest. Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). "Under New York law, the existence of probable cause is an absolute defense to a false arrest claim." Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). The Second Circuit has already held that, in this case, the police had "sufficient evidence to establish probable cause on each of the elements of a disorderly conduct violation." Garcia III at 92. 3 Moreover, the Second Circuit held that the interactions between the police and the marchers, including any alleged grant of permission to march on the Bridge, were so ambiguous as to not displace this finding of probable cause. Id. at 96. According to the Second Circuit, the officers did not behave unlawfully. Id.
3 This holding forecloses plaintiffs' argument that they did not violate the disorderly conduct statute because the intent element was missing. Pls.' Reply Mem. at 3-4. Plaintiffs' argument that Esposito's knowledge of a police escort on the Bridge negates the marchers' intent lacks merit. An arresting officer's knowledge does not alter an arrestee's intent.
6

Case 1:11-cv-06957-JSR Document 44 Filed 09/10/15 Page 7 of 9
These findings nip plaintiffs' municipal liability claims in the bud. None of the additional allegations in the TAC contradicts the Second Circuit's findings. The TAC's new material primarily concerns Esposito's authority, decisionmaking processes, and communications with Kelly. But the deliberations of the NYPD's command officers have no bearing on the Second Circuit's finding that the police had probable cause to arrest the marchers. It is true that the TAC does allege that police officers conveyed permission to march between Zuccotti Park and the Bridge. TAC ~~ 82-85. It also alleges that officers escorted marchers onto the roadway in a manner reasonably interpreted as a grant of permission to use the roadway. Id. ~~ 14548. But the Second Circuit held that these circumstances, similarly alleged by the Second Amended Complaint, were insufficient to defeat qualified immunity. Garcia III at 96. Further allegations of limited permission earlier in the march or implied permission on the roadway are not sufficient to override this conclusion.
Plaintiffs' legal arguments that the Second Circuit's holding does not apply to their municipal liability claims also fail. Plaintiffs argue that the Second Circuit did not adjudicate whether their constitutional rights were violated but only addressed the qualified immunity issue. Pls.' Reply Mem. at 4. It is true that the ultimate issue on appeal was whether the individual NYPD officers were entitled to qualified immunity. However, to reach its
7

Case 1:11-cv-06957-JSR Document 44 Filed 09/10/15 Page 8 of 9
conclusion, the Second Circuit repeatedly made clear that its analysis applied to the law of probable cause, as well as the law of qualified immunity. Garcia III at 96. Plaintiffs and this Court are bound by the Second Circuit's holdings on probable cause and, consequently, its impact on municipal liability under Monell. 4
The TAC's assertions of individual liability under§ 1983 are futile for the same reasons. The TAC does not state new allegations that would permit the Court to hold that arguable probable cause did not exist. Plaintiffs only vaguely argue that Kelly and Esposito's conduct "could be factors that contribute to a loss of qualified immunity," Pls.' Reply Mem. at 1, but do not explain how the new allegations overcome the Second Circuit's reasoning.
The Second Circuit's holdings on probable cause also lead the court to conclude that the TAC's state law claims for false arrest, negligence, gross negligence, and negligent supervision are futile. TAC~ 309-13. "Under New York law, the existence of probable cause is an absolute defense to a false arrest claim." Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006). Moreover, in New York, courts do not recognize a "negligent" false arrest claim. See Rheingold v. Harrison
4 Because Garcia III binds this Court on the issue of probable cause, the Court does not reach the question of whether the TAC's new material would change the holding in Garcia I that plaintiffs failed to adequately plead municipal liability under Monell.
8

Case 1:11-cv-06957-JSR Document 44 Filed 09/10/15 Page 9 of 9

Town Police Dep't, 568 F. Supp. 2d 384, 395 n.3 (S.D.N.Y. 2008) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) ("Under New York law, a plaintiff may not recover under general negligence principles for a claim that law enforcement officers failed to exercise the appropriate degree of care in effecting an arrest or initiating a prosecution.")).

For the foregoing reasons, the Court concludes that plaintiffs' proposed amendments are futile and denies their motion for leave to amend. The Clerk of the Court is directed to enter final judgment dismissing the complaint with prejudice and to close the case in its entirety.

SO ORDERED.

Dated:

New York, NY
September c:::f_, 2015

9

 
 CaCseas1e:1112-c-2v6-03649, 5D7o-cJuSmRenDt o1c2u2m, 0e2n/t2344/20F1i5le,d140424/2442/21,5PaPgaeg1eo1f 2o5f 25

12‐2634‐cv Garcia v. Jane & John Does

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED:F_e_b_r_u_a_ry__24_,_2_0_1_5_

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

N.Y.S.D. Case # 11-cv-6957(JSR)

August Term, 2012

(Argued: April 22, 2013 Decided: August 21, 2014

Rehearing Filed: December 18, 2014

Amended: February 23, 2015)

Docket No. 12‐2634‐cv

KARINA GARCIA, as Class Representative on behalf of herself and others similarly situated, YARI OSORIO, as Class Representative on behalf of herself and others
similarly situated, BENJAMIN BECKER, as Class Representative on behalf of himself and others similarly situated, CASSANDRA REGAN, as Class Representative on behalf of herself and others similarly situated, YAREIDIS PEREZ, as Class
Representative on behalf of herself and others similarly situated, TYLER SOVA, as Class Representative on behalf of himself and others similarly situated,
STEPHANIE JEAN UMOH, as Class Representative on behalf of herself and others similarly situated, MICHAEL CRICKMORE, as Class Representative on behalf of himself and others similarly situated, BROOKE FEINSTEIN, as Class Representative
on behalf of herself and others similarly situated,
Plaintiffs‐Appellees,
MARCEL CARTIER, as Class Representative on behalf of himself and others similarly situated,
Plaintiff,

CERTIFIED COPY ISSUED ON 02/24/2015

CaCseas1e:1112-c-2v6-03649, 5D7o-cJuSmRenDt o1c2u2m, 0e2n/t2344/20F1i5le,d140424/2442/21,5PaPgaeg2eo2f 2o5f 25
— v. — JANE AND JOHN DOES 1‐40, individually and in their official capacities,
Defendants‐Appellants, RAYMOND W. KELLY, individually and in his official capacity, CITY OF NEW YORK,
MICHAEL R. BLOOMBERG, individually and in his official capacity, Defendants.*
B e f o r e: CALABRESI, LIVINGSTON, and LYNCH, Circuit Judges. __________________
Defendants‐appellants, New York Police Department officers, appeal from an order of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) denying their motion pursuant to Rule 12(b)(6) to dismiss plaintiffs‐appellees’ complaint against them on qualified immunity grounds. Defendants argue that the district court erred in concluding that plaintiffs’ complaint, and other materials that could properly be considered on a motion to dismiss for failure to state a claim, did not establish that defendants had arguable
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.
2

CaCseas1e:1112-c-2v6-03649, 5D7o-cJuSmRenDt o1c2u2m, 0e2n/t2344/20F1i5le,d140424/2442/21,5PaPgaeg3eo3f 2o5f 25
probable cause to arrest plaintiffs for disorderly conduct. On August 21, 2014, we issued an opinion affirming the district court’s judgment. On December 17, 2014, this opinion was withdrawn. On appellants’ petition for rehearing, we now grant the petition, reverse the judgment of the district court, and remand with instructions to dismiss the complaint.
REVERSED.
MARA VERHEYDEN‐HILLIARD (Andrea Hope Costello and Carl Messineo, on the brief), Partnership for Civil Justice Fund, Washington, D.C., for Plaintiffs‐Appellees. RONALD E. STERNBERG, Assistant Corporation Counsel (Leonard Koerner and Arthur G. Larkin, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Defendants‐Appellants.
GERARD E. LYNCH, Circuit Judge: Plaintiffs‐appellees, participants in a demonstration who were arrested
after a confrontation with police at the Manhattan entrance to the Brooklyn Bridge, brought this action for false arrest in violation of their First, Fourth, and Fourteenth Amendment rights. Defendant‐appellant police officers appeal from
3

CaCseas1e:1112-c-2v6-03649, 5D7o-cJuSmRenDt o1c2u2m, 0e2n/t2344/20F1i5le,d140424/2442/21,5PaPgaeg4eo4f 2o5f 25
a ruling of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) denying their motion to dismiss the complaint pursuant to Rule 12(b)(6) on grounds of qualified immunity. By a divided vote, we initially affirmed the district court’s judgment. On December 17, 2014, the Court entered an order granting appellants’ petition for rehearing en banc and withdrawing our prior opinion. On appellants’ petition for rehearing, we now conclude that appellants are entitled to qualified immunity. Accordingly, we GRANT the petition for rehearing, REVERSE the judgment below, and REMAND the case with instructions to dismiss the complaint.
BACKGROUND Plaintiffs brought this action for false arrest under 42 U.S.C. § 1983 following their arrests during a demonstration in support of the Occupy Wall Street movement.1 Plaintiffs attached five video excerpts and nine still photographs as exhibits to the Second Amended Complaint (the “Complaint”), which we consider when deciding this appeal. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). We also consider videos submitted by defendants, which plaintiffs concede are similarly incorporated into the
1 Although plaintiffs bring their suit as a putative class action, no class has been certified. Accordingly, we address only the claims made by the ten named plaintiffs.
4

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Complaint by reference.2 For purposes of this appeal, we take as true the facts set forth in the Complaint, see Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d Cir. 2007), to the extent that they are not contradicted by the video evidence. I. The Protest and Plaintiffs’ Arrests
On October 1, 2011, thousands of demonstrators marched through Lower Manhattan to show support for the Occupy Wall Street movement. The march began at Zuccotti Park in Manhattan and was to end in a rally at Brooklyn Bridge Park in Brooklyn. Although no permit for the march had been sought, the New York City Police Department (“NYPD”) was aware of the planned event in advance, and NYPD officers escorted marchers from Zuccotti Park to the Manhattan entrance to the Brooklyn Bridge (the “Bridge”), at times flanking the marchers with officers on motorscooters or motorcycles. Those officers issued orders and directives to individual marchers, at times directing them “to proceed in ways ordinarily prohibited under traffic regulations absent police directive or permission.” J. App’x at 165. The officers blocked vehicular traffic at some intersections and on occasion directed marchers to cross streets against traffic signals. As far as appears from the video excerpts, neither the demonstration nor the actions of the officers in controlling or facilitating it caused any significant
2 We have never addressed whether Fed. R. Civ. P. 10(c), which provides that a “written instrument” included as an exhibit to a pleading “is a part of the pleading for all purposes,” extends to videos of the sort presented in this case. Because no party contests the inclusion of the videos in the Court’s review of the Complaint, however, we have no occasion to reach that issue here.
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disruption of ordinary traffic patterns during this stage of the march. When the march arrived at the Manhattan entrance to the Bridge, the first
marchers began funneling onto the Bridge’s pedestrian walkway. Police, including command officials, and other city officials stood in the roadway entrance to the Bridge immediately south of the pedestrian walkway and, at least at first, watched as the protesters poured across Centre Street towards the Bridge. A bottleneck soon developed, creating a large crowd at the entrance to the Bridge’s pedestrian walkway. While video footage suggests that the crowd waiting to enter the pedestrian walkway blocked traffic on Centre Street, defendants do not contend that they had probable cause to arrest plaintiffs for their obstruction of traffic at that point, as opposed to their later obstruction of traffic on the Bridge roadway. Indeed, plaintiffs alleged in their Complaint that the police themselves stopped vehicular traffic on Centre Street near the entrance to the Bridge3 before the majority of the marchers arrived at the entrance.
While a steady stream of protesters continued onto the walkway, a group of protesters stopped and stood facing the police on the ramp constituting the vehicular entrance to the Bridge at a distance of approximately twenty feet. By this time, a large crowd of demonstrators had pooled behind that lead group. Given the size and density of the crowd, it would clearly have been impossible for vehicles to enter the bridge using the ramp at that location. Some of the
3 There are three eastbound entry ramps to the Bridge on the Manhattan side. The ramp referred to here is the northernmost ramp.
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protesters began chanting “Take the bridge!” and “Whose streets? Our streets!” At this point, all the video evidence confirms that the march had divided; one group was proceeding across the Bridge via the pedestrian walkway, while a second group had moved onto the vehicular roadway, where they were blocked by a line of police.4
An officer on the vehicular ramp stepped forward with a bullhorn and made an announcement. In the video taken by the NYPD’s Technical Assistance Response Unit, the officer can clearly be heard repeating several times into the bullhorn: “I am asking you to step back on the sidewalk, you are obstructing traffic.” Plaintiffs allege that these statement were “generally inaudible,” J. App’x at 166, and the video excerpts they have provided are consistent with that allegation. Two minutes later the same officer announced into the bullhorn: “You are obstructing vehicular traffic. If you refuse to move, you are subject to arrest,” and “If you refuse to leave, you will be placed under arrest and charged with disorderly conduct.” While it is clear that at least some marchers at the front of the crowd heard this announcement, plaintiffs allege that the officers knew that their warnings or orders to disperse would not have been audible to
4 Although this division was clear at the front of the march, additional demonstrators were backed up behind the divided lead groups. The pedestrian walkway was crowded, and the group on the vehicular roadway was blocked by police, creating a bottleneck such that some demonstrators were not clearly part of either group.
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the vast majority of those assembled. There was considerable noise and confusion at the scene.
A minute and a half after the second announcement, the officers and city officials in the lead group turned around and began walking unhurriedly onto the Bridge roadway with their backs to the protesters. The protesters began cheering and followed the officers onto the roadway in an orderly fashion about twenty feet behind the last officer. The protesters on the roadway then encouraged those on the pedestrian walkway to “come over,” and the videos show several protesters jumping down from the pedestrian walkway onto the roadway, though for the most part the marchers on the pedestrian walkway continued their progress on the walkway and did not enter the vehicular lanes. Protestors initially walked up the Bridge via the first (northernmost) entry ramp, but they eventually blocked the second and third ramps as well and occupied all of the Bridge’s eastbound traffic lanes, preventing any cars from moving onto the Bridge in that direction.
Midway across the Bridge, the officers in front of the line of marchers turned and stopped all forward movement of the demonstration. An officer announced through a bullhorn that those on the roadway would be arrested for disorderly conduct. Plaintiffs allege that this announcement was also inaudible. Officers blocked movement in both directions along the Bridge roadway and “prevented dispersal through the use of orange netting and police vehicles.” J. App’x at 173. The officers then methodically arrested over seven hundred people
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who were on the Bridge roadway. These individuals were “handcuffed, taken into custody, processed and released throughout the night into the early morning hours.” J. App’x at 174.
Plaintiffs allege that the officers “led the march across the bridge,” and that the marchers saw the officers’ movement onto the roadway as an “actual and apparent grant of permission to follow.” J. App’x at 168. They allege that the combination of those officers in front “leading” the protesters onto the roadway and the officers on the side escorting them along the roadway led them to believe that the NYPD was escorting and permitting the march to proceed onto the roadway, as it had escorted and permitted the march through Lower Manhattan earlier in the day.
Officers at the roadway entrance did not instruct the ongoing flow of marchers not to proceed onto the roadway. Other officers walked calmly alongside the protesters on the roadway and did not direct any protesters to leave the roadway. The named plaintiffs allege that they did not hear any warnings or orders not to proceed on the roadway, and understood their passage onto the Bridge roadway to have been permitted by the police.5 Nevertheless, plaintiffs do not allege that any officer explicitly stated that the marchers would be permitted to advance along the vehicular lanes of the Bridge. Nor does any
5 While one plaintiff, Cassandra Regan, acknowledges that she was told to leave the roadway, she alleges that the warning was given only after defendants had blocked off the roadway and no exit was possible.
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plaintiff allege that he or she observed any officer beckon to the demonstrators or state by word or gesture that they were welcome to proceed. The Complaint’s allegation that the police had given “actual and apparent permission of the march to proceed,” J. App’x at 173, is a legal conclusion based entirely on inferences drawn from (a) the officers’ having followed along the course of the march before the arrival at the Bridge without interfering with, and occasionally facilitating, minor breaches of traffic rules; (b) the officers’ retreat from their initial location blocking the protesters’ advance onto the Bridge roadway after the bullhorn announcement to disperse; and (c) the failure of officers walking in front of the demonstrators or alongside them as they progressed across the Bridge to repeat any warnings, until the ultimate commencement of the arrests. II. District Court Proceedings
Plaintiffs sued the unidentified NYPD officers who participated in their arrests,6 as well as Mayor Michael R. Bloomberg, Police Commissioner Raymond W. Kelly, and the City of New York, alleging that the arrests violated plaintiffs’ rights under the First, Fourth, and Fourteenth Amendments. Defendants moved to dismiss plaintiffs’ Second Amended Complaint on qualified immunity grounds and pursuant to Monell v. Department of Social Services, 436 U.S. 658
6 Eleven of these 40 John and Jane Does have since been identified and their names have replaced “John/Jane Does ## 1‐11” in the caption of the district court proceedings. When the Complaint was filed and the relevant district court opinion was issued, however, none of the NYPD officers who participated in the arrests had been identified.
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(1978), arguing, in part, that the Complaint and the videos demonstrate that they
had probable cause to arrest plaintiffs for disorderly conduct.7
The district court denied the motion to dismiss the claims against the
individual officers and granted the motion to dismiss the claims against the City,
Bloomberg, and Kelly.8 Garcia v. Bloomberg, 865 F. Supp. 2d 478 (S.D.N.Y. 2012).
The district court held that the allegations in the Complaint, if true, established
that a reasonable officer would have known that he did not have probable cause
to arrest plaintiffs. The district court further held that while plaintiffs had clearly
violated the law by entering the Bridge roadway and blocking vehicular traffic,
based on the facts alleged, no reasonable police officer could believe that
plaintiffs had received fair warning that their behavior was illegal, as required by
law. The district court concluded that while New York’s disorderly conduct
7 While defendants initially arrested many of the plaintiffs for failure to obey a lawful order, the offense that an officer cites at the time of the arrest need not be the same as, or even “closely related” to, the offense that the officer later cites as probable cause for the arrest. See Devenpeck v. Alford, 543 U.S. 146, 154‐ 55. Defendants now argue that plaintiffs engaged in disorderly conduct, defined to include the conduct of, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] . . . obstruct[ing] vehicular or pedestrian traffic.” N.Y. Penal Law § 240.20(5). While defendants argued before the district court that they also had probable cause to arrest plaintiffs for marching without a permit in violation of New York City Administrative Code § 10‐110(a), defendants have abandoned that argument on appeal.
8 Plaintiffs argued that the City of New York maintains a policy, practice, and/or custom of trapping and arresting peaceful protesters without probable cause. The district court held that plaintiffs had not plausibly alleged any such policy, practice, or custom. That interlocutory ruling is not before us, and we have no occasion to address its merits.
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statute would normally have given protesters fair warning not to march on the roadway, it did not do so here, where defendants, who had been directing the march along its entire course, seemed implicitly to sanction the protesters’ movement onto the roadway.9
Defendants now appeal the denial of their motion to dismiss on qualified immunity grounds, arguing that under the circumstances, “an objectively reasonable police officer would not have understood that the presence of police officers on the Bridge constituted implicit permission to the demonstrators to be on the Bridge roadway in contravention of the law.”10 Appellants’ Br. at 3.
DISCUSSION I. Appellate Jurisdiction
We have jurisdiction over an appeal from a district court’s denial of qualified immunity at the motion to dismiss stage because “qualified immunity – which shields Government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional
9 The district court stressed that its conclusion did “not depend in any way on a finding that the police actually intended to lead demonstrators onto the bridge.” Garcia, 865 F. Supp. 2d at 491 n.9. Indeed, the court considered it far more likely that defendants had decided to move the protesters to a point where they believed they could better control them than that defendants had orchestrated a “charade” to create a pretense for arrest. Id.
10 Defendants also moved to dismiss plaintiffs’ claims for failure to state a claim and for failure to properly notify the City of the claims. Defendants do not appeal the denial of those motions.
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rights – is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (citation and internal quotation marks omitted). “Provided it turns on an issue of law,” a denial of qualified immunity is a final reviewable order because it “conclusively determine[s] that the defendant must bear the burdens of discovery; is conceptually distinct from the merits of the plaintiff’s claim; and would prove effectively unreviewable on appeal from a final judgment.” Id. (internal quotation marks omitted) (alteration in original); see also Locurto v. Safir, 264 F.3d 154, 164 (2d Cir. 2001) (noting that “denials of immunity are conclusive with regard to a defendant’s right to avoid pre‐trial discovery, so long as the validity of the denial of the qualified immunity defense can be decided as a matter of law in light of the record on appeal”) (emphasis in original). II. Standard of Review
We review a district court’s denial of qualified immunity on a motion to dismiss de novo, “accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs’ favor.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001). III. Qualified Immunity
“Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of
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Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted); see also Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.”) (internal quotation marks omitted). Defendants bear the burden of establishing qualified immunity. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013). Although we generally “look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right,” Okin v. Vill. of Cornwall‐On‐Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009), the “absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established” so long as preexisting law “clearly foreshadow[s] a particular ruling on the issue,” Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (internal quotation marks omitted).
An officer is entitled to qualified immunity against a suit for false arrest if he can establish that he had “arguable probable cause” to arrest the plaintiff. Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (internal quotation marks omitted). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Id., quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “In deciding whether an officer’s conduct was objectively reasonable . . . , we look to the
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information possessed by the officer at the time of the arrest, but we do not consider the subjective intent, motives, or beliefs of the officer.” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (internal quotation marks omitted). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
Under both federal and New York law, an officer “has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d. Cir. 2010) (internal quotation marks omitted); see also Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (holding that a police officer has probable cause to arrest when the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense”). IV. What Reasonable Police Officers Would Have Understood
It is not subject to serious dispute that the defendants in this case had, from their personal observations, sufficient evidence to establish probable cause on each of the elements of a disorderly conduct violation. As noted above, that
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offense includes the conduct of, “with intent to cause public inconvenience, . . . or recklessly creating a risk thereof[,] . . . obstruct[ing] vehicular or pedestrian traffic.” N.Y. Penal Law § 240.20(5). Plaintiffs were part of a large group that had gathered on a vehicular ramp approaching the Bridge and on the street behind it, locations generally reserved for vehicular traffic, making it impossible for vehicles to proceed. They do not challenge the conclusion that it would be reasonable for a police officer to infer that plaintiffs either intended to block traffic on the Bridge as part of their protest, or at a minimum were aware of a “substantial and unjustifiable risk” that they were doing so. See N.Y. Penal Law § 15.05(3) (defining “recklessly”). Rather, they contend that reasonable officers in defendants’ position would also have been aware, or should have been aware, that plaintiffs had a reasonable belief that they had been authorized to cross the Bridge on the vehicular roadway, based on the fact that police officers who had been blocking their progress subsequently retreated and “led the march across the bridge,” which they construed as “an actual and apparent grant of permission to follow.” J. App’x at 168.
We are not concerned with whether plaintiffs’ asserted belief that the officers’ behavior had given them implied permission to violate traffic laws otherwise banning pedestrians from the roadway would constitute a defense to the charge of disorderly conduct; that issue would be presented to a court adjudicating the criminal charges against plaintiffs. Instead, we are faced with the quite separate question of whether any such defense was so clearly
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established as a matter of law, and whether the facts establishing that defense were so clearly apparent to the officers on the scene as a matter of fact, that any reasonable officer would have appreciated that there was no legal basis for arresting plaintiffs. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (an officer is entitled to qualified immunity “if officers of reasonable competence could disagree” on the legality of the action in its particular factual context). We cannot answer that question in the affirmative.
It is well established that a police officer aware of facts creating probable cause to suspect a prima facie violation of a criminal statute is “not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (internal quotation mark omitted); see also Panetta v. Crowley, 460 F.3d 388, 398 (2d Cir. 2006) (“Once an officer has probable cause, he or she is neither required nor allowed to continue investigating, sifting and weighing information.”) (internal quotation marks omitted). At most, probable cause may be defeated if the officer “deliberately disregard[s] facts known to him which establish justification.” Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (emphasis added).
It cannot be said that the officers here disregarded known facts clearly establishing a defense. In the confused and boisterous situation confronting the officers, the police were aware that the demonstrators were blocking the roadway in violation of § 240.20(5). They were also certainly aware that no official had
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expressly authorized the protesters to cross the Bridge via the roadway. To the contrary, the officers would have known that a police official had attempted to advise the protestors through a bullhorn that they were required to disperse. While reasonable officers might perhaps have recognized that much or most of the crowd would be unable to hear the warning due to the noise created by the chanting protesters, it was also apparent that the front rank of demonstrators who presumably were able to hear exhibited no signs of dispersing. The Complaint and videotapes are devoid of any evidence that any police officer made any gesture or spoke any word that unambiguously authorized the protesters to continue to block traffic, and indeed the Complaint does not allege that any of the plaintiffs observed any such gesture.
Plaintiffs rely on the Supreme Court’s decision in Cox v. Louisiana to argue that, in light of their apparent earlier passivity in the face of the march, police officers had to provide the protestors with “fair warning” before changing course and effecting any arrests.11 See 379 U.S. 559, 574 (1965). But the facts of that case
11 Plaintiffs also rely on our holding in Papineau v. Parmley, 465 F.3d 46 (2d Cir. 2006), which denied qualified immunity to officers who arrested peaceful protesters without first giving them “fair warning” through an order to disperse. Id. at 60. Papineau is inapposite, however. In Papineau, plaintiffs were protesting on private property bordering a public highway when a handful of protesters briefly entered the highway to distribute pamphlets. Once all participants were back on the property, police officers entered and began arresting protesters indiscriminately and without advance warning. Id. at 53. Because the protest in Papineau occurred on private property and posed no danger of “imminent harm” at the time of the arrests, id. at 60‐61, plaintiffs
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differ significantly from those at issue here. In Cox, a large group of demonstrators protesting on the street opposite a courthouse were arrested and charged with violating a statute that prohibited “picket[ing] or parad[ing] in or near a building housing a court of the State of Louisiana.” Id. at 560 (emphasis added); see also id. at 564. The Court noted that the statute, while not unconstitutionally vague, was sufficiently “unspecific . . . with respect to the determination of how near the courthouse a particular demonstration can be, [as to] foresee[ ] a degree of on‐the‐spot administrative interpretation by officials charged with responsibility for administering and enforcing it.” Id. at 568. According to the Court, the record “clearly show[ed]” that such on‐the‐spot interpretation had been exercised in Cox to authorize the demonstration. Id. Cox, the leader of the demonstrators, testified to an explicit conversation with police officials in which he had been given “permission” to conduct the demonstration on the far side of the street, some 101 feet from the courthouse steps. Id. at 569‐71. The Chief of Police effectively corroborated that account, as did an independent observer. Id. at 570. As the Supreme Court concluded,
the highest police officials of the city, in the presence of the Sheriff and Mayor, in effect told the demonstrators that they could meet where they did, 101 feet from the courthouse steps, but could not meet closer to the
neither needed permission from the police to engage in that protest nor, absent clear orders to disperse, had any notice that they might be engaging in unlawful conduct. Papineau does not stand for the proposition that police officers must provide “fair warning” before effecting any arrests when individuals are clearly violating an applicable criminal statute.
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courthouse. In effect, [Cox] was advised that a demonstration at the place it was held would not be one ‘near’ the courthouse within the terms of the statute. Id. at 571. On those facts, the Court concluded that convicting the demonstrators of demonstrating near the courthouse violated due process, because the demonstrators were entitled to rely upon the police’s interpretation of the statute, and thus lacked fair warning that they were violating the law. The circumstances in this case are quite different. Unlike the “unspecific” statutory command in Cox, § 240.20(5)’s prohibition against obstructing traffic is hardly vague, and it would have been clear to any person (and certainly to a reasonable police officer) that the protesters were occupying a location where they were not ordinarily permitted to be. Also unlike Cox, there was no explicit consultation between the leaders of the demonstration and the police about what conduct would be permitted. Nor was there any express statement from any police official authorizing the protesters to cross the Bridge on the vehicular roadway, opining that doing so would be lawful, or waiving the enforcement of any traffic regulation. Most importantly, no plaintiff alleges in the Complaint that he or she heard any statement from any police officer authorizing the protestors to cross the Bridge via the vehicular roadway, or observed any unambiguous indication from any police officer inviting the protesters to cross the Bridge in that manner. Nor is any such statement or gesture recorded in the videotapes submitted by the parties and incorporated into the Complaint by reference. Indeed, most of the plaintiffs allege that they did not see anything the
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police officers did, and simply “followed the march” as it proceeded across the Bridge. J. App’x at 171 (quoting plaintiff Garcia). See generally J. App’x at 169‐ 72.
Plaintiffs nevertheless insist that, by ceasing to block the demonstrators’ advance and instead turning and walking toward the Brooklyn side of the Bridge, the officers implicitly gave them permission to proceed. That action, however, is inherently ambiguous. It is certainly true that, by removing themselves from the demonstrators’ path, police “allowed” the protesters to advance, in the sense that they stopped physically blocking them. But such an action does not convey, implicitly or explicitly, an invitation to “go ahead.” The failure of a thin line of police officers to physically impede a large group that – based on the actions of those immediately on the front line – would reasonably be understood to be intent on advancing across the Bridge even absent permission does not suggest that those officers understood that the conduct they had ceased physically blocking was lawful, or had been affirmatively authorized by the police.12
12 Plaintiffs also cite two out‐of‐circuit cases denying qualified immunity to officers who arrested protesters after arguably sanctioning their traffic violations through their own directives. See Vodak v. City of Chicago, 639 F.3d 738, 743‐44 (7th Cir. 2011); Buck v. City of Albuquerque, 549 F.3d 1269, 1283 (10th Cir. 2008).
We have not been altogether unequivocal as to the relevance of out‐of‐ circuit cases in our assessment of whether a right is clearly established for the purposes of qualified immunity. Compare, e.g., Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (“Even if this or other circuit courts have not explicitly held a law
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Even conceding that a majority of police officers would not reasonably
have understood the retreat as inviting the demonstrators to enter the roadway,
plaintiffs suggest that we cannot dismiss the Complaint so long as any officer
who participated in the arrests may reasonably have anticipated some protestors
to reasonably interpret it as such. The essential flaw in plaintiffs’ logic, and in
that of the prior panel opinion, is the extent to which it requires police officers to
engage in an essentially speculative inquiry into the potential state of mind of (at
least some of) the demonstrators. Neither the law of probable cause nor the law
of qualified immunity requires such speculation. Whether or not a suspect
ultimately turns out to have a defense, or even whether a reasonable officer
might have some idea that such a defense could exist, is not the question. See
or course of conduct to be unconstitutional, the unconstitutionality of that law or course of conduct will nonetheless be treated as clearly established if decisions by this or other courts clearly foreshadow a particular ruling on the issue, even if those decisions come from courts in other circuits.”) (internal quotation marks omitted), with Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (“When neither the Supreme Court nor this court has recognized a right, the law of our sister circuits and the holdings of district courts cannot act to render that right clearly established within the Second Circuit.”). But we need not resolve that tension here, because the out‐of‐circuit precedent cited by plaintiffs has not placed the question at issue in this case “beyond debate.” Ashcroft v. al‐Kidd, ___ U.S. ___, 131 S. Ct. 2074, 2083 (2011) (“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”). Extending Cox beyond its due process holding, and agreeing on neither the constitutional right at stake nor its contours, Vodak and Buck – even assuming arguendo that their holdings might otherwise be relevant in the specific factual context of this case – do not foreshadow the law of which a reasonable officer in this circuit should be aware.
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Curley, 268 F.3d at 70 (refusing to require officers “to explore and eliminate every theoretically plausible claim of innocence before making an arrest”) (internal quotation mark omitted). An officer still has probable cause to arrest, and certainly is entitled to qualified immunity, so long as any such defense rests on facts that are so unclear, or a legal theory that is not so clearly established, that it cannot be said that any reasonable officer would understand that an arrest under the circumstances would be unlawful. Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2093 (2012); see also Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 1244 (2012) (qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments”) (internal quotation marks omitted).
On the face of the Complaint, the officers were confronted with ambiguities of fact and law. As a matter of fact, the most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.
23

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As a matter of law, Cox establishes that, under some circumstances, demonstrators or others who have been advised by the police that their behavior is lawful may not be punished for that behavior. The extent of that principle is less than clear, and we need not decide here how far it might extend. It is enough to say that no clearly established law would make it “clear to a reasonable officer,” Saucier, 533 U.S. at 202, that it would be unlawful to arrest individuals who were in prima facie violation of a straightforward statutory prohibition because those individuals may have believed, based on inferences drawn from ambiguous behavior by the police, that they were authorized to violate the statute. V. The Procedural Posture of the Case
Finally, plaintiffs argue that the Complaint may not be dismissed on the pleadings on qualified immunity grounds. It is certainly true that motions to dismiss a plaintiff’s complaint under Rule 12(b)(6) on the basis of an affirmative defense will generally face a difficult road. When addressing a motion to dismiss a complaint, we “accept[ ] as true the material facts alleged in the complaint and draw[ ] all reasonable inferences in plaintiffs’ favor.” Johnson, 239 F.3d at 250. To survive such a motion, the complaint must simply “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
24

CaCseas1e:1112-c-2v6-03649, 5D7o-cJuSmRenDt o1c2u2m, 0e2n/t2344/20F1i5le,d140424/2442/21,5PaPgaeg2e52o5f 2o5f 25
But that does not mean that qualified immunity can never be established at the pleading stage. To the contrary, every case must be assessed on the specific facts alleged in the complaint. The Supreme Court has made clear that qualified immunity can be established by the facts alleged in a complaint, see Wood v. Moss, ___ U.S. ___, 134 S. Ct. 2056 (2014), and indeed, because qualified immunity protects officials not merely from liability but from litigation, that the issue should be resolved when possible on a motion to dismiss, “before the commencement of discovery,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), to avoid subjecting public officials to time consuming and expensive discovery procedures. In this case, the facts alleged in the Complaint, and those depicted in the videos, do not bear out plaintiffs’ legal conclusion that the officers’ actions constituted “an actual and apparent grant of permission” to the demonstrators to utilize the roadway. J. App’x at 168. Still less do those facts plausibly describe a situation in which reasonable officers would have clearly understood that their actions were interpreted by the demonstrators as a grant of permission, such that arresting the demonstrators would violate clearly established law. Accordingly, dismissal of the Complaint is required.
CONCLUSION For the foregoing reasons, the defendants’ petition for rehearing is GRANTED, the judgment of the district court is REVERSED, and the case is REMANDED with instructions to dismiss the Complaint.
25

 
 CaCsCaeas1se:e1115-5-c3-v31-1101363,9,D5D7o-ocJcuSumRmeennDt t8o85c8-u1,m,1e11n0/0t/1443/72/2001F16il6,e,1d19180180/2089437/19,6,PPaaPggeae1g1eoof1f9o9f 9

MANDATE 15-3113-cv Karina Garcia, et al. v. Michael R. Bloomberg, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

N.Y.S.D. Case # 11-cv-6957(JSR)

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of October, two thousand sixteen.

USDC SDNY

PRESENT:

GERARD E. LYNCH, CHRISTOPHER F. DRONEY,
Circuit Judges, CHRISTINA REISS,
Chief District Judge.

DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: N__o_ve_m__b_e_r _4_, _2_0_1_6

----------------------------------------------------------------------

KARINA GARCIA, AS CLASS REPRESENTATIVE ON BEHALF

OF HERSELF AND OTHERS SIMILARLY SITUATED, YARI

OSORIO, AS CLASS REPRESENTATIVE ON BEHALF OF

HERSELF AND OTHERS SIMILARLY SITUATED, BENJAMIN

BECKER, AS CLASS REPRESENTATIVE ON BEHALF OF

HIMSELF AND OTHERS SIMILARLY SITUATED, CASSANDRA

REGAN, AS CLASS REPRESENTATIVE ON BEHALF OF

HERSELF AND OTHERS SIMILARLY SITUATED, YAREIDIS

PEREZ, AS CLASS REPRESENTATIVE ON BEHALF OF

HERSELF AND OTHERS SIMILARLY SITUATED, STEPHANIE

JEAN UMOH, AS CLASS REPRESENTATIVE ON BEHALF OF

HERSELF AND OTHERS SIMILARLY SITUATED, TYLER SOVA,

AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND

OTHERS SIMILARLY SITUATED, MICHAEL CRICKMORE, AS

 Chief Judge Christina Reiss, United States District Court for the District of Vermont, sitting by designation.

1

MANDATE ISSUED ON 11/04/2016

CaCsCaeas1se:e1115-5-c3-v31-1101363,9,D5D7o-ocJcuSumRmeennDt t8o85c8-u1,m,1e11n0/0t/1443/72/2001F16il6,e,1d19180180/2089437/19,6,PPaaPggeae2g2eoof2f9o9f 9

CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, BROOKE FEINSTEIN, AS CLASS REPRESENTATIVE ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellants,

MARCEL CARTIER, AS CLASS REPRESENTATIVE ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED,

Plaintiff.

v.

No. 15-3113-cv

MICHAEL R. BLOOMBERG, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, RAYMOND W. KELLY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, CITY OF NEW YORK, JANE AND JOHN DOES 1-40, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,

Defendants-Appellees. ----------------------------------------------------------------------

FOR PLAINTIFFS-APPELLANTS:

CARL MESSINEO (Mara VerheydenHilliard, on the brief), Partnership for Civil Justice Fund, Washington, D.C.

FOR DEFENDANTS-APPELLEES:

RICHARD

DEARING,

Assistant

Corporation Counsel (Melanie T. West,

Deborah A. Brenner, on the brief), for

Zachary W. Carter, Corporation Counsel

of the City of New York, New York City

Law Department, New York, New York.

Appeal from a September 10, 2015 judgment of the United States District Court

for the Southern District of New York (Rakoff, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

2

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Plaintiffs-Appellants (“Plaintiffs”) appeal from an order of the district court denying their request for leave to file a proposed Third Amended Complaint.1 Plaintiffs’ proposed Third Amended Complaint asserts claims of false arrest against Defendants Michael Bloomberg, City of New York, Raymond Kelly (Commissioner of the New York Police Department (NYPD)), Joseph Esposito (Chief of the Department for the New York Police Department), Thomas Purtell (Assistant Chief of the Department), as well as other named and unnamed individual officers who were present at or participated in the mass arrest of marchers who blocked the Brooklyn Bridge roadway during an October 2011 Occupy Wall Street protest march. Plaintiffs participated in that march and were arrested by the NYPD. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s denial of leave to amend for abuse of discretion. See United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016). Leave to amend should be “freely give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), but “‘should generally be denied in instances of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to the non-moving party.’” Ladas, 824 F.3d at 28 (quoting Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)). “[W]hen denial of
1This Court previously reversed and remanded the District Court’s denial of defendants’ motion to dismiss with instructions to dismiss the Second Amended Complaint. See Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (as amended).
3

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leave to file a revised pleading is based on a legal interpretation, such as futility, a reviewing court conducts a de novo review.” Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015). Plaintiffs sought to amend their complaint to add additional allegations in support of their state and federal law claims of false arrest against the individual officers as well as City and NYPD officials under the Monell doctrine. The plaintiffs newly allege, based largely on testimony from police depositions in other cases, that defendants Purtell and Esposito did not deploy appropriate police tactics to prevent marchers from following the line of officers down the roadway portion of the Bridge. Plaintiffs further allege that Chief Esposito directly participated in the false arrests of the marchers and that Raymond Kelly, Commissioner of the NYPD, failed to supervise him. Plaintiffs additionally allege de facto policies of the City and the NYPD allowing and even facilitating unpermitted marches and then, without warning, performing mass arrests of marchers.
Vicarious liability is not applicable in § 1983 suits. Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015). Thus, “to impose liability on a municipality under § 1983, a plaintiff must identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Newtown v. City of New York, 779 F.3d 140, 152 (2d Cir. 2015) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). The “City cannot be liable under Monell where [a plaintiff] cannot establish a violation of his constitutional rights.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (internal
4

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quotation marks omitted). Plaintiffs here assert false arrest as their underlying cause of action for the Monell
claim. Probable cause is a complete defense to a claim of false arrest under New York law. See Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012). This Court previously held, Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) (as amended) (“Garcia III”), that the arresting officers were entitled to qualified immunity for the claim of false arrest because the officers had probable cause to effect the seven hundred arrests. See id. at 92, 96.
We determined in Garcia III that “defendants in this case had, from their personal observations, sufficient evidence to establish probable cause on each of the elements of a disorderly conduct violation,” and noted that “the law of probable cause” does not “require[] police officers to engage in an essentially speculative inquiry into the potential state of mind of (at least some) of the demonstrators.” Id. at 96. Therefore, the question before us now is whether the proposed additions to the Third Amended Complaint plausibly allege facts that vitiates probable cause for the arrests of the marchers for violating N.Y. Penal Law § 240.20(5).
Plaintiffs have not added sufficient allegations in the proposed Third Amended Complaint to show lack of probable cause for the underlying arrests. Taking Plaintiffs’ new allegations as true, Plaintiffs’ main contentions are (1) that Chief Esposito was on the scene and knew that many of the marchers did not hear the instructions to disperse,
5

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yet made the decision to arrest anyway, (2) that actions of Esposito and other officers conveyed implicit permission to march on the roadway, (3) that Esposito, the City, and the NYPD had other methods to prevent Plaintiffs from proceeding on the bridge and chose not to use them, and (4) that the City and NYPD had policy of escorting unpermitted protests but then arresting the participants without notice. But none of these allegations defeats probable cause for the arrests.
“An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed . . . a crime.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (internal quotation marks omitted). The demonstrators were arrested for disorderly conduct under N.Y. Penal Law § 240.20(5), which prohibits “obstruct[ing] vehicular or pedestrian traffic.” Id. As we previously noted, “[t]he essential flaw in plaintiffs’ logic . . . is the extent to which it requires police officers to engage in an essentially speculative inquiry into the potential state of mind of (at least some of) the demonstrators. Neither the law of probable cause nor the law of qualified immunity requires such speculation.” Garcia III, 779 F.3d at 96.
The proposed Third Amended Complaint does not alter our conclusions in Garcia III. Rather, it only asserts that Esposito had better knowledge of the state of mind of the demonstrators than the other individual officers had, namely that Plaintiffs lacked the
6

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intent to violate the law.2 But the state of mind of the demonstrators—whether they thought that they were participating in a sanctioned, First-Amendment-protected roadway march or whether they were intentionally or recklessly blocking traffic—is irrelevant to the question of probable cause, although it is a potential defense to the underlying criminal charge. See Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“[T]he arresting officer does not have to prove plaintiff’s version wrong before arresting him.”).
While an officer may not “deliberately disregard facts known to him which establish justification,” Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003), even the facts alleged in the Third Amended Complaint, if true, do not plausibly plead that Esposito deliberately ignored facts known to him that justified the marchers’ takeover of the roadway. As this Court has already explained, the scene was chaotic, the retreat of police officers on the Bridge was not an unambiguous invitation to follow, and many marchers continued to funnel onto the sidewalk path. See Garcia III, 779 F.3d at 93–94.
The Third Amended Complaint alleges that there were no unambiguous instructions given to the marchers not to follow the officers, but does not assert any facts in support of instructions to follow the officers beyond the conclusory claim that “the clear communicative message of the ongoing police lead and escort was that it was permissible for marchers to continue in the police escorted march” onto the roadway. Joint App’x at 103. But the video evidence considered by this panel and by the previous panel
2 It is relevant to note that Esposito was one of the named individual officer defendants at the time we considered defendants’ previous appeal.
7

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incontrovertibly shows the absence of a clear message that their conduct was lawful. Absent the allegation of specific facts to support a direct communication from police to marchers that the marchers were permitted to occupy the road, the Third Amended Complaint fails to change our prior conclusion that the defendants had probable cause to arrest Plaintiffs for violating N.Y. Penal Law § 240.20(5).
Because Plaintiffs’ constitutional rights were not violated by the arrests, the plaintiffs’ Monell claims are also barred. “Liability under section 1983 is imposed on the municipality when it has promulgated a custom or policy that violates federal law and, pursuant to that policy, a municipal actor has tortiously injured the plaintiff.” Askins, 727 F.3d at 253. Thus, the simple existence of a policy, without the corresponding violation, may not be challenged under § 1983.
Insofar as Plaintiffs allege that Esposito acted as a policymaker who failed to use sound police tactics (such as deploying scooters or installing orange mesh) to prevent the demonstrators from entering the bridge roadway, mere negligence is insufficient to establish a Monell claim. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d Cir. 2004). Furthermore, the allegation that Kelly failed to supervise Esposito similarly fails, as Esposito did not violate Plaintiffs’ constitutional rights for the reasons stated above.
8

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We have considered Garcia’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
9

 
 Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 1 of 11
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−06957−JSR

CLOSED,ECF

Garcia et al v. Bloomberg et al Assigned to: Judge Jed S. Rakoff Related Case: 1:14−cv−07519−JSR Cause: 42:1983 Civil Rights Act Plaintiff Karina Garcia as Class Representative on behalf of herself and others similarly situated
Plaintiff Marcel Cartier as Class Representative on behalf of himself and others similarly situated TERMINATED: 01/30/2012
Plaintiff Yari Osorio as Class Representative on behalf of herself and others similarly situated

Date Filed: 10/04/2011 Date Terminated: 09/15/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Mara Verheyden−Hilliard Partnership for Civil Justice 617 Florida Avenue, N.W., Washington, DC 20001 (202) 232−1180 Fax: (202) 747−7747 Email: mvh@JusticeOnline.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea Hope Costello Southern Legal Counsel 1229 N.W. 12th Avenue Gainesville, FL 32601 352−271−8890 Fax: 352−271−8347 Email: andrea@floridalegal.org ATTORNEY TO BE NOTICED
Carl L Messineo Partnership for Civil Justice 617 Florida Avenue, N.W., Washington, DC 20001 (202) 955−5559 Fax: (202) 955−5589 Email: cm@justiceonline.org ATTORNEY TO BE NOTICED
represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY
Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED
Carl L Messineo (See above for address)
represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 2 of 11

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Benjamin Becker as Class Representative on behalf of himself and others similarly situated

represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Cassandra Regan as Class Representative on behalf of herself and others similarly situated

represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Yareidis Perez as Class Representative on behalf of herself and others similarly situated

represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Tyler Sova as Class Representative on behalf of himself and others similarly situated

represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 3 of 11

Stephanie Jean Umoh as Class Representative on behalf of herself and others similarly situated

Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Brooke Feinstein as Class Representative on behalf of herself and others similarly situated

represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Crickmore as Class Representative on behalf of himself and others similarly situated

represented by Mara Verheyden−Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Hope Costello (See above for address) ATTORNEY TO BE NOTICED

Carl L Messineo (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michael R. Bloomberg in his official capacity

represented by Arthur Gabriel Larkin , III The New York City Law Department 100 Church Street New York, NY 10007 (212)−788−1599 Fax: (212)−788−9776 Email: alarkin@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

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 4 of 11

Defendant Michael R. Bloomberg Individually
Defendant The City of New York
Defendant Raymond W. Kelly Individually
Defendant Raymond W. Kelly in his official capacity
Defendant Jane and John Does 1−40 Individually Defendant Jane and John Does 1−40 in their official capacities

represented by Arthur Gabriel Larkin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur Gabriel Larkin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur Gabriel Larkin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur Gabriel Larkin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/04/2011
10/04/2011

# Docket Text
1 COMPLAINT against Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Jane and John Does 1−40, Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Filing Fee $ 350.00, Receipt Number 18141)Document filed by Yari Osorio, Marcel Cartier, Karina Garcia, Benjamin Becker, Cassandra Regan.(ama) (ama). (Additional attachment(s) added on 12/5/2011: # 1 ex.a) (ama). (Entered: 10/05/2011)
SUMMONS ISSUED as to Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Jane and John Does 1−40, Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (ama)

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 5 of 11

10/04/2011 10/04/2011 10/05/2011
10/06/2011 10/06/2011 10/06/2011 10/11/2011
10/26/2011
10/26/2011
11/01/2011 11/09/2011
11/09/2011
11/09/2011

(Entered: 10/05/2011)
Magistrate Judge Frank Maas is so designated. (ama) (Entered: 10/05/2011)
Case Designated ECF. (ama) (Entered: 10/05/2011)
2 SUMMONS RETURNED EXECUTED Summons and Complaint, served. The City of New York served on 10/5/2011, answer due 10/26/2011. Service was accepted by Lumumba Ansah, service window clerk. Document filed by Yari Osorio; Marcel Cartier; Karina Garcia; Benjamin Becker; Cassandra Regan. (Verheyden−Hilliard, Mara) (Entered: 10/05/2011)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Initial Pretrial Conference held on 10/6/2011. Defendant shall file any motion by 11/4/2011; response by 11/18/2011; reply by 11/30/2011. Oral argument set for 12/7/2011 @ 3:00 pm. (cd) (Entered: 10/07/2011)
Set/Reset Hearings: Oral Argument set for 12/7/2011 at 03:00 PM before Judge Jed S. Rakoff. Motions due by 11/4/2011. Responses due by 11/18/2011, Replies due by 11/30/2011. (cd) (Entered: 10/07/2011)
Set/Reset Deadlines: All Defendants. Motions due by 11/4/2011. (rdz) (Entered: 10/12/2011)
3 ORDER: This Order confirms the schedule set during a the parties' initial pretrial conference with the Court on October 6, 2011. The defendants have until November 4, 2011 to either answer or move to dismiss the Complaint. Opposition papers to any motion to dismiss must be filed by November 18, 2011. Reply papers must be filed by November 30, 2011. Oral argument will be held on December 7, 2011 at 3:00 P.M. (Signed by Judge Jed S. Rakoff on 10/6/2011) (rdz) (Entered: 10/12/2011)
4 AFFIDAVIT OF SERVICE of Summons and Complaint,. Raymond W. Kelly(in his official capacity) served on 10/19/2011, answer due 11/9/2011; Raymond W. Kelly(Individually) served on 10/19/2011, answer due 11/9/2011. Service was made by MAIL. Document filed by Yari Osorio; Marcel Cartier; Karina Garcia; Benjamin Becker; Cassandra Regan. (Messineo, Carl) (Entered: 10/26/2011)
5 AFFIDAVIT OF SERVICE of Summons and Complaint,. Michael R. Bloomberg(Individually) served on 10/19/2011, answer due 11/9/2011; Michael R. Bloomberg(in his official capacity) served on 10/19/2011, answer due 11/9/2011. Service was made by MAIL. Document filed by Yari Osorio; Marcel Cartier; Karina Garcia; Benjamin Becker; Cassandra Regan. (Messineo, Carl) (Entered: 10/26/2011)
6 NOTICE OF APPEARANCE by Arthur Gabriel Larkin, III on behalf of Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York (Larkin, Arthur) (Entered: 11/01/2011)
7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. Responses due by 11/30/2011 Return Date set for 12/12/2011 at 03:00 PM.(Larkin, Arthur) (Entered: 11/09/2011)
8 DECLARATION of Arthur G. Larkin in Support re: 7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6).. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 11/09/2011)
9 MEMORANDUM OF LAW in Support re: 7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6).. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 11/09/2011)

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 6 of 11

11/10/2011 11/30/2011 11/30/2011
12/01/2011 12/12/2011
12/23/2011 12/23/2011 12/23/2011 01/06/2012 01/06/2012

10 NOTICE OF APPEARANCE by Dara Lynn Weiss on behalf of Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York (Weiss, Dara) (Entered: 11/10/2011)
11 NOTICE of Filing of First Amended Complaint re: 1 Complaint, 7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6).. Document filed by Benjamin Becker, Marcel Cartier, Karina Garcia, Yari Osorio, Cassandra Regan. (Messineo, Carl) (Entered: 11/30/2011)
12 AMENDED COMPLAINT amending 1 Complaint, against Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Jane and John Does 1−40, Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York, Jane and John Does 1−40 with JURY DEMAND.Document filed by Yari Osorio, Karina Garcia, Cassandra Regan, Marcel Cartier, Benjamin Becker, Yareidis Perez, Tyler Sova, Stephanie Jean Umoh, Brook Feinstein, Michael Crickmore. Related document: 1 Complaint, filed by Benjamin Becker, Yari Osorio, Cassandra Regan, Marcel Cartier, Karina Garcia. (Received in the night deposit box on 11/30/11 at 7:19pm)(mro) (Entered: 12/01/2011)
***NOTE TO ATTORNEY TO Re−E−MAIL PDF. PDF that was sent was too large, please re−send. Note to Attorney Mara Verheyden−Hilliard for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 12 Amended Complaint to: caseopenings@nysd.uscourts.gov. (mro) (Entered: 12/01/2011)
13 SECOND AMENDED COMPLAINT amending 12 Amended Complaint,, against Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Jane and John Does 1−40(Individually), Jane and John Does 1−40(in their official capacities), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York with JURY DEMAND.Document filed by Yari Osorio, Tyler Sova, Karina Garcia, Michael Crickmore, Cassandra Regan, Stephanie Jean Umoh, Brooke Feinstein, Marcel Cartier, Yareidis Perez, Benjamin Becker. Related document: 12 Amended Complaint,, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Marcel Cartier.(lmb) (Additional attachment(s) added on 12/16/2011: # 1 Exhibit A) (lmb). (Entered: 12/16/2011)
14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually). Responses due by 1/6/2012 Return Date set for 1/19/2012 at 05:00 PM.(Larkin, Arthur) (Entered: 12/23/2011)
15 DECLARATION of Arthur G. Larkin in Support re: 14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice.. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 12/23/2011)
16 MEMORANDUM OF LAW in Support re: 14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice.. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 12/23/2011)
17 NOTICE of Motion Answering Papers. Document filed by Benjamin Becker, Marcel Cartier, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yari Osorio, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Messineo, Carl) (Entered: 01/06/2012)
18 DECLARATION of Carl L. Messineo in Support re: 17 Notice (Other). Document filed by Benjamin Becker, Marcel Cartier, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yari Osorio, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Messineo, Carl) (Entered: 01/06/2012)

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 7 of 11

01/06/2012 01/13/2012 01/19/2012 01/24/2012 01/25/2012 01/30/2012 05/02/2012 05/02/2012 06/07/2012
06/28/2012

19 MEMORANDUM OF LAW in Opposition re: 14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice., 7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6).. Document filed by Benjamin Becker, Marcel Cartier, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yari Osorio, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Messineo, Carl) (Entered: 01/06/2012)
20 REPLY MEMORANDUM OF LAW in Support re: 14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice.. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 01/13/2012)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 1/19/2012 at 5:15 p.m. (mro) (Entered: 02/15/2012)
21 FILING ERROR − DEFICIENT DOCKET ENTRY − SIGNATURE ERROR − NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above−captioned action is voluntarily dismissed, against the defendant(s) All Defendants. Document filed by Marcel Cartier. (Messineo, Carl) Modified on 1/25/2012 (dt). (Entered: 01/24/2012)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Carl Messineo for noncompliance with Section 18.4 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 21 Notice of Voluntary Dismissal, (Please sign the Notice of Voluntary Dismissal, then e−mail it to judgments@nysd.uscourts.gov). (dt) (Entered: 01/25/2012)
22 NOTICE OF DISMISSAL Pursuant to Rule 41(a)(1)(A) FILED SOLELY AND EXCLUSIVELY ON BEHALF OF MARCEL CARTIER: This Notice of Voluntary Dismissal pertains solely and exclusively to the claims of individual plaintiff Marcel Cartier. (Signed by Judge Jed S. Rakoff on 1/30/2012) (tro) (Entered: 01/30/2012)
23 TRANSCRIPT of Proceedings re: ORAL ARGUMENT held on 1/19/2012 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Khristine Sellin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2012. Redacted Transcript Deadline set for 6/7/2012. Release of Transcript Restriction set for 8/3/2012.(McGuirk, Kelly) (Entered: 05/02/2012)
24 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ORAL ARGUMENT proceeding held on 1/19/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/02/2012)
25 OPINION AND ORDER: #101958 In sum, for the reasons stated within, the Court denies defendants' motion to dismiss plaintiffs' claims against the officers who arrested them, but grants the motion to dismiss plaintiffs' Monell claims against the City, Mayor Bloomberg, and Commissioner Kelly. The Clerk of the Court is hereby ordered to close items number 7 and 14 on the docket of this case. The Court directs the parties to jointly call Chambers no later than June 15, 2012 to schedule further proceedings in this case. (re: 14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice filed by Michael R. Bloomberg, Raymond W. Kelly, 7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6) filed by Michael R. Bloomberg, The City of New York, Raymond W. Kelly.) (Signed by Judge Jed S. Rakoff on 6/7/2012) (laq) Modified on 6/20/2012 (jab). (Entered: 06/07/2012)
26 NOTICE OF APPEARANCE by Andrea Hope Costello on behalf of Benjamin Becker, Marcel Cartier, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yari Osorio, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh (Costello,

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 8 of 11

06/28/2012 06/29/2012 06/29/2012
07/03/2012 07/26/2012 07/27/2012

Andrea) (Entered: 06/28/2012)
27 NOTICE OF APPEAL from 25 Opinion & Order. Document filed by Jane and John Does 1−40(Individually), Jane and John Does 1−40(in their official capacities). Filing fee $ 455.00, receipt number 465401042307. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (nd) (Entered: 06/29/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 27 Notice of Appeal,. (nd) (Entered: 06/29/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 26 Notice of Appearance filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein, Marcel Cartier, 24 Notice of Filing Transcript,, 19 Memorandum of Law in Opposition to Motion, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein, Marcel Cartier, 1 Complaint, filed by Benjamin Becker, Yari Osorio, Cassandra Regan, Karina Garcia, Marcel Cartier, 23 Transcript,, 13 Amended Complaint,,, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein, Marcel Cartier, 17 Notice (Other) filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein, Marcel Cartier, 22 Notice of Voluntary Dismissal − Signed, 14 MOTION to Dismiss Plaintiffs' Second Amended Complaint, with prejudice. filed by Raymond W. Kelly, Michael R. Bloomberg, 11 Notice (Other), Notice (Other) filed by Benjamin Becker, Yari Osorio, Cassandra Regan, Karina Garcia, Marcel Cartier, 7 MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). MOTION to Dismiss the complaint in its entirety, pursuant to Rule 12(b)(6). filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 15 Declaration in Support of Motion, filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 20 Reply Memorandum of Law in Support of Motion, filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 25 Memorandum & Opinion,,,, 27 Notice of Appeal, filed by Jane and John Does 1−40, 3 Scheduling Order, 16 Memorandum of Law in Support of Motion, filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 2 Summons Returned Executed, filed by Benjamin Becker, Yari Osorio, Cassandra Regan, Karina Garcia, Marcel Cartier, 18 Declaration in Support, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein, Marcel Cartier, 9 Memorandum of Law in Support of Motion, filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 10 Notice of Appearance filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 5 Affidavit of Service Complaints, filed by Benjamin Becker, Yari Osorio, Cassandra Regan, Karina Garcia, Marcel Cartier, 6 Notice of Appearance, filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 8 Declaration in Support of Motion, filed by Raymond W. Kelly, Michael R. Bloomberg, The City of New York, 4 Affidavit of Service Complaints, filed by Benjamin Becker, Yari Osorio, Cassandra Regan, Karina Garcia, Marcel Cartier were transmitted to the U.S. Court of Appeals. (nd) (Entered: 06/29/2012)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/3/2012. (djc) (Entered: 07/06/2012)
28 Letter addressed to Judge Jed S. Rakoff from Carl Messineo dated 6/28/2012 re: Pursuant to the June 26, 2012 status conference, Plaintiffs respectfully submit this letter brief to assist in consideration of Plaintiffs' request to conduct limited discovery on the identity of John and Jane Doe (Doe) Defendants named in the Second Amended Complaint (ECF No. 13) (i.e., persons who caused the mass arrest and/or who arrested the Plaintiffs). (rjm) (Entered: 07/27/2012)
29 MEMORANDUM ORDER: Accordingly, plaintiffs' request for discovery regarding defendants' identities is hereby denied, without prejudice to being renewed once defendants' appeal is decided. (Signed by Judge Jed S. Rakoff on 7/26/2012) (lmb) (Entered: 07/27/2012)

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 9 of 11

07/27/2012 07/30/2012 09/21/2012 09/24/2012
09/27/2012 01/03/2013
01/03/2013 01/29/2013
04/14/2014

30 Letter addressed to Judge Jed S. Rakoff from Dara L. Weiss dated 7/6/2012 re: Defendant respectfully requests that the Court stay all further proceedings pending defendant's appeal to the Court of Appeals on the issue of qualified immunity pursuant to Rule 8 of the Federal Rules of Appellate Procedure. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York.(lmb) (Entered: 07/27/2012)
First Supplemental ROA Sent to USCA (Electronic File). USCA Case Number 12−2634, Certified Supplemental Indexed record on Appeal Electronic Files for 29 Order, 28 Letter, 30 Letter,, filed by Michael R. Bloomberg, The City of New York, Raymond W. Kelly were transmitted to the U.S. Court of Appeals. (nd) (Entered: 07/30/2012)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 9/21/2012. (Kotowski, Linda) (Entered: 10/05/2012)
31 STIPULATION AND ORDER: 1. The Second Amended Complaint is deemed to be amended nunc pro tunc as of the date it was filed, i.e., December 13, 2011, to substitute Chief Joseph Esposito, Assistant Chief Thomas Purtell, Captain Jack Jaskaran, and Police Officers Angela Villota (Shield # 4206), Paul K. Reres (Shield # 19924), Hang−Yip Chen (Shield # 11880), Miguel Cruz (Shield # 14629), Matthew Grady (Shield # 7632), Rosalynn Mejia (Shield # 28084), Rafael Velazquez (Shield # 4327), and Erwin Arrunategui (Shield # 30170) for the defendants denominated "John/Jane Does" ## 1−11; and 2. The court's opinion and order dated June 7, 2012, is hereby amended nunc pro tunc to apply to the foregoing individual defendants. (Signed by Judge Jed S. Rakoff on 9/21/2012) (djc) (Entered: 09/24/2012)
Second Supplemental ROA Sent to USCA (Electronic File). USCA Case Number 12−2634, Certified Supplemental Indexed record on Appeal Electronic Files for 31 Stipulation and Order were transmitted to the U.S. Court of Appeals. (nd) (Entered: 09/27/2012)
32 STIPULATION: IT IS HEREBY STIPULATED, by and between all parties to this action, that: The City Law Department agrees to accept service of the summons and Second Amended Complaint on behalf of the following indi vidual defendants: Chief Joseph Esposito, Assistant Chief Thomas Purtell, Captain Jack Jaskaran, and Police Officers Angela Villota (Shield # 4206), Paul K. Reres (Shield # 19924), Hang−Yip Chen (Shield # 11880), Miguel Cruz (Shield # 14629), Matthew Grady (Shield # 7632), Rosalynn Mejia (Shield # 28084), Rafael Velazquez (Shield # 4327), and Erwin Arrunategui (Shield # 30170); The above−named defendants waive all objections to the manner of service and timeliness of service; Service shall be made by overnight delivery of one (1) summons addressed to each of the above−named defendants, and one (1) copy of the Second Amended Complaint, to the City Law Department, Attn: Arthur G. Larkin, Esq., Senior Counsel, 100 Church Street, New York, New York 10007, within thirty (30) days of the date of this stipulation; and the above−named defendant's answer to the Second Amended Complaint shall be due thirty (30) days after the U.S. Court of Appeals for the Second Circuit issues a final decision or order resolving the appeal in this matter (Docket #12−2634) (Signed by Judge Jed S. Rakoff on 1/2/2013) (ago) (Entered: 01/03/2013)
Transmission to Docket Assistant Clerk. Transmitted re: 32 Stipulation and Order to the Docket Assistant Clerk for case processing. (ago) (Entered: 01/03/2013)
33 AFFIDAVIT OF SERVICE of Summons and Second Amended Complaint served on Chief Joseph Esposito, Assistant Chief Thomas Purtell, Captain Jack Jaskaran, and Police Officers Angela Villota (Shield #4206), Paul K. Reres (Shield #19924), Hang−Yip Chen (Shield #11880), Miguel Cruz (Shield #14629), Matthew Grady (Shield #7632), Rosalynn Mejia (Shield #28084), Rafael Velazquez (Shield #4327) and Erwin Arrunategui (Shield #30170) on 01/23/2013. Service was accepted by Arthur G. Larkin, Esq, Senior Counsel. Service was made by Overnight Delivery. Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yari Osorio, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Attachments: # 1 Exhibit)(Costello, Andrea) (Entered: 01/29/2013)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/14/2014. (Landers, Rigoberto) (Entered: 04/17/2014)

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02/24/2015
02/24/2015 04/20/2015
04/21/2015 04/21/2015 04/28/2015 04/28/2015 04/28/2015 05/12/2015 05/12/2015 05/19/2015

34 OPINION of USCA as to 27 Notice of Appeal, filed by Jane and John Does 1−40. USCA Case Number 12−2634−cv. Defendants−appellants, New York Police Department officers, appeal from an order of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) denying their motion pursuant to Rule 12(b)(6) to dismiss plaintiffs−appellees' complaint against them on qualified immunity grounds. Defendants argue that the district court erred in concluding that plaintiffs' complaint, and other materials that could properly be considered on a motion to dismiss for failure to state a claim, did not establish that defendants had arguable probable cause to arrest plaintiffs for disorderly conduct. On August 21, 2014, we issued an opinion affirming the district court's judgment. On December 17, 2014, this opinion was withdrawn. On appellants' petition for rehearing, we now grant the petition, reverse the judgment of the district court, and remand with instructions to dismiss the complaint. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 02/24/2015. (nd) (Entered: 02/24/2015)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/24/2015. (Kotowski, Linda) (Entered: 03/02/2015)
35 MANDATE of USCA (Certified Copy) as to 27 Notice of Appeal, filed by Jane and John Does 1−40 USCA Case Number 12−2634. The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district courts record and the parties briefs. Upon consideration thereof, IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is REVERSED, and the case is REMANDED with instructions to dismiss the Complaint. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 4/20/2015. (tp) (Entered: 04/21/2015)
Transmission of USCA Mandate/Order to the District Judge re: 35 USCA Mandate. (tp) (Entered: 04/21/2015)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/21/2015. (Kotowski, Linda) (Entered: 04/22/2015)
36 MOTION to Amend/Correct 13 Amended Complaint,,, . Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh.(Messineo, Carl) (Entered: 04/28/2015)
37 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCUMENT #41) − MEMORANDUM OF LAW in Support re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, . . Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Messineo, Carl) Modified on 5/20/2015 (ldi). (Entered: 04/28/2015)
38 DECLARATION of Carl Messineo in Support re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, .. Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Attachments: # 1 Exhibit 1: Third Amended Complaint, # 2 Exhibit 2: Comparison of Second and Third Amended Complaints)(Messineo, Carl) (Entered: 04/28/2015)
39 MEMORANDUM OF LAW in Opposition re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, . . Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 05/12/2015)
40 DECLARATION of Arthur G. Larkin in Opposition re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, .. Document filed by Michael R. Bloomberg(Individually), Michael R. Bloomberg(in his official capacity), Raymond W. Kelly(in his official capacity), Raymond W. Kelly(Individually), The City of New York. (Larkin, Arthur) (Entered: 05/12/2015)
41 MEMORANDUM OF LAW in Support re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, . . Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Attachments: # 1 Errata Submitting Table of Contents and

Case: 1:11-cv-6957 As of: 10/31/2017 12:06 PM EDT 11 of 11

05/19/2015 05/19/2015 09/10/2015
09/10/2015 09/15/2015
09/15/2015 10/02/2015
10/02/2015 10/02/2015 10/05/2015 10/05/2015
11/04/2016

Table of Authorities)(Messineo, Carl) (Entered: 05/19/2015)
42 REPLY MEMORANDUM OF LAW in Support re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, . . Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Messineo, Carl) (Entered: 05/19/2015)
43 DECLARATION of Carl Messineo in Support re: 36 MOTION to Amend/Correct 13 Amended Complaint,,, .. Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. (Messineo, Carl) (Entered: 05/19/2015)
44 MEMORANDUM ORDER. For the foregoing reasons, the Court concludes that plaintiffs' proposed amendments are futile and denies their motion for leave to amend. The Clerk of the Court is directed to enter final judgment dismissing the complaint with prejudice and to close the case in its entirety. Denying 36 Motion to Amend/Correct. (Signed by Judge Jed S. Rakoff on 9/9/2015) (rjm) (Entered: 09/11/2015)
Transmission to Judgments and Orders Clerk. Transmitted re: 44 Order on Motion to Amend/Correct to the Judgments and Orders Clerk. (rjm) (Entered: 09/11/2015)
45 CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum Order dated September 10, 2015, the Court concludes that Plaintiffs' proposed amendments are futile and denies their motion for leave to amend; and judgment is entered dismissing the complaint with prejudice; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 09/15/2015) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 09/15/2015)
Terminate Transcript Deadlines (km) (Entered: 09/15/2015)
46 NOTICE OF APPEAL from 45 Clerk's Judgment,. Document filed by Benjamin Becker, Michael Crickmore, Brooke Feinstein, Karina Garcia, Yari Osorio, Yareidis Perez, Cassandra Regan, Tyler Sova, Stephanie Jean Umoh. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Messineo, Carl) (Entered: 10/02/2015)
Appeal Fee Due: for 46 Notice of Appeal. Appeal fee due by 10/16/2015. (tp) (Entered: 10/05/2015)
USCA Appeal Fees received $ 505.00 receipt number 465401136218 on 10/02/2015 re: 46 Notice of Appeal, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein. (nd) (Entered: 10/05/2015)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 46 Notice of Appeal. (tp) (Entered: 10/05/2015)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 46 Notice of Appeal, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein were transmitted to the U.S. Court of Appeals. (tp) (Entered: 10/05/2015)
47 MANDATE of USCA (Certified Copy) as to 46 Notice of Appeal, filed by Tyler Sova, Yareidis Perez, Michael Crickmore, Benjamin Becker, Yari Osorio, Cassandra Regan, Stephanie Jean Umoh, Karina Garcia, Brooke Feinstein. USCA Case Number 15−3113−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/4/2016. (nd) (Entered: 11/04/2016)