o

•

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 1 of 17 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

cv '-' *!! to ,!

-------------------------------------------------------)(

HADIYAH CHARLES,

:

-versus-

Plaintiff,

The CITY OF NEW YORK; RAYMOND KELLY, Commissioner of the New York City Police Department; PAMELA BENITES, a New York City Police Officer· RAYMOND WILLIAMS, a New York Police Officer; and JOHN DOE, an
unidentified New York City Police Officer,

Defendants. ..
........-.. ..

GOLD,_M.J.
COMPLAINT

JURY TRIAL DEMANDJ.W',.c: :,1":>00) Cr.n'

- :-.-: !:} ---

. )

--..;

, -C"J.."
fTlr-' ,:::"":0

PRELIMINARY STATEMENT I. This civil rights action challenges the constitutionality ofthe New York City

Police Department's practice of interfering with the right of individuals to film police activity in

public places. In particular, this lawsuit challenges retaliatory measures taken by three New

York City Police Department officers against the plaintiff, Hadiyah Charles, for filming a stop

and frisk that took place across the street from her residence.

2. The right of citizens to document the public activities of police ensures that the

police remain accountable to the public. The New York City Police Department's Stop,

Question, and Frisk program has grown over 700% over the past decade and has become one of

the cornerstone policies oflaw enforcement in the city. The controversy surrounding this

program has grown alongside it, with the legitimacy and efficacy ofthe program questioned in a

multitude of articles, reports, and lawsuits. As public awareness of the issues associated with

this program has grown, citizens and journalists have increasingly taken to monitoring these

controversial police practices, often documenting them with video cameras and smartphones.

1

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 2 of 17 PageID #: 2
Without the right to document police activity in public places, citizens of New York City would lose a vital tool for holding the police accountable for their actions, including those actions related to this controversial program.
3. The plaintiff in this action, Hadiyah Charles, lives in the Bedford-Stuyvesant neighborhood in Brooklyn, one of the epicenters of stop, question, and frisk activity in the city. One day, on her walk home from work, Ms. Charles witnessed two officers conducting what she thought might be an unjustified stop, question, and frisk and she proceeded to use her smartphone to make a recording of the incident. The officers attempted to prevent Ms. Charles from documenting the incident by using physical force against her, arresting her, holding her in a cell in the 79th Precinct for an hour and a half, and ultimately issuing her a summons based on spurious charges.
4. Defendants' policies, practices, and actions have violated Ms. Charles's rights under the First and Fourth Amendments to the United States Constitution, Article I, Sections 8 and 12 of the New York Constitution, and common law. Ms. Charles requests declaratory and monetary relief to redress the damages caused to her.
PARTIES Plaintiff
5. PlaintiffHADIYAH CHARLES is a resident of Brooklyn, New York. Ms. Charles has a long history of community activism with a particular emphasis on developing health policies affecting marginalized women. Ms. Charles now works as the HepatitiS C Advocacy Manager for the Harm Reduction Coalition, a not-for-profit organization that seeks to address adverse effects of drug use, including infectious diseases such as HIV and Hepatitis C.
2

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 3 of 17 PageID #: 3
Defendants 6. Defendant THE CITY OF NEW YORK is a municipal corporation duly
incorporated and existing pursuant to the laws of the state of New York. The City of New York has established and maintains the New York City Police Department (NYPD) as a constituent department or agency.
7. Defendant RAYMOND W. KELLY is the Police Commissioner for the City of New York, with supervisory authority over all officers and operations of the NYPD, including responsibility for training, recruiting, and managing all NYPD officers. He is sued in his official capacity.
8. Defendant police officer PAMELA BENITES, shield number 13086, is or was an employee of the NYPD at all relevant times. She is sued in her official and individual capacities.
9. Defendant police officer RAYMOND WILLIAMS, shield number 22154, is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
10. Defendant JOHN DOE is or was an employee of the NYPD at all relevant times whose full identity is not known to the Plaintiff, but who is a supervising officer who participated in the encounter with Plaintiff described in paragraphs 17-34 infra. He is sued in his official and individual capacities.
FACTS The Stop, Ouestion, and Frisk Program 11. In recent years, the New York City Police Department's Stop, Question, and Frisk program has grown into a controversial cornerstone of police activity in New York. In the last 10 years alone, the program has grown sevenfold, from 97,296 stops in 2002 to nearly 700,000
3

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 4 of 17 PageID #: 4
stops in 2011. The controversy surrounding this program has grown with it, with activists, news organizations, and others focusing substantial attention on the program and calling for reform on a variety of issues related to the program. Controversial aspects of the program include the alleged pervasive use of racial profiling and a widespread pattern of stops being made without adequate legal justification.
12. One of the most controversial aspects of this program is the apparent racial bias in the targeting of both neighborhoods and individuals. This controversy has been extensively covered by major media outlets and other news organizations and has culminated in multiple lawsuits, including Floyd v. City o/New York, a class action pending in the Southern District of New York that seeks to enjoin the program in its current form on, among other bases, the racial imbalances in its execution. The NYPD's most recent data demonstrate these racial disparities, showing that while the population of New York City is only 54 percent black or Hispanic, over 87 percent ofthose individuals actually stopped in 2011 were black or Hispanic. This phenomenon can be observed citywide, where 70 out of 76 precincts reported that greater than 50 percent of those stopped were black or Hispanic in 2011, and 33 precincts reported that more than 90 percent of those stopped were black or Hispanic. This racial imbalance in the implementation of the Stop, Question, and Frisk program extends beyond the individuals stopped to the neighborhoods targeted for enforcement. For example, each the four most active precincts for Stop, Question, and Frisk activity has a population that is majority black and Hispanic.
Arrest and Detention of Hadiyah Charles 13. Hadiyah Charles is a 34-year-old black woman of Caribbean descent. Ms. Charles has a long history of community activism. She holds a Masters of Arts in Women's Health and has been an activist for health policy affecting marginalized individuals for about 12
4

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 5 of 17 PageID #: 5
years, with a focus on improving treatment, access, and prevention. She has extensive experience advocating on behalf of women with communicable diseases, such as HIV and Hepatitis C, and has worked on combatting the spread of these diseases with the women affected, their families, and their communities. She has also led several initiatives to improve awareness of these diseases, including advocacy and media training, community outreach, and educational workshops. For her work in HIV advocacy, Ms. Charles has been recognized as a Champion of Change as part of President Obama's Winning the Future Across America program (see http://www.whitehouse.gov/champions/fightAIDS/hadiyah-charles).
14. Ms. Charles resides in Bedford-Stuyvesant, one of the neighborhoods most affected by the dramatic expansion of the Stop, Question, and Frisk program. This neighborhood includes the 79th and 8 Ist Precincts, and is one of the epicenters of the execution of the Stop, Question, and Frisk program. Over twenty-eight thousand stops were made in the 79th and 8 Ist Precincts in 2011. Ms. Charles resides in the area patrolled by the 79th Precinct, which accounted for over fourteen thousand stops in 2011. In fact, in 2011 there were over sixty stops just on the two block stretch from Ms. Charles's subway stop to her apartment, a walk she typically makes twice daily. The stops in the 79th Precinct predominantly involve minorities, with nearly 92 percent involving black or Hispanic individuals. Finally, despite the immense number of stop, question, and frisks that occur in the 79th Precinct, the fourteen thousand stops made in 2011 led to arrests less than 4 percent of the time.
15. During her time in Brooklyn, Ms. Charles has become aware of the increasing prevalence ofthe NYPD's use of stop, question, and frisk tactics. She has also become aware of some of the controversies surrounding the Stop, Question, and Frisk program, including the
5

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 6 of 17 PageID #: 6
racial disparities in its implementation, and the allegations that a significant number of the stops, questions, and frisks made under the program are meritless.
16. Ms. Charles has several male relatives who visit her in Bedford-Stuyvesant. One, who is in his early twenties and lives in the Bronx, has been subjected to several unjustified stop, question, and frisks in the past few years. Ms. Charles also has a sixteen-year-old male cousin. When he visits her in Bedford-Stuyvesant, she fears that he will be harassed by the police if he does not stay inside. Ms. Charles has a thirty-one year-old brother who lives outside of New York City. She is concerned that ifhe were stopped during one of his visits, he would have no idea how to handle the situation.
17. On the evening of June 5, 2012, as Ms. Charles was returning home from work, she noticed two NYPD officers, who she subsequently learned were Officers Pamela Benites and Raymond Williams, questioning and frisking three teenaged black males in front of a residence on her street, Clifton Place. Ms. Charles recognized the three youths from the neighborhood, and knew that at least one of them lived on the block. There was an upside-down bicycle at the scene, and it appeared to Ms. Charles that they had been working on fixing the bicycle. Officer Williams was frisking the three young men while Officer Benites stood nearby. Throughout this process, the youths protested their treatment. They repeatedly told the officers that they had not done anything and that they were just fixing the bicycle. They also repeatedly asked the officers why they were being stopped and questioned.
18. Ms. Charles considered simply walking past the scene, but after all she had heard about the controversies surrounding the Stop, Question, and Frisk program, she wanted to see whether the stop was justified. She decided that she would not forgive herself if she walked away while the teenagers were being hassled without justification. Further, Ms. Charles realized
6

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 7 of 17 PageID #: 7
that these young men were in a position that her brother or cousins could very easily find themselves in when they came to visit. Ms. Charles therefore chose to approach the officers and youths.
19. Upon arriving at the scene, Ms. Charles asked the officers to explain what was happening. Officer Williams replied that it was police business. Ms. Charles then said that, as a concerned taxpaying citizen who lives on the block, she would like to know what was going on. The officers replied by stating that the youths knew why they were being questioned and frisked. Ms. Charles then asked the youths why they were being questioned and frisked, and they responded that they did not know. Ms. Charles then told the police officers that it did not appear that the three young men knew why they were being questioned and frisked. At this point, Officer Benites asked Ms. Charles to step away from the scene.
20. After being asked to step away, Ms. Charles stepped back, took out her smartphone, and began filming the incident. Ms. Charles intended, if the stop turned out to be unjustified, to forward her video to news organizations as an example of police harassment.
21. When Officer Benites noticed that Ms. Charles had started filming, she tried to get her to stop filming by repeatedly asking her to step further away, even though Ms. Charles was already a reasonable distance away from Officer Williams and the three young men. Ms. Charles eventually backed onto the street and moved around the scene. When Ms. Charles changed her position, Officer Benites followed her.
22. After Ms. Charles changed viewpoints, the mother of one of the teenagers arrived, and Officer Benites began speaking to her. Ms. Charles asked the mother whether it was okay to film the incident. She agreed and encouraged Ms. Charles to continue filming.
7

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 8 of 17 PageID #: 8

23. Immediately following this exchange, Officer Benites approached Ms. Charles

and forcefully shoved her. Ms. Charles asked Officer Benites why she had pushed her and

Officer Benites ignored the question. After several onlookers also made comments about the

shove, Officer Benites called her supervisor, John Doe, who arrived at the scene shortly

thereafter. When John Doe arrived on the scene, Ms. Charles told him that she wished to file a

formal complaint.

24. Directly after voicing her desire to file a complaint, Ms. Charles was handcuffed

and placed into the back ofthe police van, despite there being no probable cause for her arrest.

Ms. Charles asked the officers numerous times why she had been arrested, but they did not

answer.

25. At no point during the encounter did Ms. Charles raise her voice above the levels

of the three youths or the officers involved. Further, at no point did Ms. Charles intend to cause,

or actually cause, any public inconvenience, annoyance, or alarm.

26. Upon information and belief, none of the three youths was found to have engaged

in any illegal activity. None was found to have contraband, and none was arrested or issued a

summons. 27.

Ms. Charles was taken in the police van to the 79th Precinct. While in transit,

Officer Benites made derisive remarks about Ms. Charles being a "street lawyer." Ms. Charles

continued to ask why she had been arrested, but the officers again refused to explain why. 28. Upon arrival at the 79th Precinct, Officer Benites searched Ms. Charles and placed

her in a small holding cell. Once Ms. Charles was in the cell, Officer Benites continued to make

derisive remarks about her. In particular, Officer Benites said, "This is what happens when you

get involved."

8

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 9 of 17 PageID #: 9
29. At one point while Ms. Charles was in the holding cell, Officer Benites approached and asked her to enter the password to her phone, but Ms. Charles refused. Officer Benites then said that she needed contact infonnation from the phone so that the officers could confinn Ms. Charles's identity. At this time, the officers had already confiscated Ms. Charles's bag, which contained her wallet and identification. Ms. Charles also told Officer Benites that she could provide contact infonnation without unlocking her phone, but Officer Benites insisted that Ms. Charles provide a contact from her phone. Fearing further ill treatment if she did not comply, Ms. Charles ultimately relented and unlocked her phone.
30. After Ms. Charles unlocked her phone, Officer Benites took the phone away from her view. Upon infonnation and belief, the officers searched the contents of Ms. Charles's phone.
31. About 45 minutes to an hour after obtaining the password to Ms. Charles's phone, Officer Benites unlocked the cell, told Ms. Charles to hold her hands behind her back as if she was still handcuffed, and escorted her outside. Ms. Charles had been held in the cell for about an hour and a half by the time she was removed.
32. Once outside, Officers Benites, Williams, and John Doe asked Ms. Charles if she still wanted to file a complaint. At that point, Ms. Charles just wanted to go home and believed that if she told the officers that she still intended to file a complaint, she would be held longer. Hoping to be released, Ms. Charles told the officers that she no longer intended to file a complaint. The officers then reprimanded Ms. Charles for getting involved, and issued her a summons, charging her with violating section 240.20(2) ofthe New York Penal Law, Disorderly Conduct, a noncriminal violation. They then asked again whether Ms. Charles wanted to file a
9

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 10 of 17 PageID #: 10
complaint. After again stating that she did not want to file a complaint, the officers told her that she was free to go. Ms. Charles was then given back her confiscated bag and phone.
33. Although the officers told her that she was free to leave at that point, Ms. Charles feared that the officers might change their minds and detain her again. In fact, Ms. Charles was so afraid that she ran the three blocks from the precinct to her home.
34. Upon information and belief, the repeated attempts by Officer Benites to get Ms. Charles to step further and further away from the incident, the shove by Officer Benites, the unlawful arrest, the unlawful search of her person and her belongings, the contents of her phone, and the unlawful issuance of a summons, were intended to intimidate Ms. Charles and prevent her from filming the incident and filing a complaint regarding the incident.
35. Upon getting home, Ms. Charles contacted members of her community in an attempt to help organize a know-your-rights seminar concerning the NYPD's Stop, Question, and Frisk program. Ms. Charles believes that the filming of stop, question, and frisk activity is a powerful tool that can be used to hold the NYPD accountable.
36. As a result of the incident, Ms. Charles worries about being apprehended again by the police. She is also nervous, apprehensive, and scared when she sees police officers, which happens several times per week. Ms. Charles also has a particular fear that she will encounter the three officers involved in her detention, especially Officer Benites.
37. Ms. Charles is unsure whether she would again film police stop and frisk activity. She is worried that if she does so she will again be subjected to intimidation and be arrested without justification. Still, despite her apprehension, she may choose to film such activity because she cannot stand to see the injustice of police harassment of minority youths in her neighborhood.
10

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 11 of 17 PageID #: 11
38. Ms. Charles's summons was ultimately dismissed on October 5, 2012. 39. On September 4,2012, Ms. Charles served a notice of claim upon the Comptroller of the City of New York, pursuant to section 50-e of the New York General Municipal Law. On December 13, 2012, Ms. Charles appeared for her hearing pursuant to Section 50-h of the New York General Municipal Law.
The NYPD's Failure to Train Its Officers to Respect the Right to Photograph or Film Police Activity in Public 40. Small portable cameras have become increasingly affordable, and as a result, their use has become widespread in recent years. In addition to taking still photographs, these cameras also frequently have the ability to make audio and video recordings. Smartphones, which include integrated cameras capable of both still photography and audio and video recording, have also become widely used in recent years. The vast majority of adults in the United States use mobile phones, and as of August 2012, over half of the mobile phone subscribers in the United States used smartphones. The increasing affordability of small portable cameras with video capability, and the advent and popularity of smartphones has, in effect, resulted in a large portion of the public carrying an audio and video recording device with them at all times. 41. As smartphones and small portable cameras have become more prevalent, they have increasingly been used to film police activity. In the past few years, there have been several highly publicized incidents of police abuse, including by NYPD officers, that have been recorded by such cameras. Footage recorded by members of the public in those incidents has been used to hold police officers accountable for their misconduct. 42. For example, in 2008, at a Critical Mass protest, NYPD Officer Patrick Pogan was involved in a collision with a bicyclist, Christopher Long. Officer Pogan filed a criminal
11

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 12 of 17 PageID #: 12
complaint against Mr. Long, alleging that Mr. Long knocked him down by intentionally steering his bicycle into him. A video recording of the incident, made by a witness with a portable camera, however, showed Officer Pogan moving toward Mr. Long and violently shoving Mr. Long off his bicycle. Due in part to the video recording of the incident, Officer Pogan was convicted of filing a criminal complaint containing false statements and was discharged from the NYPD. The incident and subsequent prosecution of Officer Pogan received publicity from both local and national news sources. On the popular video sharing website, YouTube, the video· recording ofthe incident has been viewed almost three million times.
43. In another high-profile incident, NYPD Deputy Inspector Anthony Bologna was captured on a portable camera using pepper spray on two women during an Occupy Wall Street protest in September 2011. The video engendered significant negative pUblicity for the NYPD and was reported on local and national news outlets. The NYPD disciplined Deputy Inspector Bologna as a result of this incident. In addition, when the protesters sued Officer Bologna, the City decided not to defend him in court.
44. Several other cities have faced lawsuits as a result of police retaliating against individuals seeking to exercise their constitutional right to document police activity in public places. The City of Boston recently reached a settlement with an individual who was wrongfully arrested and prosecuted in retaliation for filming an arrest. The City of Baltimore is also facing litigation regarding officers arresting individuals in retaliation for filming police abuse.
45. Due to the ubiquity of smartphones and the controversy surrounding the Stop, Question, and Frisk program, the New York Civil Liberties Union has been distributing a stop and frisk phone application that is specifically designed to facilitate the filming of stop, question,
12

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 13 of 17 PageID #: 13
and frisk activity in the city since June 2012. This application has been downloaded by more than ten thousand smartphone users to date.
46. Given the recent explosion in the use of smartphones and small portable cameras, the NYPD should have known that officers would come into contact with individuals attempting to film police activity in public places. Additionally, given the controversy surrounding the Stop, Question, and Frisk program and the growing public awareness ofthe program's constitutional infirmities, the NYPD should have known that officers would come into contact with individuals attempting to film stop, question, and frisk activity. Further, the NYPD should have known that the failure to train their officers regarding how to respond to such attempts to film would result in officers taking inappropriate actions when confronting these situations. Finally, the NYPD should have known that officers taking inappropriate actions in these situations would inevitably result in deprivations of constitutional rights.
47. The NYPD has received numerous letters in recent years describing attempts by NYPD officers to intimidate individuals seeking to document police activity. In a letter to Deputy Commissioner Paul Browne, dated November 21, 20 II, representatives of several news and advocacy organizations described numerous incidents in which NYPD officers interfered with, intimidated, assaulted, and detained individuals attempting to document Occupy Wall Street demonstrations. The letter requested a meeting with Deputy Commissioner Browne and Commissioner Kelly to discuss the deteriorating relationship between the NYPD and the media. This meeting occurred on November 23,2011. In response to the meeting, Commissioner Kelly merely issued a "FINEST message," reminding officers oftheir obligations to cooperate with those attempting to photograph public demonstrations. Upon information or belief, neither Commissioner Kelly nor any other NYPD official has initiated any further training, implemented
13

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 14 of 17 PageID #: 14
any accountability measures, or followed up in any meaningful way after being made aware of this issue. Since the meeting, NYPD officers have continued to interfere with photographers and videographers as they record police activity in public locations.
48. The General Counsel of the National Press Photographer's Association (NPPA) sent a letter to Deputy Commissioner Browne on August 6, 2012, describing an incident in which police officers intimidated, assaulted, and arrested a photographer for taking pictures of an arrest that occurred in a public place in the Bronx. On September 30, 2012, the NPPA sent another letter to Deputy Commissioner Browne describing an incident that occurred on September 17, 2012, in which NYPD officers interfered with, assaulted, detained, and arrested members of the media who were covering the anniversary of the Occupy Wall Street protests.
49. Upon information and belief, these frequent incidents also violate the NYPD Patrol Guide, which forbids officers from harassing those documenting arrests in public places. Specifically, Section 208-03 (Arrests - General Processing) dictates that "speech, ... taking photographs, videotapes or tape recordings ... [and] remaining in the vicinity of the stop or arrest" do not constitute probable cause for the arrest or detention of an onlooker unless the officers or others are directly endangered, or the law is otherwise violated. Despite this provision in the Patrol Guide, numerous NYPD officers have harassed, intimidated, assaulted, and arrested individuals attempting to document police activity. High-level NYPD officials, including Commissioner Kelly, are aware of such repeated violations.
50. Upon information and belief, the violation of Ms. Charles's rights resulted from the improper training of Officers Benites, Williams, and John Doe. Specifically, they were insufficiently trained on how to respect the rights of onlookers attempting to film police officers making stops and arrests in public places, as required by the NYPD Patrol Guide. Upon
14

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 15 of 17 PageID #: 15
information and belief, the current training for NYPD officers does not include sufficient training on the circumstances under which officers must allow people who observe police activity to photograph or film it.
JURISDICTION AND VENUE 51. This action is brought pursuant to 42 U.S.C. § 1983. Subject matter jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343(a)(3). This Court has supplemental jurisdiction over plaintiffs state law claims under 28 U.S.C. § 1367(a). 52. Venue is proper in the United States District Court for the Eastern District of New York under 28 U.S.C. § 1391 (b)(2) because the events and omissions giving rise to the claims in this action occurred in this District.
CAUSES OF ACTION 53. As a direct result of the acts, omissions, and policies of the Defendants, Ms. Charles was deprived of her rights under the First Amendment ofthe United States Constitution and 42 U.S.C. § 1983. 54. As a direct result of the acts, omissions, and policies of the Defendants, Ms. Charles was deprived of her rights under the Fourth Amendment of the United States Constitution and 42 U.S.C. § 1983. 55. As a direct result of the acts, omissions, and policies of the Defendants, Ms. Charles was deprived of her rights under Article I, Section 8 ofthe New York Constitution. 56. As a direct result of the acts, omissions, and policies of the Defendants, Ms. Charles was deprived of her rights under Article I, Section 12 ofthe New York Constitution. 57. As a direct result of the acts, omissions, and policies of the Defendants, Ms. Charles was deprived of her rights under New York common law to be free from false arrest, false imprisonment, assault, and battery.
IS

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 16 of 17 PageID #: 16
REQUESTS FQR RELIEF WHEREFORE the Plaintiff respectfully requests that the Court: A. Assume jurisdiction over this matter; B. Declare that Defendants' actions violated Ms. Charles's rights under the First Amendment of the United States Constitution and Article I, Section 8 ofthe New York Constitution; C. Declare that Defendants' actions violated Ms. Charles's rights under the Fourth Amendment of the United States Constitution and Article I, Section 12 of the New York Constitution; D. Declare that Defendants' actions violated Ms. Charles's rights under New York common law; E. Award compensatory damages for the injuries sustained by Ms. Charles; F. Award punitive damages to Ms. Charles from the officers who effectuated the retaliatory arrest and issued the spurious summons; G. Award Ms. Charles reasonable attorneys' fees and costs under 42 U.S.C. § 1988; and H. Grant any other relief the Court deems necessary and proper.
16

Case 1:12-cv-06180-SLT-SMG Document 1 Filed 12/17/12 Page 17 of 17 PageID #: 17

Respectfully Submitted,

Dated: December 17,2012 New York, N.Y.

( AllAhL
ALEXIS KARTERON ROBERT PICKENS* MARTIN SAWYER* 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3391
Plaintiff s Counsel

* Law Students at New York University School of Law in the Civil Rights Clinic, who will be
seeking to leave to appear in this matter pursuant to the Court's student practice plan.

 
 Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 1 of 17 PageID #: 54

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------)( HADIYAH CHARLES,

Plaintiff,

-versus-
The CITY OF NEW YORK; RAYMOND KELLY, Commissioner of the New York City Police Department; PAMELA BENITES, a New York City Police Officer; RAYMOND WILLIAMS, a New York City Police Officer; and ANTHONY FAMIGHETTI, a New York City Police Sergeant,

AMENDED COMPLAINT 12-cv-6180 (SLT)(SMG)
JURY TRIAL DEMANDED

Defendants. -------------------------------------------------------)(

PRELIMINARY STATEMENT

1. This civil rights action challenges the constitutionality of the New York City

Police Department's practice of interfering with the right of individuals to film police activity in

public places. In particular, this lawsuit challenges retaliatory measures taken by three New

York City Police Department officers against the plaintiff, Hadiyah Charles, for filming a stop

and frisk that took place across the street from her residence.

2. The right of citizens to document the public activities of police ensures that the

police remain accountable to the public. The New York City Police Department's Stop,

Question, and Frisk program has grown over 700% over the past decade and has become one of

the cornerstone policies oflaw enforcement in the city. The controversy surrounding this

program has grown alongside it, with the legitimacy and efficacy of the program questioned in a

multitude of articles, reports, and lawsuits. As public awareness ofthe issues associated with

this program has grown, citizens and journalists have increasingly taken to monitoring these

1

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 2 of 17 PageID #: 55

controversial police practices~ often documenting them with video cameras and smartphones.

Without the right to document police activity in public p1aces~ citizens ofNew York City would

lose a vital tool for holding the police accountable for their actions~ including those actions

related to this controversial program.

3.

The plaintiff in this action~ Hadiyah Char1es~ lives in the Bedford-Stuyvesant

neighborhood in Brook1yn~ one of the epicenters of stop~ question~ and frisk activity in the city.

One day~ on her walk home from work~ Ms. Charles witnessed two officers conducting what she

thought might be an unjustified stop~ question~ and frisk and she proceeded to use her

smartphone to make a recording of the incident. The officers attempted to prevent Ms. Charles

from documenting the incident by using physical force against her~ arresting her~ holding her in a cell in the 79th Precinct for an hour and a ha1f~ and ultimately issuing her a summons based on

spurious charges.

4.

Defendants~ policies~ practices~ and actions have violated Ms. Charles~s rights

under the First and Fourth Amendments to the United States Constitution~ Article I~ Sections 8

and 12 of the New York Constitution~ and common law. Ms. Charles requests monetary relief to

redress the damages caused to her.

Plaintiff

PARTIES

5.

Plaintiff HADIYAH CHARLES is a resident of Brook1yn~ New York. Ms.

Charles has a long history of community activism with a particular emphasis on developing

health policies affecting marginalized women. Ms. Charles now works as the Hepatitis C

Advocacy Manager for the Ham1 Reduction Coalition~ a not-for-profit organization that seeks to

address adverse effects of drug use~ including infectious diseases such as HIV and Hepatitis C.

2

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 3 of 17 PageID #: 56
Defendants 6. Defendant THE CITY OF NEW YORK is a municipal corporation duly
incorporated and existing pursuant to the laws of the state ofNew York. The City ofNew York has established and maintains the New York City Police Department (NYPD) as a constituent depatiment or agency.
7. Defendant RAYMOND W. KELLY is the Police Commissioner for the City of New York, with supervisory authority over all officers and operations of the NYPD, including responsibility for training, recruiting, and managing all NYPD officers. He is sued in his official capacity.
8. Defendant Police Officer PAMELA BENITES, tax registration number 946728, is or was an employee of the NYPD at all relevant times. She is sued in her official and individual capacities.
9. Defendant Police Officer RAYMOND WILLIAMS, tax registration number 947610, is or was an employee ofthe NYPD at all relevant times. He is sued in his official and individual capacities.
10. Defendant Police Sergeant ANTHONY FAMIGHETTI, tax registration number 932617, is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
FACTS The Stop, Question, and FrislcProgram 11. In recent years, the New York City Police Department's Stop, Question, and Frisk progratn has grown into a controversial cornerstone of police activity in New York. In the last 10 years alone, the program has grown sevenfold, from 97,296 stops in 2002 to nearly 700,000
3

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 4 of 17 PageID #: 57
stops in 2011. The controversy surrounding this program has grown with it, with activists, news organizations, and others focusing substantial attention on the program and calling for refonn on a variety of issues related to the program. Controversial aspects ofthe program include the alleged pervasive use of racial profiling and a widespread pattern of stops being made without adequate legal justification.
12. One of the most controversial aspects of this program is the apparent racial bias in the targeting of both neighborhoods and individuals. This controversy has been extensively covered by major media outlets and other news organizations and has culminated in multiple lawsuits, including Floyd v. City ofNew York, a class action pending in the Southern District of New York that seeks to enjoin the program in its current form on, among other bases, the racial imbalances in its execution. The NYPD's most recent data demonstrate these racial disparities, showing that while the population of New York City is only 54 percent black or Hispanic, over 87 percent ofthose individuals actually stopped in 2011 were black or Hispanic. This phenomenon can be observed citywide, where 70 out of76 precincts reported that greater than 50 percent of those stopped were black or Hispanic in 2011, and 33 precincts reported that more than 90 percent of those stopped were black or Hispanic. This racial imbalance in the implementation of the Stop, Question, and Frisk program extends beyond the individuals stopped to the neighborhoods targeted for enforcement. For example, each the four most active precincts for Stop, Question, and Frisk activity has a population that is majority black and Hispanic.
Arrest and Detention of Hadiyah Charles 13. Hadiyah Charles is a 34-year-old black woman of Caribbean descent. Ms. Charles has a long history of community activism. She holds a Masters of Arts in Women's Health and has been an activist for health policy affecting marginalized individuals for about 12
4

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 5 of 17 PageID #: 58
years, with a focus on improving treatment, access, and prevention. She has extensive experience advocating on behalf of women with communicable diseases, such as HIV and Hepatitis C, and has worked on combatting the spread of these diseases with the women affected, their families, and their communities. She has also led several initiatives to improve awareness of these diseases, including advocacy and media training, community outreach, and educational workshops. For her work in HIV advocacy, Ms. Charles has been recognized as a Champion of Change as part of President Obama's Winning the Future Across America program (see http://www.whitehouse.gov/champions/fightAIDS /hadiyah-charles).
14. Ms. Charles resides in Bedford-Stuyvesant, one of the neighborhoods most affected by the dramatic expansion of the Stop, Question, and Frisk program. This neighborhood includes the 79th and 81 st Precincts, and is one of the epicenters of the execution of the Stop, Question, and Frisk program. Over twenty-eight thousand stops were made in the 79th and 81 5t Precincts in 2011. Ms. Charles resides in the area patrolled by the 79th Precinct, which accounted for over fourteen thousand stops in 2011. In fact, in 2011 there were over sixty stops just on the two block stretch from Ms. Charles's subway stop to her apartment, a walk she typically makes twice daily. The stops in the 79th Precinct predominantly involve minorities, with nearly 92 percent involving black or Hispanic individuals. Finally, despite the ilmnense number of stop, question, and frisks that occur in the 79th Precinct, the fourteen thousand stops made in 2011 led to arrests less than 4 percent of the time.
15. During her time in Brooklyn, Ms. Charles has become aware of the increasing prevalence of the NYPD's use of stop, question, and frisk tactics. She has also become aware of some of the controversies surrounding the Stop, Question, and Frisk program, including the
5

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 6 of 17 PageID #: 59
racial disparities in its implementation, and the allegations that a significant number of the stops, questions, and frisks made under the program are meritless.
16. Ms. Charles has several male relatives who visit her in Bedford-Stuyvesant. One, who is in his early twenties and lives in the Bronx, has been subjected to several unjustified stop, question, and frisks in the past few years. Ms. Charles also has a sixteen-year-old male cousin. When he visits her in Bedford-Stuyvesant, she fears that he will be harassed by the police ifhe does not stay inside. Ms. Charles has a thirty-one year-old brother who lives outside of New York City. She is concerned that ifhe were stopped during one of his visits, he would have no idea how to handle the situation.
17. On the evening of June 5, 2012, as Ms. Charles was returning home from work, she noticed two NYPD officers, who she subsequently learned were Officers Pamela Benites and Raymond Williams, questioning and frisking three teenaged black males in front of a residence on her street, Clifton Place. Ms. Charles recognized the three youths from the neighborhood, and knew that at least one of them lived on the block. There was an upside-down bicycle at the scene, and it appeared to Ms. Charles that they had been working on fixing the bicycle. Officer Williams was frisking the three young men while Officer Benites stood nearby. Throughout this process, the youths protested their treatment. They repeatedly told the officers that they had not done anything and that they were just fixing the bicycle. They also repeatedly asked the officers why they were being stopped and questioned.
18. Ms. Charles considered simply walking past the scene, but after all she had heard about the controversies sunounding the Stop, Question, and Frisk program, she wanted to see whether the stop was justified. She decided that she would not forgive herself if she walked away while the teenagers were being hassled without justification. Further, Ms. Charles realized
6

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 7 of 17 PageID #: 60
that these young men were in a position that her brother or cousins could very easily find themselves in when they came to visit. Ms. Charles therefore chose to approach the officers and youths.
19. Upon arriving at the scene, Ms. Charles asked the officers to explain what was happening. Officer Williams replied that it was police business. Ms. Charles then said that, as a concemed taxpaying citizen who lives on the block, she would like to know what was going on. The officers replied by stating that the youths knew why they were being questioned and frisked. Ms. Charles then asked the youths why they were being questioned and frisked, and they responded that they did not know. Ms. Charles then told the police officers that it did not appear that the three young men knew why they were being questioned and frisked. At this point, Officer Benites asked Ms. Charles to step away from the scene.
20. After being asked to step away, Ms. Charles stepped back, took out her smartphone, and began filming the incident. Ms. Charles intended, if the stop tumed out to be unjustified, to forward her video to news organizations as an example of police harassment.
21. When Officer Benites noticed that Ms. Charles had started filming, she tried to get her to stop filming by repeatedly asking her to step futiher away, even though Ms. Charles was already a reasonable distance away from Officer Williams and the tlu'ee young men. Ms. Charles eventually backed onto the street and moved around the scene. When Ms. Charles changed her position, Officer Benites followed her.
22. After Ms. Charles changed viewpoints, the mother of one of the teenagers arrived, and Officer Benites began speaking to her. Ms. Charles asked the mother whether it was okay to film the incident. She agreed and encouraged Ms. Charles to continue filming.
7

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 8 of 17 PageID #: 61

23. Immediately following this exchange, Officer Benites approached Ms. Charles

and forcefully shoved her. Ms. Charles asked Officer Benites why she had pushed her and

Officer Benites ignored the question. After several onlookers also made COlmnents about the

shove, Officer Benites called her supervisor, Sergeant Anthony Famighetti, who an-ived at the

scene shortly thereafter. When Sergeant Famighetti arrived on the scene, Ms. Charles told him

that she wished to file a fonnal complaint.

24. Directly after voicing her desire to file a complaint, Ms. Charles was handcuffed

and placed into the back ofthe police van, despite there being no probable cause for her atTest.

Ms. Charles asked the officers numerous times why she had been an-ested, but they did not

answer.

25. At no point during the encounter did Ms. Charles raise her voice above the levels

of the three youths or the officers involved. Further, at no point did Ms. Charles intend to cause,

or actually cause, any public inconvenience, annoyance, or alarm.

26. Upon infonnation and belief, none of the three youths was found to have engaged

in any illegal activity. None was found to have contraband, and none was anested or issued a

summons. 27.

Ms. Charles was taken in the police van to the 79th Precinct. While in transit,

Officer Benites made derisive remarks about Ms. Chat'les being a "street lawyer." Ms. Charles

continued to ask why she had been arrested, but the officers again refused to explain why. 28. Upon an-ivaI at the 79th Precinct, Officer Benites searched Ms. Charles and placed

her in a small holding cell. Once Ms. Charles was in the cell, Officer Benites continued to make

derisive remarks about her. In particular, Officer Benites said, "This is what happens when you

get involved."

8

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 9 of 17 PageID #: 62
29. At one point while Ms. Charles was in the holding cell, Officer Benites approached and asked her to enter the password to her phone, but Ms. Charles refused. Officer Benites then said that she needed contact information from the phone so that the officers could confirm Ms. Charles's identity. At this time, the officers had already confiscated Ms. Charles's bag, which contained her wallet and identification. Ms. Charles also told Officer Benites that she could provide contact infomlation without unlocking her phone, but Officer Benites insisted that Ms. Charles provide a contact from her phone. Fearing further ill treatment if she did not comply, Ms. Charles ultimately relented and unlocked her phone.
30. After Ms. Charles unlocked her phone, Officer Benites took the phone away from her view. Upon information and belief, the officers searched the contents of Ms. Charles's phone.
31. About 45 minutes to an hour after obtaining the password to Ms. Charles's phone, Officer Benites unlocked the cell, told Ms. Charles to hold her hands behind her back as if she was still handcuffed, and escorted her outside. Ms. Charles had been held in the cell for about an hour and a half by the time she was removed.
32. Once outside, Officer Benites, Officer Williams, and Sergeant Famighetti asked Ms. Charles if she still wanted to file a complaint. At that point, Ms. Charles just wanted to go home and believed that if she told the officers that she still intended to file a complaint, she would be held longer. Hoping to be released, Ms. Charles told the officers that she no longer intended to file a complaint. The officers then reprimanded Ms. Charles for getting involved, and issued her a summons, charging her with violating section 240.20(2) of the New York Penal Law, Disorderly Conduct, a noncriminal violation. They then asked again whether Ms. Charles wanted to file a complaint. After again stating that she did not want to file a complaint, the
9

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 10 of 17 PageID #: 63
officers told her that she was free to go. Ms. Charles was then given back her confiscated bag and phone.
33. Although the officers told her that she was free to leave at that point, Ms. Charles feared that the officers might change their minds and detain her again. In fact, Ms. Charles was so afraid that she ran the three blocks from the precinct to her home.
34. Upon infonnation and belief, the repeated attempts by Officer Benites to get Ms. Charles to step further and further away from the incident, the shove by Officer Benites, the unlawful arrest, the unlawful search of her person and her belongings, the contents of her phone, and the unlawful issuance of a summons, were intended to intimidate Ms. Charles and prevent her fi-om filming the incident and filing a complaint regarding the incident.
35. Upon getting home, Ms. Charles contacted members of her community in an attempt to help organize a know-your-rights seminar concerning the NYPD's Stop, Question, and Frisk program. Ms. Charles believes that the filming of stop, question, and fi-isk activity is a powerful tool that can be used to hold the NYPD accountable.
36. As a result of the incident, Ms. Charles worries about being apprehended again by the police. She is also nervous, apprehensive, and scared when she sees police officers, which happens several times per week. Ms. Charles also has a particular fear that she will encounter the three officers involved in her detention, especially Officer Benites.
37. Ms. Charles is unsure whether she would again film police stop and frisk activity. She is worried that if she does so she will again be subjected to intimidation and be arrested without justification. Still, despite her apprehension, she may choose to film such activity because she cam10t stand to see the injustice of police harassment of minority youths in her neighborhood.
10

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 11 of 17 PageID #: 64
38. Ms. Charles's summons was ultimately dismissed on October 5, 2012. 39. On September 4,2012, Ms. Charles served a notice of claim upon the Comptroller of the City of New York, pursuant to section 50-e of the New York General Municipal Law. On December 13, 2012, Ms. Charles appeared for her hearing pursuant to Section 50-h of the New York General Municipal Law.
The NYPD's Failure to Train Its Officers to Respect the Right to Photograph or Film Police Activity in Public 40. Small portable cameras have become increasingly affordable, and as a result, their use has become widespread in recent years. In addition to taking still photographs, these cameras also frequently have the ability to make audio and video recordings. Smmiphones, which include integrated cameras capable of both still photography and audio and video recording, have also become widely used in recent years. The vast majority of adults in the United States use mobile phones, "and as of August 2012, over half of the mobile phone subscribers in the United States used smartphones. The increasing affordability of small portable cameras with video capability, and the advent and popularity of smartphones has, in effect, resulted in a large portion ofthe public canying an audio and video recording device with them at all times. 41. As smartphones and small portable cameras have become more prevalent, they have increasingly been used to film police activity. In the past few years, there have been several highly publicized incidents of police abuse, including by NYPD officers, that have been recorded by such cameras. Footage recorded by members of the public in those incidents has been used to hold police officers accountable for their misconduct. 42. For example, in 2008, at a Critical Mass protest, NYPD Officer Patrick Pogan was involved in a collision with a bicyclist, Christopher Long. Officer Pogan filed a criminal
11

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 12 of 17 PageID #: 65
complaint against Mr. Long, alleging that Mr. Long knocked him down by intentionally steering his bicycle into him. A video recording ofthe incident, made by a witness with a portable camera, however, showed Officer Pogan moving toward Mr. Long and violently shoving Mr. Long off his bicycle. Due in part to the video recording ofthe incident, Officer Pogan was convicted of filing a criminal complaint containing false statements and was discharged from the NYPD. The incident and subsequent prosecution of Officer Pogan received publicity from both local and national news sources. On the popular video sharing website, YouTube, the video recording of the incident has been viewed almost three million times.
43. In another high-profile incident, NYPD Deputy Inspector Anthony Bologna was captured on a portable camera using pepper spray on two women during an Occupy Wall Street protest in September 2011. The video engendered significant negative publicity for the NYPD and was reported on local and national news outlets. The NYPD disciplined Deputy Inspector Bologna as a result ofthis incident. In addition, when the protesters sued Officer Bologna, the City decided not to defend him in court.
44. Several other cities have faced lawsuits as a result of police retaliating against individuals seeking to exercise their constitutional right to document police activity in public places. The City of Boston recently reached a settlement with an individual who was wrongfully arrested and prosecuted in retaliation for filming an arrest. The City of Baltimore is also facing litigation regarding officers arresting individuals in retaliation for filming police abuse.
45. Due to the ubiquity of smartphones and the controversy surrounding the Stop, Question, and Frisk program, the New York Civil Liberties Union has been distributing a stop and frisk phone application that is specifically designed to facilitate the filming of stop, question,
12

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 13 of 17 PageID #: 66
and frisk activity in the city since June 2012. This application has been downloaded by more than ten thousand smartphone users to date.
46. Given the recent explosion in the use of smartphones and small portable cameras, the NYPD should have known that officers would come into contact with individuals attempting to film police activity in public places. Additionally, given the controversy surrounding the Stop, Question, and Frisk program and the growing public awareness of the program's constitutional infinnities, the NYPD should have known that officers would come into contact with individuals attempting to film stop, question, and frisk activity. Further, the NYPD should have known that the failure to train their officers regarding how to respond to such attempts to film would result in officers taking inappropriate actions when confronting these situations. Finally, the NYPD should have known that officers taking inappropriate actions in these situations would inevitably result in deprivations of constitutional rights.
47. The NYPD has received numerous letters in recent years describing attempts by NYPD officers to intimidate individuals seeking to document police activity. In a letter to Deputy Commissioner Paul Browne, dated November 21, 2011, representatives of several news and advocacy organizations described numerous incidents in which NYPD officers interfered with, intimidated, assaulted, and detained individuals attempting to document Occupy Wall Street demonstrations. The letter requested a meeting with Deputy Commissioner Browne and Commissioner Kelly to discuss the deteriorating relationship between the NYPD and the media. This meeting occurred on November 23,2011. In response to the meeting, Commissioner Kelly merely issued a "FINEST message," reminding officers oftheir obligations to cooperate with those attempting to photograph public demonstrations. Upon information or belief, neither Commissioner Kelly nor any other NYPD official has initiated any further training, implemented
13

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 14 of 17 PageID #: 67
any accountability measures, or followed up in any meaningful way after being made aware of this issue. Since the meeting, NYPD officers have continued to interfere with photographers and videographers as they record police activity in public locations.
48. The General Counsel of the National Press Photographer's Association (NPPA) sent a letter to Deputy Commissioner Browne on August 6, 2012, describing an incident in which police officers intimidated, assaulted, and arrested a photographer for taking pictures of an arrest that occurred in a public place in the Bronx. On September 30, 2012, the NPPA sent another letter to Deputy Commissioner Browne describing an incident that occurred on September 17,2012, in which NYPD officers interfered with, assaulted, detained, and arrested members of the media who were covering the anniversary of the Occupy Wall Street protests.
49. Upon infonnation and belief, these frequent incidents also violate the NYPD Patrol Guide, which forbids officers from harassing those documenting arrests in public places. Specifically, Section 208-03 (Arrests - General Processing) dictates that "speech, ... taking photographs, videotapes or tape recordings ... [and] remaining in the vicinity of the stop or arrest" do not constitute probable cause for the arrest or detention of an onlooker unless the officers or others are directly endangered, or the law is otherwise violated. Despite this provision in the Patrol Guide, numerous NYPD officers have harassed, intimidated, assaulted, and arrested individuals attempting to document police activity. High-level NYPD officials, including Commissioner Kelly, are aware of such repeated violations.
50. Upon information and belief, the violation of Ms. Charles's rights resulted from the improper training of Officer Benites, Officer Williams, and Sergeant Famighetti. Specifically, they were insufficiently trained on how to respect the rights of onlookers attempting to film police officers making stops and arrests in public places, as required by the NYPD Patrol
14

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 15 of 17 PageID #: 68
Guide. Upon infonnation and belief, the current training for NYPD officers does not include sufficient training on the circumstances under which officers must allow people who observe police activity to photograph or film it.
JURISDICTION AND VENUE 51. This action is brought pursuant to 42 U.S.C. § 1983. Subject matter jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343(a)(3). This Court has supplemental jurisdiction over plaintiffs state law claims under 28 U.S.C. § 1367(a). 52. Venue is proper in the United States District Court for the Eastern District of New York under 28 U.S.c. § 1391 (b)(2) because the events and omissions giving rise to the claims in this action occurred in this District.
CAUSES OF ACTION 53. As a direct result of the acts, omissions, and policies ofthe Defendants, Ms. Charles was deprived of her rights under the First Amendment ofthe United States Constitution and 42 U.S.C. § 1983. 54. As a direct result of the acts, omissions, and policies ofthe Defendants, Ms. Charles was deprived of her rights under the Fourth Amendment ofthe United States Constitution and 42 U.S.C. § 1983. 55. As a direct result of the acts, omissions, and policies ofthe Defendants, Ms. Charles was deprived of her rights under Article I, Section 8 of the New York Constitution. 56. As a direct result of the acts, omissions, and policies of the Defendants, Ms. Charles was deprived of her rights under Article I, Section 12 ofthe New York Constitution. 57. As a direct result ofthe acts, omissions, and policies ofthe Defendants, Ms. Charles was deprived of her rights under New York common law to be free from false arrest, false imprisomnent, assault, and battery.
15

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 16 of 17 PageID #: 69 REQUESTS FOR RELIEF
WHEREFORE the Plaintiff respectfully requests that the Court: A. Assume jurisdiction over this matter; B. Award compensatory damages for the injuries sustained by Ms. Charles; C. Award punitive damages to Ms. Charles from the officers who effectuated the retaliatory arrest and issued the spurious summons; D. Award Ms. Charles reasonable attorneys' fees and costs under 42 U.S.c. § 1988; and E. Grant any other reliefthe Court deems necessary and proper.
16

Case 1:12-cv-06180-SLT-SMG Document 16 Filed 04/15/13 Page 17 of 17 PageID #: 70

Dated: New York, New York April 15, 2013

J ; ;m,_i_tt_ed_,__- - -

ALEXIS KARTERON, CHRISTOPHER DUNN ROBERT PICKENS* MARTIN SAWYER* New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300 akarteron@nyclu.org
Counsel for Plaintiff
* Law Students at New York University School of Law in the Civil Rights Clinic.

17

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
X
HADIYAH CHARLES,
Plaintiff,

FILED
IN CLERKS OFFICE US. DISTRICT COURT E.D.N.Y.
*O82O17 * BROOKLYN OFFICE

—against—

MEMORANDUM AND ORDER

THE CITY OF NEW YORK, RAYMOND KELLY, Commissioner of the New York City Police Department, PAMELA BENITES, a New York City Police Officer, RAYMOND WILLIAMS, a New York City Police Officer, and ANTHONY FAMIGHETTI, a New York City Police Sergeant,

12-CV-6180 (SLT)(SMG)

Defendants. -------------------------------------------x TOWNES, United States District Judge:

Plaintiff Hadiyah Charles brings this civil rights action against the City of New York,

former New York City Police Department ("NYPD") Commissioner Raymond Kelly and three

police officers, alleging that her First and Fourth Amendment rights were violated when she was

arrested and briefly imprisoned following an incident in which she intervened in, and videotaped,

an encounter between the officers and three African-American teenagers. Defendants now move

for summary judgment, arguing that there was probable cause for Plaintiffs arrest, that there is

insufficient evidence that the arrest was motivated by Plaintiffs exercise of First Amendment

rights, and that the officers are entitled to qualified immunity on both the First and Fourth

Amendment claims. In addition, Defendants argue that spoliation sanctions are appropriate

because Plaintiff is no longer able to produce the videotape of the incident.

For the reasons stated below, Defendants' motion for summary judgment is denied.

Defendants' motion for spoliation sanctions is denied without prejudice to renewal if the

evidence adduced at trial establishes that the videotape of the incident was likely to favor Defendants.
BACKGROUND The following facts are not in dispute. On the early evening of June 5, 2012, while walking on the Brooklyn block on which she resided, Plaintiff observed an encounter between Officers Benites and Williams and teenagers on the sidewalk in front of 281 Clifton Place (Defendants' Statement of Material Facts Pursuant to Local Rule 56.1 ("Defendants' 56.1 Statement"), ¶ 2; Plaintiff's Response to Defendants' 56.1 Statement ("Plaintiff's 56.1 Statement"), 12). Plaintiff did not know any of the teens personally, although she claimed to recognize them "from being on the block [and] having lived there for six years." (Defendants' 56.1 Statement, ¶ 5; Plaintiff's 56.1 Statement, 1 5). However, after overhearing one of teens protesting that they had done nothing wrong, Plaintiff wondered why the police had stopped them. (Defendants' 56.1 Statement, 16; Plaintiffs 56.1 Statement, ¶ 6). Plaintiff believed that she, as a "taxpaying citizen that [sic] lives on the block," had a right to "ask a question about a process on the block." (Defendants' 56.1 Statement, 17; Plaintiffs 56.1 Statement, ¶ 7). Standing about five feet from the officers, Plaintiff asked why they had stopped the teens. (Defendants' 5 6. 1 Statement, ¶ 10; Plaintiff's 5 6. 1 Statement, ¶ 10). According to Plaintiff, the officers ignored her question, prompting her to ask it a second time. (Defendants' 56.1
Statement, IT 11-12; Plaintiffs 56.1 Statement, 1111 - 12). Officer Williams eventually
responded, saying that it was "police business," and accusing Plaintiff of "interfering" in it.
(Defendants' 56.1 Statement, 1113, 15; Plaintiffs 56.1 Statement, 1113, 15).
2

At some juncture, Plaintiff started to videotape the officers, using the recording features on her iPhone. (Defendants' 56.1 Statement, ¶ 20; Plaintiffs 56.1 Statement, ¶ 20). According to Plaintiff, she stepped backwards on two occasions at the request of Officer Benites, (Defendants' 56.1 Statement, ¶ 22; Plaintiffs 56.1 Statement, ¶ 22), but refused to comply with Benites' third request. (Defendants' 56.1 Statement, IT 22-23; Plaintiffs 56.1 Statement, ¶IJ 2223). Thereafter, Benites made some sort of physical contact with Plaintiff, which Plaintiff characterized as a "shove." (Defendants' 56.1 Statement, 128; Plaintiffs 56.1 Statement, 128). After both Plaintiff and "people on the street" commented on the shove, Benites radioed her supervisor, Sergeant Anthony Famighetti. (Defendants' 56.1 Statement, ¶J 29-3 1; Plaintiffs 56.1 Statement, ¶J 29-31).
Shortly thereafter, Famighetti arrived, along with Police Officer Adam Dumelle. (Defendants' 56.1 Statement, ¶ 31; Plaintiffs 56.1 Statement, ¶ 31). Plaintiff was arrested and taken to the precinct. (Defendants' 56.1 Statement, ¶J 32-33; Plaintiffs 56.1 Statement, ¶IJ 3233). She was detained in a holding cell for a period of 80 minutes or less before being released with a summons charging her with disorderly conduct in violation of New York Penal Law § 240.20(2). (Defendants' 56.1 Statement, 133; Plaintiffs 56.1 Statement, 133).
On June 6, 2012, Plaintiff viewed the video on her iPhone and confirmed that the video remained intact. (Defendants' 56.1 Statement, ¶ 37; Plaintiffs 56.1 Statement, ¶ 37). According to Plaintiff, the video depicted events until the time she was handcuffed. (Id.). However, Plaintiff claims that she lost her iPhone either during or immediately after a gala on the night of June 7, 2012, and that the video it contained, which had not been downloaded, was lost in the process. (Defendants' 56.1 Statement, 138; Plaintiffs 56.1 Statement, ¶ 38).
3

This Action
On December 17, 2012, Plaintiff, represented by the New York Civil Liberties Union, commenced this civil action against the City of New York, then-Commissioner Kelly, Benites, Williams and Famighetti, who was sued as a "John Doe" because his identity was then unknown to Plaintiff. The original complaint alleged that the NYPD has a "practice of interfering with the right of individuals to film police activity in public places," and suggested that Benites, Williams and Famighetti acted in retaliation for Plaintiff's "filming a stop and frisk that took place across the street from her residence." (Complaint, ¶ 1). The pleading principally advanced claims pursuant to 42 U.S.C. § 1983, alleging that "[a]s a direct result of the acts, omissions, and policies of the Defendants," Plaintiff was deprived of her rights under the First and Fourth
Amendments of the United States Constitution. (Id., TT 53-54). The complaint also advanced
state-law claims, alleging that Defendants' acts, omissions, and policies violated Plaintiffs rights under Article I, sections 8 and 12, of the New York State Constitution and her common-law right "to be free from false arrest, false imprisonment, assault, and battery." (Id., 11 55-57). The complaint sought declaratory relief, as well as compensatory and punitive damages.
In mid-April 2013, Plaintiff amended the complaint upon consent of Defendants. The Amended Complaint substituted Famighetti for the Doe defendant, and dropped the requests for declaratory relief. The Amended Complaint was identical to the original pleading in all other respects.
4

The Instant Motion Defendants now move for summary judgment, advancing three arguments. First,
Defendants argue that the individual officers had probable cause to arrest Plaintiff for both obstruction of governmental administration, N.Y. Penal Law § 195.05, and disorderly conduct, N.Y. Penal Law § 240.20. Defendants note that probable cause is a complete defense to an action for false arrest and malicious prosecution and imply that the Court should grant summary judgment with respect to Plaintiff's Fourth Amendment and Article I, section 8, claims, as well as Plaintiff's common-law claims for false arrest and false imprisonment.
Second, Defendants seek summary judgment with respect to Plaintiff's First Amendment retaliation claim. Defendants argue that the retaliation claim requires proof that the arrest was motivated by the videotaping and is unavailable when the arrest and subsequent prosecution was supported by probable cause. Implicitly relying on the analysis in Point I, Defendants argue that the officers had probable cause to arrest. Defendants also argue that Plaintiff has adduced no evidence of an improper motive for the arrest.
Third, Defendants argue that the officers are entitled to qualified immunity. With respect to the Fourth Amendment claim, Defendants argue that the officers had at least "arguable" probable cause to arrest Plaintiff. With respect to the First Amendment claim, Defendants argue that the right to videotape police stops was not "clearly established" as of June 5, 2012.
In addition, Defendants argue that the Court should impose spoliation sanctions for Plaintiff's loss of the cell phone on which the video of the incident was recorded. Defendants contend that the video contained evidence that Plaintiff acted unlawfully during the June 5, 2012, incident and that Plaintiff purposely destroyed the inculpatory evidence in furtherance of her
5

efforts to "make [the] summons disappear." (Defendants' Memorandum of Law in Support of Motion for Summary Judgment and Spoliation Sanctions ("Defendants' Memo"), p. 24). Defendants claim that dismissal of this action "is the only fair sanction in this instance," but argue, in the alternative, for an adverse inference charge. (Id., pp. 24-25). Defendants also argue that if factual issues preclude determination of the motion for sanctions, the Court should conduct a hearing to resolve those issues.
Plaintiff opposes all of Defendants' arguments in her Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and Spoliation Sanctions ("Plaintiffs Memo"). Plaintiff principally argues that genuine issues of material fact preclude the Court from awarding summary judgment. In particular, Plaintiff either expressly argues or implies that factual disputes exist regarding whether the stop and frisk of the teenagers was authorized by law, whether Plaintiff physically interfered with the stop-and-frisk, whether Plaintiff made "unreasonable noise," whether Benites' third order to step back was lawful, and whether Plaintiffs loss of the cell phone was purposeful or inadvertent.
In support of the arguments contained in their memoranda of law, both Defendants and Plaintiff principally rely on excerpts from depositions taken during discovery. These excerpts are attached to declarations signed by the parties' attorneys: the Declaration of Mark D. Zuckerman (the "Zuckerman Declaration"); the Declaration of Alexis Karteron in Opposition to Defendants' Motion for Summary Judgment and Spoliation Sanctions (the "Karteron Declaration"); and the Supplemental Declaration of Mark D. Zuckerman (the "Second Zuckerman Declaration"). The excerpts attached to the Zuckerman and Karteron Declarations are largely drawn from the same depositions, although the particular pages excerpted from those depositions vary. For example,

portions of Officer Williams' deposition (the "Williams Deposition") are attached to the Zuckerman Deposition as Exhibit A and to the Karteron Declaration as Exhibit 5; portions of Officer Benites' deposition (the "Benites Deposition") are attached to the Zuckerman Deposition as Exhibit B and to the Karteron Declaration as Exhibit 4; and portions of Plaintiff's deposition (the "Charles Deposition") are attached to the Zuckerman Deposition as Exhibit D, to the Second Zuckerman Declaration as Exhibit P, and to the Karteron Declaration as Exhibit 10. In addition, the parties' declarations attach excerpts from the depositions of various non-party witnesses to the incident: one of the teenagers, D.C. (Zuckerman Declaration, Ex. E, and Karteron Declaration, Ex. 9); D.C.'s mother, Louise Cannon (Zuckerman Declaration, Ex. F, and Karteron Declaration, Ex. 12); Cannon's upstairs neighbor, Louisa Brown (Zuckerman Declaration, Ex. G, and Karteron Declaration, Ex. 11); another neighbor, Ivory Cannady (Zuckerman Declaration, Ex. H, and Karteron Declaration, Ex. 8), and Officer Dumelle (Zuckerman Declaration, Ex. J, and Karteron Declaration, Ex. 1). The Varying Accounts of the Incident
These depositions provide detailed, if often contradictory, accounts of how the officers came to stop the teenagers, how Plaintiff intervened, and what happened thereafter. In June 2012, Sergeant Famighetti and Officers Williams, Benites, and Dumelle were all assigned to the 79' Precinct's Conditions Unit, which "enforce[s] quality of life matters." (Karteron Declaration, Ex. 1, p. 11; Ex. 3, pp. 29, 33; Ex. 4, p. 15; & Ex. 5, pp. 13-14). Williams and Benites were partners and were patrolling in a marked police van on the evening of June 5, 2012. (Karterort Declaration, Ex. 4, pp. 32, 47, & Ex. 5, p. 31). Meanwhile, Sergeant Famighetti, the
7

supervisor of the unit, was patrolling in an unmarked car with Dumelle. (Karteron Declaration, Ex. 1, p. 47,&Ex. 3,p. 62).
The sergeant conducted roll call around 5:30 p.m. on June 5, 2012, at the start of the officers' shift. (Karteron Declaration, Ex. 1, p. 45; Ex. 4, p. 32; & Ex. 5, p. 21). Famighetti, Williams and Benites all recalled that Famighetti discussed a "robbery pattern" involving men on bicycles. (Karteron Declaration, Ex. 3, pp. 48-49; Ex. 4, pp. 29-3 1; & Ex. 5, pp. 20-21). However, these three witnesses' recollections of the description of the suspects and the location of the "robbery pattern" differed. Williams initially recalled that the pattern involved "gunpoint robberies" by "young teens on bicycles" "in the vicinity of Clifton Place from Nostrand to Classon"—a three block area which includes the block on which 281 Clifton Place is located. (Karteron Declaration, Ex. 5, pp. 20-2 1). He subsequently testified that the "entire area" in which robberies fitting the pattern occurred may have included Lafayette and Greene Avenues, which are one block north and one block south of Clifton Place, respectively. (Id., p. 21).
Benites recalled that the robbery pattern involved "three to five males between the ages of 15 and 20, ... on bicycles, ... stealing cell phones." (Zuckerman Declaration, Ex. B, p. 34; see Karteron Declaration, Ex. 4, pp. 29-30). She recalled that pattern was in the "vicinity of Bedford Avenue and Nostrand Avenue"—the streets at the east and west ends of the block encompassing 281 Clifton Place—and "between Clifton" Place and some other street (Karteron Declaration, Ex. 4. P. 36). Benites could not recall if that unnamed street "was the block before or after [Clifton Place] or if it was both blocks." (Id.).
Famighetti testified that the pattern involved "three male blacks committing robberies on bicycles," but that the males were aged 18 to 30. (Karteron Declaration, Ex. 3, P. 49). While he,
8

too, recalled that the pattern involved the theft of cell phones, Famighetti recalled that robberies were reportedly "strong-arm robberies" in which no weapons were involved. (Id.). The sergeant could not recall whether all three men were alleged to be on bicycles. (Id.). However, he recalled that the robbery complaints encompassed the five blocks from DeKaib Avenue in the north to Lexington Avenue in the south and the two blocks from Bedford Avenue in the east to Marcy Avenue in the west—an area of 10 square blocks which encompasses 281 Clifton Place. (Id.).
The three witnesses' testimony was contradicted both by Dumelle's testimony and by physical evidence. First, although Dumelle recalled that Famihetti conducted roll call on June 5, 2012, he did not recall the sergeant saying anything about a robbery pattern. (Karteron Declaration, Ex. 1, p. 45). However, Dumelle also could not recall what Famighetti actually said at roll call or the first thing that occurred thereafter. (Id., pp. 45-47).
Second, the description of the robbery pattern which was contained in the 79 th Precinct's Command Conditions Report for the week from June 4 to June 12, 2012, differed from the description Famighetti allegedly gave to his officers. That Report, which is attached to the Zuckerman Declaration as ExhiFit C, stated that the pattern involved one black man approaching victims on the street, snatching "property (electronics)," and fleeing on a bike. According to a declaration signed by Famighetti on July 17, 2014 (the "Famighetti Declaration"), which has been submitted to the Court by both Defendants and Plaintiff (Karteron Declaration, Ex. 6), the Command Conditions Report served as the basis of his discussion of the robbery pattern at the June 5, 2012, roll call. (Famighetti Declaration, ¶ 2). Yet, the Report did not mention the age of

the perpetrator or offer any descriptive details aside from his sex and race, did not mention any accomplices, and did not indicate precisely where the robberies had occurred. The Stop and Frisk
At about 8:15 p.m., while driving their van on Clifton Place between Nostrand and Bedford Avenues, Williams and Benites saw a group of black teenagers on the sidewalk. (Zuckerman Declaration, Ex. A, p. 35, & Ex. B, p. 47; Karteron Declaration, Ex. 4, pp. 47, 51, & Ex. 5, pp. 32, 35-36). One of the teens was D.C., who was 18 years old and still in high school when he was deposed in October 2013—approximately 16 months after the incident at issue (Karteron Declaration, Ex. 9, p. 3). According to D.C., he was working to repair a flat tire on his bicycle at the time, and had the bicycle upside down on the sidewalk in front of 281 Clifton Place, the apartment building in which he lived with his mother. (Karteron Declaration, Ex. 9, pp. 3, 6, 10); D.C. testified that he was with three friends: J.M. and his brother, both of whom lived at 285 Clifton Place, and a male known to him only as "Els," who lived on the same block. (Id., pp. 8-10). D.C. further testified that he was the only one of the four with a bicycle. (Id., p. 10).
This portion of D.C.'s testimony was corroborated, to some extent, by that of his mother, Louise Cannon, and J.M.'s downstairs neighbor, Ivory Cannady. Cannon recalled that D.C. was with three friends whose names she did not know, and that her son was the only one with a bicycle. (Karteron Declaration, Ex. 12, pp. 12, 25-26). Cannady initially recalled seeing D.C. and "two or three ... younger kids," (Karteron Declaration, Ex. 8, p. 15), but later testified that there were only three boys, whom she identified as D.C., J.M., and Elmer. (Id., p. 18). Cannady,
10

like Cannon, testified that D.C. was the only one with a bicycle, which was upside down on the ground. (Id., p. 15).
Williams and Benites recalled seeing three individuals and more than one bicycle. Williams initially testified that he saw "two teens on bicycles," along with a third teen who did not have one. (Karteron Declaration, Ex. 5, p. 32). He subsequently clarified that the teens were not riding at the time, but either sitting on or standing next to bicycles that were stationary on the sidewalk. (Id.). Later, however, Williams testified that he saw "three young teens on bikes." (Id., p. 35). This testimony was consistent with Benites' recollection that she "observed ... three males on bicycles." (Zuckerman Declaration, Ex. B, p. 47). Benites subsequently stated that she was unsure how many bicycles she saw. (Karteron Declaration, Ex. 4, p. 51).
Although both Williams and Benites testified to seeing a "bulge" in the clothing of one of the young men, their description of the bulge differed somewhat. Williams described it as "something large" or a "large object," and specifically recalled that it was in the right front pocket of the young man without a bicycle. (Zuckerman Declaration, Ex. A, pp. 36, 39; Karteron Declaration, Ex. 5, pp. 36, 39). Benites recalled that the object was less than six inches wide, but testified that it appeared to have "the shape of a firearm." (Karteron Declaration, Ex. 4, p. 58). She remembered that the bulge was "around the waistband." (Karteron Declaration, Ex. 4, p. 47).
Although the witnesses agree that the teens saw the officers before they exited the van, they disagree on whether the young men behaved suspiciously. D.C. testified that he saw "the van driving around," but that the police "didn't stop at first." (Karteron Declaration, Ex. 9, pp. 67). D.C. claimed that he "knew they were going to come back around, the way they slowed
11

down," but that he and his friends stayed outside while the van "circled around the block," "came back around" and stopped. (Id., p. 7).
Williams testified that he and Benites observed the teens from a stationary van for a period of less than five minutes. (Karteron Declaration, Ex. 5, pp. 35-36,38, 40). Although the teens were looking at the van, Williams saw nothing suspicious other than the bulge. (Id., pp. 39-40). However, Benites recalled that the young man with the bulge "moved his body" in a way that she perceived as preventing the officers from observing the bulge. (Zuckerman Declaration, Ex. B, p. 47; Karteron Declaration, Ex. 4, pp. 47, 65-66).
According to Williams, he and Benites briefly discussed whether to exit the van. (Karteron Declaration, Ex. 5, p. 40). Although he could not recall what was said, (id.), both officers testified that they believed the young men fit the robbery pattern. Williams claimed that "three young teens on bikes ... roughly matched the robbery pattern," (id., p. 35), while Benites claimed: "They matched the pattern that we were told, young males between 15 and 20 on bicycles." (Zuckerman Declaration, Ex. B, pp. 47-48; Karteron Declaration, Ex. 4, p. 47).
The officers agree that the police encounter began with a frisk; Benites testified that she immediately frisked the waistband of the man with the bulge, "patting ... the portion of the body where [she] observed the bulge." (Zuckerman Declaration, Ex. B, p. 73). She claimed that she did so because she feared for her safety, thinking the bulge could be a firearm. (Id., pp. 74-75). At her deposition, Benites could not recall what caused the bulge, but testified that the pat down revealed that it was not a weapon. (Karteron Declaration, Ex. 4, p. 79).
Although Benites testified that she could not recall what Williams was doing at the time she was conducting the frisk, (Id.), Williams testified that either he or Benites also frisked the
12

other teens. (Karteron Declaration, Ex. 5, PP. 167-68). Williams could not recall the details of those frisks, but stated that he or Benites "would have touched their pockets or waistband" to make sure that they did not have "something dangerous." (Id., pp. 168-69). Williams also testified that he had no reason to believe that those teens posed a threat and did not suspect any of the teens of committing a crime. (Id., pp. 169-70). D.C. corroborated Williams' testimony, stating that the female officer "checked" him and his friends by patting their pants pockets. (Karteron Declaration, Ex. 9, pp. 7, 19-20). Cannady testified that she observed "the female officer ... searching in the boys' pockets" and taking things out of Elmer's and D.C.'s pockets. (Karteron Declaration, Ex. 8, pp. 15, 32).
Both Williams and Benites testified that after the frisks failed to uncover any weapons, there was no evidence that the teens were engaged in criminal activity and they were free to leave. (Zuckerman Declaration, Ex. B, p.14.9; Karteron Declaration, Ex. 5, p. 47). Nonetheless, the officers continued to talk to the young men, asking for their names, addresses, and "[b]asic information." (Karteron Declaration, Ex. 5, p. 47). Although Plaintiff may have interrupted that process, as discussed below, Williams testified that the officers "finished copying down whatever information [they] needed from the teens." (Id., p. 77). Indeed, Benites testified that she used that information to create three Stop, Question and Frisk Reports ("UF-250s"). (Karteron Declaration, Ex. 4, p. 224). Plaintiff Intervenes
At some point during the verbal exchange between the two officers and the teens, Plaintiff intervened. According to Cannady, who claimed to have observed the incident from the time the police first pulled up in front of her apartment building, "maybe ten other people" were
13

outside at the time. (Karteron Declaration, Ex. 8, PP. 15, 31-32). These onlookers were on both sides of street and some, like Cannady herself, were in their front yards. (Id., pp. 33, 35).
After observing the police stop and frisk the teens, some onlookers questioned the officers, asking why the teens had been stopped or, after the police removed the objects from the boys' pockets, why the officers were arresting them. (Id., PP. 15-16, 32, 34). Cannady herself recalled asking: "Why are you arresting them? Are you arresting them?" (Id., p. 35). However, according to Cannady, the onlookers remained in their yards and did not "engage in what was going on." (Id., PP. 33-35). Indeed, when Cannady received no response to her questions, she alerted J.M.'s mother by ringing her doorbell rather than intervening herself. (Id., PP. 19, 22, 35).
Sometime after Cannady rang J.M.'s doorbell, Plaintiff approached the officers. (Id., pp. 35, 39). Five witness testified that they saw her arrive, but the witnesses' accounts differed substantially. Three of the witnesses—the two officers and Cannon—testified that Plaintiff arrived either screaming, yelling, or talking very loudly. Benites testified that Plaintiff "came in screaming and yelling" that the officers did not "have a reason to be annoying these kids." (Zuckerman Declaration, Ex. B, P. 85; Karteron Declaration, Ex. 4, p. 85). Williams also recalled that she was screaming, but testified that she directly addressed the officers, saying, "excuse me, why are you harassing these boys?" (Zuckerman Declaration, Ex. A, P. 55). Cannon variously described Plaintiff's tone as "talking really loud" and "kind of yelling," but could not testify as to what Plaintiff said because she "wasn't concentrating on what she was saying." (Zuckerman Declaration, Ex. F, P. 15; Karteron Declaration, Ex. 112, Pp. 15, 20).
In contrast, two other witness, as well as Plaintiff herself, testified that Plaintiff s voice was never more than slightly raised throughout the incident. Cannady testified that Plaintiff's
14

voice was only "a little raised" when she began speaking to the officers and that she "wasn't yelling." (Zuckerman Declaration, Ex. H, p. 41). D.C. recalled that Plaintiff spoke first to the teens, asking if the police were "harassing" them, and was not screaming or yelling. (Zuckerman Declaration, Ex. E, p. 24; Karteron Declaration, Ex. 9, p. 35).
Plaintiff testified that she spoke first to the officers, twice asking them why the teens had been stopped. (Zuckerman Declaration, Ex. D, pp. 36-37). She recalled that one of the teens was "talking loudly" when she approached, but that she did not raise her voice. (Zuckerman Declaration, Ex. D, p. 58; Karteron Declaration, Ex. 10, p. 27). Indeed, Plaintiff claimed that she never screamed or yelled at the officers and only spoke "slightly above normal," in a "distressed voice," after Benites shoved her. (Zuckerman Declaration, Ex. D, p. 59; Karteron Declaration, Ex. 10, pp. 59-60).
There was also a dispute regarding whether Plaintiffs actions caused a crowd to gather, or whether the crowd had already gathered before she arrived. Williams testified that as Plaintiff "got louder and louder with her yelling," "more people started to come out of the apartment building behind where the kids were." (Zuckerman Declaration, Ex. A, pp. 56, 58). Benites attributed the crowd to Plaintiffs behavior, claiming that "people started coming out because [Plaintiff] was so loud." (Zuckerman Declaration, Ex. B, p. 91; Karteron Declaration, Ex. 4, p. 91). Although Plaintiff denied that she was loud, a social media post she made shortly after her release from detention stated that people "started to come out and get involved" after she intervened, and that "[tjhere was about to be a riot." (Zuckerman Declaration, Ex. I, p. 1). In contrast, Cannady recalled that a crowd of "maybe ten" onlookers were already present and were
15

questioning the police actions before Plaintiff even arrived. (Karteron Declaration, Ex. 8, pp. 3235).
Although all the witnesses agree that Plaintiff began to videotape the police activity using her iPhone, there is some dispute as to how close she was to the officers. Plaintiff testified that she was "[a]bout five feet" from the officers when she spoke to them initially, but that she had to step another foot away in order to "get[] a full shot of what was going on." (Zuckerman Declaration, Ex. D, pp. 36, 44; Karteron Declaration, Ex. 10, pp. 36, 44). When Plaintiff announced, "I am going to videotape your process," Benites said that Plaintiff Was "interfering with police business and ... needed to step back." (Zuckerman Declaration, Ex. D, p. 45; Karteron Declaration, Ex. 10, p. 45).
Plaintiff claims that she responded to Benites by stepping back another foot, but that Benites kept asking her to move back. (Zuckerman Declaration, Ex. D, pp. 46-47; Karteron Declaration, Ex. 10, pp. 46-47). Plaintiff stepped back a second time, but believed that stepping back a third time "would have put [her] without reach of being able to videotape the process." (Zuckerman Declaration, Ex. D, p.'47; Karteron Declaration, Ex. 10, p. 47). Accordingly, when Benites asked her to move back a third time, Plaintiff did not comply, believing she "was within the law in terms of being so many feet away at that point." (Zuckerman Declaration, Ex. D, p. 48; Karteron Declaration, Ex. 10, p. 48).
Officers Benites and Williams recalled that Plaintiff approached, rather than backed away from them, during the videotaping. Williams testified that he and Benites continued to interview the teens until Plaintiff "began to put the cell phone up close to [his] face and up to [his] shield and ... nameplate." (Zuckerman Declaration, Ex. A, pp. 60-61; Karteron Declaration, Ex. 5, p.
16

61). When she was within six inches of him, Williams told Plaintiff: "Miss, you're free to record whatever you want, but you have to do it from a safe distance." (Zuckerman Declaration, Ex. A, P. 61; Karteron Declaration, Ex. 5, p. 61). According to Williams, Plaintiff then backed up six inches and demanded to know why the officers had stopped the teens. (Karteron Declaration, Ex. 5, pp. 62-63). Williams again told Plaintiff that she needed to back up, saying that the officers would "be happy to speak with her" when they finished interviewing the teens. (Zuckerman Declaration, Ex. A, p. 63; Karteron Declaration, Ex. 5, p. 63). Plaintiff not only refused to back up, even when asked repeatedly to do so, but again placed the cell phone "very close" to Williams' face. (Zuckerman Declaration, Ex. A, p. 63; Karteron Declaration, Ex. 5, pp. 63, 68).
Benites recalled that Plaintiff not only "had the phone in [her] face and [Williams'] face," but actually touched Benites' face with the iPhone. (Zuckerman Declaration, Ex. B, p. 92; Karteron Declaration, Ex. 4, p. 104). Benites described Plaintiff as "so close" that Benites "didn't even have space for [her]self," (Karteron Declaration, Ex. 4, p. 104). Both Benites and Williams testified that Benites told Plaintiff to back up. (Zuckerman Declaration, Ex. A, p. 66, & Ex. B., p. 92; Karteron Declaration, Ex. 4, p. 92, & Ex. 5, p. 68).
In contrast, several of the civilian witnesses recalled that Plaintiff remained further away from the officers. Cannady recalled that Plaintiff announced that she was "taking ... badge numbers," then held her phone up and appeared to film both officers' badges. (Zuckerman Declaration, Ex. H, p. 42; Karteron Declaration, Ex. 8, p. 42). However, according to Cannady, Plaintiff remained "[f]urther than an arm's length ... [m]aybe three or four feet away" from Williams as she attempted to film his badge. (Zuckerman Declaration, Ex. H, p. 42; Karteron Declaration, Ex. 8, p. 42). She then took two steps towards Benites, closing to within
17

"[a]pproximately three feet." (Karteron Declaration, Ex. 8, PP. 44-45). Although the officers told Plaintiff to stop recording or to turn the camera off, Plaintiff responded that it was "not illegal for [her] to record" and continued toward Benites. (Zuckerman Declaration, Ex. H, p. 41; Karteron Declaration, Ex. 8, pp. 16-17, 41, 45-46).
Cannady never heard the officers tell Plaintiff that she could record if she moved back. (Karteron Declaration, Ex. 8, p. 51). Rather, Cannady heard Williams repeatedly tell Plaintiff to move back and heard the officers tell Plaintiff at least five times to stop recording. (Id., pp. 51, 70-71). According to Cannady, Plaintiff moved back two feet every time the officers asked, but refused to stop filming, saying: "It's not against the law to record." (Karteron Declaration, Ex. 8, pp. 52, 71).
Like Cannady, Brown recalled that Plaintiff's phone was three or four feet from the officers, (Zuckerman Declaration, Ex. G, P. 24; Karteron Declaration, Ex. 11, P. 24), and that Plaintiff and the officers argued about the filming. Brown variously testified that the officers told Plaintiff to "stop filming or to stop with the phone," to "turn that off," or that she couldn't film there. (Karteron Declaration, Ex. 11, pp. 25, 35). Brown also recalled that an officer told Plaintiff either to "move along" or that "she couldn't film there." (Id., p. 35). However, Brown conceded that it was possible that the officers told Plaintiff that she could film from a safe distance. (Id.). According to Brown, Plaintiff moved back "a couple of steps"—maybe "four or five feet"—in response to police demands, but argued with the officers, maintaining that she had a right to film and saying: "I have my rights. I can stand here." (Id., pp. 25-, 35, 44).
D.C. recalled that Plaintiff was "about two feet" from the officers while she recorded them, although he characterized the distance as not "that close" or not "fairly close."
18

(Zuckerman Declaration, Ex. E, p. 27; Karteron Declaration, Ex. 9, p. 27). He further recalled that the officers told her to "stop recording" and that "one cop told her to leave." (Karteron Declaration, Ex. 9, pp. 8, 26). The Physical Contact and Plaintiff's Arrest
Although most of the witnesses recalled seeing physical contact between Benites and Plaintiff, they differed in their description of it. Benites testified that, after Plaintiff's phone touched her face, she turned to tell Plaintiff to move back. (Karteron Declaration, Ex. 4, p. 104). During that turn, Benites "touched [Plaintiff] with ... the left side of [her] elbow." (Id.). Benites claims that the contact was accidental and occurred only because Plaintiff was so close to her. (Id., pp. 104, 107).
D.C. characterized the officer's contact with Plaintiff as "a little touch." (Zuckerman Declaration, Ex. E, p. 29). However, D.C. implied that the touch was not accidental, stating that the officers "were trying to push her away." (Karteron Declaration, Ex. 9, p. 28). D.C. could not remember where Plaintiff was touched, or if the touch was gentle or forceful. (Id., p. 48).
In contrast, Plaintiff testified that, after she failed to comply with Benites' third order to move back, Benites approached and shoved her in the right shoulder. (Zuckerman Declaration, Ex. D, p. 52; Karteron Declaration, Ex. 10, pp. 52-53). Although she testified that Benites used only three fingers, Plaintiff claimed that it was "a significant shove," hard enough to cause her to move "a step and a half' backwards. (Karteron Declaration, Ex. 10, p. 53).
Plaintiffs testimony was corroborated by Cannady, who testified that Benites "came towards" Plaintiff and "pushed her back" after Plaintiff approached Benites to videotape her badge number. (Karteron Declaration, Ex. 8, p. 45). Although the contact caused Plaintiff to
19

move backwards, Cannady claimed "it wasn't a push for her to go ... on the ground." (Id.). Rather, Cannady characterized it as a "defensive push," stating: "if someone is coming towards me and I don't want them recording me, I'm going to ... push them back to get out of my face ...." (Id., p. 46).
It is not entirely clear what happened after the contact between Benites and Plaintiff. Plaintiff testified that she was "really in shock" and "just remember[ed] constantly repeating why did you shove me, why did you put your hands on me[?]" (Zuckerman Declaration, Ex. D, p. 58; Karteron Declaration, Ex. 10, P. 58). According to Plaintiff, Benites did, not respond, but people on the street also began to comment on Benites' actions. (Zuckerman Declaration, Ex. D, pp. 54, 57; Karteron Declaration, Ex. 10, pp. 54, 57).
Cannady recalled that Plaintiffs comments were addressed to the crowd more than to Benites. First, Cannady testified that Plaintiff said something like: "Oh, my God. Did everyone see that she pushed me?" (Karteron Declaration, Ex. 8, p. 46). Later, Cannady testified that Plaintiff said, "Did you see that? She pushed me, and I have all of this on camera." (Id., p. 71).
While Benites, Williams and Plaintiff agree that Benites radioed Sergeant Famighetti, they offered different explanations as to why she did so. Benites testified that although Plaintiff was making the crowd "angry and violent" by screaming that the police had improperly stopped the teens, she radioed in response to Plaintiffs demand to speak to a supervisor. (Zuckerman Declaration, Ex. B, pp. 108-09, 121; Karteron Declaration, Ex. 4, pp. 108-10). Williams recalled that Plaintiff "demanded that our supervisor come," but also testified that the scene had become so "chaotic" that he would have called for an additional car even absent Plaintiffs demand because he felt "the crowd was on the verge of becoming violent." (Zuckerman Declaration, Ex.
20

A, p. 75). Plaintiff made no mention of having requested a supervisor, testifying that Benites spoke into her walkie-talkie after Plaintiff and the crowd questioned why Plaintiff had been shoved. (Zuckerman Declaration, Ex. D, pp. 57-58; Karteron Declaration, Ex. 10, p. 58).
Although several witnesses testified that Famighetti arrived on the scene, the Court has little evidence regarding what happened next. Famighetti testified that he arrived at Clifton Place to see "Benites and ... Williams and a small crowd of people and a woman yelling and screaming." (Karteron Declaration, Ex. 3, p. 66). However, neither party has provided Famighetti's account of what happened next. Williams testified that Famighetti and Dumelle arrived just after he and Benites had "finished copying down whatever information [they] needed from the teens," (Karteron Declaration, Ex. 5, p. 77), but neither party has provided testimony from Williams regarding what happened next. Benites testified that her supervisor arrived, (Karteron Declaration, Ex. 4, p. 110), but the parties have not provided those portions of the deposition in which Benites described what he said or did. D.C. recalled seeing two or three additional officers arrive in a black, unmarked car and knew that one was a supervisor because of his white shirt. (Karteron Declaration, Ex. 9, p. 38). Although D.C. claimed that he "paid attention" to the supervisor, (Id.), the parties have not provided those portions of the deposition in which D.C. described what that supervisor did.
The only testimony provided by the parties regarding what happened after Famighetti arrived is contained in Plaintiffs deposition. She testified that Famighetti "approached the scene and said that he is not sure what is going on, but they are all going to leave now." (Zuckerman Declaration, Ex. D, p. 62; Karteron Declaration, Ex. 10, P. 62). Unsure what his comment meant, Plaintiff replied by saying that she wanted to file a formal complaint against Benites for
21

shoving her. (Zuckerman Declaration, Ex. D, p. 62; Karteron Declaration, Ex. 10, PP. 62, 64). After Benites denied having shoved Plaintiff, the officers conferred for about 45 seconds before deciding to arrest Plaintiff. (Zuckerman Declaration, Ex. D, p. 66; Karteron Declaration, Ex. 10, p. 64).
During her deposition, Plaintiff theorized that she was "arrested because [she] asked to file a complaint." (Karteron Declaration, Ex. 10, p. 148). However, in nearly identical memobook entries, Benites and Williams provided a different explanation for Plaintiffs arrest. (Karteron Declaration, Exs. 14 and 15). Those entries allege that Plaintiff was "told numerous times" that she could "video police activity from a safe distance," but that she not only "refused to back up," but "aggressively" videotaped Benites "directly in her face." (Karteron Declaration, Ex. 14, p. 2, & Ex. 15, pp. 2-3). Those memobook entries also allege that Plaintiff "interfere[d] with a lawful stop" and "behave[d] in a loud unreasonable manner causing public alarm." (Karteron Declaration, Ex. 14, p. 2, & Ex. 15, p. 2). Post-Arrest Developments
According to Plaintiff, Williams and Benites drove her to the 79th Precinct in their van. (Karteron Declaration, Ex. 10, pp. 69-7 1). During the five-minute drive, Plaintiff asked why she was being arrested. (Id., pp. 70-71). According to Plaintiff, Benites said, "[Y]ou were trying to be a street lawyer." (Id., p. 71). Benites allegedly made a similar comment at the precinct, saying, "this is what happens when you get involved." (Id., p. 85).
At the precinct, the police took Plaintiffs pocketbook and cell phone and placed her in a holding pen. (Id., Pp. 73, 81). Plaintiff testified that she remained in the cell for 80 minutes. (Id., p. 88). However, the Prisoner Holding Pen Roster for June 5, 2012, indicates that Plaintiff
22

was placed in the pen at 8:37 p.m. and released at 9:10 p.m.—a period of 33 minutes. (Zuckerman Declaration, Ex. L). These times conflict with entries in Williams' and Benites' memobooks, which indicate that Plaintiff was transported to the precinct at 8:33 or 8:38 p.m. and was released with a summons at 8:54 p.m. (Karteron Declaration, Ex. 14, p. 3, & Ex. 15, p. 3).
While Plaintiff was in the cell, Benites asked her to unlock her iPhone. (Karteron Declaration, Ex. 10, p. 88). According to Plaintiff, Benites claimed that she wanted to call a person from the. list of contacts stored on the phone to verify Plaintiff's identity. (Id., pp. 81, 88). Although Plaintiff offered to provide a friend's telephone number that she had memorized, Benites allegedly insisted that Plaintiff unlock the phone and choose a name from her "favorites" list. (Id., pp. 89-91). Plaintiff eventually complied, and Benites walked away with the unlocked phone. (Id., p. 92).
Benites did not mention the video or ask to see it and Plaintiff, who did not see what Benites did with the phone thereafter, did not know if she had viewed the video. (Zuckerman Declaration, Ex. D, pp. 92-93; Karteron Declaration, Ex. 10, p. 92). Plaintiff testified, however, that the phone was "unlocked for all purposes," (Karteron Declaration, Ex. 10, p. 92), implying that Benites could have viewed the video if she wanted. Both Benites and Williams expressly denied that they had viewed the video. (Zuckerman Declaration, Ex. B, p. 188; Karteron Declaration, Ex. 5, p. 170).
Before Plaintiff left the precinct, she was given a summons charging her with disorderly conduct in violation of New York Penal Law § 240.20(2). That document, a copy of which is attached to the Zuckerman Declaration as Exhibit K, alleged that Plaintiff "did engage in creating loud noise by yelling causing public alarm and inconvenience to the public." It did not charge, or
23

allege facts suggesting, obstruction of governmental administration in the second degree as defined in Penal Law § 195.05.
According to Plaintiff, Sergeant Famighetti asked to speak with her after giving her the summons. (Karteron Declaration, Ex. 10, P. 96). He then walked her outside of the precinct and Williams and Benites followed. (Id.). After a conversation in which he described BedfordStuyvesant as a "bad neighborhood" and stated that the police were "just doing [their] jobs" and trying to "get home safely," the sergeant asked if Plaintiff was still interested in filing a complaint. (Id., pp. 97-98). Plaintiff responded in the negative. (Id., p. 98). At her deposition, Plaintiff explained: "[lit did not seem wise given the fact that when I first told him I wanted to file a complaint ... they proceeded to handcuff me and drag me to the precinct ...." (Id., pp. 9899). Although the deposition excerpts provided to this Court give no indication that either Williams or Benites testified about this conversation, Benites' memobook states that Plaintiff "was apologetic" and refused "JAB's number." (Karteron Declaration, Ex. 14, p. 3).
Within an hour or two after her release, Plaintiff went on social media to discuss the incident. She opined that the police "wanted to make an example out of [her]" because they "were not happy about the video tape nor the fact that [she] started spewing out the numbers, around the stop and frisk law and it's [sic] disproportionate targeting of Black and Latino youth." (Zuckerman Declaration, Ex. I, p. 1.). However, she also observed that her intervention in the incident had caused people to "come out and get involved" to the point that "[t]here was about to beariot." (Id).
When asked about this post at her deposition, Plaintiff testified that, during the videotaping, she said something about the disproportionate number of blacks and Latinos who
24

were stopped and frisked. (Zuckerman Declaration, Ex. D, pp. 145-46; Karteron Declaration, Ex. 10, pp. 145-46). While she thought she "only said it loud enough so [her] ... phone would hear it," she did not know if she also "said it to the officers." (Zuckerman Declaration, Ex. D, p. 146; Karteron Declaration, Ex. 10, p. 146).
In a later post, Plaintiff alluded to the conversation with Famighetti, stating that she "understood" when the police explained that they "just want to go home safely to their families," and "really just wanted to ask them to revoke the summons." (Zuckerman Declaration, Ex. I, p. 2). She ended the post by stating: "Now I have to figure out how to make this summons disappear." (Id.).
Around 9:30 a.m. on June 6, 2012, Plaintiff sent a post which stated, inter alia, "I know that I have a case but I'm not going to pursue it." (Id.). Rather, Plaintiff expressed an intention "to organize a know your rights neighborhood training" that would "connect the parents and potentially targeted youth with advocates that are currently working on changing the stop and frisk law." (Id.).
Plaintiff watched the video of the incident twice on June 6, 2012: once in her apartment before she left for work and, later, at the office with one Erica Poellot and other co-workers. (Zuckerman Declaration, Ex. D, pp. 105-06; Karteron Declaration, Ex. 10, p. 107). On the first occasion, she did not view the entire footage but "looked to see if it was compromised in any way" by looking at the beginning and then scrolling to the end. (Zuckerman Declaration, Ex. D, p. 105). She verified that the video ended with her handcuffing. (Id., pp. 105-06).
It is unclear how much of the video Plaintiff watched at work. Poeliot recalled speaking about it for 10 or 15 minutes, but had only "vague recollections" of the video. (Karteron
25

Declaration, Ex. 13, p. 10). She recalled only that it depicted "some sort of altercation between [Plaintiff] and the police." (Id.). Poellot could not recall what was said during the altercation, but understood that "there was a problem with her filming." (Id., p. 20).
Sometime on June 7, 2012, Plaintiff telephoned the American Civil Liberties Union (the "ACLU"). (Karteron Declaration, Ex. 10, p. 181). Plaintiff did not "get through" to a person and did not testify as to whether the purpose of her call was to obtain representation, rather than to further her goal of organizing "neighborhood training." (Karteron Declaration, Ex. 10, p. 181). However, when asked at her deposition if June 7 was "the first time that you called the ACLU about your case," Plaintiff answered in the affirmative. (Id.).
Plaintiff claims that she lost her iPhone on the night of June 7, 2012. (Zuckerman Declaration, Ex. D, p. 111). According to Plaintiff, she attended a gala at a banquet hail on Park Avenue that night and brought a "really small purse," which apparently could not accommodate the phone and the other things Plaintiff needed to carry. (Id., pp. 111-13; Karteron Declaration, Ex. 10, pp. 112, 116). As a result, Plaintiff either had to carry the phone in her hand or place it down somewhere. (Zuckerman Declaration, Ex. D, pp. 112-13; Karteron Declaration, Ex. 10, p. 112).
At the end of the gala, Plaintiff took a cab from Park Avenue to her home on Clifton Place. (Zuckerman Declaration, Ex. D, pp. 112-13; Karteron Declaration, Ex. 10, p. 112). The next morning, she was unable to find her phone. (Zuckerman Declaration, Ex. D, pp. 112, 114; Karteron Declaration, Ex. 10, pp. 112. 114). Plaintiff called her cell phone number from home and the office, called AT&T, and tried a "Find My Phone" app, F all without success. (Zuckerman Declaration, Ex. D, p. 114; Karteron Declaration, Ex. 10, pp. 114-15). She claimed
26

that she also called "Yellow Cab," but was told that "there was no way they would be able to locate the phone." (Karteron Declaration, Ex. 10, p. 117). Plaintiff did not call or visit the banquet hail, even though she recognized the possibility that she "could have left it at the venue
and didn't realize" it. (Zuckerman Declaration, Ex. D, p. 112; Karteron Declaration, Ex. 10, pp. 112, 117).
DISCUSSION I. The Summary Judgment Standard
Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotation omitted; brackets added).
Initially, the moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must then "set forth specific facts showing that there is a genuine issue for trial." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotation omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal citation and brackets omitted). Moreover, a party cannot sustain its burden in opposing
27

summary judgment by relying on inadmissible hearsay evidence. See G.L Home Developing Corp. v. Weis, 499 F. App'x 87, 90 (2d Cir. 2012) (summary order).
When evaluating a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences and resolving all ambiguities in his favor. See Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171 5 175 (2d Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); see also Swartz v. Insogna, 704 F.3d 105, 109 (2d Cir. 2013). No genuine triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). "If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and brackets omitted). H. Probable Cause
In the first of their three arguments for summary judgment, Defendants assert that the undisputed facts establish that the officers had probable cause to arrest Plaintiff for either obstructing governmental administration in the second degree, as defined in New York Penal Law § 195.05, or disorderly conduct, as set forth in either subsection (2) or subsection (6) of New York Penal Law § 240.20. "The existence of probable cause gives an officer the privilege to arrest ...." Marshall v. Sullivan, 105 F.3d 47, 50 (2d Cir. 1996) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Accordingly, "the existence of probable cause is 'a complete defense to [a civil rights action arising from, an arrest],' whether brought under state
28

law or Section 1983." Daniels v. D 'Aurizo, 564 F. Supp. 2d 194,197 (W.D.N.Y. 2008) (quoting Bernard, 25 F.3d at 102 (brackets added in Daniels)). Summary judgment dismissing a plaintiff's false arrest or false imprisonment claim is, therefore, "appropriate if the undisputed facts indicate that the arresting officer's probable cause determination was objectively reasonable." Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007).
Probable cause for an arrest requires that an officer "have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Fabrikant v. French, 691 F.3d 193 9 214 (2d Cir. 2012). To determine whether probable cause exists, "courts must consider those facts available to the officer at the time of the arrest and immediately before it, ... as probable cause does-not require absolute certainty." Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation marks, brackets, emphasis, and citations omitted). Courts must examine the "totality of the circumstances" and "be aware that 'probable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules." Caldarola v. Calabrese,298 F.3d 156, 162 (2d Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
Obstructing Governmental Administration in the Second Degree Section 195.05 of the New York Penal Law provides, in pertinent part:
A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act
RE

Citing to Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995), which pre-dated the most recent amendment to § 190.05, Plaintiff and Defendants agree that there are four elements to this crime: "(1) prevention or attempt to prevent (2) a public servant from performing (3) an official function (4) by means of intimidation, force or interference." Defendants' Memo, p. 9; Plaintiffs Memo, p. 4. However, the elements listed by the parties not only differ somewhat from the elements contained in New York Criminal Jury Instructions (the "CH")—the pattern jury instructions drafted by, and generally used by, members of the New York State judiciary—but also misstate and omit certain important details.'
First, the fourth element listed above misstates the statutory language by omitting the word "physical." The statute provides that a defendant must intentionally prevent or attempt to prevent a public servant from performing an official function "by means of intimidation, physical force or interference" or by other means listed. N.Y. Penal Law § 195.05 (emphasis added). The New York Court of Appeals has held that the word "physical" modifies the word "interference," as well as the word "force." People v. Case, 42 N.Y.2d 98, 101, 365 N.E.2d 8725, 874 (1977).
'According to the CJI, the prosecution must prove the following three elements in order to establish that a defendant is guilty of the crime of obstructing governmental administration in the second degree:
1. That ... the defendant ... prevented or attempted to prevent a public servant from performing an official function; 2. That the defendant did so intentionally, and ... by means of intimidation, physical force or interference [or] by means of any independently unlawful act 3. That ... the official function was authorized. CJI2d [NY] Penal Law § 195.05 (available at http://www.nycourts.gov/judges/cji/2PenalLaw/1 95/art 1 95hp.shtml).
30

Since "mere words alone do not constitute 'physical force or interference' such as to support the charge of obstructing governmental administration," Id., 42 N.Y.2d at 102, 365 N.E.2d at 875, "purely verbal interference may not satisfy the 'physical' component under Penal Law § 195.05." Matter of Davan L., 91 N.Y.2d 88 3, 91, 689 N.E.2d 909, 910 (1997); see Uzoukwu v. City off. Y, 805 F.3d 409, 414 (2d Cir. 2015) "[T]he interference would have to be, in part at least, physical in nature."L Case, 42 N.Y.2d at 102, 365 N.E.2d at 875.
Second, the elements listed by the parties omit the third element set forth in the CH: "That ... the official function was authorized." Under New York law, "the official function being performed must be one that was 'authorized by law." Lennon, 66 F.3d at 424. Accordingly, a "defendant may not be convicted of obstructing governmental administration or interfering with an officer in the performance of an official function ... unless it is established that the police were engaged in authorized conduct." United States v. Olavarria, No. 09 CR. 870 (PGG), 2011 WL 1529190, at *7 (S.D.N.Y. Apr. 20, 2011) (quoting People v. Lupinacci, 191 A.D.2d 589, 589, 595 N.Y.S.2d 76, 77 (N.Y. App. Div. 1993)). A police officer's detention of an individual is not "authorized" unless the officer possessed "reasonable suspicion" that the individual was involved in criminal activity. Lupinacci, 191 A.D.2d at 589, 595 N.Y.S.2d at 77.
In this case, there is a genuine issue of material fact with respect to whether Plaintiff physically interfered with the officers' performance of an official function and whether the official function was authorized by law. First, it is unclear what, if any, official function the officers were prevented from performing. Plaintiff arrived sometime after the officers finished frisking the young men and, discovering no weapons, determined that there was no evidence of their involvement in criminal activity. Plaintiff may have delayed the process of questioning the
31

teens, but there is evidence that the officers were nonetheless able to do so. Williams testified that the officers "finished copying down whatever information [they] needed from the teens" sometime before Famighetti arrived, (Karteron Declaration, Ex. 5, p. 77), and Benites testified that she was able to complete three UF-250s using that information. (Karteron Declaration, Ex. 4, p. 224, & Exs. 14 & 15). Moreover, there is no evidence that Plaintiff physically interfered with the officers' questioning of the teens, even though her alleged refusal to obey every command to back up and her insistence on videotaping "aggressively" and "directly in [Benites'] face" (Karteron Declaration, Ex. 14, p. 2, & Ex. 15, pp. 2-3) may have proved an, noying and distracting.
Second, there is a genuine issue of material fact with respect to whether Officers Williams and Benites had reasonable suspicion that the teens were involved in a crime. Although the two officers testified that the young men fit a robbery pattern allegedly discussed during the roll call on June 5, 2012, there is a factual question regarding whether Famighetti ever discussed that robbery pattern. Officer Dumelle, who recalled attending that roll call, did not recall Sergeant Famighetti saying anything about a robbery pattern. (Karteron Declaration, Ex. 1, p. 45).
In addition, there is a very substantial issue of fact regarding what, if anything, Famighetti told the members of the 79 01 Precinct Conditions Unit about the robbery pattern. In a declaration dated July 17, 2014, Famighetti stated that the description of the robbery pattern was contained in the 79' Precinct's Command Conditions Report for the week of June 4 through June 12, 2012 (Karteron Declaration, Ex. 6, ¶ 2). That Report stated that the pattern involved one black man approaching victims on the street, snatching "property (electronics)," and fleeing on a bicycle.
32

(Zuckerman Declaration, Ex. Q. The Report did not mention the age of the perpetrator or offer any descriptive details aside from his sex and race, did not mention any accomplices, and did not indicate precisely where the robberies had occurred.
Yet, Famighetti, Williams and Benites all claimed that the robbery pattern contained details which were not set forth in the Command Conditions Report. Famighetti testified that the pattern involved three black men, aged 18 to 30, committing "strong-arm robberies" on bicycles. (Karteron Declaration, Ex. 3, p. 49). Although Williams and Benites both learned of the robbery pattern from Famighetti, they recalled the pattern differently. Williams testified that the pattern involved "gunpoint robberies" by "young teens on bicycles," (Karteron Declaration, Ex. 5, pp. 20-21), while Benites recalled that the robbery pattern involved three to four or five males between the ages of 15 and 20, riding bicycles and stealing cell phones. (Zuckerman Declaration, Ex. B, p. 34; Karteron Declaration, Ex. 4, pp. 29-30).
Even assuming that the officers' recollections of the robbery pattern were correct, there is a question as to whether the teens on Clifton Place matched even the vague description the officers claimed to recall. Williams claimed that "three young teens on bikes ... roughly matched the robbery pattern," (Karteron Declaration, Ex. 5, p. 35), while Benites claimed: "They matched the pattern that we were told, young males between 15 and 20 on bicycles." (Zuckerman Declaration, Ex. B, pp. 47-48; Karteron Declaration, Ex. 4, p. 47). However, neither officer was certain how many bicycles the teens had at the time of the stop. Williams initially testified that he saw "two teens on bicycles," along with a third teen who did not have a bicycle, (Karteron Declaration, Ex. 5, p. 32), but later claimed to have seen "three young teens on bikes." (Id, p. 35). Benites initially testified that she "observed ... three males on bicycles," (Zuckerman
33

Declaration, Ex. B, p. 47), but subsequently admitted that she was unsure how many bicycles she observed. (Karteron Declaration, Ex. 4, p. 51).
Furthermore, the officers' claims that they observed multiple bicycles was contradicted by the testimony of several lay witnesses. One of the teens, D.C., testified that he was repairing his bicycle in the company of three friends and that he was the only one with a bike. (Karteron Declaration, Ex. 9, p. 10). That testimony was corroborated by two other witnesses—Cannon and Cannady—both of whom testified that there was only one bicycle. (Karteron Declaration, Ex. 8, p. 15, & Ex. 12, pp. 25-26). In light of this testimony and the conflicting testimony regarding what Famighetti told Williams and Benites, it is unclear whether Officers Williams and Benites had reasonable suspicion that would justify the stop of the teens. Accordingly, there is a genuine issue of material fact as to whether the stop and frisk of the teens was authorized by law.
Disorderly Conduct New York Penal Law § 240.20 provides, in pertinent part:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: ... (2) He makes unreasonable noise; or ... (6) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse Although Plaintiff was charged with violating subsection 2, Defendants contend that the officers had probable cause to arrest Plaintiff under either subsection 2 or subsection 6. Before addressing those subsections specifically, it is important to note that "a finding that defendant's disruptive statements and behavior were of a public rather than an individual dimension" is "critical to a charge of disorderly conduct." People v. Baker, 20 N.Y.3d 354, 359, 984 N.E.2d 902, 905 (20l3). As the New York Court of Appeals has explained, the disorderly
34

conduct statute is violated only in "situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem." People v. Munafo, 50 N.Y.2d 326, 331, 406 N.E.2d 780, 783 (1980). "In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny." Id.
The requirement that there be some "evidence of actual or threatened public harm ('inconvenience, annoyance or alarm')," People v. Johnson, 22 N.Y.3d 1162, 1164, 9 N.E.3d 902, 903 (2014), restricts the conduct that constitutes "disorderly conduct." For example, to establish a violation of § 240.20, there must be evidence of an "unreasonable noise," which the New York Court of Appeals defines as "a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate." People v, Bakolas, 59 N.Y.2d 51, 53, 449 N.E.2d 738, 740 (1983). Section 240.20's requirement that the noise be intended to cause, or recklessly create a risk of, public inconvenience, annoyance or alarm further "narrows the definition, so that no inadvertently disturbing act may be punished." Id., 59 N.Y.2d at 54, 449 N.E.2d at 740.
Similarly, § 240.20(6) requires more than evidence of a failure to disperse when directed to do so by a police officer. For example, in People v. Johnson, supra, a defendant was arrested for disorderly conduct after he and three other young men, reputed to be gang members, failed to move after being asked to do so by the police. The New York Court of Appeals held that the police lacked probable cause to arrest for a violation of § 240.20(6), noting that "[t]he only evidence of any possible impact on the public resulting from their presence was the officer's testimony that one of defendant's companions 'was partially blocking' the entrance to a store by
35

standing in front of it" and this evidence was "not sufficient to satisfy the public harm element of the statute." Id., 22 N.Y.3d at 1164, 9 N.E.3d at 903.
In this case, there are genuine issues of material fact which preclude the Court from finding as a matter of law that there was probable cause to arrest Plaintiff for disorderly conduct. First, there is conflicting testimony as to whether Plaintiff ever made "unreasonable noise." Three witnesses—Cannon and Officers Benites and Williams—testified that Plaintiff arrived either screaming, yelling, or talking very loudly. However, three other witnesses—Cannady, D.C. and Plaintiff—testified to the contrary. Cannady testified that Plaintiffs voice was only "a little raised" when she began speaking to the officers, and that she "Wasn't screaming," (Zuckerman Declaration, Ex. H, p. 41), while D.C. recalled that Plaintiff was not screaming, yelling, or talking loudly at any point before she was arrested. (Karteron Declaration, Ex. 9, p. 35). Plaintiff testified that she did not raise her voice at all before Benites touched her and that she only spoke "slightly above normal," in a "distressed voice," thereafter. (Zuckerman Declaration, Ex. D, pp. 58-59; Karteron Declaration, Ex. 10, pp. 58-60).
Second, there is no evidence that Plaintiff disobeyed a lawful order to disperse. According to Plaintiff, Sergeant Famighetti announced that he was not sure what was going on, but that "they are all going to leave now." (Zuckerman Declaration, Ex. D, p. 62; Karteron Declaration, Ex. 10, p. 62). The Court cannot find that any, much less all, reasonable jurors would construe this ambiguous statement as an order to disperse. Indeed, Plaintiff testified that she did not know what the sergeant meant by that statement, (id.), and there is no basis for finding that she deliberately disregarded the order with an intent to cause public inconvenience.

Even if this Court could find as a matter of law that Plaintiff was unreasonably loud or that Plaintiff deliberately refused to comply with an order to disperse, it could not find that Plaintiffs actions created "a potential or immediate public problem." To be sure, there is evidence that a group of onlookers witnessed Plaintiffs interaction withIhe police. Yet, Cannady testified that those onlookers were present at the scene before Plaintiff arrived and were themselves questioning the police action. (Karteron Declaration, Ex. 8, pp. 31-34). Although Plaintiff subsequently gave herself credit for prompting the neighbors to "come out and get involved," (Zuckerman Declaration, Ex. I, p. 1), Cannady recalled that onlookers were "saying the same thing" before and after Plaintiff arrived on the scene. (Karteron Declaration, Ex. 8, pp. 34-35).
In sum, the Court finds that genuine issues of material fact exist which preclude the Court from finding that probable cause existed. Accordingly, the Court denies Defendants' motion for summary judgment with respect to Plaintiffs Fourth Amendment and Article I, section 8, claims, and denies summary judgment with respect to Plaintiffs common-law claims for false arrest and false imprisonment. III. The First Amendment Retaliation Claim
Defendants' second argument for summary judgment relates to Plaintiffs claim that she was arrested in retaliation for exercising her First Amendment rights. To prevail on such a claim, a plaintiff must prove, inter alia, that "defendants' actions were-motivated or substantially caused by his exercise of that right." Curley v. Viii. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citing Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998)). "Specific proof of improper motivation is required in order for plaintiff to survive summary judgment on a First Amendment retaliation
37

claim." Id. (citing Blue v. Koren, 72 F.3d 1075, 1082-83 (2d Cir. 1995)). Furthermore, "[tjhe. existence of probable cause will defeat ... a First Amendment claim that is premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive ...." Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 956 (2d Cir. 2015) (quoting Fabrikant, 691 F.3d at 215) (first set of ellipses in Fabrikant. "This is because '[a]n individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause, even if that prosecution is in reality an unsuccessful attempt to deter or silence criticism of the government."" Id. (quoting Fabrikant, 691 F.3d at 215 (brackets added in Mangino, internal quotation marks in Fabrikant omitted).
Defendants' second argument for summary judgment advances two separate bases for dismissing Plaintiffs First Amendment retaliation claim. The first is predicated on the same claim that undergirds Defendants' first argument: that the police undisputedly had probable cause to arrest -and prosecute Plaintiff. As explained in section Ii, ante, genuine issues of material fact preclude the Court from finding that probable cause existed. Accordingly, the Court cannot grant summary judgment with respect to Plaintiff's First Amendment retaliation claim on this basis.
The second basis is that Plaintiff cannot provide specific proof of a retaliatory motive. In her opposition, Plaintiff theorizes that her arrest was "in retaliation for (1) her filming of the stop-and-frisk on Clifton Place, (2) her request to file a complaint against Officer Benites, and (3) her speech about the stop-and-frisk she witnessed and the NYPD's stop-and-frisk practices generally." Plaintiffs Memo, p. 12. There is at least circumstantial evidence to support all three theories.
38

First, there is at least some evidence suggesting that Plaintiff was arrested because she was filming the stop and frisk. Although Williams testified that he told Plaintiff that she was "free to record" the incident if she did so "from a safe distance," (Zuckerman Declaration, Ex. A, p. 61), most of the civilian witnesses recalled that the police repeatedly told Plaintiff to stop filming. Cannady testified that she heard the officers tell Plaintiff at least five times to stop recording. (Karteron Declaration, Ex. 8, pp. 51, 70-71). Brown variously testified that the officers told Plaintiff "to stop filming or to stop with the phone," to "turn that off," or that "she couldn't film there." (KarterOn Declaration, Ex. 11, pp. 25, 32, 35). D.C. recalled that the officers told her to "stop recording" and that "one cop told her to leave." (Karteron Declaration, Ex. 9, pp. 8, 26). Although Plaintiff did not testify that the officers told her to stop filming, she claimed that Benites insisted that she move so far back as to "put [her] without reach of being able to videotape the process." (Zuckerman Declaration, Ex. D, p. 47; Karteron Declaration, Ex. 10, p. 47).
This evidence that Plaintiff's arrest was connected to the filming is further supported by Plaintiff's testimony regarding Benites' insistence that Plaintiff unlock her iPhone. According to Plaintiff, Benites maintained that she needed access to the phone in order to retrieve the telephone number of someone who could verify Plaintiff's identity, even though Plaintiff offered to provide a telephone number from memory. (Karteron Declaration, Ex. 10, pp. 88-9 1). Plaintiff did not see If Benites viewed the video after the telephone was unlocked, (Zuckerman Declaration, Ex. D, pp. 92-93; Karteron Declaration, Ex. 10, p. 92), and both Benites and Williams expressly denied having done so. (Zuckerman Declaration, Ex. B, p. 188; Karteron Declaration, Ex. 5, p. 170). However, the fact that the video was accessible once the iPhone was
39

unlocked would tend to explain Benites' otherwise inexplicable insistence that Plaintiff unlock her phone.
Second, there is some evidence to support the theory that the police arrested Plaintiff in order to dissuade her from 1filing a complaint. Famighetti testified that he arrived at Clifton Place to see a woman—presumably, Plaintiff—screaming and yelling in the presence of Benites, Williams, and a small crowd. (Karteron Declaration, Ex. 3, p. 66). Nonetheless, Plaintiff was not arrested until after she stated that she wanted to file a formal complaint against Benites for shoving her. (Zuckerman Declaration, Ex. D, pp. 62-63; Karteron Declaration, Ex. 10, p. 62, 64). According to Plaintiff, her statement prompted Famighetti to confer with the officers, after which he ordered Plaintiff arrested, (Zuckerman Declaration, Ex. D, p. 66; Karteron Declaration, Ex. 10, p. 64).
Although the police did not announce a reason for arresting Plaintiff, the temporal proximity permits the inference that there was a causal link between Plaintiff's statement and her arrest. The inference was further supported by the fact that Famighetti asked to talk to Plaintiff following her release and, standing outside the precinct in the presence of both Benites and Williams, broached the subject of whether she still wanted to file a complaint. These facts suggest that Famighetti wanted to dissuade Plaintiff from filing a complaint and was willing to use intimidating tactics to discourage her from doing so.
Third, there is evidence that Plaintiff may have been arrested because of statements she made. Plaintiff testified that, during the videotaping, she said something about the disproportionate number of blacks and Latinos who were stopped and frisked. (Zuckerman Declaration, Ex. D, pp. 145-46; Karteron Declaration, Ex. 10, pp. 145-46). While she thought
40

she "only said it loud enough so [her] ... phone would hear it," she said it in the presence of the officers and did not know if she also "said it to the officers." (Zuckerman Declaration, Ex. D, p. 146; Karteron Declaration, Ex. 10, p. 146). In addition, Plaintiff testified that during the drive to the 79' Precinct, Benites accused Plaintiff of being "a street lawyer" and stated, "this is what happens when you get involved." (Karteron Declaration, Ex. 10, pp. 70-71, 85). Taken together, this evidence may permit the inference that the police arrested Plaintiff because she voiced her objection to the stop and frisk of the teens and to the NYPD's stop-and-frisk policy. IV. Qualified Immunity
In their third argument for summary judgment, Defendants argue that the officers are entitled to qualified immunity with respect to Plaintiff's Fourth Amendment claim because the officers had at least "arguable" probable cause to arrest Plaintiff and with respect to the First Amendment claim because the right to videotape police activity in public was not "clearly established" as of June 5, 2012. "Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichie v. Howards, 566 U.S. 658,—, 132 S. Ct. 2088, 2093 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). In Saucier v. Katz, 533 U. S. 194 (2001), the Supreme Court mandated a two-step sequence for resolving government officials' qualified immunity claims, requiring that a court first decide whether the facts a plaintiff has shown make out a violation of a constitutional right and, if the plaintiff has satisfied this first step, then decide whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct. Id. at 201. In 2009, however, the Supreme Court abandoned this mandate, holding that "courts may grant qualified immunity on the ground that a purported
41

right was not 'clearly established' by prior case law, without resolving the often more difficult question whether the purported right exists at all." Reichie, 132 S. Ct. at 2093 (citing Pearson V. Callahan, 555 U.S. 223, 236 (2009)).
"A Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right." al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (brackets added in al-Kidd). There need not be "a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id.
"To determine whether the relevant law was clearly established, [courts] consider the specificity with which a right is defined, the existence of Supreme Court or Court of Appeals case law on the subject, and the understanding of a reasonable officer in light of preexisting law." Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014) (citing Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010)). "A right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) 'a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful," Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quoting Young v. County ofFuiton, 160 F.3d 899, 903 (2d Cir. 1998)) (brackets in Anderson). With respect to the second element, courts "look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation." Okin v. Viii. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009) (citing Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004)). Generally, "[w]hen neither the Supreme Court nor [the Second Circuit] has recognized a right, the law of our sister circuits and
42

the holdings of district courts cannot act to render that right clearly established within the Second Circuit." Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (citing Anderson, 317 F.3d at 197). However, even if the Second Circuit "has not explicitly held a course of conduct to be unconstitutional, [a court] may nonetheless treat the law as clearly established if decisions from this or other circuits 'clearly foreshadow a particular ruling on the issue." Terebesi, 764 F.3d at 231 (quoting Scott, 616 F.3d at 105).
"If the right at issue was not clearly established by then existing precedent, then qualified immunity shields the defendant." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007). Moreover, "[e]ven if the right at issue was clearly established in certain respects, ... an officer is still entitled to qualified immunity if 'officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For example, if "officers of reasonable competence could disagree' as to whether probable cause existed, 'immunity should be recognized." Zeilner v. Summer/in, 494 F.3d 344, 367 (2d Cir. 2007) (quoting Malley, 475 U.S. at 341). Conversely, "if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that' probable cause existed, '[d]efendants will not be immune.... "' Id.
"Whether a defendant officer's conduct was objectively reasonable is a mixed question of law and fact." Id. (citing cases). "[A] conclusion that the defendant official's conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts ...." Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004). However, "if there is such a dispute, the factual questions must be resolved by the factfmder ...." Id. Accordingly, although "[t]he ultimate question of whether it was objectively reasonable for
43.

the officer to believe that his conduct did not violate a clearly established right, i.e., whether. officers of reasonable competence could disagree as to the lawfulness of such conduct, is to be decided by the court," Zeilner, 494 F.3d at 367, that determination can be made only after "the jury has resolved any disputed facts that are material to the qualified immunity issue ...." Id. at 368.
Arguable Probable Cause In their third argument for summary judgment in this case, Defendants argue that they are entitled to qualified immunity on Plaintiff's Fourth Amendment claim because there was at least arguable probable cause to arrest Plaintiff. As discussed in detail in section II, ante, there exist genuine issues of material fact which preclude the Court from determining whether there was probable cause, or even arguable probable cause, at this juncture. That determination can be made only after the jury has resolved the disputed facts that are material to the qualified immunity issue. See Zeliner, 494 F.3d at 368. Accordingly, Defendants' motion to dismiss Plaintiff's Fourth Amendment claim on qualified immunity grounds is denied at this time. The Right to Film Police Activity Defendants also argue that they are entitled to qualified immunity with respect to Plaintiff's First Amendment claim. This argument assumes that Plaintiff's First Amendment retaliation claim is based solely on a violation of her right to videotape public police activity. Specifically, Defendants argue that "[P]laintiff contends that the protected First Amendment activity that she was engaged in was the videotaping of the underlying stop," but that the right to videotape was not a "clearly established' right of [P]laintiff' because "neither the United States
44

Supreme Court nor the Second Circuit Court of Appeals had ruled that [P]laintiffhad a protected First Amendment right to film as of the date of this incident." Defendant's Memo, p. 21.
In response, Plaintiffs Opposition cites to various Supreme Court and Second Circuit cases holding that photographs and films are speech protected by the First Amendment. Plaintiffs Memo, pp. 16-17 (citing cases). Plaintiff concedes that "these cases do not address the precise circumstances of this case—the filing of police activity in public," but argues that the "contours of the right" to film police activity in public was, nonetheless, "sufficiently clear" to
place the officers on notice that their conduct violated Plaintiffs rights. Id., p. 17.
Even though neither the Supreme Court nor the Second Circuit has explicitly held that there is a right to videotape or film police activity, the Court may nonetheless find that the right is clearly established "if decisions from this or other circuits 'clearly foreshadow a particular ruling on the issue." See Terebesi, 764 F.3d at 231; Scott, 616 F.3d at 105. Several other circuit courts have either held or implied that a right to film police activity exists, at least under some circumstances. First, in Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995), the Ninth Circuit implied that there was a First Amendment right to film matters of public interest. Fordyce involved a journalist who alleged a violation of his "First Amendment right to gather news" after he was allegedly assaulted and arrested by police officers whom he had videotaped during a protest. Fordyce, 55 F.3d at 438. In addressing a portion of the district court opinion which found "no evidence that would permit a rational jury to find that [Fordyce] was assaulted," Fordyce v. City of Seattle, 840 F. Supp. 784, 788 (W.D. Wash. 1993), the Ninth Circuit held: "a genuine issue of material fact does exist regarding whether Fordyce was assaulted and battered by a Seattle police officer in an attempt to prevent or dissuade him from exercising his First
45

Amendment right to film matters of public interest." Fordyce, 55 F.3d at 439. However, the Ninth Circuit did not elaborate further on the First Amendment right.
Second, in Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), the Eleventh Circuit recognized a First Amendment right to photograph or videotape police conduct, subject to reasonable time, manner and place restrictions. In that case, the district court had, in an unreported opinion, granted the defendants' motion for summary judgment with respect to a claim that one of the plaintiffs had been prevented from videotaping police actions in violation of his First Amendment rights. The Eleventh Circuit found that the plaintiffs "had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct." Id. at 1333. However, the Eleventh Circuit held that the plaintiffs had "not shown that the Defendants' action violated that right," id., and did not elaborate on the limits of that right.
Third, in Glik v. Cunnj,'fe, 655 F.3d 78 (1st Cir. 2011), the First Circuit recognized a First Amendment right "to videotape police carrying out their duties in public." Id. at 82. However, citing to Smith, supra, the First Circuit noted that "the right to film is not without limitations," and "may be subject to reasonable time, place, and manner restrictions." Id. at 84. Noting, inter alia, that the complaint indicated that Glik filmed the officers "from a comfortable remove" and "neither spoke to nor molested them in any way," the First Circuit, like the Eleventh Circuit, found "no occasion to explore those limitations ...." Id.
Fourth, in American Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012), the Seventh Circuit implied that there was a right to make audiovisual recordings of police officers performing their duties in public places. In that case, the ACLU argued that Illinois'
46

eavesdropping statute, which proscribed audiovisual recordings of conversations unless all parties to the conversation consented, was unconstitutional as applied to its planned "police accountability program," which included a plan to openly make audiovisual recordings of police officers performing their duties in public places. A district court dismissed the ACLU's action, but the Seventh Circuit reversed that ruling and directed that the ACLU's application for a preliminary injunction be granted. Relying in part on Glik, the Seventh Circuit concluded that there was a First Amendment right to gather information about government officials perfohning their duties in public, id. at 600-0 1, and that the statute at issue was likely to fail intermediate scrutiny. Id. at 604-08. However, the court noted: "a regulatory measure may be permissible as a time, place, or manner restriction if it is justified without reference to the content of the regulated speech, ... narrowly tailored to serve a significant governmental interest, ... and leave[s] open ample alternative channels for communication of the information." Id. at 605 (internal quotations and citations omitted).
At least two other circuit court cases have held that the right to record police activity in public places is not clearly established. The first—Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010)—involved a suit brought by a passenger who had been arrested following a traffic stop after a police officer noticed that he had been recording the stop without the officer's knowledge or consent. The district court granted summary judgment to the arresting officer on qualified immunity grounds, finding, with respect to the plaintiffs First Amendment claim, that it was "unclear whether plaintiff had a First Amendment right to videotape the police stop ...." Kelly v. Borough of Carlisle, No. 1 :07-cv-7573, 2009 WL 1230309, at *8 (M.D. Pa. May 4, 2009). In affirming this portion of the district court's decision, the Third Circuit noted that Smith
47

and a district court opinion—Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005)—had "announce[d] a broad right to videotape police," but held that "there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on 'fair notice' that ... arresting an individual for videotaping police during the stop would violate the First Amendment." Kelly, 622 F.3d at 262. The Court also noted: "[E]ven insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions, as long as they are 'justified without reference to the content of the regulated speech, ... are narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Id. at 262 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
The second case—Szymecki v. Houck, 353 Fed. App'x 852 (4th Cir. 2009)—is an unreported case in which the Fourth Circuit affirmed a district court's grant of summary judgment to the defendants on qualified immunity grounds. Citing Hope v. Peizer, 536 U.S. 730, 739 (2002), for the proposition that "the contours of the constitutional right 'must be sufficiently clear that a reasonable official would understand what [she] is doing violates that right," the Fourth Circuit concurred with the district court's view that the "First Amendment right to record police activities on public property was not clearly established in [the Fourth C]ircuit at the time of the alleged conduct." Szymecki, 353 Fed. App'x at 852-853. The Fourth Circuit did not specify when the conduct occurred or address the facts of that case in any detail.
At least three district courts in this Circuit have held that the right to record police activity is not clearly established. First, in Mesa v. City ofNew York, No. 09 Civ. 10464 (JPO), 2013 WL
48

31002 (S.D.N.Y. Jan. 3, 2013), Judge Oetken granted summary judgment on qualified immunity grounds with respect to a First Amendment retaliation claim brought by an individual who was arrested after photographing the police as they were dispersing a crowd of which he was a part. Citing to the six circuit court opinions discussed above, Judge Oetken implied that there was a split of authority in the circuits and noted that "no Second Circuit case has directly addressed the constitutionality of the recording of officers engaged in official conduct." Id. at *24..*25. The judge concluded that, while he was "inclined to agree" with the view that "the photography and recording of police officers engaged in their official duties 'fits comfortably' within First Amendment principles," the defendants were "nevertheless entitled to summary judgment on [the] First Amendment [retaliation] claim, as the right to photograph and record police is not clearly established as a matter of constitutional law in this Circuit." Id. at *25 (brackets added).
In the second case—Rivera v. Foley, No. 14-CV-196 (VLB), 2015 WL 1296258 (D.Conn. Mar. 23, 2015)—Judge Bryant granted a motion to dismiss on qualified immunity grounds a claim that a police officer's order that the plaintiff stop flying a drone over an accident site constituted a violation of First Amendment rights. Relying on Mesa, Judge Bryant held that as of February 1, 2014, "the time of the acts alleged in the Complaint, the right to photograph and record police officers who are engaged in an ongoing investigation was not clearly established as a matter of constitutional law in this Circuit." Id. at *9• The Court distinguished Glik and Alvarez, supra, stating:
[I]n cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. ... By contrast, here
49

Plaintiff directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. Id. at *10.
In the third case—Basinski v. City of New York, 192 F. Supp. 3d 360 (S.D.N.Y. 2016)
—the plaintiff, the founder and director of the Street Vendor Project at the Urban Justice
Institute, intervened in an encounter between a police officer and a vendor. The plaintiff used his
cell phone to videotape the incident and ultimately refused to comply with the officer's repeated
orders to move, remaining within "striking distance" of the officer while holding his cell phone
at face-level with his elevated left hand. Id. at 366. After the plaintiff refused to comply with
repeated requests to move and to provide identification, the police arrested him for obstructing
governmental administration and disorderly conduct. Id.
Basinski subsequently filed a § 1983 action, alleging, inter alia, that the defendant
officers had violated his First Amendment right to record police conduct by arresting him. The
defendants then moved for summary judgment on qualified immunity grounds. Relying on Mesa
and Rivera, Judge Swain granted the motion, holding that "the right to record police activity is
not one that was 'clearly established' beyond debate within this Circuit [at] the time of Basinski's
[September 2013] arrest." Id. at 368. The court stated:
Basinski has failed to proffer a case, and this Court can find none, wherein the Second Circuit has recognized that the right to record police activity is protected by the First Amendment. Nor has Basinski demonstrated that "the law [enshrining the right to record police activity] is defined with reasonable clarity[, that] a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful," Anderson, 317 F.3d at 197,
50

or that "the statutory or constitutional question beyond debate." alKidd, 131 S. Ct. at 2083. Basinski, 192 F. Supp. 3d at 368. Like Rivera, Basinski distinguished Glik and Alvarez, supra, ruling that the cases were "clearly distinguishable" because "Basinski filmed [the police officer] from mere feet away and admitted to having drawn his attention from the police business at hand." Id. At least one district court in this Circuit, however, has found that the First Amendment right to record police officers performing their duties in a public space is clearly established. In Higginbotham v. City of New York, 105 F. Supp. 3d 369 (S.D.N.Y. 2015), Judge Castel denied a motion to dismiss on qualified immunity grounds a lawsuit brought by a journalist who alleged that the police had arrested him in relation for his filming an arrest from atop a telephone booth. Judge Castel acknowledged that neither the Supreme Court nor the Second Circuit has decided whether a right to record police activity exists, but opined that "[a]ll of the circuit courts that have ... have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions." Id. at 379 (citing Alvarez, 679 F.3d at 608; Glik, 655 F.3d at 82; Smith, 212 F.3d at 1333; and Fordyce, 55 F.3d at 439). Based on these cases and five district court cases from other circuits which also recognized that right, Judge Castel concluded that "[a]t the time of
Higginbotham's arrest [in November 2011], there was ... a 'robust consensus of persuasive
authority' in favor of the right that 'clearly foreshadowed' an analogous ruling by the Second Circuit or the Supreme Court." Id. at 380 (brackets added).
51

Higginbotham acknowledged that Mesa had reached the contrary conclusion, but implied
that Mesa was incorrect in finding that there was a circuit split on the right to record.
Higginbotham noted that "Kelly and Szymecki did not decide whether thp right existed," but
merely held that, "even if it did exist, it was not clearly established for the purposes of qualified
immunity in those cases' factual contexts." 105F. Supp. 3d at 381 (citing Kelly, 622 F!3d at
262-63; Szymecki, 353 Fed. App'x at 853).
While holding that the plaintiff had a First Amendment right to film under the
circumstances presented in that case, Higginbotham expressly limited the holding to the facts of
that case. Judge Castel noted:
Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. ... There is nothing in the complaint suggesting that [Higginbotham's] filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.
Higginbotham, 105 F. Supp. 3d at 381 (brackets added).
In light of the foregoing cases, the Court concludes that issues of material fact prevent the
Court from determining whether Plaintiff had a right to record the police stop under the
circumstances of this case. First, the Court agrees with Higginbotham that an argument could be
made that a right to videotape police activity in public places was clearly established as of June 5,
2012. As Higginbotham correctly notes, Szymecki and Kelly do not hold that such a right does
52

not exist, but only that the right was not clearly established in the Fourth Circuit as of sometime prior to 2009 and in the Third Circuit as of late May 2007. In contrast, Fordyce, Smith, Glik, and Alvarez all either imply or hold that such a right exists, and Glik and Alvarez were both decided less than a year before the incident at issue. Accordingly, even though neither the Supreme Court nor the Second Circuit had explicitly held that there is a right to videotape or film police activity, one could argue that the "decisions from ... other circuits 'clearly foreshadow[ed]" a ruling that such a right existed under certain circumstances. See Terebesi, 764 F.3d at 231; Scott, 616 F.3d at 105.
None of those decisions, however, suggest that the right to film police activity is without limitation. To the contrary, three of the four circuit opinions discussed above and cited in Higginbotham expressly note that the right to film police activity is not absolute, but subject to reasonable time, place and manner limitations. See Glik, 655 F.3d at 84 (noting "the right to film is not without limitations," and "may be subject to reasonable time, place, and manner restrictions"); Alvarez, 679 F.3d at 605 (noting that although the Illinois eavesdropping statute was unconstitutional as applied to the ACLU's "police accountability program," "a regulatory measure may be permissible as a time, place, or manner restriction if it is justified without reference to the content of the regulated speech, ... narrowly tailored to serve a significant governmental interest,... and ... leave[s] open ample alternative channels for communication of the information."); Smith, 212 F.3d at 1333 (recognizing "a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct").
Although those cases held that a right to film police activity exists under some circumstances,
Rivera correctly notes that, in those cases, "it appears that the protected conduct has typically
53

involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue." Rivera, 2015 WL 1296258, at *10. Even Higginbotham concedes that "the right to record police activity in a public space is not without limits," and might not exist "if the recording interferes with the police activity." Higginbotham, 105 F. Supp. 3d at 381.
In this case, there is a substantial factual issue regarding whether Plaintiffs filming was interfering with police activity. Benites testified that, during the videotaping, Plaintiff not only "had the phone in [her] face and [Williams'] face," but actually touched Benites' face with the iPhone. (Zuckerman Declaration, Ex. B, p. 92; Karteron Declaration, Ex. 4, p. 104). Williams corroborated this, testifying that Plaintiff "put the cell phone up close to [his] face and up to [his] shield and ... nameplate" and was, at one point, within six inches of him. (Zuckerman Declaration, Ex. A, pp. 60-61; Karteron Declaration, Ex. 5, p. 61). D.C. recalled that Plaintiff was "about two feet" from the officers while she recorded them. (Zuckerman Declaration, Ex. E, p. 27; Karteron Declaration, Ex. 9, p. 27).
Although Plaintiff and other witnesses testified that Plaintiff was further away from the officers, Plaintiff own testimony establishes that the officers told her that she was too close. Plaintiff recalled that when she began to record the incident, Benites claimed that Plaintiff was "interfering with police business and needed to step back." (Zuckerman Declaration, Ex. D, p. 45; Karteron Declaration, Ex. 10, p. 45). Although Plaintiff responded to Benites' first and second requests by stepping back a foot each time, Plaintiff admits that she did not comply with Benites' third request. (Zuckerman Declaration, Ex. D, p. 48; Karteron Declaration, Ex. 10, p. 48). Plaintiff opined that she "was within the law in terms of being so many feet away at that
54

point," (id.), but Plaintiff, D.C. and Cannady testified that Benites shoved her further back. Plaintiff testified that the shove caused her to move "a step and a half' backwards. (Karteron Declaration, Ex. 10, p. 53). D.C. opined that the officers "were trying to push her away," (Karteron Declaration, Ex. 9, p. 28), while Cannady characterized it as a "defensive push," as if Benites was trying to get Plaintiffs cell phone "out of [her] face." (Karteron Declaration, Ex. 8, p. 46). A reasonable factfinder could conclude that this non-verbal act by Benites reflected her opinion that Plaintiff was still too close to the police activity.
Since there is a genuine issue of material fact as to whether Plaintiff was interfering in police activity, the Court cannot determine at this juncture whether Plaintiff had a clearly established right to film. However, even if this Court were to find that Plaintiffs videotaping interfered with police activity, that finding would not result in dismissal of Plaintiffs First Amendment retaliation claim on qualified immunity grounds. Plaintiff's First Amendment claim is not based solely on the theory that Defendants retaliated against Plaintiff for exercising her right to videotape police activity. Plaintiff also claims that the arrest was retaliation for Plaintiffs "request to file a complaint against Officer Benites" and "her speech about the stopand-frisk she witnessed and the NYPD's stop-and-frisk practices generally." Plaintiffs Memo, p. 12. V. Spoliation
Finally, Defendants argue that they are entitled to spoliation sanctions because Plaintiff allegedly lost the iPhone on which she recorded the incident. "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d
55

776, 779 (2d Cir. 1999). "Although a district court has broad discretion in crafting a proper sanction for spoliation, ... the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." Id. (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). A sanction for spoliation of evidence should be designed to "(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party." Id. (Internal quotations and citation omitted).
Defendants primarily seek dismissal of Plaintiff's lawsuit, asserting that it is "the only fair sanction in this instance." Defendants' Memo, p. 24. However, as Defendants themselves recognize, dismissal is a "drastic remedy" that "should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions." Id., see West, 167 F.3d at 779 (internal quotations and citations omitted). "Although dismissal can be entered even absent a finding of bad faith or willfulness, see Reilly v. Na/west Mkts. Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999) (noting that gross negligence constitutes showing of 'fault' that could warrant sanction of dismissal), the degree of fault on the part of the plaintiff is a relevant consideration in fashioning an appropriate sanction, see West, 167 F.3d at 779." Dahoda v. John Deere Co., 216 Fed. App'x 124, 125 (2d Cir. 2007) (summary order).
The Second Circuit has recognized that there exists "a continuum of fault ... ranging from innocence through the degrees of negligence to intentionality." Reilly, 181 F.3d at 267. Defendants contend that Plaintiff intentionally destroyed the cell phone because it contained "the best evidence of what she did unlawfully." Defendants' Memo, p. 24. The only evidence that

Defendants cite in support of that proposition is the fact that Plaintiff lost her cell phone two days after the incident, before downloading the video, and authored an undated social media post in
I
which she stated: "I have to figure out how to make this summons disappear." See Zuckerman Declaration, Ex. I, p. 2.
Destruction of the cell phone, however, would not have derailed the prosecution. This was not a case in which the cell phone video was the only evidence of the incident. Rather, there were two police witnesses who could testify that Plaintiff engaged in disorderly conduct and several civilian witnesses, at least one of whom recalled that Plaintiff was unreasonably loud. Even assuming that the cell phone video might have substantiated this testimony and provided powerful evidence of Plaintiff's guilt, it was not essential to the prosecution.
Moreover, there is no evidence that the police made any effort to secure the video for use in the prosecution of Plaintiff. The notion that Plaintiff would destroy an expensive phone simply for fear that the prosecution might attempt to secure it in the future strikes the Court as far-fetched. After all, "the severity of the crime was unquestionably slight." Brown v. City of New York, 798 F.3d 94, 102 (2d Cir. 2015). Disorderly conduct is a violation, punishable by no more than 15 days in jail and a fine of no more than $250. See N.Y. Penal Law §§ 70.15(4), 80.05(4). Since it is almost inconceivable that Plaintiff would be sentenced to jail, the penalty she faced might well have been less than the cost of a new phone.
Absent evidence of intentional destruction, the Court finds Plaintiff's conduct not nearly so egregious as to warrant the harshest sanction of summary dismissal. The Court must, however, still address Defendants' alternative argument: that, even if Plaintiff's conduct was negligent, the Court should impose the lesser sanction of an adverse inference charge.
57

Except in cases involving electronically stored information, see Fed. R. Civ. P. 37(e), "a party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the [evidence was] destroyed 'with a culpable state of mind'; and (3) that the destroyed evidence was 'relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,107 (2d Cir. 2002) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001)). With respect to the first element, "[t]he obligation to preserve evidence arises when the party has notice that the 'evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 200 1) (citing Kronisch, 150 F.3d at 126). With respect to the second element, "the 'culpable state of mind' factor is satisfied by a showing that the evidence was destroyed 'knowingly, even if without intent to [breach a duty to preserve it], or negligently." Residential Funding, 306 F.3d at 108 (quoting Byrnie, 243 F.3d at 109) (brackets and emphasis in Residential Funding).
With respect to the third element, Second Circuit cases "make clear that 'relevant' in this context means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence." Id. at 108-09. The party seeking an adverse inference charge must also "adduce sufficient evidence from which a reasonable trier of fact could infer that 'the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction." Id. at 109 (quoting Kronisch, 150 F.3d at 127, and Byrnie, 243 F.3d at 110) (brackets added in Residential Funding). "[A] party's intentional destruction of evidence
58

relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Kronisch, 150 F.3d at 126. "[A] showing of gross negligence in the destruction or untimely production of evidence will in some circumstances suffice, standing alone, to support a finding that the evidence was unfavorable to the grossly negligent party." Residential Funding, 306 F.3d at 109 (citing Reilly, 181 F.3d at 267-68.). However, "where the destruction was merely negligent, ... it cannot be inferred from the conduct of the spoliator that the evidence would even have been harmful to him" or favorable to the party seeking spoliation sanctions. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431 (S.D.N.Y. 2004).
In this case, the evidence presented by Defendants may be sufficient to make out the first two elements. First, Plaintiff testified that she called the ACLU on June 7, 2016. (Karteron Declaration, Ex. 10, p. 181). Although it is possible that Plaintiff called solely to further her plan to organize neighborhood training, she answered in the affirmative when asked at her deposition if June 7 was "the first time that you called the ACLU about your case?" (Id.). Since that call Presumably took place during business hours, before Plaintiff went to the gala, this evidence suggests that Plaintiff was anticipating future litigation at the time she lost the cell phone which, as she undoubtedly realized, contained the best evidence of what transpired during the incident.
Second, there is some evidence that Plaintiff lost the cell phone due to her own negligence. Plaintiff testified that she elected to bring a "really small purse" to the gala, forcing her either to carry the phone in her hand all evening or to lay it down. (Zuckerman Declaration, Ex. D, pp. 112-13; Karteron Declaration, Ex. 10, p. 112). It is at least arguable that a reasonable person would have realized that this arrangement rendered it more likely to lose the phone or to
59

have it stolen. Moreover, while Plaintiff recognized the possibility that she could have left the phone at the gala, she did not call or visit the banquet hail. (Zuckerman Declaration, Lx. D, p. 112; Karteron Declaration, Lx. 10, pp. 112, 117). This, too, could be construed as negligence.
This evidence, however, suggests at most mere negligence, not gross negligence. Thus, one cannot infer from Plaintiffs conduct alone that the video would have been unfavorable to Plaintiff. See Zubulake, 229 F.R.D. at 431. Defendants have not adduced evidence that what was depicted on the video was favorable to Defendants. Indeed, the only witnesses other than Plaintiff who saw the video was Poellot, who had only "vague recollections" that it depicted "some sort of altercation between [Plaintiff] and the police" relating to Plaintiffs filming. (Karteron Declaration, Ex. 13, pp. 10, 20). Since there is a genuine issue of material fact regarding what transpired during the videotaping, the Court cannot find that the lost videotape was likely to favor Defendants.
For these reasons, the Court cannot find based on the evidence presented by the parties that an adverse inference instruction would be appropriate. The Court recognizes the possibility, however, that Defendants could adduce evidence at trial that would establish that the lost video recording was likely to be favorable to them. Accordingly, Defendants' motion for spoliation sanctions is denied without prejudice to renewal at trial.
Me

CONCLUSION For the reasons stated above, Defendants' motion for summary judgment is denied. Defendants' motion for spoliation sanctions is denied without prejudice to renewal if the evidence adduced at trial establishes that the videotape of the incident was likely to favor Defendants. SO ORDERED.

7P
Dated: February , 2017 Brooklyn, New York

/s/ Sandra L.Townes
SANDRA L. TOWNE
United States District Judge

61

 
 Case 1:12-cv-06180-SLT-SMG Document 128 Filed 06/09/17 Page 1 of 4 PageID #: 1954 Case l:12-cv-06180-SLT-SMG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HADIYAH CHARLES,
-againstTHE CITY OF NEW YORK, et al„

IN CLERK'S OFFICE US DISTRICT COURT E.D.N.Y.
★ JUN 0 9 2017 ★

"BROORtYf^ OFFICE

Plaintiff,

STIPULATION OF SETTLEMENT AND ORDER OF DISMISSAL
12 CV 6180 (SLT)(SMG)

Defendants.

WHEREAS, plaintiff commenced this action by filing a complaint on or about December 17, 2012, and an amended complaint on April 15, 2013, alleging that the defendants violated plaintiff's federal civil and state common law rights; and
WHEREAS, defendants City of New York, Raymond W. Kelly, Anthony Famighetti, Raymond Williams and Pamela Benites denied any and all liability arising out of plaintiff's allegations; and
WHEREAS, the parties now desire to resolve the issues raised in this litigation, without fiirther proceedings aridwithout admitting any fault or liability; and
WHEREAS, plaintiff has authorized her comisel to settle this matter on the terms
set forth below; NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by
and between the imdersigned, as follows: 1. The above-referenced action is hereby dismissed against defendants, with
prejudice, and without costs, expenses, or attorneys' fees except as specified in paragraph "2"
below.

Case 1:12-cv-06180-SLT-SMG Document 128 Filed 06/09/17 Page 2 of 4 PageID #: 1955

Case 1:12-cv-06180-SLT-SMG Document 128 Filed 06/09/17 Page 3 of 4 PageID #: 1956

Case 1:12-cv-06180-SLT-SMG Document 128 Filed 06/09/17 Page 4 of 4 PageID #: 1957 s/SLT

 
 10/28/2017

Eastern District of New York - LIVE Database V6.1.1.2
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:12-cv-06180-SLT-SMG

CLOSED

Charles v. The City Of New York. et al Assigned to: Judge Sandra L. Townes Referred to: Chief Mag. Judge Steven M. Gold Cause: 42:1983 Civil Rights Act
Plaintiff Hadiyah Charles

Date Filed: 12/17/2012 Date Terminated: 06/09/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexis Brie Karteron New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 212-607-3300 Fax: 212-607-3318 Email: akarteron@nyclu.org TERMINATED: 06/03/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn NY Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 212-344-3005 Fax: 212-344-3329 Email: cdunn@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan S. Wells New York Civil Liberties Union 125 Broad Street New York, NY 10004 212-607-3300 Fax: 212-607-3318 Email: jwells@nyclu.org ATTORNEY TO BE NOTICED

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

Mariana Kovel New York Civil Liberties Union 125 Broad St, 19th Fl New York, NY 10004 212-607-3300 Fax: 212-607-3329 Email: mkovel@nyclu.org ATTORNEY TO BE NOTICED
1/15

10/28/2017

Eastern District of New York - LIVE Database V6.1.1.2
Robert Hodgson New York Civil Liberties Union 125 Broad St, 19th Floor New York, NY 10004 212-607-3317 Fax: 212-607-3329 Email: rhodgson@nyclu.org ATTORNEY TO BE NOTICED

V. Defendant The City of New York
Defendant Raymond Kelly Commissioner of the New York City Police Department
Defendant Raymond Williams a New York City Police Ofﬁcer
Defendant Anthony Famighetti a New York City Police Sergeant
Defendant Pamela Benities a New York City Police Ofﬁcer

represented by Mark David Zuckerman NYC Law Department 100 Church Street New York, NY 10007 212-356-3519 Fax: 212-788-9776 Email: mzuckerm@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

12/17/2012

1 COMPLAINT against Joe Doe, Raymond Kelly, The City Of New York., Raymond Williams Disclosure Statement on Civil Cover Sheet completed -no,, ﬁled by Hadiyah Charles. (Attachments: # 1 Civil Cover Sheet) (Sica, Michele) (Entered: 12/18/2012)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

2/15

10/28/2017
12/17/2012 12/17/2012 12/18/2012
12/27/2012 12/27/2012
01/03/2013 01/03/2013
01/07/2013 01/07/2013 01/07/2013 01/07/2013 01/08/2013
03/04/2013 03/04/2013

Eastern District of New York - LIVE Database V6.1.1.2
2 Summons Issued as to Pamela Benities, Raymond Kelly, The City Of New York., Raymond Williams. (Sica, Michele) (Entered: 12/18/2012)
FILING FEE: $ 350, receipt number 4653052660 (Sica, Michele) (Entered: 12/18/2012)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notiﬁed that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a ﬁnal judgment. Attached to the Notice is a blank copy of the consent form that should be ﬁlled out, signed and ﬁled electronically only if all parties wish to consent. The form may also be accessed at the following link:http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or ﬁle the consent unless all parties have signed the consent. (Sica, Michele) (Entered: 12/18/2012)
4 MOTION for Extension of Time to File Answer or otherwise respond to complaint by Raymond Kelly, The City Of New York.. (Zuckerman, Mark) (Entered: 12/27/2012)
SCHEDULING ORDER for telephone conference re 4 MOTION for Extension of Time to File Answer or otherwise respond to complaint ﬁled by Raymond Kelly, The City Of New York. A telephone conference will be held on JANUARY 7, 2013 at 02:00 PM before Chief Magistrate Judge Steven M. Gold. Defendants' counsel is directed to arrange the call with all parties. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/27/2012. (Megdal, Deborah) (Entered: 12/27/2012)
5 RESPONSE to Motion re 4 MOTION for Extension of Time to File Answer or otherwise respond to complaint ﬁled by Hadiyah Charles. (Karteron, Alexis) (Entered: 01/03/2013)
ORDER re 5 Response to Motion ﬁled by Hadiyah Charles, 4 MOTION for Extension of Time to File Answer or otherwise respond to complaint ﬁled by Raymond Kelly, The City Of New York. Counsels' applications will be discussed at the conference already scheduled for January 7th. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/3/2013. (Vasquez, Lea) (Entered: 01/03/2013)
6 SUMMONS Returned Executed by Hadiyah Charles. The City Of New York. served on 12/19/2012, answer due 1/9/2013. (Karteron, Alexis) (Entered: 01/07/2013)
7 SUMMONS Returned Executed by Hadiyah Charles. Raymond Kelly served on 12/19/2012, answer due 1/9/2013. (Karteron, Alexis) (Entered: 01/07/2013)
8 SUMMONS Returned Executed by Hadiyah Charles. Pamela Benities served on 12/21/2012, answer due 1/11/2013. (Karteron, Alexis) (Entered: 01/07/2013)
9 SUMMONS Returned Executed by Hadiyah Charles. Raymond Williams served on 12/21/2012, answer due 1/11/2013. (Karteron, Alexis) (Entered: 01/07/2013)
10 Minute Entry for Telephone Conference held on 1/7/2013 before Chief Magistrate Judge Steven M. Gold: Karteron and Dunn for plaintiff, Zuckerman for defendants. Defendants' application to extend their time to answer to March 8, 2013 is granted. THE COURT WILL HOLD AN INITIAL CONFERENCE AT 2:00 P.M. ON MARCH 12, 2013. (Vasquez, Lea) Modiﬁed on 1/8/2013 (Vasquez, Lea). (Entered: 01/08/2013)
11 ANSWER to 1 Complaint by Pamela Benities, Raymond Kelly, The City Of New York., Raymond Williams. (Zuckerman, Mark) (Entered: 03/04/2013)
12 MOTION for pre motion conference by Pamela Benities, Raymond Kelly, The City Of New York., Raymond Williams. (Zuckerman, Mark) (Entered: 03/04/2013)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

3/15

10/28/2017
03/08/2013 03/13/2013
04/11/2013 04/11/2013 04/15/2013 04/16/2013 04/18/2013 04/25/2013 04/26/2013
04/26/2013 04/26/2013 04/30/2013
05/01/2013 05/03/2013 05/15/2013

Eastern District of New York - LIVE Database V6.1.1.2
13 MEMORANDUM in Opposition re 12 MOTION for pre motion conference ﬁled by Hadiyah Charles. (Dunn, Christopher) (Entered: 03/08/2013)
14 Minute Entry for Initial Conference Hearing held on 3/12/2013 before Chief Magistrate Judge Steven M. Gold: Karteron, with students, for plaintiff; Zuckerman for defendants. The parties will complete fact discovery concerning te particular incident at issue by June 15. THE COURT WILL HOLD A CONFERENCE AT 2:00 PM ON JUNE 21. Principals with full settlement decision-making authority must be present or available by telephone. Counsel shall be prepared to schedule any remaining discovery (i.w., Monell discovery) and any anticipated motion practice. (Vasquez, Lea) (Entered: 03/13/2013)
15 MOTION for Leave to File Amended Complaint by Hadiyah Charles. (Karteron, Alexis) (Entered: 04/11/2013)
ORDER granting 15 Motion for Leave to File an amended complaint. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/11/2013. (Vasquez, Lea) (Entered: 04/11/2013)
16 AMENDED COMPLAINT against All Defendants, ﬁled by Hadiyah Charles. (Karteron, Alexis) (Entered: 04/15/2013)
17 AMENDED Summons Issued as to Anthony Famighetti. (Sica, Michele) (Entered: 04/16/2013)
18 SUMMONS Returned Executed by Hadiyah Charles. Anthony Famighetti served on 4/16/2013, answer due 5/7/2013. (Karteron, Alexis) (Entered: 04/18/2013)
19 Letter alerting the Court to a discovery dispute by Hadiyah Charles (Karteron, Alexis) (Entered: 04/25/2013)
SCHEDULING ORDER re 19 Letter ﬁled by Hadiyah Charles: A telephone conference will be held at 9:45 a.m. on April 30, 2013 before the undersigned. Counsel for plaintiff is directed to arrange the call with all parties as well as immediately conﬁrm this conference date and time with defendants' counsel. Counsel for defendant may submit a response, if any, by April 29th. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/26/2013. (Vasquez, Lea) (Entered: 04/26/2013)
20 Letter in response to letter alerting court to discovery dispute by plaintiff by Pamela Benities, Raymond Kelly, The City Of New York., Raymond Williams (Zuckerman, Mark) (Entered: 04/26/2013)
21 ANSWER to 16 Amended Complaint with jury demand by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City Of New York., Raymond Williams. (Zuckerman, Mark) (Entered: 04/26/2013)
22 Minute Entry for Telephone Conference held on 4/30/2013 before Chief Magistrate Judge Steven M. Gold: Karteron for plaintiff, Zuckerman for defendants. Defendants will provide the identities and contact information of the three individuals at issue subject to a protective order that includes the terms discussed on the record of today's proceeding. (Tape #FTR 9:46-9:53.) (Vasquez, Lea) (Entered: 04/30/2013)
23 Letter submitting proposed stipulation and protective order by Hadiyah Charles (Attachments: # 1 Proposed Order) (Karteron, Alexis) (Entered: 05/01/2013)
24 PROTECTIVE ORDER 23 approved and entered as an Order of the Court. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/3/2013. (Vasquez, Lea) (Entered: 05/03/2013)
25 Letter and proposed order by The City Of New York. (Attachments: # 1 Proposed Order)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

4/15

10/28/2017
05/15/2013
06/05/2013 06/06/2013
07/02/2013 07/02/2013 07/02/2013 07/03/2013
08/19/2013 08/19/2013
09/30/2013 10/01/2013
10/04/2013 10/08/2013 10/09/2013

Eastern District of New York - LIVE Database V6.1.1.2
(Zuckerman, Mark) (Entered: 05/15/2013)
ORDER re 25 Letter ﬁled by The City Of New York: The proposed Order directing defendant City of New York to produce UF 250 forms relating to D.C., J.M. and T.B. prepared on or about June 5, 2012 to the parties for use in this litigation only is approved and hereby entered as an Order of the Court. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/15/2013. (Vasquez, Lea) (Entered: 05/15/2013)
26 MOTION to Adjourn Conference and to extend discovery by Hadiyah Charles. (Karteron, Alexis) (Entered: 06/05/2013)
ORDER granting 26 Motion to Adjourn Conference: Discovery is extended to July 19th. The conference previously scheduled for June 21st will instead be held at 10:30 a.m. on July 25th. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/6/2013. (Vasquez, Lea) (Entered: 06/06/2013)
27 Second MOTION to Adjourn Conference and extend discovery by Hadiyah Charles. (Karteron, Alexis) (Entered: 07/02/2013)
28 RESPONSE in Opposition re 27 Second MOTION to Adjourn Conference and extend discovery ﬁled by The City Of New York.. (Zuckerman, Mark) (Entered: 07/02/2013)
29 REPLY to Response to Motion re 27 Second MOTION to Adjourn Conference and extend discovery ﬁled by Hadiyah Charles. (Karteron, Alexis) (Entered: 07/02/2013)
ORDER granting 27 Motion to Adjourn Conference: Discovery is extended to August 23, 2013. The conference previously scheduled for July 25th will instead be held at 10:30 a.m. on September 10, 2013. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/3/2013. (Vasquez, Lea) (Entered: 07/03/2013)
30 MOTION for Extension of Time to Complete Discovery and adjourn court conference of September 10, 2013 by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City Of New York., Raymond Williams. (Zuckerman, Mark) (Entered: 08/19/2013)
ORDER granting 30 Motion for Extension of Time to Complete Discovery. The conference previously scheduled for September 10th will instead be held at 11:00 a.m. on October 9, 2013. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/19/2013. (Vasquez, Lea) (Entered: 08/19/2013)
31 Letter MOTION to Adjourn Conference scheduled for October 9, 2013 by Hadiyah Charles. (Karteron, Alexis) (Entered: 09/30/2013)
ORDER denying 31 Motion to Adjourn Conference: The conference will proceed on October 9th. In the alternative, counsel may submit another application suggesting a date earlier than October 9th on which to hold the conference. So Ordered by Chief Magistrate Judge Steven M. Gold on 10/1/2013. (Vasquez, Lea) (Entered: 10/01/2013)
32 Letter regarding issues to be addressed at October 9 status conference by Hadiyah Charles (Attachments: # 1 Exhibit 1) (Karteron, Alexis) (Entered: 10/04/2013)
33 Letter in response to letter of plainiffs of October 4, 2013 by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City Of New York., Raymond Williams (Zuckerman, Mark) (Entered: 10/08/2013)
34 Minute Entry for Settlement Conference held on 10/9/2013 before Chief Magistrate Judge Steven M. Gold: Karteron for plaintiff, Zuckerman for defendants. Various discovery rulings on the record. Fact discovery is extended to December 30. Defendants will ﬁle a premotion conference application in anticipation of moving for summary judgment by February 17, 2014. Counsel are encouraged to submit a letter seeking a settlement

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

5/15

10/28/2017
10/23/2013
12/13/2013 12/16/2013
12/17/2013 12/27/2013 12/30/2013
01/07/2014 01/08/2014 01/23/2014 01/23/2014

Eastern District of New York - LIVE Database V6.1.1.2
conference if they think it might be productive to hold one. (Tape #FTR 11:01-11:32.) (Vasquez, Lea) (Entered: 10/09/2013)
35 TRANSCRIPT of Proceedings held on October 9, 2013, before Judge Gold. Court Transcriber: Fiore Reporting and Transcription Service, Inc., Telephone number (203)929-9992. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2013. Redacted Transcript Deadline set for 11/25/2013. Release of Transcript Restriction set for 1/21/2014. (Rocco, Christine) (Entered: 10/23/2013)
36 MOTION for Extension of Time to Complete Discovery and to compel the production of documents by Hadiyah Charles. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Karteron, Alexis) (Entered: 12/13/2013)
ORDER deferring ruling on 36 Motion for Extension of Time to Complete Discovery: A telephone conference will be held at 12:30 p.m. on December 27, 2013 before the undersigned. Counsel for plaintiff is directed to arrange the call with all parties as well as immediately conﬁrm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/16/2013. (Vasquez, Lea) (Entered: 12/16/2013)
37 RESPONSE to Motion re 36 MOTION for Extension of Time to Complete Discovery and to compel the production of documents ﬁled by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City Of New York., Raymond Williams. (Attachments: # 1 Exhibit A) (Zuckerman, Mark) (Entered: 12/17/2013)
ORDER granting in part and denying in part 36 Motion for Extension of Time to Complete Discovery as indicated in the minute entry for the telephone conference held today. Ordered by Chief Mag. Judge Steven M. Gold on 12/27/2013. (Gold, Steven) (Entered: 12/27/2013)
38 Minute Entry for Telephone Conference held on 12/27/2013 before Chief Magistrate Judge Steven M. Gold: Karteron for plaintiff, Zuckerman for defendants. Defendants will review the documents in defendant Benites' force monitoring ﬁle and produce all documents related to false arrest allegations by January 6. Defendants will produce the "robbery pattern" documents discussed in docket entries 36 and 37 by January 24. The date for completing fact discovery is extended to January 31. Defendants may move for spoliation sanctions by February 10, with plaintiff's opposition due February 21 and defendants' reply due February 28. Defendants' time to apply for a premotion conference in anticipation of moving for summary judgment is extended to March 17. (Vasquez, Lea) (Entered: 12/30/2013)
39 MOTION to Unseal Document and to enter stipulation and protective order by Hadiyah Charles. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Karteron, Alexis) (Entered: 01/07/2014)
ORDER granting 39 Motion to Unseal Document and the Stipulation and Protective Order. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/8/2014. (Vasquez, Lea) (Entered: 01/08/2014)
40 MOTION for Extension of Time to Complete Discovery ("Robbery Pattern" documents at Docket 38) by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City Of New York., Raymond Williams. (Zuckerman, Mark) (Entered: 01/23/2014)
ORDER granting 40 Motion for Extension of Time to Complete Discovery. Ordered by Chief Mag. Judge Steven M. Gold on 1/23/2014. (Gold, Steven) (Entered: 01/23/2014)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

6/15

10/28/2017
02/07/2014

Eastern District of New York - LIVE Database V6.1.1.2
41 Letter regarding motion for spoliation sanctions for destruction of video by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams (Zuckerman, Mark) (Entered: 02/07/2014)

02/10/2014

42 MOTION for pre motion conference by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams. (Zuckerman, Mark) (Entered: 02/10/2014)

02/18/2014

43 RESPONSE in Opposition re 42 MOTION for pre motion conference ﬁled by Hadiyah Charles. (Karteron, Alexis) (Entered: 02/18/2014)

02/19/2014

44 REPLY to Response to Motion re 42 MOTION for pre motion conference ﬁled by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams. (Zuckerman, Mark) (Entered: 02/19/2014)

02/20/2014

45 ORDER denying 42 Motion for Pre Motion Conference; See Order on last page. ( Ordered by Judge Sandra L. Townes on 2/12/2014 ) rec. in dkt 2/19 (Guzzi, Roseann) (Entered: 02/20/2014)

02/25/2014

46 ORDER re 43 Response in Opposition to Motion ﬁled by Hadiyah Charles; plaintiff's application to advance the March 17, 2014 deadline for requesting a pre-motion conference is denied without prejudice to raising the issue before Magistrate Judge Gold. ( Ordered by Judge Sandra L. Townes on 2/24/2014 ) (Guzzi, Roseann) (Entered: 02/25/2014)

03/17/2014

47 MOTION for pre motion conference for summary judgment by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams. (Attachments: # 1 Rule 56.1 Statement, # 2 Exhibit) (Zuckerman, Mark) (Entered: 03/17/2014)

03/24/2014

48 RESPONSE in Opposition re 47 MOTION for pre motion conference for summary judgment ﬁled by Hadiyah Charles. (Attachments: # 1 Rule 56.1 Statement, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14) (Karteron, Alexis) (Entered: 03/24/2014)

05/28/2014

49 Letter to Court re: Supreme Court's decision in Tolan v. Cotton by Hadiyah Charles (Karteron, Alexis) (Entered: 05/28/2014)

05/29/2014

ORDER granting 47 Motion for Pre Motion Conference. Attorneys knowledgeable about defendants' proposed motion for summary judgment in this action are directed to appear for a pre-motion conference in Courtroom 4B of the Theodore Roosevelt Courthouse, 225 Cadman Plaza East, Brooklyn, New York, on June 9, 2014, at 2:00 p.m. Ordered by Judge Sandra L. Townes on 5/29/2014. (Caspari, Alexander) (Entered: 05/29/2014)

06/18/2014

50 NOTICE of Appearance by Jordan S. Wells on behalf of All Plaintiffs (aty to be noticed) (Wells, Jordan) (Entered: 06/18/2014)

06/18/2014

51 Letter MOTION for Discovery re: Plaintiff's Monell Claim by Hadiyah Charles. (Attachments: # 1 Exhibit) (Karteron, Alexis) (Entered: 06/18/2014)

06/19/2014

52 Consent MOTION for Extension of Time to File motion for summary judgment and spoliation sanctions by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams. (Zuckerman, Mark) (Entered: 06/19/2014)

06/19/2014

ORDER deferring ruling on 51 Motion for Discovery: An in-person conference will be held at 3:30 p.m. on July 2, 2014 in Courtroom 13-D South before the undersigned. Counsel for plaintiff is directed to immediately conﬁrm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/19/2014. (Vasquez, Lea) (Entered: 06/19/2014)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

7/15

10/28/2017
06/19/2014

Eastern District of New York - LIVE Database V6.1.1.2
53 Letter MOTION to Adjourn Conference scheduled for July 2, 2014 by Hadiyah Charles. (Karteron, Alexis) (Entered: 06/19/2014)

06/20/2014

ORDER granting 53 Motion to Adjourn Conference: The conference scheduled for July 2nd will instead be held at 3:00 p.m. on July 7th. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/20/2014. (Vasquez, Lea) (Entered: 06/20/2014)

06/23/2014

54 RESPONSE in Opposition re 51 Letter MOTION for Discovery re: Plaintiff's Monell Claim ﬁled by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Zuckerman, Mark) (Entered: 06/23/2014)

06/24/2014

55 ORDER dated 6/20/14 granting 52 Motion for Extension of Time to File. Extension granted on Consent. ( Ordered by Judge Sandra L. Townes on 6/20/2014 ) (Guzzi, Roseann) (Entered: 06/24/2014)

07/08/2014

56 Minute Entry for Status Conference held on 7/7/2014 before Chief Magistrate Judge Steven M. Gold: Karteron and Wells for plaintiff, Zuckerman for defendants. Plaintiff may propound Monell written discovery demands by July 11. For the time being, these demands will be limited as indicated on the record to general policies and procedures for dealing with onlookers and particularly recording onlookers and training about them. Defendants will respond by August 15. Counsel will submit a letter by September 12 indicating whether they seek a further conference. (Tape #FTR 2:52-3:08.) (Vasquez, Lea) (Entered: 07/08/2014)

07/08/2014

57 Letter regarding proposed brieﬁng schedule on the individual defendants motoin for summary judgment and spoliation sanctions by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams (Zuckerman, Mark) (Entered: 07/08/2014)

07/08/2014

ORDER granting 51 Motion for Discovery to the extent indicated in the minute entry for the conference held on July 7, 2014. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/8/2014. (Vasquez, Lea) (Entered: 07/08/2014)

07/11/2014

58 SCHEDULING ORDER: dated 7/11/14 re 57 Letter regarding proposed brieﬁng schedule on the individual defendants motoin for summary judgment and spoliation sanctions by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams (Zuckerman, Mark); GRANTED. ( Ordered by Judge Sandra L. Townes on 7/11/2014 ) (Guzzi, Roseann) (Entered: 07/15/2014)

07/16/2014

59 TRANSCRIPT of Proceedings held on July 7, 2014, before Judge Gold. Court Transcriber: Fiore Reporting and Transcription Service, Inc, Telephone number (203)9299992. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/6/2014. Redacted Transcript Deadline set for 8/18/2014. Release of Transcript Restriction set for 10/14/2014. (Rocco, Christine) (Entered: 07/16/2014)

08/06/2014

60 Joint MOTION for Extension of Time to File Summay Judgment Motion Papers by Hadiyah Charles. (Karteron, Alexis) (Entered: 08/06/2014)

08/12/2014

61 ORDER dated 8/11/14 granting 60 Motion for Extension of Time to File. ( Ordered by Judge Sandra L. Townes on 8/11/2014 ) (Guzzi, Roseann) (Entered: 08/12/2014)

08/14/2014

62 Consent MOTION for Extension of Time to Complete Discovery (responses to written Monell discovery at Docket 56) by The City of New York. (Zuckerman, Mark) (Entered: 08/14/2014)

08/15/2014

ORDER granting 62 Motion for Extension of Time to Complete Discovery: Defendants

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

8/15

10/28/2017
09/12/2014 09/15/2014
09/15/2014 09/16/2014 09/24/2014 09/26/2014 09/29/2014 10/08/2014 10/08/2014 10/08/2014 10/08/2014 10/08/2014 10/08/2014
10/08/2014 10/08/2014

Eastern District of New York - LIVE Database V6.1.1.2
time to respond to plaintiffs written Monell discovery demands is extended from August 15, 2014. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/15/2014. (Vasquez, Lea) (Entered: 08/15/2014)
63 STATUS REPORT re: Monell discovery and request for conference by Hadiyah Charles (Karteron, Alexis) (Entered: 09/12/2014)
ORDER re 63 Status Report ﬁled by Hadiyah Charles: An in-person conference will be held at 2:00 p.m. on October 24, 2014 before the undersigned in Courtroom 13-D South. Counsel for plaintiff is directed to immediately conﬁrm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/15/2014. (Vasquez, Lea) (Entered: 09/15/2014)
64 MOTION to Adjourn Conference scheduled for October 24, 2014 by Hadiyah Charles. (Karteron, Alexis) (Entered: 09/15/2014)
ORDER granting 64 Motion to Adjourn Conference: The conference scheduled for October 24th will instead be held at 11:30 a.m. on October 28, 2014. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/16/2014. (Vasquez, Lea) (Entered: 09/16/2014)
65 Consent MOTION for Extension of Time to File Response/Reply (reply brief-motion for summary judgment and spoliation sanctions) by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 09/24/2014)
66 Letter to Judge Townes re: service of motion opposition papers by Hadiyah Charles (Karteron, Alexis) (Entered: 09/26/2014)
67 ORDER granting 65 Motion for Extension of Time to File Response/Reply; The application is granted. Ordered by Judge Sandra L. Townes on 9/25/2014. (Fernandez, Erica) (Entered: 09/29/2014)
68 MOTION for Summary Judgment and spoliation sanctions by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)
69 RULE 56.1 STATEMENT ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)
70 AFFIDAVIT/DECLARATION in Support re 68 MOTION for Summary Judgment and spoliation sanctions ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Attachments: # 1 Exhibit A-N) (Zuckerman, Mark) (Entered: 10/08/2014)
71 AFFIDAVIT/DECLARATION in Support re 68 MOTION for Summary Judgment and spoliation sanctions (Anthony Famighetti) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)
72 MEMORANDUM in Support of motion for summary judgment and spoliation sanctions ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)
73 AFFIDAVIT/DECLARATION in Support re 68 MOTION for Summary Judgment and spoliation sanctions (supplemental) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Attachments: # 1 Exhibit O-P) (Zuckerman, Mark) (Entered: 10/08/2014)
74 MEMORANDUM in Support (supplemental) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)
75 RULE 56.1 STATEMENT (supplemental) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

9/15

10/28/2017
10/08/2014

Eastern District of New York - LIVE Database V6.1.1.2
76 RULE 56.1 STATEMENT (plaintiff's opposition 56.1 statement) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)

10/08/2014

77 AFFIDAVIT/DECLARATION in Opposition re 68 MOTION for Summary Judgment and spoliation sanctions (Alexis Karteron) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Attachments: # 1 Exhibit 1-20) (Zuckerman, Mark) (Entered: 10/08/2014)

10/08/2014

78 AFFIDAVIT/DECLARATION in Opposition re 68 MOTION for Summary Judgment and spoliation sanctions (Hadiyah Charles) ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)

10/08/2014

79 MEMORANDUM in Opposition ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)

10/08/2014

80 REPLY to Response to Motion re 68 MOTION for Summary Judgment and spoliation sanctions ﬁled by Pamela Benities, Anthony Famighetti, Raymond Williams. (Zuckerman, Mark) (Entered: 10/08/2014)

10/23/2014

81 Letter regarding issues to be discussed at October 28 status conference by Hadiyah Charles (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Wells, Jordan) (Entered: 10/23/2014)

10/24/2014

82 Letter in response to letter of plaintiff of October 23, 2014 at Docket 81 by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams (Attachments: # 1 Exhibit A) (Zuckerman, Mark) (Entered: 10/24/2014)

10/30/2014

83 Minute Entry for Status Conference held on 10/28/2014 before Chief Magistrate Judge Steven M. Gold: Karteron for plaintiff, Zuckerman for defendants. Various discovery rulings on the record. Defendants will answer interrogatories and indicate whether IAB or CCRB categorizes complaints by type (including the type at issue here) and, if so, report on the number of analogous complaints, broken out by time period, by November 14. Defendants will search for relevant Finest messages and produce same by December1. By December 1, defendants will have produced all training and policy material they will rely on in substantive motion practice or at trial. NEXT CONFERENCE: DECEMBER 23, 2014 AT 10:00 AM. Counsel shall submit letters identifying the issues to be raised at the next conference by December 19. (Tape #FTR 11:33-12:01.) (Vasquez, Lea) (Entered: 10/30/2014)

11/06/2014

84 TRANSCRIPT of Proceedings held on October 28, 2014, before Judge Gold. Court Transcriber: ARIA SERVICES, INC, Telephone number 845-260-1377. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 11/28/2014. Redacted Transcript Deadline set for 12/8/2014. Release of Transcript Restriction set for 2/4/2015. (Rocco, Christine) (Entered: 11/06/2014)

11/13/2014

85 Consent MOTION for Extension of Time to Complete Discovery (Docket 83) by The City of New York. (Zuckerman, Mark) (Entered: 11/13/2014)

11/14/2014

ORDER granting 85 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/14/2014. (Vasquez, Lea) (Entered: 11/14/2014)

12/01/2014

86 Consent MOTION for Extension of Time to Complete Discovery (Monell) by The City of New York. (Zuckerman, Mark) (Entered: 12/01/2014)

12/02/2014

ORDER granting 86 Motion for Extension of Time to December 12, 2014 to Complete

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

10/15

10/28/2017
12/19/2014 12/22/2014 12/28/2014
01/07/2015
02/18/2015 02/18/2015 02/20/2015 02/25/2015 02/27/2015 03/26/2015 03/26/2015 03/27/2015 03/31/2015 04/09/2015

Eastern District of New York - LIVE Database V6.1.1.2
Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/2/2014. (Vasquez, Lea) (Entered: 12/02/2014)
87 Letter regarding issues to be addressed at Dec. 23 status conference by Hadiyah Charles (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Karteron, Alexis) (Entered: 12/19/2014)
88 Letter in response to letter of plaintiff of December 19, 2014 by The City of New York (Attachments: # 1 Exhibit A-F) (Zuckerman, Mark) (Entered: 12/22/2014)
89 Minute Entry for Status Conference held on 12/23/2014 before Chief Magistrate Judge Steven M. Gold: With the limited exceptions stated on the record, plaintiff's letter application for additional discovery, Docket Entry 87, is denied. Counsel will contact the Court to schedule further proceedings once the pending dispositive motions are decided or if they believe a settlement conference might be productive. (Tape #FTR 10:04-10:30.) (Vasquez, Lea) (Entered: 12/28/2014)
90 TRANSCRIPT of Proceedings held on December 23, 2014, before Judge Gold. Court Transcriber: ARIA SERVICES, INC, Telephone number 845-260-1377. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 1/28/2015. Redacted Transcript Deadline set for 2/9/2015. Release of Transcript Restriction set for 4/7/2015. (Rocco, Christine) (Entered: 01/07/2015)
91 Letter annexing decision in Goodman v. City of New York, et. al., 12 Civ. 5261 (S.D.N.Y.) by Pamela Benities, Anthony Famighetti, Raymond Williams (Attachments: # 1 Exhibit A) (Zuckerman, Mark) (Entered: 02/18/2015)
92 Letter by Pamela Benities, Anthony Famighetti, Raymond Williams (Zuckerman, Mark) (Entered: 02/18/2015)
93 Letter to Judge Townes re: Goodman v. City of New York by Hadiyah Charles (Karteron, Alexis) (Entered: 02/20/2015)
94 Letter to Judge Townes discussing Second Circuit decision in Garcia v. Doe, et. al., 12 Civ. 2634 of February 23, 2015 by Pamela Benities, Anthony Famighetti, Raymond Williams (Attachments: # 1 Exhibit) (Zuckerman, Mark) (Entered: 02/25/2015)
95 Letter in response to Defendants' letter (Doc. 94) regarding Garcia v. Doe by Hadiyah Charles (Karteron, Alexis) (Entered: 02/27/2015)
96 MOTION for pre motion conference by Raymond Kelly, The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Zuckerman, Mark) (Entered: 03/26/2015)
97 RULE 56.1 STATEMENT ﬁled by Raymond Kelly, The City of New York. (Attachments: # 1 Exhibit Q-S) (Zuckerman, Mark) (Entered: 03/26/2015)
98 Consent MOTION for Extension of Time to File Response/Reply as to 96 MOTION for pre motion conference by Hadiyah Charles. (Karteron, Alexis) (Entered: 03/27/2015)
99 ENDORSED ORDER granting 98 Motion for Extension of Time to File Response/Reply re 96 MOTION for pre motion conference . Response due by 4/9/2015. Ordered by Judge Sandra L. Townes on 3/30/2015. (Barrett, C) (Entered: 03/31/2015)
100 RESPONSE in Opposition re 96 MOTION for pre motion conference ﬁled by Hadiyah Charles. (Attachments: # 1 Rule 56.1 Statement, # 2 Exhibit 17-19, # 3 Exhibit 20-32) (Karteron, Alexis) (Entered: 04/09/2015)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

11/15

10/28/2017
04/28/2015

Eastern District of New York - LIVE Database V6.1.1.2
101 Letter to Judge Townes re recent Lawson and Pluma decisions by Pamela Benities, Anthony Famighetti, Raymond Williams (Zuckerman, Mark) (Entered: 04/28/2015)

04/29/2015 102 Letter to Judge Townes in response to Defendants' letter on Lawson and Pluma decisions by Hadiyah Charles (Karteron, Alexis) (Entered: 04/29/2015)

05/18/2015 103 Letter to Judge Townes re: recent decision in Higginbotham v. City of New York by Hadiyah Charles (Karteron, Alexis) (Entered: 05/18/2015)

05/19/2015

104 Letter in response to letter of plaintiff's counsel of May 18, 2015 at Docket 103 by Pamela Benities, Anthony Famighetti, Raymond Williams (Zuckerman, Mark) (Entered: 05/19/2015)

05/19/2015

ORDER denying 96 Motion for Pre Motion Conference. The motion is denied without prejudice to renewing it within 30 days following the date on which the CCRB report is made available to the public. If the CCRB report has not been made publicly available by July 31, 2015, the parties shall ﬁle a joint status report: (1) providing an estimate, if one is available, of when the CCRB report will issue and (2) stating whether they wish to continue waiting for the CCRB report or wish to proceed with the pre-motion conference. Ordered by Judge Sandra L. Townes on 5/19/2015. (Druker, Elina) (Entered: 05/19/2015)

07/30/2015 105 STATUS REPORT (joint) by Raymond Kelly, The City of New York (Zuckerman, Mark) (Entered: 07/30/2015)

11/05/2015

106 STATUS REPORT (joint) by Raymond Kelly, The City of New York (Zuckerman, Mark) (Entered: 11/05/2015)

12/08/2015 107 MOTION for pre motion conference (renewal) by Raymond Kelly, The City of New York. (Zuckerman, Mark) (Entered: 12/08/2015)

12/15/2015 108 RESPONSE in Opposition re 107 MOTION for pre motion conference (renewal) ﬁled by Hadiyah Charles. (Wells, Jordan) (Entered: 12/15/2015)

02/29/2016 109 Letter re Judge Schoﬁeld's recent decision in Gonzalez by Pamela Benities, Anthony Famighetti, Raymond Williams (Zuckerman, Mark) (Entered: 02/29/2016)

03/07/2016

110 Letter re: recent decision in Gonzalez v. City of New York and revisions to FRCP 37 by Hadiyah Charles (Karteron, Alexis) (Entered: 03/07/2016)

03/10/2016

111 Letter in response to letter of plaintiff at Docket 110 re changes to FRCP 37 by Pamela Benities, Anthony Famighetti, Raymond Williams (Zuckerman, Mark) (Entered: 03/10/2016)

06/03/2016

112 MOTION to Withdraw as Attorney by Hadiyah Charles. (Karteron, Alexis) (Entered: 06/03/2016)

06/03/2016

ORDER granting 112 Motion to Withdraw as Attorney. Attorney Alexis Brie Karteron terminated. Ordered by Magistrate Judge Steven M. Gold on 6/3/2016. (Richardson, Jacqueline) (Entered: 06/03/2016)

08/09/2016

113 NOTICE of Appearance by Mariana Kovel on behalf of Hadiyah Charles (aty to be noticed) (Kovel, Mariana) (Entered: 08/09/2016)

08/16/2016

114 Letter re recent Basinski decision of Judge Swain by Pamela Benities, Anthony Famighetti, Raymond Williams (Zuckerman, Mark) (Entered: 08/16/2016)

09/30/2016

ORDER granting 107 Motion for Pre Motion Conference. A conference is set for November 9, 2016 at 12:00 PM. Ordered by Judge Sandra L. Townes on 10/6/2016. (Brucella, Michelle) (Entered: 10/06/2016)

11/09/2016

Minute Entry for proceedings held before Judge Sandra L. Townes: Status Conference

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

12/15

10/28/2017
11/10/2016 12/02/2016 12/06/2016
12/19/2016
01/17/2017 01/17/2017 01/26/2017 01/26/2017

Eastern District of New York - LIVE Database V6.1.1.2
held on 11/9/2016. Appearances: Mariana Kovel and Jordan S. Wells for Plaintiff; Mark D. Zuckerman for Defendants. Plaintiff's counsel report that the CCRB report, pending since 2014, has not yet issued and that it is uncertain when it will be available. In light of this uncertainty, this matter is respectfully referred to Magistrate Judge Gold to resume and complete discovery relating to Plaintiff's failure-to-warn claim. (Court Reporter: Richard Barry) (Brucella, Michelle) (Entered: 11/09/2016)
SCHEDULING ORDER: a telephone conference is scheduled for December 2, 2016 at 11:30 a.m. before Magistrate Judge Steven M. Gold. Counsel for plaintiff is directed to arrange the call with all parties as well as immediately conﬁrm this conference date and time with defendant's counsel. Ordered by Magistrate Judge Steven M. Gold on 11/10/2016. (Gillespie, Saudia) (Entered: 11/10/2016)
115 Minute Entry: Telephone Conference held on 12/2/2016 before Magistrate Judge Steven M. Gold. Kovel and Wells for plaintiff, Zuckerman for defendants. Plaintiff will serve refreshed discovery demands by December 14. The parties will then confer in an effort to agree upon the scope of discovery to be taken and a schedule for completing it. THE PARTIES SHALL SUBMIT A LETTER BY JANUARY 17, 2017 REPORTING ON ANY ISSUES IN DISPUTE AND PROPOSING A CASE MANAGEMENT SCHEDULE. (Tape #11:33-11:45.) (Gillespie, Saudia) (Entered: 12/02/2016)
116 TRANSCRIPT of Proceedings held on December 2, 2016, before Judge Gold. Court Reporter/Transcriber Fiore Reporting and Transcription Service, Inc., Telephone number (203) 929-9992. Email address: cmﬁore@sbcglobal.net. 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.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 12/27/2016. Redacted Transcript Deadline set for 1/6/2017. Release of Transcript Restriction set for 3/6/2017. (Hong, Loan) (Entered: 12/06/2016)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/9/2016, before Judge Sandra L. Townes. Court Reporter/Transcriber Richard Barry, Telephone number 718-613-2505. Email address: rwbarrycourtreporter@gmail.com. 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.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 1/9/2017. Redacted Transcript Deadline set for 1/19/2017. Release of Transcript Restriction set for 3/20/2017. (Barry, Richard) (Entered: 12/19/2016)
118 Letter MOTION for Extension of Time to File Discovery Status Update by Hadiyah Charles. (Kovel, Mariana) (Entered: 01/17/2017)
ORDER: 118 Motion for Extension of Time to File is hereby GRANTED. THE PARTIES SHALL SUBMIT A LETTER BY JANUARY 26, 2017 REPORTING ON ANY ISSUES IN DISPUTE AND PROPOSING A CASE MANAGEMENT SCHEDULE. Ordered by Magistrate Judge Steven M. Gold on 1/17/2017. (Gillespie, Saudia) (Entered: 01/17/2017)
119 Letter MOTION for Extension of Time to File Discovery Status Update by Hadiyah Charles. (Kovel, Mariana) (Entered: 01/26/2017)
ORDER: 119 Motion for Extension of Time to File is hereby GRANTED. Counsel shall ﬁle a joint updated status report letter by February 1, 2017. Ordered by Magistrate Judge Steven M. Gold on 1/26/2017. (Gillespie, Saudia) (Entered: 01/26/2017)

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

13/15

10/28/2017
02/01/2017 02/02/2017
02/03/2017 02/03/2017
02/08/2017 03/07/2017 03/07/2017
03/15/2017
05/04/2017 05/04/2017

Eastern District of New York - LIVE Database V6.1.1.2
120 Joint MOTION for Discovery conference AND update on status of Monell Discovery by Hadiyah Charles. (Attachments: # 1 Exhibit 1 -- Document Requests, # 2 Exhibit A -Conference Transcript, # 3 Exhibit B -- Conference Transcript) (Kovel, Mariana) (Entered: 02/01/2017)
ORDER: 120 Motion for Discovery Conference is hereby GRANTED. A status conference is scheduled for February 22, 2017 at 11:00 a.m. in Courtroom 13D South before the undersigned. Counsel for all parties must attend. Counsel for plaintiff is directed to immediately conﬁrm this conference date and time with defendant's counsel. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 2/2/2017. (Gillespie, Saudia) (Entered: 02/02/2017)
121 Letter MOTION to Adjourn Conference currently set for 2/22/17 by Hadiyah Charles. (Kovel, Mariana) (Entered: 02/03/2017)
ORDER: 121 Motion to Adjourn Conference is hereby GRANTED. The previously scheduled status conference set for February 22, 2017 is adjourned to March 7, 2017 at 2:30 p.m. in Courtroom 13D South before the undersigned. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 2/3/2017. (Gillespie, Saudia) (Entered: 02/03/2017)
122 MEMORANDUM AND ORDER. For the reasons stated herein, Defendants' 68 motion for summary judgment is denied. Defendants' 68 motion for spoliation sanctions is denied without prejudice to renewal if the evidence adduced at trial establishes that the videotape of the incident was likely to favor Defendants. Ordered by Judge Sandra L. Townes on 2/7/2017. (Barrett, C) (Entered: 02/08/2017)
123 NOTICE of Appearance by Robert Hodgson on behalf of Hadiyah Charles (aty to be noticed) (Hodgson, Robert) (Entered: 03/07/2017)
124 Minute Entry: Status Conference held on 3/7/2017 before Magistrate Judge Steven M. Gold. Kovel and Hodgson for plaintiff, Zuckerman for defendants. Rulings on plaintiff's demands for Monell discovery, Docket Entry 120, entered on the record. Defendants shall produce the discovery ordered today by May 8, 2017. Defendants shall submit their renewed premotion conference application in anticipation of moving for summary judgment on plaintiff's Monell claims by May 22, 2017. (Tape #2:31-3:20.) (Gillespie, Saudia) (Entered: 03/08/2017)
125 TRANSCRIPT of Proceedings held on March 7, 2017, before Judge Gold. Court Transcriber: Fiore Reporting and Transcription Service, Inc, Telephone number (203)9299992. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 4/5/2017. Redacted Transcript Deadline set for 4/17/2017. Release of Transcript Restriction set for 6/13/2017. (Rocco, Christine) (Entered: 03/15/2017)
126 Consent MOTION for Extension of Time to Complete Discovery at Docket 124 by The City of New York. (Zuckerman, Mark) (Entered: 05/04/2017)
ORDER: 126 Motion for Extension of Time to Complete Discovery is hereby GRANTED. Defendants' extension of time to produce discovery discussed during the March 7, 2017 settlement conference is extended to June 7, 2017. Defendants shall submit their renewed premotion conference application in anticipation of moving for

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

14/15

10/28/2017
06/07/2017 06/09/2017

Eastern District of New York - LIVE Database V6.1.1.2
summary judgment on plaintiff's Monell claims by June 21, 2017. Ordered by Magistrate Judge Steven M. Gold on 5/4/2017. (Gillespie, Saudia) (Entered: 05/04/2017)
127 Letter to Judge Townes with stipulation of settlement and order of dismissal by Pamela Benities, Anthony Famighetti, Raymond Kelly, The City of New York, Raymond Williams (Attachments: # 1 Proposed Order) (Zuckerman, Mark) (Entered: 06/07/2017)
128 STIPULATION OF SETTLEMENT AND ORDER DISMISSING CASE, STIPULATED AND AGREED, The above-referenced action is hereby dismissed against defendants, with prejudice, and without costs, expenses, or attorneys' fees except as speciﬁed in paragraph "2" below. Ordered by Judge Sandra L. Townes on 6/6/2017. (Layne, Monique) (Entered: 06/09/2017)

PACER Service Center

Transaction Receipt

PACER Login:
Description:
Billable Pages:

10/28/2017 23:00:29

hs0328:2563377:0 Client Code:

Docket Report

Search Criteria:

13

Cost:

1:12-cv-06180-SLTSMG
1.30

https://ecf.nyed.uscourts.gov/cgi-bin/DktRpt.pl?111719160210298-L_1_0-1

15/15